PLD 2020 Judgments

P L D 2020 High Court (AJ&K) 1

Before Raja Sajjad Ahmad Khan, J

MOHAMMAD NAVEED ASIM and others---Appellants

Versus

SUMAIRA MAJEED and others---Respondents

Family Appeals Nos.38 and 267 of 2017, decided on 19th March, 2019.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939) S.2(viii)(a)---Suit for dissolution of marriage---Curelty---Effect---Husband contracted second marriage and snatched minor daughter from the wife---Wife sought decree for dissolution of marriage on the grounds of non-payment of maintenance allowance; non-performing of marital obligations and cruelty---Marriage was dissolved by the Family Court on the ground of non-payment of maintenance---Validity---Relations between the spouses had become hostile and husband had snatched daughter from the wife and contracted second marriage which forced wife to abandon his house---Husband had not made any effort or arrangement to take her wife back to his house nor he had provided her maintenance allowance thus mentally torturing her---Wife had succeeded to prove the allegation of cruelty, in circumstances---Cruelty by conduct and behaviour of a spouse justified the grant of divorce---Decree for dissolution of marriage due to non-payment of maintenance allowance was converted by the High Court into a decree for dissolution of marriage on the basis of cruelty---Impugned judgment and decree passed by the Family Court were modified accordingly---Appeal was allowed, in circumstances.

2002 CLC 1450; 2015 YLR 170 and 2012 MLD 1394 ref.

Mohammad Sabil Khan and another v. Sima Inshad 2014 SCR 718 and Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others 2011 SCR 233 rel.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance---Family Court allowed maintenance allowance for the minor at the rate of Rs.4,000/- per month but refused the same to the wife---Validity---Husband was bound to pay maintenance allowance to the wife till she was faithful and lived with him---When wife had succeeded to prove that she was foced to abandon the house of her husband, she was entitled for maintenance---Husband was bound to pay maintenance to the wife till she lived in his house and for the period of Iddat after dissolution of marriage---Family Court had committed error while dismissing the suit of wife for recovery of maintenance allowance---Minor daughter was getting education; mother had proved that she could not afford expenses of school and other daily items from the fixed amount of maintenance---Court had power to increase or decrease the maintenance allowance according to the financial position of father and keeping in view the rate of inflation in the country and increase of demands of the minor with the passage of time---Family Court had fixed maintenance allowance without an annual increment---High Court enhanced maintenance allowance for the minor from Rs.4,000/- to Rs.6,000/- per month with 10% annual increment from the date of judgment and also granted maintenance to the wife at the rate of Rs.4,000/- per month till she lived with her husband and for the period of Iddat after divorce---Impugned judgment and decree passed by the Family Court were modified accordingly---Appeal was allowed, in circumstances.

2016 YLR 371 and 2015 YLR 170 rel.

Ch. Ashraf Ayyaz and Zaheer Ahmad for Appellant-Defendant.

Ghazala Haider Lodhi for Appellant-Plaintiff.

P L D 2020 High Court (AJ&K) 9

Before Azhar Saleem Babar, A.C.J., and Muhammad Sheraz Kiani, J

Writ Petition No.1092 of 2018

Barrister ADNAN NAWAZ KHAN, ADVOCATE, SUPREME COURT OF AJ&K and others---Petitioners

Versus

GOVERNMENT OF THE STATE OF AZAD JAMMU AND KASHMIR through Chief Secretary and others---Non-Petitioners

Writ Petition No.1130 of 2018

AAMIR ALI AWAN, ADVOCATE SUPREME COURT OF AJ&K, MUZAFFARGARH---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF AZAD JAMMU AND KASHMIR through Chief Secretary and 13 others---Non-Petitioners

Writ Petition No.1194 of 2018

SARDAR SAIF ULLAH HAJAZI, ADVOCATE HIGH COURT DISTRICT BAR ASSOCIATION, RAWALAKOT and 15 others---Petitioners

Versus

GOVERNMENT OF AZAD JAMMU AND KASHMIR through Chief Secretary

and 13 others---Non-Petitioners

Writ Petition No.1235 of 2018

Ch. MUHAMMAD RIAZ ALAM, ADVOCATE SUPREME COURT OF MIRPUR AJ&K and 7 others---Petitioners

Versus

GOVERNMENT OF AZAD JAMMU AND KASHMIR through Chief Secretary and 16 others---Non-Petitioners

Writ Petition No.1255 of 2018

FAYYAZ AHMED JANJUA, ADVOCATE SUPREME COURT OF AZAD JAMMU AND KASHMIR, MEMBER CENTRAL BAR ASSOCIATION---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF AZAD JAMMU AND KASHMIR

through Chief Secretary and 16 others---Non-Petitioners

Writ Petition No.1296 of 2018

SHAHID AJMAL, ADVOCATE SUPREME COURT MEMBER SEHNSA BAR

ASSOCIATION KOTLI---Petitioner

Versus

GOVERNMENT OF THE STATE OF AZAD JAMMU AND KASHMIR through

Chief Secretary and 15 others---Non-Petitioners

Writ Petitions Nos.1092, 1130, 1194, 1235, 1255 and 1296 of 2018, decided on 17th September, 2019.

Per Azhar Saleem Babar, Acting Chief Justice; Muhammad Sheraz Kiani, J agreeing.

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

----Ss. 43(2-A) & 44---Writ petition challenging the appointment process of Judges of High Court of Azad Jammu and Kashmir---Maintainability---Wisdom of constitutional consultation regarding appointment of Judges in the superior Courts could not be challenged in a writ petition but the procedural defects in the process of consultation were open to challenge via a constitutional writ petition.

Gupta's case AIR 1982 SC 149 and Muhammad Younas Tahir's case PLD 2012 SC (AJ&K) 42 ref.

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

----S. 7---Constitution of Pakistan, Arts. 48 & 105---President/Governor to act on advice etc---Scope---Governor of a Province or President of Pakistan was bound by the advice of the Cabinet under Art. 48 of the Constitution of Pakistan but the President, Azad Jammu and Kashmir, was not bound by any such advice under S.7 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

Muhammad Younas Tahir's case PLD 2012 SC (AJ&K) 42 ref.

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

----Ss. 43(2-A) & 44---Writ petition challenging the appointment process of Judges of High Court of Azad Jammu and Kashmir---Maintainability---Certified copies---Plea that present writ petition merited dismissal as relevant certified copies had not been attached with it---Held, that petitioners had attached certified copies of the impugned notification through which the Judges of the High Court were appointed, which was the requirement of law---Plea regarding dismissal of writ petition was not tenable.

2013 MLD 520 ref.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Consultation by President, Azad Jammu and Kashmir (AJ&K)---Scope---For appointment of a Judge in the High Court (AJ&K) consultation with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K) was sine-qua-non---Findings of the case reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) were applicable to the process of appointment of a Judge (of superior court) in Azad Jammu and Kashmir and such findings had to be followed stricto-sensu.

Muhammad Younas Tahir's case PLD 2012 SC (AJ&K) 42 and Al-Jehad's case PLD 1996 SC 324 ref.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---"Consultation by President, Azad Jammu and Kashmir (AJ&K)"---Meaning---In order to bring the consultation (by the President) within the ambit of validity, it should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play.

Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84 ref.

(f) Words and phrases---

----"Consultation"---Meaning.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Constitutionality---Consultation by President, Azad Jammu and Kashmir (AJ&K)---Meaningful and purposive consultation---Scope---[Per Azhar Saleem Babar, (Acting Chief Justice)]: Details of meetings/verbal consultation by the President of AJ&K with the Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K) brought on record showed that as many as 32 consultations were conducted by the President with both the Chief Justices---Consultations with the said judicial consultees were held individually and collectively, face to face and on telephone---Sufficient process of consultation by the President with the Chief Justice of Supreme Court (AJ&K) and the Chief Justice of High Court (AJ&K) had been conducted and requirement of law had been satisfied---Impugned notification whereby Judges of the High Court (AJ&K) were appointed was held to be validly issued]---[Per Muhammad Sheraz Kiani, J agreeing: Consultation in the present case, had consumed a period of almost 1½ years and about 31 meetings took place---In-spite of such hard efforts, consensus could not be reached between the names of nominees provided by the Chief Justice of Supreme Court (AJ&K) and the Chief Justice of High Court (AJ&K)---In such a situation, the fact that the names of nominees were not common in both the lists, did not vitiate the whole (consultation) process---Names of three nominees proposed by the Chief Justice of the Supreme Court (AJ&K) did not feature on the list prepared by the Chief Justice of the High Court (AJ&K), but on record there were no adverse remarks against said three nominees nor any disqualification was attributed towards them---Even in case of such disagreement, the consultation process could not be declared illegal and unlawful, particularly, when, the nominees appointed as judges had not been found unfit by any consultee---No ruling had been referred by the petitioners which may require complete consensus and the requirement of law was only purposive and meaningful consultation---Mandatory consultative process was completed before issuance of the impugned notification whereby Judges in question were appointed]---Order accordingly

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K)---Scope---As long as, there was reasonable passing of information, on the matter in issue, between the authorities concerned, the requirement of law (with respect to consultation) was satisfied---Not at all necessary that a consensus between the judicial consultees must be reached; rather, if consultation, comprising of reasonable passing of information, was effected, it satisfied the requirement of law.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Nominees---President, Azad Jammu and Kashmir (AJ&K), powers of---President (AJ&K) was not empowered to prioritize or finalize a list of nominees against vacant positions in the office of High Court (AJ&K).

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Nominees---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K)---Difference of opinion between the Chief Justice of the Supreme Court and the High Court regarding nominees---'Rule of primacy'---Scope---In case of difference of opinion between the said two judicial consultees, there were two options that could be followed; first, the Chief Justice of Supreme Court (AJ&K) may invite Chief Justice of High Court (AJ&K) to discuss and resolve the controversy, or second, the President (AJ&K) may invite both the judicial consultees to have a dialogue on the controversial issues---Rule of primacy required that opinion formed by Chief Justice of Supreme Court (AJ&K) had to be accorded primacy and given due deference and such opinion shall prevail in case of difference of opinion between the Chief Justice of the Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K).

PLD 2009 SC 879; Al-Jehad Trust's case PLD 1996 SC 324 and AIR 1994 SC 268 ref.

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

----O. I, R. 10(2)---Court may strike out or add parties---Scope---Right to add or strike out a party from pleadings was vested with the Court only---Order 1, R.10(2), C.P.C envisaged such discretion.

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

----S. 43(3)(b)---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.10-B & 13---District and Sessions Judge appointed as Judge of High Court, Azad Jammu and Kashmir (AJ&K)---Constitutionality---Requirement of three years of service as regular District and Sessions Judge---[Per Azhar Saleem Babar, (Acting Chief Justice)]: Judge in question, who was serving in his capacity as 'Acting Additional District and Sessions Judge' was promoted to the post of Additional District and Sessions Judge BS-20 on regular basis with effect from 02-04-2012---Acting charge promotion did not create any right of promotion on regular basis---Subsequently judge in question was promoted as District and Sessions Judge BS-21 on regular basis on 09-01-2016 on recommendations of relevant Judicial Selection Board---Constitutional requirement of 3 years service as regular District and Sessions Judge was not complete at the time of commencement of process of appointment of the judge in question and even at the time of issuance of notification of his appointment as Judge of High Court (AJ&K) on 21-05-2018---Impugned notification of appointment to the extent of Judge in question was set aside and it was directed that he shall cease to hold the office of Judge High Court (AJ&K) forthwith, however, acts done in judicial capacity, judgments delivered and financial benefits taken by him as Judge High Court (AJ&K) shall stand protected on the basis of "de facto doctrine"---[Per Muhammad Sheraz Kiani, J agreeing:] S.43(3) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 barred the appointment of any District and Sessions Judge [as a Judge of the High Court (AJ&K)] having less than 3 years' experience as a (regular) District and Sessions Judge---Such qualification for appointment prescribed in S.43(3) could not be condoned and relaxed---Judge in question was promoted as regular District and Sessions Judge vide order dated 09.01.2016, so, he was not qualified to be appointed as judge of the High Court (AJ&K), having less than 3 years' experience as District and Sessions Judge---By the earlier promotion order dated 04-07-2012, he in-fact, remained an Additional District Judge and was just holding charge of District and Sessions Judge on acting charge basis---Rule 10-A(4) of the Azad Jammu and Kashmir Civil Servants(Appointment and Conditions of Service) Rules, 1977 clearly postulated that no appointment on acting charge basis shall be deemed to have been made on regular basis for any purpose nor shall confer anyright for regular appointment---Appointment of the judge in question to the office of Judge, High Court (AJ&K) was declared to be void ab-initio and unlawful]---Order accordingly.

AIR 1954 Asaam 161 and AIR 1990 Patna 49 distinguisted.

(m) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----Rr. 10-B & 13---Promotion on acting charge, current charge or officiating basis---Such promotion did not confer any right of promotion.

2017 PLC(C.S.) 1457; 2012 PLC (C.S.) 244; 2000 PLC (C.S.) 247 and 2000 SCMR 835 ref.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Nominees---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of the High Court (AJ&K)---Telephonic verbal consultation---Propriety---Verbal consultation on telephone by the President with Chief Justice of High Court (AJ&K) was not the proper procedure to be followed---Instead of telephonic calls, the President had a better alternate option of consultations with Chief Justice High Court (AJ&K) by sending a summary in black and white by elaborating merits and demerits (of nominees) and after obtaining opinion of the Chief Justice of High Court, the President was supposed to forward the panel to the Chairman AJ&K Council for seeking advice---High Court (AJ&K) directed that in future consultation in writing with the Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K) shall be followed.

Muhammad Younas Tahir's case PLD 2012 SC (AJ&K) 42 and Al-Jehad Case PLD 1996 SC 324 ref.

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

----Ss. 43(2-A) & 44---Writ petition challenging the integrity, capability and suitability of persons appointed as Judges of the High Court, Azad Jammu and Kashmir (AJ&K)---Maintainability---Azad Jammu and Kashmir Interim Constitution Act, 1974 had assigned the sacred responsibility of judging suitability of a person for judgeship and the High Court (AJ&K) in its constitutional jurisdiction, could not revisit such suitability---High Court (AJ&K) could not replace prerogative of the judicial consultees by a different opinion---Argument in relation to integrity, capability and suitability of the persons appointed as Judges of the High Court (AJ&K) did not fall within ambit of jurisdiction of the High Court (AJ&K)---Order accordingly.

Per Muhammad Sheraz Kiani, J; agreeing with Azhar Saleem Babar, Acting Chief Justice;

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K)---"Consultation"---Scope and meaning---Azad Jammu and Kashmir Interim Constitution Act, 1974 did not prescribe any particular method or mode of such consultation---As long as reasonable passing of information on the matter in issue between the authorities concerned was done, the requirement of law with respect to mode of consultation was satisfied---Substance (of consultation) was important and not the form.

M.D. Tahir's case 1989 CLC 1369 ref.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Nominees---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K)---Difference of opinion between the Chief Justice of the Supreme Court and the High Court regarding nominees---Opinion of the Chief Justice of the Supreme Court (AJ&K) had to be given preference in the event of such difference of opinion---Giving primacy to the opinion of the Chief Justice of the Supreme Court (AJ&K) did not mean to sideline the other consultee [i.e. Chief Justice of the High Court (AJ&K)]---Consultation in connection with the concerned person's eligibility, suitability, his knowledge of law, competency and integrity must be from both the (judicial) consultees, however, after that if the opinion of the Chief Justice of the Supreme Court (AJ&K) was not supported by the Chief Justice of High Court (AJ&K), only then, preference should be given to the opinion of the Chief Justice of Supreme Court (AJ&K).

Sindh High Court Bar Association's case PLD 2009 SC 789 and Muhammad Younis Tahir's case 2012 SCR 213 ref.

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

----S. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Procedure---Nominees---Consultation by President, Azad Jammu and Kashmir (AJ&K) with Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K)---Consultation to be in writing---To avoid complications and make the consultative process more transparent and effective without leaving any room for complaint, the opinion of the consultees regarding concerned candidates must be in black and white---In case of meetings, the minutes must be recorded, so that, if there was any disqualification and infirmity attached to any of the persons under consideration, in the opinion of any of the consultees, that could be brought on record.

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

----S. 44---Writ of quo warranto, issuance of---Discretion of High Court, Azad Jammu and Kashmir (AJ&K)---Scope---Relief under S.44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, including the writ of quo warranto, was of discretionary nature---Quo warranto was not issued as a matter of course, however, discretion must be used while keeping in view all the circumstances of each case---Where the smooth and peaceful functioning of any institution or organization could be disturbed due to issuance of writ of quo warranto by the High Court, or the person against whom the writ was to be issued, fulfilled all qualifications and did not suffer from any disqualification, such discretionary relief may be refused.

2004 SCMR 1299; PLD 1989 SC 166; PLD 1988 SC 1996; PLD 1986 Lah. 310; PLD 1965 SC 236, 1999 PLC (C.S.) 686; PLD 1986 Lah. 365 and PLD 2004 SC 399 ref.

Barrister Adnan Nawaz Khan, Barrister Humayun Nawaz Khan, Syed Shahid Bahar, Sardar Shamshad Hussain and Fayyaz Ahmed Janjua, Advocates, for the Petitioners.

Abdul Rasheed Abbasi, Advocate, for Respondents Nos.1 to 6, 8 and 9.

Raja Muhammad Hanif Khan, Advocate, for the Private Respondents.

Bashir Ahmed Mughal, Advocate, for AJ&K Council.

P L D 2020 Islamabad 1

Before Athar Minallah, C J

MUSHTAQ AHMAD SUKHERA---Petitiner

Versus

PRESIDENT OF PAKISTAN through Secretary and others---Respondents

Writ Petition No.2236 of 2019 decided on 19th September, 2019.

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 3(1)--- Federal Ombudsmen Institutional Reforms Act (XIV of 2013), Ss. 3 & 5---Removal of Federal Tax Ombudsman---Procedure---Person who has once been appointed and pursuant thereto, has taken oath of office of Tax Ombudsman, he or she, as the case may be, can only be removed before expiry of guaranteed fixed term of four years on two grounds; firstly, if holder of office becomes incapable of properly performing duties of his office due to physical or mental incapacity; and secondly, if found guilty of misconduct---Removal can only be made through Supreme Judicial Council---Third mode in which office of Tax Ombudsman may fall vacant is when person appointed under S.3(1) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 voluntarily tenders resignation by writing under his or her hand addressed to the President-Legislature, by enacting Federal Ombudsmen Institutional Reforms Act, 2013 has reaffirmed independence of office of Tax Ombudsman by doing away with limited power which was vested in the President under Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 regarding removal of Tax Ombudsman.

(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 3(1)---Appointment of Tax Ombudsman---President, powers of---Persona Designata---Such is an administrative function and does not involve exercising adjudicatory or quasi-judicial power---President does not act as persona designata rather power and function has been conferred on the President, as the President and not in a different capacity--- President in exercising power under S. 3(1) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 has a Constitutional duty to act on advice of Prime Minister.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 and Dr. Zahid Javed v. Dr. Tahir Riaz Cahaudhry and others PLD 2016 SC 637 rel.

(c) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 3(1)---Federal Ombudsmen Institutional Reforms Act (XIV of 2013), Ss. 3 & 5---General Clauses Act (X of 1897), Ss. 16 & 21---Constitution of Pakistan, Arts. 48 & 209---Constitutional petition---Removal of Federal Tax Ombudsman---Advice of Prime Minister---Petitioner was Federal Tax Ombudsman who was removed by Federal Government---Plea raised by Government was that appointment of petitioner was made by the President after consulting Prime Minister which made such appointment contrary to applicable law---Validity---Summary submitted to Prime Minister and proposing to withdraw summary whereby advice tendered to the President regarding appointment of petitioner as Tax Ombudsman was based on gross misinterpretation of S.3(1) of Establishment of Officeof Federal Tax Ombudsman Ordinance, 2000 and law enunciated by the Supreme Court---Notification in question issued in view of summary had undermined and jeopardized legislative intent of ensuring independence of Office of Tax Ombudsman and Ombudsman appointed under other relevant laws---High Court set aside summary to remove petitioner as Tax Ombudsman as it was illegal, issued in violation of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 and Federal Ombudsmen Institutional Reforms Act, 2013 and was without lawful authority and jurisdiction---Constitutional petition was allowed in circumstances.

Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84; Pakistan through Secretary, Ministry of Finance v. Himayatullah Farukhi PLD 1969 SC 407; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 and Dr. S.C. Barat and another v. Hari Vinnyak Pataskar and others AIR 1962 Madhya Pradesh 73 ref.

Petitioner by:

Babar Sattar and Ms. Zainab Janjua for Petitioner.

Respondents by:

Anwar Mansoor Khan, Attorney General for Pakistan.

Sajid Ilyas Bhatti, Addl. Attorney General.

Tariq Mahmood Jahangiri, Addl. Attorney General.

Syed Muhammad Tayyab, Deputy Attorney General.

Farrukh Shahzad Dall, Assistant Attorney General.

Saqlain Haider, Assistant Attorney General.

P L D 2020 Islamabad 15

Before Athar Minallah, C J

Messrs TAMOUR ISHRAQ AND COMPANY---Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary Ministry of Interior Islamabad and 6 others---Respondents

Writ Petition No.3802 of 2019, decided on 31st October, 2019.

Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope and qualifications---Public protest---Detention of containers loaded with commercial goods by Federal Government for maintaining public order during the protest---Compensation for loss suffered---State could only control and regulate trade for the purpose and object of ensuring safety, peace, health and good morals of public---Furthermore there was no regulation nor any restriction was imposed by law that citizens who were engaged in lawful business could be obstructed to carry on their business or empowered the authorities to detain their containers in which commercial goods were being transported for the purposes of maintaining public order---Use of public roads by citizens engaged in trade was a guaranteed constitutional right which could not be interfered with or obstructed otherwise than as provided under the law---Detention of containers loaded with commercial goods without the consent of the owners for the purposes of maintaining public order was in violation of the Fundamental Right guaranteed under Art.18 of the Constitution---Any such interference or obstruction besides being in violation of the constitutionally guaranteed right exposed the public authorities to claims of damages---When such containers were detained or obstructed illegally, then it was the duty of the State to compensate the affectees---High Court directed that the Federal Government had to ensure that the lawful transportation of containers loaded with commercial goods owned by the traders was not interfered with or obstructed for extraneous reasons; that in case the transportation of goods in containers by the petitioner-company or any other trader had been obstructed or interfered with, they would be at liberty to approach the competent authorities for seeking compensation, and that the Federal Government, to the extent of public roads under its control, was to nominate an authorized officer to receive complaints from traders who may have been affected on account of their Fundamental Right guaranteed under Art.18 of the Constitution having been violated---Constitutional petition was disposed of accordingly.

Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 and Saghir Ahmed v. The State of U.P. and others AIR 1954 SC 728 ref.

Muhammad Safdar Janjua for Petitioner.

Syed Muhammad Tayyab, Deputy Attorney General.

M. Atif Khokhar, State Counsel.

Naseem Ahmed Shah, Advocate for Islamabad Capital Territory.

Hamza Shafqat, Deputy Commisisoner, Islamabad Capital Territory.

Farrukh Rasheed, SSP Traffic Police, Islamabad Capital Territory.

P L D 2020 Islamabad 20

Before Miangul Hassan Aurangzeb, J

ALAM DAD LALEKA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN---Respondent

Writ Petition No.2869 of 2019 decided on 6th August, 2019.

Elections Act (XXXIII of 2017)---

----S. 234(4)---Code of Conduct for General Elections, 2018, Cls. 53 & 54---Constitution of Pakistan, Art. 199---Election for the seat of Member National Assembly---Violation of Code of Conduct---Show cause notice to the candidate---Petitioner-candidate having already filed constitutional petition before Lahore High Court wherein impugned order had been suspended---Islamabad High Court, territorial jurisdiction of---Scope-Impugned order had been passed by the Election Commission of Pakistan within territorial jurisdiction of Islamabad High Court---High Court (Islamabad) had jurisdiction to issue a writ of certiorari against the orders passed by Election Commission of Pakistan---Petitioner, in the present case, had already assailed the orders passed by the Election Commission of Pakistan before High Court (Lahore)---High Court (Islamabad) should not interfere in the proceedings before Election Commission of Pakistan when there was nothing preventing the petitioner to challenge orders of Commission before High Court (Lahore) which had already seized of the matter---Litigant who had challenged a show cause notice before the High Court of one Province could not be permitted to assail orders passed in the proceedings pursuant to the show cause notice before the High Court of other territory---Constitutional petition was dismissed in limine.

Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 rel.

P L D 2020 Islamabad 24

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

Raja PERVEZ ASHRAF---Petitioner

Versus

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

Writ Petition No.2930 of 2019, heard on 5th September, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S.540-A---Constitutional petition---Exemption from personal appearance of accused---Principles---Petitioner facing trial under National Accountability Ordinance, 1999 sought exemption from personal appearance and direction to the authorities for removal of his name from Exit Control List---Contention of petitioner was that presiding judge of the concerned court was absent---Validity---Proceedings in criminal trial were regulated exclusively by Trial Court before which matter was pending---If a Trial Court was not functional temporarily because of absence of presiding judge, duty judge was competent to decide application seeking exemption from personal appearance when accused intended to travel abroad---High Court, while exercising constitutional jurisdiction under Art.199 of the Constitution, declined to interfere in the matter relating to a pending trial which was regulated exclusively by Trial Court---Every matter thereto, particularly exemption from personal appearance had to be dealt with in manner prescribed by Legislature under Criminal Procedure Code, 1898---High Court could not bypass a Trial Court as that would have effect of rendering legislative wisdom of enacting Criminal Procedure Code, 1898 as redundant---Constitutional petition was dismissed in circumstances.

Yusuf J. Ansari v. Government of Pakistan through Secretary, Ministry of Interior Islamabad and others Constitution Petition No.4325 of 2014; Gohar Ullah v. Federation of Pakistan through Secretary Ministry of Interior and others 2019 YLR 781; Dr. Asim Hussain v. Federation of Pakistan through Secretary Interior and 3 others PLD 2017 Sindh 665; Mrs. Humaira Khurram Khan v. Secretay, Ministry of Interior and 3 others 2016 PCr.LJ 1226; S.Akbar Ali Shah v. Federation of Islamic Republic of Pakistan through Secretary, Ministry of Interior 2011 MLD 1536 and Asif Kamal v. Government of Pakistan and others 2016 YLR 177 ref.

Farooq H. Naek and Aqeel Akhter Raja for Petitioner.

Barrister Rizwan Ahmed, Special Prosecutor NAB.

Ch. Abdul Jabbar, Assistant Attorney General for Respondents.

P L D 2020 Islamabad 28

Before Mohsin Akhtar Kayani, J

Mst. ALISHBA BIBI---Petitioner

Versus

The STATE and 7 others---Respondents

Writ Petition No.1711 of 2019, decided on 25th June, 2019.

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

----Ss. 2, 4, 5, 6 & 8---Penal Code (XLV of 1860), Ss.365-B & 109---National Commission on Status of Women Act (VIII of 2012), Chap.II, S.4 & Chap. III, S.11---Criminal Procedure Code (V of 1898), S.164---Constitution of Pakistan, Arts.36 & 199---Habeas Corpus petition---Kidnapping for compelling to marry---Age of abductee, determination of---Freewill---Proof---Magistrate, powers of---Petitioner sought recovery of her daughter who was allegedly a minor of 12 years of age and was entered into forced conversion and marriage with one of accused---Abductee in her statement under S.164, Cr.P.C. claimed that she was neither a minor nor converted and entered into marriage with accused out of her own freewill---Validity---Question of child marriage was based upon determination of age and as per report of National Commission on Status of Women correct age of abductee was not yet established---Defferent sets of dates existed firstly age in birth registration certificate submitted by petitioner was 8-9-2006, secondly, age referred in marriage certificate was 19 years and thirdly, age as given by Docter was 16 years+/- 1.96 SD---Matter, in circumstances, required evidence which could only be settled by court of competent jurisdiction where challan was submitted under Ss.4, 5 & 6 of Child Marriage Restraint Act, 1929 by investigating officer---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter as stance taken by alleged absuctee which was independently recorded by Magistrate under S.164, Cr.P.C. as well as report of National Commission on Status of Women and age of minior could only be concluded after recording evidence by competent court---High Court, to curb the evil of child marriatge, issued directions to the authorities concerned.

High Court issued following directions to the authorities concerned to curb the evil of child marriages from the society as well as to ensure the protection of rights of minorities as guaranteed under the Constitution:-

(i) The District Administration/licence issuing authority of Nikah Registrar shall enlighten the Nikah Registrars about the terms of Child Marriage Restraint Act, 1929 as well as punishment for violation of terms of Child Marriage Restraint Act, 1929.

(ii) If any complaint is filed against the Nikah Registrar in terms of Child Marriage Restraint Act, 1929, who solemnizes marriage for facilitating and registering any marriage of any person against her or his wishes, the Chief Commissioner, Deputy Commissioner and the Chairman Union Council shall revoke licence of the Nikah Registrar and submit a complaint before the competent Court for criminal prosecution of the Nikah Registrar and any other person, who is involved in such kind of crime.

(iii) The Chief Commissioner, Deputy Commissioner and the Chairman Union Council are also under legal obligation not to issue any licence to any such individual as Nikah Registrar, who is involved in such type of malpractice and till conclusion of the said complaint by the competent Court, his licence shall be suspended till final judgment of the Trial Court and if the Nikah Registrar is civil servant, departmental action shall also be taken against him.

(iv) All the Nikah Registrars or other persons, who solemnize marriages are under legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage.

(v) The Family Court in terms of The Family Courts Act, 1964 are also bound to give their findings in such type of cases and if a Family Court comes to the conclusion that the marriage has been registered in violation of law, the Family Court shall refer the complaint to the concerned Magistrate to proceed in terms of Child Marriage Resti-aint Act, 1929 against the persons, who have solemnized and registered such marriage.

(vi) IG, Police, all the DPOs and the SHOs are under obligation to protect rights of the minorities by all means and if any complaint is filed by any of the family members or by parents of the minor that he or she has been forced to convert his or her religion, such complaint shall be taken up on priority basis and statement of the effectee shall be recorded by the Magistrate at first instance as such kind of practice will bring bad name to the state of Pakistan.

(vii) Federal Government shall fulfill its constitutional obligation to protect the minors as well as children in terms of international covenants and commitments and to establish Child Protection Bureau and Child Protection Homes to provide protection to such kind of minors, who are exposed to cruelty, inhuman behavior and infringement of child rights by family members, care givers or their employers if any.

(viii) The NADRA Authorities as well as the Registration Authorities of the Government while issuing Marriage Registration Certificate are bound to link Birth Registration Certificate to their system in order to avoid any conflicting age contents and to avoid legal complications.

(ix) Every birth entry as well as marriage certificate should be recorded in the NADRA registration record and in case of conflict of date the subsequent document shall not be registered unless valid order from the competent Court or the authority is not placed before the relevant officer.

(x) Mere submission of oral entries for the purpose of age should not be accepted unless valid documentary proof of Union Council of birth certificate is produced.

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

----Ss. 2 & 8---Child marriage---Magistrate---Jurisdiction---Provisions of S.8 of Child Marriage Restraint Act, 1929 can be invoked by Magistrate 1st Class---Where complaint reflects solemnization of marriage of minor, police officials are bound to register criminal case in terms of Child Marriage Restraint Act, 1929.

Sheraz Ahmed Ranjha for Petitioner.

Ms. Saima Naqvi, State Counsel for Respondents Nos. 1 to 3.

Shabbir Tanoli, SHO, P.S. Shalimar Islamabad/respondent No.2 in person.

Safdar Hussain ASI.

Ch. Muhammad Nawaz Gondal for Respondents Nos. 4 to 8.

Ms. Khawar Mumtaz, Chairperson NCSW.

Aamir Ali/respondent No.4 in person.

Neha Pervaiz, minor in person.

P L D 2020 Islamabad 38

Before Mohsin Akhtar Kayani, J

Major RAJA ZAHID MAHMOOD---Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN and others---Respondents.

Writ Petition No.4739 of 2018, decided on 16th October, 2019.

(a) Interpretation of statutes---

----Intention of Legislature---Determination---Scope---When meaning of statute is clear and plain language of statute requires no other interpretation, then intention of Legislature conveyed through such language has to be given full effect---Plain and unambiguous words must be expounded in their natural and ordinary sense---Court is under legal obligation to discover true intent of Legislature while interpreting statute---Intention of Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and also what has not been said.

Messrs Hani Trading Company v. Ministry of Commerce 2018 CLD 1470 rel.

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

----S. 143---Penal Code (XLV of 1860), Ss.302, 309, 310 & 311---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd---Compounding of offense---Pardon by Field General Court Martial (FGCM)---Petitioner was Major in Pakistan Army who faced Field General Court Martial for committing murder of an official of electric company whereas his co-accused was acquitted by Trial Court of plenary jurisdiction on account of compromise executed by legal heirs of deceased---Plea raised by petitioner was that in view of compromise accepted by Trial Court of plenary jurisdiction, he should be acquitted of charge and conviction imposed by Field General Court Martial---Validity---Concept of discretion provided by Legislature in S.143 of Pakistan Army Act, 1952 was absolute and no specific order was placed for perusal of High Court where army authorities had considered question of compounding independently in terms of S.143 of Pakistan Army Act, 1952---Concept of pardon or remission under S.143 of Pakistan Army Act, 1952 was qualified with or without conditions---High Cout declined to enter into arena of judicial review in terms of Art.199 of Constitution against conviction and sentence awarded by Field General Court Martial unless ground of coram non judice without jurisdiction, or suffering from mala fide including malice were apparent---Petitioner could agitate all such grounds at relevant stage before court of appeal or army authorities to take into consideratin compromise independently---Petitioner did not carry out such exercise nor same was requested by petitioner rather he intended to get benefit of judgment passed in favour of his co-accused which had nothing to do with trial of petitioner as petitioner was tried by Field General Court Martial---Constitutional petition was dismissed in circumstances.

Ex-Lance Naik Mukarram Hussain and others v. Federal Government Ministry of Defence and others 2017 SCMR 580; Said Zaman Khan v. Federation of Pakistan and others 2017 SCMR 1249 and The State v. Minhaj Munir (Judgment dated 30-10-2017) rel.

Niaz Muhammad v. The State PLD 1997 Quetta 17; Muhammad Akbar and others v. The State PLD 1996 Quetta 56; Suo Motu Case No.3/2017 PLD 2018 SC 703; Abu Bakr Siddique v. Collector of Customs, Lahore 2004 PTD 2187; FGEGF v. Malik Ghulam Mustafa and others PLD 2019 Isl. 1; Senator Taj Haider v. GOP 2018 CLC 1910 and SNGPL v. Director (Legal), President Secretariat (Punjab), Islamabad PLD 2018 Isl. 51 ref.

Raja Rizwan Abbasi and Sohail Akhtar for Petitioner.

Raja Muhammad Aftab Ahmed, AAG., Barrister Ayesha Siddique Khan, State Counsel Major Muhammad Ali, JAG Department, GHQ and Muhammad Ashfaq, ASI, P.S. Sihala, Islamabad for Respondents.

P L D 2020 Islamabad 52

Before Miangul Hassan Aurangzeb, J

OVEX TECHNOLOGIES (PRIVATE) LIMITED---Appellant

Versus

PCM PK (PRIVATE) LIMITED and others---Respondents

F.A.O. No.140 of 2017, decided on 2nd October, 2019.

(a) Arbitration---

----Arbitration agreement---Object, purpose and scope---Arbitration agreement is contractual basis for resolution of disputes through an arbitration process---Arbitration agreement or an arbitration clause in agreement can define disputes or types of disputes which are agreed to be referred to arbitration by parties thereto---It is for parties to make their own contract and not for court to make one for them as a court can only interpret contract---Question of what disputes fall within terms or scope of a particular arbitration agreement is a matter of interpretation of such an agreement---Parties are free to make their own contracts and are also free to agree as to what matters would be referred to arbitration---Words of arbitration clause which take within its sweep any claim, right or matter in any way arising out of or relating to contract have been upheld by courts to take in all claims which arise out of or pertain to contract---Parties have contractual freedom to select matters or disputes which are to be resolved through arbitration, leaving others to be decided by courts---If arbitration clause excludes certain matters in express terms and leaves them to be decided by courts, no arbitration can arise in respect of such matters---If it is found that arbitration clause does not encompass a dispute raised in a suit, party filing suit cannot be held to have abandoned its right to seek arbitration on matters encompassed by arbitration clause.

Government of N.-W.F.P. through Secretary Forests, Peshawar v. The Devli Kund Forests and Multipurposes Cooperative Housing Society Limited 1994 SCMR 1829 and Messrs Harsha Constrution v. Union of India AIR 2015 SC 270 rel.

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

----S. 41(b) & Second Schedule, Para. 4---Arbitration---Application of Injunction---Invocation of arbitration right---Scope and effect---Parties to arbitration are permitted to invoke jurisdiction of court under S.41(b) and paragraph 4 of Second Schedule of Arbitration Act, 1940 to apply for injunction---Such right can be exercised either before commencement of arbitration proceedings or during pendency of such proceedings, or even after arbitration award has been rendered--- Invocation of such right to obtain interim or conservatory measures does not disentitle a party to an arbitration agreement from enforcing arbitration agreement.

Russell on Arbitration, 21st Edn. and Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Company Limited 1993 SCMR 866 rel.

(c) Arbitration---

----Waiver of right---Principle---Right to arbitration, like any other contractual right, can be waived---Waiver of a contractual right to arbitration is ordinarily a question of fact---Waiver of right to arbitrate may properly be implied from any conduct which is inconsistent with the exercise of that right---Acquiescence to jurisdiction of a Court may amount to waiver of the right to claim arbitration.

Lakhra Power Generation Company Limited (LPGCL) v. Karadeniz Powership Kaya Bey 2014 CLD 337; "Mc Connell v. Merrill Lynch, Pierce,Fenner and Smith, Inc."; Doers v. Glden Gate Bridge and others (1979) 23 Cal. 3d 180; De Sapio v. Kohlmeyer (1974) 35 N.Y.2d 402; United States of America v. Park Place Associates Ltd. and Christensen v. Dewor Developments (1983) 33 Cal. 3d 778) rel.

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

----S. 4---Arbitration Act (X of 1940), S. 34---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.20 & O. VII, R.10, O.XXXIX---Suit for declaration and injunction---Arbitration, repudiation of---Return of plaint---Jurisdiction of court---Parties entered into an agreement for services and statement of work and in contract, added arbitration clause for dispute resolution with laws and arbitration to be done according to laws of a Foreign State---Plaintiff company, upon dispute and termination of contract, filed suit for declaration and permanent injunction against defendant company---Trial Court returned the plaint on ground that dispute resolution was already available in contract---Plea raised by defendant company was that courts in Foreign State had imposed injunction against filing of suits in the matter---Validity---Matters pertaining to injunctive relief were not covered by arbitration clause there was no gamesmanship or bad faith in defendant company invoking jurisdiction of superior court of State of California in order to obtain injunction---Defendant company did not act in the manner inconsistent with arbitration clause of agreement or waived, relinquished or abandoned its right to arbitrate---Defendant company was well within its rights to have sought stay of proceedings in suit instituted by plaintiff company before Trial Court in Pakistan---Valid and subsisting arbitration agreement existed between plaintiff and defendant company and plaintiff company in its suit raised claim arising from and related to agreement---Impleadment of strangers to arbitration agreement in suit posed no impediment in staying proceedings in suit as against defendant company under S.4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---High Court set aside order passed by Trial Court rejecting plaint and allowed application of defendant company under S.4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Appeal was allowed accordingly.

Far Eastern Impex (Pvt) Ltd. v. Quest International Nederland BV 2009 CLD 153; Cummins Sales and Service (Pakistan) Ltd. v. Cummins Middle East FZE 2013 CLD 291 and M.A. Chowdhry v. Mitsui O.S.K.Lines Ltd. PLD 1970 SC 373 rel.

Lakhra Power Generation Company Limited (LPGCL) v. Karadeniz Powership Kaya Bey 2014 CLD 337; Mc Connell v. Merrill Lynch, Pierce,Fenner and Smith, Inc.; Doers v. Glden Gate Bridge and others (1979) 23 Cal. 3d 180; De Sapio v. Kohlmeyer (1974) 35 N.Y.2d 402; United States of America v. Park Place Associates Ltd.; Christensen v. Dewor Developments ((1983) 33 Cal. 3d 778); Lithuanian Airlines v. Bhoja Airlines (Pvt) Ltd. 2004 CLC 544; Haji Muhammad Ibrahim v. Karachi Municipal Corporation PLD 1960 Kar. 916; W. Bruce Ltd. v. J. Strong [1951] 2 K.B. 447; Sandeep Kumar v. Master Ritesh ((2006) 13 SCC 567; Russell on Arbitration 21st Edn.; Eckhardt & Co. Muhammad Hanif PLD 1993 SC 42; Hitachi Ltd. v. Rupali Polyester 1998 SCMR 1618; Manzoor Textiles Mills Ltd. v. Nichimen Corporation 2000 MLD 641; Serulean (Pvt.) Ltd. v. Bhoja Airlines (Pvt) Ltd. 2001 YLR 3150; CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528; Metropolitan Steel Corporation Ltd. v. Macsteel International U.K. Ltd. PLD 2006 Kar. 664; Travel Automation (Pvt.) Ltd. v. Abacus International (Pvt.) Ltd. 2006 CLD 497; Muratab Ali v. Liaquat Ali 2004 SCMR 1124; Rafiq Tabani v. Ghulam Haider Mohtaram 1999 MLD 2915; National Fibres Ltd. v. Karachi Development Authority 1996 MLD 76 and Trustees of the Port of Karachi v. Gujranwala Steel Industries 1990 CLC 197 ref.

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

----O. VII, R.10---Return of plaint---Duty of Court---Where a Court does not have jurisdiction to entertain a suit, the proper course is to return the plaint for its presentation before a Court of competent jurisdiction.

Rafiq Tabani v. Ghulam Haider Mohtram 1999 MLD 2915 rel.

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

----O. XLI, R.32---Appeal---Powers of Appellate Court---Appeal is continuation of original suit and appellate Court has ample power to scrutinize documents on record in the light of arguments advanced by contesting parties---Appellate Court while hearing appeal against order/judgment or decree of Trial Court, exercises the same jurisdiction which is vested in Trial Court---Lis becomes open in appeal and Appellate Court can do all that the original Court can do.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Inayat v. Darbara Singh AIR 1920 Lah. 47; North West Frontier Province Government, Peshawar v. Abdul Ghafar Khan PLD 1993 SC 418; Province of Punjab through Collector Bahawalpur v. Col. Abdul Majeed 1997 SCMR 1692 and CGM Compagine General Maritime) v. Hussain Akbar 2002 CLD 1528 rel.

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

----O. XLI, R. 28---Remand of case--- Principles---Remand of a case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inclusive material on record---Remand should not be ordered when no evidence is to be recorded or where material on record is sufficient for Appellate Court to decide the matter--- Cases cannot be remanded just to prolong litigation between the parties.

(h) Company---

----Legal entity---Shareholders and directors---Status---Company is a separate legal entity distinct from its owners or shareholders or directors or officials or employees---Company has a perpetual existence and can sue and be sued in its own name---Any director or employee of a company is not personally liable for liability of company even if he acted on behalf of the company, conversely, a company is also not liable for the liability of its directors/employees arising out of an act in their individual capacity---Directors of a company are liable for misappropriation of company funds and other misfeasance but not for ordinary contractual liability of the company---Directors or employees of company cannot be fastened with ordinary contractual liability of the company.

Lloyds v. Grace Smith and Co. (1912 AC 716) rel.

Syed Ahmed Hassan Shah and Badar Iqbal for Appellant.

Khurram M. Hashmi and Ramsha Noshab for Respondents.

P L D 2020 Islamabad 82

Before Athar Minallah, C J.,Aamer Farooq and Mohsin Akhtar Kayani, JJ

The MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN through Secretary---Petitioner

Versus

The SPECIAL COURT through Registrar---Respondent

Writ Petition No.4075 of 2019, decided on 30th November, 2019.

(a) Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----Ss. 5(3)(a), 5(3)(b), 6(f), 9 & 11(1)---High Treason (Punishment) Act (LXVIII of 1973), Ss. 2 & 3---Constitution of Pakistan, Arts. 6 & 10A---High treason---Fair trial---Scope---Proceedings before the Special Court---Pronouncement of judgment by Special Court in absence of prosecutor notified by the Federal Government---Legality---Allegations against the accused were that he in his capacity as the Chief of Army Staff and Chief Executive of the country issued Proclamation of Emergency Order, 2007 and illegally detained the Chief Justice of the Supreme Court and Judges of the superior judiciary and forced them to resign---Proceedings were initiated against the accused in a Special Court, constituted by the Federal Government, for the offence of high treason relating to actions targeting the judiciary---Subsequently the accused left the country and remained an absconder---When the Special Court set a date for announcement of judgment, the prosecution pleaded that the Court should not pronounce judgment as the main prosecutor had resigned and other members of the prosecution team were de-notified, and that the Federal Government required time to notify new prosecutor(s)---Special Court rejected such plea of prosecution and fixed the date for announcement of judgment---Held, that the accused was not the only party to the trial before the Special Court, as the Federal Government was an equally important stakeholder---Trial in question was unique and exceptional in nature, thus, it placed a heavy burden on the court to assure that each party was dealt with in a fair manner, having regard to the cardinal principles of due process and the right to a fair trial---In the peculiar facts and circumstances of the present trial, it was the onerous duty of the court to ensure that none of the interested parties to the trial complained that the proceedings were otherwise than fair---Right to a fair and proper trial was equally important for the prosecution---In a trial relating to the constitutional offence of high treason it was an even more onerous task to demonstrably assure an accused of fairness because at the end the latter could be exposed to the sentence of death---Preserving the integrity of the process that delivered a fair trial was equally important---Federal Government and the prosecution had a fundamental role under the scheme of the Criminal Law Amendment (Special Court) Act, 1976 ['the Act of 1976']---Trial proceedings under the Act of 1976, from initiation till conclusion, were dependent on the presence of the prosecutor appointed by the Federal Government---When cls.(a) and (b) of S.5(3) and cl. (f) of S. 6 of the Act of 1976 were read together it unambiguously brought out the legislative intent of ensuring that the person appointed under S.11(1) conducted the prosecution till the judgment was pronounced---Special Court could not, therefore, pronounce the judgment without affording a reasonable opportunity of hearing to the appointed prosecutor---Also important to give to the Federal Government, through the prosecution, a reasonable opportunity before pronouncing the judgment, to exercise its options contemplated under cls. (a) and (b) of S. 5(3) of the Act of 1976---Said Act read as a whole unequivocally made it obvious that the trial proceedings were entirely dependent on the prosecution and that in its absence or without hearing it, judgment could not be announced (by the Special Court)---Federal Government had to be afforded a reasonable time to appoint a prosecutor---Pronouncement of judgment was subject to hearing the appointed prosecutor as contemplated under S.6(f) of the Act of 1976---High Court set aside impugned order of Special Court and directed that the Federal Government shall notify the prosecutor or a team of prosecutors, on or before 05-12-2019; that the Special Court shall fix a date for affording a reasonable opportunity of hearing to the notified prosecutor or the prosecution team, as the case may be, as well as the counsel appointed for the accused under S.11(2) of the Act of 1976, and that the Special Court was expected to conclude the proceedings expeditiously having regard to the cardinal principles of fair trial---Constitutional petition was allowed.

Lahore High Court Bar Association and others v. General (R) Pervez Musharraf and others 2019 SCMR 1029 ref.

(b) Constitution of Pakistan---

----Art. I0A---Right to fair trial---Scope---Right to a fair trial was the foundation of the rule of law---Said right was an integral part of and embedded in the constitutional right of due process guaranteed under Art.10A of the Constitution---Essence of fair trial was to assure to every party that he or she would be treated fairly and justly by the criminal justice system, which was impartial and independent; it essentially meant that the trial relating to an offence would be heard in public by an independent and impartial Tribunal, Court or Judge and within a reasonable time.

Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others PLD 2019 SC 745; Ishtiaq Ahmed v. Hon'ble Competent Authority through Registrar Supeme Court of Pakistan 2016 SCMR 943; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 and Suo Motu Action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the Judicial process PLD 2012 SC 664 ref.

(c) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Defence and prosecution---Equality of arms, principle of---In a criminal trial the two most important parties were the accused and the prosecution---Accused and prosecution both had to be assured of the fairness of a fair trial---Principles of fair trial must be seen as promoting the principles of 'equating arms on both sides'---Fair balance had to exist between the opportunities given to both the sides---Equally important was the fact that every party to a trial should have equal access to justice---Principle of 'equality of arms' ensured that neither side ought to be procedurally disadvantaged---Right to a fair and proper trial was thus equally important for the prosecution as well.

(d) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Impartiality and independence of the adjudicator/judge---Superstructure of the principle of fair trial was built on the premise that justice should not only be done but manifestly and undoubtedly appear to have been done---Every litigant, whether an accused or the prosecution, must have confidence regarding the impartiality and independence of the adjudicator; it was not the mind of the adjudicator that was relevant but the impression that one may even erroneously develop had to be dispelled.

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and others [{1968} 3 All E.R.304; Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Government of N.-WF.P. through Chief Secretry and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104; Suo Motu Case No.04 of 2010 PLD 2012 SC 553 and Asif Ali Zardari and another v. The State PLD 2001 SC 568 ref.

(e) Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----S. 4(1)---Special Court constituted under S,4(1) of the Criminal Law Amendment (Special Court) Act, 1976 ['the Act of 1976]---Three judges of the High Court sitting as members of Special Court---Special Court was the creation of the Act of 1976 and its members did not sit as Judges of the High Court but as persona designata.

Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; Brothers Sugar Mills Ltd. and others v. Punjab Co-operative Board for Liquidation and others 2012 CLC 1369; Sartaj v. The State through Deputy Attorney General and others 2012 PTD 1116 and Asghar Ali and another v. The State 1999 SCMR 654 ref.

(f) Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----Ss. 6 & 12---Constitution of Pakistan, Art. 199---Judicial review---Scope---Orders of the Special Court---Amenable to judicial review by the High Court.

Abdul Hameed Dogar v. Federal Government through Secretary M/o Interior and 2 others PLD 2016 SC 454; Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLD 1966 SC 1; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Zafar Ul Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) PLD 1960 SC 113; Kiramat Ali and another v. Muhammad Younis Haji and others PLD 1963 SC 191 and Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) v. Hakim Rafiz Muhammad Gaus and 5 others PLD 1997 SC 3 ref.

Sajid Ilyas Bhatti, Addl. Attorney General and Barrister Salman Safdar for Petitioner (in W.P. No.4076 of 2019).

Khashih-ur-Rehman, Secretay, Ministry of Law and Justice, Pir Muhammad Ishaq, Solicitor, Ministry of Law and Justie and Iftikhar Ul Hassan, Dy. Solicitor, Ministry of Law and Justice for Petitioner.

P L D 2010 Islamabad 98

Before Mohsin Akhtar Kayani, J

ABDUL WAHEED AWAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.53 of 2019, decided on 9th October, 2019.

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

----S. 489-F---Dishonestly issuing a cheque---Reappraisal of evidence---Benefit of doubt---Issuance of cheque without valuable consideration---Cheque, not commensurating with the liability---Scope---Complainant alleged that the accused offered to sell a plot and a house belonging to one person---Sale consideration of the properties was fixed at Rs.90,00,000/- and an agreement was executed in the presence of witnesses whereby an amount of Rs.40,00,000/- was paid in cash---Properties, however, could not be transferred and the complainant insisted for return of amount, whereupon the accused issued post dated cheque amounting to Rs.90,00,000/---Cheque was dishonoured on its presentation---Complainant did not produce the agreement to sell the properties, which was the basic document to establish the relationship between the complainant and the accused---Complainant relied upon a subsequent agreement for settlement of claim in the shape of cheques, which was executed at pre-arrest bail stage---Complainant, during the course of cross-examination, admitted the agreement to sell executed between him and accused whereby possession of the house/plot was delivered to him against consideration of Rs.40,00,000/---Complainant admitted execution of affidavit regarding receiving back an amount of Rs.45,50,000/---Contents of affidavit disclosed the relationship among the parties for possession and settlement of the civil suit qua the property in dispute---Available documents clearly spelt out that the payment was meant for possession of the house only and not for transfer of the property as the accused was not the owner of the property, therefore, the cheque in question of Rs.90,00,000/- was without valuable consideration---Dishonest issuance of cheque to the extent of Rs.90,00,000/- did not commensurate with due liability of Rs.45,50,000/---Ingredients of S.489-F, P.P.C. for dishonestly issuing a cheque were not proved as total liability of accused was of Rs.45,50,000/---High Court while granting benefit of doubt to the accused set aside the judgments passed by the Trial Court and appellate court.

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

----S. 489-F---Dishonestly issuing a cheque---Conditions to be fulfilled before passing judgment---Scope---Court is obligated to go through minimum requirements of S. 489-F, P.P.C., which has specific conditions to be fulfilled before passing the judgment of conviction---Such conditions are (i) issuance of cheque; (ii) such issuance is with dishonest intention; (iii) the purpose of issuance is to repay a loan, or to fulfil an obligation (which in wide term inter alia is applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds person to some performance); (iv) on presentation, the cheque is dishonoured.

Muhammad Sultan v. The State 2010 SCMR 806 fol.

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

----S. 423---Powers of appellate court in disposing appeal---Scope---Legislature has used the terms "after perusing such record" and "there is no sufficient ground for interfering, dismissed the appeal" in S.423, Cr.P.C.---Said concepts cast certain duties upon the Appellate Court to write down the judgment after discussing every incriminating piece of evidence against the appellant as the Appellate Court is to reappraise the evidence of controversy afresh and non-appraisal of evidence amounts to a substantial and grave injustice, especially when the statutory right of appeal confers a right of re-hearing of whole dispute unless expressly restricted in scope and the Appellate Court is not confined to the reasons which have been given by the court below as the grounds of its decision---First Appellate Court has to consider the controversy entirely afresh, both as regards to facts and law, and can substitute its own opinion in place of the decision taken by the lower court.

Imran Ullah v. The Crown PLD 1954 FC 123 ref.

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

----S. 423---Powers of appellate court in disposing of appeal---Principles for appraisal of evidence by the Appellate Court highlighted.

Following are the principles of appraisal by the Appellate Court in criminal cases.

(a) While hearing criminal appeal against conviction, the Appellate Court has to reconsider the case afresh.

(b) Evidence of the prosecution and defence has to be discussed.

(c) Status of documentary evidence in terms of Qanun-e-Shahadat Order, 1984 be considered for the purpose of admissibility or inadmissibility.

(d) The judgment should contain an elaborated view of entire case.

(e) Question of law should be answered after appraisal of evidence while considering the ingredients of offence.

(f) No appeal shall be decided without referring to record and proceedings of the learned Trial Court.

(g) Appellate Court has to apply its judicial mind and in case the evidence has not been discussed, the requirement of Section 423 Cr.P.C. stands negated.

(h) Efforts should be shown to explore sufficient grounds for interfering in the findings of the Trial Court, whereafter a view is to be rendered.

(i) While hearing the appeal the first Appellate Court is bound to dispose of the appeal on merits after examining the evidence despite the fact that counsel for appellant had not pressed the appeal on merits.

(j) In case the counsel or advocate for the appellant failed to argue the case on merits, even then the Appellate Court is bound to reappraise the entire evidence and the Court is not relieved of its duty to peruse the record and to find out whether there is ample evidence against the appellant to convict him for which he has been charged.

(k) After admission of criminal appeal, it could not be dismissed without adverting to the merits, even in case of non-appearance of appellant or his counsel as Appellate Court is duty bound to consider the factual and legal aspect as contemplated under Section 423 Cr.P.C.

(l) The Appellate Court shall conclude the judgment by elaborating the sentence whether the Court agrees with the findings of the Trial Court or reduce or modify the sentence, however in such eventuality, separate reason has to be recorded.

(m) While considering judgment of acquittal, extra caution should be extended as the standards for assessing the evidence in appeal against acquittal are quite different from those laid down in appeal against conviction. Appraisal of evidence is done strictly against conviction, whereas in appeal against acquittal, such rigid method of appraisal was not to be applied.

(n) The Appellate Court would not exercise jurisdiction under Section 417 Cr.P.C., unless the acquittal judgment of the Trial Court was perverse or there was complete misreading or non-reading of evidence resulting in miscarriage of justice.

Abdul Saddique v. The State 1971 SCMR 628; Arshad Ali Alias Achhu v. The State 2002 SCMR 1806; Muhammad Bakhsh v. The State 1986 SCMR 59; Zahid Hussain v. The State and others 2011 PCr.LJ 344; Lal Muhammad v. Abdullah and others 2011 YLR 474; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856 and Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374 ref.

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

----S. 435---Constitution of Pakistan, Art. 10-A---Revisional jurisdiction---Right to fair trial---Reappraisal of evidence---Scope---While exercising the revisional jurisdiction in terms of S.435, Cr.P.C. High Court has to examine the record for the purpose of satisfying its conscious to check the correctness, legality or propriety of any findings/sentence or order recorded or passed by the lower courts, therefore, the duty cast upon the High Court on its revisional side compels it to reappraise the entire evidence on the touchstone of principles of fair trial as referred to in Art. 10-A of the Constitution---Where the first Appellate Court in disposing of the appeal did not discuss the evidence at all, the findings could not be considered valid, rather such decision amounted to failure on the part of the first Appellate Court, who was bound to render independent findings on the points involved.

Zahid Farooq Cheema for Petitioner.

Fareed Khan Jadoon,Ms.Saima Naqvi, State Counsel and Yasir, ASI, P.S.Margallah Islamanad for Respondents.

P L D 2020 Islamabad 109

Before Athar Minallah, C.J.

THE STATE---Petitioner

Versus

DR. FIRDOUS ASHIQ AWAN---Respondent

Criminal Orginal No.270 of 2019, decided on 25th November, 2019.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(b) & 6(1)(c)---Constitution of Pakistan, Arts. 10-A & 204(2)---Criminal contempt---Object and scope---Criminal contempt pertained to acts done with the intent of obstructing, impeding or preventing due process of justice---Object of exercising the power of criminal contempt was not to elevate the Court nor to protect the dignity of a judge; its exercise was justified on the touchstone of ensuring access to an adjudicatory process by an independent adjudicator and to protect the fairness of the legal process for every litigant---Safeguarding the dignity and decorum of the Courts and the administration of justice was inevitable for upholding the rule of law and to ensure that disputes were decided in a fair and uninfluenced manner---Category of criminal contempt was to safeguard the right to a fair trial of the litigants regardless of the nature or gravity of the crime.

Ambard v. Attorney-General for Trinidad and Tobago [1936] 1 All ER 704; St. James's Evening Post (1942) 2 Atk at 469;Vine Products Ltd. v. Mackenzie and Co. Ltd. [1965] 3 All ER 58; Re Truth and Sportsman Ltd. (1937) 37 SRNSW 242; Attorney General v. Times Newspapers Ltd. [1973] 3 All ER 54; The Attorney General of Pakistan v. Abdul Hamid Sheikh, Editor, 'Civil and Military Gazette' and another PLD 1963 SC 170; PLD 2018 SC 738; PLD 2018 SC 773; Contempt Proceedings against Imran Khan, Chairman, Pakistan Tehreek-e-Inshaf PLD 2014 SC 367; The State v. Khalid Masood Regional Director, Pakistan Narcotics Control Board, Lahore and 3 others PLD 1996 SC 42; The Evening News, Newspaper (1830) 1 NSWLR 211 and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 ref.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(b) & 6(1)(c)---Constitution of Pakistan, Art. 204(2)---Criminal contempt---Scope---Prejudicing determination of a matter pending before a court---Acts which amounted to prejudicing public confidence in the administration of justice in a pending case would fall within the ambit of commission of a criminal contempt---Any publicity during pending proceedings or attempts to influence the public by creating a perception that extra ordinary favours were or have been extended to a litigant otherwise than in accordance with the law would definitely be an act done with the intent to divert the course of justice or impede and obstruct the administration of justice---Incorrect reporting by a reporter which was published or aired could amount to a criminal contempt---Trial outside the Court in any form which tended to influence the proceedings and determination in a pending matter would attract the offence of criminal contempt if the intent was to obstruct the administration of justice or divert the course of justice---Whether an act had tended to or was intended to prejudice the determination of a matter pending before the Court would, therefore, depend on the facts and circumstances of each case---Pre-trial or during trial publicity or acts relating to pre judging the outcome of pending proceedings also prejudiced the determination of pending matters before the Court---Offence of criminal contempt would be attracted if the likely prejudice was substantial;it was not a condition precedent for the commission of criminal contempt that the alleged act had actually prejudiced determination but it would be sufficient if the act tended to interfere with the administration of justice---Some degree of intent to prejudice or obstruct the administration of justice must exist---Each case had to be decided on its own merits.

(c) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(b) & 6(1)(c)---Constitution of Pakistan, Arts. 10-A & 204(2)---Criminal contempt---Judicial restraint---Scope---Prejudicing determination of a matter pending before a court---Acts committed during the pendency of a matter were the most serious form of contempt because it had a likely effect on one of the most important rights i.e. the right to a fair trial---Power relating to the law of contempt was applied with great reluctance but the only category of contempt which could not be ignored was when the act tended to prejudice the determination of a pending matter because it had the effect of infringing the constitutionally guaranteed right of due process.

(d) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(b) & 6(1)(c)---Constitution of Pakistan, Art. 204(2)---Criminal contempt---Prejudicing determination of a matter pending before a court---Press conference by Special Assistant to the Prime Minister ('the contemnor')---Press conference was held by the contemnor, in her official capacity as spokesperson of the Chief Executive of the country to brief print and electronic media persons regarding the meeting of the Federal Cabinet---Contemnor gave the impression as if some extraordinary relief was granted to a particular litigant, and that such relief was given on a holiday---Such impression was contrary to the rules which have been adopted by the High Court---Contemnor also attempted to mislead the general public by creating a perception, as an official spokesperson, that an influential litigant had managed to get relief which otherwise was not extended to the less privileged---Having regard to the status, duties and obligations of the contemnor, she could not be extended the benefit of doubt for not being aware of the facts and the consequences of her statements which tended to prejudice the determination of matters pending before the High Court---Contemnor had acted in a manner that constituted criminal contempt, as she attempted to obstruct the administration of justice and through her acts and statements she had tended to prejudice the determination of a matter pending before the High Court---Contemnor also tried to create a false perception which was likely to lower the prestige of the judicial process and consequently prejudice the trust of the people in the Courts; her acts and statements were intended and calculated to impede, obstruct and divert the administration and course of justice---Contemnor opted not to contest the contempt notice and tendered an unconditional apology---Despite the gravity of the offence, High Court observed that it was restraining itself from handing down a conviction and sentencing the contemnor because during the course of present proceedings it appeared that there was probably not sufficient awareness in the society regarding the importance of criminal contempt in the context of a pending matter before a Court; that the contemnor appeared to have realized the consequences of her conduct and had thus tendered unconditional apology, and that the Court expected that in future she would exercise care by not doing anything that tended to prejudice the determination of pending proceedings or to obstruct or divert the course of justice---Petition was disposed of.

(e) Administration of justice---

----Constitutional duty of the Courts was to dispense justice in accordance with law and regardless of the unpopularity of the litigant or the cause.

(f) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(b) & 6(1)(c)---Constitution of Pakistan, Art. 204(2)---Criminal contempt---Prejudicing determination of a matter pending before a court---Press conference by a Federal Minister ('the contemnor')---Statements made by contemnor during the press conference indicated that a perception was being created by the holders of the highest executive public offices regarding the administration of justice being compromised, resulting in extending extraordinary relief or favour to an influential litigant---Such attempted perception was being created by those who exercised and wielded the powers of the State as its executive authorities---Contemnor went to the extent of doubting the medical reports (on basis of which the litigant in question was granted relief) by unequivocally stating that they could have been manipulated---Ironically such an assertion was being made by a responsible member of the Federal Cabinet, which was an indictment against his own Government---Having regard to the status, duties and obligations of the contemnor, he/she could not be extended the benefit of doubt for not being aware of the facts and the consequences of his statements which tended to prejudice the determination of matters pending before the High Court---Contemnor opted not to contest the contempt notice and tendered an unconditional apology---Despite the gravity of the offence, High Court observed that it was restraining itself from handing down a conviction and sentencing the contemnor because during the course of present proceedings it appeared that there was probably not sufficient awareness in the society regarding the importance of criminal contempt in the context of a pending matter before a Court; that the contemnor appeared to have realized the consequences of his conduct and had thus tendered unconditional apology, and that the Court expected that in future he/she would exercise care by not doing anything that tended to prejudice the determination of pending proceedings or to obstruct or divert the course of justice---Petition was disposed of.

(g) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Unconditional apology by contemnor---Effect---Tendering of unconditional apology did not necessarily lead to putting an end to the contempt proceedings.

Jahangir Khan Jadoon, Khalid Mehmood Khan, Shahista Tabassam and M. Arshad Jadoon for Petitioner (in Crl. Orig. No.287 of 2019).

Tariq Mehmood Jahangiri, Advocate-General, Islamabad, Tariq Mehmood Khokhar, Addl. Advocate General, Syed Muhammad Tayyab, Deputy Attorney General, Sadaqat Ali Jahangir, State Counsel, M. Saifullah Gondal, Assistant Attorney General.

Shah Khawar, Tanveer Iqbal Khan and Syed Muhammad Ali Bokhari for Respondents/contemnors.

Raja Inam Amin Minhas, President IHCBA., Ch. Khanzada, President IBA, Yasir Shakeel, Secretary IBA and Ali Zeeshan Gondal for PEMRA for the Respondent.

P L D 2020 Islamabad 129

Before Mohsin Akhtar Kayani, J

Mst. Syeda IRSHAD FATIMA RIZVI---Petitioner

Versus

BASHIR AHMAD and others---Respondents

Civil Revision No.175 of 2014, decided on 3rd September, 2019.

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

----Art. 30---Admission of signatures on disputed document---Effect---Once a party admits signature on a disputed document, entire document stands proved.

Syed Zawar Hussain Shah v. Haider 2006 SCMR 774; Zubaida Begum v. Majeeda Kaukab 2000 CLC 929; Muhammad Ashraf Khan v. Abdul Qadar 1995 SCMR 296; Amanullah Khan v. Abdul Majeed Khan 1995 CLC 1; Muhammad Ameer v. The State 2001 CLC 1530; Chiragh Din v. Akram Mohiuddin 2008 MLD 252 and Jameel Ahmad Zahid v. Rasheeda Begum and others 2019 MLD 485 rel.

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

----Arts. 34, 35 & 36---Admission---Prerequisites---Admission, even though if considered to be legal one, is a relevant fact which clearly connotes that admission is not conclusive against party making it---Oral admission as to contents of document is not relevant, unless and until party proposing to prove them shows that he is entitled to give secondary evidence of contents of such document in terms of Art. 35 of Qanun-e-Shahadat, 1984 or unless genuineness of document along with contents has been proved.

Amjad Khan v. Rasool Shah and others PLD 1979 SC 311; Fida Muhammad and others v. Umar Khitab 2013 CLC 1171 and Shahadat Khan v. Zulfiqar and others 2005 YLR 946 rel.

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

----Arts. 30, 34, 35 & 36---Registration Act (XVI of 1908), Ss.17 & 49---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for specific performance of agreement to sell---Pardanasheen lady---Unregistered document---Onus to prove---Record tampering---Effect---Plaintiff sought specific performance of agreement to sell duly executed by defendant on behalf of pardanasheen lady---Trial Court dismissed suit and judgment and decree was maintained by Lower Appellate Court---Plea raised by plaintiff was that she had paid consideration amount and documents were admitted to be signed by original allottee---Validity---Admission of signature by original allottee on 'authority letter' was in ignorance of her rights and same was made erroneously---Mere admission regarding signatures on 'authority letter' without admission regarding its contents was of no use therefore, same could not be relied upon---Original allottee was an illiterate lady and in this regard, plaintiff was burdened with heavy responsibility to discharge onus that no fraud was committed while executing 'authority letter'---Power of attorney required registration in terms of S.17 of Registration Act, 1908---Document conveying transfer of title or authority to transfer required compulsory registration---In case of non-registration in terms of S.49 of Registration Act, 1908 it had no legal effect---'Authority letter' had no legal sanction to convey any right or title on behalf of original allottee in favour of defendant to execute agreement with plaintiff---Agreement to sell, even though was conceded by defendant had no legal value---High Court declined to interfere in concurrent findings of both courts below as no legal defect was found and both courts rightly passed judgments and dismissed suit for specific performance---Concurrent findings of facts could not be interfered with as there was neither any error nor any factor of misreading or non-reading of evidence available on record, even no illegality was observed therein---High Court directed defendant to return entire amount of sale consideration and additional compensation to plaintiff as same was received by him through agreement to sell from plaintiff---Revision was dismissed accordingly.

Fateh Muhammad v. Additional Commissioner and others 1993 CLC 1248; Maqsood Ahmad v. Muhammad Anwar Ali 2006 YLR 1431; Mst. Hameeda Begum v. Khadim Hussain 2001 MLD 427; Nazir Ahmad v. Zeban Bibi 2001 CLC 527; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Abdur Rehman v. Mst. Majida Bibi alias Majeedan 2017 SCMR 1110; Baja through LRs v. Behkan and others 2015 SCMR 1704; Mst. Zaitoon Begum v. Nazar Hussain and others 2014 SCMR 1469; Syed Sharif ul Hassan through LRs v. Muhammad Hafeez and others 2012 SCMR 1258; Fateh Khan deceased through LRs v. Surraya Begum 2006 SCMR 930; Khawas Khan through LRs v. Sabir Shah and others 2004 SCMR 1259; Bakhtiar v. Nasrullah 2015 CLC 385; Manzoor Hussain v. Muhammad Fazal 2002 CLC 1165; Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821; Mst. Salaman v. Bashir Ahmad 2007 YLR 2440; Nazim-ud-Din v. Sheikh Zia-ul-Qamar 2016 SCMR 24; Province of Punjab through Collector Sargodha v. Muhammad Akhtar 2007 SCMR 953; Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469; Anwar Zaman v. Bahadur Sher 2000 SCMR 431; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish 2010 SCMR 817; Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Shakeel Ahmad v. Mst. Shaheen Kousar 2010 SCMR 1507 and Shaukat Ullah Khan Bangash v. Adil Tiwana 2018 SCMR 769 ref.

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

----O. VII, R. 14(1) & (2)---Evidence---List of documents produced and relied---Effect---Any document which is not part of the pleadings at initial stage and even not mentioned in list of documents in terms of O.VII, R.14(1), C.P.C. or relied in terms of O. VII, R. 14(2), C.P.C., is not to be allowed to be placed on record through a backdoor intervention.

(e) Pleadings---

----Evidence---Maxim Secundum allegata et probeta---Applicability---Plaintiff is not allowed to lead evidence beyond pleadings and in case such evidence is led, same cannot be read---Party cannot be allowed to improve its case through evidence if case is not set up in pleadings---Rule of secundum allegata et probeta precludes a party from proving what was not alleged or pleaded.

Irshad Begum v. Muhammad Rafique PLD 2010 Lah. 649; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Lahore Development Authority v. Sultan Ahmad 2007 SCMR 1682 and Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue 2014 SCMR 914 rel.

(f) Administration of justice---

----Court, duty of---Principle---Duty of court of law to explore ways and means for undoing what was unjust and unfair.

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

----S. 12---Decree for specific performance of agreement to sell---Scope---Not obligatory upon court to pass judgment for specific performance of agreement in favoor of plaintiff in all cases, even in cases where agreement has been proved, as relief of specific performance is discretionary.

Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Shaukat Ullah Khan Bangash v. Adil Tiwana 2018 SCMR 769 rel.

Raja Muhammad Aleem Khan Abbasi for Petitioner.

Mian Ghaffar for Respondent No.1.

Zahid Mehmood Raja for Respondent No.2 through Legal Heirs.

P L D 2020 Islamabad 130

Before Mohsin Akhtar Kayani, J

SAIRA RUBAB NASIR and 25 others---Petitioners

Versus

PRESIDENT OF PAKISTAN through Secretary, Islamabad and 12 others---Respondents

Writ Petitions Nos. 3800, 3777, 3825, 3837, 3901 and 3905 of 2019, decided on 11th February, 2020.

(a) Pakistan Medical Commission Ordinance (XV of 2019)---

----Preamble---Pakistan Medical and Dental Council Ordinance (II of 2019), Preamble---Pakistan Medical and Dental Council (Amendment) Ordinance (XI of 2015), Preamble---Pakistan Medical and Dental Council (Amendment) Ordinance (III of 2014), Preamble---Pakistan Medical and Dental Council (Amendment) Act (XIX of 2012), Preamble---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Preamble---History of different Ordinances promulgated over time for managing the affairs of medical education as well as recognition of medical and dental qualifications traced.

PMDC v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

(b) Constitution of Pakistan---

----Arts. 48, 89, 90, 91 & 99---Rules of Business, 1973, Rr. 6,7, 14, 16, 17, 18 & 20---Power of the President to promulgate Ordinances---Necessary requirements for promulgation of an Ordinance stated.

Following are the necessary requirements for promulgation of an Ordinance by the President:

(i) When the National Assembly was not in session;

(ii) Satisfaction of the President; and

(iii) Existence of circumstances rendering it necessary to take immediate action.

The legislative power conferred to the President under Article 89 of the Constitution was not a parallel power of legislation. It was exercisable only when both the houses of Parliament were not in session and it had been conferred ex-necessitate in order to enable the executive to meet an emergent situation.

R.K. Garg v. Union of India AIR 1981 SC India 2138 and Krishna Kumar Singh and others v. State of Bihar AIR 1998 SC 2288 ref.

Satisfaction of the President was a condition precedent to the exercise of power (under Article 89 of the Constitution) and if it could be shown that there was no satisfaction of the President at all, or that the satisfaction was absurd or perverse or mala fide or based on extraneous or irrelevant grounds, it would not qualify as 'satisfaction'. Court need not go into whether there was any objective basis for the satisfaction required by Article 89 nor into the issue whether such satisfaction was to be entirely subjective.

Sindh High Court Bar Associatin v. Federation of Pakistan PLD 2009 SC 879; Dr. Mubashar Hassan and othrs v. Federation of Pakistan PLD 2010 SC 265 and State of Rajastan v. Union of India AIR 1977 SC 1361 ref.

An Ordinance or any other enactment were equally products of the exercise of legislative power and therefore, both were equally subject to the limitation which the Constitution had placed upon that power. An Ordinance could be issued by the President provided that both the Houses of Parliament were not in session and the President must satisfy that circumstances existed, which rendered him to take an immediate action. An Ordinance satisfying these preconditions had the same force and effect as an Act of Parliament.

A.K. Roy and others v. Union of India AIR 1982 SC 710 ref.

Powers of the President in terms of Article 89 of the Constitution were not unbridled. The same could only be processed through the advice of the Prime Minister and the Cabinet in terms of the constitutional mandate, which was further qualified with the mechanisms provided under the Rules of Business, 1973, hence, the President's satisfaction was nothing but the satisfaction of his Council of Ministers in whom the executive powers resided. In exercise of powers under Article 89 the President could not act except in accordance with the aid and advice of the Cabinet.

Mustafa Impex's case PLD 2016 SC 808 and Ch. Qaseem-ud-Din (Ex-Councilor City of Lahore Corporation v. Ali Shah PLD 1959 West Pakistan Lahor 76 ref.

High Court observed that it was expected from the Parliament to reconsider the wisdom of Article 89 of the Constitution in line with its original mandate as referred to in the Parliamentary debates of the year 1973 as well as under present circumstances when Article 89 had been misused; that the promulgation of an Ordinance or any other such type of instrument should not be used for elimination of permanent enactment or for elimination of permanent rights which were achieved through an act of Parliament; that in future, in case any emergent situation arose for promulgation of any Ordinance, the Federal Government shall state the reasons with justification in the summary before its approval in accordance with the Rules of Business, 1973 together with the procedure provided in the judgment reported as Mustafa Impex v. Government of Pakistan (PLD 2016 SC 808); that it was not considered to be lawful when any Ordinance was promulgated when Parliament was in existence and its sessions dates were not fixed for a short period of time, as such practice on the part of the Federal Government would show their inability to manage the political authority in the Parliament

(c) Constitution of Pakistan---

----Art. 89---Power of the President to promulgate Ordinance---Rationale and reasoning behind inclusion of Art. 89 in the Constitution as found in Parliamentary debates stated.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---Power exercised under the Constitution or a statute---Judicial review---Scope---Court had the jurisdiction to examine whether prerequisites provided for in the relevant provision of the Constitution/statute for exercise of the power thereunder existed when the impugned order was passed; if the answer to the said question was in negative, the exercise of power would be held to be without jurisdiction calling for interference by the court.

Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref.

(e) Pakistan Medical Commission Ordinance (XV of 2019)---

----Ss. 4, 16, 49 & Preamble---Pakistan Medical and Dental Council Ordinance (II of 2019) [disapproved by the Senate], Preamble---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Preamble---Constitution of Pakistan, Arts. 4, 9, 18 & 25---Pakistan Medical Commission Ordinance, 2019, vires of---President promulgated the Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance') through which the Pakistan Medical and Dental Council Ordinance, 1962 ('the 1962 Ordinance') was repealed and the Pakistan Medical and Dental Council ('the Council') established thereunder was dissolved and a new commission namely the Pakistan Medical Commission ('the Commission') was established---Consequently, the services of hundreds of employees of erstwhile Council were terminated---Held, that circumstances in which the 2019 Ordinance had been promulgated did not fulfil the requirements of Art. 89 of the Constitution---While approving the summary for the 2019 Ordinance before referring the matter to the President, the advice required in such type of cases was missing, and the reasons which prevailed for approval of summary were also lacking---Requirement of satisfaction of the President had not been achieved as per the required standards of Art.89 of the Constitution, nor the steps given in Rules of Business, 1973 had been followed before approval of the summary---No emergent requirement existed which rendered it necessary to take immediate action for re-promulgation of Pakistan Medical and Dental Council Ordinance, 2019, (not approved by the Senate) in the shape of impugned Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance')---Re-promulgation of an Ordinance itself was in violation of the constitutional mandate---Under the 2019 Ordinance unbridled discretion was extended to the Prime Minister for appointment of members of the Commission---Similarly no criteria of qualification/ experience had been provided under the 2019 Ordinance for appointment of members of the National Medical Authority set up under the said Ordinance---Federal Government while performing its executive function in approval of the summary of 2019 Ordinance did not consider the fundamental rights of the employees of the dissolved erstwhile Council---Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance') was declared to be ultra vires to the Constitution and its effect was held to be nullity in the eyes of law from the date of its promulgation, with the consequence that the Pakistan Medical and Dental Council Ordinance, 1962 stood revived in its original position---Constitutional petitions were allowed accordingly with relevant directions.

Perusal of record of the summary proposed before the Cabinet for the purpose of its approval before forwarding an advice to the President for promulgation of Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance'), showed that there was no reason, objective and factor under which the approval of draft of the 2019 Ordinance was taken into account except one page/document. Said summary reflected two separate contents; first, to constitute a permanent structure for the recognition of the Pakistan and Medical Dental Council ('the Council'), and secondly, to regain the Council's lost reputation. Question was that if such reasons could be considered for establishment of the Council on a permanent basis, then there was no need to promulgate an Ordinance as the reference given in the summary was silent qua the concept of divergent views of the cabinet members, factors which forced the Cabinet to apply the constitutional requirements envisaged under Article 89 of the Constitution i.e. circumstances existed which rendered it necessary to take immediate action, for which satisfaction was required. Wisdom seemed to be missing in the working of Cabinet which had not attended to the mandate provided in Article 89 of the Constitution, rather approved the summary in a mechanical fashion.

Perusal of words of the summary as well as reasons for approval of the draft of the 2019 Ordinance showed that it was silent qua any such circumstances required to achieve the satisfaction of the President (in terms of Article 89 of the Constitution) through the Cabinet and the Prime Minister, rather the Cabinet and the Prime Minister had not performed their executive duties to meet with the constitutional mandate, which was required in such type of approvals. The concept of approval in present context has to be considered in line with the constitutional mandate in the manner provided in Rules 6, 14, 15, 16, 17, 18 and 20 of the Rules of Business, 1973, failing which any action, decision or order, which was not taken in accordance with manner provided under the law, was to be considered nullity in the eyes of law and it could not be considered as a valid action.

Mustafa Impex's case PLD 2016 SC 808 ref.

The advice of the Prime Minister, which had been routed towards the President for promulgation of the 2019 Ordinance, lacked the basic requirement of advice, which could only be given after achieving satisfaction, however the summary as well as the decision thereupon was silent qua all factors, and even minimum requirements were not followed by the Cabinet under the Rules of Business, 1973.

The purpose, Preamble and most of the sections of the Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance') were similar/somewhat identical to the purpose, Preamble and sections of the earlier disapproved Pakistan Medical and Dental Council Ordinance, 2019. Re-promulgation of Ordinances, especially when the earlier ones were either not approved or disapproved by Parliament, was a fraud on the Constitution and a subversion of democratic legislative processes. The 2019 Ordinance on such touchstone was a fraud on the Constitution.

PMDC v. Fahad Malik 2018 SCMR 1956 ref.

Circumstances in which the 2019 Ordinance had been promulgated did not fulfill the requirements of Article 89 of the Constitution.

Furthermore, in terms of section 4 of the 2019 Ordinance, the Prime Minister had been given absolute discretion to nominate the members of the Pakistan Medical Commission ('the Commission'). When three members of the Commission were appointed by the Prime Minister using his absolute discretion on the strength of section 4(1)(a) of the 2019 Ordinance, it was not substantiated as to how and under what circumstances the Prime Minister came to know that the persons appointed fell within the concept of "recognized philanthropist or person of known repute, a legal professional and a chartered accountant" as there were thousands of Chartered Accountants, philanthropists, advocates and professionals who had been excluded from consideration. It was necessary for an authority like the Prime Minister to call upon such individuals through a structured formula by way of open advertisement, which was missing in the present case or by giving a fair chance to every professional for his selection. Similarly, when three licensed medical practitioners were appointed to the Commission in terms of section 4(1)(b) of the 2019 Ordinance, the best of the best formula was not adopted, and no structured criteria was adopted. One of the medical practitioners appointed was associated with the hospital established by the Prime Minister himself, which was a clear conflict of interest on part of the Prime Minister.

Composition of the Commission in terms of section 4(1)(a)(b) and (c) of the 2019 Ordinance was based on a person specific selection concept, whereas the Prime Minister, being the Executive head, was bound to follow the spirit of fair competition, equal opportunity and merit in all respects. The 2019 Ordinance with reference to composition of Commission negated the wisdom laid down in Article 25 of the Constitution. Appointment of members of the Commission was in violation of basic principles of law as unstructured discretion was applied by the Prime Minister without any subjective criteria. All the relevant processes and procedures were not referred to in section 4 of the 2019 Ordinance in order to accommodate blue eyed persons by the Prime Minister, which was in violation of the constitutional mandate as discretion was specifically provided to the Prime Minister, which could not be applied in a wide manner in violation of the governing principles laid down in the judgments of the Supreme Court.

In the matter of Selling of National Assets Including PIA at Throwaway Price 2019 SCMR 1952 and Tariq Aziz ud Din and others in Human Right Case 2010 SCMR 1301 ref.

The 2019 Ordinance, also referred an Authority known as National Medical Authority, which had been constituted in terms of section 16 of the said Ordinance, which provided seven (07) members dealing with education, evaluation, examination, licensing, information and technology, finance, legal and administration sides, who were to be appointed for a 4 year term "through a transparent process on merit", however no criteria had been referred as to what was the qualification/experience, on which transparent process on merit had to be evaluated by the Commission. When no criteria had been fixed, a discretion had been extended to the Commission which would affect the selection process as all the positions referred in terms of section 16(a) to (g) required a structured criteria, otherwise the entire working of National Medical Authority would be hampered, but the concerned ministry as well as the draftsmen of the 2019 Ordinance had not taken into account this aspect, which itself was against the concept of merit.

In the matter of: Selling of National Assets Including PIA at Throwaway Price 2019 SCMR 1952 ref.

In terms of section 49 of the 2019 Ordinance, employees/officers of the dissolved Council, whether permanent, regular, temporary or contractual "ceased to be employees of the Council upon the promulgation of Pakistan Medical Commission Ordinance, 2019". Employees of the erstwhile Council who had gained permanent employment and performed their duties for a number of years were thrown out. The 2019 Ordinance was a temporary legislation, and the same could not be allowed to supersede the permanent right of employees given under a permanent legislation i.e. the Pakistan Medical and Dental Council Ordinance, 1962 ('the 1962 Ordinance'). Fundamental rights of the employees of the erstwhile Council under Articles 4, 9, 18 and 25 of the Constitution were violated in a blatant manner.

Pakistan Medical Commission Ordinance, 2019 ('the 2019 Ordinance') was declared to be ultra vires to the Constitution and its effect was held to be nullity in the eyes of law from the date of its promulgation. Actions, orders and decisions taken by the Commission pursuant to promulgation of the 2019 Ordinance, were also declared to be unlawful. All the employees of erstwhile Pakistan and Medical Dental Council ('the Council') were reinstated into service with effect from the promulgation of the 2019 Ordinance and any amount, salary or financial remunerations received by those employees were to be adjusted in accordance with original positions and any overpaid amount was to be treated as advanced salary accordingly. Members of the Commission appointed in terms of section 4 of the 2019 Ordinance were barred from representing the Commission or the erstwhile Council in any manner, nor were they to join any meeting or pass any order dealing with the affairs of the Council in any manner as their appointment/nomination was illegal and void. Similarly, all of their actions, approvals and orders were also declared to be illegal and subject to rectification by the regular Council as and when appointed under the law. Since the 2019 Ordinance was ultra vires to the Constitution, therefore, the affairs of the Council had to be regulated under the Pakistan Medical and Dental Council Ordinance, 1962 which stood revived in its original position.

(f) Islamic jurisprudence---

----Persons exercising authority, duty of---Quranic injunctions placed a heavy onus upon person having authority to decide things in a justiciable manner as trust had been extended to such persons.

Surah An-Nisa [Verses: 58 and 59]; Surah Yusuf Verse: 55 and Surah Al-Qasas [Verse 25] ref.

(g) Public functionary---

----Exercise of power---Discretionary powers conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such powers within the scope of law---All judicial, quasi-judicial and administrative authorities must exercise powers in reasonable manner and also must ensure justice as per spirit of law.

Tariq Aziz ud Din and others in Human Right Case 2010 SCMR 1301 ref.

Babar Sattar, Ms. Zainab Janjua, Abdul Rahim Bhatti, Qaiser Rahim Bhatti, Yasser Rahim Bhatti, Umer Sajjad Chaven, Zafarullah Khan, Qausain Faisal Mufti, Ali Nawaz Kharal and Danish Aftab, Advocates in their respective petitions for Petitioners.

Dr. Saleem Khattak in person (in W.P No.3901/2019) for Petitioner.

Tariq Mehmood Khokhar, Additional Attorney General.

Saqlain Haider Awan and Muhammad Nadeem Khan Khakwani, AAGs.

Saim ul Haq Satti, Malik Qamar Afzal, Saad Khan, Ms. Misbah Ashiq, Ms. Tania Bazai for Respondent.

Zahid Hussain Shah, Dy. Assistant Solicitor, Ministry of Law and Justice.

G. M. Jakhrani, D.D (Lit) Ministry of NHSR&C.

P L D 2020 Islamabad 175

Before Athar Minallah, C.J.

RIAZ HANIF RAHI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3545 of 2019, decided on 16th October, 2019.

Constitution of Pakistan ---

----Arts. 16, 17 & 19---Right to peaceful sit-in protest---Scope and restrictions---Maintenance of public order during protests---State functionaries, duty of---Constitutional petition seeking a direction from the (High) Court to restrain a political party from holding a protest march/sit-in in the capital city---Held, that peaceful protest by unarmed persons was a constitutionally protected right---Said right stemmed from the fundamental rights of freedom of assembly, freedom of association and freedom of speech/expression, which were guaranteed under Arts.16, 17 & 19 of the Constitution, respectively---No law-abiding citizen could, therefore, be denied the right of peaceful protest, however, correspondingly the peaceful protesters could not be allowed to infringe the fundamental rights of other citizens---Right to protest was indeed not an absolute right but it was subject to reasonable restrictions---Law enforcing authorities had the responsibility to consider several factors while imposing restrictions or conditions for the purposes of regulating a peaceful protest so that the rights of other citizens also remained protected---In such regard authorities may impose restrictions regarding route or venue or impose any other condition having regard to maintaining public order and protecting the rights of other citizens---Only in extraordinary and exceptional circumstances could the State restrain a person from exercising his or her right to protest on the ground of national security---Organizers of a protest and its participants were also under an obligation to remain peaceful, unarmed and to strictly comply with the reasonable restrictions and conditions imposed by the competent authorities---Maintaining public order was a crucial responsibility of the State and its functionaries, thus, they could not be dictated by the Court as to what measures they were required to take in this regard or how protest rally/sit-in was to be regulated---Such matters were within the exclusive domain of the executive authorities and no direction could be given by the Court---Constitutional petitions were disposed of by the High Court with the expectation that the competent authorities would ensure that constitutionally guaranteed rights of every citizen remained protected and that public order was maintained by ensuring that writ of the State was enforced.

P L D 2020 Islamabad 177

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

Sheikh IMRAN UL HAQUE---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Islamabad and another---Respondents

Writ Petition No.3843 of 2019, decided on 26th November, 2019.

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

----S. 9(a)(iv(vi) & (b)---Public Procurement Rules, 2004, R. 22---Bail, grant of---Misuse of authority---Proof---Financial gain, absence of--- Petitioner was arrested by National Accountability Bureau (NAB) for misusing his authority and causing loss to national exchequer while awarding tender regarding establishment of LNG Terminal---Validity---Figures relating to alleged loss to exchequer as quoted by NAB was based on conjectures---No material violation of Public Procurement Rules, 2004 was mentioned and alleged role attributed to petitioner could not be treated as an offence relating to corruption and corrupt practices--- National Accountability Bureau could not explain as to what authority was exercised by the petitioner which amounted to a 'criminal act'---Correspondence and finalization of matters relating to establishing LNG Terminal by an employee of a private juridical person could not be treated as fraudulent and dishonest action---Petitioner was merely an employee and there was nothing on record to even remotely suggest that he had made any financial gain---Case against petitioner was entirely dependent upon documentary evidence and same was in possession of prosecution and there was no possibility for petitioner to tamper the same---Bail was granted in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another PLD 2008 SC 438 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

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

----Ss. 9(b) & 22---Constitution of Pakistan, Arts. 14 & 15---Arrest---Grant of bail---Scope---Powers to arrest provided under National Accountability Ordinance, 1999 are not unfettered nor they can be exercised mechanically and in an arbitrary manner---Ouster of bail provisions in National Accountability Ordinance, 1999 does not deprive any accused of Constitutionally guaranteed fundamental rights such as inviolability of dignity and freedom of movement provided under Arts.14 & 15 of Constitution respectively.

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

----S. 9---Constitution of Pakistan, Arts. 14 & 15---White Coller Crime---Bail, grant of---Freedom of movement and liberty---Scope---Arbitrary interference with right to freedom of movement and liberty besides amounting to abuse of statutory powers is prima facie a tort---Very strong reasons are required for depriving an accused of right to liberty in matters relating to white collar crimes particularly when he or she is cooperating and there is no apprehension of abscondence.

Salman Akram Raja, Advocate Supreme Court and Malik Ghulam Sabir, AHC for Petitioner.

Barrister Rizwan, Special Prosecutor, NAB and Malik Ziubair Ahmed, Dy. Director/I.O. for Respondents.

Ch. Abdul Jabbar, Asstt. Attorney General.

P L D 2020 Islamabad 184

Before Mohsin Akhtar Kayani, J

Mst. Syeda IRSHAD FATIMA RIZVI---Petitioner

versus

BASHIR AHMAD and others---Respondents

Civil Revision No.175 of 2014, decided on 3rd September, 2019.

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

----Arts. 34, 35 & 36---Admission---Prerequisites---Admission, even though if considered to be legal one, is a relevant fact which clearly connotes that admission is not conclusive against party making it---Oral admission as to contents of document is not relevant, unless and until party proposing to prove them shows that he is entitled to give secondary evidence of contents of such document in terms of Art. 35 of Qanun-e-Shahadat, 1984 or unless genuineness of document along with contents has been proved.

Amjad Khan v. Rasool Shah and others PLD 1979 SC 311; Fida Muhammad and others v. Umar Khitab 2013 CLC 1171 and Shahadat Khan v. Zulfiqar and others 2005 YLR 946 rel.

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

----Arts. 30, 34, 35 & 36---Registration Act (XVI of 1908), Ss.17 & 49---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for specific performance of agreement to sell---Pardanasheen lady---Unregistered document---Onus to prove---Record tampering---Effect---Plaintiff sought specific performance of agreement to sell duly executed by defendant on behalf of pardanasheen lady---Trial Court dismissed suit and judgment and decree was maintained by Lower Appellate Court---Plea raised by plaintiff was that she had paid consideration amount and documents were admitted to be signed by original allottee---Validity---Admission of signature by original allottee on 'authority letter' was in ignorance of her rights and same was made erroneously---Mere admission regarding signatures on 'authority letter' without admission regarding its contents was of no use therefore, same could not be relied upon---Original allottee was an illiterate lady and in this regard, plaintiff was burdened with heavy responsibility to discharge onus that no fraud was committed while executing 'authority letter'---Power of attorney required registration in terms of S.17 of Registration Act, 1908---Document conveying transfer of title or authority to transfer required compulsory registration---In case of non-registration in terms of S.49 of Registration Act, 1908 it had no legal effect---'Authority letter' had no legal sanction to convey any right or title on behalf of original allottee in favour of defendant to execute agreement with plaintiff---Agreement to sell, even though was conceded by defendant had no legal value---High Court declined to interfere in concurrent findings of both courts below as no legal defect was found and both courts rightly passed judgments and dismissed suit for specific performance---Concurrent findings of facts could not be interfered with as there was neither any error nor any factor of misreading or non-reading of evidence available on record, even no illegality was observed therein---High Court directed defendant to return entire amount of sale consideration and additional compensation to plaintiff as same was received by him through agreement to sell from plaintiff---Revision was dismissed accordingly.

Fateh Muhammad v. Additional Commissioner and others 1993 CLC 1248; Maqsood Ahmad v. Muhammad Anwar Ali 2006 YLR 1431; Mst. Hameeda Begum v. Khadim Hussain 2001 MLD 427; Nazir Ahmad v. Zeban Bibi 2001 CLC 527; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Abdur Rehman v. Mst. Majida Bibi alias Majeedan 2017 SCMR 1110; Baja through LRs v. Behkan and others 2015 SCMR 1704; Mst. Zaitoon Begum v. Nazar Hussain and others 2014 SCMR 1469; Syed Sharif ul Hassan through LRs v. Muhammad Hafeez and others 2012 SCMR 1258; Fateh Khan deceased through LRs v. Surraya Begum 2006 SCMR 930; Khawas Khan through LRs v. Sabir Shah and others 2004 SCMR 1259; Bakhtiar v. Nasrullah 2015 CLC 385; Manzoor Hussain v. Muhammad Fazal 2002 CLC 1165; Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821; Mst. Salaman v. Bashir Ahmad 2007 YLR 2440; Nazim-ud-Din v. Sheikh Zia-ul-Qamar 2016 SCMR 24; Province of Punjab through Collector Sargodha v. Muhammad Akhtar 2007 SCMR 953; Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469; Anwar Zaman v. Bahadur Sher 2000 SCMR 431; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish 2010 SCMR 817; Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Shakeel Ahmad v. Mst. Shaheen Kousar 2010 SCMR 1507 and Shaukat Ullah Khan Bangash v. Adil Tiwana 2018 SCMR 769 ref.

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

----O. VII, R. 14(1) & (2)---Evidence---List of documents produced and relied---Effect---Any document which is not part of the pleadings at initial stage and even not mentioned in list of documents in terms of O.VII, R.14(1), C.P.C. or relied in terms of O. VII, R. 14(2), C.P.C., is not to be allowed to be placed on record through a backdoor intervention.

(d) Pleadings---

----Evidence---Maxim Secundum allegata et probeta---Applicability---Plaintiff is not allowed to lead evidence beyond pleadings and in case such evidence is led, same cannot be read---Party cannot be allowed to improve its case through evidence if case is not set up in pleadings---Rule of secundum allegata et probeta precludes a party from proving what was not alleged or pleaded.

Irshad Begum v. Muhammad Rafique PLD 2010 Lah. 649; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Lahore Development Authority v. Sultan Ahmad 2007 SCMR 1682 and Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue 2014 SCMR 914 rel.

(e) Administration of justice---

----Court, duty of---Principle---Duty of court of law to explore ways and means for undoing what was unjust and unfair.

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

----S. 12---Decree for specific performance of agreement to sell---Scope---Not obligatory upon court to pass judgment for specific performance of agreement in favoor of plaintiff in all cases, even in cases where agreement has been proved, as relief of specific performance is discretionary.

Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Shaukat Ullah Khan Bangash v. Adil Tiwana 2018 SCMR 769 rel.

Raja Muhammad Aleem Khan Abbasi for Petitioner.

Mian Ghaffar for Respondent No.1.

Zahid Mehmood Raja for Respondent No.2 through Legal Heirs.

P L D 2020 Islamabad 199

Before Ghulam Azam Qambrani, J

CONSTRUCTORS ASSOCIATION OF PAKISTAN through Secretary General---Petitioner

Versus

PAKISTAN ENGINEERING COUNCIL (PEC) through Chairman and another---Respondents

Writ Petition No.1251 of 2020, decided on 20th May, 2020.

(a) Constitution of Pakistan---

----Art. 199(1)(a)--- Constitutional petition--- Maintainability---"Aggrieved person"---Scope---For purposes of maintainability of a Constitutional petition, it was necessary for a party to become an "aggrieved person" or "aggrieved party" to show that his personal, pecuniary or property rights had been adversely affected by another person's action or by a court's decree or judgment---Person could be said to be aggrieved only when a person was denied a legal right by someone who had a legal duty to perform relating to the right---Not only must there be a right but a justiciable right in existence, to give juris-diction to the High Court in the matter.

Zaheeruddin Sheikh and 30 others v. United Bank Ltd. 2002 CLC 147; Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and 4 others 2003 CLC 1348; Muhammad Idrees v. Province of Punjab through Collector District Sialkot and others 2014 CLC 130; Messrs Associated Cement Companies Ltd. v. Pakistan, through the Commission of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; Nisar Ahmed and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299; Anjuman Araian Bhera v. Abdul Rashid and others PLD 1982 SC 308; Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan Islamabad and 8 others 1994 CLC 2318; Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P. Lahore 914; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 and Ishaq Masih v. District Coordination Officer and others 2017 PLC (C.S.) 528 ref.

(b) Constitution of Pakistan---

----Art. 199(1)(a)--- Constitutional petition--- Maintainability---"Aggrieved person"---Locus standi of petitioner---Scope---Civil works---Terms and conditions of bid documents---Whether petitioner, who neither obtained tender documents nor participated in the bidding process would come within the purview of "aggrieved person"---Held, that it was sine qua non for invoking jurisdiction of the High Court under Art.199 of the Constitution, that the petitioner was an aggrieved person and also had locus standi---In the present case the petitioner-association did not participate in the bid, as such, neither the petitioner was a bidder nor a potential bidder, so it could not be considered an "aggrieved person" within the meaning of Art.199 of the Constitution---Petitioner also did not have the locus standi to invoke Constitutional jurisdiction of the High Court---Even otherwise, the petitioner failed to establish any violation of law and rules, thus was not an aggrieved person on such account also---From the perusal of the record, it was clear that the bidders, who had actually participated in the bid process, in presence of the terms and conditions, issued by the respondent-Engineering Council, for the construction works, did not raise any objection in the existing terms and conditions of bid documents---Constitutional petition was dismissed as being not maintainable.

Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range and 7 others PLD 1978 SC 151; Hafiz Hamid Ullah v. Saifullah and others PLD 2007 SC 52; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 844; Pakistan Pharmacists Association v. Province of Punjab and 3 others 2018 PLC (C.S.) 1063; High Court Bar Association, Rawalpindi through Taufiq Asif, President and Members Executive Committee v. Punjab Bar Council through Vice Chairman and others PLD 2014 Lah. 369; Pakistan Medical Association through President v. Pakistan through Secretary, Ministry of National Health Services Regulations and Coordination, Islamabad and 5 others 2016 PLC (C.S.) 676; Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan PLD 1964 Lah. 138 and The Pakistan Steel Re-Rolling Mills Association, Lahore v. The Province of West Pakistan, through Secretary, Co-Operation, Labour and Social Welfare Department, Lahore PLD 1966 SC 72 ref.

(c) Constitution of Pakistan---

---Art. 199---Constitutional petition---Maintainability---Pre-requisites for a petitioner to invoke constitutional jurisdiction of the High Court under Art.199 of the Constitution stated.

For a petitioner to invoke Constitutional jurisdiction of the High Court under Article 199 of the Constitution, it had to satisfy the following:

(i) That he had a locus standi to invoke constitutional jurisdiction being an "aggrieved person" as his right was denied or was not given to him;

(ii) That his right was infringed and the right so infringed was justiciable right; and

(iii) That he had no alternate, adequate remedy for redressal of his grievance except a petition under Article 199 of the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Scope---High Court before exercising its extraordinary jurisdiction under Art. 199 of the Constitution must be satisfied about the non-availability, or inefficacy of alternate remedy provided under law---Once it was shown to the satisfaction of the High Court that the alternate remedy was expedient and effective, then the Court would be reluctant to exercise writ jurisdiction, which was not meant to bypass the authority to render such hierarchy as redundant and superfluous---High Court observed that the Supreme Court in a number of cases has deprecated the tendency to invoke writ jurisdiction (of the High Court), bypassing remedy provided under the relevant statute.

Match Company Ltd. v. Authority under Payment of Wages Act 2003 SCMR 1492 ref.

Babar Ali Khan for Petitioner.

Umer Ijaz Gillani and Armaghan S. Khan for Respondent No.1.

P L D 2020 Islamabad 214

Before Miangul Hassan Aurangzeb, J

PETROLEUM EXPLORATION (PRIVATE) LTD.---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources and 3 others---Respondents

Writ Petition No.3823 of 2016, decided on 30th October, 2019.

(a) Pakistan Petroleum (Production) Rules, 1949---

----R. 40 ---Petroleum Exploration and Production Policy, 2012---Petroleum production and exploration---Grant of licence or lease for petroleum exploration/production---Question before High Court was whether Constitutional petition, whose subject matter involved questions/disputes with regard to lease/licence granted under Pakistan Petroleum (Production) Rules, 1949, was maintainable in view of availability of alternate remedy of arbitration provided by R.40 the same---Held, that petitioner had sought implementation of Petroleum Exploration and Production Policy, 2012 and had agitated no dispute with regard to form or related terms of the petroleum exploration agreement---Subject-matter of Constitutional petition was not any of the matters required by R.40 of Pakistan Petroleum (Production) Rules, 1949 to be referred to arbitration---Dispute that may arise between Government and holder of a petroleum mining lease or a party to a petroleum concession agreement regarding implementation of Government's petroleum policy could not be termed as a "dispute arising from and related to the agreement containing an arbitration clause"---Constitutional petition was therefore, maintainable.

(b) Pakistan Petroleum (Production) Rules, 1949---

----R. 40 ---Petroleum Exploration and Production Policy, 2012---Constitution of Pakistan, Art.199---Government policy with regard to petroleum exploration and production---Petroleum exploration lease and production sharing arrangements---Incentive gas prices for new exploration efforts---Scope---Petitioner petroleum exploration company sought "incentive gas price" benefit available under Petroleum Exploration and Production Policy, 2012 notified by Ministry of Petroleum and Natural Resources---Contention of respondent (Federal Government) was that said benefit was available only to "new exploration efforts", and petitioner did not meet such criteria --- Validity---Perusal of relevant documents revealed that petitioner did not drill an "exploration well" but instead drilled a "development well", and in terms of the said Policy, petitioner was not entitled to the incentive price for additional production from its Mining Lease---Constitutional petition was dismissed, in circumstances.

(c) Interpretation of documents---

----Determine of true nature of a document, required that same be read as a whole and substance of such document was to be looked at instead of just the form of its title.

Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Anwar ul Haq v. Federation of Pakistan 1995 SCMR 1505 and Abdur Razzaq v. Shah Jahan 1995 SCMR 1489 rel.

(d) Estoppel, principle of---

----Promissory estoppel---Estoppel and legitimate expectation---Principles---To obtain promissory estoppel against Government, one had to specifically plead and furnish materials as to how he had been induced and then altered his position by virtue of said representation from Government---Sine qua non for invoking doctrine of promissory estoppel or legitimate expectation for issuance of a writ of mandamus directing the Government to fulfill its commitment under a policy was that in reliance on such representation or promise in said policy, the person seeking estoppel altered his position to his detriment.

Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. AIR 1979 SC 621 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO ((2007) 5 SC 447 rel.

Barrister Yousaf Khosa, Malik Omair Saleem and Barrister Sereena Khan for Petitioner.

Tariq Mahmood Khokhar, Addl. Attorney General for Respondents.

Ch. Hafeez Ullah Yaqoob and Ms. Zaitoon Hafeez for Respondent No.4/S.N.G.P.L.

P L D 2020 Islamabad 236

Before Mohsin Akhtar Kayani and Lubna Saleem Pervez, JJ

HAIDER BIN MASOOD---Appellant

Versus

ELECTION COMMISISON OF PAKISTAN and 7 others---Respondents

I.C.A. No.26 of 2020, decided on 30th March, 2020.

(a) Islamabad Capital Territory Local Government (Conduct of Elections) Rules, 2015---

----R. 11(2)---Term 'revise election schedule'---Scope---All meanings of word 'revise' have to be based upon changed circumstances or in emergence of new situation before the polling date, whether it is the emergence situation before the polling date, whether it is law and order situation before the polling date, death of any candidate contesting election or any other situation making the conduct of election impracticable.

Muhammad Asghar Siddique v. Government of Punjab PLD 2010 Lah. 138 ref.

(b) Islamabad Capital Territory Local Government Act (X of 2015)---

----S. 31--- Islamabad Capital Territory Local Government (Conduct of Elections) Rules, 2015, R. 11(2)---Constitution of Pakistan, Art.222(d)---Election Commission, powers of---Bye elections---Revising of schedule---Appellant was candidate contesting election whereas respondents were voter members of the constituency on whose petitions, Single Judge of High Court directed Election Commission to issue fresh election schedule---Validity---Election Commission was an independent Constitutional pillar of the State, which regulates its powers under the Constitutional mandate given in terms of Art.222(d) of the Constitution---Chief Election Commissioner is an independent Constitutional authority without trace of subservient---Executive authorities are bound to assist Chief Election Commissioner in organizing or holding elections---Fixation of date of election or announcement of election schedule is the sole prerogative of Election Commission, who is not accountable if it is performing its duties in accordance with law---Reschedule election was notified due to demise of a candidate of the constituency---Respondents were not candidates therefore, they could not claim that a new election schedule was to be announced from Stage-1, which had its separate concept and analogy under the law---Petitions filed by respondents were not maintainable as they could not challenge actions of Election Commission as notification of rescheduled election would not affect their rights---Election Commission while exercising powers provided in R.11(2) of Islamabad Capital Territory Local Government (Conduct of Elections) Rules, 2015, could only issue Revised Election Schedule for Poll day onwards---Division Bench of High Court set aside the judgment passed by the Single Judge of High Court as the same was not in accordance with law or the logic/rationale given under election laws--- Intra-court appeal was allowed in circumstances.

Sheikh Rashid Ahmad v. Government of Punjab and others PLD 2010 SC 573; Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Institute of Cost and Management Accountants of Pakistan v. Ghulam Abbas 2015 CLD 708 and Muhammad Ilyas v. Returning Officer PLD 2016 Lah. 179 rel.

Adnan Bashir Ch. and Imran Ali Kayani for Appellant.

Sana Ullah Zahid for Respondents Nos.1 and 2.

Qasim Iqbal for Respondent No.3.

Malik Qatadah Jamal Khan for Respondent No.5.

P L D 2020 Islamabad 250

Before Miangul Hassan Aurangzeb, J

Chaudhary WAJID AYUB and another---Appellants

Versus

Malik RIZWAN AHMED and others---Respondents

Election Appeal No. 1 of 2016, decided on 25th April, 2019.

(a) Islamabad Capital Territory Local Government Act (X of 2015)---

----S. 37---Representation of the People Act (LXXXV of 1976), S. 54---Local Council Elections---Procedure---If provisions of Islamabad Capital Territory Local Government Act, 2015 or Rules made thereunder cater for a certain situation or an eventuality, resort to provisions of Representation of the People Act, 1976 is not necessary---When conflict existed between provisions of Representation of the People Act, 1976 and Islamabad Capital Territory Local Government Act, 2015 or Rules made thereunder, latter prevails as regards elections of local governments.

(b) Islamabad Capital Territory (Conduct of Elections) Rules, 2015---

----R. 61(3)---Representation of the People Act (LXXXV of 1976), S. 55(3)---Election petition---Verification of pleadings---Procedure---Provisions of R.61(3) of Islamabad Capital Territory (Conduct of Elections) Rules, 2015 have provided as to how every election petition and every Schedule or Annexure to the petition has to be verified---Recourse to requirements of S.55(3) of Representation of the People Act, 1976 is not necessary, in circumstances.

(c) Islamabad Capital Territory Local Government Act (X of 2015)---

----S. 37---Islamabad Capital Territory (Conduct of Elections) Rules, 2015, R. 61(3)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition---Verification of pleadings---Certificate, non-signing of---Oath Commissioner had affixed his stamp but he did not sign certificate at the end of election petition and other documents annexed therewith---Effect---Non-signing of such certificate did not amount to violation of requirements of O. VI, R. 15, C.P.C.---Requirements which were not expressly provided in O. VI, R.15, C.P.C. could not be read into it.

(d) Islamabad Capital Territory Local Government Act (X of 2015)---

----Ss. 37 & 46---Representation of the People Act (LXXXV of 1976), S. 78---Term 'corrupt practices'---Proof---Appellants assailed election of returned candidate on plea that he committed corrupt practices by non-disclosure of assets inherited by him in his nomination papers---Petition filed by appellants was dismissed by Election Tribunal---Validity---Meaning given to "corrupt practices" in S.78 of Representation of the People Act, 1976 was different from the meaning given to "corrupt practices" in S.46 of Islamabad Capital Territory Local Government Act, 2015---No admission on the part of returned candidate as to non-disclosure of assets inherited by him in his nomination papers was on record---Heavy onus was on appellants to provide through cogent evidence that returned candidate was owner of property which was not declared in statement of assets filed along with nomination papers---Appellants did not produce any document to show that returned candidate was owner of property which was alleged to have been purchased by his father and uncle in year 1990---Appellants also failed to prove the allegation that returned candidate had a share in property in question---High Court declined to interfere in order passed by Election Tribunal---Appeal was dismissed in circumstances.

Muhammad Ibrahim v. Aftab Shaban Mirani 2016 SCMR 722; Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Inayat Ullah v. Syed Khursheed Shah 2014 SCMR 1477 and District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 ref.

(e) Evidence---

----Document, proof of---Mark/Exhibit---Effect---Documents have to be formally exhibited in evidence and 'mark' has no evidentiary value.

State Life Insurance Corporation of Pakistan and others v. Javaid Iqbal 2011 SCMR 1013 rel.

Malik Qamar Afzal and Saad Khan for Appellants.

Tanveer Iqbal, Ali Murad Baloch and Salman Ajaib for Respondents.

P L D 2020 Islamabad 268

Before Athar Minallah, C J

KHADIM HUSSAIN---Petitioner

Versus

SECRETARY, MINISTRY OF HUMAN RIGHTS, ISLAMABAD and others---Respondents

Writ Petition No.4037 of 2019, decided on 14th March, 2020.

(a) Prisons Act (IX of 1894)---

----Preamble---Prisoners' Act (III of 1900), Preamble---Pakistan Prisons Rules, 1978 ('the Jail Manual')---Prison authorities, liability of---Tort---False imprisonment---Inhuman and degrading conditions, compensation for---Prisoner had a right to sue in respect of torts committed in a prison---Action could be brought by a prisoner against the prison authorities and the State for false imprisonment, breach of statutory duty, violation of fundamental rights, degrading and inhuman treatment, misfeasance in a public office or on the ground of negligence.

'Jail Manual', read with the relevant primary statutes, made it a statutory duty of the prison authorities and the respective governments to treat prisoners in accordance with the minimum standards elaborated therein. Breach of such statutory duty, depending on the facts and circumstances of each case, may expose the prison authorities and the concerned government to an action under the law of tort. Likewise, depending on the circumstances, the conditions of incarceration may give rise to cause of action for false imprisonment.Incarceration of a juvenile in the same cell or barrack with convicted hardened criminals and that too under intolerable living conditions would constitute illegal detention and thus render it as 'false imprisonment'. Such fact would indeed not make the prisoner entitled to be released but it would give rise to a cause of action under tort for as long as the false imprisonment would continue.

Remedies available under the law of tort, were enforceable in Pakistan. Action could be brought by a prisoner for false imprisonment, breach of statutory duty, violation of fundamental rights, misfeasance in a public office or on the ground of negligence. Incarcerated prisoners, subjected to the unimaginable degrading and inhuman treatment, may become entitled to seek damages against the prison authorities and the State. Prisoner, therefore, had a right to sue in respect of torts committed in a prison.

Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others 2011 SCMR 1836; Abdul Majeed Khan v. Tawseen Abdul Haleem PLD 2012 SC 80 and Middleweek v. Chief Constable of the Merseyside Police and another [1990] 3 All. ER 662 ref.

(b) Prisons Act (IX of 1894)---

----Preamble---Prisoners' Act (III of 1900), Preamble---Constitution of Pakistan, Arts. 9 & 14 & Fourth Sched. Pt. 1, Item Nos. 3 & 32 & Pt. II, Item No. 13---International Convention on the Elimination of All Forms of Racial Discrimination---United Nations Convention on the Rights of the Child---Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment---International Covenant on Civil and Political Rights (ICCPR)---International Covenant on Economic Social and Cultural Rights (ICESCR)---Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)---Convention on the Rights of Persons with Disabilities---Government of Pakistan had ratified said seven Conventions having relevance to the rights of prisoners---Said Conventions were in conformity with the fundamental rights guaranteed under the Constitution---Fundamental rights under Arts. 9 & 14 in fact contemplated the obligations of the State under the said ratified Conventions---High Court directed that the Federal Government shall take immediate steps, pursuant to its jurisdiction vested under Item 13 of Part II read with Items 3 and 32 of Part I of the Federal Legislative List under the Fourth Schedule of the Constitution, to ensure that prisoners incarcerated in the prisons across the country were dealt with and treated in conformity with the obligations of the State of Pakistan pursuant to ratification of the Conventions, and that the Implementation Commission (formed during proceedings of present case) may consider recommending to the Federal Government the initiation of proposed legislation by the Majlis-e-Shoora (Parliament), for prescribing minimum standards for the treatment of prisoners pursuant to obligations under the ratified Conventions and establishing an independent oversight forum in this regard.

(c) Constitution of Pakistan---

----Fourth Sched. Pt. 1, Item Nos. 3& 32---International Conventions/Treaties, enforcement of---Ratified convention or treaty could be relied upon/enforced as long as it was not in conflict with the law enacted in Pakistan.

Human Rights case No.29388-K of 2013 PLD 2014 SC 305 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 ref.

(d) Prisons Act (IX of 1894)---

----Preamble---Prisoners' Act (III of 1900), Preamble---Constitution of Pakistan, Arts. 9, 14 & 15---Pakistan Prisons Rules, 1978 ('the Jail Manual'), R. 1065---Prisoners, rights of---Scope---Duty of care owed by State and prison functionaries to prisoners---Scope---Medical needs of prisoners---Inviolability of dignity of prisoners---Inhuman and degrading treatment of prisoners---Convicted and non-convicted prisoners were compelled to place reliance for their right to life and medical needs solely on the authorities holding him/her in custody---Such reliance gave rise to a duty of care on the part of the State and its functionaries---Status of a prisoner was similar to that of a ward of the State because he or she, was in its legal custody and care---Inhumane treatment of a prisoner was a serious violation of the constitutional rights guaranteed under Arts. 9 & 14 of the Constitution---Prisoner who was held in custody in an overcrowded prison, having lack of sanitation, tantamounted to cruel and inhuman treatment for which the State ought to be accountable---Living conditions in the prisons and the inhuman treatment of incarcerated prisoners was a violation of the law enunciated by the Holy Prophet Muhammad (SAW)---Every branch of the State i.e the Executive, Judiciary and the Legislature had a duty to urgently reform the criminal justice system.

Sentence awarded to a convicted prisoner deprives him of his liberty and the freedom to be free and this curtailment of liberty may have limited consequences regarding some other rights. But by no stretch of the imagination was the right to life restricted or curtailed, rather a heavy burden laid on the State to safeguard this most fundamental right, because a prisoner did not have the freedom to make choices or decisions.On the other hand, a non-convicted prisoner had altogether a different status. The latter retained the presumption of innocence. The prisoner, whether convicted or non-convicted, was compelled to place reliance for his right to life and medical needs solely on the authorities holding him/her in custody. This reliance gave rise to a duty of care on the part of the State and its functionaries.

It was implicit in Article 9 of the Constitution that it was the duty of the State to ensure that every person incarcerated in the prisons of Pakistan, including those who were convicted for an offence and undergoing sentence, were treated in a manner that did not expose him/her to harm and that proper medical treatment was made available in case it was required. The status of a prisoner was similar to that of a ward of the State because he or she, as the case may be, was in its legal custody and care. The prisoner was thus entirely dependent on the State and at its mercy for the purposes of safeguarding the right to life and to meet medical needs. The State, therefore, owed a duty of care to every prisoner regardless of his or her nature of imprisonment.

It was only liberty and the right of free movement of a prisoner that had been curtailed and definitely not the constitutional rights to life and to be treated with respect, having regard to the fundamental right of inviolability of the dignity of man guaranteed under Article 14 of the Constitution. The incarcerated person lost freedom of movement but not his or her status as a human being. Every prisoner, without discrimination, had to be treated as a human. Inhumane treatment of a prisoner was a serious violation of the constitutional rights guaranteed under Articles 9 and 14 of the Constitution. The most hardened offender, regardless of the nature of his/her offence, had to be treated as a human.

Prisoner who was held in custody in an overcrowded prison, having lack of sanitation, tantamounted to cruel and inhuman treatment for which the State ought to be accountable because it amounted to a breach of its fiduciary duty of care. Likewise, neglect of medical needs was a serious violation of Article 9 i.e. the right to life. It was undoubtedly embedded in Article 9 that every person in the legal custody of the State was,inter alia, treated in the manner contemplated in Rule 1065 of the Pakistan Prisons Rules, 1978 ('the Jail Manual') and the minimum standards set out in the other provisions of the Jail Manual. Moreover, it was a right of every person incarcerated in the prison to have access to medical care and medical opinion.

Abysmal conditions in overcrowded prisons, inhuman and degrading treatment of prisoners, and denial of prompt of timely health assistance was unconstitutional and a serious violation of the fundamental rights guaranteed under the Constitution andcommitments of the State of Pakistan under numerous ratified Conventions. It manifested a compromised, weak, ineffective and failing criminal justice system. It was not only a grave travesty of justice but also undermined the rule of law.

The living conditions in the prisons and the treatment of incarcerated prisoners was a violation of the law enunciated by the Holy Prophet Muhammad (SAW), who had said fourteen hundred years ago that it was better to let go a hundred guilty persons than to punish one innocent and this became embedded in Islamic law as the foundational principle of a fair trial i.e the presumption of innocence. It was beyond comprehension how many innocent persons must be subjected in the prisons across the country to inhuman and degrading treatment despite not having committed any crime. There was, therefore, an urgent need to reform the criminal justice system and it was the duty of every branch of the State i.e the Executive, Judiciary and the Legislature, to fulfil its commitments.

(e) Pakistan Prisons Rules, 1978---

----Rr. 143 & 145---Criminal Procedure Code (V of 1898), S. 401---Constitution of Pakistan, Art. 9---Prisoners, rights of---Scope---Power to remit sentence on basis of medical grounds---Purpose and scope---Purpose and object of Rr.143 & 145 of the Pakistan Prisons Rules, 1978 and S.401 Cr.P.C. was to empower the competent authorities and the Government to fulfil its duty of care towards the prisoners in safeguarding their most valuable and crucial fundamental right i.e. their right to life---Such fiduciary duty could not be neglected by the State and its functionaries---Duty of (prison) functionaries was to ensure that a prisoner suffering from a serious illness or disease was not only provided with the highest attainable standard of health services but, in exceptional circumstances, to suspend the sentence by exercising powers vested under the Pakistan Prisons Rules, 1978 read with S.401 of Cr.P.C.

(f) Pakistan Prisons Rules, 1978---

----Rr. 143 & 145---Criminal Procedure Code (V of 1898), Ss. 401, 426 & 497---Constitution of Pakistan, Art. 9---Prisoners, rights of---Scope---Prisoner invoking jurisdiction of court for bail/suspension of sentence on medical grounds---In such an eventuality a presumption would arise that executive authorities had failed to perform their functions and exercise powers stemming from obligations imposed under the law and the Constitution, and that the State was in breach of the fiduciary duty to safeguard the right to life of a person in its custody.

When a prisoner invoked the jurisdiction of a competent Court, seeking bail and suspension of sentence solely on medical grounds, then in such an eventuality, prima facie, it gave rise to a presumption that public functionaries on behalf of the State had failed in taking all reasonable steps stemming from their obligations under the Pakistan Prisons Rules, 1978 ('the Jail Manual') read with section 401, Cr.P.C, unless such presumption could be rebutted to the satisfaction of the Court. When cases ended up in the Courts relating to prisoners suffering from serious illnesses and disease and bail or suspension of sentence was sought, it manifested that the executive authorities had failed to perform their functions and exercise powers stemming from obligations imposed under the law and the Constitution. In such an eventuality the State was indeed in breach of the fiduciary duty to safeguard the right to life of a person in its custody. Every time an incarcerated prisoner or detainee approached a court raising a grievance of neglect, the onus would be on the State to show to the satisfaction of the court that its functionaries had not neglected the duty of care by at least fulfilling duties and obligations under the Jail Manual.

Deliberate indifference to serious medical needs of prisoners constituted the unnecessary and wanton infliction of pain.

Estelle v. Gamble [429 US 97, 50 L Ed 2d 251, 97 SCt 285] ref.

(g) Constitution of Pakistan---

----Art. 10-A---Public Defender and Legal Aid Office Ordinance (XXIV of 2009) [since lapsed], S. 14---Right to fair trial---Scope---Economically and socially underprivileged prisoners---Fundamental right of an incarcerated prisoner to have access to proper legal advice and a court of law---Lack of access to proper legal advice and the courts could result in miscarriage of justice---Courts had to ensure an effective mechanism so that the right of access to proper legal advice and the courts was not hampered.

Most of the prisoners belonged to economically and socially underprivileged classes. They were either illiterate or inadequately educated. Poverty and lack of resources prevented them from seeking proper legal advice, nor could they afford the high cost required for gaining access to the courts. The lack of access to proper legal advice and the courts made them the obvious victims of miscarriages of justice. If they were fortunate to apply for bail before a trial court and it was wrongly denied they had no option but to accept it as an act of fate and suffer the agony of incarceration because they could not afford the high cost of further litigation. Besides serious miscarriage of justice the constitutionally guaranteed right to a fair trial was violated. It was, therefore, a fundamental right of an incarcerated prisoner to have access to proper legal advice and a court of law. The duty of care that was owed by the State made it a constitutional duty to put in place an effective mechanism so that every prisoner had access to proper legal advice and the courts. It was also a duty of the courts to ensure an effective mechanism so that the right of access to proper legal advice and the courts was not hampered or denied.Promulgation of the Public Defender and Legal Aid Office Ordinance, 2009 was in conformity with the obligations of the State to ensure the right to a fair trial. The Federal Government was, therefore, directed to make the said enacted law operational at the earliest.

Denial of access to proper legal advice and courts, was unconstitutional and a violation of the commitments of the State of Pakistan under the ratified conventions and the constitutionally guaranteed rights.

(h) Constitution of Pakistan---

----Art. 19A---Pakistan Prisons Rules, 1978 ('the Jail Manual') --- Duty of State to keep prisoners informed about their rights --- Scope --- Duty of the State to provide every prisoner with information regarding the latter's rights in general and the Jail Manual in particular was implicit in Art. 19A of the Constitution because it owed him/her a duty of care---Such fiduciary duty made it mandatory for the State to keep the person in its custody informed about the rights provided under the Jail Manual---High Court directed that the Implementation Commission (formed during proceedings of present case) may propose to the respective Governments mechanism and modes for making prisoners aware of their rights and the minimum standards set out in the Jail Manual.

Nemo for Petitioner.

Respondents by:

Syed Muhammad Tayyab, Deputy Attorney General.

Saleem Murtaza, Additional Assistant General, Punjab.

Saddaqaat Ali Jahangir, State Counsel.

Shahida Parveen Sukhera and Fozia Azhar Advocates, for Ministry of Human Rights.

Ms. Shireen Mazari, Federal Minister for Human Rights, Islamabad.

Zafar Iqbal, Deputy Secretary, Ministry of Health, Islamabad.

Muhammad Arshat, Director General, Ministry of Human Rights, Islamabad.

Mian Zahid Mehmood, Law Officer Human Rights Affairs Depatment, Lahore.

P L D 2020 Islamabad 293

Before Miangul Hassan Aurangzeb, J

RAB NAWAZ and others---Petitioners

Versus

RUSTAM ALI---Respondent

Civil Revision No. 129 of 2019, decided on 4th December, 2019.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 22---Punjab Pre-emption Act (IX of 1991), Ss. 13 & 24---Suit for possession through pre-emption---Deposit of 'Zar-e-Soam' after statutory period---Effect---Applicability of Punjab Pre-emption Act, 1913, to the Islamabad Capital Territory and non-applicability of Punjab Pre-emption Act, 1991---Scope---Trial Court dismissed suit on the ground that plaintiff had not deposited Zar-e-Soem within a period of thirty days---Appellate Court remanded the matter for decision on merits after framing of issues and recording of evidence---Validity---Punjab Pre-emption Act, 1991 was confined to the Province of Punjab and it could not be extended to the Islamabad Capital Territory---Provisions of Punjab Pre-emption Act, 1913 were applicable to the Islamabad Capital Territory---Court in every suit for pre-emption should at any time before or at the settlement of issues require the plaintiff to deposit such sum not exceeding one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment if required of a sum not exceeding such probable value within such time as the Court might fix in such order---If pre-emptor had failed within the time fixed by the Court or within such time as the Court might allow to deposit or furnish the security then plaint should be rejected---Trial Court in the present case had not required the plaintiff to deposit one-fifth of the sale consideration but one-third by the next date of hearing---Pre-emptor had not applied to the Court for extension of time for deposit of Zar-e-Soem---Trial Court had not extended the time for deposit of Zar-e-Soem nor plaintiff had deposited the same within the time fixed by the Court---Trial Court had not committed any illegality by dismissing the suit of plaintiff in circumstances---Punjab Pre-emption Act, 1913 did not require the pre-emptor to deposit Zar-e-Soem but it required the deposit of Zar-e-Punjam of sale consideration---Pre-emptor had not deposited even Zar-e-Soem within the time fixed by the Trial Court---Deposit of Zar-e-Soem after thirty days would not exclude the pre-emptor from the penal consequences of S.22(4) of Punjab Pre-emption Act, 1913---Zar-e-Soem had not been deposited within the time fixed by the Trial Court---Trial Court was correct in dismissing the suit for pre-emption in circumstances---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Revision was allowed in circumstances.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Ahmed Bakhsh v. Nasir Khan PLD 2017 SC 674 and Malik Tariq Mehmood v. Ghulam Ahmed 2002 CLC 119 ref.

Islamabad Club v. Punjab Labour Court-II PLD 1981 SC 81 rel.

(b) Constitution of Pakistan---

----Arts. 89 & 264---Repeal of law---Ordinance which expired upon lapse of four months from the date of its promulgation without having been approved by Parliament would be considered to have been repealed.

(c) Interpretation of statutes---

----When Ordinance had amended or repealed a statute and thereafter it had expired then original statute would re-emerge.

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Sarghoda Bhera Bus Service Limited v. Province of West Pakistan PLD 1959 SC 127; Umar Mujeeb Shami v. District Magistrate/Deputy Commissioner, Islamabad 2003 CLC 430; Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 and Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 rel.

Ch. Asif Irfan, Shahid Munir and Umar Hayat for Petitioners.

Sajid Mehmood Chaudhary for Respondent.

P L D 2020 Islamabad 302

Before Athar Minallah, C J

IMRAN JAVED AZIZ and others---Petitioners

Versus

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

Writ Petition No.753 of 2020, decided on 6th March, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition---"Auart March"---International Women's Day---Scope---Petitioner sought restraining of Women Organizations from activities scheduled on International Women's day as the same would be violative of the injunctions of Islam---Validity---Words should not be given meanings according to the mindset of a certain section of society and that too contrary to the explanation given by proponents of the march---It was an opportunity for society to stand up and show outrage against inhuman traditions and mindsets which were in flagrant violation of the injunctions of Islam---High Court expected that the proponents of "Aurat March" would exercise their Constitutional rights in accordance with law having regard to conduct that was consistent with the norms of decency---Such was an opportunity for the Women Organizations to prove those who doubt their intentions wrong--- Tribal patriarchal traditions and societal norms, based on egos and obscure insecurities, which would offend the injunctions of Islam, had to be defeated through collective struggle so that no mother, sister or daughter could suffer agony of litigation to assert rights of inheritance nor innocent 'Zainabs' had to endure unthinkable pain and ag ony---Petition was dismissed in circumstances.

P L D 2020 Islamabad 306

Before Miangul Hassan Aurangzeb, J

JZ ENTERPRISES PVT. LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Communication, Government of Pakistan---Respondent

Writ Petition No. 2360 of 2019, decided on 29th January, 2020.

(a) National Highway Safety Ordinance (XL of 2000)---

----Ss. 43, 44, 75, 83 & Sched. VI---Axel load limit, compliance of---Damage to national highways---Principle of redundancy---Scope---Petitioner was a transport company who was aggrieved of suspension of implementation of axel load limit by government---Validity---No provision existed in National Highway Safety Ordinance, 2000 which empowered executive to either exempt or defer compliance with requirements of National Highway Safety Ordinance, 2000---Axel load limits were fixed by statute and not by an executive fiat and such limits could be altered only by Legislature by means of an amendment in National Highway Safety Ordinance, 2000 and not by executive alone---Requirements of provisions of National Highway Safety Ordinance, 2000 and reluctance on part of executive and statutory bodies to implement axel load regime were mutually exclusive and could not coexist---Provisions of National Highway Safety Ordinance, 2000 would override any order to the contrary issued by executive or executive bodies---Order in question being an executive order and contrary to provisions of National Highway Safety Ordinance, 2000 was not just unlawful but void and of no legal consequence---Implementation of axel load regime was not just a public duty but also a statutory obligation on part of executive as well as statutory bodies---Executive and statutory bodies could not attribute redundancy to statutory provisions by ignoring their duty and obligation to implement axel load regime under National Highway Safety Ordinance, 2000---High Court set aside letter in question whereby axel load campaign was delayed as it was issued without lawful authority and was without legal effect---Constitutional petition was allowed in circumstances.

Shahzada Sikandar ul Mulk V. Capital Development Authority PLD 2019 Isl. 365; Muhammad Nawaz v. Principal Secretary to the Prime Minister of Pakistan PLD 2017 Isl. 207; Azra Jamali v. Federation of Pakistan 2017 PLC (C.S.) 533; Maqbool Hussain Asif v. Secretary, Local Government and Rural Development Department, Government of the Punjab 2006 PLC (C.S.) 1283 and Iftikhar Ahmad v. The Collector, Lyallpur PLD 1960 Lah. 736 ref.

Qaiser Javed Malik v. Pervaiz Hameed 2009 SCMR 846; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 SC 779; Shoukat Baig v. Shahid Jameel PLD 2005 SC 530; Collector of Sales Tax and Central Excise v. Mega Tech. (Pvt.) Ltd. 2005 SCMR 1166; Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219; D.G. Khan Cement Company Limited v. Federation of Pakistan 2004 SCMR 456 and M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225 and Iftikhar Hamayun v. National Highways and Motorways Police 2008 YLR 1614 rel.

(b) Interpretation of statutes---

----Mandatory provision---Precondition---When a provision of law is couched with penal consequences, then such a provision is considered as mandatory.

Saadat Khiyali, Ex-Chief Editor, Daily Mashriq, Lahore v. City Coordination Officer, City District Government, Lahore PLD 2005 Lah. 190 and State Life Insurance Corporation of Pakistan v. Director General, Military Lands and Cantonment, Rawalpindi 2005 SCMR 177 rel.

Arif Chaudhary for Petitioner.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General for Respondents.

Ms. Tayyaba Abbasi, Advocate and Asad Rehman, Assistant (Legal) for Respondent No.2/N.H.A.

Kashif Ali Malik Amicus Curiae.

Ch. Mushtaq Ahmad Khan for Applicants (in C.M.As.Nos.3827 and 2829 of 2019).

Barrister Saad Shuaib Wyne and Wasi Ullah Khan and Ghazi Khan for Applicants (in C.M.As.Nos.3826 and 2833 of 2019).

P L D 2020 Islamabad 319

Before Miangul Hassan Aurangzeb, J

CREATIVE ELECTRONICS (PVT.) LIMITED---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Prime Minister and others---Respondents

Writ Petition No. 3542 of 2019, decided on 16th March, 2020.

(a) Public Procurement Rules, 2004---

----Rr. 4, 5 & 23(8)---Public Procurement Regulatory Authority Ordinance (XXII of 2002) S. 26---Public Procurement Regulations, 2008, Regln. 3---Pakistan Engineering Council Act (V of 1975), S.25---Pakistan Engineering Council Construction and Operation of Engineering Works Byelaws 1987, Cl. 7(2)---Public procurement---Principles---International and inter-governmental commitments of Federal Government---International treaty or agreement to prevail to extent of conflict between such treaty/commitment and Public Procurement Rules, 2004---Standard Bidding Documents, deviation from---Projects financed under loan from International Financial Institutions---Scope---Question before High Court was whether a bidding process initiated by respondent Electricity Supply Company was liable to be annulled due to non-adoption of standard form of bidding documents issued by Pakistan Engineering Council and absence of requirement that foreign bidders were to only bid as joint-ventures with local firms registered with Pakistan Engineering Council---Contention of petitioner, inter alia, was that such requirements were mandatory under the Public Procurement Rules, 2004 and Pakistan Engineering Council Construction and Operation of Engineering Works Byelaws, 1987---Validity---Project for which procurement was sought was being financed by funds provided by Asian Development Bank under a loan agreement with Federal Government and R. 5 of Public Procurement Rules, 2004 gave primacy to obligation or commitment of Federal Government arising out of an international agreement with an international financial institution over the Public Procurement Rules, 2004---Provisions of Asian Development Bank Procurement Guidelines therefore had primacy over provisions of R.23(4) of Public Procurement Rules, 2004 as well as over requirements of Pakistan Engineering Council byelaws, which even otherwise did not apply to the tender/procurement in question---Constitutional petition, being without merit, was dismissed, in circumstances.

Debendra Bandhu Lahiri v. The State of West Bengal AIR 1952 Cal. 808 rel.

(b) Interpretation of statutes---

----"Proviso", function, object and scope---Construction of a proviso to a statutory provision---Principles---Function of proviso was to except something out of an enactment or to qualify something enacted therein, which, but for the proviso, would be within purview of such enactment---General rule in construing an enactment containing proviso was to construe them together without making either redundant or otiose---Enacting part, even if same was clear; an effort was to be made to give some meaning to proviso and justify its necessity and such proviso had to be strictly construed.

Mst. Nawab Bibi v. Ch. Allah Ditta 1998 SCMR 2381; Sheikh Abdul Hakeem v. Shamsuddin PLD 2008 Quetta 14; Lubna Afzal v. Union Bank Limited 2003 CLD 868; Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh 2006 SCMR 100; Messrs Hamdard Dawakhana v. Commissioner Income-Tax, Karachi PLD 1980 SC 84; Messra Tariq Brothers v. Collector of Customs 2005 PTD 186; Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality AIR 1944 Privy Council 71; Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Siniha AIR 1961 SC 1596; Mullins v. Treasurer of Survey (1880) 5 QBD 170 and Local Government Board v. South Stoneham Union 1909) AC 57 (HL) rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Mandamus, writ of---Scope---High Court, while exercising equitable jurisdiction under Art. 199 of the Constitution could take into consideration a petitioner's conduct, in allowing or disallowing relief---Issuance of writ of mandamus was equitable and therefore Court on being approached may refuse to grant relief unless petitioner's conduct was free from blame and conduct of such party should be fair and honest---Obligatory upon Court exercising equitable jurisdiction to impose costs on a litigant for unprincipled conduct.

National Accountability Bureau v. Messrs Hudaibya Paper Mills Limited PLD 2018 SC 296; Ghansham Das v. Federation of Pakistan 2017 PLC (C.S.) 191; Javed Ali v. Mst. Shabiran 2010 MLD 943; Nadir Ali v. Secretary, Regional Transport Authority, Faisalabad PLD 2006 Lah. 298; Haji Arbab Ali v. Deputy Director, SASO 1996 CLC 245; Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Nadeem Akhtar Khan Niazi v. Zila Council, Khanewal 1999 YLR 685; Pakistan Herald Publications Private) Ltd. v. Federation of Pakistan 1998 CLC 65; Muhammad Yaqoob v. Muslim Commercial Bank 2002 PLC 158; Shah Rehman v. The State 2003 MLD 714 and Shams Din v. Additional Settlement Commissioner, Lahore 1985 MLD 1266 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public interest litigation---Public procurement---Laches---Scope---In procurement process for award of public contracts, delay due to litigation could cause huge loss to public exchequer---Petitioners, invoking Constitutional jurisdiction of High Court with personal or financial interest in a public procurement process, who claim to be public interest litigants, could not be permitted to challenge with impunity bidding processes initiated by public agencies---Delay in approaching High Court under Art. 199 of the Constitution to initiate public interest litigation could be held to be a valid defence on which such litigation may be defeated.

Echo West International (Pvt.) Ltd. v. Government of Punjab 2009 CLD 937; R & M Trust v. Koramangala Resi. Vigilance AIR 2005 SC 894 and Dattaraj Nathuji Thaware v. State of Maharashtra (2005) 1 SCC 590 rel.

Tahir Maqsood Butt for Petitioner.

Muhammad Asif Khan for I.E.S.C.O./Respondent No.3

Shehzad Ata Elahi and Shameer Naveed for Respondent No.5.

Muhammad Khurshid, Deputy Director, P.P.R.A.

Noor-ul-Najam representative of P.P.R.A.

P L D 2020 Islamabad 338

Before Athar Minallah, C.J.

M. TARIQ ASAD, ADVOCATE SUPREME COURT---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary and 6 others---Respondents

Writ Petition No. 1712 of 2020, decided on 1st July, 2020.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Judicial restraint---Scope---Judicial review must remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches (organs) of the State---Courts exercised judicial restraint when a matter related to public policy decision or when the scheme of the Constitution provided for effective forums and accountability mechanism.

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466 and Brig. (R) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

(b) Constitution of Pakistan---

----Arts. 63 & 91(6)---Civil Aviation Rules, 1994, Rr. 36 & 37---Constitutional petition seeking disqualification of Federal Minister for Aviation for making public statements regarding the alleged irregularities in certification and licensing of pilots by the Civil Aviation Authority ('the CAA')---Plea that statements made by the respondent-Minister were factually incorrect and irresponsible; that such statements led to suspension of the operations of the national airline, Pakistan International Airline Corporation ("PIA") abroad causing irretrievable loss to the airline and the reputation of those citizens who were professional 'pilots'; that the respondent-Minister should be declared as having become disqualified to hold public office under Art. 63 of the Constitution---Held, that by intervening in the matter, the Court would be demonstrating its lack of trust in the accountability mechanism prescribed in the Constitution and the principle of collective responsibility of the Cabinet---Senate, National Assembly, the Prime Minister and members of the Cabinet were empowered to hold a member accountable, if the latter was found to have violated his oath or his/her acts or omissions had prejudiced the interests of the people of Pakistan or the State---High Court exercising judicial restraint did not interfere in the matter and left it to the Prime Minister and members of the cabinet to proceed against the Minister or the regulator, if the latter were found involved, in any manner, to have caused harm to the interests of the State or the reputation of professional pilots and the national flag carrier.

The Prime Minister and members of his cabinet were chosen representatives and they were answerable to the people of Pakistan for their performance, acts and omissions. Representing the executive, they were expected to take decisions and act in accordance with the oath administered under the Constitution.

In the present case, there was no reason for the Court to doubt that the Prime Minister and other members of the Cabinet would not be aware of the sensitivity of the matter and its serious implications for the image of Pakistan, the reputation of professional pilots and the national carrier ('PIA'), which in the past was acknowledged as one of the best in the aviation industry worldwide. The Court would definitely not be justified to assume that the Prime Minister and members of the cabinet would ignore or fail to take appropriate action on the basis of the principle of collective responsibility, if the acts and omissions of respondent-Minister for Aviation, were in any manner found to have harmed the reputation of the national flag carrier (PIA) and the professional pilots licensed by Civil Aviation Authority (CAA), whether rendering services in Pakistan or abroad. Moreover, it could also not be assumed that the Senate or the National Assembly would fail in its constitutional duty under sub-Article (6) of Article 91 of the Constitution to hold a Minister accountable.

By intervening in the matter, the Court would be demonstrating its lack of trust in the accountability mechanism prescribed in the Constitution and the principle of collective responsibility of the Cabinet, which was the foundation of the parliamentary system of governance. The Senate, National Assembly, the Prime Minister and members of the Cabinet were not only empowered but it was their constitutional duty to hold a member accountable, if the latter was found to have violated his oath or his/her acts or omissions had prejudiced the interests of the people of Pakistan or the State. Intervention in the matter would amount to bypassing the scheme of accountability of a member of the Cabinet prescribed under the Constitution and undermine the principle of collective accountability of the Cabinet.

High Court exercising judicial restraint did not interfere in the matter and observed that it was confident that the Prime Minister and members of the cabinet would not hesitate in proceeding against a Minister or the regulator, if the latter were found involved, in any manner, to have caused harm to the interests of the State or the reputation of professional pilots and the national flag carrier. Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court under Art. 199 of the Constitution---Scope---Such jurisdiction was discretionary and its exercise could be refused in appropriate cases.

Secretary to the Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi PLD 2001 SC 415 ref.

P L D 2020 Islamabad 343

Before Miangul Hassan Aurangzeb, J

Messrs LABBAIK (PVT.) LTD.---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman---Respondents

F.A.O. No. 15 of 2020, decided on 16th March, 2020.

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

----Ss. 27, 29 & 30A---Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, Cl. 3---Constitution of Pakistan, Art. 10A---Prohibition of broadcast media or distribution service operation---Non-adherence to commonly accepted standards of decency---Nature of prohibitory powers of Pakistan Electronic Media Regulatory Authority (PEMRA) under S.27 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Scope---Appellant Television Broadcaster impugned order of PEMRA passed under S.27 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, whereby a programme was prohibited from being aired and such prohibition was also placed on anchor/host of said programme---Contention of appellant, inter alia, was that impugned order was passed without affording appellant opportunity of hearing and was against principles of natural justice and offended Art.10A of the Constitution---Validity---Perusal of transcript of programme revealed that same did not preserve national, cultural, social and religious values and was offensive to commonly accepted standards of decency and Islamic values---Opportunity of hearing was provided to appellant but appellant did not avail the same and kept seeking adjournments, and enough indulgence was shown to appellant by PEMRA on rescheduling/adjourning of personal hearing---High Court observed that S.27 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 did not empower PEMRA from prohibition of an anchor or host of a programme and prohibitory order under said section could only be passed against "broadcast, media or distribution service provider" and therefore prohibition on the host was liable to be set aside---Appeal was disposed of, accordingly.

Muhammad Ali v. State Bank of Pakistan 1973 SCMR 140; Afzal Masih alias Noori Masih v. The State 2004 MLD 970; Malhar v. Government of Sindh 2005 CLC 285 and Messrs Evernew Agencies v. Customs, Central Excise and Sales Tax Appellate Tribunal, Lah. 2006 PTD 207 rel.

Water and Power Development Authority, Lahore v. Messrs Bhatti Ice and Rice Mills, Buchiki 2004 YLR 1263 distinguished.

Raja Rizwan Abbasi, Naila Noreen, Ch. Ghulam Ashraf Goraya, Muhammad Zaheer and Raaz Ali Shah for Appellant.

Tahir Farooq Tarar and Yahya Farid Khawaja for Respondent/P.E.M.R.A.

P L D 2020 Islamabad 352

Before Athar Minallah, C.J.

Mian MUHAMMAD ASLAM---Petitioner

Versus

FEDERATION OF PAKISTAN through President and 4 others---Respondents

Writ Petition No. 1720 of 2020, decided on 1st July, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition challenging the increase in price of petroleum products by the Federal Government---Policy decision---Domain of the executive---Prices of petroleum products had nexus with the economic conditions and policies of the executive, thus it fell within the exclusive domain of the executive branch of the State---Courts were neither equipped nor had the expertise to intervene or adjudicate upon matters relating to economic policies of the executive, particularly fixation of prices of essential commodities---Court had to trust the elected representatives and their bona fides in formulating policies unless it could be demonstrably shown otherwise---In the present case nothing had been placed on record to indicate that a case was made out for interference by the Court---Constitutional petition was dismissed as being not justiciable.

Grievance of the petitioner was regarding increase in prices of petroleum products by the Federal Government. The pricing of a commodity involved several factors and was obviously directed by market forces. It had nexus with the economic conditions and policies of the executive. It thus fell within the exclusive domain of the executive branch of the State. The executive was led by elected representatives and they were accountable to the people for their policies and its consequences. No executive would willingly invite the wrath of the people by allowing increase in prices of essential commodities through deliberate or reckless decisions. It was also unimaginable that elected representatives would not want to keep the electorate content by ensuring availability of essential commodities at affordable prices. The Courts were neither equipped nor had the expertise to intervene or adjudicate upon matters relating to economic policies of the executive, particularly fixation of prices of essential commodities.

By entertaining the present petition, the Court would be travelling beyond the limits prescribed by the Constitution and intruding in the domain of the executive without being competent to adjudicate the matter. The grievance of the petitioner was regarding an issue, which exclusively fell within the domain of the executive and the policies framed by the latter from time to time.

Court had to trust the elected representatives and their bonafides in formulating policies unless it could be demonstrably shown otherwise. In the present case, nothing had been placed on record to indicate that a case was made out for interference by the Court in a matter, which exclusively fell within the domain of the executive. In the circumstances the prayers sought were not justiciable. Moreover, the matter was of a nature that the Court ought to exercise utmost restraint because intervention would prejudice the policies and actions of the executive in dealing with the challenges that related to the economy. Constitutional petition was dismissed.

P L D 2020 Islamabad 357

Before Miangul Hassan Aurangzeb, J

MUJAHID PERVEZ---Petitioner

Versus

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

Writ Petition No. 2690 of 2019, decided on 15th April, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Extradition Act (XXI of 1972), Ss. 7 & 12---Extradition to a foreign country to stand trial---Bail, grant of---Medical grounds---Advanced age of accused---Inability of authorities from foreign country to take custody and transfer accused abroad due to COVID-19 ('Corona virus') concerns---Accused was alleged to have been involved in offences related to corruption in a foreign country (U.S.A.) and was wanted in said foreign country to stand trial---Held, that there was nothing preventing the Federal Government to extradite the accused to the foreign country in question---Matter regarding the extradition of accused had been placed before the Federal Cabinet but no decision was taken because the agenda item had been dropped---Ministry of Interior requested the Director General, F.I.A. to take the accused's custody from jail and hand him over to authorities from the foreign country---Warrant for custody of accused and his removal under the provision of the Extradition Act, 1972 was also sent---However, an email from the Embassy of the foreign country was brought on record, according to which, there would be a delay in the ability of the foreign country to take accused into custody and transfer him abroad due to COVID-19 ('Corona virus') concerns---Furthermore accused was 70 years of age and suffered from cardiac ailment---Persons of advanced age, such as the accused, were more susceptible to contract COVID-19 due to their low immunity---Prima facie, the intent behind section 12 of the Extradition Act, 1972 was that a fugitive offender should be discharged if he was not conveyed out of Pakistan two months' after he had been taken into custody to await his surrender--- In view of such circumstances and in particular the position taken by the Embassy of the foreign country that there would be a delay in their ability to take the accused into custody and transfer him abroad, the application filed by accused for post-arrest bail was allowed with the directions that he shall appear before the Deputy Registrar (Judicial) of the High Court on a fortnightly basis and shall not leave Islamabad Capital Territory without the permission of the High Court; that the accused shall tender appearance before the High Court on every date of hearing, and in the event he violated any of the said conditions, the Ministry of Interior and/or the F.I.A. may apply for the recall of present bail granting order.

Qaiser Imam for the Applicant/Petitioner.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

Shoukat Ali Khan, Section Officer (F.I.A.), Ministry of Interior.

P L D 2020 Islamabad 361

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

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY and another---Appellants

Versus

Messrs MOON TRADERS and another---Respondents

R.F.A. No. 73 of 2009, decided on 20th April, 2020.

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

----O.IX, R.13 & S.96---Ex parte decree, setting aside of---Remedies---Principle of election of remedy---Scope---To get an ex parte decree set aside defendant had two remedies; either by way of filing application under O.IX, R.13, C.P.C. or by filing appeal under S.96, C.P.C., and scope of inquiry under both was entirely different---Once a party chose to avail one of two remedies, principle of election would come into play and other remedies against an ex parte decree could not remain available simultaneously---Application, if filed under O.IX, R.13, C.P.C. to set aside ex parte decree, then dismissal of such application would not preclude Appellate Court from deciding appeal on merits, but was precluded from adjudication on legality of order of Trial Court to proceed ex parte against defendant---When an application under O.IX, R.13, C.P.C. was dismissed, then matter regarding order to proceed ex parte against defendant would be hit by res judicata and could not be reagitated in appeal before Appellate Court---Where an application under O.IX, R.13, C.P.C. to set aside ex parte decree was allowed, then appeal filed against such ex parte decree became infructuous---Dismissal of appeal against an ex parte decree accordingly would render an application under O.IX, R.13, C.P.C. to set aside such ex parte decree, as non-proceedable and infructuous.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited PLD 2018 SC 828 and Zafar v. Ghulam Muhammad 2005 CLC 525 rel.

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

----O. IX, Rr. 6 & 7---Appearance of parties and consequence of non-appearance---Ex parte proceedings in a suit---Re-joining of proceedings by party proceeded against ex parte---Scope---Party, which joined the proceedings, and was subsequently proceeded against ex-parte, could rejoin the proceedings.

Azizullah Khan v. Arshad Hussain PLD 1975 Lah. 879 and Col. (Retd.) Nadeem Shafique Raja v. Jamshed Khan Barki 2017 CLC 1512 rel.

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

----O. IX, Rr. 6 & 7---Appearance of parties and consequence of non-appearance-Ex parte decree, passing of---Duty and obligation of Trial Court -- Maxim "Ex debito justitiae"---Scope---Every court dealing with an ex parte case should take good care to see that plaintiff's case was at least prima facie proved---Mere absence of defendant did not justify presumption that whole of plaintiff's case was true---Fact that defendant was absent and had not joined proceedings did not lessen plaintiff's burden and plaintiff must adduce all evidence which under any circumstances satisfy the court that plaintiff's claim was genuine---Where plaintiff failed to make out a prima face case, defendant was entitled ex debito justitiae to have decree set-aside.

Farzand Raza Naqvi v. Muhammad Din 2004 SCMR 400; East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663; Akhtar Nawaz v. Mrs. Sanjeeda Khatoon 2003 MLD 61 and BASF Pakistan (Pvt.) Ltd. v. Tanocraft Limited PLD 2003 Kar. 598 rel.

Muhammad Atif Khokhar for Appellants.

Saadia Abbassi and Muhammad Islam Sandhu for Respondent No.1.

P L D 2020 Islamabad 372

Before Athar Minallah, C.J.

ZOOM MARKETING OILS (PVT.) LIMITED through Authorized Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy and 3 others---Respondents

Writ Petition No. 1590 of 2020, decided on 25th June, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial restraint---Scope---Exercising judicial restraint in matters which fall within the exclusive domain of the Executive and for which the latter is answerable to the people of Pakistan is inherent in the scheme of the Constitution---Judges are not representatives of the people nor accountable for those functions that fall within the exclusive domain of the Executive branch of the State---In such matters intervention is only justified if an aggrieved petitioner can demonstrably show violation of Constitutionally guaranteed rights---Interests of the public at large do not prevail over individual rights or interests---Executive is answerable to the people for performance of its duties and functions assigned under the scheme of the Constitution---Executive should be free from unnecessary interference and intrusions warranting exercise of judicial restraint.

Dosani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Nottinghamshire C.C. v. Secretary of State (1986) (All) ER 199, 204; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 and 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 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Judicial restraint, principle of---Applicability---Petrol crisis---Petitioner companies sought indulgence of High Court against the proceedings initiated by authorities to inquire into shortage of petrol in market, after its prices were reduced---Validity---In view of the nature of crisis and its public importance judicial restraint was exercised---Intervention of High Court in any manner could impede or interfere with the functions, duties and obligations of executive authorities having consequences for the general public---High Court expected that the Executive authorities while conducting probe/inquiry would proceed strictly in accordance with law, in fair and transparent manner and would avoid causing unnecessary harassment to officials/employees of petitioner companies---High Court further expected that the authorities would regard principles of fair trial and would refrain from making statements that could prejudice rights of the petitioner companies---High Court also expected that petitioner companies would cooperate in the matter so that inquiry/probe could be concluded at the earliest---Petition was disposed of accordingly.

Abid Saqi and Ali Sibtain Fazli for Petitioners (in their respective petitions).

Tariq Mehmood Khokhar, Additional Attorney General.

Syed Muhammad Tayyab, Deputy Attorney General.

Saqlain Haider Awan, A.A.G. for Respondents.

Muhammad Shoaib for OGRA.

Usman Arif Rai, Dy. Director M/O Petroleum.

P L D 2020 Islamabad 378

Before Miangul Hassan Aurangzeb, J

NATIONAL INSTITUTIONAL FACILITATION TECHNOLOGIES (PVT.) LIMITED through duly Authorized Officer---Petitioner

Versus

The FEDERAL BOARD OF REVENUE through Chairman and 7 others---Respondents

Writ Petitions Nos. 3995, 4395 and C.M. No.5478 of 2019, decided on 5th May, 2020.

(a) Public Procurement Rules, 2004---

----Rr. 22 & 30---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Public contract/licence---Bid submitted by a consortium of companies---Constitutional petition challenging approval of competitor's bid filed by only one of the parties to the consortium---Whether such petition was maintainable---For a petitioner to seek judicial review of the process for the award for a contract or grant of a licence by the State or its instrumentality it was not even required for it to be a bidder---Rank outsider or a public interest litigant could also invoke the jurisdiction of the High Court under Art.199 of the Constitution for the judicial review of the process adopted by an instrumentality of the State for the award of a contract---Constitutional petition filed by only one of the parties belonging to a consortium to the exclusion of others was maintainable.

Afzal Motors (Pvt.) Ltd. v. Higher Education Archives and Libraries Department 2010 CLD 1182; Zahir Enterprises v. Government of Balochistan 1999 MLD 3112 and Tera Software Ltd. v. Director of School Education, Hyderabad 2002 (2) ALD 688 ref.

S.I.S. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 2018 Isl. 150 distinguished.

(b) Public Procurement Rules, 2004---

----Rr. 22 & 30---Public contract/licence---Bid submitted by a consortium of parties---Principles---If a bid was submitted by or on behalf of a consortium and if such a consortium was evaluated as the most responsive bidder, then the contract was to be executed by the procuring agency with the members of such consortium or their authorized representative/attorney---Consortium member on the basis of whose credentials the procuring agency declared the consortium as the most responsive bidder, was to be made a party to the contract for which the procurement process was carried out---Such a consortium member could not be permitted to exit the contractual scheme even after the award of the contract---One member of a consortium could not be permitted to piggyback on the financial and technical ability of another member of the consortium and not make such a member a party to the contract---Additionally, privity of contract between the procuring agency and all the members of the successful consortium must exist for the entire duration of the contract.

Ishaq Khan Khakwani v. Railway Board PLD 2019 SC 602 and Wattan Party v. Federation of Pakistan PLD 2006 SC 697 ref.

(c) Constitution of Pakistan---

----Art. 199---Decision of public authority to award a contract---Judicial review---Scope---In such matters, the scope of judicial review by the High Court was limited and Courts were, generally, slow to interfere, however, the discretion of a public authority in contractual matters was not unfettered---State, its corporations, instrumentalities and agencies had the public duty to be fair to all concerned---Limited scope of judicial review envisaged examination of the question whether there were any mala fides, arbitrariness, material irregularity, or unreasonableness in the decision-making process leading to the award of the public contract---Judicial review was concerned with reviewing not the merits of the decision by an executive authority, but the decision-making process leading to the award of a public contract---Court could examine the decision-making process and interfere if it was found vitiated by mala fides, unreasonableness, arbitrariness, or material irregularity---Before interference the Court had to be satisfied that the decision was such that no responsible authority acting reasonably and in accordance with the relevant law could have reached.

Iqtedar Ali Khan v. Department of Mines and Minerals PLD 2004 SC 773; Kay Bee International (Pvt.) Ltd. v. Secretary to the Government of Punjab PLD 2002 SC 1074; Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi PLD 2001 SC 116; Airport Support Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi 1998 SCMR 2268; Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. 1998 CLC 1890; Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipelines 2004 SCMR 1274 and Mia Corporation (Pvt.) Ltd. v. Pakistan PWD PLD 2017 Isl. 29 ref.

(d) Public Procurement Rules, 2004---

----R. 31---Civil Procedure Code (V of 1908), S. 153 & O.VI, R. 17---Secretariat Instructions, 2004 [issued in pursuance of Rule 5(15) of the Rules of Business, 1973], Instruction No. 38---Clarifications of bid---Scope---Licence for establishing, maintaining, and operating track and trace system for tobacco products---Bid documents---Financial bid submitted by respondent-company containing a negligent mistake---Law and Justice Division ('the Law Division') giving Grievance Redressal Committee('the GRC') (formed for addressing grievances of bidders),two contradictory opinions, with the second opinion based on 'irrelevant' case-law, on the issue of allowing respondent-company to correct mistakes in its financial bid---Held, that the Federal Board of Revenue's (FBR) decision to grant the licence to respondent-company was based on the GRC's decision, which in-turn was solely based on the Law Division's (second) opinion based on "irrelevant" case-law, therefore, the entire edifice raised on the basis of the said opinion was liable to crumble---Respondent company's request for the correction of the mistake in its financial bid could not be treated as an application under O.VI, R.17, C.P.C., nor could the GRC arrogate to itself powers of the Court akin to S.153, C.P.C.---In terms of Instruction No. 38 of the Secretariat Instructions, 2004 (made in pursuance of R.5(15) of the Rules of Business, 1973) a matter could be returned by the Revenue Division to the Law Division upon disclosure of a difference of opinion between the two Divisions---However in the present case the GRC letter to the Law Division did not disclose any difference of opinion between the Law Division and the Revenue Division with respect to the Law Division's first opinion, therefore requirements of Instruction No.38 had not been satisfied for the matter to be referred back to the Law Division or for the Law Division to have given a fresh opinion which was contrary to its first one---Respondent-company was negligent in not submitting its financial bid in accordance with the requirements of the Invitation for Licencing (IFL)---Mistake committed by respondent-company in its financial bid could not be termed as inconsequential since its correction would have the consequence of fundamentally changing the amount quoted in the financial bid, and it could also not be termed as a "typographical slip" since the amount allegedly mentioned by mistake, was hand written---Process adopted for allowing respondent-company's request for the correction of the mistake in its financial bid suffered from material irregularity and unreasonableness---Letter from FBR whereby the licence was granted to respondent-company was set-aside with the directions that the FBR was at liberty to initiate a fresh bidding process strictly in accordance with the law---Constitutional petitions were allowed.

Federal Board of Revenue (FBR) published an advertisement inviting applications for the grant of a five-year licence to be issued under the Sales Tax Rules, 2006 ('2006 Rules') for the development, maintenance and operation of a track and trace system for tobacco products in Pakistan in accordance with the provisions of the Sales Tax Rules, 2006 and the Invitation for Licencing ("IFL") issued by the FBR. The bidding was to be through a single-stage: two-envelope procedure. According to Annex-6 of the IFL, the bidders were required to quote a price for 1,000 stamps with unique identification marks. Petitioner-company in its bid quoted Rs.868.36/- per 1,000 stamps, whereas respondent-company had quoted Rs.0.731 per 1,000 stamps. When the bid evaluation report was prepared and posted, respondent-company informed the Grievance Redressal Committee (GRC) set up by FBR that as a result of an oversight, it had quoted Rs.0.731, and that the said unit price when multiplied by 1,000 came to Rs.731 per 1,000 stamps. Grievance Redressal Committee (GRC) sought comments from the Law and Justice Division ('the Law Division'), which in its opinion ('the first opinion') stated that written or verbal explanation could not be taken as part of the bid, therefore, the bid shall be examined as it was submitted; that the explanation given by the respondent-company tantamount to changing the bid price from Rs. 0.731 per 1000 stamps to Rs. 731 per 1000 stamps which was a clear cut change; and that the FBR should decide the issue in line with applicable Public Procurement Rules, 2004. Federal Board of Revenue on the very same day requested the Law Division to recall its (first) legal opinion and tender an opinion in consonance with the case-law, if the case-law from the Superior Courts was at variance with its (first) opinion. Law Division, after re-examining the matter, issued a "second opinion" based on certain precedents of the Supreme Court stating that respondent-company's stance fell within the ambit of Rule 31 of the Public Procurement Rules, 2004; that its bid contained an obvious arithmetical and accidental typographical error, and that respondent-company's quoted price may be read as Rs.731 per 1,000 stamps instead of Rs.0.731 per 1,000 stamps. On the basis of the second opinion from the Law Division, the GRC accepted respondent company's representation for the correction of its quoted price from Rs.0.731 per 1,000 stamps to Rs.731 per 1,000 stamps. All of this culminated into the FBR issuing a letter whereby it granted the licence to respondent-company at a price of Rs.731/- per 1,000 stamps for a period of five years subject to terms and conditions as stipulated in the Licencing Rules, 2019, Invitation for Licencing ("IFL") and other relevant laws. Petitioner-company, assailed the letter whereby the FBR granted the licence to the respondent-company.

Counsel for the FBR admitted that the judgments of the Supreme Court on which reliance had been placed by the Law Division in giving its second opinion, were "irrelevant". This struck at the root of the Law Division's second opinion and rendered it flawed and unreliable. An opinion based on irrelevant case-law would not be worth the paper it was written on. Since the FBR's decision to grant the licence to respondent-company was based on the GRC's decision, which in-turn was solely based on the Law Division's second opinion, and since the said opinion was based on "irrelevant" case-law, the entire edifice raised on the basis of the said opinion was liable to crumble.

Neither could respondent company's request for the correction of the mistake in its financial bid be treated as an application under Order VI, Rule 17 C.P.C., nor could the GRC arrogate to itself powers of the Court akin to section 153 C.P.C., which empowered the Court to amend any defect or error in any proceeding in a suit for the purpose of determining the real question or issue raised by or depending on such proceeding. The FBR or the GRC were not a Court of justice and did not have the powers of a Civil Court under section 153, C.P.C.

Pallipurayil Asan Kutti v. Mukkolakkal Koyyaman Kutti AIR 1937 Mad. 342 ref.

The issuance of contradictory opinions or the issuance of a legal opinion based on "irrelevant" case-law diminished the credibility of the Law Division.

Law Division attempted to justify a prompt U-turn in giving a second opinion, which was in stark contract to its first opinion of the same day, by pleading that it could reconsider its first opinion by exercising powers under Instruction No.38 of the Secretariat Instructions, 2004. The Secretariat Instructions, 2004 were issued by the Establishment Division in pursuance of Rule 5(15) of the Rules of Business, 1973 for the disposal of business in the Federal Secretariat. Perusal of Instruction No. 38 showed that the matter could be returned by the Revenue Division to the Law Division upon disclosure of a difference of opinion between the two Divisions. The GRC letter to the Law Division did not disclose any difference of opinion between the two Divisions. Vide the said letter, the GRC simply asked the Law Division to "cite the case-law and judgments to substantiate" the first opinion, and if the case-law was at variance, to recall the said opinion and tender an advice in consonance with the case-law. Since the said letter from the GRC or any other document on the record did not disclose any difference of opinion between the Law Division and the Revenue Division with respect to the Law Division's first opinion, the requirements of Instruction No.38 had not been satisfied for the matter to be referred back to the Law Division or for the Law Division to have given a fresh opinion which was contrary to its first one.

All these circumstances of the present case and, in particular a 'no' from the Law Division turning into a 'yes' in one day on the basis of a difference of opinion or disagreement with the FBR (which the FBR chose not to disclose in its written comments), cast a reasonable doubt on the transparency of the process culminating in the decision to accept respondent company's grievance petition and to award the licence to it, which rendered the decision to grant the licence to respondent-company unlawful.

The Invitation for Licencing (IFL) was a document of central significance in explaining how the bidders were to bid for the tender. Annex-6 to the IFL in clear and unambiguous terms required the bidders to quote the price for 1,000 tax stamps with unique identification markings. All the bidders, except the respondent-company, understood the requirements in Annex-6 to the IFL. No explanation was presented by the respondent-company as to why it could not comprehend the plain and simple requirements in Annex-6 to the IFL. Clearly, the respondent-company was negligent in not submitting its financial bid in accordance with the requirements in Annex-6 to the IFL. Had the respondent-company been vigilant in checking their bid documents before submitting them, the mistake in its financial bid could have been averted. This was not a case where respondent-company was seeking a reasonable opportunity to correct an obvious mistake in its bid. The mistake committed by respondent-company in its financial bid could not be termed as inconsequential since its correction would have the consequence of fundamentally changing the amount quoted in the financial bid from "Rs.0.731 per 1,000 stamps" to Rs.731/- per 1,000 stamps". It could also not be termed as a "typographical slip" since the amount, "Rs.0.731" in respondent company's financial bid was hand written.

Clarification that respondent-company sought to make with respect to its financial bid went beyond clarifying an ambiguity therein but extended to rewriting the amount quoted in the financial bid. The GRC by allowing respondent company's application to treat its financial bid as Rs.731/- per 1,000/- stamps instead of Rs.0.731 per 1,000 stamps, offended the principles of equality and transparency, and in fact permitted respondent-company an opportunity to improve its bid. This advantageous treatment was given to respondent-company after the financial bids of the technically qualified bidders had been made known and after the evaluation report had been issued.

Muhammad Ayub and Brothers v. Capital Development Authority PLD 2011 Lah. 16 ref.

Admittedly respondent-company had raised a host of queries with respect to the IFL prior to the date fixed for the submission of the bids. The FBR through a consolidated document, provided clarifications to queries raised by respondent-company as well as the other bidders. If the respondent-company was under any doubt whether Annex-6 of the IFL required the bidders to quote an amount for one stamp or 1,000 stamps, it could have sought a clarification from the FBR in the pre-bid conference. This showed that respondent-company understood the requirements in plain and unambiguous language in Annex-6 to the IFL that a bidder was required to quote an amount for 1,000 stamps. Respondent-company with its eyes open, had quoted Rs.0.731 per 1,000 stamps in its bid. Whether the financial bid of Rs.0.731 per 1,000 stamps was mistaken, ridiculous or unrealistic, it was the result of respondent company's own culpable negligence and could have been avoided by reasonable care, diligence or caution.

Letter from FBR whereby licence was granted to respondent-company was set-aside; the decision of the GRC whereby petitioner-company's complaint was rejected was also set-aside; and it was declared that the process adopted for allowing respondent-company's request for the correction of the mistake in its financial bid suffered from material irregularity and unreasonableness; and that the FBR was at liberty to initiate a fresh bidding process strictly in accordance with law. Constitutional petitions were allowed accordingly.

(e) Void order---

----Superstructure built on a void order---Where on the basis of a void order subsequent orders had been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them must, unless some statute or principle of law recognizing as legal the changed position of the parties was in operation, fell to the ground because such orders had as little legal foundation as the void order on which they were founded.

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.

(f) Constitution of Pakistan---

----Arts. 90 & 99---Rules of Business, 1973---Scope---Rules of Business, 1973 ('the Rules') made by the Federal Government in exercise of the powers conferred by Arts. 90 & 99 of the Constitution, were based on public policy and designed to safeguard the State's interests effectively---To act in consonance with said Rules was clearly a duty cast on all the Divisions and Ministries of the Federal Government---Due weight was required to be given to the said Rules.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Federal Government of the Islamic Republic of Pakistan v. General (R) Pervez Musharaf 2014 PCr.LJ 684; Amin Jan v. Director General, T&T PLD 1985 Lah. 81 and Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343 ref.

(g) Rules of Business, 1973---

----R. 14(1)---Consultation with the Law and Justice Division ('the Law Division')---Opinion given by the Law Division---Scope.

Rule 14(1) of the Rules of Business, 1973 cast an important duty on the Law and Justice Division ('the Law Division') to render an opinion strictly in accordance with the law "on all legal questions arising out of any case," and "on the interpretation of any law" in the process of consultation with the referring Division. The said Rule envisaged the Law Division to hold a position of special trust, calling for an ability to take exceptional responsibility in giving opinion to the referring Divisions. There ought to be no room for error in a legal opinion given by the Law Division to another Division. A flawed opinion from the Law Division could have disastrous consequences. The Law Division must have an impartial approach and in its opinion, it must not tell the referring Division what it wanted to hear but what it ought to hear. It was expected to withstand pressure applied on it to approve some step in a process which the administration was keen to advance. The reason why a provision for consultation with the Law Division had been made in the Rules of Business, 1973 was that the opinion of the Law Division could serve as a guiding torch in the resolution of a matter with respect to which its legal opinion was sought. What would be the worth of the Law Division's opinion if it could be changed/reversed with the drop of a hat.

(h) Public Procurement Rules, 2004---

----R. 31---Public contract/licence---Typographical error/mistake in bid documents---Clarifications/correction in bid---Scope---If at all there was any general duty of an instrumentality of the State to let bidders correct obvious mistakes in their bids, such duty was severely circumscribed where there were several bidders in the competitive arena who all had a right to be treated equally---Such duty could not afford a bidder an opportunity to amend its bid and improve its prospects of success in the competition after the date for the submission of the bids had passed---If modifications in financial bids were allowed after the results of the bidding were made known, innumerable frauds could be perpetrated against procuring agencies as well as other bidders, and the system of competitive bidding would be placed in jeopardy and would lose stability; it would encourage slipshod bidding and would afford a pretext for unscrupulous bidders to prey on the public---After bids had been opened, a bidder was bound by his error or mistake and was expected to bear the consequences of it.

West Bengal State Electricity v. Patel Engineering Co. Ltd. AIR 2001 SC 682 ref.

(i) Equity---

----Equity did not relieve a party from the consequences of its own negligence.

(j) Interpretation of statutes---

----Provision in a statute starting with the word "No"---Scope---When a statute was couched in negative language, it was all the more mandatory and peremptory.

Shujat Hussain v. The State 1995 SCMR 1249; Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599; Mukhtar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61; Muhammad Hanif v. Karachi Building Control Authority 2007 CLC 315; Muhammad Khalid v. K.A.S.B. Bank Ltd. 2007 CLD 232; Tariq Irshad v. The State PLD 2006 Kar. 25; Haji Sheikh Noor Din v. Muhammad Intizar 2006 PLC 606; Saadat Khiyali v. City Coordination Officer PLD 2005 Lah. 190 and Inder Lal v. The State 1996 MLD 464 ref.

(k) Public Procurement Rules, 2004---

----R. 31---Public contract/licence---Typographical error/mistake in bid---Clarifications/correction in bid---Correspondence 'in writing'---Scope---Rule 31(1) of the Public Procurement Rules, 2004 did permit such changes in the bid to be accepted by the procuring agency as did not "change the substance of the bid" and that too where a clarification was sought by the procuring agency---Rule 31(2) provided for the mode and manner in which the clarification was to be sought by the procuring agency, and how the response to a request for a clarification was to be given by a bidder---Rule 31(2) did not recognize or envisage a request for clarification made by a procuring agency and a bidder's response to such a request in a mode other than "in writing"---Where verbal request was made by a bidder on the day the bids were opened to rectify the mistake in its financial bid, it could not be considered as a clarification in terms of R.31 of the Public Procurement Rules, 2004.

(l) Public Procurement Rules, 2004---

----R. 31---Public contract/licence---Typographical error/negligent mistake in bid documents---Clarifications/correction in bid---Equity---Negligent mistakes in bid documents could not be permitted to be corrected on the basis of equity---Where facts indicate that it was not beyond the control of a bidder to correct the error before submission of a bid; that the bidder was not vigilant, and that he did not seek to make corrections at the earliest opportunity, such bidder could not be permitted to correct his bid documents afterwards---Rules and instructions (relating to bid) must be complied with scrupulously in order to avoid discrimination, arbitrariness and favouritism, which were contrary to the rule of law and Constitutional values.

West Bengal State Electricity v. Patel Engineering Co. Ltd. AIR 2001 SC 682 ref.

Imtiaz Rashid Siddiqui, Syed Husnain Ibrahim Kazmi, Shehryar Kasuri and Raza Imtiaz Siddiqui for Petitioners.

Khawaja Muhammad Farooq and Ms. Moona Hussain for Petitioners (in W.P. No. 4395 of 2019).

Arshid Mehmood Kiani, learned Deputy Attorney-General for Respondents.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General for Respondents.

Syed Ali Zafar, Jehanzeb Sukhera for the F.B.R.

Salman Akram Raja, Asad Ladha and Malik Ghulam Sabir for the Applicant (in C.M. No.5478 of 2019).

Noor ul Najam, Departmental Representative, P.P.R.A.

Salman Aslam Butt and Anique Salman Malik for Respondent No.8/N.R.T.C.

P L D 2020 Islamabad 428

Before Mohsin Akhtar Kayani and Lubna Saleem Pervez, JJ

SARFARAZ KHAN and others---Appellants

Versus

CHIEF OF AIR STAFF (PAKISTAN AIR FORCE), ISLAMABAD and others---Respondents

Intra Court Appeals Nos. 449 to 459 of 2017, decided on 5th March, 2020.

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

----S. 20---Pakistan Air Force Rules, 1957, Rr. 191 & 31-A---Constitution of Pakistan, Arts. 199 & 10-A---Dismissal, removal or reduction by Chief of the Air Staff or other officers---Constitutional petition---Maintainability---Right to fair trial---Scope---Appellants assailed orders passed by Single Judge of High Court whereby their Constitutional petitions against removal from service were dismissed---Appellants were serving in Pakistan Air Force when they were removed from services on the allegation of homosexual activity with an Upper Division Clerk (UDC)/victim---Contention of respondent was that writ petitions were not maintainable under Art. 199(3) of the Constitution---Validity---Proceedings of Board of Inquiry were claimed to be privileged documents and were not disclosed in terms of R. 191(19) of Pakistan Air Force Rules, 1957, but the said rules did not exclude the courts of law to have a look into the extracts of inquiry---Proceedings of Board of Inquiry were not admissible in evidence against the appellants---Nothing was brought on record to establish the minimum requirement of any act of indiscipline---Victim himself had claimed that he was subjected to torture for 70 days by Air Force Authorities and was compelled to make statements against different individuals---Air Force Authorities had not initiated Court Martial proceedings against the officials, which fact clearly spelt out that there was no evidence against them---Intra Court Appeals were allowed and the Constitutional petitions were disposed of by referring the cases to the competent authority for the purpose of discharging the appellants without any stigma.

(b) Constitution of Pakistan---

----Arts. 199 & 10-A---Pakistan Air Force Act (VI of 1953), S.20---Pakistan Air Force Rules, 1957, Rr. 191 & 31-A---Constitutional jurisdiction of High Court---Right to fair trial---Armed Forces---Constitutional petition---Maintainability---Expression 'subject to any law or subject to such law'---Mala fide of competent authority---Effect---Appellants assailed orders passed by Single Judge of High Court whereby their Constitutional petitions against removal from service were dismissed on the ground that they had failed to cross the jurisdictional hurdle---Validity---Article 199(3) of Constitution, was a procedural provision, which was meant for an individual seeking remedy in terms of Art. 199(1) of the Constitution being an aggrieved person in a case when no other adequate remedy was available---Courts had to consider the true intention of the Legislature, who had framed Art. 10-A having the knowledge that Art. 199(3) barred exercise of jurisdiction in some matters---Article 199(3) of the Constitution had put much emphasis on the term 'subject to any law or subject to such law', whereas all the Statutes, Acts, Rules and Regulations were based upon the principle of fairness and in the interest of justice, they could not circumvent fundamental rights in any manner---Action taken by authorities, in the present case, was in negation of fundamental rights and based on mala fide intention---Bar contained in Art. 199(3) of the Constitution relating to the terms and conditions of the service of armed forces was not absolute---Intra Court Appeals were allowed and the orders passed in writ petitions were set aside, in circumstances.

(c) Constitution of Pakistan---

----Art. 199---Pakistan Air Force Act (VI of 1953), S.20---Pakistan Air Force Rules, 1957, Rr. 191 & 31-A---Constitutional jurisdiction of High Court---Member of Armed Forces---Constitutional petition---Maintainability---Protection of fundamental rights---Scope---Protection of fundamental rights is on much higher pedestal than the bar contained in Art. 199(3) of the Constitution and in cases where rights have been infringed, extraordinary jurisdiction of the High Court under Art. 199 of Constitution can be competently invoked.

Federation of Pakistan v. Raja Muhammad Ishaque Qamar PLD 2007 SC 498 ref.

(d) Constitution of Pakistan---

----Art. 199---Pakistan Air Force Act (VI of 1953), S.20---Pakistan Air Force Rules, 1957, Rr. 191 & 31-A---Constitutional jurisdiction of High Court---Member of Armed Forces---Constitutional petition---Maintainability---Mala fide of competent authority---Effect---Bar of jurisdiction imposed on High Court under Art. 199(3) of the Constitution is not applicable in cases where order passed by Military Authorities is based upon mala fide or is coram non judice or without jurisdiction.

Ex-Lance Naik Muhammad Hussain v. Federation of Pakistan and others 2017 SCMR 580; Ex-Gunner Muhammad Mushtaq v. Secretary Ministry of Defence 2015 SCMR 1071; Federal Government v. Munir Ahmad Gill 2014 SCMR 1530 and Ghulam Abbas v. FOP and others 2014 SCMR 849 ref.

(e) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Every citizen of Pakistan is equally entitled to protection of law and his right to fair trial has been protected in terms of Art. 10-A of the Constitution.

Umar Farooq Awan for Appellants.

Saqlain Haider Awan, A.A.G. and Asif Raza Khan, Squadron Leader, PAF for Respondents.

P L D 2020 Islamabad 443

Before Ghulam Azam Qambrani, J

MUHAMMAD ARIF---Petitioner

Versus

SHAHID MEHMOOD and another---Respondents

Criminal Miscellaneous Nos. 138-BC of 2020 and 799-BC of 2019, decided on 19th March, 2020.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 365-B, 493-A, 494 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10 [since omitted]---Kidnapping, abducting or inducing woman to compel for marriage, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, marrying again during life time of husband or wife and common intention---Zina or zina-bil-jabr liable to tazir---Bail cancellation, refusal of---Scope---Complainant sought cancellation of bail granted to accused persons---FIR was registered against accused with the allegation that he along with another had abducted complainant's younger daughter---Complainant, after arrest of accused, filed an application to the police stating therein that the accused was his son-in-law, who, during subsistence of nikah with his elder daughter, had entered into nikah with his younger daughter and thus, he was committing zina---Held; accused had contracted second marriage with the younger daughter of complainant after pronouncement of talaq to his first wife---Younger daughter of complainant had stated before the Investigating Officer that she had contracted marriage with the accused of her free will---Prima facie, the element of abduction was not proved---Husband marrying during iddat period could not be made liable for consensual zina under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, along with his marriage partner---Marriage of accused with younger daughter of complainant might be irregular but the same could not be treated as void---No evidence was available on record to show that the accused persons had tampered with the prosecution evidence or misused the concession of bail---Petitions for cancellation of bails were dismissed, in circumstances.

Section 242 of Principles of Mahommedan Law by D.F. Mulla; Section 253 of Principles of Mahommedan Law by D.F. Mulla; Section 253(3)(e) of Principles of Mahommedan Law by D.F. Mulla and Section 756 of Principles of Mahommedan Law by D.F. Mulla ref.

(b) Islamic law---

----Marriage with wife's sister during the subsistence of the previous marriage is only "Fasid" (invalid) and not "Batil" (void).

(c) Islamic law---

----Marriage---Iddat period---Scope---Unlawful conjunction by way of marriage during iddat period renders the marriage irregular and not void and an irregular marriage becomes regular the moment the bottleneck is removed i.e. iddat period expires.

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

----S. 497(5)---Bail, cancellation of---Scope---Bail can only be cancelled if the order on the face of it is perverse and has been passed in violation of the principles for the grant of bail.

Muhammad Karam v. Zahid Iqbal and others 2008 SCMR 1715; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; The State v. Khalid Mehmood 2006 SCMR 1265; Shahneel Gul and 2 others v. The State 2018 YLR 999 and Ahsan Akbar v. The State 2007 SCMR 482 ref.

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

----S. 497(5)---Bail, cancellation of---Scope---Considerations for the grant of bail are quite different from the considerations for cancellation of bail---Once bail has been granted by a competent court of law, strong and exceptional grounds are required for cancelling the same---Court in such cases, has to see as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

Ch. Muhammad Kashif Gujjar for Petitioner.

Zeeshan Gohar for Respondents.

Respondent No.1 in person.

Malik Mazhar Javaid and Zohaib Hassan Gondal, State Counsel with Tahir Khan Niazi, Inspector, along with record for the State.

Mst. Adina Arif in person

P L D 2020 Islamabad 449

Before Athar Minallah, C.J.

Syed PERVAIZ ZAHOOR---Petitioner

Versus

The PRIME MINISTER OF PAKISTAN through Secretary to the Prime Minister and 3 others---Respondents

Writ Petition No. 2304 of 2020, heard on 25th August, 2020.

Constitution of Pakistan---

----Arts. 90, 93 & 199---Quo warranto, writ of---Appointment of Advisor---Petitioner assailed appointment of respondent as Advisor to Prime Minister and Chairman Assets Recovery Unit---Validity---Advisor was not a member of Federal Cabinet nor entitled to attend its meetings except when required to do so by Prime Minister and that too pursuant to special invitation---Advisor could speak and attend proceedings of Majlis-e-Shoora (Parliament) but could not vote---Business of executive authority and the manner in which it was to be exercised was governed under Rules of Business 1973, which did not contemplate role of an Advisor---Advisor could not interfere or in any manner influence executive authority, working or functioning of a Division / Ministry nor its policy matters---Prime Minister had exclusive prerogative to choose person for rendering him advice and tendering advice regarding appointing the latter as an Advisor---Court could not substitute its own opinion with that of Prime Minister---Such matter fell outside the ambit of justiciability---High Court observed that it was expected from the Advisor to advise the Prime Minister having regard to the status of an Advisor envisaged under the Constitution---Constitutional petition was dismissed in circumstances.

Constitutional Petition No. D-3404 of 2020; Khan Muhammad v. Chief Secretary, Government of Balochistan Quetta and others 2018 SCMR 1411; Mustafa Impex Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 and Fareed Ahmed A.Dayo v. Chief Minister Sindh through Principal Secretary and 5 others PLD 2017 Kar. 214 ref.

Amanullah Kanrani for Petitioner.

P L D 2020 Islamabad 454

Before Ghulam Azam Qambrani, J

ALI MUHAMMAD TURAB---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Writ Petition No. 3508 of 2019, decided on 16th July, 2020.

(a) Constitution of Pakistan---

----Arts. 9 & 15---Universal Declaration of Human Rights, Art.13---Freedom of movement---Scope---Provision of Art. 13 of Universal Declaration of Human Rights is akin to the provisions of Arts. 9 & 15 of the Constitution and there is no inconsistency in the two.

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

----S.2---Constitution of Pakistan, Arts. 2-A, 4 & 10-A---Exit Control List, placing name on---Condemned unheard---Petitioner was aggrieved of Memorandum issued by authorities placing his name on Exit Control List---Validity---Name of petitioner was placed on Exit Control List without issuing him a show cause notice and without seeking any clarification or explanation from him---Authorities could not abridge fundamental right of petitioner of travelling abroad without due process---Before making an order for placing name of a person on Exit Control List, it was provided in S. 2(2) of Exit from Pakistan (Control) Ordinance, 1981, that it was not necessary for Federal Government to afford an opportunity of showing cause to the person whose name was to be placed on Exit Control List---Provision of S.2(2) of Exit from Pakistan (Control) Ordinance, 1981, could not be construed as an open license to authorities to place name of petitioner on Exit Control List without affording an opportunity of hearing to him---Opportunity of hearing was an essential postulate of due process recognized in Arts. 2-A, 4 & 10-A of the Constitution---High Court directed the authorities to remove name of petitioner from Exit Control List and set aside Memorandum issued by authorities whereby name of petitioner was placed on Exit Control List---Constitutional petition was allowed in circumstances.

Federation of Pakistan v. General (Retd.) Parvez Musharraf PLD 2016 SC 570; Pakistan Muslim League (N) v. Federation of Pakistan through Secretary, Ministry of Interior PLD 2007 SC 642; Riaz Ahmed v. Government of Pakistan PLD 2014 Isl. 29; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior PLD 1997 Lah. 617; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Dr. Joseph Wilson v. Federation of Pakistan and others 2017 PCr.LJ 1569 and Muhammad Amjad v. Federation of Pakistan 2017 PCr.LJ 1266 rel.

Imran Shafique for Petitioner.

Nazar Hussain Shah, Assistant Attorney General for Respondents Nos.1 and 2.

Muhammad Azeem Akhtar, Section Officer, ECL, Ministry of Interior.

Malik Shifa Ullah, A.D.(Litigations) for Respondent No.3.

P L D 2020 Islamabad 469

Before Miangul Hassan Aurangzeb and Aamer Farooq, JJ

HAROON-UR-RASHID and another---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.A. No. 225 of 2019, decided on 18th August, 2020.

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

----S. 9(1)---Fugitive offender---Inquiry for extradition---Evidence, recording of---Procedure---Provision of S. 9(1) of Extradition Act, 1972, does not provide a different mode for production of evidence in inquiry proceedings for extradition of a fugitive offender alleged to have committed an extradition offence but not convicted of such an offence in requesting state than the mode for production of evidence in the case of a fugitive offender who has already been convicted of and extradition offence in requesting state.

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

----Ss. 7 & 9(1)---Extradition---Inquiry proceedings---Evidence, recording of---Cross-examining the deponents---Accused assailed inquiry report on the ground that he was not provided with an opportunity to cross-examine witnesses who submitted their affidavits against accused---Single Judge of High Court directed Inquiry Magistrate to provide an opportunity of cross-examination to accused upon the persons who had submitted their affidavits in support of extradition---Validity---Not obligatory for deponents of affidavits filed in support of extradition requests to appear as witnesses before Inquiry Magistrate for the purpose of cross-examination on the facts deposed in their affidavits---No bar existed in Extradition Act, 1972 for Inquiry Magistrate to require presence of deponent of affidavit produced in support of an extradition request, in the event he had considered such presence essential so as to enable him to form an opinion that a prima facie case was made out for extradition of a fugitive offender---Not necessary for inquiry/investigation officer in requesting State who inquired or investigated the case against fugitive offender to appear and give evidence before Inquiry Magistrate---Deponents of affidavits produced in support of extradition case were not required to appear before Inquiry Magistrate---Intra Court Appeal was allowed accordingly.

Bank of Punjab v. Messrs Anmol Textiles Mills Ltd. and others 2017 CLD 631; Muhammad Tabbasum v. Mehmood 2017 CLC 1221; Abdul Majeed v. Abdur Rashid PLD 2016 Lah. 383; Mst. Iqbal Bibi v. Learned Additional District Judge and others 2014 MLD 1206; Bashir Ahmad v. Abdul Wahid PLD 1995 Lah. 98 and Abdul Ghaffar v. Federation of Pakistan PLJ 1999 Lah. 348 ref.

Abdul Ghaffar v. Federation of Pakistan 2000 SCMR 1536; Nasrullah Khan Henjra v. Government of Pakistan PLD 1994 SC 23; Mst. Akhtar Malik v. Federation of Pakistan 1994 PCr.LJ 229; Sarabjit Rick Singh v. Union of India 2008 (2) SCC 417; Nargis Shaheen v. Federation of Pakistan PLD 1993 Lah. 732; Nargis Shaheen v. Federation of Pakistan 1994 SCMR 1706; PLD 2012 SC 553; President v. Shaukat Ali PLD 1971 SC 585 and Muhammad Azim Malik v. Government of Pakistan PLD 1989 SC 519 rel.

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

----S. 8(2)---Inquiry for extradition---Object, purpose and scope---Inquiry Magistrate has to ascertain during proceedings under S.8 of Extradition Act, 1972, whether material placed before him is sufficient to establish prima facie case to justify trial of a person whose extradition is sought---Such is the course in cases where fugitive offender has not been convicted by a Court in Treaty State seeking his requisition---Mere fact that S.8(2) of Extradition Act, 1972 requires Inquiry Magistrate to conduct inquiry in a manner as if the case is one triable by Sessions Court does not ipso facto made the proceedings before Inquiry Magistrate into a trial---Inquiry Magistrate's order must show as to whether fugitive offender is alleged to have been accused of or convicted for committing an extradition office.

Muhammad Asim Malik v. Anwar Jalil PLD 1989 Lah. 279; Tahir Attique Zarif v. Federation of Pakistan PLD 2019 Isl. 483; Kamlesh Babulal Aggarwal v. Union of India 2008 (104) DRJ 178 and Nasrullah Khan Henjra v. Government of Pakistan 1998 SCMR 1072 rel.

Idrees Ashraf for Appellants.

Tariq Mahmood Khokhar, Additional Attorney General, Khawaja Imtiaz Ahmad, Deputy Attorney General, Muhammad Nadeem Khan Khakwani, Assistant Attorney General, Ch. Muhammad Tahir Mehmood, Assistant Attorney General, Muhammad Atif Khokhar, State Counsel for Respondents.

Qaiser Masood, Additional Director Law, F.I.A. Headquarter.

Adeel Ahmed Sheikh, S.I. FIA/AHTC.

Barrister Ummar Ziauddin and Barrister Zainab Janjua, amici curiae.

P L D 2020 Sindh 1

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

GULZAR ALI and 3 others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos. D-5574, D-7099, D-7123 of 2018 and D-988 of 2019, decided on 6th March, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi),(b) & 25(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Deposit of loss to exchequer in court---Effect---Petitioners were arrested by NAB authorities for causing loss to exchequer---Plea raised by petitioners was that they were willing to deposit amount in court if bail was granted---Validity---Plea of petitioners was distinguishable as they had not agreed unconditionally to repay all misappropriated amount to Government instead they wanted money to be held on trust for them and then returned if they were acquitted---If such arrangement was allowed in every such case, same would render S. 25(b) of National Accountability Ordinance, 1999, which dealt with 'plea bargain', redundant and there would be no need for accused to enter into plea bargain as he could simply deposit alleged misappropriated amount with court pending outcome of case against him under National Accountability Ordinance, 1999---If accused was acquitted he would get money back and if he was convicted after a lengthy trial he could then, if he then so desired, enter into plea bargain once he was taken into custody knowing strength of case against him---Such would defeat one of primary objectives of National Accountability Ordinance, 1999 which was recovery of ill-gotten wealth at earliest without need for prolonged trial---High Court declined to grant bail to petitioner as new ground alone of depositing loss to be held on account of pending disposal of reference was not maintainable---Petitioners were already found to be fully connected with commission of offences through previous bail dismissing orders---Constitutional petition was dismissed in circumstances.

Mumtaz Ali (unreported) Supreme Court order dated 17.10.2018; Asad Ahmad Khan (unreported); Shamraiz Khan v. State 2000 SCMR 157 distinguished.

Syed Muzafar Ali v. Chairman NAB 2016 PCr.LJ 1183 and Rai Mohammad Khan v. NAB 2017 SCMR 1152 ref.

Shaukat Hayat, Gul Fareen, Nasir Jahangir Rifat Sheikh and S.M. Iqbal for Petitioners.

K.A. Vaswani, Special Prosecutor NAB for the State.

P L D 2020 Sindh 8

Before Salahuddin Panhwar, J

NADEEM WAQAR KHAN---Appellant

Versus

JAVED MASOOD AHMED KHAN---Respondent

Criminal Revision Application No.91 of 2017, decided on 26th September, 2018.

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

----Ss. 3 & 4---Prevention of illegal possession of property---Business partners---Scope---Applicant claimed that his brother who was also his business partner dispossessed him from the place of business (restaurant) and ultimately demolished the same---Trial court dismissed the complaint---Validity---Applicant himself admitted the status of respondent as that of partner---Prima facie, each partner would be presumed to be in possession or control of business, hence legally the remedy of Illegal Dispossession Act, 2005 would not be available for a partner against other partner even if the allegation was that of dispossession---Application was dismissed.

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

----S. 3---Prevention of illegal possession of property---Civil dispute---Scope---Complaint under Illegal Dispossession Act, 2005 is maintainable against any person who forcibly dispossesses the occupier or owner but such remedy is never meant to settle civil dispute or a substitute for the civil suit.

Shah Khan for Appellant.

Abrar Ali Khichi, APG. For Respondent.

P L D 2020 Sindh 9

Before Muhammad Iqbal Kalhoro and Shamsudin Abbasi, JJ

ALI J. SIDDIQUI through Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

Criminal Petition No.D-2233 of 2018, decided on 22nd March, 2019.

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

----S. 18(c)---Jurisdiction of Chairman, National Accountability Bureau---Scope---Office of Chairman National Accountability Bureau is central and has absolute power for taking decision to start an inquiry or investigation against a person and with reference to relevant facts, where or by whom it has to be conducted.

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

----Ss.6, 16 & 18(c)---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of inquiry---Territorial jurisdiction---Relief, conversion of---Petitioner sought quashing of inquiry against him initiated by Regional Bureau of NAB situated at place 'L'---Petitioner assailed inquiry before High Court situated at place 'K' on plea that all notices and process was received by him at place 'K'---Validity---National Accountability Bureau (NAB) was a federal entity having presence in entire country---Regional Bureaus of NAB were working in respective provinces were independent to each other---If an enquiry or investigation entrusted to a bureau of a particular province and same was matured into a reference, then it was to be filed in Accountability Court situated in that particular province---Accountability Court situated in a particular province remained under administrative control of High Court of that province---Law in clear terms had defined lines for inquiring or investigating any matter involving offence under National Accountability Ordinance, 1999---Authority of Chairman NAB to refer such matter for inquiry or investigation and in event of reference, relevant Accountability Court where matter would be referred for trial---Right, if any, of a person to challenge inquiry or investigation before High Court that was being held by Regional Bureau of a different province would be governed by such defined outlines regarding territorial jurisdiction---High Court had no territorial jurisdiction therefore, declined to quash proceedings of inquiry being held by NAB at place 'L' against petitioner and others---High Court converted petition into petition for protective bail and granted same to the petitioner---Constitutional petition was disposed of accordingly.

PLD 2001 Karachi 311, 419; PLD 2013 Sindh 357; 2017 SCMR 1218; 2009 CLD 1498, 1514; 2017 SCMR 1179; 1985 SCMR 758; 2010 CLC 1810; PLD 2016 Sindh 26; 1985 SCMR 758; PLD 2015 Sindh 1; 2016 PCr.LJ 1056 and Syed Muhammad Shah and others v. Federal Investigation Agency 2017 SCMR 1218 ref.

Jamshoro Joint Venture Ltd. and another v. Federation of Pakistan and others 2016 PCr.LJ 1056 rel.

Khalid Javed Khan for Petitioner.

Shahab Usto for Respondent No.2.

Yasir Siddiqui, Spl. Prosecutor, NAB along with Ubaid Simon I.O.

Tariq Qureshi for Respondent No.5.

P L D 2020 Sindh 22

Before Salahuddin Panhwar and Adnan Iqbal Chaudhary, JJ

Syed ZAFAR ALI SHAH and 9 others---Petitioners

Versus

CHIEF MINISTER through Chief Secretary Sindh and 3 others---Respondents

Constitutional Petition No.D-1661 of 2016 and C.M.A. Nos.18204 of 2014, 19050 of 2015 and 6112 of 2018, decided on 28th June, 2018.

Sindh Irrigation Act (VII of 1879)---

----S. 28---Criminal Procedure Code (V of 1898), S.133---Flow of water---Obstructions, removal of---Grievance of petitioners was that they were deprived of irrigation water from different canals and water courses---Validity---Irrigation law, nowhere permitted addition or reduction into command area of water courses/minor etc., without redesigning thereof and any departure would be nothing short of violation---Any illegality or multiplicity thereof and even duration of continuity of such an illegality would never be an excuse to let it continue---No one could dispose of drainage into any running/flowing water course, minor etc., hence such would also fall within meaning of illegality/violation---High Court directed the authorities to follow directions already passed by High Court in an earlier case---Petition was disposed of accordingly.

Khadim Hussain Aradin v. P.O. Sindh and others Petition No.D-1043 of 2018 fol.

2015 SCMR 338 ref.

Aftab Ahmed Shar for Petitioners.

Ahmed Ali Shahani, Assistant Advocate General Sindh along with Muhammad Younis Domki, XEN, Irrigation, Division, Khairpur.

P L D 2020 Sindh 32

Before Salahuddin Panhwar, J

ADIL SERWAR alias MUHAMMAD ADIL---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.50 of 2018, decided on 6th September, 2018.

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

----Ss. 423 & 540---Powers of appellate court in disposing of appeal---Remand for summoning of further witnesses---Scope--- Petitioner assailed order of appellate court whereby it had remanded the case to Trial Court for examination of further witnesses---Validity---Appellate court had remanded the case for examination of witnesses without any application from prosecution---Specific provision was available with the parties to move such application but that remedy was not availed therefore it was not within the domain of the appellate court to order of summoning/examination of particular witnesses which, otherwise, prosecution itself avoided nor the defence so intended---Parties could seek production of additional evidence but the jurisdiction, available with Trial Court, to suo motu call/summon witness, was not available with appellate court---Appellate court prima facie travelled beyond its jurisdiction, which the procedural law had not vested on it---High Court set aside the order of the appellate Court.

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

----Ss. 265-F & 540---Evidence for prosecution---Power of court to summon material witness---Scope---Criminal Procedure Code, 1898, provides only two provisions which deal with examination and production of witnesses i.e. S.265-F and S.540---Section 265-F, Cr.P.C. is absolute prerogative of the parties i.e. prosecution and defence and their discretion to examine, withhold or give-up any witness or document---Such discretion cannot be questioned, but the court can competently consider the consequences thereof---Section 540, Cr.P.C. is an exception---Normally, the exception to call a witness as a court-witness would be available in certain situations where witness could not be otherwise brought before the court else the prerogative, provided by S.265-F, Cr.P.C., shall stand prejudiced.

Malik Naseer v. Wishno Mal and another 2014 PCr.LJ 1496 ref.

PLD 2013 SC 160 rel.

Badar Hussain Mughal for Applicant.

Abdullah Rajput, DPG.

P L D 2020 Sindh 35

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

Mst. SABA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior Government of Pakistan, Islamabad and 5 others---Respondents

Constitutional Petition No.D-4819 of 2018, decided on 30th May, 2019.

Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to adequate healthcare---Government hospitals in Province of Sindh---Inspection reports submitted by District and Sessions Judges in respect of Government hospitals in their respective district---Hospital buildings and equipment in state of despair---Shortage of doctors and para-medical staff---Dysfunctional operation theatres---Lack of adequate security, hygiene and sanitation---Citizen's right to adequate health care was a part of the right to life which was a fundamental right guaranteed under the Constitution, which the Provincial Government was obliged to ensure---High Court directed that Provincial Secretary Health shall ensure that all the aspects pointed out in the reports of the District and Sessions Judges in respect of the public hospitals in their respective district were rectified/acted upon including repair, maintenance, provision of equipment and staff etc. prior to the next date of hearing; that the Provincial Secretary Health shall file a report which shall clearly state what works/repairs/maintenance the respective District and Sessions Judges in their reports required to be carried out, what equipment was needed, how many staff was required and at what level etc. in respect of each public hospital and confirmation that all such work had been undertaken, and all such equipment and staff had been provided; that the Provincial Secretary Finance was to ensure that sufficient budget was made available for such purposes---Constitutional petition was re-listed for next date of hearing.

Ms. Saba for Petitioner.

Hakim Ali Shaikh, Additional Advocate General.

Nadeem Khan, Assistant Attorney General.

Hakim Ali Zardari, Focal Person Home Department.

Asghar Ali Memon, Additional Secretary (Health).

Muhammad Ibrahim Memon, DS Health Department.

Dr. Altaf Hussain Shaikh, OSD Health Department.

Muhammad Younus, SO (Litigation) Health Department.

Dr. Khadim Hussain Qureshi, M.S. Civil Hospital, Karachi.

Dr. Abdul Saeed, DSM (Legal) Dr. Ruth K.M. Pfau, Civil Hospital.

Shakeel Ahmed, D.S. Finance Department.

M. Saleem, S.O. Finance Department.

Dr. Sumair Noor Channa, SP Investigation-II South.

PI Iftikhar Hussain, SIO Eidgah

P L D 2020 Sindh 42

Before Muhammad Ali Mazhar and Agha Faisal, JJ

HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN through Authorised Officer and 11 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad and 2 others---Respondents

Constitutional Petitions Nos.D-2477 and D-2936 of 2019, decided on 26th June, 2019.

(a) Interpretation of Constitution---

----Trichotomy of Powers---Object, purpose and scope--- One of seminal principles of Constitution is concept of trichotomy of powers between Legislature, Executive and Judiciary---Such principle underpins rationale that framing of a government policy is to be undertaken by Executive which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills---Judiciary is entrusted with interpreting of law and to play role of an arbiter in cases of disputes between individuals inter se and between individual and the State---Significant growth has been noticed in judicial review of administrative actions and grounds on which courts interfere have been expanded---Such expansion has taken place in shadow of competing concerns of vigilance and restraint and it is faithfulness to these dual concerns of vigilance and restraint which produces unique supervisory jurisdiction which is hallmark of judicial review---If courts fail to maintain such delicate balance none else but confidence of people in judiciary would be worst victim.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Principles---Grounds upon which an administrative action is subject to control by judicial review can be classified as illegality---Decision maker must understand correctly the law that regulates his decision making power and must give effect to it; irrationality, namely Wednesbury, unreasonableness and procedural impropriety---Judicial review is regimen and command of court to review legislative and executive actions to maintain and sustain rule of law---High Courts by means of writ of habeas corpus, mandamus, certiorari, prohibition and quo warranto control administrative actions---Under dominion of judicial review, court reviews lawfulness of a decision or action made by a public body and is a process under which executive or legislative actions may be subject to review by judiciary---Court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so an executive decision may be invalidated for being unlawful and also maintains check and balance---Judicial review is an audit and taking stock of legality of decisions made by public bodies likewise all corpuses exercising functions of a public law nature are susceptible to challenge---Judicial review can be sought on grounds that a decision arises when a decision maker misdirects itself in law, exercises a power wrongly or improperly purports to exercise a power that it does not have---Such is known as acting ultra vires and a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it---Judicial review can also be taken in failure to observe statutory procedures or natural justice or in breach of legitimate expectation, either procedural or substantive.

Tata Cellular v. Union of India (36(1994) 6 SCC 651; https:// www.out-law.com/judicial-review by Justice (R) Fazal Karim and http://www.supremecourt.gov.pk/ijc/Articles/pdf by James Madison rel.

(c) Constitution of Pakistan---

----Arts. 199---Hajj Policy, 2019, Para. 16 & Clause 18(vii)---Constitutional petition---Allocation of Hajj Quota, reduction in--- Fair competition---Scope---Petitioners were private Hajj Group Organizers who were aggrieved of introduction of quota to accommodate 5% pilgrims at government rate package---Validity---Hajj Formulation Committee imposed an unreasonable, disproportionate and inconsistent condition which was not only beyond framework and constituents of Hajj Policy, 2019 but tantamount to an indirect reduction in quota of Hajj Group Organizers---Competition Commission regarding condition for booking 5% Hujjaj at government Hajj package had not expressed any opinion in its report or otherwise that same would ensure economy of financial packages; they further figured out that under spirit of competition law condition of booking 5% Hujjaj at Government Hajj Package by Hajj Group Organizers could lead to price discrimination by charging different prices for same goods or services from different customers in absence of objective justifications that might justify different prices---High Court endorsed viewpoint of the Competition Commission as being logical and commonsensical---High Court set aside condition inflicted by the authorities---Constitutional petition was allowed accordingly.

Dossani Travels Pvt. Ltd. and others v. Messrs. Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622; Ms. Saba v. Province of Sindh and others C.P. No.D-2650 of 2019); https://uk.practicallaw. Thomsonreuters. Com); Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223; Chairman, All India Railway Rec. Board v. K. Shyam Kumar and others in Civil Appeals Nos.5675-5677/2007 and Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 ref.

Abid S. Zuberi, Ayan Mustafa Memon and Ms. Shereen Chughtai for Petitioners.

Kafeel Ahmed Abbasi, DAG.

Amjad Ahmed, Joint Secretary (Litigation) MORA, Islamabad.

Qazi Sami ur Rehman, Director (Hajj) Camp Office, Karachi.

Ghulam Mustafa, Deputy Director (Hajj), Camp Office, Karachi.

Iqrar Ahmed, A.D. (Hajj), Camp Office, Karachi.

P L D 2020 Sindh 62

Before Aqeel Ahmed Abbasi and Zulfiqar Ahmad Khan, JJ

SURESH KUMAR---Petitioner

Versus

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

Constitutional Petition No.D-4076 of 2019, decided on 19th June, 2019.

(a) Foreign Assets (Declaration and Repatriation) Ordinance (III of 2019)--

----Ss. 2(1)(e) & 11(a)---Voluntary Declaration of Domestic Assets Act (XXX of 2018), S.2(d)---Constitution of Pakistan, Arts. 8, 14 & 25---Statutory tax amnesty/asset declaration scheme---Exclusion of public office holders from availing tax amnesty/asset declaration scheme---"Holder of public office"---Definition---Reasonable classification---Scope---Petitioner impugned definition of "holder of public office" in Foreign Assets (Declaration and Repatriation) Ordinance, 2019, per which definition petitioner had been excluded from availing benefit of tax amnesty under S.11 of Foreign Assets (Declaration and Repatriation) Ordinance, 2019---Contention of petitioner, inter alia, was that said exclusion did not make any reasonable classification and offended Arts. 8, 14 & 25 of the Constitution---Validity---Nothing in definition of "holder of public office" in Foreign Assets (Declaration and Repatriation) Ordinance, 2019 was in conflict with Constitutional provisions and petitioner had neither challenged Legislative competence of Parliament or authority of the President to promulgate Foreign Assets (Declaration and Repatriation) Ordinance, 2019---Foreign Assets (Declaration and Repatriation) Ordinance, 2019 excluded a long list of holders of public office out of which only petitioner had approached High Court---No discrimination or unreasonableness existed while creating holder of public office as separate class for purpose of Foreign Assets (Declaration and Repatriation) Ordinance, 2019---High Court observed that petitioner was a Councilor elected by public and entrusted with public funds and therefore was a holder of public office---Constitutional petition was dismissed, in circumstances.

(b) Interpretation of statutes---

----Definition clause in a statute---Scope and purpose---Definition clause in any enactment or statute by itself did not create any charge or liability whereas it only defined or explained various legal terms for purpose of ease and reference to other provisions of an enactment.

P L D 2020 Sindh 68

Before Salahuddin Panhwar, J

Mrs. NASIMA YOUSUF through Special Lawful Attorney---Complainant

Versus

TEHSEEN ABASS GILGITI and others---Respondents

Criminal Revision Application No.42 of 2017, decided on 10th January, 2019.

(a) Administration of justice---

----Duty of court---Scope---High Court observed that "Court" is not a mere mixture of construction material but in its literal sense is a 'hope' where complainant or plaintiff (as the case may be) comes with a hope of justice---Court must always act in such a manner so that every single decision thereof should satisfy its literal meaning i.e. 'a place where justice is done/dispensed'---Litigants should never be given a 'disposal of their approaches' but a 'decision by a Court of law'---Court cannot, legally and morally, take excuse of 'rush of work'---Not a single decision of a court of law should reflect that it was not a 'decision' but an attempt to earn 'numbers/units' or to lessen the number of cases entrusted to it for disposal 'according to law'---Thin line between two known legal maxims i.e. 'justice delayed is justice denied' and 'justice hurried is justice buried' must always be appreciated by every single court.

MFMY Industries Ltd. v. Federation of Pakistan 2015 SCMR 1549 rel.

(b) Administration of justice---

----Duty of court---Scope---High Court observed that "Court" must reflect a place where (a) one (judge) shall be available to aggrieved for hearing with full ears and patience; (b) he shall satisfy the legal requirement of 'due process' with every effort to ease the course of 'hearing/trial' for both ends; (c) he without any influence shall ensure 'justice' while performing divine duty; and (d) he shall pay every attention while writing 'decisions' and shall never come with an excuse of 'rush of work', etc.

MFMY Industries Ltd. v. Federation of Pakistan 2015 SCMR 1549 rel.

Khawaja Muhammad Asghar, attorney of applicant present in person.

P L D 2020 Sindh 74

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

Mst. KHADIJA through Attorney---Petitioner

Versus

VIIITH ADDITIONAL SESSIONS JUDGE (EAST) KARACHI---Respondent

Constitutional Petition No.D-8847 of 2017, decided on 19th March, 2018.

Civil Procedure Code (V of 1908)---

----O. III, R.1 & S.2(15)---Advocate, pleader and attorney---Scope---One could not legally enjoy dual status of an advocate and attorney at the same time---Pleader would be entitled to appear for another and not for himself---Advocate could not file an affidavit in support of an interlocutory application or otherwise give evidence.

Faridullah Khan v. Masood Asghar Mian 2017 CLC 1736 rel.

Mehrunnisa as Attorney and Counsel for Petitioner.

Ghulam Shabbir Shah, Addl. A.G. Sindh for Respondent.

P L D 2020 Sindh 85

Before Muhammad Junaid Ghaffar, J

Haji MOHAMMAD ISMAIL MILLS LIMITED---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Finance and 2 others---Defendants

Suit No.497 and C.M.A. No.3717 of 2018, decided on 10th May, 2018.

Interpretation of statutes---

----Construction of directory provisions---Publication of statute in official Gazette---Non-compliance of directory provision regarding publication of statute in official Gazette---Scope and effect---Provisions of a statute regarding publication or notification of the same in official Gazette were generally to be regarded as directory and their strict non-compliance did not entail consequences---Legal certainty required that ordinary a statutory instrument was not to be treated as invalid because of failure on part of public functionaries to publish the same in official Gazette.

Sohail Ahmed and 7 others v. Province of Sindh and 2 others 2017 PLC (CS) 1510 and Saghir Ahmed v. Province of Punjab PLD 2004 SC 261 rel.

Abdullah Azzam Naqvi for Plaintiff.

Umar Zad Gul Kakar, Deputy Attorney General for Defendant No.1.

Tariq Qureshi for Defendant No.2.

Saad Abbas along with Syed Ebad for Defendant No.3.

P L D 2020 Sindh 88

Before Muhammad Ali Mazhar and Agha Faisal, JJ

TALHA NASIR and 6 others---Petitioners

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and 2 others---Respondents

Constitutional Petitions Nos. D-6967, D-7534 of 2017, D-79, D-563 and D-1595 of 2018, decided on 23rd April, 2019.

MBBS and BDS Courses and Conditions for House Job/Internship/Foundation Years Regulations, 2013---

----Reglns. 8 & 26---MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, Reglns. 10 & 24---Regulations for Degrees of Bachelors of Medicine and Bachelors of Surgery, 2003---Semester/Annual system---Petitioners were medical students who were aggrieved of change in teaching system from semester system to annual system and its retrospective application---Validity---University issued notification wherein it was stated that as per MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018, annual examination was required to be followed, hence dispensed with semester system earlier in place---All three sets of Regulations, namely, Regulations for Degrees of Bachelors of Medicine and Bachelors of Surgery, 2003, MBBS and BDS Courses and Conditions for House Job/Internship/Foundation Years Regulations, 2013 and MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 consistently maintained annual system of assessment and any deviation therefrom was an issue between medical institution and Regulatory Body---Only MBBS and BDS Courses and Conditions for House Job/Internship/Foundation Years Regulations, 2013 was no longer in force, that purportedly created a dispensation for medical institutions specifically permitted to function under a parallel regimen, however, no such specific permission was placed before court---High Court declined to exercise Constitutional jurisdiction as petitioners were unable to demonstrate infringement of any fundamental right---Constitutional petition was dismissed in circumstances.

Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323 ref.

Akhtar Hussain for Petitioners (in C.P. No.D-563 of 2018).

Mohammad Ali Lakhani for Petitioners (in the remaining petitions).

Kafill Ahmed Abbasi, Deputy Attorney General, Jawad Dero, Additional Advocate General for Respondents.

Sohail H.K. Rana for PMDC.

Rehan Aziz Malik, Prof. Atta-ur-Rahman, Student Advisor for JSMU.

Wasiq Mirza for DUHS.

P L D 2020 Sindh 94

Before Nazar Akbar, J

MOHSIN ABBAS---Applicant

Versus

QADIR KHAN MANDOKHAIL and 6 others---Respondents

Criminal Revision Application No.192 of 2017, decided on 12th April, 2019

Criminal Procedure Code (V of 1898)---

----Ss. 200, 203, 435 & 439---Private complaint, dismissal of---Revision against order of Judicial Magistrate---Maintainability---Procedure---Held, order having been passed under S.203, Cr.P.C., whereby direct complaint had been dismissed by the Judicial Magistrate without framing a charge and trial, it could not be treated as acquittal of the accused/respondents---Order under S.203 Cr.P.C, being an order passed by a court inferior to the Court of Session, the propriety demanded that the same should first be examined by the Sessions Judge for the purpose of satisfying itself to the correctness, legality or propriety of the said order passed by the Magistrate who was covered by the explanation given at the bottom of S.435, Cr.P.C.---Revision before the High Court being without exhausting the remedy available to the applicant was not maintainable---Matter was sent to the Sessions Judge for a just and fair decision on the grievance of the applicant---Revision application was thus disposed of accordingly.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

S.S.P. (Investigation-I) for Respondent No.3.

D.S.P. Admin. (Investigation-I) for Respondent No.4

SIO, PS Boat Basin for Respondent No.5

Judicial Magistrate No.XXII for Respondent No.6.

Ms. Seema Zaidi, D.P.G. for the State for Respondent No.7.

P L D 2020 Sindh 99

Before Syed Hasan Azhar Rizvi and Adnan Iqbal Chaudhry, JJ

PAKISTAN MINERAL DEVELOPMENT CORPORATION through Project Director---Petitioner

Versus

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

Constitutional Petitions Nos. 8125 and 8126 of 2018, decided on 22nd May, 2019.

Sindh Mining Concession Rules, 2002---

----Rr. 9, 13(1), 27(2), 38, 48, 50(3)(c)(ii), 68 & 71---Sindh Land Revenue Act (XVII of 1967), S.49---Mining licence---Provincial Government, discretion of---Petitioner corporation was aggrieved of decision taken by Provincial Government whereby its mining licence was not extended and respondent was given mining licence for coal field in question---Validity---Mining leases of petitioner were not renewed for reason that Provincial Government had plans to use coal mined from coal field in question for a coal-fired power plant that it intended to setup in its Province---Such purpose of Provincial Government could not be achieved by renewing a mining lease that did not cater for requirements of Provincial Government---Coal extracted within any Province was property of that Provincial Government under S.49 of Land Revenue Act, 1967 and Provincial Government had all powers necessary for proper enjoyment of its rights thereto---Scheme of Sindh Mining Concession Rules, 2002 was also to provide for development of mineral resources of said province and with that development of technology, employment and skills in mining industry in province---High Court in exercise of Constitutional jurisdiction declined to interfere in discretion exercised by authorities as order not renewing mining leases of petitioner were neither arbitrary nor mala fide--- Mining permit awarded to respondent was in contravention to R.68 of Sindh Mining Concession Rules, 2002 and same was set aside---High Court directed that for granting any mining concession in subject area with proven mining reserves, authorities would invite competitive bids for making public terms and conditions of mining concessions offered---Constitutional petition was disposed of accordingly.

Muhammad Tajammal Hussain v. Shaukat Mahmood PLD 2007 SC 277; Abdul Karim v. The Returning Officer PLD 1999 Quetta 78; Ghani Corporation v. Government of NWFP PLD 2011 Pesh. 1; Khawaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206 and Abdul Haque Baloch v. Government of Balochistan PLD 2013 SC 641 ref.

Barrister Zamir Ghumro and Malik Naeem Iqbal for Petitioners.

Jawad Dero Additional Advocate General Sindh along with Khadim Hussain Channa, D.G. Coal Mines and Shahzad Muzafar, Assistant Director, Coal Mines for Respondents Nos. 1 and 2.

Jaffar Raza along with Toufique Ahmed, C.E.O. of the Company for Respondent No.3.

P L D 2020 Sindh 116

Before Syed Hassan Azhar Rizvi and Adnan Iqbal Chaudhry, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and another---Petitioners

Versus

OFFICIAL ASSIGNEE/OFFICIAL LIQUIDATOR and others---Respondents

Constitutional Petition No.1702 of 2007, decided on 17th June, 2019.

Constitution of Pakistan---

----Art. 199---Companies Ordinance (XLVII of 1984), Preamble---Constitutional jurisdiction of High Court---"Person" in Art.199(5) of the Constitution---Definition, scope and effect---Exclusion of High Court from definition of "person" in Art.199(5) of the Constitution---High Court acting under special jurisdiction---Scope---Question before the High Court was whether the High Court was not to be treated as "High Court" for purpose of Art.199(5) of the Constitution when the same acted under special jurisdiction as a Company Court under the Companies Ordinance, 1984---Held, that even conferment of special jurisdiction upon High Court did not open it to a writ under Art.199 of the Constitution and where High Court acted as a Court under the Companies Ordinance, 1984, even then a writ could not be issued upon it in terms of exercise Constitutional jurisdiction Art.199 of the Constitution.

Kamaluddin Qureshi v. Ali International Co. PLD 2009 SC 367 and Muhammad Shafi v. Attaullah 1984 SCMR 1124 ref.

Tank Steel and Re-rolling Mills (Pvt) Ltd. v. Federation of Pakistan PLD 1996 SC 77 rel.

Zahid F. Ebrahim, Additional Attorney General of Pakistan and Kashif Sarwar Paracha, Deputy Attorney-General of Pakistan for Petitioners.

Dr. Chaudhry Waseem Iqbal for Respondent No.1.

Ghazanfar Ali Jatoi for Respondent No.2.

Khalid Jawed Khan for Respondent No.3.

Nemo for Respondents No. 4.

P L D 2020 Sindh 129

Before Nazar Akbar, J

ARTHUR LAWRENCE (PRIVATE) LTD.---Applicant

Versus

Messrs ACTLAW through Patron---Respondent

Revision Application No.82 of 2018, decided on 5th April, 2019.

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

----Ss. 115, 6 & 15 & O. VII, R. 10---Revision before High Court---Procedure---Revision, in the present case, was filed before High Court without availing remedy before District Judge---Validity---Power of High Court with regard to the cases decided by any Court subordinate to High Court in which no appeal lay was not subject to any limitation---Revisional power of District Court was dependent on its pecuniary jurisdiction---Revisional power of Court was unfettered when it was exercised by the High Court and/ or District Court suo motu---When such jurisdiction had been invoked then copies of all the proceedings should have been furnished and revision should have been filed within ninety days from the date of order in which no appeal lay---Revisional powers of High Court and District Court were concurrent only when it was exercised by said courts at their own---Pecuniary value of claim of petitioner, in the present case, did not exceed the limits of appellate jurisdiction of District Court---If suit had been dismissed or decreed by the Trial Court on merit then first appeal would lie before District Judge on account of pecuniary value of the decretal amount---When revisional jurisdiction had been invoked against a particular order then it would not be a case of concurrent jurisdiction and mandatory provisions of S.6 read with Ss.15 to 20 of C.P.C. were also be considered---Aggrieved party had no option in the matter of jurisdiction of Court and it should respect each and every word of statute with regard to the jurisdiction---Every suit was to be instituted in the Court of lowest grade---Provisions of Ss.6 & 15 of C.P.C. were to be complied with while filing revision/appeal---Revision/appeal could not be filed in the High Court unless pecuniary value of the subject matter did exceed the appellate jurisdiction of District Court---When case had been filed in a Court which had no jurisdiction on pecuniary ground then plaint/revision should be returned to the party to file it in the Court having both territorial and pecuniary jurisdiction within limitation prescribed for filing the same---Petitioner had consumed more than ninety days time to overcome objection raised by the office---Revision petition could not be presented in the Court of District Judge after expiry of ninety days which was dismissed, in circumstances.

Muhammad Din v. Muhammad Amin PLD 1995 Lah. 15 and Mst. Safia Mushtaq v. Wali Muhammad and 18 others 2010 CLC 120 distinguished.

Khalid Ahmed and another v. Syed Hassan Shah Bukhari and others 1994 MLD 903; HOECHST Pakistan Limited and others v. Maqbool Ahmed and another 1998 CLC 134 and Shafi-ur-Rehman and 2 others v. Fateh Muhammad PLD 2002 Kar. 511 rel.

(b) Appeal---

----Appeal/revision was a continuation of original suit.

(c) Interpretation of statutes---

----Court could not interpret one section of an Act which might render the other mandatory provision of the said Act meaningless.

Ravi R. Pinjani for Applicant.

Nemo for Respsondent.

P L D 2020 Sindh 136

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

PROVINCE OF SINDH and others---Appellants

Versus

Messrs PAKROCK CORPORATION (PVT.) LTD. and others---Respondents

High Court Appeal No.317 of 2019, decided on 22nd October, 2019.

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

----Ss. 3 & 5---Void order---Appeal against purported void order---Limitation period---Party could not take refuge for not challenging an order on the ground that it was a void order---Incumbent upon a party claiming the order to be void to establish invalidity of the said order and also to prove that the order was without jurisdiction.

Blue Star Spinning Mills Ltd. v. Collector of Sales Tax 2013 SCMR 587 ref.

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

----S. 3---Limitation period, expiry of---Vested right---Law helped the vigilant and not the indolent and after the expiry of the limitation period a vested right was always created in favour of the other side.

Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 ref.

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

----Ss. 3 & 5---Condonation of delay, application for---Scope---Once limitation started it could only be condoned after considering valid, cogent and plausible reasons for the same.

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

----S. 3---Limitation period, expiry of---Court, duty of---Scope---Court was duty bound to dismiss a lis before it if the same was barred by limitation and no plausible explanation had been furnished, with regard to such delay.

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

----Ss. 3 & 5---Condonation of delay, application for---Scope---In a time barred matter each day's delay had to be satisfactorily explained.

Commissioner of Income-Tax v. Rais Ahmed Khan 1981 SCMR 37; Nakuleswar Sikdar v. Barun Chandra Chakravorty and another 1971 SCMR 54; Government of Punjab through Secretary (Services) Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558 and The Deputy Director, Food, Lahore Region, Lahore and others v. Syed Safdar Hussain Shah 1979 SCMR 45 ref.

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

----S. 12(2) & O.XXIII, R.3---Compromise/consent decree---Fraud and misrepresentation---Decrees obtained on the basis of consent/compromise were not challengeable until and unless the same were proved to be obtained by way of fraud and misrepresentation.

Karachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others 2001 SCMR 1277 and Zaibun Nisa Habib v. Ally Rasool 1989 SCMR 416 ref.

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

----Ss. 3 & 5---Government department/functionary---Delay in filing lis---Administrative delays---Not sufficient reason for condoning delay---Government functionaries/agencies were equal before the Courts and no preferential treatment could be shown to them---Such functionaries/agencies generally provided a stock explanation of administrative delays in their applications for condonation of delay---Such explanation did not constitute a sufficient cause or a reasonable ground to be attached any weight or credibility---In fact it constituted an admission of neglect---Anyone seeking condonation of delay was under legal duty to explain each day's delay and show vigilance to avoid such delays which fatally obviated a valuable remedy---High Court observed that when a case was decided against the Government/autonomous body/department on the question of limitation, a direction must be passed to the high-ups of the department so he/they may initiate departmental action against those officers who were directly or indirectly responsible for causing delay in instituting the cases beyond period of limitation and even in absence of such directions, it would be duty of such officer to take action accordingly because if such unscrupulous persons were not proceeded against, they would have no fear of causing huge losses to the Government/ autonomous functionaries at the cost of the public exchequer.

Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899; East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558; Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959; Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37; Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059; The Province of West Pakistan, Lahore v. Mian Noor Ahmad and others 1975 SCMR 91; Government of Balochsitan v. Abdul Nabi and another 1988 SCMR 1906; Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436 ref.

P L D 2020 Sindh 146

Before Muhammad Faisal Kamal Alam, J

HAYS TRADING AND SHIPPING through Authorised Representative---Plaintiff

Versus

M.V. MISKI and another---Defendants

Admiralty Suit No.02 of 2018, decided on 23rd September, 2019.

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

----S. 3---Admiralty Jurisdiction of the High Court---Claims actionable under the said jurisdiction---Scope---Where claim was made against defendants which included the defendant vessel and owner of such vessel, and conclusive evidence was led to establish factum of such ownership and such claim(s) was in respect of the vessel's cargo and ancillary issues thereto, then suit would be maintainable under S. 3 of the Admiralty Jurisdiction of High Courts Ordinance , 1980.

Khan Mamdot's case PLD 1971 SC 550 and Book Payne's Carriage of Goods by Sea 7th Edn. ref.

Dabinovic's case 1993 MLD 1587 distinguished.

Compagnie's case PLD 1986 Kar. 447 rel.

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

----Ss. 3 & 4---Merchant Shipping Ordinance, 2001 (LII of 2001) Ss.549, 550 & 551---Admiralty Jurisdiction of the High Court---Determination of claims under the said jurisdiction---Award of damages---Precedence of claims---Maritime liens---Liens for wages of crew and master of a vessel---Claims of the Port Authority to have priority---Scope---Under Admiralty Jurisdiction of the High Court, there were two kinds of damages, either general or special---Special damages were only to be awarded when a party successfully proved actual losses suffered---General damages could be rewarded by invoking rule of thumb if circumstances so warranted---Wages of crew and master of a vessel were covered under Ss. 549, 550 & 551 of the Merchant Shipping Ordinance, 2001 and such category of claims were a "maritime lien", which was charge on the res (vessel) and travelled with such vessel---Such claim had precedence over claim of a mortgagee of a vessel---Charges / dues of a Port Authority were to be ranked at top of all claims provided that such Port Authority had acted diligently.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 749; Bourbon's case 2018 SCMR 1828; Twaha' case PLD 1982 Kar. 749; Hgong Leong's case PLD 1991 SC 1022 rel.

Abdul Razzaq for Plaintiff.

Khuram Rashid for Defendants Nos.1 and 2, Dr. Chaudhry Wasim Iqbal, Official Assignee.

P L D 2020 Sindh 158

Before Muhammad Iqbal Kalhoro, Mohammad Karim Khan Agha and Shamsuddin Abbasi, JJ

JUNAID REHMAN ANSARI and others---Petitioners

Versus

The STATE and others---Respondents

C.Ps. Nos. D-584 of 2009, D-206 of 2010, D-3950 of 2012 and D-2784 of 2014, decided on 16th September, 2019.

(a) Interpretation of statutes---

----Court, role of---Scope---Legislative intent---If a statute has expressly provided for something without any ambiguity then there is no question of the Court interpreting the same as legislative intent is clear and Act / Ordinance must be given effect to unless it is deemed to be contrary to the Constitution---Judiciary's role of interpretation of statute only arises when statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the Constitution and in such cases it is for the judiciary to interpret that piece of legislation by trying to ascertain intent of Parliament in passing such legislation--- Courts have absolutely no authority or power to substitute their views for those intended by legislature simply because they may disapprove of a particular and the way in which that law is being applied.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

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

----S. 21F---Constitution of Pakistan, Arts. 4, 12, 13 & 25---Remissions---Amendment in law---Violation of Constitutional guarantees---Petitioners assailed insertion of S. 21F in Anti-Terrorism Act, 1997, and sought the same to be struck down from the statute as the same was harsh for convicts--- Validity---Rise in terrorist acts in Pakistan from year 1997 up to 15-8-2001 when S.21 F was incorporated in Anti-Terrorism Act, 1997, prompted the legislature to make the amendment for deterrent purposes---Whether or not denial of remission was harsh for convicts under Anti-Terrorism Act, 1997, was not for High Court to pass judgment on such issue and was within the domain of legislature; it was the legislature in its own wisdom, reasons, aims and objectives in inserting S. 21F in Anti-Terrorism Act, 1997---Despite insertion of S. 21F in Anti-Terrorism Act, 1997, over 18 years ago, none of the three successive democratically elected legislatures deemed it fit to remove S. 21F from Anti-Terrorism Act, 1997, which was an indication that successive legislature were satisfied that S. 21F was justified in Anti-Terrorism Act, 1997---Provision of S. 21F of Anti-Terrorism Act, 1997, did not violate Arts. 4, 12, 13 or 25 of the Constitution and High Court upheld the provision of S. 21F of Anti-Terrorism Act, 1997---High Court, however, directed Anti-Terrorism Courts to exercise great care and caution in determining whether cases before them fell under Anti-Terrorism Act,1997, based on the requirements of S. 6 of Anti-Terrorism Act, 1997, as remissions were not applicable in cases under Anti-Terrorism Act, 1997 which concerned heinous offences having a special object and intent aimed at destabilizing the State and its institutions and cowering it citizens through installing in them a sense of fear and insecurity---In absence of ingredients of S. 6(1)(b) & (c) of Anti-Terrorism Act, 1997, cases were to be tried under ordinary criminal law---Provisions of S.6(1)(b) & (c) Anti-Terrorism Act, 1997, were pre-conditions which needed to be satisfied before S. 6 of Anti-Terrorism Act, 1997, could be attracted by virtue of the offences set out in S.6(2) of Anti-Terrorism Act, 1997---Constitutional petition was dismissed in circumstances.

Saleem Raza v. The State PLD 2007 Kar. 216; Nazar Hussain and another v. The State PLD 2010 SC 1021; Mujeebur Rehman v. The State 2014 PCr.LJ 1761; Abdul Aziz Memon and others v. The State PLD 2013 SC 594; State of Haryana and another v. Jai Singh Supreme Court of India Appeal (Crl.) 661 of 2002; Jameel Ahmed v. State of Rajasthan and others 2007 Cri.LJ 2009; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483;Government of Balochistan v. Azzizullah Memon PLD 1993 SC 341 and Shah Hussain v. State PLD 2009 SC 460 rel.

Hammad Abbasi v. Superintendent, Central Adyala Jail, Rawalpindi PLD 2010 Lah. 428; Superintendent, Central Adyala Jail, Rawalpindi v. Hammad Abbasi PLD 2013 SC 223; Muhammad alias Khuda Bakhsh v. ATC Makran at Turbat and 2 others 2018 PCr.LJ 148; Mazhar Iftikhar v. Shahbaz Latif PLD 2015 SC 1; Ex. Brigadier Ali Khan v. Secretary, Home Department, Government of Punjab PLD 2016 Lah.509; Muhammad Ali v. The State 2018 YLR Note 191; Muhammad Nawaz and another v. The State 1987 SCMR 1399; Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan PLD 1991 Federal Shariat Court 236; Muhammad Ismaeel v. Secretary Home Department, Government of Punjab PLD 2018 Lah. 114; Ghulam Asghar Gadehi v. Sr. Superintendent of Police, Dadu and 4 others PLD 2018 Sindh 169; I.A. Sherwani v. Government of Pakistan 1991 SCMR 104; National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 2018; Baz Muhamamd Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Smith Kline and French of Pakistan Ltd. Karachi v. A. Rashid Pai and another PLD 1979 Kar. 212; Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Tariq Aziz-ud-Din and others: in re Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, 2010 SCMR 1301; Abdul Jabbar v. The Chairman NAB through Director General National Accountability Bureau and 3 others PLD 2016 Pesh. 298; Syed Wajih-ul-Hassan Zaidi v. Government of Punjab through D.C. Jhelum and 2 others 1996 SCMR 558; Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 and State of Haryana and others v. Mohinder Sindh (2000) (3 SCC 394) ref.

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

----S. 21F---Constitution of Pakistan, Art.4---Remissions---Right to be dealt with in accordance with law---Applicability---Every one convicted under Anti-Terrorism Act, 1997, is dealt in the same way in accordance with the law as provided in Anti-Terrorism Act, 1997, including its S.21-F---Provision of S.21F of Anti-Terrorism Act, 1997, is not violative of Art. 4 of the Constitution.

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

----S. 21F---Constitution of Pakistan, Art.12 (b)---Remissions---Protection against punishment---Applicability---Provision of Art.12(b) of the Constitution has no relevance in cases where a person is given a sentence prescribed under the law at the time when he committed the offence and whether remission was available or not under the statute for the offence which he committed---Provision of S.21F of Anti-Terrorism Act, 1997, is not violative of Art.12 of the Constitution.

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

----S. 21F---Constitution of Pakistan, Art.13---Remissions---Protection against double punishment---Applicability---Act of refusing remission to an accused does not amount to punish him for the same offence more than once---Such accused is only punished for one offence and question of availability of remission is governed by law and is a matter of concession not as of right---Issue of self-incrimination is not relevant in circumstances.

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

----S. 21F---Constitution of Pakistan, Art.25---Remissions---Discrimination---Applicability---Only Anti-Terrorism Act, 1997 deals with offences of "terrorism"---Unlike offences of corruption where there are numerous laws dealing with offences of corruption, it cannot be said that persons are treated differently in terms of remission if they are convicted for offences of terrorism since there is only one act namely Anti-Terrorism Act, 1997, for which an accused can be proceeded with if his offence meets the definition of "terrorism"---Persons who are convicted of acts of terrorism are of the same class and are treated the same in terms of remission---No remission is allowed to such accused and there is no question of any person who is convicted for an offence of terrorism under Anti-Terrorism Act, 1997, and is treated differently.

(g) Convention on the Prevention and Punishment of Crime of Genocide---

----Art. II---United Nations General Assembly Resolution 260A (III), dated 9-12-1948---Genocide---Scope---Murdering a large number of people does not amount to offence of genocide (although it may amount to extermination or mass murder) unless any of the following acts are committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births with the group; and (e) forcibly transferring children of the group to another group.

Raj Ali Wahid Kunwar, Ravi Pinjani and Haq Nawaz Talpur for Petitioners.

Ali Haider, Additional P.G. Sindh for the State.

Salman Talibuddin, Advocate General Sindh on Court Notice.

Kashif Paracha, Deputy Attorney General and Mukesh Kumar Khatri, Assistant Attorney General on Court Notice.

P L D 2020 Sindh 202

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

BASHIR AHMED and another---Appellants

Versus

The STATE---Respondent

Spl. Cr. A.T. Appeals Nos.112 and 168 of 2015 and Confirmation Case No.1 of 2019, decided on 6th February, 2019.

Penal Code (XLV of 1860)---

----302(b), 364-A, 376(2) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Criminal Procedure Code (V of 1898), 367(2)---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape, common intention, act of terrorism---Conviction and sentence, recording of---Record showed that the Trial Court had erred in sentencing and convicting the appellants by not recording separate convictions in respect of each offense for which the accused were convicted which was violation of S.367(2), Cr.P.C.---Counsel for the appellants and the State conceded to remand case to the Trial Court for re-writing the convictions and sentences in accordance with the law---Section 367(2), Cr.P.C., provided that for each offence in which the accused was charged and convicted separate sentence as prescribed by law was to be recorded for each conviction---Logic behind said section was that some offences might be compoundable whilst others not, thus, if all the sentences were jumbled up for each conviction it would be unclear whether the offence/sentence was compoundable or not---Said sections of the Penal Code, 1860 and Anti-Terrorism Act, 1997 respectively dealt with separate offences which provided separate punishments/sentences on conviction---When a person was convicted of any offence the Trial Court under S.367(2), Cr.P.C. was obliged under law to record a separate sentence for each and every offence for which he was convicted---Section 367(2), Cr.P.C., was mandatory for the court to record a separate conviction and sentence for each offence for which the accused had been charged which had not been done in the impugned Judgment---Case was remanded by the High Court to Trial Court with direction that the convictions and sentences in the judgment be properly recorded in all respects in accordance with the relevant law---Appeal was disposed of accordingly.

Irfan v. Muhammad Yousaf 2016 SCMR 1190 rel.

Abdul Razzak for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

P L D 2020 Sindh 208

Before Zafar Ahmed Rajput, J

Al-Haj Sheikh ABDUL HAFEEZ and another---Plaintiffs

Versus

SUHAIL ZAMAN and 6 others---Respondents

Suit No.1227 of 2004, decided on 18th November, 2019.

(a) Acquiescence, doctrine of---

----Connotation---Acquiescence occurs when a person knowingly stands by without raising any objection to infringement of his rights, while someone else unknowingly and without malice afterthought acts in a manner inconsistence with his rights---Result of acquiescence is that person whose rights are infringed may lose ability to make a legal claim against infringer---Doctrine of acquiescence infers a form of 'permission' that results from silence or passiveness over an extended period of time---Plea of acquiescence is applicable to suits for which a period of limitation is prescribed by law---Mere delay in asserting right does not constitute "acquiescence".

B.L. Sreedhar and others v. K.M. Munireddy (Dead) and others AIR 2003 SC 578; Sailala v. Smt. Ngurtaiveli AIR 1980 Gauhati 70; Talha Sarfraz v. Azad Government of th State of Jammu and Kashmir through Chief Secretary and 16 others 2013 YLR 652; Uda Begam v. Imam-ud-Din and others L.L.R. 1 All 82 and Ramsden v. Dyson 1866 L.R. 1 HL 129 rel.

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

----Ss. 39, 42 & 54---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 2(c) & 9---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--- Suit for declaration, injunction, cancellation and damages---Forged General Power of Attorney---Onus to prove---Privity of contract---Suit property was transferred via registered gift between plaintiffs---Defendants and Bank claimed that property was mortgaged via General Power of Attorney and that there was privity of contract---Plea raised by defendants was that suit was to be tried by Banking Court---Validity---Where a document was repudiated by its executant or any other claiming under him as a forged document, party claiming under such document would prove that document was genuine---Onus was on beneficiaries as presumption of truth attached to registered document was rebuttable which stood rebutted when a document was repudiated by its executant---Plaintiffs denied execution of General Power of Attorney claiming same to be a forged document, with supportive evidence of forensic expert, therefore, burden to prove its execution shifted on defendants who got benefit out of General Power of Attorney---Defendants and Bank failed to prove execution of General Power of Attorney by producing persons in whose presence same was executed---Court was not bound to presume its execution in favour of attorney with effect that no authenticity could be attached to it being obtained by him fraudulently---Plaintiffs by filing suit on being aware about fraudulent acts and mortgage created in favour of Bank took proper action---Plaintiffs were not beneficiaries of finance facility availed by defendant from Bank and thus were not legally bound to repay the same---Bank acted carelessly while sanctioning finance facility in favour of defendant---Nothing was produced in evidence by it that any physical inspection was made in order to ascertain possession over subject property---Chain of title documents was not demanded from defendant before sanctioning finance facility---Alleged conveyance deed had no legal consequences, equitable mortgage also had no legal effects---Suit was decreed in circumstances.

Abdul Majid Khan v. Towseen Abdul Haleem and others 2012 CLD 06 and Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 SCMR 507 ref.

(c) Fraud---

----Legal proceedings---Effect---Fraud vitiates most solemn of proceedings---Whenever any transaction is declared null and void then whole series of such order along with superstructure built upon the same is bound to collapse.

Al-Meezan Investment Management Company Ltd. and 2 others v. WAPDA First Sukuk Company Limited Lahore and others PLD 2017 SC 1; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Lal and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Ghias-ud-Din v. Iqbal Ahmed and 5 others PLD 1975 Lah. 780 and Mst. Sarwari Begum v. Atta-ur-Rehman 1997 CLC 1500 rel.

(d) Damages---

----General damages, claim for---Assessment---Principles---Person claiming general damages relating to mental torture, anguish, distress and defamation; are to be assessed following the Rule of Thumb and the said exercise falls in the discretionary jurisdiction of the court which has to decide it in the facts and circumstances of the case.

Abdul Majid Khan v. Towseen Abdul Haleem and others 2012 CLD 6 and Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 SCMR 507 rel.

Salahuddin Ahmed, Rehman Kiyani and Nadeem Ahmed for Plaintiffs.

Suhail Zaman Defendants No.1 (Ex-parte).

Sub-Registrar "T" Division-XV Defendant No.2 (Ex-parte).

Shamim Ahmed for Defendant No.3 (Ex-parte).

Amel Kansi for Defendant No.4.

Secretary Board of Revenue Sindh Defendant No.5 (Ex-Parte).

Mazhar Hussain Shah for Defendant No.6 (Ex-parte).

Sub-Registrar "T" Division 1-B Defendant No.7 (Ex-parte).

P L D 2020 Sindh 221

Before Syed Hasan Azhar Rizvi and Zulfiqar Ahmed Khan, JJ

SALEEM KHOKHAR---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Social Welfare and Women Development Department and 4 others---Respondents

Constitution Petitions Nos.D-3073 of 2012 and D-6448 of 2015, decided on 11th February, 2020.

Societies Registration Act (XXI of 1860) ---

----S. 1---Voluntary Social Welfare Agencies (Registration and Control) Ordinance (XLVI of 1961), Preamble---Companies Act (XIX of 2017), S.10---Trade Marks Ordinance (XIX of 2001), S. 40(5)---Karachi Young Men's Christian Association ('YMCA society'), properties of --- Misuse and usurpation of such properties by deceptively similar named agency and company called 'Karachi YMCA' and 'YMCA company' respectively---Nazir of the High Court was put in charge to manage the affairs of YMCA society and he tried to conduct elections twice for electing management of the society, but the same yielded no results---High Court directed that the Nazir shall hand over all accounts, book, assets, responsibilities, roles of 'YMCA society' to its international parent body 'YMCA Asia'; that in this reconstitution and strengthening period of three years, new members be added and those who qualified from the existing membership be scrutinized; that once this strengthening exercise was completed, elections be announced as per the bye-laws of YMCA society, and that the relevant regulators were to take immediate action to stop entities such as 'Karachi YMCA' and 'YMCA company' from using the YMCA trade mark.

Properties in question were leased out about a century ago in the name of the Pakistan arm of the international Young Men's Christian Association ('YMCA society') and its operations were running as per usual business for a long time. Subsequent creation of 'Karachi YMCA' under a confusingly and deceptively similar name under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 ('the 1961 Ordinance') created a lever to illegitimately interfere with and scoop out the assets and properties of an international association under the disguise that YMCA society had become defunct upon promulgation of the 1961 Ordinance.

All efforts to hold elections of YMCA society since the year 2002 had failed miserably. Nazir of the High Court had been holding charge of the affairs of YMCA society for over 15 years, and tried to hold elections twice, with full authority and backing of court, however he had clearly failed in arresting the misuse and usurpation of YMCA society's land for private material gains, which blatant illegality was only arrested upon the intervention of the Chief Justice of the Supreme Court.

The piece of land leased out to an international association to run its globally harmonized operations in Pakistan for the last many years had resulted in no public good, except some unscrupulous elements had filled their pockets. This extremely pricey piece of land in the center of the city had not been put to any good use for the youth of the city (Karachi). Putting Nazir of the High Court to manage the affairs of a local arm of a successfully run international organization had not worked, neither it was viable in long run nor an appropriate remedy for the revival YMCA society to its original glory.

Re-run of Nazir holding elections would not yield any results, unless the body to whom the land was entrusted upon came forward, took charge of the affairs of its Karachi arm of YMCA and tried to clean the mess latter's inactivity and non-indulgence had created, which, would not be possible without the active participation of the parent body 'YMCA Asia'. Therefore it would be just and proper to give some time to this parent organization to come forward practically through carefully chosen individuals, take over day to day operations of YMCA's assets in Karachi and run it as per the best practices as the experiment of running this arm of global YMCA for the last 15 years through Nazir had only brought more complications, with no benefits to young Christians, for whom this infrastructure was intended to be beneficial.

High Court directed the Nazir to forthwith hand over all accounts, book, assets, responsibilities, roles to 'YMCA Asia', upon latter having nominated representative individual(s) to him for such purposes without intervention of any party, including the 'Karachi YMCA', 'YMCA company', as it was a matter of record, that these rival groups of YMCA society had been involved in corrupt practices and found to have acted against the interest of YMCA at large.

High Court further directed that 'YMCA Asia' shall ensure that land leased out to foster YMCA global roles would not be altered and would remain a sacred trust ensuring that it provided the same quality and standard of services to citizens of Pakistan which it had been rendering since the year 1913 around the globe; that in this reconstitution and strengthening period of three years, new members be added and those who qualified from the existing membership be scrutinized; that once this strengthening exercise was completed, elections be announced as per the bye-laws of YMCA society; that for entities other than YMCA society, use of the YMCA name and mark by other entities registered under the Companies Ordinance, 1984 (now repealed by the Companies Act, 2017) or the Ordinance of 1961, being an infringement/passing off of the genuine YMCA trade mark, was forbidden under section 10 of the Companies Act, 2017 and applicable provisions of the 1961 Ordinance and the Trademarks Ordinance, 2001; that Securities and Exchange Commission of Pakistan (SECP) and the Provincial Director/ Co-ordinator of Social Welfare Department shall take immediate action as per law to call upon such other entities to stop using their names which infringed YMCA trade mark and force these entities to change their names to ensure that they were changed to the extent that new names did not cause any confusion and deception with YMCA; that till the time that happened, 'Karachi YMCA' and 'YMCA company' not be permitted to operate with the existing infringing and deceptive names.

Muhammad Farooq for Petitioner.

Amir Aziz Khan for Petitioner (in C.P.No. D-6448 of 2015).

Abdul Jalil Zubedi, A.A.G.

Ishrat Ghazali for Respondent No.5.

Alize Bashir for Respondent No.6.

Mansoor Mir for Petitioner/intervener.

Jibran Nasir for Applicant/intervener.

P L D 2020 Sindh 242

Before Mohammed Karim Khan Agha and Omar Sial, JJ

QURBAN ALI SHAH and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Federal Secretary and others---Respondents

Constitutional Petitions Nos.D-1731 of 2014, D-5841 of 2018 along with Constitutional Petitions Nos.D-5528, D-5529, D-5530, D-5531, D-5532, D-5533, D-5534 and D-6866 of 2019; decided on 3rd February, 2020.

(a) Constitution of Pakistan---

----Art. 90(1)---Directive issued by the Prime Minister---No binding effect---Directive of the Prime Minister on its own had no legal binding effect; it was merely an administrative order which the Prime Minister was at liberty to follow up and ensure its implementation through his good offices and take whatever action in accordance with law that he deemed appropriate in order to have his directive complied with.

(b) Constitution of Pakistan---

----Arts. 153, 154 & Fourth Sched. Pt. II, Sr No. 2---Council of Common Interest (CCI), powers of---Scope---Natural gas---Council of Common Interest (CCI) could formulate and regulate policies in respect of Gas, however making decisions regarding who paid for such policies was outside the domain of the CCI if an existing law passed by an Act of Parliament or regulation or rule or policy stemming from such law was already in the field dealing with the issue.

(c) Constitution of Pakistan---

----Arts. 153, 154 & 187(1)---Council of Common Interest (CCI), powers of---Scope---Supreme Court, judgment of---Judgment of the Supreme Court which had reached finality could not be set aside, changed, modified or varied by the Council of Common Interest---Judgments of the Supreme Court which had attained finality were absolutely legally binding on those who they affected, who must comply with the same or potentially face action under the law for such non-compliance.

(d) Constitution of Pakistan---

----Arts. 187 & 189---High Court bound by judgment/directions of the Supreme Court---High Court had no authority under the Constitution to determine whether a direction of the Supreme Court had been passed legally or not or was implementable---Under the Constitution a High Court was bound by a Supreme Court judgment once it had reached finality and was bound to follow it and implement it.

(e) Constitution of Pakistan---

----Arts. 154 & 187(2)---Natural Gas Regulatory Authority (Licencing) Rules, 2002, R. 20(v)---Natural Gas Allocation and Management Policy, 2005, Para. 6.2---Council of Common Interest, powers of---Scope---Implementation of judgment of the Supreme Court (to be bound) by the High Court---Ministry of Petroleum and Natural Resources was directed by the Supreme Court to provide gas to all the surrounding localities/villages falling in the radius of 5 km, of all Gas Fields, on priority basis---Subsequently Council of Common Interest (CCI) decided that expenditure involved in provision of gas to localities was to be borne by the gas distribution companies---Held, that the decision of the CCI was not legally binding on the distribution companies when the Supreme Court in its judgment had already placed the obligation on the Federal Ministry of Petroleum and Natural Resources in accordance with law---Besides the Parliament by way of confirmation had not turned the decision of the CCI into a binding Act of Parliament---Gas distribution company was ready to carry out directions of the Supreme Court provided that the Federal Government provides the amount over and above the eligible cost criteria---High Court found such approach "in accordance with the law" as required by the directions given by the Supreme Court and directed the Federal Government to release funds to the gas distribution company within seven days and suspended the show cause notice for contempt of court issued to the concerned Federal Secretary.

Perusal of Rule 20(v) of the Natural Gas Regulatory Authority (Licencing) Rules, 2002, and paragraph 6.2 of the Natural Gas Allocation and Management Policy, 2005, showed that distribution companies were prima facie liable to provide gas to areas which met the cost criteria and that they were not obliged to pay for the provision of gas if to do so would be over and above the cost criteria unless the Federal Government made up the difference. From the record of present case it appeared that the gas distribution company had been proceeding on this basis and that in the past when the amount was over and above the eligible criteria the Federal Government had been making up the difference by way of grants which had enabled the gasification of some villages which fell outside the criteria.

Gas distribution company informed the court that in respect of the remaining villages in the Province which fell within the directions of the Supreme Court, they were ready, willing and able to carry out such directions provided that the Federal Government provide, as they had done in the past, the amount over and above the eligible criteria which was in the region of Rs.4.912 Billion. Such approach was "in accordance with the law" as required by the Supreme Court judgment being implemented in present proceedings.

Decision of the CCI where by cost of provision of gas was placed on the gas distribution company was not legally binding on the distribution companies when the Supreme Court in its judgment had already placed the obligation on the Federal Ministry of Petroleum and Natural Resources in accordance with law. Furthermore, the Parliament by way of confirmation had not turned the decision of the CCI into a binding Act of Parliament.

By way of a last and final chance, by showing judicial restraint, to enable the Ministry of Petroleum and Natural Resources to comply with directions of the Supreme Court, the High Court suspended the issuance of the show cause notice for contempt of court to the Secretary Ministry of Petroleum and Natural Resources and directed that the Federal Government shall pay the gas distribution company an amount of Rs.4.912 Billion within 7 days of the date of present order; that the distribution company was to commence work on the gasification of the remaining relevant villages in the Province within 7 days of the receipt of the said funds from the Federal Government which shall be completed within 6 months of the commencement of the work so that the Federal Ministry of Petroleum and Natural Resources through the distribution company could comply with directions of the Supreme Court in the most cost effective, expeditious and efficient manner to the benefit of the concerned villagers so that they may realize their fundamental right to life in its full meaning; that in the event that the Federal Government did not pay the amount of Rs. 4.912 billion to the distribution company within 7 days, the show cause notice issued to the Secretary Ministry of Petroleum and Natural Resources shall stand revived and he shall appear before the High Court in person and explain why he should not be proceeded with for contempt of court for violating directions of the Supreme Court which had remained unimplemented for the last 6 years.

(f) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to have natural gas---Such right particularly in cold areas during winters, especially when gas fields were located within 5 km of a village, was a fundamental right of such villagers, which formed part of the right to life guaranteed under the Constitution and which was also in consonance with an Islamic welfare state.

Makhdoom Ai Khan, Senior Advocate Supreme Court as Amicus Curie.

Salman Talibuddin, Advocate-General, Sindh.

Farmanullah, Associate of Asim Iqbal, for OGRA and SSGCL.

Ms. Rozeena Issa, Associate of Khaleeq Ahmed for Mari Petroleum.

Obaid-ur-Rehman Khan, for Plish Gas Company.

Manal Wasiq Khan for Respondent Nos.27 and 29.

Mahmood Ali and Zain-ul-Abidin Soomro for OGDCL.

Mahmood Ali Abbasi, Advocate.

Kashif Pracha, Deputy Attorney General-I along with Kashif Ali Director (Technical) DGPC and Syed Ejaz Ali Shah Legal Advisor DGPC.

Shahid Yousuf, DG (Gas) Petroleum Division.

Usman Arif Rai, Dy. Direcoter (Legal) Ministry of Energy (Petroleum Division).

Abdul Qadir Javed, AC (Revenue) Malir.

P L D 2020 Sindh 263

Before Aziz-ur-Rehman, J

Mst. RABIA QAVI and others---Appellants

Versus

Mst. HINA QAVI KHAN and others---Respondents

Miscellaneous Appeal No.12 of 2019, decided on 7th October, 2019.

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

----S. 373(3)---Succession certificate, grant of---Nature and scope of S.373 of the Succession Act, 1925 ---Where there was no dispute regarding status of legal heirs but only dispute was regarding "quantum of amount" which a legal heir under law was entitled to receive, then such a dispute, prima facie, was not beyond the scope of S.373 of the Succession Act, 1925.

Aziz Ahmed v. Hakimzadi and 7 others 2013 CLC 406; In the matter of: Succession of the Assets Securities, Properties and Accounts of late Javed Iqbal Ghaznavi PLD 2010 Kar. 153; Abdul Ghaffar v. Government of Sindh through Secretary Food and 4 others 2017 PLC (C.S.) 625; Liaquat Ali v. Mst. Huma Faiz and another PLD 2018 Sindh 251; Muhammad Javed and another v. Mst. Roshan Jahan and 2 others PLD 2019 Sindh 1 and In Re: Mst. Shamim Akhtar and others PLD 1994 Kar. 237 ref.

(b) Islamic law---

----Inheritance---Tarka---Concept---Insurance policy payout---Nominee, obligation and status of---Scope---"Nominee" of a deceased's insurance policy was under obligation to collect such benefits / amounts which formed part of the "Tarka" and distribute the same among all legal heirs---All other benefits, amounts, or assets which did not make part of the "Tarka" under law must go to the nominee as otherwise the same would defeat purpose of nomination---"Tarka" was a financial benefit which a deceased during his/her life time was not only authorized to, but also entitled to withdraw or get such benefits from an employer---All other benefits which were yet to mature, and which a deceased could not get during his / her lifetime did not form part of "Tarka"

Aziz Ahmed v. Hakimzadi and 7 others 2013 CLC 406 and Muhammad Javed and another v. Mst. Roshan Jahan and 2 others PLD 2019 Sindh 1 rel.

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

----Ss. 371, 372 & 373---Succession certificate, grant of---Life insurance policy---Nominee of a Life Insurance Policy---Nature---Scope---Money due under a "Life Insurance Policy" and payable to nominee of such policy was a debt for purpose of obtaining a succession certificate --- Nomination was a mandate which came to an end and expired upon death of nominee.

Mirza Muhammad Amin v. Government of Pakistan PLD 1982 FSC 143 rel.

Asif Ibrahim of Messrs Rokadia Law Associates for Appellants.

Kashif Haneef and Zafar Iqbal Arain for Respondents Nos. 1 and 2.

P L D 2020 Sindh 284

Before Salahuddin Panhwar and Adnan Iqbal Chaudhary, JJ

GHULAM ALI---Petitioner

Versus

PROVINCE OF SINDH through Senior Member, Board of Revenue, Sindh and 12 others---Respondents

Constitutional Petition No. D-451 of 2016, decided on 1st October, 2019.

(a) Sindh Tenancy Act (XX of 1950)---

----S.2 (2) & (5)---Tenant and tenancy (Hari)---Tenant, rights of---Scope---Labouring (tenancy) is a contract where one agrees to provide his services (doing hard physical work) against certain considerations which, in no law, is an offence till the time the object (labour) is legal---Purpose of labouring could be nothing but to earn a livelihood for needs of one's self, including his family but same must never be at the cost of his liberty, life and dignity which otherwise are considered unalienable rights of a free man, which a man even with his consent, cannot trade---Where one becomes a Hari (peasant) he otherwise agrees to provide his services against certain consideration which landlord/Zamindar is always legally obliged to provide---Existence of a contract between the two (Hari/peasant and Zamindar/landlord) wherein rights and obligations are presumably agreed---Mere naming of such rights and obligations as Sindh Tenancy Act, 1950, were never of much importance as the same were already presumably agreed between two individuals unless Sindh Tenancy Act, 1950, had provided mechanism of enforcement of rights and obligations coupled with an action in case of breach.

(b) Constitution of Pakistan---

----Art. 4---Protection of law---Livelihood (Rozi)---Scope---Rozi/ livelihood is never confined to bread only but it always includes unalienable guaranteed Fundamental Rights which include but are not limited to liberty and dignity.

(c) Administration of justice---

----"Court" and "tribunal"---Distinction---Both Court and tribunal make judicial determination therefore both can be termed as synonyms to each other to such an extent---If creation of tribunal is meant "to impose liability or to affect the rights" then such tribunal, though constituted under special enactment for specific purpose (issue) would fall within the meaning of a "court"---Any "Authority", even if named as Tribunal may not necessarily fall within the meaning of a "Court" but only those Tribunals fall within such definition which are to exercise judicial power thereby passing a conclusive judgment determining rights and liabilities capable of being enforced by it---Mere performance of quasi-judicial functions by itself alone may not be sufficient to bring such Authority/Forum within the meaning of a 'Court' if the purpose is solely meant to investigate/inquire into a dispute for issuance of a direction/recommendation without a 'binding effect' regarding rights and liabilities of contesting parties or that purpose is only to regulate affairs and to maintain the records.

Black's Law Dictionary (Ninth Edition); Iftikhar Ahmed v. MCB Ltd. PLD 1984 Lah. 69 and Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 rel.

(d) Constitution of Pakistan---

----Art. 175(3)---Executive and judiciary---Separation of powers---Scope---Phrase 'progressively separated'---Scope---Phrase 'progressively separated' meant that at the time it, perhaps, was not practicable to part the Executive from assigned judicial powers but since it, even at such time, found to be not advisable to leave judicial powers with executives so 'progressively (complete) separation' was insisted because 'judicial power' as was insisted could not be asked unless the person, assigned such duty: (a) his understanding of the law; and (b) without improper influences, inducements or pressures direct or indirect, from any quarter or for any reason---Understanding of law for determination of a right and liability always demands 'judicial determination' which without proper knowledge and skill in understanding and interpretation of law cannot be hoped---Mere acquaintance of law in addition to specifically assigned 'executive or administrative' duties/works to an 'official' would never be sufficient to assign him with power of jurisdiction, requiring judicial power.

Sharaf Faridi's case PLD 1994 SC 105 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

(e) Sindh Tenancy Act (XX of 1950)---

----Preamble, Ss. 23, 24, 27, 29, 30 & 34---Sindh Tenancy Rules, 2002, R. 3---Constitution of Pakistan, Arts. 4, 175, 202 & 203---Vires of provisions of Sindh Tenancy Act, 1950---Terminating / ejecting tenant from tenancy---Fundamental rights, preservation of---Petitioner was tenant (Hari) of respondent who was forcefully dispossessed from his property with his house being demolished---Validity---Purpose of Sindh Tenancy Act, 1950 was meant to determine rights and liabilities between two independent parties, i.e., agricultural tenants and landlords---Word 'regulate' in Preamble of Sindh Tenancy Act, 1950 was not of any substance so as to prejudice term 'determination' which was duty of Tenancy Tribunal---Duty always had created a 'right' hence it was the defined 'duties' of tenant/Hari which earned him certain rights which was not limited to receive what tenant/Hari was entitled from cultivation only but it included a right to enjoy protection against ejectment/termination of tenancy---After separation of power of judiciary from the Executive, the Assistant Commissioner, the Additional Commissioner and the Commissioner/Collector did not have jurisdiction to make judicial determination under Ss. 27, 29 & 30 of Sindh Tenancy Act, 1950---To such extent provisions of Sindh Tenancy Act, 1950, were ultra vires the Arts. 175, 202 & 203 of the Constitution---High Court directed that till such time necessary amendments were made to Sindh Tenancy Act, 1950, proceedings under Ss. 27, 29 & 30 of Sindh Tenancy Act, 1950, were to be transferred to District Court concerned where District Judge would assign tenancy applications under S. 27 of Sindh Tenancy Act, 1950 to Civil Court exercising territorial jurisdiction and appeals and revisions pending under Ss. 29 & 30 of Sindh Tenancy Act, 1950, would be decided by concerned District Judge or Additional District Judge---High Court set aside orders passed by Assistant Commissioner and Additional Commissioner under Ss. 27 & 29 of Sindh Tenancy Act, 1950 and directed that tenancy application under S. 27 of Sindh Tenancy Act, 1950, filed by petitioner would be decided afresh by Civil Judge---Constitutional petition was allowed accordingly.

Human Rights Commission of Pakistan and others v. Government of Pakistan and others PLD 2009 SC 507 rel.

Province of Sindh through Chief Secretary and another v. Rasheed A. Rizvi and others PLD 2012 SC 649 and Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 ref.

Ali Ahmed Palh and Abdul Sattar Sarki for Petitioner.

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

Jhamat Jethanand, Muhammad Suleman Dahri and Jawad Ali Sahar Amici curiae.

P L D 2020 Sindh 352

Before Muhammad Faisal Kamal Alam, J

Dr. HASAN FATIMA JAFFERY and 2 others---Plaintiffs

Versus

ROYAL SAUDI CONSULATE KARACHI through Counsel General and another---Respondents

Suit No. 972 of 2005, decided on 18th December, 2019.

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

----S. 86-A---Diplomatic and Consular Privileges Act (IX of 1972), Art. 43---State Immunity Ordinance (VI of 1981), Ss. 5 & 7---Limitation Act (IX of 1908), Art. 110---Diplomatic immunity, exceptions to---Arrears and default in payments---Limitation---Plaintiffs filed suit for recovery of money and declaration on grounds that defendants had caused damage to property and had defaulted in payment of rent and utility bills---Plea raised by defendants was that they enjoyed diplomatic immunity and suit was not maintainable---Validity---Transaction in question was between plaintiffs as landlords and defendants as tenant in its official capacity as Consulate General of Saudi Arabia---Privilege of diplomatic immunity could not be extended to defendants in such circumstances and in view of provisions of State Immunity Ordinance, 1981 and evidence which had come on record---Suit was filed on the time when utility bills remained unpaid and as per Art.110 of Limitation Act, 1908 three years' time was mentioned for recovery of arrears of rent---Non-payment of utility bills also formed part of arrears of rent, therefore, suit was within time and not a time barred claim---Onus had shifted on defendants to prove their defence that after termination of lease period as per lease agreement, possession was handed over to plaintiffs and defendants were not liable to pay any amount either towards rental, utility bills or damage---Plaintiffs being lawful owners/landlords in order to get their legitimate claim settled by defendants, were made to go through protracted pre-litigation negotiations and then litigation thus plaintiffs were at least entitled for general damages---High Court awarded damages and compensation to plaintiffs payable by defendants jointly and severally---Suit was decreed accordingly.

Dost Muhammad v. Pakistan Steel Mills and another 1996 CLC 530; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Messrs Nazir Muhammad & Brothers and others v. Islamic Republic of Pakistan 1990 CLC 729; Anwar Baig and another v. Mst. Naziran Bibi and 8 others 1987 CLC 1855; (Haji) Abdul Ghaffar Khan v. Gullah Jan PLD 1952 Pesh. 50; Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. 6; Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 SCMR 507; A. M. Qureshi v. Union of Soviet Socialist Republics and another PLD 1981 SC 377 and Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 ref.

Messrs Sakhi Dattar Cotton Industries and Oil Mills through Authorized Partner v. Messrs Mahmood Pvt. Ltd. and 4 others 2006 CLD 191; Imran Raza Shaikh and 5 others v. Mst. Zarina Gul and 4 others 2003 YLR 943 and Syed Salman Jahan v. Khalid Faisal N. Alotabi and 2 others Suit No.1429 of 2006 rel.

(b) Damages---

----Kinds---Damages are of two kinds; general and special and special damages are awarded only when a party successfully proves actual losses suffered by him/her.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737 rel.

Hamza Hidayatullah for Plaintiffs.

Muhammad Zubair Quraishy and Muhammad Rehan Quraishy for Defendant No.1.

Nemo for Respondent No.2.

P L D 2020 Sindh 365

Before Omar Sial and Zulfiqar Ali Sangi, JJ

Agha MASSIHUDDIN KHAN DURRANI and others---Petitioners

Versus

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

Constitution Petitions Nos. D-1437, D-2356, D-4604, D-2976, D-2235, D-2236, D-1776, D-1851, D-1850 and D-6623 of 2019, decided on 13th December, 2019.

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

----S. 9(a)(v)---Assets beyond known sources of income---Proof---Necessary ingredients---To establish an offence under S.9(a)(v) of National Accountability Ordinance, 1999, three ingredients have to be satisfied: Nature and extent of pecuniary resources of property which were found in his possession; it must be proved as to what was his known sources of income; and it must be proved, quite objectively, that such resources or property found in possession of accused were disproportionate to his known sources of income.

Hakim Ali Zardari v. The State 2007 MLD 910 rel.

(b) Police Rules, 1934---

----R. 25(1)---Criminal Procedure Code (V of 1898), S.4(l)---Investigation---Object, scope and purpose---Investigating officer is bound to find out the truth of the matter under investigation---Object is to discover the actual facts of the case and to arrest real offender or offenders---Investigating officer was not to commit himself prematurely to any view of the facts for or against any person.

(c) Criminal trial---

----Investigation---Essentials---Prosecution department is to ensure that investigation carried out and evidence collected is of such a nature and strength that it can withstand closer scrutiny when the case is in court.

(d) Constitution of Pakistan---

----Arts.10A & 25---Decisions by Courts of law---Principles---Perceptions may be stronger than reality but Courts of law cannot base their decisions on perceptions and presumptions unless the same are warranted by law---Each citizen pursuant to Art.25 of the Constitution is ensured equal protection of law---Every citizen has the right of a fair trial under Art.10-A of the Constitution.

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

----S. 18(c)---Criminal Procedure Code (V of 1898), S.103---Investigation---House search---Procedure---Procedure exists in law for a law enforcement agency to search a home of a person---National Accountability Bureau is to follow the procedure laid down in S.103 Cr.P.C. while conducting house search.

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

----Ss. 9(a)(v), (b) & 24---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Arrest during inquiry---Pre-conditions---Accused was Speaker Provincial Assembly and he was arrested by NAB during inquiry for acquiring assets beyond his known sources of income---Validity---Prosecution was to ensure that there were solid grounds to make arrests and that a person was not deprived of his liberty on whimsical and arbitrary reasons---No wisdom existed behind arresting people at inquiry stage unless the suspect was not cooperating with investigating officer to whom investigation was assigned; tampering or attempting to tamper with witnesses or evidence or there were strong reasons that accused was likely to flee from the jurisdiction or for some other valid reason---In the present case, on tentative assessment of evidence, there were number of aspects which had made the case against petitioner one of further inquiry---Mala fide on the part of NAB was floating on the face of record---Bail was allowed in circumstances.

Muhammad Hashim Babar v. The State and another 2010 SCMR 1697; Hakim Ali Zardari v. The State 2007 MLD 910; Khalid Aziz v. The State 2011 SCMR 136; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Abdul Aziz Memon v. The State and others PLD 2013 SC 594; Chairman National Accountability Bureau v. Mian Mohammad Nawaz Sharif and 2 others PLD 2019 SC 445; Khan Asfandyar Wali v. Federation of Pakistan PLD 2061 SC 607 and Sughran Bibi v. The State PLD 2018 SC 595 ref.

Aamir Raza Naqvi, Shahab Sarki, Syed Ahmed Raza Shah and Ghulam Shah along with Petitioners except petitioner Agha Siraj Khan Durrani (in C.P. No. D -2356 of 2019, who is in custody).

Aamir Mansoob Qureshi and Muhammad Rehman Ghous along with Petitioners (in C.Ps. Nos. D-2235, D-2236 and D-1851 of 2019).

Dur Muhammad Shah and Fateh Muhammad along with Petitioner (in C.P. No. D-1776 of 2019).

Haad A. M. Paganwala and Zain Soomro along with Petitioner (in C.P. No. D-6623 of 2019).

Malik Naeem lqbal and Altaf Jawaid along with Petitioner (in C.P. No. D-2976 of 2019).

Allah Nawaz Dull for Petitioner (in C.P. No. D-4604 of 2019).

Muhammad Anwar Tariq along with Petitioner (in C. P. No.D-1850 of 2019).

P L D 2020 Sindh 377

Before Muhammad Ali Mazhar and Agha Faisal, JJ

DAR-UL-SUKUN through Authorized Representative and 4 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary, Karachi and another---Respondents

Constitutional Petition No. D-7679 of 2019, decided on 12th December, 2019.

Sindh Senior Citizens Welfare Act, 2014 (XXI of 2016)---

----Ss. 8, 9, 10, 12 & 19---Old age homes---Governing Council, duties of---Petitioner sought directions to the authorities for enforcement and implementation of Sindh Senior Citizens Welfare Act, 2014---Validity---Mere establishing a Council or making legislation was not enough without its proper enforcement and implementation---Provisions of Sindh Senior Citizens Welfare Act, 2014 were most beneficial and meaningful in larger interest of senior citizens---Sindh Senior Citizens Welfare Act was made in 2014 and notified in year 2016 but despite lapse of considerable period, its proper implementation was in limbo---Only a Council was constituted with number of members and one chairperson who were not taking any swift action---High Court directed council to move a summary to Sindh government for requisite allocation of funds for establishing Senior Citizens Welfare Fund---High Court further directed to notify Rules framed under S.19 of Sindh Senior Citizens Welfare Act, 2014---Constitutional petition was disposed of accordingly.

Yahya Iqbal for Petitioners.

Jawad Dero, Additional Advocate General Sindh for Respondents.

Imdad Channa, Director (D&MC) Social Welfare Department and Muhammad Khalid, Additional Director, Social Welfare Department are present.

P L D 2020 Sindh 385

Before Muhammad Junaid Ghaffar, J

SUI SOUTHERN GAS COMPANY LIMITED through Authorized Officer---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY COMPANY LIMITED through Chief Executive Officer---Defendant

Suit No. 1641 of 2012, decided on 7th October, 2019.

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

----O. VII, R. 2 & O. XXXVIII, Rr. 1 & 5---Suit for recovery of money and damages---Application for attachment before judgment---Principle---Plaintiff sought property owned by defendant attached before judgment---Validity---Relief under O. XXXVIII, C.P.C. for attachment was a very harsh order to be made against defendant---Court, in granting such relief, was to be satisfied that plaintiff's cause, if of a prima facie nature was based on an unimpeachable averment / claim in plaint---Court must have reasons to believe on the basis of material before it that unless jurisdiction was exercised and orders as solicited were not passed, there was a real damage that defendant may remove itself from the territorial jurisdiction of the Court and an intent to avoid passing of a decree must be clearly shown with reasonable clarity---High Court declined to attach property of defendant before judgment---Application was dismissed in circumstances.

Messrs Tuwairqi Steel Mills Ltd. through Authorized Representative v. IIIrd Senior Civil Judge (South), Karachi and another 2017 CLC 1322; Dr. (Mrs.) Anwar Mangi v. Messrs Pak Commodities International and 2 others PLD 2018 Sindh 339; KASB Corporation Limited through Chief Executive Officer and another v. Bank Islami Pakistan Limited through President 2019 YLR 345; Al-Tamash Medical Society through Secretary v. Dr. Anwar Ye Bin Ju and 9 others 2019 CLC 1; Muhammad Saad and another v. Amna and 27 others 2015 YLR 1 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

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

----O. XXXVIII, R. 5---Application for attachment before judgment---Pre-conditions---Order under O.XXXVIII, R.5, C.P.C. was not to be passed by Court until pre-conditions as mentioned therein are fulfilled---Court was to be satisfied that defendant with intent to obstruct or delay execution of a decree which may be passed by Court, is selling or disposing of the property---Mere allegations to that effect in a generic manner are not sufficient.

Emperor v. Ghanshamdas Lokumal AIR 1946 Sindh 166; Girdharilal Kanji and others v. Kunvarji Keshavlal & Co AIR 1952 Saurashtra 125; Encyclopedia Britannica Inc. v. Pak American Commercial (Pvt.) Limited 1997 CLC 2003; Asif S. Sajan and another v. Rehan Associates PLD 2011 Kar. 542; Muhammad Ather Hafeez Khan v. Ssangyong and Usmani JV PLD 2011 Kar. 605; Associated Drillers Ltd. v. Dirk Verstoop BV PLD 1979 Kar. 734 and Mrs. Farhat Imrana v Etimad (Pvt.) Limited 2015 YLR 2674 rel.

Asim Mansoor Khan, Asim Iqbal and Muhammad Ali Talpur for Plaintiff.

Abid S. Zuberi and Ayan Mustafa Memon for Defendant.

P L D 2020 Sindh 400

Before Adnan Iqbal Chaudhry, J

MOHSIN ABBAS---Plaintiff

Versus

AIR WAVES MEDIA (PVT.) LTD. and 4 others---Defendants

Suit No. 1461 of 2016, decided on 16th October, 2019.

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

----O. XXXIX, R. 2---Specific Relief Act (I of 1877), S. 56---Interim injunction, grant of---Principle---Damages, quantification of---Effect---When provisions of O.XXXIX, R.2, C.P.C. permit plaintiff to apply for temporary injunction notwithstanding his claim for compensation it was a misconception to say that the quantification of damages in the pleadings will oust temporary injunction; in fact when plaintiff quantifies his damages that is not taken by court as a ground by itself to deny a temporary injunction, but it is taken as a factor in assessing whether denial of temporary injunction would result in irreplaceable harm or injury to plaintiff---Cases falling under S.56 of Specific Relief Act, 1877 are distinguishable, for in such cases a temporary injunction may also be refused on ground that when perpetual injunction cannot be granted, a temporary injunction should not be granted.

Sultan Ali Lakhani v. Mir Shakil-ur-Rehman PLD 1997 Kar. 41 and Muhammad Kashan v. Coca Cola Export Corporation 2015 CLD 1513 rel.

(b) Constitution of Pakistan---

----Arts. 19 & 19-A---Freedom of press---Limitations---Freedom of speech and press, including electronic media is a fundamental right enshrined in Art. 19 of the Constitution---Such right is not an absolute right and is subject to reasonable restrictions specified in Art. 19 of the Constitution itself---Right to have access to information in matters of public importance under Art. 19-A of the Constitution is also subject to regulation and reasonable restrictions imposed by law.

The test laid down by Lord Atkin in Sim v. Stretch (1936) 2 All ER 1237; Reynolds v. Times Newspaper Ltd. (1999) 4 All ER 609 and Sheikh Muhammad Rashid v. Majid Nizami PLD 2002 SC 514 rel.

(c) Constitution of Pakistan---

----Art. 19-A---Freedom of press---Doctrine of "qualified privilege"---Applicability---Defence of "qualified privilege" is available to press and electronic media on principle that on matters of public importance they are under a duty to report same to public who have a corresponding interest to know the same---Defence of "qualified privilege" can be defeated if plaintiff proves that defendant was actuated by malice or that maker did not believe statement to be true or that he made statement with reckless indifference to its truth or falsity.

Reynolds v. Times Newspaper Ltd. (1999) 4 All ER 609; Lord Atkin in Adam v. Ward, [1917] AC 309; Carter-Ruck on Libel and Privacy, 6th Edition.; Jameel v. Wall Street Journal Europe (2006) 4 All ER 1279 and Suo Motu Action Regarding Allegation of Business Deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar Attempting to Influence the Judicial Process PLD 2012 SC 664 rel.

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

----S. 8---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), S. 20(f)---Electronic Media Code of Conduct, 2015, Code 22(1)---Specific Relief Act (I of 1877), Ss. 53 & 56---Civil Procedure Code (V of 1908), O. XXXIX, R. 2---Constitution of Pakistan, Art. 19---Suit for recovery of defamation, recovery of damages and injunction---Interim injunction, grant of---Libelous news content---Proof---Quantification of damages---"Qualified privilege"---Scope---Plaintiff was aggrieved of broadcasting of libelous news content by defendants against him and sought injunction against future broadcasting and claimed damages---Validity---Given nature of news in question where imputation or allegation was that plaintiff was implicated by a court in a murder case, defendants had to meet standard of responsible journalism or due diligence set by Second Part of Code 22(1) of Electronic Media Code of Conduct, 2015 ---Defendants were subject under S.20(f) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 to provide plaintiff with a fair opportunity to defend such allegation before broadcasting---Defendants failed to meet minimum test of reasonable journalism or due diligence which was price for defence of qualified privilege---Plaintiff established a prima facie case, balance of convenience and case of irreparable harm should news be repeated---Quantification of damages was not by itself an impediment to exercise interlocutory discretionary relief---Nothing was available to show that defendants intended to broadcast any further news regarding plaintiff and that if they did, such news would be defamatory of plaintiff---High Court restrained defendants from repeating news in question---Application was allowed in circumstances.

Zulfiqar Ali Cheema v. Farhan Arshad Mir PLD 2015 SC 134; Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi PLD 2008 Kar. 458; Suo Motu Case Regarding Discussion in TV Talk-Show with regard to Sub judice Matters PLD 2019 SC 1; Bonnard v. Perryman (1891) 2 Ch. 269; Sultan Ali Lakhani v. Mir Shakil-ur-Rehman PLD 1997 Kar. 41 and Greene v. Associated Newspapers Ltd., (2005) 1 All ER 30 rel.

Muhammad Umar Lakhani and Syed Ali Ahmed Zaidi for Plaintiff.

Mehmood Ali and Gohar Mehmood for Defendants Nos. 1-2.

None for Defendant 3.

Qadir Khan Mandokhail for Defendant 4 in person.

Faqir Liaquat Ali for Defendant 5.

P L D 2020 Sindh 415

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

PORSCHE MIDDLE EAST AND AFRICA FZE and another---Appellants

Versus

AKBAR ADAMJEE and others---Respondents

High Court Appeals Nos. 252, 257 and 307 of 2019, decided on 30th January, 2020.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Necessary party to a suit---Misjoinder of parties---Impleadment of parties---Striking out name of party---Exercise of discretion under O. I, R.10, C.P.C.---Suit for declaration, specific performance of contract and permanent injunction filed by customer/plaintiff against international/foreign vehicle manufacturer and its local agent/ representative after non-delivery of vehicle purchased by plaintiff---Defendant international/foreign manufacturer impugned order of Trial Court whereby its application for deletion of its name from list of defendants, was rejected---Question before High Court was whether foreign/international manufacturer of imported vehicle was necessary party to suit when contract sought to be enforced was between plaintiff and local agent/seller of vehicle---Held, that issues in suit were yet to be framed and parties were not yet examined, and when it was found that local agent was looking after affairs of international manufacturer in Pakistan, hence international manufacturer could not claim to be aloof from suit when prayers in suit had also been made with regard to suspension of trade licence and agency of local manufacturer---Local agent and international/foreign manufacturer had direct nexus and concern with delivery of said vehicle when defendants had relationship of manufacturer and representative---Proper parties were those which had some benefit in respect of dispute between parties or person who had some interest in subject-matter of suit---High Court held that international manufacturer was proper and necessary party to suit---Appeal was dismissed, in circumstances.

Lawyers Foundation for Justice through Chairman v. Federation of Pakistan and others PLD 2019 Lah. 43; Engro Foods Ltd. through duly Authorized Attorney v. Province of Sindh through Secretary, Ministry of Labour and 2 others 2018 MLD 866; Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others 2017 YLR 1579; Tajuddin v. Ferozuddin Ahmed and 2 others 2010 YLR 256; Collector of Customs v. Messrs Ayaz Ahmed 2007 PTD 234; Zafar Iqbal and 3 others v. Nasreen Ahmed and 8 others 2014 CLD 1039; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; C.P. No.504-K of 2017; Civil Petitions Nos.1971, 1981, 1982 and 1983 of 2018; H.C.As. Nos.142 of 2015 and 180 of 2017 2018 PLC (C.S.) Note 131, p.125; Messrs Ismail Industries Limited through Authorized Officer v. Mondelez International and 2 others 2019 MLD 1029; House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19; Muhammad Matloob and 10 others v. Jamshed K. Marker and 2 others PLD 2006 Kar. 523; Syed Adnan Ashraf v. Syed Azhar-ud-Din through Attorney 2014 MLD 342; Ch. Habibullah and others v. Ali Muhammad Mohsin 1999 CLC 1798; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers Housing Authority and 2 others 2010 MLD 1267; Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092; Suit No.1453 of 2018; Dewan Mushtaq Motor Co. (Pvt.) Ltd. v. Umair Bin Zahid and 7 others 2015 MLD 1251; Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. (Formerly known National Detergents Limited) and another 1999 MLD 3173;Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited and another 1997 CLC 302; Commissioner of Income-Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368; Government of Pakistan through Ministry of Finance v. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others 1992 SCMR 1852; Messrs Caltex Oil (Pakistan) Ltd., Karachi v. Sheikh Rehan-ud-Din PLD 1958 (W.P.) Lah. 63; Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. Ltd. and another PLD 1986 Kar. 234 and Shahzad Trade Links through Sole Proprietor and another v. MTW Pak Assembling Industries (Private) Limited through Representative and others 2016 CLC 83 ref.

Ali S. Habib and others v. Dr. Sher Afghan Khan Niazi and others 2004 SCMR 1627 and Syntron Limited v. Huma Ijaz and others 2014 SCMR 531 rel.

Omair Nisar (in H.C.A. No.252 of 2019) and Muhammad Ali Lakhani (in H.C.As. Nos. 257 and 307 of 2019) for Appellants.

Khawaja Shams-ul-Islam (in all three H.C.As. for Respondent No.1).

Omair Nisar (in H.C.As. Nos. 257 and 307 of 2019 for Respondents Nos. 2 and 3).

Muhammad Bilal Bhatti (in H.C.A. No.252 of 2019 for Respondents Nos.3 and 5(ii)).

None present for Respondent No.4 (in H.C.A. No.252 of 2019 and for Respondent No.5 (in H.C.As. Nos. 257 and 307 of 2019).

Ms. Durdana Tanveer, Assistant Attorney General for Pakistan (in H.C.A. No.252 of 2019 for Respondents Nos.5(i) and (ii) and in H.C.As. Nos. 257 and 307 of 2019 for Respondents Nos.6(i) and (ii)).

P L D 2020 Sindh 427

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD FAISAL through General Power of Sub-Attorney and others---Plaintiffs

Versus

The CANTONMENT BOARD FAISAL, KARACHI through Cantonment Executive Officer and 2 others---Defendants

Suit Nos. 1295, 1296 of 2006 and 1461 of 2008, decided on 24th December, 2019.

(a) Registration Act (XVI of 1908)---

----S. 17---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Arts. 23 & 24---Suit for declaration and injunction---Ownership lease---Proprietary rights---Scope---Registered instrument (ownership lease), cancellation of---Procedure---Promissory estoppel---Locus Poenitentiae, principle of---Applicability---Plaintiffs were owners of suit properties leased in their favour by Cantonment Board (Board) through registered deeds which deeds were cancelled subsequently---Validity---Registered instrument could only be cancelled by a civil court of competent jurisdiction on ground of fraud or otherwise---All leases in question were ownership leases conferring proprietary rights and interests upon plaintiffs which were guaranteed under Arts. 23 & 24 of the Constitution---Such kinds of rights and interests could not be interfered with by merely communicating to plaintiffs decision that their leases had been cancelled either through public notice which had already been set aside by High Court in an earlier decision or through notice to plaintiffs in support of which no evidence was led by the Cantonment Board---Board had wrongly cancelled registered ownership leases of plaintiffs through two notices in question---Controversy of suit was hit by doctrine of promissory estoppel and locus poenitentiae because after issuance of ownership leases in their favour, plaintiffs had taken substantial steps and made investments in raising residential structure at suit plots and an attempt to deprive them of their ownership rights and interest resorting to such procedure was patently illegal---Suit was decreed in circumstances.

Rahman v. Yara through LRs. and others 2004 SCMR 1502; Mrs. Sultana Ahmed v. Sindh Industrial Trading Estte Ltd. through Managing Director and 2 others 2003 YLR 1760; PICIC v. Karachi Development Authority Case 2007 MLD 2003; Federation of Pakistan and others v. Qamar Hussain Bhatti and others PLD 2004 SC 77; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023 rel.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Khawas Khan through Legal Heirs v. Sabir Hussain Shah and others 2004 SCMR 1259; Khushi Muhammad and 3 others v. Mst. Zainab Bibi and 20 others 1981 SCMR 814; Fatahuddin v. Zarshad and another 1973 SCMR 248; Saleem Akhtar v. Nisar Ahmad PLD 2000 385; Messrs Khawaja Auto Cars Limited v. Muhammad Yousuf and others 1991 SCMR 2223; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358; Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh. 21; Dr. Nusrat Aziz through Attorney v. City District Government, Karachi 2016 CLC Note 2; Messrs Munawar & Co. (Pvt.) Ltd v. Karachi Development Authority and others 1998 MLD 1771; Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Muhammad Sohail v. Government of N.W.F.P. and others 1996 PLC (C.S.) 364; Tehsil Municipal Administration Faisalabad City v. Muhammad Saleem and others PLD 2006 SC 166 and District Coordination Officer Pakpattan and 2 others v Safdar Ali and another 2006 MLD 1 ref.

(b) Good governance---

----Grievance or complaint, redressal of---Principle---Government functionaries should not see a complaint or grievance as challenge to their authority---If grievance or complaint is genuine then government functionaries are duty-bound to address same within parameters of law and in a swift and efficient manner.

Muhammad Zeeshan Abdullah and Adnan Abdullah for Plaintiffs.

Nemo for Defendants (in all Suits).

P L D 2020 Sindh 446

Before Salahuddin Panhwar, J

MUHAMMAD SHAH alias SHAH JEE and 9 others---Appellants

Versus

GULSHAN ELLAHI and 2 others---Respondents

Criminal Appeal No.659 of 2018, decided on 21st May, 2019.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7--- Illegal dispossession--- Restoration of possession---Trial Court handed over possession of disputed property to complainant under S. 7 of Illegal Dispossession Act, 2005 (the Act) while accused were acquitted---Scope---Record showed that accused were not found guilty of offence within the meaning of S. 3 of the Act, hence they were acquitted of the charge yet order was recorded for restoration of possession to the complainant---Provision of S. 3 of the Act, defined the offence and punishments thereof which, however, did not include restoration of possession---Restoration of possession could not be ordered as punishment which, on proving of guilt, was legally awarded as must---Order for restoration of possession had been dealt with independently which the Court might have ordered but only when the Court was passing a punishment within meaning of subsections (2) and (3) of S. 3 of the Act---In the present case, no punishment had been passed rather accused/appellants stood acquitted of offence---In such eventualities the Trial Court was never competent to legally order for restoration of possession which could only be restored within meaning of S. 8 of the Act---Admittedly, complainant had not filed acquittal appeal, thus it could safely be said that such direction/order was nothing but a pure excess of jurisdiction without any back of law hence, the same could not be sustained---Trial Court had travelled beyond jurisdiction thus appeal was allowed by setting aside impugned judgment only to extent of challenged portion regarding restoration of possession---Failure in complaint under S.3 of the Act, would never create a legal bar in obtaining possession or removal of illegal occupants by resort to other legal remedies because such remedy was a special one and in no way prejudice other available legal remedies..

Muhammad Javed for Appellants.

Ali Asghar Buriro for Respondent No.1.

P L D 2020 Sindh 451

Before Muhammad Faisal Kamal Alam, J

Dr. ARIFA FARID and others---Plaintiffs

Versus

MITHA KHAN and others---Defendants

Suit No.2322 of 2014, decided on 24th April, 2019.

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

----S. 42---Suit for declaration and possession---Non-payment of price and dues by Development Authority to Government---Cancellation of allotment of Development Authority by Government---Cancellation of allotment of plots of (third party) bona fide allottees---Validity---Government had illegally cancelled the allotment in favour of Development Authority on account of non-payment of entire price and dues---Government had resumed land regarding which bona fide third party interests had been created in due course of time---If Development Authority was defaulter in payment of entire occupancy price then Government should take action under the law against the same but bona fide purchasers could not be penalized---Government could not resume subject land and Development Authority was entitled to transfer proprietary rights to the plaintiffs in accordance with law and after fulfilling codal formalities---Plaintiffs were entitled for the possession of their respective plots as per their allotment orders---Suit was decreed, in circumstances.

Sharif Haroon v. Province of Sindh through the Secretary to the Government of Sindh, Land Utilization Department and another PLD 2003 Kar. 237 and Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti and others 2004 PLC (C.S.) 34 ref.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 and Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879 rel.

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

----O. XII, R. 6---Judgment on admission---Pleadings have no evidentiary value unless plaintiff and or defendant had led evidence in support or defence of their pleadings, but exception to the said rule was that pleadings or a written statement could be considered when there was an admission on the part of defendant---Judgment on the basis of admission made in written statement could be passed.

(c) Judgment in rem---

---Meaning and scope illustrated.

When judgment is pronounced with regard to a legal principle then it is a "judgment in rem"; for instance, if a notification issued by a Government functionary is set aside or a levy is held to be ultra vires, then the effect of that decision will also be extended to those persons, who were not even parties in the original proceeding but are affected by the impugned notification or levy. Similarly, if a judgment is pronounced in an action with regard to claim of ownership against all other persons and the finding is given in favour of claimant then the said judgment and decree is to be considered as "judgment in rem".

S. Hassan Imam, Zeeshan Iqbal, Abdur Rehman and Irfan Ahmed Qureshi for Plaintiffs.

Muhammad Yaseen Azad and Nasrullah Malik for Defendants Nos. 1, 3 and 4.

Taqdir Ali Khan for Defendant No.2.

Shahyar Qazi, Additional Advocate-General, Sindh along with Ms. Mehmooda Suleman, State Counsel for Official Defendants.'

Ms. Saba Siddiqui for Defendant No.9.

Akhter Ali Mastoi and Noor Alam Khatri for Defendant No.14.

Usman Tufail Shaikh and Muhammad Khurram Ghayas for Defendant No.15.

Jameel Ahmed Baloch, Additional Director, Land Acquisition Cell, KDA, Irshad Ali Rind, Section Officer, L.U. Department and Muhammad Nawaz Kalwar, Mukhtiarkar Gulshan-e-Iqbal Town, Karachi (East) are present.

P L D 2020 Sindh 467

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

PROVINCE OF SINDH and another---Appellants

Versus

Messrs SARDAR MUHAMMAD ASHRAF D. BALUCH (PVT.) LIMITED---Respondent.

High Court Appeal No.88 of 2013, decided on 3rd October, 2019.

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

----S.20---Sindh Chief Court Rules (O.S), R. 283 (3)---Arbitration application--- Scope--- Every application under S.20 of Arbitration Act, 1940, has to be verified, numbered and registered under R. 283(3) of Sindh Chief Court Rules (O.S.), as a suit.

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

----S. 20---Limitation Act (IX of 1908), S.5 & Art. 151---Limitation---Condonation of delay---Void order---Proof---Award was made rule of the court and decree dated 22-1-2013 was awarded directing Provincial Government to pay an amount of Rs.212,580,202/- to claimant---Provincial Government assailed the decree on the plea that no limitation run against void order---Validity---Held, as soon as the aggrieved party came to know about such order, it was necessary that wheel of law should be put into motion within the prescribed period or at least within reasonable time---No party could be allowed to slumber deep for a long time after knowledge of such an order---Order passed by Trial Court was not void--- No reason was given in application for condonation and supporting affidavit save to mention that the proceedings were contrary to law and award was void---In case of delay in filing a lis, party had to explain each and every day of delay otherwise it could not be entertained---Order of Trial Court was passed on 22-1-2013 and the same date the award decree was drafted but was signed on 31-1-2013---Application for certified copy was filed on 26.4.2013 i.e. after expiry of period of limitation while copies were supplied to the Provincial Government on 29-4-2013 but the appeal was presented on 11-6-2013 i.e. after further delay of two months, while appeal was required to be filed within 20 days as per the provision of Art.151 of Limitation Act, 1908---High Court declined to interfere in the judgment and decree passed by Trial Court as the appeal was barred by time and there was no ground of condonation of delay available with Provincial Government---Intra Court Appeal was dismissed in circumstances.

Mustafa Lakhani v. Pakistan Defence Officers Housing Authority 2008 SCMR 611; Jehan Khan v. Province of Sindh PLD 2003 Kar. 691; Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262; Farida Malik v. Khalida Malik 1998 SCMR 816; WAPDA v. Khanzada Muhammad Abdul Haque Khan Khattak and Company PLD 1990 SC 359; GSD Construction v. State of Bihar AIR 1999 SC 1576; and Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital and others 2019 PLC (C.S.) 928 ref.

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

Miran Muhammad Shah, Addl. A.G. for Appellants.

Badar Alam for Respondent.

P L D 2020 Sindh 473

Before Muhammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ABDUL RAHEEM and 2 others---Applicants

Versus

THE STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 323, 336, 337 and Confirmation Case No.17 of 2018, decided on 18th December, 2019.

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

----Ss. 164 & 364---Confessional statement---Retracted---Reliance for conviction---Principles---Retracted confession before a Magistrate can be the basis of convicting in a capital case however it must be; (a) voluntary i.e. without threat or inducement; (b) its object must be to state the truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of prosecution case and (ii) whether there is any other evidence on record which tends to corroborate truthfulness of the confession, and (c) only minor irregularities regarding the rules concerning the recording of judicial confession can be permitted as determined on a case to case basis the main criteria being that such irregularities have not adversely affected the voluntariness or truthfulness of the confession---Slight delay in recording such confession after arrest of accused does not affect its legality and ability of Court to rely on it.

Majeed v. The State 2010 SCMR 55 rel.

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

----S. 302(b)---Sindh Arms Act (V of 2013), Ss. 23(1)(a), 24 & 25---Anti-Terrorism Act (XXVII of 1997), Ss.6(2) & 7(a)---Qatl-i-amd, recovery of firearm, and act of terrorism---Appreciation of evidence---Bhatta, demand of---Striking terror in community---Proof---Deceased was a businessman who was allegedly murdered by accused as he had refused to pay Bhatta---Accused had demanded Bhatta from deceased and when deceased refused to pay he shot him 2 to 3 times in cold blood---Motive for murder that deceased refused to pay Bhatta stood proved and accused was the sole murderer whose firing led to death of deceased---Such was a cold blooded murder carried out in a brutal manner which had behind it the object, design and intent to send a signal to all businessmen that if they refused to pay Bhatta, they would meet the same fate as the deceased---Act committed by accused was to create insecurity, fear and terror within the business community---High Court observed that no leniency was to be shown by Court and a deterrent sentence was the appropriate one in order to send a loud and clear message to all persons who were engaged in such heinous crimes---Such accused should not accept any leniency from the Court and if they were engaged in such heinous crimes it was done so at their own peril---Such persons must be made aware that if they were to play with fire then they could be burnt---High Court maintained death sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Qaddan and others v. The State 2017 SCMR 148; Muhammad Shah v. The State 2010 SCMR 1009; Haris Nasim alias Khalid and another v. The State and another 2019 PCr.LJ 535; Muhammad Ayyaz v. The State 2018 PCr.LJ 132); Sher Bahadur v. Fayyaz and another 2015 SCMR 955; Bilal Hussain v. The State Criminal Appeal No.292 of 2016 dated 10.12.2018; Nasir Mehmood and another v. The State 2015 SCMR 423; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233; Hakam Deen v. The State through Advocate General and 15 others PLD 2006 SC(AJ&K) 43; State through Advocate-General Sindh, Karachi v. Farman Hussan and others PLD 1995 SC 1; Maula Jan v. The State 2014 SCMR 862, Israr Ali v. The State 2007 SCMR 525; Tahir Mehmood alias Achoo v. The State and another 2018 SCMR 169; Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Hayatullah v. The State 2018 SCMR 2092; Wahab Ali and another v. The State 2010 PCr.LJ 157; The State of Gujarat v. Adam Fateh Mhmed Umatiya and others 1971(3) SCC 208; Sabir Ali v. The State 2011 SCMR 629; Muhammad Shah v. The State 2010 SCMR 1009; Shaukat Ali v. The State and others PLD 2019 SC 577; Rashid Aslam and another v. The State 2017 YLR 2052; Mehboob v. The State 2018 MLD 345; Muhammad Aslam v. The State 2018 MLD 761; Muhammad Ishaque v. The State 2018 YLR 786; Shoaib Ahmad and others v. The State and others 2019 PCr.LJ 57; Abdul Raheem and others v. The State Appeal No.ATA 323/2018; Sher Muhammed Baloch v. State 2008 SCMR 32; Khan Muhammad v. State 1999 SCMR 1818; Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983; Muhammad Amin v. The State PLD 2006 SC 219; Azeem Khan v. Muhahid Khan 2016 SCMR 274; Bahadur v. State PLD 1996 SC 336 and Manjeet Singh v. State PLD 2006 SC 30 ref.

Dadullah and another v. The State 2015 SCMR 856 rel.

(c) Criminal trial---

----Witness---Police witness---Principle---Police witness is as good as any other witness provided that no ill will, enmity, mala fide or personal interest is proven against him vis-à-vis the accused.

Riaz Ahmad v. State 2004 SCMR 988; Zafar v. State 2008 SCMR 1254 and Abbas v. State 2008 SCMR 108 rel.

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

----S. 302(b)---Sindh Arms Act (V of 2013), Ss. 23(1)(a), 24 & 25---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, recovery of firearm, act of terrorism---Appreciation of evidence---Benefit of doubt---Crime empties, matching of---Delay in sending for forensic analysis---Accused allegedly abetted co-accused in murdering a businessman who refused to pay Bhatta---Key evidence connecting accused with offence was empties matching with the pistol recovered from him---Accused was arrested on 28-1-2015 but recovered empties were not sent until 11.8.2015 along with pistol for Forensic Science Laboratory report---During the period of 7 months there was no evidence of safe custody of empties---Possibility of bullets were discharged from the pistol after its recovery from accused and empties of the same were sent along for Forensic Science Laboratory, in order to manufacture a positive Forensic Science Laboratory report, could not be ruled out---High Court extended benefit of doubt to accused and acquitted him of the charge---Appeal was allowed in circumstances.

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

----Ss. 6 & 7---Act of terrorism---Appreciation of evidence---Confessional statement of co-accused---Effect---Accused was charged on the basis of judicial confession made by principal accused wherein he was nominated---No corroborative evidence was available against accused and he was not picked out from CCTV/CD footage of murder of deceased--- Accused was not named by any prosecution witness regarding his involvement in crime---No recovery was made from accused---No CDR data connected accused with the offence---High Court declined to rely upon confessional statement of principal accused without independent corroborative evidence---High Court set aside the conviction and sentence awarded to accused by Trial Court and acquitted accused of the charge---Appeal was allowed in circumstances.

Nadeem Ahmed Azar and Abdul Razzak for Appellants.

Siraj Ali K. Chandio, Addl. Prosecutor General for the State.

P L D 2020 Sindh 487

Before Salahuddin Panhwar, J

UMAIR MAQBOOL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-591 of 2017, decided on 15th January, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appointment of medical expert---Mechanism---Accused was charged for committing murder of the deceased---Plea of the accused was that it was a case of death by hanging whereas case of prosecution was that it was by asphyxia---Investigating Officer as well other Police Officers including the Prosecutor, who supervised the investigation, admitted that they were not aware about the difference between asphyxia and hanging and there was no guidelines in such conditions---Doctors and Police Surgeon contended that they did not receive any clarification from the Investigating Officers with regard to the facts of the case and seat of injuries to verify that in such circumstances, injury could be caused or not---Prima facie, it showed lack of proper co-ordination between the investigation agency and authorized Medical Officer/Police Surgeon---Importance and vitality of Police Surgeon/Authorized Medical Officer could not be denied, which required a complete coordination with investigation wing---Said coordination however, seemed to be not possible as there was no proper mechanism for appointment on such specific posts---High Court directed the competent authority to examine such aspects and provide a mechanism that appointments/recruitments of Medico Legal Officer, Additional Police Surgeon and Police Surgeon would be made keeping in view the objective of post and purpose thereof and not from general cadre---Persons appointed must be skilled and must always be ready in encouraging and helping the investigation wing in finding all possible angles; there must be mechanism to supervise high profile cases; training of Medico Legal Officers, Police Surgeon would also endorse post-mortem reports.

(b) Criminal trial---

----Medico-legal opinion---Significance---Scope---Importance of expert opinion, though, never points out the culprit but is meant to help the Investigating Officer in knowing certain circumstances; timing of ante-mortem injuries, manner and possible position of person, caused such injury etc. weapon or thing etc resulted in ante-mortem injury.

Sami Ahsan for Appellant.

Naimatullah Marwat for the Complainant.

Siraj Ali Khan Chandio, Addl. P.G. along with Sagheer Abbasi, APG and Muhammad Younus, DDPP, Karachi East.

Dr. Aijaz Ahmed, Police Surgeon, Dr. Feroze Akhund, Sr. WMLO, Civil Hospital, Karachi, Sarwar Ali Shah, DSP Legal, SSP Office, East Abdullah Memon, PSP, SSP Inv.-II, Korangi, Karachi, SIP Rafiquddin, Investigation Officer.

P L D 2020 Sindh 491

Before Amjad Ali Sahito, J

AIJAZ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-01 of 2019, decided on 24th December, 2019.

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

----S. 190(3)---Trial by Sessions Court---Jurisdiction---Sessions Court has no original jurisdiction to take cognizance of such offence and it cannot try a case unless it is sent to it by a Magistrate duly empowered in such regard within the purview of S. 190 (3) Cr.P.C.

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

----Ss.190 & 193---Term 'cognizance'---Scope---'Cognizance' is a term of art implying application of mind to facts of a case in order to determine whether facts disclosed constituted an offence triable--- Application of mind for the purpose of cognizance under S.190(1) and (3) Cr.P.C. read with S. 193 Cr.P.C. is for the purpose of determining whether the facts disclosed commission of an offence triable exclusively by Court of Session in which case Magistrate is bound to send the case to Court of Session for trial.

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

----Ss.169 & 173---Cognizance of offence---Accused placed in column No. 2 of Investigation Report (Challan)---Opinion of Investigating officer---Trial Court, powers of---Finding of investigating agency to place accused person in column No.2 by extending benefit of S.169 Cr.P.C. is not binding on Courts---Trial Court has legal competence under law to summon such accused if the Court is satisfied regarding his involvement in the case---Court can take cognizance of offence even in the case where a report for cancellation is submitted by police--- Court while taking cognizance on a police report takes cognizance of the offence but not of a particular person charged in report as an offender---Trial Court can issue process against other accused persons who also appear to it to be connected with the offence on the basis of material placed before it.

Muhammad Akbar v. The State and others 1972 SCMR 335 and Safdar Ali v. Zaffar Iqbal and others 2002 SCMR 63 rel.

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

----Ss. 364-A & 376---Criminal Procedure Code (V of 1898), Chaps.XIV, XV, [Ss.154-199-B], Ss.190 & 193---Abduction and rape---Appreciation of evidence---Summoning of accused---Benefit of doubt---Accused was not nominated in FIR and the one who was duly nominated was acquitted---Accused was summoned under S.193 Cr.P.C. by Trial Court and after framing of charge he was convicted and sentenced to imprisonment for life---Validity---No incriminating evidence was collected against accused during course of investigation nor witnesses had deposed against him---No material was available against accused but charge was framed against him---During whole process of investigation and cognizance was taken into the matter by Court of law on the basis of material against co-accused who was acquitted---Allegedly only one person was involved in commission of offence, therefore, substitution of said single person with accused was against the Chaps. XIV & XV [Ss.154-199-B] of Cr.P.C.---Trial Court was not competent to issue notice for joining accused in the case---Joining of accused in the trial and passing of judgment by Trial Court was erroneous conclusion---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Mian Taj Muhammad Keerio for Appellant.

Shahid Ahmed Shaikh, Deputy Prosecutor General, Sindh for the State.

Kanji Mal for the Complainant.

P L D 2020 Sindh 507

Before Muhammad Ali Mazhar and Agha Faisal, JJ

HAMEED A. HAROON through Attorney and others---Appellants

Versus

YOUSUF A. HAROON and others---Respondents

H.C.As. Nos.235 and 239 of 2009, decided on 17th February, 2020.

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

----O. XXXIX, Rr. 1 & 2---Interim/interlocutory/injunctive orders---Scope and object---Object of interlocutory orders was to maintain the situation subsisting on the date when the party concerned had approached the court and to prevent the creation of a new situation---Interim order, as envisaged in O. XXXIX, C.P.C., is intended to be a preventive or protective remedy for the purposes of preserving the status quo or preserving the corpus of the litigation pending the final determination thereof.

Islamic Republic of Pakistan v. Muhammad Zaman Khan and others 1997 SCMR 1508; Ismail Industries Limited v. Mondelez International and others 2019 MLD 1029; Shahnawaz Jalil v. Rani and Company and others 2019 CLD 1338 and Suriya Iqbal Chisthti and another v. Rubina Majidullah and others 2019 CLC 211 ref.

(b) Trust---

----Charitable trust---Cy-près, doctrine of ---Applicability and scope.

Cy-pres meant following as nearly as possible the intention of donor. When a particular mode of charity indicated by donor was not capable of being carried into effect but the donor had expressed a general intention of charity, the Court did not allow the trust to fail but executed it 'Cy-pres' that was in some way as nearly as possible to that which the testator specified.

For the application of Cy-pres doctrine, the failure of the particular object specified by the testator was an essential pre-condition. Alternatively said doctrine could be applied when surplus was left after satisfying the purpose specified by donor.

Kandawala Trust and another v. The State 2013 MLD 640 ref.

The doctrine of Cy-pres was applicable where although the original object to the charitable trust could not be achieved but an object as nearly as possible or similar to the original objective could be achieved. But where neither the original purpose nor a purpose similar thereto may be achieved, the doctrine of Cy-pres would not apply to save the trust. Doctrine of Cy-pres had been evolved as an auxiliary to main purpose of the trust and the said doctrine ipso-facto was no excuse to defeat the original purpose of the trust.

Kandawala Trust and another v. The State 2013 MLD 640 ref.

The prime rule to be observed in the application of the Cy-pres doctrine was that donor's intention must be observed as far as possible.

Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others 2003 CLC 771; Hameed A. Haroon v. Yousuf A. Haroon and 10 others 2009 MLD 1259 and Kandawala Trust and another v. The State 2013 MLD 640 ref.

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

----O. VII, R. 11---Qanun-e-Shahadat (10 of 1984), Art. 129---Rejection of plaint---Considerations before a court seized of an application seeking rejection of plaint stated.

Following are the paramount considerations before a court/judge seized of an application seeking rejection of plaint:

(i) Firstly, there could be little doubt that primacy, (but not necessarily exclusivity) was to be given to the contents of the plaint. However, this did not mean that the court was obligated to accept each and every averment contained therein as being true. Indeed, the language of O. VII, R. 11, C.P.C. contained no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which was inherent in every court of justice and equity to decide whether or not a suit was barred by any law for the time being in force completely intact. The only requirement was that the court must examine the statements in the plaint prior to taking a decision.

Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247 ref.

(ii) Secondly, it was also equally clear, by necessary inference, that the contents of the written statement were not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint were correct or incorrect. In other words the court was not to decide whether the plaint was right or the written statement was right. That was an exercise which could only be carried out if a suit was to proceed in the normal course and after the recording of evidence. In O. VII, R. 11, C.P.C cases the question was not the credibility of the plaintiff versus the defendant; it was something completely different, namely, did the plaint appear to be barred by law; and

Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247 ref.

(iii) Thirdly, in carrying out an analysis of the averments contained in the plaint the court was not denuded of its normal judicial power. It was not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court had been given wide powers under the relevant provisions of the Qanun-e-Shahadat, 1984. It had a judicial discretion and it was also entitled to make the presumptions set out, for example in Article 129 of the Qanun-e-Shahadat, 1984, which enabled it to presume the existence of certain facts. If an averment contained in the plaint was to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which was beyond any doubt, such exercise had to be carried out not on the basis of the denials contained in the written statement which were not relevant, but in exercise of the judicial power of appraisal of the plaint.

Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247 ref.

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

----O. VII, R. 11---Rejection of plaint---Scope---In the instance of controversial questions of fact and/or law, the provisions of O. VII, R.11 C.P.C. would not be attracted and the proper course for the court, in such cases, was to frame the relevant issue/s and decide the same on merit in the light of evidence and in accordance with the law.

Rana Imran and another v. Fahad Noor Khan and others 2011 YLR 1473 ref.

Mansoor ul Arfin and Rasheed A. Razvi for Appellant (in H.C.A. 239 of 2009).

Faisal Siddiqui for Appellant ) H.C.A. 235 of 2009).

Mansoor ul Arfin for Respondents Nos.7 and 8. (in H.C.A. 235 of 2009).

Rasheed A. Razvi for Respondents Nos. 7 and 8 (in HCA 235 of 2009).

Faisal Siddiqui for Respondent (in H.C.A. 239 of 2009).

P L D 2020 Sindh 527

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

MARTIN DOW LIMITED through Authorized Representative---Petitioner

Versus

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

Constitutional Petition No.D-4260 of 2019, decided on 21st April, 2020.

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

----Ss. 7 & 11---Drugs Act (XXXI of 1976) S. 9---Drugs Pricing Policy 2018, Cl. 9---Drugs Pricing Committee---Fixation of maximum retail price ("MRP")---Consideration of Hardship Cases by Drugs Pricing Committee---Scope---Petitioner, which was manufacturer and importer of drugs, impugned decision of Drug Pricing Committee, under the Drugs Pricing Policy 2018, whereby petitioner's application to reconsider fixation of price of certain drugs, due to amendment in agreement between petitioner and foreign licensor, was rejected---Contention of petitioner, inter alia, was that such application of petitioner was made to ensure uninterrupted supply of said drugs and Drug Pricing Committee failed to consider commercial invoices submitted by petitioner as evidence therefore impugned order was based on misreading/non-reading of relevant material on record---Validity---Perusal of record revealed that only material available to Drug Pricing Committee at relevant time were commercial invoices reflecting prices which were in force before amendment in agreement between petitioner and licensor of drugs, and such invoices did not bolster petitioner's claim within scope of Cl.9(3) of Drugs Pricing Policy, 2018---Pro-forma invoices submitted by petitioner were beyond pale of said clause and were rightly excluded from consideration---Bare agreement reflecting amendment in agreement of petitioner and licensor could not for basis for revision of prices---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Nature and scope---Scope of judicial review by High Court under Art. 199 of the Constitution was not to inquire into merits of a decision being challenged so as to dissect and reconstruct the same but was to conduct review of process by which such decision was reached in order to assess whether same was flawed in the sense of being illegal, irrational or suffering from some element of procedural impropriety.

Hajj Organizers Association of Pakistan through Authorised Officer and 11 others v. Federation of Pakistan through Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad and 2 others PLD 2020 Sindh 42 rel.

Abdul Sattar Pirzada for Petitioner.

Kafeel Abbasi, D.A.G. for Respondent No.1.

Amanullah Director (Pricing) for Respondent No. 2.

P L D 2020 Sindh 533

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

AAMIR AMAN and 21 others---Petitioners

Versus

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

Constitutional Petition No.D-6606 of 2016, decided on 12th March, 2018.\

(a) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 10---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition filed by foreign teachers (petitioners) of Pak Turk International Schools and Colleges, who were denied extension of their visas by the Government of Pakistan---Maintainability---Petitioners were foreign (Turkish) nationals, who admittedly entered Pakistan along with their families lawfully on validly issued visas---Petitioners had remained in Pakistan on such basis for a number of years and had worked here as well, again lawfully---No allegation was made, at any time, against the petitioners or their families that they violated any condition of the visas or any allegation relating to their stay or any applicable laws of Pakistan---Furthermore, their visas had been extended in the past and they had remained in the country for some years---Petitioners could only be removed (from Pakistan) in accordance with law, and it was in such context that Art. 9 of the Constitution was engaged---Petitioners denied that there had been, or could or would be, action taken in accordance with law in such regard, whereas the Government rejected any such allegation---In such circumstances, an issue was joined that could be brought before the High Court by the foreign (Turkish) nationals, therefore, the objection as to maintainability of present Constitutional petition could not be accepted.

(b) Foreigners Act (XXXI of 1946)---

----S. 3---Foreigner's Order, 1951, Para. 7---Foreign teachers of "Pak Turk International Schools and Colleges"---Non-extension of visas of foreign teachers and their families---Legally enforceable expectation---Scope---Petitioners and their families had a legally enforceable expectation that before the Federal Government took the action of refusing them extensions in their visas they ought to have been given a chance to say something in regard thereto---Furthermore, petitioners and their families were entitled to some indication as to why, if the Federal Government was going to refuse any extension, it had to be so---Furthermore the offer made by the Federal Government to wait for and abide by the decision of the United Nations High Commissioner for Refugees (UNHCR) in respect of the pending asylum applications of the petitioners and their families must be regarded as a binding commitment; this was especially so given that the Federal Government generally accepted the decisions of the UNHCR---Petitioners and their families had made out a case for appropriate directions from the High Court---Constitutional petition was disposed of with relevant directions.

High Court gave the following directions in disposing of the Constitutional petition filed by foreign teachers (petitioners) of "Pak Turk International Schools and Colleges" who along with their families were denied extension in their visas by the Government of Pakistan:

(i) Two impugned letters whereby extension in visas of petitioners and their families were refused and they were told to leave Pakistan were suspended;

(ii) The petitioners and their families must be given a chance to explain their position for an extension in their visas to the Federal Government. If at all the Federal Government was inclined to confirm the two impugned letters it must give some written explanation as to why this was so. This exercise should preferably be completed within 30 days from the date of judgment. If the impugned letters were confirmed, then the petitioners and their families were to be given a period of 15 days to review their position and seek such remedy, if any, before such forum and in such proceedings as may be appropriate in accordance with law. They were entitled to remain in Pakistan till such time;

(iii) At the same time, and independently of the above directions, the petitioners and their families were entitled to remain in Pakistan till such time as their asylum applications remained pending with UNHCR. If those applications were disposed of in a manner accepted by them, then they were to be dealt with in the manner as so provided for and not otherwise, within such timeframe as may be applicable. If those applications were rejected or disposed of in a manner that they considered adverse to them, either in whole or in part, then they were to be given a period of 15 days to review their position and seek such remedy, if any, before such forum and in such proceedings as may be appropriate in accordance with law;

(iv) The petitioners and their families were entitled to remain in Pakistan till such time as the last of the periods stipulated in either sub-paras (ii) or (iii) above expired;

(v) During the period to which sub-para (iv) above applied, the petitioners and their families shall be entitled to remain in Pakistan on the same terms (including the 'right to work') as applicable to them on the date on which their visas expired;

(vi) The Federal Government shall immediately issue an appropriate order under section 10 of the Foreigners Act, 1946 ('the Act') that ensured that, consistent with the present judgment, the relevant provisions of the Act and the Foreigner's Order, 1951 ('the Order') did not apply to the petitioners and their families during the period to which sub-para (iv) above applied;

(vii) Without prejudice to the foregoing and independently and regardless of the same, and with immediate effect, the Federal and Provincial Governments, and all Federal and Provincial authorities and agencies (including but not limited to the FIA) were restrained from taking any action against the petitioners or their families in terms of the Act, the Order or any other applicable provision of any law on the basis that they continued to be in Pakistan without lawful permission, or on any other basis whatsoever, without the express permission of the High Court during the period to which sub-para (iv) above applied;

(viii) If, when the period to which sub-para (iv) above expired and there was then no order or direction of competent authority or of any Court to the contrary, and the applications filed by the petitioners and their families with UNHCR stood rejected or concluded in a manner adverse to them, then if the two impugned letters continued to hold the field, they shall stand revived, and on such revival action could be taken on the basis thereof strictly in accordance with law against the petitioners and their families; and

(ix) The petitioners (or any of them) or the Federal Government may make an application in the present petition seeking such clarifications or directions as may be required consistent with the judgment or to give it full and proper effect. The Court may on such application make such orders and/or give such directions as it deemed appropriate.

Abdul Majeed Khoso for Petitioners.

Salman Talibuddin, Additional Attorney General along with Muhammad Hafeez Section Officer, Ministry of Interior, Government of Pakistan for Respondent.

P L D 2020 Sindh 551

Before Adnan Iqbal Chaudhry, J

HUSEIN INDUSTRIES LTD. Through authorized representative---Plaintiff

Versus

SUI SOUTHERN GAS COMPANY LTD. Through Managing Director and 2 others---Defendants

Suit No.304 of 2020, decided on 9th March, 2020.

Contract Act (IX of 1872)--

----Ss. 126 & 128---Civil Procedure Code (V of 1908), O. XXXIX Rr.1 & 2---Commercial contracts---Contract of performance guarantee, in the form of a Bank guarantee---Grant of injunction / restraining order under O.XXXIX Rr. 1 and 2 C.P.C. against encashment of an unconditional Bank guarantee---Independence and autonomy of the contract of guarantee---Non-interference by courts in relation to the contracts of unconditional guarantee except in rare and exceptional circumstances---Scope---Bank guarantee within meaning of S.126 of Contract Act, 1872 was an independent contract between surety and creditor (beneficiary of the guarantee) and such Bank guarantee was to be construed on its own terms, independent of underlying contract between creditor and principal debtor and irrespective of claims pending inter se between them---Nature and language of such independent contract assumed great importance, and a Bank guarantee was generally either a "mobilization guarantee" or a "performance guarantee"---Bank guarantee, if it contained stipulation to the effect that surety shall pay if default was committed by principal debtor, then injunction may follow on theory that until said default was proven by evidence, there was no default---Where language used in bank guarantee was to the effect that guaranteed sum was payable unconditionally or irrespective of dispute between parties, or that the creditor was sole judge of an alleged default, then Court would refuse grant of injunction unless plaintiff demonstrated fraud by the creditor, which was in the knowledge of the Bank or unless it was a case giving rise to special equity in favour of plaintiff.

National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and Pak Consulting and Engineering (Pvt.) Ltd. v. Pakistan Steel Mills 2002 SCMR 1781 distinguished.

National Grid Company v. Government of Pakistan 1999 SCMR 2367 and Shipyard K. Damen v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 ref.

Shipyard K. Damen v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Sahara Trading International (Pvt.) Ltd. v. Bank Alfalah Ltd. PLD 2004 SC 925; Montage Design Build v. The Republic of Tajikistan PLD 2015 Isl. 13; National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and National Grid Company v. Government of Pakistan 1999 SCMR 2367 rel.

Muhammad Umer Lakhani, Ishfaq Ahmed and Aamna Pirzada for Plaintiff.

Asim Iqbal for Defendant No.1.

Nemo for Defendant No.2.

Fida Hussain, Representative of HBL for Defendant No.3.

P L D 2020 Sindh 556

Before Zulfiqar Ali Sangi, J

MIR MUHAMMAD SHAIKH---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-60 of 2020, decided on 14th February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Powers and duties of Ex-Officio Justice of Peace---Direction to public functionaries---Scope---Petitioner in his capacity as Mukhtiarkar assailed order passed by Ex-officio Justice of Peace whereby he was directed to redress the grievance of the respondent subject to verification of sale deed and sale certificate---Validity---Ex-officio Justice of Peace had the power to issue appropriate directions to the police authorities on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties---Powers of Ex-officio Justice of Peace were very much limited which were given to aid, assist and authorize the criminal jurisdiction system---Section 22-A(6), Cr.P.C. did not confer jurisdiction on the Ex-officio Justice of Peace to direct a person or official relating to his duties in respect of any dispute regarding immovable property---Application should have been dismissed by Ex-officio Justice of Peace in limine for want of jurisdiction---Order passed by Ex-officio Justice of Peace was set aside, in circumstances.

Mukhtiar Ali v. The State and 4 others 2019 PCr.LJ 1201 ref.

Abdul Wahab Shaikh for Applicant.

Shabir Ali Bozdar for Respondent No.3.

Abdul Rehman Kolachi, DPG for the State.

P L D 2020 Sindh 563

Before Nazar Akbar, J

Messrs IDARA-E-NOOR-E-HAQ through Secretary General---Appellant

Versus

PUBLIC-AT-LARGE and others---Respondents

Miscellaneous Appeal No.43 of 2016, decided on 17th April, 2020.

Succession Act (XXXIX of 1925)---

----Ss. 272, 269, 299, 300 & 384---Appeal---Probate, grant of---Ownerless property---Application for grant of probate under S.272 Succession Act, 1925, was filed by appellant but Trial Court dismissed the application---Validity---Once it was found that none was available to claim ownership of immovable property in question in his own right or by way of inheritance, such property should be treated as an ownerless property---Once Court was satisfied that the property was rendered ownerless, it was the duty of Court to protect it from being misappropriated or wasted or damaged---Court could appoint Curator under S.195 of Succession Act, 1925, to takeover possession of the property pending final determination of fate of proceedings---Court could have also taken prompt action under S.269 of Succession Act, 1925, for protection of such property---Jurisdiction of High Court under S.300 of Succession Act, 1925, was concurrent with District Judge in exercise of power under Succession Act, 1925---High Court appointed its official as a Curator to protect the property in question and directed him to take over the possession immediately---High Court declined to interfere in the order passed by Trial Court---Appeal was dismissed in circumstances.

1993 CLC 1552 ref.

Abdul Samad Khattak for Appellant.

Nemo for Respondents.

P L D 2020 Sindh 568

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SAJID PLASTIC FACTORY through Sole Proprietor---Appellant

Versus

MSC BAHAMAS through Master/Chief Officer and 9 others---Respondents

Admiralty Appeal No. 5 of 2014, decided on 9th March, 2020.

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

----S.3---Admiralty jurisdiction---Types---"Action in rem" and "action in personam"---Scope---Action in rem is one in which plaintiff seeks to make good a claim to or against certain property e.g. a ship or cargo in respect of which or in respect of damages done by which he alleges that he has an actionable demand---In collision actions and in other cases where plaintiff maritime lien, he can, if the res be within the jurisdiction, by process served upon its corpus, procure its arrest and detention by the Court until either the owners bail it out by giving security for the amount claimed by him or until the Court gives judgment upon the claim, when if he be successful, effect may be given to such judgment by sale of property in order to satisfy it---Effect of such judgment or sale is that the order of Court operates directly upon statute of the property and transfers an absolute title to the purchaser---"Action in personam" is an ordinary action as in common law courts---Judgment of Court is a personal one (in nature of a command or prohibition) against unsuccessful party, though it may be enforced against his property by subsequent proceedings but even if Court sells the property by execution under judgment, it does not thereby transfer to purchaser an absolute title but only such title as the owner may in fact have had.

The Metamorphosis [1953] 1 All E.R.723, at p.726; The Assunzione [1954] 1 All E.R.278; [1954] P.150, C.C.; B.C. Mitra, Tagore Law Lectures on The Law of Carriage by Sea, 1972; Halsbury's Laws of England, 2nd (Hailsham) Edn., Vol. 1, para 84, p.65; Halsbury's Laws of England, 4th Edn. (Re-issue), Vol. 1 (1), para 305, p.420 and paras 311-312, pp. 426-7; Banco case, (1971) 1 All ER 524 (CA); The Monica S. (1967) 3 All ER 470; The Supreme Court Act, 1981 (U.K.); Castrique v. Imrie (1870) LR 4 HL 414 and Maritime Jurisdiction and Admiralty Laws in India by Samareshwar Mahanty. Edition 2009 rel.

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

----Ss. 3 & 7---Appeal---Stay of proceedings---Territorial jurisdiction---Determining factor---Bill of lading, conditions of---Plaintiff was aggrieved of stay of proceedings by Trial Court for trial to commence in London---Validity---Terms and conditions mentioned in bill of lading with regard to jurisdiction of Court at any particular place could not be considered so sacrosanct or untouchable in admiralty jurisdiction under codified law but the Court while exercising jurisdiction to stay the suit had to comprehend whether the Court had otherwise jurisdiction to decide the lis in its applicable admiralty laws or not---No such condition in law was mentioned to oust partial or outright jurisdiction of High Court but the case had to be decided in the parameters and confined of law---Stay of proceedings could not be claimed as a matter of right otherwise whole purpose of Admiralty jurisdiction of High Court vested in law could become redundant and superfluous and its jurisdiction was only to be restricted and limited to arrest the ship and ask for security as precondition to allow sailing of vessel then stay the suit such was not the actual philosophy and astuteness of law---Defendants had filed suit before Court in "London" which could be decided independently without any predominating or overriding effect on pending suit in local laws jurisdiction---Here not only security was furnished but some material orders had already been passed in Trial Court so the issues should be settled and parties were to be afforded an opportunity to adduce evidence so that pending suit could be decided on merits rather than lying dormant or hanging around without any lawful purpose and justification---Continuance of action in High Court was not to operate as an injustice to defendants, who had failed to make out a case that plaintiff did not disclose a cause of action or that the suit was frivolous, vexatious and or oppressive to them or it amounted to an abuse of process of the Court---High Court set aside the order passed by Trial Court---Appeal was allowed accordingly.

M.A. Chowdhary v. MITSUI O.S.K Lines Limited PLD 1970 SC 373; Messrs Aslo Marines v. M.T. Magda and another PLD 1985 Kar. 745; Messrs Mercantile Fire v. Messrs Arcepey Shipping Company PLD 1978 Kar. 273; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 @ 395; Messrs Unitrade Impex and others v. Federation of Pakistan 2010 CLC 1267 @ 1270.; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni PLD 1994 Lah. 525 @ 544; Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 1174 at 1178; Spiliada Maritime Corporation v Cansulex Ltd. 1986; Eleftheria Case (1969) 1 Lloyd's Rep. 237; Gulf Oil Corp v. Gilbert, Doing business as Gilbert Storage and Transfer 330 US 501 (1947); Mac Shannon v. Rockware Glass Ltd. (1978) AC 795; C.V. 'Lamon Bay' and others v. Sadruddin and others 2005 CLD 133; Port Qasim Authority and others v. Official Assignee of Karachi and others 2007 CLD 143; Booz-Allen and Hamilton Inc. v. Sbi Home Finance Ltd. AIR 2011 SC 2507 = (2011) 5 SCC 532; Sewell v. Burdick (1884), 10 App.Cas.at p.105; The Ardennes (Owner of Cargo) v. The Ardennes (Owners), [1950] 2 All E.R.517; [1951] 1 K.B.55; Rodocanachi v. Milburn (1886), 18 Q.B.D. 67; R.v. International Trustees for the Protection of Bondholders Aktiengesellschaft, [1937] 2 All E.R.164, at p.166; [1937] A.C.500, at p.529; Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., AIR 2006 SC 2800, Alexandros Dryron S.A. v. Owners and Parties Interested in the Vessel M. V. "Prapti," 1990 CWN 196 at p. 205 pr, 9, (2006) 3 SCC 100: AIR 2006 SC 1828 (SCC paras 14-15, p.115-6), Bhagat Singh Bugga v. Dewan Jagbir Sawhney AIR 1941 Cal 670; Hansraj Bajaj v. Indian Overseas Bank Ltd., AIR 1956 Cal 33; Krishnan v. Krishnamurthi AIR 1982 Mad. 101; Crescent Petroleum Ltd. v. "MONCHEGORSK" AIR 2000 Bom. 161; AIR 1956 Cal. 33; Mackender v. Feldia A.G., (1967) 2 QB 590 (604); Law v. Garett, (1878) 8 Ch D 26; Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society Ltd., (1901) 1 KB 249; The Cap Blanco, (1913) p.130; The Eleftheria, (1969) 2 All ER 641; The Sindh, (1975) 1 Lloyd's Rep. 372; The Makefjell, (1976) 2 Lloyd's Rep.'& 29; Aratra Potato Co. Ltd. v. Egyptian Navigation Co., The El Amria, (1981) 2 Lloyd's Rep. 110 (CA); DSV Silo-und Verwalturgsgesellschaft mbH v. Senner (Owners), The Sennar, (1985) 2 All ER 104 (HL); Owners and Parties Interested in the vessel M.V. "Fortune Express" v. Maavar (HK) Ltd., 2005 (1) CHN 204, Evans Marshal & Co. Ltd. v. Bertola S.A., (1973) 1 All ER 992, (1975) 1 Lloyds Rep. 372, The Athene, (1922) 11 Lloyd L Rep. 6; The Fehmarn, (1958) 1 All ER 333; The Adolf Warski. (1976) 2 Lloyds Rep. 241; (1969) 2 All ER 641; Spiliada Maritime Corporation v. Consulex, Ltd. The Spiliada, (1987) AC 460 (1986) 3 All ER 843; (1974) AC 436; MacShannon v. Rockware Blass Ltd. (1978) AC 795 (812, 822); The Abidin Daver, (1984) AC 398 (411): (1984) 1 All ER 470 (HL) 476, Spiliada Maritime Corporation v. Consulex, Ltd., The Spiliada, (1987) AC 460 (474): (1986) 3 All ER 843 (HL) 854, per Lord Goff of Chieveley: Re Harrods (Buenos Aries) Ltd., (1991) 4 All ER 334 (CA); Ace Insurance SA-NV v. Zurich Insurance Co, and Zurich American Insurance Co., (2000) 2 Lloyd's Rep. 423 ref.

Hamid Ali Shah for Appellant.

Syed Abbadul Hussnain for Respondents Nos.1 to 8.

Jawad A. Sarwana, Amicus Curiae.

None present for Respondents Nos.9 and 10.

P L D 2020 Sindh 596

Before Fahim Ahmed Siddiqui, J

YASIR SAJJAD---Applicant

Versus

Mst. RANI NASIR and another---Respondents

Criminal Revision Application No. 97 of 2019, decided on 17th July, 2019.

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

----S. 493---Qanun-e-Shahadat (10 of 1984), Art. 150---Public Prosecutor and private counsel engaged by Complainant---Scope---Provision of S.493, Cr.P.C. analysed---Petitioner/accused assailed order passed by Trial Court whereby Court had given permission to the counsel of complainant to conduct cross-examination upon a prosecution witness after declaring him as hostile---Contention of petitioner was that a privately engaged counsel could not move an application for declaring a witness hostile, in view of S.493, Cr.P.C.---Validity---Privately engaged counsel was not required to sit aloof during trial and not to provide assistance only to the Public Prosecutor---Privately engaged counsel could seek to declare a witness as hostile and even seek permission to cross-examine a hostile witness---Public Prosecutor having not objected upon such request of the privately engaged counsel, therefore, presumption was that the request was moved with the consent of the Public Prosecutor---Cross-examination was an art and if the complainant had engaged a private lawyer then there was no harm if the Trial Court permitted him to conduct cross-examination---Revision application was dismissed.

Jahanzeb v. Malik Mehboob 2009 YLR 691 ref.

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

----S. 493---Public Prosecutor and private counsel engaged by Complainant---Scope---Word 'act' as provided in S.493, Cr.P.C. was not to be considered in limited or technical sense, it is entirely distinct and altogether different from the word 'plead', which is an essential function of an advocate---'Act' by an advocate in a case should not be used in distinction from the words 'appear' and 'plead' coming in the initial part of S. 493, Cr.P.C. for the Public Prosecutor---Word 'act' does not mean something other than examining and cross-examining witnesses or addressing the Court but at the end of the statute, a delicate embargo is placed i.e. 'under the direction of the Public Prosecutor'---Public Prosecutor is the main figure in a criminal trial and a private counsel was to act under his control and direction---Section 493, Cr.P.C. nevertheless authorizes a privately engaged advocate to act in the case under the directions of the Public Prosecutor, he may do everything in the case provided that the same should be done under the control and directions of the Public Prosecutor.

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

----Art. 150---Question by party to his own witness---Scope---Credibility of a witness may be adjudged under three stages which are 'bolstering' or supporting the case, 'impeachment' of the witness and 'rehabilitation' of the damage caused during examination---Process of rehabilitation is usually done by re-examining or cross-examining a witness after declaring him as hostile---Whenever, a witness is produced by a party for recording examination-in-chief during trial; it is supposed that the witness will support the prosecution case---Opponent party tries to impeach the witness by conducting a cross-examination so that his credibility may be shaken before the Court---If at the time of recording evidence, the credibility of a witness is shaken up to the extent that he is causing damage to the case of the party, who produced him, then such witness may be declared hostile---Aim of cross-examination to such witness after declaring him 'hostile' is not to impeach him totally but to restore the damage which has already been caused by him---Restoration process of a witness is known as 'rehabilitation of witness' in the jurisprudence of evidence---Witness, who is being cross-examined by the party for whom he appears after declaring him hostile, is not an opponent witness as such he will not be impeached totally by such cross-examination and he will remain the witness of the same party but under a proper and successful cross-examination, such witness may rehabilitate the damage caused to the party for whom he appears as witness---Evidence of such witness remains intact and he may cause more damage, after such cross-examination, to the party producing him if his deposition does not rehabilitate the case of the party for whom he appears.

Aftab Ahmed for Applicant.

Sardar Sher Afzal for Respondent No.1.

Syed Zahoor Hussain Shah, D.P.G. for the State.

P L D 2020 Sindh 601

Before Aqeel Ahmed Abbasi and Zulfiqar Ahmed Khan, JJ

UNIVERSAL CABLES INDUSTRIES LIMITED through Chief Executive---Petitioner

Versus

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

Constitutional Petition No. D-2376 of 2010, decided on 30th April, 2019.

(a) Jurisdiction---

----Assumption of jurisdiction---Concept, principles and scope---Assumption of jurisdiction by any judicial, quasi-judicial or executive forum provided under relevant laws including superior courts established under Constitutional provisions, was primary concern of such forum(s)---Unless jurisdiction to proceed with a matter was conferred in clear and unambiguous language to such forum, then cognizance of a matter could not be taken, for want of jurisdiction.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 3 & Sched.---Federal Investigation Agency (Inquiries and Investigations) Rules, 2002, R. 5---Constitution of Pakistan, Art. 199---Assumption of jurisdiction by Federal Investigation Agency ("FIA")----Initiation of inquiry and registration of criminal case---Offences falling within purview of FIA---Scope--Initiation inquiry and investigation or taking cognizance of a complaint without examining whether such alleged offence fell within purview of the Schedule to the Federal Investigation Agency Act, 1975 and without due care, created an anomaly and overlapping jurisdiction and put litigant parties under double jeopardy in respect of same offence and such practice was not permissible under law---Initiation of inquiry / investigation in respect of offences not provided for under relevant law reflected upon mala fide of FIA when same prima facie lacked jurisdiction to inquire and investigate a matter which otherwise had to be proceeded under other relevant legal forums---Such initiation of investigation and inquiry by FIA, when FIA had no jurisdiction in a matter, was liable to be quashed by High Court under its Constitutional jurisdiction.

Dr. Ashfaq Ahmed Tunio and 4 others v. Federal Investigation Agency through Director General and 3 others 2018 PLC (C.S.) 1264 and Wali Muhammad Shaikh v. Federation of Pakistan 2018 YLR 2624 rel.

Ms. Amber Lakhani for Petitioner.

Ms. Lubna Pervez, D.A.G. for Respondents Nos.1 - 3.

Shahenshah Hussain for Respondent No.4.

P L D 2020 Sindh 611

Before Muhammad Ali Mazhar and Agha Faisal, JJ

KAINAT SOOMRO and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

C.P. No.D-5920 of 2014, decided on 31st January, 2020.

Constitution of Pakistan---

----Arts. 187, 189 & 190---Issue and execution of processes of Supreme Court---Decisions of Supreme Court binding on other courts---Action in aid of Supreme Court---Scope---Petitioners sought direction to the respondent authorities to implement the directions of the Supreme Court laid down in 'Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others' 2013 SCMR 203---Validity---Supreme Court, according to Art. 187 of the Constitution had the power to issue such directions, orders or decrees as were necessary for doing complete justice in case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document---Any decision of Supreme Court to the extent that it decided a question of law or was based upon or enunciated a principle of law was binding on all other courts in Pakistan---All executive and judicial authorities throughout Pakistan had to act in aid of the Supreme Court---Judgment in the case was rendered in the year 2012 but its proper implementation was not ensured---High Court issued direction to the concerned authorities for implementation of the judgment---Constitutional petition was disposed of accordingly.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 rel.

Mohamed Vawda for Petitioners.

Abdul Qadeer Memon, Deputy Prosecutor General Sindh.

Abdul Razzak, MIT-II of this court present.

Jawad Dero, Additional A.G. along with Ghulam Akbar Lashari, State Counsel.

Abdul Waheed Khoso, Registrar ATCs Sindh present.

Amanullah Zardari, Deputy Secretary, Home Department present, DSP (Legal) Raza Mian, Representative of I.G. Sindh Police present.

P L D 2020 Sindh 616

Before Aqeel Ahmed Abbasi and Zulfiqar Ahmed Khan, JJ

AAM LOG ITTEHAD through Secretary General and another---Petitioners

Versus

The ELECTION COMMISSION OF PAKISTAN through Secretary and 4 others---Respondents

Constitutional Petition No.D-444 of 2019, decided on 12th June, 2020.

(a) Constitution of Pakistan---

----Art. 199---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Constitutional petition---Mala fide---Onus to prove---While attributing mala fide against any person seeking enforcement of fundamental rights as guaranteed under the Constitution a great responsibility is cast upon such objector to establish such mala fide either on the face of record or through some concrete and undisputed material before the Court convincing enough to accept such allegation of mala fide---Mere allegation of mala fide, in absence of any factual or lawful basis, cannot be considered as a sole ground for dismissing a Constitutional petition without examining merits of the case.

(b) Constitution of Pakistan---

----Art. 199---Limitation Act (IX of 1908), S. 3---Constitutional petition---Appointment of a person to public office---Quo warranto, writ of---"Limitation" and "laches"---Distinction---Limitation is provided under Limitation Act, 1908, or under a particular law---Principle relating to "limitation" and of "laches" are different and distinct---Period of limitation creates a substantial right in favour of succeeding party, therefore, the same cannot be overlooked or condoned to the disadvantage of succeeding party and to favour a defaulting party unless strong and valid reason for delay beyond the control of party have been explained---While examining laches, particularly in the case of Constitutional petition of quo warranto under Art. 199(1)(b)(ii) of the Constitution requiring or calling a person holding public office to show under what authority of law he/she claims to hold that office, the delay does not operate as a bar for the reason that authority of Court to examine validity of an appointment to a public office, on Constitutional and legal grounds cannot be curtailed on technicalities or delay in bringing such cause before the Court---Delay, if any, requiring Court to make judicial review of appointment of a person to a public office does not operate as a bar and to dismiss such Constitutional petition on the sole ground of laches---In case of writ of quo warranto, cause of action is a recurring one, as the holder of public office continues to hold such office until he retires or vacates public office, therefore, it can be called any question during such period when he continues to occupy such public office---In a writ of quo warranto message is more important than the messenger, therefore, conduct or antecedent of a petitioner become subservient to the cause of justice and authority of High Court to make a judicial review in respect of appointment of a person to public office.

(c) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Quo warranto, writ of---Object, scope and purpose---Purpose of providing writ of quo warranto under Art.199(1)(b)(ii) of the Constitution is to protect sanctity of public office by safeguarding against unlawful appointment and to provide judicial remedy to be invoked by any person, not necessarily an aggrieved party, a whistle blower, to examine as to under what authority of law such person claims to hold that office.

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

----Ss. 145, 146 & 148---Election Tribunal---Proceedings---Scope---Proceedings before Election Tribunal are judicial in nature as it determines rights of a party through inquiry, recording of evidence in appropriate cases and to decide election disputes after hearing parties judicially in accordance with law.

(e) Words and phrases---

----"Quasi-judicial"---Connotation---Expression 'quasi-judicial' has been termed to be one which stands midway a judicial and an administrative function---Test whether an authority is quasi-judicial is (i) that the body of person must have legal authority, (ii) authority must be given to determine rights of the subjects or citizens, and (iii) such body should have the duty to act judicially.

Prem and Saharay's Judicial Dictionary of words and phrases; K J Aiyer's [A Complete Law Lexicon] Thirteenth Edition; Words and Phrases Permanent Edition Volume 35A by West Publishing Co. and Boord v. Maurer, 22 A.2d 905, 906, 343 Pa. 315 rel.

(f) Constitution of Pakistan---

----Arts. 199 (1)(b)(ii), 207 (2), 213 & 218---Constitutional petition---Quo warranto, writ of---Election Commission---Appointment---Bar of two years---Petitioner assailed appointments of four provincial members to Election Commission of Pakistan out of them three were retired judges of respective High Courts and one was a retired bureaucrat---Plea raised by petitioner was that three members had been appointed before expiry of two years from their retirement and the bureaucrat was an accused under National Accountability Ordinance, 1999---Validity---Office of Election Commission of Pakistan was a 'quasi-judicial office' therefore, bar of expiration of two years in terms of Art. 207(2) of the Constitution did not attract in appointment of retried judges of Supreme Court and High Court---Writ of quo-warranto could not be issued against three members who retired as judges of different High Courts on the ground of their appointment made before expiration of two years from the date when they ceased to hold office as Judges of High Courts---High Court declined to issue writ of quo-warranto against fourth member who was retired bureaucrat as no substantial Constitutional or legal ground was agitated nor any sufficient material or evidence was produced in support of allegations of corruption---High Court declined to conduct any inquiry or to make any probe into the allegations leveled against the retired bureaucrat while exercising jurisdiction under Art. 199(1)(b)(ii)of the Constitution---Constitutional petition was dismissed in circumstances.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Ibrahim v. The Settlement Commissioner and others 1980 CLC 1245; Muhammad Yaseen v. Federation of Pakistan and others PLD 2012 SC 132; In the matter of Human rights Case No3654/2018 regarding appointment of Managing Director, Pakistan Television Corporation 2019 SCMR 1; Asghar Hussain v. Election Commission of Pakistan PLD 1968 SC 387; Al-Iblagh Ltd. v. The Copyright Board 1985 SCMR 758; Trading Corporation of Pakistan v. Pak Agro Forestry Corp. 2000 SCMR 1703; Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Rashid Latif v. Federation of Pakistan PLD 2014 Sindh 135; The Federal Government v. Ayyan Ali 2017 SCMR 1179; Justice (R) Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others C.P. No.18 of 2019; Aftab Shaban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779; Raja Shaukat Aziz Bhatti v. Major (R) Iftikhar Mahmood Kiani and others PLD 2018 SC 578; Shaikh Riaz-ul-Haq and another v. Federation of Pakistan and others PLD 2013 SC 501; Major (Retd.) Abdul Rauf Khan v. Justice (Retd.) Salah-ud-Din Mirza Provincial Ombudsman, Sindh and another 1998 CLC 1225 Human rights Case No.3654 of 2018 and 2019 SCMR 1 ref.

Muhammad Rizwan Saeed for Petitioner No.1.

Petitioner No.2 in person.

Muneer A. Malik and Zia-ul-Haq Makhdoom for Respondent No.2.

Mian Abdul Rauf for Respondents Nos.3 and 4.

Mansoor-ul-Haq Solangi for Respondent No.5.

Khilji Bilal, Assistant Attorney General along with Abdullah Hinjrah, Law Officer of Respondent No.1 for Federation.

P L D 2020 Sindh 652

Before Khadim Hussain M. Shaikh and Arshad Hussain Khan, JJ

Mst. NOOR JEHAN and others---Petitioners

Versus

Miss SHAHNAZ and 3 others---Respondents

Constitutional Petition No.D-637 of 2014, decided on 11th October, 2019.

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

----S. 47---Execution petition---Execution of a decree during pendency of a revision---Scope---Suit was decreed against which an appeal was filed which was dismissed---Defendants-judgment-debtors filed revision but during pendency of the same execution petition was moved which was accepted and Executing Court passed order for execution of judgment and decree---Validity---No stay order had been passed in the revision petition filed on behalf of judgment-debtors---Appellate Court, if satisfied, could suspend operation of judgment and decree which were under execution--- Civil Procedure Code, 1908, did not restrict decree-holder from filing execution petition during pending proceedings in appeal or revision---Decree-holder could not be deprived from his right of seeking execution proceedings pending disposal of appeal or revision---Mere filing of appeal or revision did not operate as a stay order over right of decree-holder to file execution petition nor it should be termed as suspension of decree impugned---Mere pendency of appeal or revision could not debar the Executing Court from either to stop or conclude execution proceedings---Concurrent findings of fact could not be questioned in constitutional petition---Constitutional petition could not be considered as an appeal against the order passed by the appellate Court and revisional Court---No illegality or infirmity had been pointed out in the impugned orders passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Karam Ali and others v. Raja and others PLD 1949 Lah. 100 rel.

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

----S. 115---Revisional jurisdiction of High Court---Interpretation and scope.

Revision is a matter between the higher and subordinate Courts and the right to move an application in this respect by the Applicant is merely a privilege. The provisions of Section 115, C.P.C., have been divided into two parts; first part enumerates the conditions, under which, the Court can interfere and the second part specify the type of orders which are susceptible to revision.

Revisional jurisdiction of the High Court under Section 115, C.P.C., is in material respects, even more restricted than the appellate jurisdiction under Section 100, C.P.C, because judgment can be assailed through a revision petition only where it suffers from jurisdictional error of the nature set out in clauses (a), (b) and (c) of section 115, C.P.C.

Bashir Ahmed v. Taja Begum and others PLD 2010 SC 906 and Abdul Khaliq (deceased) through L.Rs. v. Ch. Rehmat Ali (deceased) through L.Rs. and others 2012 SCMR 508 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope.

The question pertaining to appreciation of facts cannot be resorted to in exercise of constitutional jurisdiction as by doing the same, it would amount to converting the petition into a revision or second appeal. A writ petition is not a substitute either of a revision or a second appeal.

Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the frame work of Constitution, and if there is any error on the point of law committed by the Courts below or the tribunal or their decision takes no notice of any pertinent provision of law, then obviously High Court may exercise constitutional jurisdiction subject to the non-availability of any alternate remedy under the law. This extraordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation. This Constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the Courts or tribunals below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vested in them or non-exercise of jurisdiction vested in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate injustice. However, if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers in upsetting the order passed by the Court below is concerned, High Court has to comprehend what illegality or irregularity and/or violation of law has been committed by the Courts below which caused miscarriage of justice.

Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 rel.

Syed Zamir Ali Shah for Petitioners.

Abdul Khalique Bughio for Respondent No.1.

Abdl Hamid Bhurgri, Addl. A.G. for Respondents Nos.2 to 4.

P L D 2020 Sindh 660

Before Muhammad Junaid Ghaffar, J

ASIF MANNAAN and 9 others---Plaintiffs

Versus

SULEMAN LALLANI and 9 others---Defendants

Suit No. 579 of 2014 and C.M.As. Nos. 4651, 12391 of 2014 and 588 and 13510 of 2015, decided on 16th April, 2020.

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

----S. 151---Inherent powers of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of process of Court, exercise of---Nature and scope of jurisdiction of civil courts under S.151, C.P.C.---Appropriate or specific provision if available for a relief being claimed under C.P.C.; then said relief could as a matter of right had to be granted and entertained necessarily under S.151, C.P.C.---Civil Procedure Code, 1908, was not exhaustive; and did not lay down rules for guidance in respect of all situations nor did it seek to provide rules for decision for conceivable cases---Civil Courts were authorized to pass such orders as may be necessary for ends of justice, or to prevent abuse of the process, but where an express provision was made to meet a particular situation such express provision of C.P.C. must be observed, and departure therefrom was not permissible---Inherent jurisdiction of court to make order ex debito justitiae was undoubtedly affirmed by S.151, C.P.C., but such jurisdiction could not be exercised so as to nullify other provisions of C.P.C.---Where provision of C.P.C. dealt with expressly with a particular matter, then such provision should normally be regarded as exhaustive---Inherent powers of the Court were in addition to the powers specifically conferred by C.P.C. and were complementary to such powers and therefore it must be held that the Civil Courts were free to exercise same for purposes mentioned in S. 151 when exercise of such powers was not in any way in conflict with what had been expressly provided in C.P.C.---Civil Courts could not make use of special provisions of S.151, C.P.C. where a party had remedy provided elsewhere in C.P.C. and neglected to avail himself of the same and furthermore power under S.151, C.P.C. could not be exercised as appellate power.

Bahadur Rao Raja Seth Hiralal MANU/SC/0056/1961; Subho Ram Kalita v. Dharmeswar Das Koch AIR 1987 Gau. 73 and Nain Singh v. Koonwarjee and others AIR 1970 SC 997 rel.

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

----O. XXXVII, R. 5-- Attachment of property/funds before judgment---Scope---Application for attachment of property/funds of a defendant was rarely to be granted---For grant of such application averments, at a bare minimum, were required to be so convincing that Court could consider same to be prima facie in nature---Relief of attachment before judgment was a very harsh order to be made against a particular defendant and in granting such relief Court had to be satisfied that plaintiff's case was of prima facie nature and based on an unimpeachable claim (s) in plaint---Furthermore Court must have reasons to believe on basis of material before it, that unless jurisdiction was exercised and orders as solicited were not passed, then there existed a real danger that defendant may remove itself from territorial jurisdiction of Court and an intent to avoid passing of a decree must be clearly shown with reasonable clarity.

(c) Company---

----Principles of corporate governance---Adjudication by courts on matters of shareholder grievance/corporate governance---Judicial oversight on conduct of company's affairs---Scope---For a court dealing with company matters, if the thing complained of before it by minority shareholder(s), was a thing which in substance majority of company was entitled to do, or if something had been done irregularly which majority of the company was entitled to do regularly, or if something had been done illegally which majority of company was entitled to do legally, then there existed no use for litigation with regards to such matter as ultimate end of such matter was only that a meeting had to be called, and then ultimately majority got its wishes---Individual shareholder could not bring an action before courts to complain of an irregularity (as distinct from an illegality) in the conduct of the company's internal affairs provided that such irregularity was one which could be cured by a vote of company in general meeting.

Foss v. Harbottle (1843) 67 ER 189; Mosley v. Alston (1847) 41 E.R. 833; KASB Corporation Limited v. Bank Islami Pakistan Limited 2019 YLR 345; Macdougall v. Gardiner [1875] 1 Ch.D.13 (L. J. Mellish) and Prudential Assurance Co. Ltd. v. Newman Industries Ltd. and others [1982] 1 All ER 354 rel.

Syed Amir Hussain Shah v. Progressive Papers Ltd. and others PLD 1969 Lah. 615; Naveed Textile Mills Ltd., Karachi and 3 others v. Central Cotton Mills Limited, S.I.T.E. Kotri District Dadu and 2 others PLD 1997 Kar. 432; Nizam Hashwani v. Hashwani Hotels Limited and 14 others 1999 CLC 1989; Kohinoor Raiwind Mills Limited through Chief Executive v. Kohinoor Gujar Khan Mills and others 2002 CLD 1314; Muhammad Suleman Kanjiani and 3 others v. Dadex Eternit Ltd. through Chief Executive and 4 others 2009 CLD 1687; Babri Cotton Mills Ltd.'s case 2009 CLD 541; Mst. Sakina Khatoon and 6 others v. S.S. Nazir Ahsan and 17 others 2010 CLD 963; Golden Arrow Selected Stock Funds Ltd. and another v. Clariant Pakistan Ltd. and 9 others PLD 2016 Sindh 50; Foss v. Harbottle (1843) 67 ER 189, Re Lee, Behrens & Co, Ltd. 1932] All ER Rep 889; Edwards and another v. Halliwell and others [1950] 2 All ER 1064 and Re Halt Garage (1964) Ltd. [1982] 3 All ER 1016 rel.

Jaffer Raza and Rabia Khan for Plaintiffs.

Khalid Jawed Khan along with Umer Akhund and Hanif Kamal Alam for Defendants Nos. 1 to 9.

Imran Shamsi for SECP.

P L D 2020 Sindh 678

Before Muhammad Junaid Ghaffar, J

DIGRI SUGAR MILLS LIMITED, KARACHI and 2 others---Plaintiffs

Versus

Mian KAMRAN ILAHI through L.Rs.and 8 others---Defendants

Suit No. 1076 and C.M.A. No. 9036 of 2013, decided on 19th February, 2020.

Specific Relief Act (I of 1877)---

----Ss. 56(e) & 53 ---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Preventive injunction---Temporary and perpetual injunction, grant of---Bar to grant of perpetual injunction to stay proceedings in any criminal matter---Applicability of such bar on grant/refusal of temporary injunction under S.53 of Specific Relief Act, 1877 and O.XXXIX, Rr. 1 & 2 C.P.C.---Scope---Question before High Court was whether in a particular case, if no permanent / perpetual injunction could be granted due to bar contained in S. 56(e) of Specific Relief Act, 1877, then did the same bar apply to temporary injunction which was regulated under S.53 of the Specific Relief Act, 1877 and O.XXXIX, Rr. 1 & 2, C.P.C.---Held, that even if such bar to temporary injunction existed, then the same was definitely not absolute and there existed exceptions to the same---Section 56 of Specific Relief Act, 1877, if in its entirety was to hold field and override S.53 (temporary injunctions) of the said Act; then court would have been barred from passing restraining order even against subordinate court(s), which was not the case---Such bar to temporary injunction was not absolute and was dependent on facts and circumstances of a case and exercise of discretion by court which could not be discarded in absolute terms.

Kazi Mohamed Akbar v. Province of Sindh PLD 1952 Sindh 32; Ahmad Din and others v. Faiz Ali and others PLD 1954 Lah. 414; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139; Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Limited PLD 1981 Kar. 720; Muhammad Akbar v. The State and another PLD 1968 SC 281; A. Habib Ahmed v. M. K. G. Scott Christian and 5 others PLD 1992 SC 353; N. Manakji v. Fakhar Iqbal and another 1969 SCMR 198; Shreyas Agro Services Pvt. Ltd. v. Chandrakumar S.B. 2006 Cri.LJ 3140; Keygien Global Limited v. Madhav Impex and others 2006 Cri.LJ 3413; Uppinangady Grama Panchayath v. P. Narayana Prabhu 2006 Cri.LJ 3141 and Digri Sugar Mills Limited and 2 others v. Mian Kamran Ilahi and another 2018 CLD 449 rel.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Ltd., Karachi and another PLD 1971 Kar. 720; Ahmad Din and others v. Faiz Ali and others PLD 1954 Lah. 414; Kazi Mohammad Akbar v. Province of Sindh and another PLD 1952 Sindh 32; Muhammad Akbar v. The State and another PLD 1968 SC 281; A. Habib Ahmed v. M. K. G. Scott Christian and 5 others PLD 1992 SC 353; Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and others PLD 1993 SC 399; Mian Allah Ditta v. The State and others 2013 SCMR 51; Abdul Sattar v. The State and another PLD 2013 Lah. 173; Muhammad Munir Ahmad v. The State and another 2010 MLD 1838; Digri Sugar Mills Limited and 2 others v. Mian Kamran Ilahi and another 2018 CLD 449; Aamir Shehzad v. The State PLD 2005 Lah. 568; State Life Insurance Corporation v. Haji Abdul Ghani and 3 others 1986 MLD 1245; Messrs Petro Commodities (Pvt.) Ltd. v. Rice Export Corporation of Pakistan PLD 1998 Kar. 1; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Faisal Kapadia and another v. Motorola Ltd. and 2 others 2010 MLD 518 ref.

Ijaz Ahmed Zahid for Plaintiff No.1.

Salim Salam Ansari for Plaintiffs Nos. 2 and 3.

Haider Waheed, Ahmed Masood and Uzma Farooq for Defendant No. 2.

P L D 2020 Sindh 700

Before Arshad Hussain Khan, J

NOOR ALI---Plaintiff

Versus

The PROVINCE OF SINDH through Secretary to Government of Sindh, Home Department, Karachi and 3 others---Defendants

Suit No. 1148 of 2009, decided on 5th December, 2019.

(a) Malicious prosecution---

----Damages, recovery of---Essential elements---Action for "malicious prosecution" was distinct from an action for "false arrest or false imprisonment"---If a person was arrested by a police officer who had no authority for the arrest then proper remedy was an action for false imprisonment---Action for malicious prosecution was appropriate only when judicial system had been misused---Nothing was on record to establish that there was any personal enmity or grudge between the plaintiff and defendant which resulted in the indictment of plaintiff in the case---Element of malice was missing in the present case---Plaintiff had been acquitted from the criminal case but mere acquittal did not confer any right for damages on the basis of malicious prosecution---Plaintiff had been acquitted from the criminal case by extending benefit of doubt and due to defective investigation---Plaintiff had failed to substantiate his stance of malicious prosecution and that defendant had acted without any reasonable or probable cause---Suit for damages could only be decreed when all the ingredients of malicious prosecution had been established---Suit had been filed after a delay of four years and was time-barred---Plaintiff in order to extend cause of action and bring his suit within period of limitation had sent legal notice to the defendant---Nothing was on record to establish that said notice was actually sent and received by the defendant---Mere issuance of legal notice would not ipso facto extend the cause of action for filing the present suit---Suit was dismissed, in circumstances.

Managing Director Sui Southern Gas Ltd. v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796; Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar. 640 and Alam Din v. Muhammad Hussain and 2 others PLD 2012 Lah. 279 ref.

SBLR 2006 SC 55 and 1989 ALD 421 distinguished.

(b) Malicious prosecution---

----Ingredients---Ingredients to establish malicious prosecution were; that plaintiff was prosecuted by the defendant; that prosecution ended in favour of plaintiff; that defendant acted without reasonable and probable cause; that prosecution was actuated by malice; that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

Naber Shaha v. Shamsuddin and others PLD 1964 Dacca 111 and Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 281 rel.

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

----Art. 23---Suit for compensation on the basis of malicious prosecution---Limitation---Limitation for filing a suit for compensation on the basis of malicious prosecution was one year and same would start from the date of acquittal of the plaintiff or the prosecution was otherwise terminated.

Plaintiff in person.

Syed Aaley Maqbool, Addl. A.G. for Defendants Nos. 1-3.

Wazarat Hussain Zaidi for Defendant No.4.

P L D 2020 Sindh 713

Before Nadeem Akhtar, J

(Late) Major (Rtd.) Syed TANVIR ALI---Petitioner

Versus

Syeda RAFAT EIJAZ---Respondent

S.M.A. No.56 of 2015, decided on 27th May, 2015.

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

----Ss. 278 & 372---Letter of Administration and Succession certificate, issuance of---Requirement of furnishing surety, exemption from---Discretion of court---Scope---Object of requiring surety was to secure the interest of any such person who may have a share, interest or claim in the movable or immovable assets left by the deceased, such as, a legal heir whose name had not been disclosed to the Court or who was not before the Court, a minor legal heir or a legal heir of unsound mind whose share was retained by the Court, or a legal heir whose share was not distributed to him in accordance with law after the grant of Letters of Administration or Succession Certificate, or a creditor of the deceased---If the Court was satisfied that none of the said situations existed in the case before it, it may dispense with the (requirement of) furnishing of surety while granting Letters of Administration or Succession Certificate---Such power of the Court was discretionary and the person applying for Letters of Administration or Succession Certificate could not seek such discretion in his favour as a matter of right---Exercise of discretion shall depend upon the facts and circumstances of each case, however such discretion should be exercised liberally keeping in view the hardship that may be faced by the legal heirs of the deceased in furnishing surety, who may not have any other or additional property of their own to offer as surety---In some cases, the legal heirs may not be in a position to offer even the inherited property as security.

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

----S. 278---Letters of Administration, grant of---Requirement of furnishing surety, exemption from---Petitioner-widow contended that present matter was an uncontested matter, as no one, including all other legal heirs had opposed present petition; that in fact all legal heirs had submitted their affidavits of no objection in favour of the petitioner, therefore, she may be exempted from furnishing surety for the grant of Letters of Administration in her name on execution of personal bond by her---Held, that notice of present petition was published in a daily newspaper and was also affixed on the Court Notice Board---As per the report submitted by the Deputy Registrar (O.S.), about a month after the publication in the newspaper, no objection whatsoever had been received from any quarter, therefore, the discretion of dispensing with the requirement of furnishing surety for issuance of Letters of Administration could be exercised in favour of the petitioner---Since all the formalities had been completed as per rules there appeared to be no impediment in the grant of Letters of Administration in the name of the petitioner---Accordingly subject to the filing of a statement by the petitioner duly supported by her affidavit within one week stating that there were no liabilities of the deceased that required settlement, and further subject to her executing personal bond equivalent to the value of the immovable property left by the deceased, the High Court gave directions for issuance of Letters of Administration in the name of the petitioner---Petition was allowed.

Khalid Mahmood Siddiqui for Petitioner.

P L D 2020 Sindh 717

Before Adnan Iqbal Chaudhry, J

Mst. NAGHMA IMRAN---Applicant

Versus

The STATE and 6 others---Respondents

Criminal Revision Application No. 201 of 2019, decided on 6th December, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439 & 439-A---Power of court to call for records of inferior Courts---High Court's powers of revision---Sessions Judge's powers of revision---Scope---Petitioner assailed the dismissal of her private complaint by Magistrate through a revision petition before the High Court under Ss.435 & 439, Cr.P.C.---Validity---High Court acting under S.435, Cr.P.C. could "call for and examine" the record of any proceedings before "any inferior criminal court", including the Magistrate, that was not the same as saying that a revision application against an order of the Magistrate could be filed by a litigant directly before the High Court as a matter of right, for then the explanation clause of S.435, Cr.P.C. read with S.439-A, Cr.P.C. would become redundant---Explanation clause of S.435, Cr.P.C. entailed that while the High Court could call for and examine the record of proceeding before a Magistrate, either suo motu or in revision arising from an order of a Sessions Judge, a revision application against the order of Magistrate was to be filed by the litigant to the Sessions Judge to whom the Magistrate was a court 'inferior' within the meaning of Explanation clause of S.435, Cr.P.C.---Office objection was upheld and the revision application was dismissed.

Abdul Sattar Khan v. State 2014 PCr.LJ 1133; Mir Khan v. Allah Wadhayo Pitafi 2011 PCr.LJ 1362 and Abdul Hafeez v. State PLD 1981 SC 352 ref.

Syed Abdul Waheed for Applicant.

Nemo for Respondents.

P L D 2020 Sindh 719

Before Fahim Ahmed Siddiqui, J

Syed JAWAID HAIDER KAZMI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 19 of 2018, decided on 17th July, 2019.

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

----S. 193---Criminal Procedure Code (V of 1898), S. 195---Prosecution for offences against public justice---Punishment for false evidence---Expression 'complaint in writing of such court'---Complaint to be made by the same Judicial Officer---Scope---Petitioner assailed the dismissal of his application which was filed before the trial court for prosecution of complainant under S.193, P.P.C.---Offence under S.193, P.P.C. was allegedly committed in relation to proceedings before the Judicial Magistrate as such only he could file a complaint in writing before the nearest court of Magistrate---Cognizance could only be taken by the same presiding officer before whom trial was conducted or concluded---Trial in the present case had concluded a long time ago and the Judicial Officer before whom the proceedings were carried out must have been transferred, promoted or retired, as such any other Judicial Officer could not take cognizance of offence under S.193, P.P.C.---Criminal miscellaneous application was dismissed.

2010 YLR 470 ref.

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

----S. 193---Criminal Procedure Code (V of 1898), Ss. 195 & 476---Prosecution for offences against public justice---Procedure---Punishment for false evidence---Scope---Application under S.195, Cr.P.C. need not necessarily be filed by any party as it is the duty of the court to secure the ends of justice by taking action against those who have fabricated false evidence in order to get some innocent person convicted from the court of law---Private party is not standoffish for initiating proceedings under S.193, P.P.C. either but the same should be under the control of the court for which a proper procedure has been described under S.476, Cr.P.C.

Patel Lalji Bhai v. State of Gujarat AIR 1971 SC 1934 rel.

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

----S. 193---Criminal Procedure Code (V of 1898), S. 195---Punishment for false evidence---Prosecution for offences against public justice---Scope---Where the court arrives at the conclusion that a police officer has lodged a false and fabricated FIR then the Court should not be reluctant to take action against such police officer under S.193, P.P.C. and such action should be taken immediately.

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

----S. 423---Powers of Appellate Court in disposing of appeal---Appeal to be continuation of original proceedings---Scope---Appeal is the continuity of the original proceedings therefore, the law has empowered the appellate court to use all powers of trial court at the time of dealing an appeal.

(e) Criminal trial---

----Punishment---No offence should go unchecked and no offender should go unpunished.

Syed Jawaid Haider Kazmi for Applicant.

Javed Ahmed Kalwar for Respondent No. 2.

Syed Zahoor Hussain Shah, DPG for the State.

P L D 2020 Sindh 727

Before Nazar Akbar and Abdul Mobeen Lakho, JJ

Mst. HAJRA---Petitioner

Versus

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

C.P. No. D-3812 of 2020, decided on 26th August, 2020.

Constitution of Pakistan---

----Arts. 4 & 199---Habeas corpus petition---Maintainability---Registration of criminal case--- Fundamental right, violation of---Petitioner complained that her son was illegally and unlawfully taken away by Rangers from her house and his whereabouts were not known---Few days after notice was taken by High Court, the agencies released the detenue on a busy road and police finding him in vulnerable situation booked him in a criminal case of possessing illegal weapon, in which only policemen were witnesses---Validity---All such happened after filing of petition by mother of detenue and after notice of his being missing from his home through a courier service to all law enforcement agencies---Such was the manner in which fundamental rights guaranteed under Art.4 of the Constitution to detenue/missing person were violated---Even after having found detenue in jail in criminal case registered with police, habeas petition was even then maintainable---High Court set the detenue at liberty and quashed FIR registered against him---Petition was allowed in circumstances.

Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raees Farooq and 5 others 1994 SCMR 1283 and Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026 rel.

Sajjad Gul Khatri for Petitioner.

Jawad Dero, Additional Advocate General, Sindh.

Muhammad Nadeem Khan, Assistant Attorney General.

Muhammad Iqbal Awan, Deputy Prosecutor General.

Iqbal Raza, DSP, Shahra-e-Faisal, Karachi.

Insp. Sarwar, SHO, P.S. Shahra-e-Faisal, Karachi.

P L D 2020 Sindh 733

Before Mohammad Ali Mazhar and Agha Faisal, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Duly Authorized Attorney---Petitioner

Versus

PAKISTAN through Secretary Cabinet, Islamabad and 2 others---Respondents

C. P. No. D-6683 of 2018, decided on 9th March, 2020.

(a) Administration of justice---

----Adjudication by judicial, quasi-judicial and public functionaries---"Speaking order"---Essential requirements---Scope---Where an authority was making any order or issuing any directions under powers conferred to it by or under any enactment, then it shall give reasons for making such order or for issuing such direction(s)---Such ingredients were included in definition of "speaking order", being an order that spoke for itself and demonstrated that an adjudicating authority had applied its independent mind to issues and controversy involved in a case---Such requirement was not exclusive to courts but also applied to public functionaries who were duty bound to decide cases after independent application of mind and their orders were obliged to demonstrate reasoning in determination of issue(s) before them.

Poly Pack Limited v. Customs and Central Excise Appellate Tribunal and others 2005 PTD 2566; United Woollen Mills Limited Workers Unions v. United Woollen Mills Limited 2010 SCMR 1475; Fasihudin Khan v. Government of Punjab 2010 SCMR 1778; Secretary Health v. Dr. Rehana Hameed 2010 SCMR 511; Airport Support Services v. Airport Manager Karachi 1998 SCMR 2268 rel.

(b) Constitution of Pakistan---

----Arts. 10A, 4 & 199---Constitutional jurisdiction of High Court---Fair trial and due process of law---Principles of natural justice---"Speaking order"---Opportunity of being heard---Scope---Right to fair trial meant grant of proper hearing to a person by an unbiased competent forum so that justice should not only be done but also seen to be done---Such right necessitated that no one should be penalized by decision disturbing such person's right or legitimate expectation unless such person was given prior notice, and a fair chance to answer and explicate / present his or her case---Where no corroboration of an adequate opportunity of being heard was placed on record, then High Court in its Constitutional jurisdiction could hold that essential requirements of natural justice had not been met.

Ishtiaq Ahmed v. Honorable Competent Authority through Registrar Supreme Court of Pakistan 2016 SCMR 943; Inbox Technologies Limited v. Federation of Pakistan and others 2018 PTD 621 and Warid Telecom (Private) Limited v. Federation of Pakistan and others 2015 SCMR 338 rel.

Barrister Makhdoom Ali Khan, Ms. Beenish Javed and Fahad Khan for Petitioner.

Kafeel Ahmed Abbasi, Deputy Attorney General, Ishrat Zahid Alvi, Assistant Attorney General and Hussain Bohra, Assistant Attorney General for Respondents.

P L D 2020 Sindh 739

Before Ahmed Ali M. Sheikh, C.J. and Omar Sial, J

UBEDULLAH PAHORE---Appellant

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 3 others---Respondents

Constitution Petitions Nos. D-1229, D-1503, D-4019 of 2018 and D-4492 of 2017, decided on 5th August, 2020.

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

----S.403---Second trial---Principle---Provision of S. 403, Cr.P.C. is based on Maxim: 'nemo debet bis puniri pro uno delicto', which means that no one has to be punished twice for one offence.

Nazir Ahmed v. Capital City Police, Lahore and another 2011 SCMR 484 rel.

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

----S. 9 (a)---Criminal Procedure Code (V of 1898), Ss. 249-A & 403---Constitution of Pakistan, Art. 13---Double jeopardy, principle of---Applicability---Scope---Earlier acquittal of petitioner/accused under S.249-A, Cr.P.C. having committed different offences under different enactments---Effect---Petitioners were accused facing trial under National Accountability Ordinance, 1999, who sought quashing of their trial---Plea raised by petitioners was that earlier, they were acquitted by Trial Court under S.249-A, Cr.P.C.--- Validity---Entire basis of S.403, Cr.P.C. was that in order to avail benefit of S.403, Cr.P.C., it was a condition precedent that persons seeking protection should have been 'tried' for the same offence earlier in which he had been convicted or acquitted---Trial of accused was essential---Framing of charge marked commencement of 'trial'---Petitioners earlier were accused of committing offences under different enactments i.e. P.P.C. and Prevention of Corruption Act, 1947, whereas subsequently they were accused of offences under National Accountability Ordinance, 1999, i.e. under a separate enactment---Provision of S.403 Cr.P.C. and Art.13 of the Constitution were not applicable as the petitioners were not 'tried' in earlier case---Petitioners had committed offences which were neither similar to each other nor under the same enactments---Constitutional petition was dismissed in circumstances.

Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and others PLD 1978 SC 121; Muhammad Noor v. Member, Board of Revenue Balochistan and others PLD 1985 SC 335; Abdul Malik v. The State PLD 2006 SC 365; Ch. Tanveer Khan v. Chairman, NAB PLD 2002 SC 572; Badar Alam Bachiani v. The State 2010 PCr.LJ 1988; Imtiaz Ahmed Dev. v. NAB 2018 MLD 1908 and Hasan and others v. The State and others PLD 2013 SC 793 ref.

Muhammad Ashraf v. The State 1995 SCMR 626; Shadi Khan v. The State through Advocate-General of Balochistan, Quetta 2002 SCMR 273; Sher Mohammad Unar and others v. The State PLD 2012 SC 179; The State through the Collector of Customs, Dry Port Sambrial, Sialkot v. Ali Raza and others PLD 2002 SC 610 and Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan 2014 SCMR 1376 rel.

Rehman Ghous for Petitioner (in C.P. No.D-1229 of 2018).

Abdur Rehman for Petitioners (in C.P. No.D-1503 of 2018).

Khawaja Naveed Ahmed for Petitioner (in C.P. No.D-4019 of 2018 and C.P. No. 4492 of 2017).

Riaz Alam and Sattar Muhammad Awan, Special Prosecutors, NAB along with Mohammad Adeel Khan I.O. for Respondents.

P L D 2020 Sindh 748

Before Abdul Maalik Gaddi, J

KAZIM RAZA ABIDI ADVOCATE and 4 others---Applicants

Versus

XVIIITH JUDICIAL MAGISTRATE and another---Respondents

Criminal Revision Application No. 179 of 2019, decided on 15th November, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 439 & 439-A---Constitution of Pakistan, Art. 10-A---Power of revision of High Court and Sessions Judge---Right to fair trial---Direct revision petition before High Court---Maintainability---Scope---Applicant assailed order passed by Magistrate through a revision petition before the High Court---Validity---Section 439, Cr.P.C. provided concurrent jurisdiction to the High Court as well as Sessions Judge but it did not mean that a party being aggrieved by an order of Magistrate, who was deemed to be inferior to the Sessions Judge as provided in Explanation of S.439, Cr.P.C., could directly approach the High Court as an option available to him for the reason that the point involved in the case related to public importance---Aggrieved party in such a situation would lose a forum of appeal/ revision before approaching the Supreme Court, which was not only against the norms of law but also in violation of principle of fair trial as mentioned in Art. 10-A of the Constitution---Revision application was disposed of accordingly.

Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Haleem Shah v. The State PLD 1996 Kar. 306; Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others PLD 2002 Kar. 328; Abdul Sattar Fazal Din v. The State 1971 PCr.LJ 228 and Ms. Fatima Chandio and another v. The State 2017 YLR Note 136 distinguished.

Hassan M. Abidi and Mohsen Khan for the Applicants.

Applicant No.1 Kazim Raza Abidi, Advocate is in attendance.

Abdullah Rajput, Deputy Prosecutor General, Sindh for the State.

None present for the Complainant though served.

P L D 2020 Lahore 1

Before Jawad Hassan, J

AITEX PAKISTAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.39800 of 2109, heard on 29th August, 2019.

(a) Associations with Charitable and Not for Profit Objects Regulations, 2018 ---

----Regln. 5---Foreign Companies Regulations, 2018, Regln. 6---Companies Act (XIX of 2017), S. 42---Non-Profit Organization ("NPO") and Non-Governmental Organization ("NGO")---Distinction--Generally, 'NPO' was an organization that operated on the principle that no member would receive profits from such organization, and such organization applied its surplus funds on the promotion of its objectives rather than distributing it among the members of such organization---On the other hand, 'NGO' was an association of persons that worked for promoting humanitarian objective instead of a commercial one, and was formed by ordinary citizens that operated autonomously/ independently of government---'NGO' and 'NPO' were two of the most common designations which worked towards improving human welfare and betterment of the society, and were often interchangeable.

Advanced Law Lexicon, Volume 3, published by Lexis Nexis ref.

(b) Policy for Regulation of International Non-governmental Organizations (INGOs) in Pakistan, 2015 [issued by the Ministry of Interior vide notification No.6/34/2015-PE-III dated 01-10-2015]---

----Cl. 2---Entities to which the Policy for regulation of International Non-governmental Organizations (INGOs) in Pakistan, 2015 applied stated.

Policy for Regulation of International Non-governmental Organizations (INGOs) in Pakistan, 2015 [issued by the Ministry of Interior vide notification No.6/34/2015-PE-III dated 01-10-2015] applied to entities that met the following criteria:

(i) International Non-Governmental Organizations ("INGO") or International Non-Profit Organizations (INPOs) which may not be registered in their home countries as INGOs; which were part of the not for profit sector, and which undertook activities similar to typical INGOs;

(ii) Entities which received foreign contributions or utilized foreign economic assistance to engage in various development programs in Pakistan;

(iii) Private and self-governing entities which were separate and not controlled by the Government;

(iv) Entities which were not receiving return profits generated to their owners or directors or staff; and

(v) Registered organization with defined aims and objectives.

(c) Associations with Charitable and Not for Profit Objects Regulations, 2018---

----Regln. 5---Foreign Companies Regulations, 2018, Regln. 6---Policy for Regulation of International Non-governmental Organizations (INGOs) in Pakistan, 2015 [issued by the Ministry of Interior vide notification No.6/34/2015-PE-III dated 01-10-2015] ('the Policy")---Scope---International Non-Profit Organization (INPO) and International Non-Governmental Organization ("INGO") --- Registration and regulation---Liason office of a foreign based Association operating in Pakistan---Petitioner was a liaison office of a foreign Association and was working in Pakistan---Contention of petitioner that it did not fall under the definition of an 'INGO', and was merely an "INPO", therefore, the 'Policy' for regulation of INGOs did not apply to it---Held, that nothing had been brought on record establishing that the foreign Association was controlled by its Government, and the petitioner had itself admitted that the foreign Association and the petitioner was a private research institute, therefore, for all intents and purposes, it could be stated that the foreign Association was operating as an autonomous body independent of the Government, and could also be categorized as an INGO---In such circumstances the Policy in question for INGOs was applicable to the petitioner, and the petitioner or the foreign Association was required to follow the mandatory provisions of the Policy---High Court directed that the petitioner was to follow the online application procedure under the Policy for its registration, which shall be decided by the Ministry of Interior and the relevant departments strictly within the stipulated period of sixty (60) days under the applicable laws; that in view of the prior functioning of the petitioner in Pakistan, the Government and its relevant functionaries would not obstruct the lawful business of the petitioner till the decision on the online application of the petitioner; that the Securities and Exchange Commission (SECP) was to formulate appropriate Regulations, after following the applicable laws including the 'Policy', which were applicable specifically to INGOs or INPOs---Constitutional petition was dismissed accordingly.

(d) Illegality ---

----Illegality could not be allowed to be perpetuated.

Raunaq Ali v Chief Settlement Commissioner PLD 1973 SC 236 and Ms. Shagufta Hashmat v. Federation of Pakistan through Secretary Cabinet Division 2018 PLC (C.S) 619 ref.

(e) Administration of justice---

----When law required a thing to be done in a specific manner that should only be done in that specific manner.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Regulations made by the Government, interference in---Competent authority was at liberty to regulate its affairs unless such regulation was arbitrary, discriminatory or demonstrably irrelevant to the policy---Regulations could not be interfered on the grounds of mere technicalities.

Dossani travels Pvt. Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 ref.

Barrister Hassan Nawaz Shaikh for Petitioner.

Ms. Sadia Malik, Assistant Attorney General, Azmat Hayat Lodhi, Assistant Attorney General with Zulfiqar Ali, Director Board of Investment, Lahore and Ms. Iqra Anum, Section Officer (PE-III), Ministry of Interior, Government of Pakistan, Islamabad for Respondents.

Muhammad Naeem Akhtar Cheema, Legal Consultant for Secretary Primary and Secondary Health Department for Respondents..

Umair Ghafoor, Officer State Bank of Pakistan, BSL/Respondent No.4.

Syed Farhan Shah, Deputy Prosecutor, Competition Commission of Pakistan/Respondent No.5.

Barrister Umair Khan Niazi, Additional Advocate-General for Respondents.

Shehzad Ata Elahi, Advocate/Amicus Curiae assisted by Usman Virk for Respondents.

Hafiz Muhammad Talha and Muhammad Naveed, Advocates/Legal Advisor for SECP.

P L D 2020 Lahore 16

Before Ayesha A. Malik, J

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD through Authorized Representative---Appellant

Versus

MALEEHA SYED and 4 others---Respondents

I.C.As. Nos.62074, 62075, 62076 and 62077 of 2019, decided on 5th November, 2019.

(a) Pakistan Medical and Dental Council Ordinance (II of 2019)---

----Ss. 42 & 49---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018, Reglns. 7 & 6---Adminission in Medical and Dental Colleges---Power of the Pakistan Medical and Dental Council ("PMDC") to make/alter regulations---Effect of Repeal of Pakistan Medical and Dental Council Ordinance, 1962---Saving of Regulations made under the Pakistan Medical and Dental Council Ordinance, 1962---Alteration of such regulations by "PMDC"---Scope---Appellant impugned order passed in Constitutional petition, whereby it was held that there existed no specific power under S.42(2) of the Pakistan Medical and Dental Council Ordinance, 2019 for PMDC to make regulations with respect to admissions in medical and dental colleges and held that S.49(2) of the said Ordinance, protected all regulations and actions made under the repealed Pakistan Medical and Dental Council Ordinance, 1962 and therefore in absence of specific power to make regulations governing admissions, power to alter repeal or modify the existing regulations was not available to "PMDC"---Validity---Held, while there was no specific provision authorizing "PMDC" to make regulations pertaining to admissions, there was specific authorization given under S.49(2) of the Pakistan Medical and Dental Council Ordinance, 2019, being the repeal and saving clause, to alter, repeal or modify regulations, decisions, disciplinary action taken by the "PMDC"---Sections 42 & 49 of the Pakistan Medical and Dental Council Ordinance, 2019 were independent provisions and repeal and saving clause in said Ordinance was not dependent on any other provision of the same---Legislature had specifically saved the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 made under the repealed Ordinance, with the specific power to "PMDC" to alter, repeal or modify the saved regulations, and therefore intent of Legislature was clear---High Court set aside the impugned order and held that "PMDC" could in fact alter the MBBS and BDS (Admissions, House job and Internship) Regulations, 2018---Intra-court appeal was allowed, accordingly.

Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 distinguished.

Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; Federal Public Service Commisison and others v. Syed Muhammad Afaq and others PLD 2002 SC 167; Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others PLD 2018 Lah. 75; Pakistan Automobile Corporation Limited through Chairman v. Mansoor ul Haque and 2 others 2004 SCMR 1308; Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423, Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industry (Pvt.) Ltd, Peshawar and others (2003 SCMR 370; Suo Motu Case No.13 of 2009 decided on 15.3.2011 (PLD 2011 SC 619); Amanullah Khan v. Chief Secretary, Government of N.WF.P and 2 others 1995 SCMR 1856 and Sabz Ali Khan v. Bismillah Khan and another 1997 SCMR 1781 ref.

(b) Interpretation of statutes---

----Repeal of statutes---"Repeal and saving clause"---Nature---Power to repeal any law and to save any decision, order, proceeding, rules or regulations under the repealed law was a Legislative function and was done with intent to safeguard that which the Legislature deemed necessary from the repealing provision---Saving clause acted as restriction on the repealing provision exempting all saved items from the repeal.

Chaudhary Muhammad Umar and Rana Muhammad Ansar for Appellant.

Ms. Ambreen Moeen, D.A.G., Chaudhary Muhammad Atiq and Mufti Ahtesham-Uddin-Hadier for Respondent UHS (in ICAs. Nos.62074/19 and 62076/19).

Imran Muhammad Sarwar for Respondent UHS (in ICAs. Nos.62075/19 and 62077/19).

Rizwan Mushtaq, Ashfaq Qayyam Cheema and Morris Nadeem, for Respondent No. 1 (in ICA No.62074/19).

Ms. Uzma Ahmad Bajwa for Respondent No.1 (in ICA No.62075/19).

Mian Muhammad Aslam for Respondent No.1. (in ICA No.62076/19).

Sahir Mahmood Bhatti for Respondent No.1 (In ICA No.62077/19).

P L D 2020 Lahore 24

Before Abdul Aziz Sheikh, J

ALI IMRAN---Petitioner

Versus

FOREST WILDLIFE AND FISHERY DEPARTMENT through Secretary

and 3 others---Respondents

Writ Petition No.35700 of 2016, heard on 31st October, 2019.

(a) Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974)---

----Ss. 9 & 2(n)---Constitution of Pakistan, Arts.9 & 14---Public interest litigation---Protected animal---Restriction on hunting of protected animal---Protection of wild life---Endangered species---Black Bucks Deers---Scope---Petitioner sought direction to Provincial Government to implement steps for protection of the endangered species of "Black Bucks Deers", which per the contention of petitioner, were almost extinct---Validity---Black Bucks Deers were endangered species and protected from hunting under S. 9(ii) of the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974 and were also mentioned in the Third Schedule of the said Act---Provincial Government, was therefore, required to protect and preserve Black Bucks Deers in compliance with the provisions of the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974---Protection of Black Bucks Deers was not only the fundamental duty of the Government but also of every citizen to ensure implementation of Fundamental Right to Life guaranteed under the Constitution---High Court directed Provincial Government to implement recommendations made by the court-appointed Commission's report titled, "Black Bucks Commission Report dated 06.09.2019" and to ensure that it meets its obligations under all relevant laws for protection of Black Bucks Deers---Constitutional petition was disposed of, accordingly.

Province of Punjab v. Lal Khan 2016 SCMR 48 rel.

(b) Constitution of Pakistan--

----Arts.9 & 14---Security of person---Right to life and liberty of person---Right to life---Inviolability of dignity of man---Nature of the Fundamental Right to life---Scope---Right to life guaranteed under Arts.9 & 14 of the Constitution included right to live in a world that had an abundance of all species, not only duration of current generation but also for its progeny.

Province of Punjab v. Lal Khan 2016 SCMR 48 rel.

Sheraz Zaka for Petitioner.

Dr. Parvez Hassan, Senior Advocate Supreme Court, Head of Black Bucks Commission along with Asad Ahmad Ghani for Respondents.

Saqib Haroon Chishti, A.A.G. along with Lt. (R) Sohail Ashraf, D.G. wildlife for Respondents.

P L D 2020 Lahore 38

Before Shahid Waheed and Shahid Mubeen, JJ

SIKANDAR HAMEED---Appellant

Versus

MUHAMMAD ASLAM KAMBOH and others---Respondents

I.C.A. No.63824 of 2019, heard on 29th October, 2019.

Constitution of Pakistan---

----Arts. 204, 19, 10 & 9---Contempt of Court Ordinance (IV of 2003) S. 3---Contempt of Court---Nature of contempt proceedings---Exercise of discretion by the Court---Scope---Jurisdiction to punish for contempt touched upon two Fundamental Rights of citizens, namely, "right to personal liberty" and "right to freedom of expression"; and therefore contempt of court law must be jealously and carefully applied and such power was to be prudently exercised with greatest reluctance --Court, if found that there existed contempt of Court beyond condonable limits, then strong arm of law must be used in name of public interest---Before a person may be held in contempt for disobeying a Court's order, such order must spell out the details of compliance in clear, specific, and unambiguous terms, so that such person would readily know exactly what duties or obligations were imposed upon him---Where there was indefiniteness and uncertainty in a judgment/order or where prima facie two views were possible to be drawn then unless it was specifically held that a party not only was bound by the terms issued in a judgment/order but also had defied such direction deliberately; such party could not be punished for contempt---Punishment for contempt of court could only rest on a clear, intentional violation of a specific, narrowly drawn order and specificity was essential pre-requisite of contempt proceedings---Contempt was a matter between Court and alleged contemnor and no one could demand as of right initiation of proceedings for contempt---Jurisdiction in contempt proceedings was to be exercised on a clear case having been made out and was not the personal glorification of a Judge in his office but an anxiety to maintain the efficacy of administration of justice which dictated the conscience of a Judge to move or not to move in contempt jurisdiction---Litigant may invite attention of a Court to such facts that may persuade a Court in initiating proceedings for contempt, however such person filing an application or petition before a Court did not become a complainant or petitioner in such proceedings and was mere informer or relator---Duty of such person ended with facts being brought to the notice of Court and thereafter it was for Court to act on such information---Court may at its discretion allow a litigant continue to render its assistance during the course of proceedings---Contempt of Court Ordinance, 2003 could not be used for the implementation or execution of an order and such process of contempt could not be invoked in aid of a remedy where some other method of achieving desired result was available.

P.A. Tomas & Co. and others v. Mould and others [1969] 1 All ER 963; Muhammad Abu Zafar v. Secretary to Government of West Pakistan, Agriculture Department and others 1969 SCMR 298; Qadeer Ahmad v. Punjab Labour Appellante Tribunal, Lahore and another PLD 1990 SC 787; R v City of London Magistrate's Court and another, ex parte Green Green v. Staples and others [1997] 3 All ER 551; Shahid Orakazai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; Om Prakash Jaiswal v. D.K.Mittal and another AIR 2000 SC 1136; Syed Masood Alam Rizvi and others v. Dr. Muhammad Saeed 2009 SCMR 477; Khalid Rashid v. Kamran Lashari, Chairman, C.D.A., Islamabad and others 2010 SCMR 594; Muhammad Shehzad Malik v. Muhammad Suhail and another 2010 SCMR 1825; Sree Gour Nitai Saha v. Additional Deputy Commissioner (Revenue), Bakerganj and 5 others 1970 SCMR 887; West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912; Shah Alam Khan v. Vice-Chancellor, Agriculture University, Peshawar PLD 1993 SC 297; Rafique Ahmad Awan v. Additional District Judge, Sialkot and another PLD 2016 Lah. 282; Adam Phones Ltd. v. Goldschmidt and others [1999] 4 All ER 486; Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore PLD 1960 Lah. 751 and Dr. Nazeer Saeed v. Muhammad Javed PLD 2014 Lah. 660 rel.

Ms. Ayesha Hamid for Appellant.

Gohar Nawaz Sindhu, Assistant Advocate General for Respondents.

P L D 2020 Lahore 49

Before Jawad Hassan, J

TARIQ MEHMOOD---Petitioner

Versus

PUNJAB OVERSEAS PAKISTANI COMMISSION and 2 others---Respondents

Writ Petition No.50962 of 2019, decided on 18th September, 2019.

Punjab Overseas Pakistanis Commission Act (XX of 2014)--

----Ss. 2(i), 3, 4 & 7---Constitution of Pakistan, Arts. 4, 5(2), 23, 24 & 260---Overseas Pakistani---Fraud in real estate---Fictitious sale deed---Complaint before Vice Chairperson of Punjab Overseas Pakistanis Commission ('the Commission') provided the petitioner/complainant was an overseas Pakistani as defined under S.2(i) of the Punjab Overseas Pakistanis Commission Act, 2014 ('the Act'), then being a citizen of Pakistan he had inalienable rights defined under Art. 23 & 24 of the Constitution i.e. right to acquire, hold and dispose of the property and its protection---Article 4 of the Constitution clearly provided that it was the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, to enjoy the protection of law and to be treated in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person was to be taken except in accordance with law---Said Article clearly protected the citizens of Pakistan defined under Art.260 of the Constitution whether inside or outside Pakistan (wherever they may be)---Further Art.5(2) of the Constitution stated that obedience to the Constitution and law was the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan---Petitioner through present constitutional petition had only sought direction against the Vice Chairman of the Commission to do what he was required by law to do---Section 7 of the Act empowered the Commissioner to transmit the complaint (of an overseas Pakistani) to a Government Agency---High Court directed that if the petitioner was an overseas Pakistani as defined under the Act, the Vice Chairperson shall refer the matter to the Commissioner of the Commission, who shall enquire/examine the complaint and the record in detail, and then after hearing both the parties, if a case was made out against those who provided the fictitious sale deed, the same shall be referred to the concerned Government Agency as per the Act/law, and grievance of petitioner shall be redressed within a period of one month---Constitutional petition was disposed of accordingly.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Shahid Idrees v. Government of the Punjab and others PLD 2018 Lah. 284 ref.

Muhammad Habib Chaudhry for Petitioner.

P L D 2020 Lahore 54

Before Shahid Karim, J

MEERA SHAFI---Petitioner

Versus

OFFICE OF THE GOVERNOR PUNJAB and others---Respondents

Writ Petition No.227635 of 2018, decided on 11th October, 2019.

(a) Protection Against Harassment of Women at the Workplace Act (IV of 2010) [as amended by the Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (III of 2013)] ---

----Ss. 2(a), 2(f), 2(g), 2(h), 4(4), 8 & 10(2)---Harassment at workplace---Self-employed independent contractor---No employment relationship---'Accused'---Meaning and scope---Cumulative reading of the Punjab Protection Against Harassment of Women at the Workplace Act, 2010 ('the Act') showed that the law applied to harassment at a workplace in respect of an employee of an organization who could, upon an application of harassment, bring a complaint before the Ombudsperson against that employer or any of the persons employed in that organization---Purpose of the law had been circumscribed in respect of harassment of women who were employees either regular or contractual in an organization---Act in question did not speak to every woman but only to a woman employee who happened to be harassed at a workplace---In the present case, the petitioner-complainant, in terms of the agreement in question agreed to perform at a major concert as an artist---Throughout the agreement the petitioner had been referred to as an artist and a fee was also agreed between the parties which was the artist's fee---For all intents therefore the agreement was for services to be provided by the petitioner as the artist and was to last for a show and the agreement had admittedly terminated as soon as the show ended---Petitioner was a self-employed independent contractor who was not an integral part of the organization with whom she signed the agreement and was engaged for the purpose of completing a specific task---Petitioner was not at any time during her performance at the show under the control and supervision of the organization as an employee---Labelling the petitioner as an employee in such circumstances would be mockery of the law---Petitioner was neither a regular nor a contractual employee of the organization with whom she signed the agreement and on this basis could not have sought to assert her right to maintain the complaint---Question whether the petitioner was an employee of the organization and thus competent to bring a complaint to the Ombudsperson was tied in with the question whether the accused in the present case fell within the meaning of the term as defined in the Act---Both the conditions had to exist coterminous for the Ombudsperson to proceed on the complaint and the entire tenor of S. 8 of the Act was an indication that in case one of the conditions was absent, the Ombudsperson was denuded of his powers to determine the complaint---Accused under the law, must be an employee of the organization which operated the workplace---Accused, in the present case, was neither an employee nor an employer of the organization with whom the petitioner signed the agreement and was thus not amenable to the jurisdiction of the Inquiry Committee---On the same analogy an enquiry by the Ombudsperson could not be held against the accused, for an Ombudsperson was possessed of the same powers as that of an Inquiry Committee upon a complaint being preferred---In terms of the Act any penalties which the Inquiry Committee or the Ombudsperson may impose would constitute such penalties which were relating to the term of employment of an employee in an organization and none of the penalties could, by no stretch of imagination, be imposed on the accused in the present case who was not an employee of the organization---Constitutional petition was dismissed accordingly.

Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and others v. Jhanda Khan Maree and others 2011 PLC 286 and W.P. No.28791 of 2019 (PLD 2019 Lah. 407 distinguished.

(b) Interpretation of statutes---

----Statute---Statement of Objects and Reasons---Scope---Statement of Objects and Reasons did not control the enactment which was finally passed by the legislature---Court was only concerned with the law which had finally seen the light of the day and thus fell to be interpreted by the Court.

(c) Interpretation of statutes---

----Court, duty of---Primary duty of the court was to interpret the law and not to make new law---Judges were interpreters and not law makers.

(d) Interpretation of contract---

----Commercial contract---Where the wording of a contractual provision was clear, there was limited room for the court to conclude that these words were used by mistake---Key was to recognize the importance of ascertaining the commercial purpose of a contract.

(e) Administration of justice---

----Remedy---Courts are not empowered to provide a remedy to a person, under a law, if none was provided by the legislature.

(f) Administration of justice---

----Remedy---Passions, entreaties or even lack of remedy had never been recognized as grounds to permit a person to apply for a relief to which he was not entitled.

Mrs. Hina Jillani, Barrister Muhammad Ahmad Pansota and Saqib Jillani for Petitioner.

Ali Raza, Ali Sibtain Fazli, Hasham Ahmad Khan, Abad ur Rehman, Omer Tariq, Nabil Ahmad and Ms. Sofia for Respondent No.3.

P L D 2020 Lahore 77

Before Muhammad Qasim Khan and Muhammad Tariq Abbasi, JJ

AHMAD KHAN---Petiitoner

Versus

ADDITIONAL SESSIONS, JUDGE, TALAGANG and 4 others---Respondents

Writ Petiiton No.2531 of 2018, decided on 19th February, 2019.

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

----S. 36---Ordinary powers of Magistrate---Scope---Judicial and administrative orders---Scope---Magistrate, under Criminal Procedure Code, 1898 is entrusted with diverse duties and in discharging the same he does not always conduct judicial proceedings or is always amenable to the revisional jurisdiction---Some of powers and duties of the Magistrate under Cr.P.C. are administrative, executive or ministerial and he discharges these duties not as a court but as a persona designata---Mere name or designation of a Magistrate is not decisive of the question whether the order is judicial or administrative because at some times the Magistrate perform duties by applying judicial mind but these proceedings are administrative in nature and some time orders are judicial orders.

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

----S. 36---Ordinary powers of Magistrate---Judicial order by Magistrate---Conditions.

Following are the "traits of a judicial order" of Magistrate.

(1) There must be power to hear and determine a controversy;

(2) There must be power to make a binding decision (sometime subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute;

(3) It must involve the doctrine of res-judicata which has been held not to apply to the exercise of administrative powers;

(4) It must touch the doctrine of functus officio which has been held not to apply to prevent the exercise of administrative powers;

(5) It must be binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself.

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

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

----S. 36---Ordinary powers of Magistrate---Administrative order by Magistrate.

Following are the traits of an "administrative order" of Magistrate.

(1) Administrative functions consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public service;

(2) An administrative order is potentially open to attack for any material error of law or fact in either direct or collateral proceedings;

(3) It cannot constitute res-judicata;

(4) It may always be rescinded by the body making it.

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

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

----Ss. 36, 435 & 439A---Ordinary powers of Magistrate---Revisional jurisdiction---Order of constitution of Medical Board for re-examination of injured---Administrative order---Scope---Petitioner's application for constitution of Medical Board for re-examination of injured persons was dismissed by Magistrate---Sessions Judge dismissed the revision petition on the ground that the order passed by Magistrate was an administrative order hence, it was not amenable to revisional jurisdiction---Validity---Order dismissing the application for re-examination of injured was an administrative order for the reason that while passing such order no lis was pending before the Magistrate; that he was not functioning as criminal court; that he was not obligated to hear the parties before making such an order; that no conclusive decision was given and that no finality or irrevocability was attached to it---Order passed by Magistrate missed the necessary characteristics of being a judicial order---Revisional jurisdiction was not available to the Sessions Judge against the said order---Writ petition was dismissed.

Mehmood Ali v. Khadim Hussain alias Bagh Ali and 3 others 2010 YLR 2772; Muhammad Shafi v. Munir Ahmad and another 2010 PCr.LJ 1799; Muhammad Iqbal v. Additional Sessions Judge, Khanewal and another 2004 MLD 1401; Mansab Ali v. Asghar Ali Faheem Bhatti and 3 others PLD 2007 Lah. 176; Muhammad Anwar v. Dr. Ghulam Murtaza PLD 1998 Lah. 223; Muhammad Razwan v. The State and others 2017 MLD 1828 and Nasreen Bibi v. Nazeer Ahmad and another 2001 MLD 1459 rel.

Muhammad Aslam and others v. The State (Writ Petition No.3780 of 2010) distinguished.

Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 ref.

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

----Ss. 36, 435 & 439A---Ordinary powers of Magistrate---Revisional jurisdiction---Medical re-examination of injured---Administrative order---Scope---Order of Magistrate allowing or dismissing an application for medical re-examination of the injured is an executive order---Such order is not amenable to revisional jurisdiction.

Saad Bin Safdar for Petitioner.

Zaheer Ahmed Malik for Respondents.

Qaisar Abbas Shah, Assistant Advocate-General.

P L D 2020 Lahore 85

Before Atir Mahmood and Ch. Muhammad Masood Jahangir, JJ

MUHAMMAD AFZAL---Appellant

Versus

CIVIL DEFENCE OFFICER, JHELUM and others---Respondents

L.C.A. No. 93 of 2018, decided on 31st January, 2019.

Civil Defence (Special Powers) Rules, 1951-

----R. 9---Prevention/Extinction of fire---Sealing of premises---Appellant was owner of a Marriage Hall and same was sealed by Civil Defence Officer for not having proper equipment to extinguish fire---Validity---No provision existed in Civil Defence (Special Powers) Rules, 1951 to Civil Defence Officer to issue notice for sealing of property of appellant---Possibility could not be ruled out that just to take revenge of filing of earlier Constitutional petition before High Court and orders passed therein, Civil Defence Officer had issued notice to teach appellant a lesson---Single Judge of High Court, without realizing such aspect of the case passed judgment against appellant and same was not sustainable---Division Bench of High Court set aside judgment passed by Single Judge of High Court and quashed notice issued by Civil Defence Officer against appellant as same was without any legal background---Intra-court appeal was allowed in circumstances.

Barrister Osama Amin Qazi for Appellant.

P L D 2020 Lahore 87

Before Tariq Saleem Sheikh, J

MUHAMMAD ASGHAR and 3 others---Petitioners

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petitions Nos.11435-Q, 13486-Q and 13700-Q of 2018, decided on 7th February, 2019.

(a) Interpretation of statutes---

----Rules---Scope---Validly made rules under a statute have same effect as statute itself and are enforced as such.

State of Uttar Pradesh and others v. Babu Ram Upadhya AIR 1961 SC 751; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178 and Province of West Pakistan v. Mahboob Ali and another PLD 1976 SC 483 rel.

(b) Interpretation of statutes---

----Court, duty of--- While construing a particular provision court has to attend to nature, scope and object of statute and consider consequences of interpreting provision one way or the other---Court has to also look at reason why an enactment was passed.

Crawford on Statutory Construction rel.

(c) Maxim---

----"Expressio unius est exclusio alterius"---Performing of duty---Principle---Where a mode of performing a duty is laid down by law it must be performed in that particular manner or not at all.

(d) Interpretation of statutes---

----Nature of provision of law---Mandatory/directory---Principle---No principle of universal application existed to categorize a provision as mandatory or directory; it depends upon intent of Legislature rather than phraseology used---Ordinarily words 'shall' or 'must' show that Legislature intended to make provision mandatory while use word 'may' would indicate that it wanted to make it directory but they are often used interchangeably---No litmus test is available to determine whether a statutory provision or rule is mandatory or directory---Court has to find out intention of Legislature by adopting purposive rather than literal approach and would prefer an interpretation which advances object of act over that which defeats it. Maxwell on the Interpretation of Statutes (Twelfth Edition) p.314; Taxmann's Interpretation of Statutes (Second Edn.) by D.P. Mittal; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. PLD 2012 SC 268 = 2012 CLD 337; N.S. Bindra's Interpretation of Statutes (Tenth Edn.); Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others PLD 1972 SC 326 and Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

(e) Agricultural Pesticides Ordinance (II of 1971)---

----Ss. 18(3) & 21---Punjab Agricultural Pesticides Rules, 2018, R.22---Constitution of Pakistan, Art. 10-A---Adulterated pesticides---Laboratory not certified by International Standardization Organization (ISO)---Presumption---First Information Reports were registered against petitioners for selling adulterated pesticides---Petitioners sought quashing of FIRs on plea that laboratory which analyzed samples was not ISO certified---Validity--- By requiring pesticide laboratories to have ISO certification, R.22 of Punjab Agricultural Pesticides Rules, 2018 ensured reliable means to check quality of pesticides supplied in market and punish those who were engaged in any malpractice--- Evidentiary presumption under S.18(3) of Agricultural Pesticides Ordinance, 1971 was attached to report of pesticide laboratory and such report had to be authentic---If report was not authentic it would not only prejudice accused being tried for an offence mentioned in Agricultural Pesticides Ordinance, 1971 but would also defeat his right of fair trial guaranteed under Art.10-A of Constitution---High Court quashed FIRs in question as same were registered on basis of non-ISO certified laboratory reports and petitioners could not be prosecuted on basis of such reports---Constitutional petition was allowed in circumstances. The State through Regional Director FIA v. Imam Bakhsh and others 2018 SCMR 2039 fol.

Malik Ali Muhammad Dhol for Petitioners.

P L D 2020 Lahore 97

Before Anwaarul Haq Pannun, J

SALMAN KHALID---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1277-B of 2019, decided on 4th July, 2019.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonouring of cheque---Compoundable offence---Bail, grant of---Cheque issued by accused to complainant was dishonoured due to insufficient funds---Accused submitted affidavit stating that he was ready to pay the amount of cheque by certain date and in case of his failure in dishonouring his commitment, he would not be entitled to enjoy the right of bail---Offence under S.489-F, P.P.C., being cognizable and compoundable, considering the compounding character of offence, court seized with bail application, may extend concession of bail---If the accused did not honour his commitment in terms of compromise accused would lose his right to enjoy concession of bail---Bail was granted accordingly.

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

----Ss. 497 & 345---Penal Code (XLV of 1860), S.489-F---Dishonring of cheque---Grant of pre or post arrest bail---High Court provided guidelines for proceeding with cases under S.489-F, P.P.C., involving compromise at pre-arrest or post arrest bail stage stated.

Following are the guidelines as provided by the High Court:--

(i) A compromise deed shall be in writing and duly signed or thumb marked by the accused as well as the person in whose favour, the dishonoured cheque was issued by the accused or any other person duly authorized by the payee .

(ii) In case of post arrest bail, the Court seized with the bail application due to the accused being in jail, shall also record the statement of the counsel, representing accused or any other person duly authorized by the accused for this purpose.

(iii) The Court, while giving effect to the compounding character of the offence, at bail stage shall reflect the terms and conditions of the compromise in its bail granting order besides clearly stating that the accused shall only be entitled to enjoy the liberty, he has earned by way of concession of bail, provided he honours the terms of compromise deed.

(iv) The accused shall make payment of amount of cheuqe or settled between the parties, to the payee on the date fixed in compromise deed or in case of any exigency within next three days. In case of any default, even in making payment of any installment, the accused shall lose his right to enjoy the concession of bail. The complainant, however may show grace and accept any request on part of the accused for extension of time.

(v) In case of default, in absence of a consent of the complainant, for extension of time, in making the payment of amount settled between the parties through compromise, the bail granting order shall be deemed to have been vacated automatically on the expiry of date fixed.

(vi) After seeking relief of bail on the basis of compromise, the non-compliance of its terms and conditions will amount to breach of commitment and misuse of concession of bail by the accused for the period he enjoy the said concession in the form of liberty instead of facing the rigors of jail.

(vii) The complainant shall not be obliged to file a formal application for cancellation of bail under Section 497(5) Cr.P.C either before the trial Court or before any higher Court which had passed the bail granting order. However, the complainant, in case of default in making payment by the accused, may file only a miscellaneous application before the trial Court inviting its attention towards the default made by the accused, thereupon, learned trial Court shall pass an order for committing the accused to custody.

(viii) All the trial Courts seized with the trial/ proceedings for the offence under Section 489-F, P.P.C., shall prepare a separate category of compromise cases with some special identity so that the case may be dealt with, in terms of bail granting order.

(ix) In case, the trial Court, is satisfied that the terms of the compromise have been fulfilled and acted upon, the Court, on its own motion or on the application of either party shall give effect to the compromise, by way of termination of proceedings in the case. [p.103] E

Ghazanfar Ali Khan with the Petitioner.

Najeeb Ullah Khan Jatoi, Deputy Prosecutor General for the State.

P L D 2020 Lahore 105

Before Asim Hafeez, J

MUHAMMAD SADIQ and others---Petitioners

Versus

MAQSOOD AHMAD and others---Respondents

Civil Revision No.3207 of 2012, decided on 11th September, 2019.

(a) Islamic law---

----Inheritance---Collaterals/Residuaries---Entitlement---Remoteness or closeness of relation with deceased is most crucial factor in determining status and entitlement of collaterals/residuaries---Not every residuary is entitled to claim share in inheritance but only those who claimed nearness of relation to exclusion of distant relations notwithstanding falling in category of residuaries.

Dhuman and others v. Ghulam Sarwar and others 1985 SCMR 947 rel.

(b) Islamic law---

----Inheritance---Asaba-bi-Nafsihi---Consanguine brother---Presump-tion---Suit filed by plaintiffs was decreed by Trial Court in their favour and same was maintained by Lower Appellate Court---Validity---Defendants claimed to fall within category of Asaba-bi-Nafsihi which claim on face of it was contrary to reckoned principle of acknowledging preferences based on nearness/closeness of relation, i.e., one near in relation succeeds in preference to a more remote/distant relation---High Court declined to interfere in judgments and decrees passed by two courts below as there was no illegality while denying claim of defendants regarding their share in inheritance---No misreading or non-reading of evidence was on record and petitioner failed to point out any incidence of material irregularity in exercise of jurisdiction---Revision was dismissed in circumstances.

Haq Nawaz v. Ghulam Hussain and 8 others PLD 1991 Lah. 330 and International Building Industries Limited v. Jumma and 14 others 1987 CLC 138 rel.

Khalid Jamil for Petitioners.

P L D 2020 Lahore 110

Before Mujahid Mustaqeem Ahmed, J

Hakeem MUHAMMAD SAEED---Petitioner

Versus

DEPUTY COMMISSIONER, VEHARIand others---Respondents

Writ Petition No.9315 of 2019, decided on 25th June, 2019.

(a) Islamic jurisprudence---

----Right to information---Scope---Right of Information was a longstanding practice and salient characteristic of Islamic jurisprudence---Concept of right of information explained through an example of an exchange between a person and Caliph Umar (second Caliph of Muslims.)

Surah Al-baqara Verse 42 and Surah Al-baqra Verse 159 ref.

(b) Constitution of Pakistan ---

----Art. 19-A---Right to information---Scope---Right to information was a right that a citizen had, of access to information from the government and statutory bodies that received public funds---Such right was based on the principle that information belonged to the people; it boosted transparency, which in turn strengthened accountability, reduced corruption and improved delivery of public services---Access to information was increasingly recognized as a prerequisite for transparency and accountability of governments, as safeguarding citizens against mismanagement and corruption.

(c) Punjab Transparency and Right to Information Act (XXV of 2013)---

----S. 4 & Preamble---Constitution of Pakistan, Art. 19-A---Object of the Punjab Transparency and Right to Information Act, 2013 ('the Act')---Preamble to the Act indicated that primary object of the said law was to make the government more accountable to citizens and to enforce their fundamental right of access to information in all matters of public importance---Premise of such fundamental right was based upon the concept that the citizens being tax payers were real owners of public information held by the public bodies or government departments---Right to information was a weapon against corruption, nepotism and arbitrary decisions by making any public document or public action transparent and open to public view---Any citizen without an obligation of explaining his interest could seek information regarding any public matter/document from any public body/functionaries---Only being a citizen of Pakistan was enough to constitute his cause of action---Public body could also not ask the reason for seeking such public information---Over-all scheme of the Act casted a legal obligation upon public body to release information through electronic or other means having public access (of course with the exception of information that the body was required to protect due to privacy risk)---Law expected the government functionaries to be pro-active and not lethargic---Proactive disclosure was the most salient aspect of the Act---In a civilized society government institutions must fulfil this obligation to improve their credibility by taking public into confidence about their internal working and decisions including budget, expenditure, income etc.

(d) Punjab Transparency and Right to Information Act (XXV of 2013)---

----S. 4(h)---Constitution of Pakistan, Art. 19-A---Right to information---Scope and pre-requisites---District Council---Record of development work and tenders---Petitioner being an elected councillor pointed out certain illegalities in ongoing development works in his constituency of District Council and as such approached the respondent-authorities making a request to provide him record of development work for the relevant financial years as well as record of tenders of repairs of government buildings etc.---Petitioner filed a number of applications before the respondent-authorities but all his efforts proved fruitless---Held, that under Art.19-A of the Constitution every citizen had been conferred a right to have access to information---However, such right was available only if the matter related to public importance---Enforcement of this right had been further made subject to certain regulations and reasonable restrictions imposed by law---In the present case, the quality of work done from public exchequer and transparency of actions of government departments in awarding tenders etc. were of vital importance to the public at large---As such the prayer of the petitioner related to issue of public importance---No Regulations so far had been framed under the Punjab Transparency and Right to Information Act, 2013 ('Act'), however, non-framing of the same could not have the effect of rendering the right to information as nugatory---Even if no regulations were framed under the Act, this right was available to the citizens---In absence of Rules/regulations, it became obligation of the court to determine whether request for information in a particular case or denial thereof was reasonable or an order was without lawful authority or not---High Court directed that the respondent-authorities were to provide requisite information to the petitioner within statutory period of 14 days under the Act; that copy of present order be sent to the Provincial Chief Secretary to take appropriate steps to ensure posting of public information officers and also ensure that the provisions of the Act were implemented in letter and spirit and any violation thereof was seriously noticed; that it would be appreciated that on monthly basis progress report of public information officers of respective government departments were summoned and reviewed by the Provincial Secretary of Information and Culture Department; that an implementation Committee at provincial level may be constituted to examine and improve working of public information officers, take necessary measures for improvement of the working of the departments and to achieve the objects of the Act; that any recommendation/orders of the Provincial Chief Information Commissioner in this regard be implemented by the implementation Committee in public interest---Constitutional petition was allowed accordingly.

Shabbir Hussain v. Executive District Officer (Education) Larkana and 5 others 2012 CLC 16; Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 5 others PLD 2011 Kar. 177; Province of Punjab v. Qaisar Iqbal and others PLD 2018 Lah. 198; Hamid Mir and others v. Federation of Pakistan and others PLD 2013 SC 244; Saifan uz Zaman Khan v. Federation of Pakistan through Secretary Ministry of Finance, Government of Pakistan, Islamaabd and 7 others PLD 2017 Sindh 559; Sheela Barse v. Union of India AIR 1986 SC 1773; Suri Dinesh Trivehi v. Union of India and others 1997 (4) SC 306 and Peoples Union for Civil Liberties v. Union of India AIR 2003 SC 2363 ref.

Ch. Aftab Shabbir Arain for Petitioner.

P L D 2020 Lahore 122

Before Mirza Viqas Rauf, J

Mrs. FARYAL TALPUR---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and 6 others---Respondents

Writ Petition No.2387 of 2019, heard on 13th September, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Developments during pendency of lis---Effect---High Court while exercising Constitutional jurisdiction is not supposed to shut its eyes on developments occurred during pendency of lis and reasons for such events---Party cannot be knocked out merely on basis of technicalities if once it is established that there is infringement of any right, Constitutional provision or Law.

(b) Rules of Procedure of Provincial Assembly of Sindh, 2013---

----R. 82---National Accountability Ordinance (XVIII of 1999), S.9(a)(iv)---Constitution of Pakistan, Arts. 109 & 141---Production order, issuance of---Federal Government---Impleadment as necessary party---Scope---Petitioner was Member provincial assembly of Sindh province and she was arrested by National Accountability Bureau and detained in province of Punjab---Despite issuance of production order by Sindh Provincial Assembly, authorities did not produce petitioner to attend session---Plea raised by authorities was that Federal Government was not made party to proceedings---Validity---Intervention or command of Federal Government was not necessary for causing production of petitioner in session of provincial assembly---Federal Government in such eventuality was neither necessary nor proper party and non-impleadment of Federal Government had no adverse bearing---Production order issued by Speaker was an order having legal command and backing so authorities were obliged to proceed in terms thereof---High Court directed the authorities to make arrangements to allow petitioner to attend ongoing session of provincial assembly provided proceedings of Accountability Court were not affected or hindered which had precedence---Constitutional petition was allowed accordingly.

Asif Ali Zardari, Senator v. Federation of Pakistan through Secretary Interior, Pakistan, Secretariat, Islamabd and others 1999 SCMR 2166; Action Against Distribution of Development Funds by Ex-Prime Minister Raja Pervaiz Ashraf: In the matter of Constitution Petition No.20 of 2013 PLD 2014 SC 131; Punjanb Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489; Asif Ali Zardari v. Federation of Pakistan and others PLD 1999 Kar. 54; Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266; Black's Law Dictionary Tenth Edn.; Websters's New Twentieth Century Dictionary; Cambridge Dictionary; Lexico; Asif Ali Zardari v. Special Judge (Suppression of Terrorist Activities) II, Karachi and 2 others PLD 1992 Kar. 430 and Asif Ali Zardari v. Federation of Pakistan through Secretary Interior Islamanbad and 5 others 1998 SCMR 1955 ref.

Farooq H. Naek and Zia-ul-Hassan Lanjar for Petitioner.

Mujeeb-ur-Rehman Kiani, Additional Advocate General for Punjab for Respondents Nos. 1 to 6.

Salman Talibuddin, Advocate General for Sindh and Barrister Shabir Shah, Additional Advocate General for Sindh for Respondent No.7.

P L D 2020 Lahore 137

Before Tariq Saleem Sheikh and Safdar Ahmad Naeem, JJ

Mian MUHAMMAD ASIF---Petitioner

Versus

SUPERINTENDENT OF POLICE and others---Respodents

Writ Petition No.45138 of 2019, decided on 10th October, 2019.

(a) Punjab Mining Concession Rules, 2002 ---

----Rr. 2(xxiv) & 2(xxxi)---Punjab Land Revenue Act (XVII of 1967), S.49---Public trust doctrine---Sustainable development---Scope---Soil as an essential natural resource---Brick kiln owners excavating soil for manufacturing of bricks---Land could be owned by the government or a private individual or a juristic body but all mines and minerals therein always belonged to the government and were its property---Soil was essential for life because it provided medium for plant growth, acted as a filtration system for surface water, maintained the balance in atmospheric gases, stored carbon and was a habitat for several organisms---Brick kiln owners excavated soil with impunity---More often than not the entire layer of topsoil was dug out which had serious repercussions---Fertility of that particular piece of land was reduced and irrigation of the neighbouring plots was adversely affected, which lead to desertification and low agricultural yields which eventually impacted the country's food security---Besides, it contributed to environmental degradation and climate change---In such circumstances, the Public trust doctrine could legitimately be extended to soil---High Court observed with grave concern that there was no check on reckless soil digging in the country in general and the relevant Province in particular; that there was an urgent need to draw integrated environmental policies for sustainable development and protection and conservation of species, habitats, biodiversity and natural resources, and that these were required not only in the country's national interest but were also needed to meet our international obligations and achieve sustainable development goals---High Court directed that the Provincial Government was to initiate appropriate administrative and legislative measures within a period of six months from the date of announcement of present judgment to regulate brick manufacturing in general and use and conservation of soil in particular; that for such purpose the Provincial Government shall take all stakeholders on board, including (but not limited to), the representative body of brick kiln owners, the Chamber of Commerce and Industry, the Department of Mines and Minerals, Agriculture Department and the Environment Protection Department---Constitutional petition was disposed of accordingly.

Soil - A non-renewable natural source: ictpost.com. ref.

(b) Punjab Mining Concession Rules, 2002---

----R. 2(xxvi)---Punjab Land Revenue Act (XVII of 1967), S. 49---"Mineral"---Definition---Legislature generally avoided a comprehensive definition of the term "mineral"--- Word "mineral" had a contextual connotation and had no fixed meaning.

Glasgow Corporation v. Farie [(1888) 13 AC 657; North British Railway Co. v. Budhill Coal and Sandstone Co. [1010 AC 116 (HL)]; Northern Pacific Railway Co. v. John A. Soderberg [188 US 526 (23. S.Ct 365, 47 L. Edn. 575 (1903); Bhagwn Dass v. State of U.P. and others [(1976) 3 SCC 784); Banarsi Dass Chadha and Bros. v. Lt. Governor, Delhi Admn. [(1978) 4 SCC 11]; V.P. Pithupitchai v. Government of T.N. [(2003) 9 SCC 534] and Som Datt Builders Limited v. Union of India [(2010) 1 SCC 311] ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Matter requiring factual inquiry---Such matter could not be undertaken by the Court in proceedings under Art. 199 of the Constitution.

Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 ref.

(d) Public Trust, doctrine of---

----Scope---Natural resources---Public trust doctrine implied that certain properties such as air, running water, the sea and the sea shores were common property shared by all the citizens---Title to such essential resources vested in the State in trust for the benefit of the general public---State was thus bound to protect them for their uninterrupted use---Public trust doctrine involved three elements: a trustee, a beneficiary and trust property---Natural resources were trust property; government was their trustee and must manage them subject to fiduciary duties for the benefit of both present and future generations who were the beneficiaries of th e public trust.

Gann v. Free Fishers of Whitstable [11 E.R. 1305 (1865) = 11 H.L. Cas. 192]; Arnold v. Mundy [6 N.J.L. 1, 53 (1821)]; Martin v. Waddell, 41 U.S. 367 (1842); Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892); "Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention." Michigan Law Review, Vol. 68, Part-I, p.473 and Natural Audubon Society v. Superior Court [658 P.2nd. 709 (Cal.1983) ref.

(e) Trust---

----Public trust---Trustee, duties of---Scope---Trustee of the public trust must adhere to both substantive and procedural duties---Substantive duties included, the duty of protection; the duty against waste; the duty to maximize the value of trust resources; the duty to restore trust resources when damaged; and the duty against privatizing trust resources---On the other hand, procedural duties were, the duty of loyalty; the duty to supervise agents; the duty of good faith and reasonable care; the duty of precaution; and the duty to furnish information to beneficiaries (accounting). Douglas Qurke, The Public Trust Doctrine: a Primer (https://law.uoregon.edu) ref.

(f) Public Trust, doctrine of---

----Environment, protection of---Cases from foreign jurisdictions wherein doctrine of public trust was applied for preservation of the environment and protection of environmental rights of citizens mentioned.

Oposa v. Factoran, Jr. [224 SCRA 792 (1993); Metro Manila Development Authority v. Concerned Residents of Manila Bay [574 SCRA 661 (2008); M.C. Mehta v. Kamal Nath and others [(1997) SCC 388; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others [(1999) 6 SCC 464]; Intellectuals Forum, Tirupathi v. State of A.P. and others AIR 2006 SC 1350; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited 2005 CLC 424; Molvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Muhammad Tariq Abbasi and others v. Defence Housing Authority and others 2007 CLC 1358; Suo Motu Case reported as Cutting of Trees for Canal Widening Project, Lahore 2011 SCMR 1743; Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699 and Maple Leaf Cement Factory Ltd. v. Environmental Protection Agency and others PLD 2018 Lah. 255 ref.

(g) Public Trust, doctrine of ---

----Sustainable development---Scope---Public trust doctrine was the foundational principle of sustainable development---Concept of sustainable development comprised of four legal elements; first, the need to preserve natural resources for the benefit of future generations (the principle of inter-generational equity); second, the aim of exploiting natural resources in a manner which was 'sustainable', or 'prudent', or 'rational', or 'wise', or 'appropriate' (the principle of sustainable use); third, the 'equitable' use of natural resources, which implied that use by one State must take account of the needs of other States (the principle of equitable use, or inter-generational equity), and, fourth, the need to ensure that environmental considerations were integrated into economic and other development plans, programmes and projects, and that development needs were taken into account in applying the environmental objectives (the principle of integration)---Link between basal view of sustainable development and the Public trust doctrine was through the latter's protection of resources for future generations of trust beneficiaries---By mandating the governmental trustees to treat the interests of current and future citizens equally, the notion of intergenerational equity was inherent to the Public trust doctrine. Philippe Sands, Principles of International Environmental Law-Framework, Standards and Implementations (1995) at pp.199-205; Maple Leaf Cement Factory Ltd. v. Environmental Protection Agency and others PLD 2018 Lah. 255 = 2018 CLD 153 and Sagarin, Raphael and Turnipseed, Mary. (2012). The Public Trust Doctrine: Where Ecology Meets Natural Resources Management Annual Review of Environment and Resources. 37. 473-496. 10.1146/annurev-environ-031411-165249 ref.

(h) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional jurisdiction of Superior courts Scope---Direction to legislature to enact a law---General rule and exception---As a general rule (superior) courts could not issue a writ/direction to the legislature to enact a law---However, in exceptional circumstances the courts may issue a direction to the Federal and/or Provincial Government to initiate legislative measures.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad 1999 SCMR 1379; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Minoo Hoshang Kapadia, Karachi v. Arnaz Minoo Kapadia, Karachi PLD 2008 Kar. 271, Riaz Hanif Rahi v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 9 others PLD 2015 Isl. 7; Walid Iqbal v. Federation of Pakistan and others PLD 2018 Lah. 1 and Subay Khan v. Federation of Pakistan through Secretary and Ministry of Law and 2 others PLJ 2018 Lah. 224 ref.

Fiaz Ahmad Ranjha for Petitioner.

Malik Naveed Akram, Assistant Advocate General for Respondent.

Irfan Nazir, Director General, Punjab Environmental Protection Agency, Lahore for (Respondent No.4).

Muhammad Nawaz Manik, Director (Law), Punjab Environmental Protection Agency, Lahore for (Respondent No.4).

Muhammad Naveed, Deputy Director, Mines and Minerals.

Barrister Saeed Nasir, Executive Coordinatory, Punjab Treaty Imlementation Cell (PTIC), HR&MA, Lahore.

Sheraz Zaka: Amicus curiae.

P L D 2020 Lahore 160

Before Shahid Bilal Hassan, J

PERVAIZ AFZAL---Petitioner

Versus

MEHWISH and 2 others---Respondents

Writ Petition No.175072 of 2018, decided on 31st October, 2019.

Divorce Act (IV of 1869)---

----Ss. 10, 7 & 22---Christian divorce---Grounds for dissolution of marriage by wife---Nature of proceedings under Divorce Act, 1869---Ground of adultery---Scope---Husband/petitioner impugned order of Appellate Court whereby suit for dissolution of marriage filed by wife was decreed---Contention of husband/petitioner was, inter alia, that impuged order was based on non-reading of evidence on record with regard to alleged adultery---Scope---Section 10 of the Divorce Act, 1869, had made clear that unless and until the grounds(s) mentioned therein were not provided, no divorce/dissolution of marriage could be granted since concept of Khula was alien to Chirstian marriage---Procedings under the Divorce Act, 1869 were regulated under C.P.C. and like a civil suit, any fact pleaded in plaint or written statement was to be proved by leading trustworthy evidence---While wife/respondent, in the present case, had stated that her husband had committed adultery, however nothing pivotal to her stance was brought on record, thus dissolution of marriage decree could not have been granted---Even when examined under the restored S.7 of the Divorce Act, 1869, wife, in the present case, had failed to discharge burden with regard to the alleged ground of adultery---Impugned order was, therefore, not based on proper appreciation of evidence and was set aside---Constitutional petition was allowed, accordingly.

M. Jaffar v. Additional District Judge and others 2005 MLD 1069; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584; Hamid Ali v. Mst. Nabila Riaz and 2 others 2012 YLR 2693; Robin David John v. Mst. Huma Samuel and others 2015 MLD 1683; Wahid Bakhsh and others v. Ameer Bakhsh and others 2015 CLC 1387; Chairman, BISE, Peshawar and others v. Muhammad Jaar Ullah 2016 YLR 302; Zahid Janan v. Mst. Kausar Begum and 2 others 2016 YLR Note 43; Basharat Ahmed v. Mst. Shamim and 2 others PLD 2016 Lah. 271 and Ameen Masih v. Federation of Pakistan and others PLD 2017 Lah. 610 ref.

Mst. Parveen Amanual v. Additional District Judge-III, Rahim Yar Khan and 2 others PLD 2009 Lah. 213 and Ameen Masih v. Federation of Pakistan PLD 2017 Lah. 610 rel.

Chaudhry Javed Bashir Cheema for Petitioner.

P L D 2020 Lahore 167

Before Ayesha A. Malik, J

GHANI GLOBAL GLASS LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretry Energy (Power Division), Islamabad and others---Respondents

Writ Petition No.48379 of 2019, heard on 20th November, 2019.

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

----Ss. 31 & 7---Powers and functions of National Electric Power Regulatory Authority ("NEPRA")---Tariff, determination of---Quarterly Tariff Adjustment, imposition of---Prescription of guidelines issued by NEPRA under S.7(2)(i) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Scope---Petitioners impugned imposition of quarterly tariff adjustment ("QTA") in their monthly electricity bills, inter alia, on the ground that such imposition was retrospective and also not in accordance with provisions of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Validity---Objective of quarterly adjustment was to ensure that all pass-through costs were factored into determining tariff as per requirement of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and Rules framed thereunder---Distribution Companies did not have to bear such costs and were entitled to recover prudently all incurred costs and hence there existed requirement of quarterly or bi-annual adjustment---NEPRA determined tariff as per S. 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, after distribution licensees filed petitions per the Rules and Guidelines---NEPRA determined consumer end tariff for each distribution licensee after assessing different components of revenue requirements and conducting public hearing---Formulae and principles for determining revenue requirement were provided under the Guidelines issued under S.7(2)(i) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 which prescribed for quarterly adjustment of capacity and transmission charges, and impact of transmission and distribution losses---Under such Guidelines, fuel adjustment was made on monthly basis whereas costs, charges and losses were made on a quarterly basis, which was neccessary because every tariff determination was based on presumptive figures at beginning of financial year, which figures had to be actualized on basis of actual data---Every tariff determination, and quarterly adjustment, was for a fixed period and hence QTA was as per the prescribed methodology and fell within the framework of the law---High Court held that periodical adjustments in tariff were in terms of prescribed procedure of law and no illegality existed in the same---Constitutional petitions were dismissed, in circumstances.

Lahore Electric Supply Company Limited (LESCO) and others v. National Electric Power Regulatory Authority and others PLD 2018 Isl. 20 and National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550 rel.

Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre, 'A' Karachi and others PLD 1963 SC 633; Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another PLD 1964 SC 494; Islamic Republic of Pakistan through the Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad 1977 SCMR 509; Imtiaz Ahmad and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10 others 2018 PLC (C.S) 152; Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another PLD 2005 Lah. 428; ICC Textiles Limited through Authorized Representative and 31 others v. Water and Power Development Authority (WAPDA), WAPDA House, Lahore through Chairman and 15 others 2009 CLC 1343; Flying Board and Paper Products Ltd. and others v. Government of Pakistan through Secretary Cabinet Division and others 2010 SCMR 517; Hameed Steel and others v. LESCO and others W.P. No.25437 of 20915 and National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550 rel.

Ahmed Pervaiz, Muhammad Mohsin Virk, Muhammad Aslam Sheikh, Sher Baz Ali, Majid Jehangir, Khalil ur Rehman, Mustafa Kamal, Lisan Ullah Khan, Mian Muhammad Hussain Chotya, Malik Sohail Ashiq Shujra, Sheikh Muhammad Akhtar Shahzad, Rana Mehboob Alam Khan, Syed Najaf Hussain Shah, Sayyed Alamdar Hussain Naqvi, Imran Anjum Alvi, Mian Mahmood Rashid, Rubi Saleha, Malik Kashif Rafique Rajwana, Rabia Hassan, Arshad Nazir Mirza, H.M. Majid Siddiqui, Moiz Tariq, Rana Muhammad Arshad Khan, Rai Muhammad Azam Kharal, Mian Ali Akbar, Rana Ahmed Tayyab Shahid, S.M. Raheel, Sohail Javed Chughtai, Chaudhary Muhammad Ajmal Haq, Muhammad Irfan Liaqat, Muhammad Farooq Sheikh, Khalid Gulzar, Rana Sajid Rasool Chaudhary Asim Iqbal, Muhammad Abbas Nasir Chaudhary, Muhammad Umer Tariq Gill, Sajid Naseer Chaudhary, Rai Zameer ul Hassan, Muhammad Anas Aftab, Mashood Iqbal, Ijaz Ahmad Awan, Muhammad Iqbal Akhtar, Syed Amjad Iqbal Hussain, Salman Afzal Malik, Muhammad Nawaz Sheikh, Sajjad Ahmad Jatoi, Mirza Bilal Zafar, Salman Ahmad Chaudhary, Mian Irfan Ahmad Sial, Ehsan Elahi Sheikh, Shoaib Yousaf Awan, Ch. Waqar Hassan, Muhammad Baqir Hussain, Rana Jamshed Khan, Nasrullah Sattar Pasha, Syed Habib Ullah, Jan Muhammad Chaudhary, Fawad Akram Sufi, Mian Waqas Khalid, Mudassar Shuja-ud-Din, Muhammad Qasier Amin Rana, Jahanzaib Khan, Muhammad Saqib Sheikh, Khalid Nawaz Ghumman, Shehzad Riaz Chattha, Hassan Jalees Tarar, Chaudhary Habib-ur-Rehman, Tahir Attique Piracha, Mubashar Hassan Sheikh, Naveed Anwar Chohan, Rana Mushtaq Ahmad Toor, Shaukat Ali Tanweer, Mian Tariq Mahmood, Hashim Aslam Butt, Adnan Ahmad, Tahir Mahmood Mughal, Malik Saqib Karim, Iftikhar Gull Khan, Muhammad Siddique Butt, Chaudhary Imtiaz Ullah Khan, Malik Muhammad Ashfaq, Arslan Arshad, Mian Masroor Ahmad, Ghulam Farid-ud-Din, Faisal Ghafoor Khokhar, Mirza Khurram Baig, Shahid Abrar Basra, Ch. Shafqat Ali Sulehria, Faisal Hanif Khokhar, Uzman Umar Khokhar, Shahid Shaukat Chaudhary, Adnan Qamar Malik, Adil Naeem Sheikh, Asif Hayat Khattak, Chaudhary Yasir Ali, Rana Shafqat Hussain, Abdul Sami Qureshi, Syed Muhammad Ghazanfar, Nadeem Hussain, Amir Hussain, Chaudhary Muhammad Awais Kamboh, Rai Tanveer, Arshad Khan, Chaudhary Farid Anwar, Shakeel Ahmad Basra, Shaukat Ali Tanveer, Muhammad Ramzan Chaudhary, Zabi Ullah Nagra, Asif Amin, Muhammad Rashid, Chaudhary Mumtaz ul Hassan and Malik Bashir Ahmad Khalid for Petitioners.

Ms. Ambreen Moeen, DAG., Muhammad Shafique and Umer Sharif, Advocates for NEPRA, Muhammad Shoaib Rashid, Furqan Naveed and Ms. Manahil Khan, Advocates for LESCO, Mian Muhammad Mudassar Bodla, Advocate for LESCO, Sheikh Muhammad Ali, Advocate for FESCO along with Rana Muhammad Rafique, Chief Financial Officer, FESCO, M. Ismail Khalid, SDO and Ayaz Haider, Revenue Officer, FESCO, Raja Akhtar Nawaz, Advocate for FESCO., Malik Asad, Advocate for FESCO, Mian Ashiq Ali, Advocate for FESCO, Chaudhary Fiaz Ahmad Sanghaira, Advocate for IESCO, Chaudhary Imtiaz Elahi, Advocate for FBR., Shahid Sarwar Chahil , Advocate for FBR, Raza Bashir, Advocate for Chairman, WAPDA and Aurangzeb Mirza, Advocate for GEPCO and FESCO for Respondents.

P L D 2020 Lahore 183

Before Anwaarul Haq Pannun, J

MUHAMMAD IQBAL and others---Petitioner

Versus

The STATE and others---Respondents.

Diary No.40709 of 2019, decided on 8th October, 2019.

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

----S. 19(xvii)---Constitution of Pakistan, Arts. 9 & 4---Petition by a prisoner---Fixation of court fee---Scope---Office raised objection to maintainability of petition for suspension of sentence on grounds of insufficient court fee---Validity---Held, provisions of S.19(xvii) of Court Fees Act, 1870 granted exemption from affixing court fee on petitions by prisoners or other persons in duress or under restraint of any court or its officers---High Court observed that office should have avoided from raising illegal and unnecessary objection on petitions when there were specific, clear provisions and rules granting exemption particularly when question of liberty of a person was involved---Such like objection could curtail his/her days of liberty if they were otherwise entitled to apply to High Court to be set at liberty in accordance with law---Such office objections could amount to infringement of fundamental right of liberty enshrined in Arts. 9 & 4 of the Constitution if otherwise they were entitled to apply for any relief of liberty on merits---Unnecessary objections caused delay in disposal of cases and wasted precious time of court---High Court declared that accused persons were not liable to affix court fee/stamp on the petition as they were confined to jail to serve out sentences awarded to them in criminal case---Office objection was overruled in circumstances.

Abid Hussain Shah and 28 others v. Government of the Punjab through Secretary S&GAD and others PLJ 2012 Lah. 334; Zahoor Ahmad and 309 others v. Member (Consolidation) Board of Revenue, Punjab and 23 others PLD 2007 Lah. 461; Mst. Walayat Katoon's case PLD 1979 SC 821; Pakistan Defence Officers Housing Authority and others v. Lt.-Col. Syed Jawad Ahmed 2013 SCMR 1707 and AIR 1978 AP 297 ref.

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

----Ss.371(1) & 420---Copy of judgment to be given to accused---Procedure.

P L D 2020 Lahore 191

Before Ali Baqar Najafi and Sardar Ahmed Naeem, JJ

MUHAMMAD SUBTAIN KHAN---Petitioner

Versus

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

Writ Petition No.42682 of 2019, decided on 18th September, 2019.

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

----S. 18(c)---Reopening of inquiry---Exercise of jurisdiction---Principle---Petitioner was aggrieved of reopening of inquiry which was previously closed by National Accountability Bureau (NAB)---Validity---Without bringing on record any fresh ground or to dig out any truth, inquiry was reinitiated on same allegations issued by the Authority---Reasons and circumstances were apparently, neither brought before Chairman NAB nor Authority had formed opinion on basis of material---Authority had just ordered reopening of inquiry without holding any official of NAB responsible for closure of the inquiry---Such was not whims and designs unsubstantiated by fresh disclosed facts on basis of which it could reopen closed inquiry---Inquiry was reopened in slipshod manner in circumstances.

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

----S. 18(c)---Chairman National Accountability Bureau (NAB)---Exercise of powers---Principle---Powers of Chairman NAB are structured by law and conscience and must be guided by them and not by unperceived perception infatuated by his subjective approach.

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

----S. 9(a)(iv)(vi) & (b)---Punjab Government Rules of Business, 1974, Rr.6 & 108---Criminal Procedure Code (V of 1898), S. 497(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Misuse of authority---Causing loss to national exchequer---Reopening of investigation---Powers of National Accountability Bureau---Petitioner was Minister who was arrested by NAB in an inquiry which was earlier closed by the authorities---Plea raised by petitioner was that contract was awarded in due process of law, no loss was caused to national exchequer and he received no pecuniary advantage---Validity---Mere violation of some law or procedure at the most without any mens rea, case of prosecution needed further inquiry because petitioner was directed to follow procedure before awarding contract as decision was taken by Chief Executive of the Province upon summary whereafter contract was awarded--- Offence needed further probe as its ingredients were not prima facie reflected--- Extraordinary jurisdiction under Art.199 of the Constitution was to be exercised with conceptive and caution just to advance cause of justice and not to frustrate or defy intent of law---Such exercise was to be made to prevent miscarriage of justice and abuse of National Accountability Ordinance, 1999---Bail could not be withheld as punishment---Inquiry by High Court was permissible to seek an answer to question of involvement of accused without going into deeper appreciation of evidence---Right of accused to approach High Court was not only a Constitutional mandate but was independent of any source of jurisdiction such as S.497, Cr.P.C. or S.9(a) of National Accountability Ordinance, 1999---Powers of High Court were meant and reserved for enforcement of fundamental rights of citizens particularly those who were retained by NAB authority in offences, which called for further inquiry---High Court in exercise of Constitutional jurisdiction allowed post arrest bail of accused---Bail was granted in circumstances.

Tallat Ishaq v. National Accounability Bureau through Chairman, and others PLD 2019 SC 112; National Accuntability Bureau through Chairman v. Murad Arshad and others PLD 2019 SC 250; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948; Government of Sindh through the Chief Secretary Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Regarding Corruption in Hajj Arrangements in 2010 2011 PLC (C.S.) 1489; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Suo Motu Action Regarding Allegation of Business Deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar Attempting to Influence the Judicial Process PLD 2012 SC 664; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Mustafa Ansari v. Deputy Commissioner, Chittagong Hill Tracts, Rangamati and others PLD 1965 Dacca 576; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Subhash Kumar v. State of Bihar and others AIR 1991 SC 420; Olas Khan and others v. Chairman NAB through Chairman and others PLD 2018 SC 40; Nadeem Majeed v. The State and others 2007 SCMR 1958; Chairman. National Accountability Bureau Islamabad and another 2004 SCMR 91; Mrs. Riaz Qayyum v. The State and another 2004 SCMR 1889, Haji Ghulam Ali v. The State through A.G., N.-W.F.P., Peshawar and another 2003 SCMR 597; Mst. Fatima Ismail v. The State 2003 SCMR 733; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Dr. Mujahid Kamran v. Chairman National Accountability Bureau (NAB) and others 2019 PCr.LJ 34; Engineer Raja Qamar ul Isalm v. National Accountability Bureau through Chairman and others 2019 PCr.LJ 582; Syed Ather Hussain and others v. Chairman National Accountability Bureau and another 2019 YLR 788; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 and The State and others v. M. Idress Ghauri and others 2008 SCMR 1118 rel.

(d) Bail---

----Genesis---Concept of bail can be traced back to year 399, BC when Plato tried to create bond for release of Socrates---Circuit courts during medieval times in written held quarter sessions in different parts of country---Such led to evolve a series of laws for release of under trial prisoners on securing a surety---Provisions for bail can also be traced back to Magna Carta---Right to liberty is also guaranteed in Art.14, International Covenant on Civil and Political Rights, 1966 to which Pakistan is a party---Basic rule is bail and not jail except where there are certain circumstances---Every man is deemed to be innocent until duly tried and duly found guilty---Issue of bail is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a social sensitized judicial process---Presumably as a presumably innocent person, an accused, is therefore, entitled to freedom---Punishment by plain logic has necessarily to follow a determination of guilt accompanying conviction and can never be anterior thereto---Bail is not be withheld as punishment as incarceration during trial can never be punitive in nature and is never intended to operate as punishment---In civilized societies, deprivation of liberty must be considered as punishment unless it is essential to ensure that accused person will not stand his trial when called upon---Most important principles of all, is that grant of bail is rule and refusal is exception---Grant of bail lies within discretion of court and granting or denial is regulated to a large extent by facts and circumstances of each particular case---With guarantees provided under Arts. 3, 4, 9 & 10-A of the Constitution it would be quite contrary to concept of personal liberty that a person should be punished without conviction or he should be deprived of his liberty on belief that he would tamper with witnesses if left at liberty---Bail is rule and committal to jail an exception warranted only in most extraordinary circumstances.

Subhash Kumar Shrma v. State AIR 1991 SC 420 rel.

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

----S. 9(b)---Constitution of Pakistan, Arts. 15 & 199---Criminal Procedure Code (V of 1898), S. 497---Bail, grant of---Constitutional jurisdiction of High Court---Scope---Statutory ouster of jurisdiction---Effect---Statutory ouster of jurisdiction of all courts could not affect jurisdiction of High Court to grant bail under Art. 199 of the Constitution---Primary feature of Art.199 of the Constitution is to provide a forum to an aggrieved person who has no other adequate remedy---Another feature of Art.199 of Constitution is protection of Fundamental Rights---When a citizen complaints violation of Fundamental Right, High Court exercise its power under Art.199 of the Constitution to investigate matter and pass such order as may be found just, legal and equitable; although such powers are exercised exceptionally and not as substitute of S.497, Cr.P.C.---Whenever National Accountability Bureau has indulged into denial of Fundamental Right of freedom against Art.15 of the Constitution there is only one relief which is exercise of Constitutional jurisdiction under Art.199 of the Constitution by the High Court.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Fundamental rights, protection of---High Court has not only right but a fundamental Constitutional duty that such Fundamental Rights are not infringed---With expanding horizon of articles dealing with fundamental rights every executive action of government or other public bodies if found arbitrary, unreasonable or contrary to law, is amenable to writ jurisdiction of superior courts to be validly scrutinized on touchstone of Constitutional mandate.

Haider Rasool Mirza for Petitioner.

P L D 2020 Lahore 205

Before Ali Baqar Najafi and Sardar Ahmed Naeem, JJ

MARYAM NAWAZ SHARIF---Petitioner

Versus

CHAIRMAN, NAB and 2 others---Respondents

Writ Petition No.56733 of 2019, decided on 4th November, 2019.

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

----S. 9(a)(iv)(xii) & (b)---Anti-Money Laundering Act (VII of 2010), S.3---Constitution of Pakistan, Art. 199---Constitutional petition--- Bail, grant of---Money laundering---Predicate offence, proof of---Layers of transactions---Foreign investment---Case of further inquiry---Petitioner was one of Directors in a Sugar Mill allegedly having received investment from abroad to launder ill-gotten money---National Accountability Bureau (NAB) arrested petitioner for receiving a sum of Rs.70,000,000/- in her account from account of said Sugar Mill---Validity---Petitioner had not actively participated, connived, abetted or aided to acquire assets disproportionate to known sources of income as no connection of petitioner was established with foreign nationals in order to persuade them to invest in Sugar Mill so as to attract provisions of National Accountability Ordinance, 1999 and Anti-Money Laundering Act, 2010---Question of making layers and becoming beneficial also required further probe as investments in real estate in UAE was not out of some crime proceeds in form of ill-gotten money---Money which had come from UAE was not black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc.---Attracting foreign investment had always been a perennial demand of every government and all governments would dream of it but great hurdles were always faced by them to make it a reality---Bank statement of petitioner had shown withdrawal of Rs.70,000,000/- from account---High Court directed petitioner to deposit sum of Rs.70,000,000/- in High Court and passed a conditional bail granting order---Constitutional petition was allowed accordingly.

Brig.(R) Karrar Ali Agha v. National Accountability Court No.II, Lahore and another PLJ 2010 Lah. 78; The State through Chairman NAB and others v. Muhammad Asif Saigol and others PLD 29016 SC 620; Abdul Hameed Dogar v. Federal Government through Secretary Ministry of Interior and 2 others PLD 2016 SC 454; Muhammad Ikram and others v. The State PLD 1965 (W.P.) Lah. 461; Mst. Ramzan Bibi and another v. Hakim Muzaffar Hussain PLD 1967 Lah. 186; Ramesh M. Audeshi v. The State 2002 PCr.LJ 1712; Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others PLD 2002 SC 572; Badar Alam Bachani v. The State through Chairman NAB and another 2010 PCr.LJ 1988; Noorshad v. Chairman National Accountability Bureau and 5 others 2017 PCr.LJ 1258. Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawas Sharif and 2 others PLD 2019 SC 445; Muhammad Zoonoon Khan v. Federation of Pakistan through Secretary Ministry of Law, Justice, Human Rights and Parliaments Affairs, Islamabad PLD 2014 FSC 63; Miss Shahla Raza v. The State 1991 MLD 1814;Mst. Afsar Bibi v. The State 2005 PCr.LJ 164; Khan Haroon Resikh v. The State and 2 others PLD 2003 Lah. 517; Messrs Hudaibya Paper Mills Ltd. and others v. Federation of Pakistan and others PLD 2016 Lah. 667; National Accountability Bureau (NAB) through Chairman v. Messrs Hudaibya Paper MiIlz Limited Lahore and others PLD 2018 SC 296; Asif Ali Zardari v. The State and another 1992 PCr.LJ 58; Tariq Sultan and another v. National Accountability Bureau through Chairman and 2 others 2012 PCr.LJ 1983; Dr. Asghar Ali v. The State and others 2016 PCr.LJ 193; PLD 2017 SC 692; Waseem Yaqoob v. Chief Commissioner, Income Tax, Lahore and 2 others 2012 PTD 1883; Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594; Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Tallat Ishaq v. National Accountability Bureau through Chirman and others PLD 2019 SC 112; Abdul Aziz Khan Niazi v. The State through Chriman NAB Islamabad PLD 2003 SC 668; Muhammad Sabtain Khan v. National Accountability Bureau and others W.P. No.42682/2019; Hafiz Mian Muhammad Nauman v. Director General NAB and others W.P. No.581/2019 and Zohra Khanum v. The State 2009 SCMR 751 rel.

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

----S. 9(a)(iv)---Pecuniary resources---Legality---Scope---Mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes possession objectionable and constitute relevant offence.

Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 and Brig.(R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23 rel.

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

----S. 3---Money laundering, offence of---Preconditions---Some nexus with crime proceed and therefore, S.3 presupposes that some crime has been committed.

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

----S. 9(a)(iv)---Assets beyond known sources of income---Benefit of any transaction---Principle---Benefit of any transaction was to be clear and visibly established and not shrouded in mystery---Withdrawal of any amount from Bank cannot be termed as illegal gotten money or an asset beyond known sources of income if source of money is shown in record.

Azam Nazeer Tarar, Muhammad Amjad Pervaiz, Barrister Momin Malik, Shan Saeed Ghuman, Khawar Ikram Bhatti, Muhammad Aurangzeb, Muhammad Nawaz Chaudary, Muhammad Adil Chatha, Salman Sarwar Rao, Sultan Mehmood Khan, Ch. Imtiaz Elahi and Hafeez ur Rehman for the Petitioner.

P L D 2020 Lahore 229

Before Jawad Hassan, J

MUHAMMAD AHMAD PANSOTA and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.840 of 2019, decided on 24th December, 2019.

(a) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1 [Arts. 8 to 28]---Public interest litigation before the High Court---Scope and purpose---Public interest litigation was a powerful tool for individuals and groups to combat illegalities, injustice and social ills; it promoted and protected the larger public interest in case of violation of any Fundamental Rights---Such litigation was an innovative strategy which had been evolved over the years to provide easy access to justice to the weaker/marginalized sections of humanity; it was a powerful tool in the hands of public, spirited individuals and social action groups used for combating exploitation and injustice and for securing for the underprivileged segments of society their social and economic entitlements especially in matters of public importance.

Human Rights case No.18877 of 2018 PLD 2019 SC 645 ref.

(b) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1 [Arts. 8 to 28]---Public interest litigation before the High Court---Characteristics and purpose---Public interest litigation was in the interest of the public at large; it was a legal action or proceeding initiated for the protection or enforcement of the rights of public at large---Such litigation was totally different from traditional litigation which was essentially of an adversary character, where there was a dispute between two litigating parties, one making a claim or seeking relief against the other and the other opposing such claim or resisting such relief---Public interest litigation was brought before the court not for the purpose of enforcing the rights of one individual against another, as in the case of ordinary litigation, but it was intended to promote and vindicate the public interest---Public interest litigation demanded that violation of constitutional or legal rights of a large number of people who were poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed; it was an effort to provide legal representation to groups and interests that had been unrepresented or under-represented in the legal process---Such groups included not only the poor and the disadvantaged but ordinary citizens as well.

(c) Constitution of Pakistan---

----Arts. 184(3) & 199 & Pt. II, Chapt. 1 [Arts. 8 to 28]---Public interest litigation before the High Court/Supreme Court---Locus standi of petitioner---Scope---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 because superior courts were bound to protect the Fundamental Rights of citizens in exercise of jurisdiction conferred via Arts.199 or 184(3) of the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Writ of mandamus---"Continuing Mandamus", doctrine of---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 an authority to perform its task expeditiously for an unstipulated period of time to prevent miscarriages of justice---Doctrine of "Continuing Mandamus", 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 off the case in finality---Such relief was given 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; 10 Nujs L. Rev (2017) and Continuing Mandamus' - A Judicial Innovation to Bridge the Right-Remedy GAP ref.

(e) Constitution of Pakistan---

----Arts. 4, 9, 14 & 38(d)---Right to food---Scope---Preventing wastage of food---Duty of State---Right to life could only be enforced if certain ingredients were present, food being the first and foremost---Right to food was a necessity of life and thus an extension of the right to life---Right to life clearly meant right to food including protection against wastage of excess food---Providing its citizens with food, especially those who did not have access to it and/or could not afford it was a primary obligation of the State, violation of which would not only breach the right to food but also the right to life, security and dignity---When one violated the right to food, the enjoyment of other human rights, such as the right to health, education, life, adequate housing, work and social security may also be marred and vice versa---State was duty bound to legislate, to protect the wastage of excess food and to start awareness campaigns to sensitize the people in such regard to achieve the target of food security.

10 Nujs L. Rev (2017) 'Continuing Mandamus' - A Judicial Invocation to Bridge the Right-Remedy GAP; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. 2011 SCMR 1621; Miss Benazir Bhutto's case PLD 1988 SC 416; Human Rights Case No.17599 of 2018 2019 SCMR 247 and Swaraj Abhiyan v. Union of India case (2016) 7 SCC 498 ref.

(f) Islamic law---

----Right to food---Wastage of food---Islamic commands regarding right to food and its wastage---Right to food was accepted as a basic human right in Islam---Holy Quran and Ahadith ordained a balanced approach to food management and towards attaining sustainable food security---Extravagance and wastage was strictly prohibited in Islam.

22 (2Abi Bakr Muhammad bin Ahmed al Sarakhsi al Hanafi-al-Mabsut, Vol 30 (Cairo: Maktabaha al-Sahadha, 1324-31/1906-13, 123); (37 Sunan Abu Da'wod, Kitb-us-salat, Hadith No.1336; (40 (Bahaiqi, Shua-bullman, Hadith No.6319); 42 (Al Nisai, Sunan-as-Sughra, Kitabadaab-ul-Qadah, Allstiiazaminazzillah, Hadith No.5412; Al-Qur'an, 17:20; 39:36; Al-Qura'n 38:44, 11:6; Surah Al-Isra's (17:26-7); Al-A'raf (7:31); Al-Ma'idah (5:87); Al-An'am (6:141); Narrated by al-Tirmidhi (2380); classed as Saheeh by al-Albaani in al Silsilah al Saheehah (2265); Fataawa al-Lajnah al-Daa'imah and Sahih Al-Bukhari, Vol. 7, Haidth 552 ref.

(g) Islamic law---

----Right to food---Charity/philanthropy---Significance in Islam---In view of the importance of food and ramifications of hunger, charity/philanthropy was given unparalleled importance in Islam---Islam imposed a duty on privileged Muslims to share their wealth with and help the ones in need.

Qur'an, 98:4; Surah Adh-Dhariyat 51:19; Surah Al-Insan 76:8-9; Surah Ad-Duhaa 93:10; Sahih Bukhari, "Kitab-uz-zakat", Hadith No.1342; Al-Sunan al-Kubra 19049, Grade: Sahib (authentic) according to Al-Albani; Maulana Abulala Maududi, Tafheem-ul-Qur'an, Vol, 5 (Lahore: Idarah Tarjman-ul-Quran, 1984; 139 and Akhtar Khalid Bhattai and Gul-e-Jannat, The Holy Quran on Human Rights (Karachi: Royal Book Co., 1996), 83 ref.

(h) Universal Declaration of Human Rights (UDHR), 1948---

----Art. 25---International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, Art. 11---Convention on the Rights of the Child, 1989, Art. 24(2)(c)---Convention on the Rights of Persons with Disabilities, Art. 28---Universal Declaration on the Eradication of Hunger and Malnutrition, 1974, paras. 1, 2 & 6---Right to food---Preservation, conservation and management of food---Preventing wastage of food and hunger---Recognition of right to food under international law---Under international law the right to food was recognised as an intrinsic human right---Universal Declaration of Human Rights of 1948 first recognised the right to food as a human right, it was then incorporated in the International Covenant on Economic, Social and Cultural Rights, (Article 11) adopted in 1966 and ratified by 156 states, including Pakistan in 2008, making its provisions binding on all parties---Government bore the responsibility to ensure equitable distribution of food within its borders and (by adopting various instruments of international law) it had committed to preventing food wastage in all forms---International commitments that the State of Pakistan has made regarding the right to food and preservation, conservation and management of food stated.

(i) Constitution of Pakistan---

----Arts. 4, 9, 14 & 38(d)---Right to food---Food shortage/insecurity in Pakistan---Meaning and reasons---Food insecurity was defined as a situation that existed when people lacked secure access to sufficient amounts of safe and nutritious food for normal growth, development, and an active and healthy lifestyle---Food insecurity may be caused by the unavailability of food, insufficient purchasing power, or the inappropriate distribution or inadequate use of food at the household level---Food insecurity, poor conditions of health and sanitation, and inappropriate care and feeding practices were the major causes of poor nutritional status---Food insecurity may be chronic, seasonal, or transitory---Despite the fact that Pakistan was essentially an agricultural country, given the percentage of agricultural products it exported and the people employed in this sector, Pakistan was on the verge of facing food shortages in the future---Pakistan was a resourceful country and the amount of food it produced, which includes major commodities such as wheat, rice and sugar besides different vegetables and fruits, could be sufficient for feeding the population, however, lack of resources for food management and its distribution was the main problem---High population growth and unfavourable water and climatic conditions in the country had led the country towards an alarming state regarding food security and such situation may worsen manifolds in the near future---Pakistan was among those seven countries that cumulatively accounted for two-thirds of the world's under-nourished population (along with Bangladesh, China, Congo, Ethiopia, India and Indonesia)---Some reports/indexes of International Organizations highlighting food shortage in Pakistan stated.

(j) Constitution of Pakistan---

----Arts. 4, 9, 14 & 38(d)---Right to food---Preservation, conservation and management of food---Approach adopted by France, Italy, Philippine and Britain towards conservation of food and avoidance of its wastage stated.

(k) Constitution of Pakistan---

----Arts. 4, 9, 14 & 38(d)---Punjab Food Authority Act (XVI of 2011), S. 57---Punjab Bait-ul-Maal Act (VII of 1991), S. 5(1)---Punjab Charities Act (V of 2018), S. 6(2)---Punjab Pure Food Ordinance (VII of 1960), Preamble---Punjab Pure Food Rules, 2011---Right to food---Preservation, conservation and management of food---Donating excess food---Provincial Food Department had a clear cut mandate to make policy on food security and administration of food laws regarding anything related to food and food business, therefore, issue of regulation of excess food came under its domain---Punjab Food Authority, which came under the Provincial Food Department, prepared a "Draft of Punjab Food Authority (Disposal of Excess Food), Regulation, 2019" in exercise of powers under S.57 of the Punjab Food Authority Act, 2011---High Court directed that following the said [draft] Regulations, food operators including restaurants, caterers, supermarkets and all those who "manufacture for sale, transport, store, distribute or import or export food" shall donate excess food to food donors who shall further distribute them amongst the underprivileged; that such activity would ensure equitable distribution of food with an added advantage of ensuing dignity of person receiving food on account of such re-distribution; that the said draft Regulations finalized by Punjab Food Authority, shall be notified expeditiously and once they were notified, the same shall be implemented in stricto senso by the concerned authorities; that laws including the Punjab Pure Food Ordinance, 1960, Punjab Pure Food Rules, 2011 and Punjab Food Authority Act, 2011, may be amended to tackle the matter of food wastage and incorporate a mechanism to check the amount of food being wasted by the entities involved in the food businesses, be it the producers, storage facilitators or distributors and to make arrangements for consumption of excess food by those who were in need; that management of food may properly be administered employing the relevant provisions of the Punjab Bait-ul-Maal Act, 1991 and the Punjab Charities Act, 2018; that the Provincial Chief Secretary may direct Social Welfare and Bait-ul-Mal Department to coordinate with the Provincial Food Department and initiate programs with their coordination in order to save food wastage and to dispose of excess food from home consumption, to the poor and those in need; that the Federal Ministry of National Food Security and Research may make policy on the issue of food wastage/excess food similar to the [draft] Regulations made by the Punjab Food Authority; that food may be provided to those in need by the concerned departments with coordination of food donor organization etc.; that concerned departments shall, through the media and other means, inform and apprise the public and all the stakeholders (i.e. NGOs and Hotel Associations etc) regarding importance of preserving, conserving and managing excess food and the [draft] Regulations, once notified---Constitutional petition was allowed accordingly.

(l) Constitution of Pakistan---

----Pt. II, Chapts. 1 & 2 [Arts. 8 to 40]---'Fundamental Rights' and 'Principles of Policy'---Interpretation---Principles of Policy aid a purposive interpretation of Fundamental Rights in the constitutional framework in which they were found.

(m) Constitution of Pakistan---

----Pt. II, Chapts. 1 & 2 [Arts. 8 to 40]---International Conventions and Treaties signed by Pakistan---Binding effect---Scope---International conventions to which Pakistan was a signatory that addressed economic, social and cultural rights could be interpreted as legally binding according to the Constitution.

Dewan Salman Fibre Ltd. v. Federation of Pakistan and others 2015 PTD 2304; National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others 2017 SCMR 2066 ref.

Petitioners by:

Barrister Muhammad Ahmad Pansota, Petitioner No.1 with Ms. Eamaan Noor Bandial.

Barrister Haroon Mumtaz, Advocate Supreme Court for Petitioners Nos. 3 to 5 with Messrs Hafsa Ahmad and Mehak Adil.

Respondents by:

Ishtiaq A. Khan Additional Attorney General assisted by Ms. Sadia Malik, Assistant Attorney General and Barrister Minahil Tariq.

Barrister Umair Khan Niazi, Additional Advocate-General along with Capt. (R) Muhammad Usman, Dirctor General, Punjab Food Authority.

Iftikhar Ahmad Mian, Advocate on behalf of Punjab Food Authority along with Usman Ahmad, A.D. (Legal) PFA.

Assistance by:

Sher Hassan Pervez, Muhammad Kashif Pasha and Hamid-ul-Rehman Nasir, Civil Judges/Research Officers of Lahore High Court Research Center.

P L D 2020 Lahore 261

Before Ayesha A. Malik, J

EJAZ TEXTILE MILLS LIMITED and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.49178 of 2017, decided on 13th December, 2019.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)--

----S. 6(2)(r)---Petroleum prices---Determination by Oil and Gas Regulatory Authority ("OGRA")---Policy directives issued to OGRA by the Federal Government from time to time---Oil and Gas Regulatory Authority was bound to follow such directives.

(b) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss.6(2)(r), 9 & 13---Re-gasified Liquefied Natural Gas ("RLNG")---Tariff determination by Oil and Gas Regulatory Authority ("OGRA")---Right of affected parties to a public hearing---Scope---Plea of petitioners (consumers of RLNG) that when OGRA made its determination for cost of services and transmission and distribution losses in the supply of RLNG, it was bound to hear them in a public hearing as such decision directly and adversely affects their rights---Plea of OGRA that it was not required to grant a public hearing to the petitioners as the impugned determinations were provisional which did not call for a public hearing---Held, that as per the RLNG supply agreements between the petitioners and the gas supply company, the provisional price of RLNG was to be fixed every month and this price was subject to change when the final determination was made---Admittedly the cost of service, transportation cost and retainage component had to be on actual basis in any financial year---Since cost of services and transmission and distribution losses was based on actuals, every determination made by OGRA would impact the petitioners---To cater to such impact, S.9 of the Oil and Gas Regulatory Authority Ordinance, 2002 ('the 2002 Ordinance) provided that a right of hearing should be granted where a decision would directly and adversely affect the rights of a person---Public hearing was necessary where OGRA had to make a determination on cost of services and Unaccounted for Gas ("UFG") as they directly impacted the petitioners---RLNG pricing mechanism had not been streamlined into a regular process where provisional and final determinations were systematically made and notified,hence it was necessary to keep all parties on board so as to ensure smooth management of the terms of the agreement between the parties and the supply of RLNG---Public hearing was granted to make the tariff determination process all inclusive so that the views of interested parties could be taken into consideration, especially those who had stakes in the outcome of the regulator's decision---Public hearing ensured accountability and transparency in the decision making process and positively impacted the implementation of the regulator's decisions---Hence, it was also the first step towards future conflict management with respect to the regulator's decision---More inclusive the process, the less likely it would be that the determination was challenged---Furthermore, the involvement of the public and the stakeholders created trust and confidence in the decision making process which catered to acceptability of the decision and its reasons---High Court directed that RLNG price determinations by OGRA, at the time of actualization of the prices, for a given financial year, should be done after holding a public hearing in terms of S. 9 of the 2002 Ordinance; that where a determination was made after granting a public hearing, in the event that OGRA reviewed or re-heard any portion of that determination, which would directly and adversely impact the rights of the petitioners, it was to grant a right of hearing before making a decision under S.13 of the 2002 Ordinance; that OGRA should streamline the RLNG process providing provisional pricing and possibly a quarterly or bi-annual determination based on actual costs and losses; that this quarterly or biannual determination should be on the basis of a public hearing so as to improve efficiency in the pricing mechanism; that the right of hearing should be granted where the determination would impact the final outcome of all provisional adjustments made, and that OGRA was required to hold a public hearing to resolve the computation issues related to UFG and cost of services, and that such public hearing was also necessary as the petitioners had been granted interim relief (by the courts) with respect to the differential amounts which needed to be adjusted---Constitutional petitions were allowed accordingly.

(c) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 6(2)(r), 9, 13 & 21---Re-gasified Liquefied Natural Gas ("RLNG")---Tariff determination by Oil and Gas Regulatory Authority ("OGRA")---Right of affected parties to a public hearing---Main reasons why it was mandatory to have a public hearing in the RLNG price determination process stated.

Following are the two main reasons why it was mandatory to have a public hearing in the Re-gasified Liquefied Natural Gas ("RLNG") price determination process:

Firstly, the entire RLNG sector was governed by contracts and government policies along with the delegated function granted to Oil and Gas Regulatory Authority ("OGRA"). While there was a contractual relationship setting the terms and conditions between the parties inter se being the RLNG consumers and Sui Northern Gas Pipelines Limited (SNGPL) and SNGPL and Pakistan State Oil (PSO). The Federal Government issued policy directives with respect to RLNG allocation and price which directives were subject to change as per Government requirements. OGRA's determinations were based on the Government's notifications or policy guidelines under section 21 of the Oil and Gas Regulatory Authority Ordinance, 2002 ('the 2002 Ordinance'), which meant that it had to take all such components, as directed by the Government, into consideration while making its determination. Hence any change that a government policy directive made would be implemented by OGRA. Stakeholders such as SNGPL and PSO were heard at the provisional determinations where the directives were applied but the majority stakeholders being the consumers or interveners were not heard. This was because during the provisional pricing PSO and SNGPL were heard and the public was not involved.

Second reason was with respect to the right to review a decision under section 13 of the 2002 Ordinance. Within the given framework when a review application was filed and the cost of services or transmission losses or distribution losses were reviewed and changed without hearing parties, it left the RLNG consumers remediless as there was no provision for a second review under the 2002 Ordinance. Essentially under section 13 of the 2002 Ordinance, the RLNG consumers could dilute the impact of public hearings if the public was not heard in the review proceedings. In the event that PSO or SNGPL moved for a review of any determination, no public notice was given. Consequently the determinations may decide upon cost of services and transmission and distribution losses without hearing the public which was originally heard during a public hearing.

(d) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 6(2)(r) & 21---Re-gasified Liquefied Natural Gas ("RLNG")---Tariff determination by Oil and Gas Regulatory Authority ("OGRA")---Policy directives issued by the Federal Government with respect to RLNG allocation and price---Contracts between RLNG consumers and gas supply companies---In cases of RLNG price, on one hand there were Federal Government policy directives and on the other contracts between the RLNG consumers and gas supply companies---In the event of any conflict between the terms of the contracts and the Government directive, OGRA must attempt to resolve the matter by referring the issue to the Federal Government for clarification or re-consideration; it could not simply rely on Government policy directives under S.21 of the Oil and Gas Regulatory Authority Ordinance, 2002, and ignore the contractual arrangement as that went goes against the mandate of S.6(2)(r) of the 2002 Ordinance---In such cases OGRA was obligated to resolve the issues as a frontline regulator and not mitigate its functions as a government delegatee.

Petitioners by:

Salman Akram Raja, Tariq Bashir and Malik Ahsan Mehmood, Mansoor Usman Awan, Mohsin Mumtaz, Ms.Shehzeen Abdullah, Asghar Leghari; Muhammad Asif Butt, Khalil ur Rehman, Mustafa Kamal, Zia Haider Rizvi; Sajjad Haider Rizvi, Sayyed Alamdar Hussain, Ashfaq Ahmad Tabassum, Mian Muhammad Rashid, Ms. Ruhi Saleha, Malik Bashir Ahmad Khalid, Mian Muhammad Afzal, Arslan Riaz, Bilal Bashir, Iftikhar Ahmad Ansari, M.A. Hameed Awan, Subah Sadiq Kalsoon, Adnan Ahmad, Shahid Mehmood Bhatti; Muhammad Azeem Daniyal, Abdul Waheed Habib, Rana Sajid Rasool M. Irfan Liaqat, Muhammad Imran Yousaf, Abad ur Rehman, Waleed Khalid, Tahir Mahmood Mughal, Mian Tariq Mehmood, Muhammad Shafiq Malik, Waseem Mehmood Malik, Muhammad Junaid Ashraf, H.M. Azhar Ali, Usman Aziz Cheema and Shahzad Ahmad Cheema, Karamat Hussain Janjua, Syed Iqbal Hussain Shah Gillani, Abid Hussain, Khichi, Chaudhary Imtiaz Ullah Khan Warriach, Rana M.Arshad Khan and Afzaal Husssain Rana.

Respondents by:

Ms. Ambreen Moeen, DAG., Mrs. Samia Khalid for Respondent OGRA along with Altaf Hussain, Chief Audit Officer, Aatif Sajjad, Executive Director (Finance), M. Rizwan-ul-Haq, Executive Director (Litigation), OGRA, Fahad Malik for Respondent SNGPL along with Imran Javed, Senior Law Officer, SNGPL.

P L D 2020 Lahore 285

Before Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ameer Bhatti and

Ch. Muhammad Masood Jahangir, JJ

General (R) PERVEZ MUSHARRAF---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.71713 of 2019, decided on 13th January, 2020.

(a) Interpretation of Constitution---

----Preamble---Scope---Preamble of the Constitution reflected the aim, aspirations, genus, genesis and thinking of the people of that territory.

(b) Interpretation of Constitution---

----Constitution as a living document---Scope---Constitution was a living document because it could not be restrained to the past rather it had life to unfold the future for its implementation.

(c) Constitution of Pakistan---

----Arts. 184(3) &199---Judicial review---Principles relating to judicial review established by "Chief Justice John Marshall of the US Supreme Court", which still hold good in the annals of constitutional dispensation of a federal character, stated.

Following are the principles relating to judicial review established by "Chief Justice John Marshall of the US Supreme Court", which still hold good in the annals of constitutional dispensation of a federal character

(i) The Constitution was supreme.

(ii) A law repugnant to the Constitution was void.

(iii) The court had power to determine the constitutionality of a legislative Act and declare it void when it was repugnant to the Constitution.

(iv) Legislation could be declared unconstitutional only in clear case of unconstitutionality and not in any doubtful case.

William Marbury v. James Madison, Secretary of State of the United States (5 US 137 - Supreme Court 1803) and M'culloch v. The State of Maryland (17 US 316 - Supreme Court 1819 ref.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review---Ultra vires legislation and legislative actions---Scope and purpose of power of judicial review.

The courts wielded power of judicial review of a legislative action in order to determine constitutionality of the law so enacted. Any law beyond scope of its authority could not be held plausible, in that, it critically casted aspersions on rights of those to be governed. The concept of judicial review of such legislation not only vindicated rights of those governed rather it was also all the more essential for upholding democracy and ensuring supremacy of the Constitution.

The judiciary assumes, in essence, a vitally crucial role as custodian of the constitutional principles to provide its people what Constitution, in essence, guaranteed to them and this could only be possible if the power of judicial review was independently exercised as protector of the liberties of its citizens, otherwise any autocratic move to impinge upon their fundamental rights would badly reflect on democratic institutions. Hence the key role of an independent judiciary to do away with ultra vires legislation became indispensable.

It was only the power of judicial review that had served the purpose of acting as a clog on the legislative authority with a view to circumvent it as ultra vires of the Constitution. In countries adhering to the principle of legislative supremacy, the scope of judicial review was somewhat limited in the sense that the power of review of the courts was confined to the review of administrative actions. But countries like Pakistan, India or the U.S.A having written constitution or federal legislature, find a wider scope of judicial review to examine the legislative and administrative actions of the state. The concept of judicial review, since its inception, was based on the concept of a supreme law i.e. the Constitution.

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

----S. 20---Constitution of Pakistan, Art. 199---High Court (Lahore) Rules and Orders, Vol. V, Chapt. 1, Part G, S.5---Constitutional petition---Maintainability---Territorial jurisdiction of the (Lahore) High Court---Scope---Place of residence of defendant---Where a federal instrument/notification was under question before the (Lahore) High Court, undoubtedly, it had territorial jurisdiction as envisaged under Art.199 of the Constitution---Furthermore the place of residence (of defendant) as contemplated under S. 20 of Civil Procedure Code, 1908, had no relevance, particularly, when dealing with the issue of territorial jurisdiction under Art.199 of the Constitution.

LPG Associations of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758 and Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry (Private) Limited and another 2000 SCMR 1703 ref.

(f) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1 [Arts.8 to 28]---Constitutional jurisdiction of the High Court---Scope---State action encroaching upon Fundamental Rights of a person---Where the Court deemed it in the fitness of things that as a result of an act of the State beyond the scope of law, which encroached upon the Fundamental Rights of a person guaranteed under the Constitution, a Constitutional Court while exercising its extra-ordinary jurisdiction could entertain and come forward for the rescue of the aggrieved person being under the bounden duty as per dictates of justice and equity---Fundamental Rights guaranteed by the Constitution could not be infringed through autocratic legislative enactments or tainted executive action.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 and Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(g) Constitution of Pakistan---

----Arts. 6 & 90(1)---Criminal Law Amendment (Special Court) Act (XVII of 1976), S.5(1)---High Treason (Punishment) Act (LXVIII of 1973), S.2---"High treason"---Complaint filed before Special Court against the accused for committing high treason---Legality---Accusations of 'High Treason' arising out of issuance of proclamation of emergency by a former President and Chief of the Army Staff ('the accused') through Provisional Constitution Order No.1/2007 and Provisional Constitution Order No.2/2007, dated 03.11.2007---Held, that non-obtaining of approval in terms of Art.90(1) of the Constitution for filing the complaint in the Special Court against the accused was violative of law, as well as, devoid of legal sanctity.

Plain reading of the relevant summary moved by the Secretary, Law, Justice and Human Rights Division dated June 21, 2013 for initiation of proceedings against the accused clearly reflected that proceeding under Article 6 of the Constitution was to be made operative in consonance with Article 90(1) of the Constitution. However, it was initiated on the direction of the then Prime Minister issued to the Secretary Interior to further instruct the Director General, Federal Investigation Agency, to inquire into the allegation of 'High Treason' under Article 6 of the Constitution.

Letter available on record showed that instruction was issued to the Secretary Interior by the Prime Minister on 26-06-2013 after the Constitution (Eighteenth Amendment) Act, 2010, while S.RO.1234(I)/94 dated 29-12-1994 demanded that the Federal Government would authorize the Secretary Interior to file complaint against the accused of 'High Treason'. It was established that Secretary Interior was competent to file a complaint against the accused of 'High Treason' only on the recommendations of the Federal Government whereas the Federal Government was to operate in the spirit of Article 90(1) of the Constitution which included the Prime Minister and the Cabinet. However, such requisite requirement of the Constitution was totally ignored. Additional Attorney General conceded before the Court that he could not trace out any document qua the meeting of the Federal Cabinet which conferred authorization to the Secretary Interior as per provisions of the Constitution. In such circumstances, the filing of the complaint before the 'special court' was without any legal justification and intruded upon the relevant law and the Constitution.

Basis of initiation of proceedings against the accused, since its inception to the culmination were beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it had to fall to the ground.

(h) Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----S. 4(1)---High Treason (Punishment) Act (LXVIII of 1973), S.2---Constitution of Pakistan, Arts.6 & 90(1)---"High treason"---Constitution of a 'special court' under the Criminal Law Amendment Act, 1976 ('the 1976 Act'), vires of---Accusations of 'High Treason' arising out of issuance of proclamation of emergency by a former President and Chief of the Army Staff ('the accused') through Provisional Constitution Order No.1/2007 and Provisional Constitution Order No.2/2007, dated 03.11.2007---Held, that constitution of the Special Court in terms of S.4 of the Criminal Law Amendment (Special Court) Act, 1976 was violative of law, as well as, devoid of legal sanctity.

From bare reading of Section 4(1) of the Criminal Law Amendment (Special Court) Act, 1976 it was abundantly clear that the constitution of the 'special court' had to be accomplished by the Federal Government as envisaged in Article 90(1) of the Constitution. However, in the present case the same was constituted by means of notification dated 20-11-2013 issued by the Ministry of Law, Justice and Human Rights Division. Said notification reflected that the 'Federal Government in consultation with the Chief Justice of Pakistan, as well as, the Chief Justices of five High Courts, had constituted the 'special court' for the trial. Additional Attorney General candidly conceded that for the accomplishment of said process, no document with regard to such an act by the 'Federal Government' in consonance of Article 90(1) of the Constitution was or could be made available on record, and that 'consultation with the Chief Justice of Pakistan' for constitution of the 'special court' was alien to the provisions of the Criminal Law Amendment (Special Court) Act, 1976, as well as, the Constitution.

The very constitution of the 'special court' was squarely illegal/improper and without jurisdiction. Moreover, re-constitution of the 'special court' was made on number of occasions. The procedure for such contingency called upon the Federal Government to notify the vacant seat and appoint another Judge, however the requisite procedure for the same was not adopted in the present case despite the fact that at that time the ratio decidendi of Supreme Court in the case of Messers MUSTAFA IMPEX, KARACHI and others v. The GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others (PLD 2016 Supreme Court 808) was available for guidance. As such the exercise carried out in such behalf was unwarranted and without lawful authority. The Federal Government failed to adhere to the mechanism enunciated by the Supreme Court qua the constitutional requirements, hence, the whole exercise (of constitution of the Special Court) was illegal, unconstitutional and void ab-initio, which was squarely against the dictum of due process/fair trial.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 ref.

Basis of initiation of proceedings against the accused, since its inception to the culmination were beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it had to fall to the ground.

(i) Coram-non-judice---

----Whenever court was not properly constituted, proceedings carried out by it were nothing but coram-non-judice.

Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 ref.

(j) Interpretation of statutes---

----When a statute required that an act should be done in a particular way or manner, it must be done as prescribed by law, and any deviation therefrom would be against the intent of legislature, hence invalidating the act.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61; The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; Zia Ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 and Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Divison, Lahore and 2 others PLD 1971 SC 61 ref.

(k) Criminal Law Amendment (Special Court) Act (XVII of 1976)---

----S. 9---Constitution of Pakistan, Arts. 2-A, 8 & 10-A---Special Court constituted for crime of High Treason---Trial in absentia---Constitutionality---Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 qua trial in absentia, vires of---Section 9 was illegal and unconstitutional being repugnant to Arts.2-A, 8 & 10-A of the Constitution---Concept of trial in absentia was even inconsistent with the doctrine of Islamic justice enunciated in the Holy Qur'an and Sunnah rather it was against the golden principles of natural justice.

Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and others 1992 SCMR 602; Muhammad Arif v. The State 2008 SCMR 829; M.B. Abbasi and another v. The State 2009 SCMR 808; Arbab Khan v. The State 2010 SCMR 755; Nazar Muhammad v. The State 2011 SCMR 1487 and Pakistan and others v. Public-at-Large and others PLD 1987 SC 304 ref.

(l) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 2---Constitution of Pakistan, Arts. 6 & 12(1)(a)---"High treason"---Protection against retrospective punishment---Accusations of 'High Treason' arising out of issuance of proclamation of emergency by a former President and Chief of the Army Staff ('the accused') through Provisional Constitution Order No.1/2007 and Provisional Constitution Order No.2/2007, dated 03.11.2007---Held, that amendment in Art.6 of the Constitution introduced on 20-04-2010 through the Constitution (Eighteenth Amendment) Act, 2010 could not be given retrospective effect to constitute an offence purportedly committed by the accused much earlier (i.e. 03-11-2007), which was against the spirit of Art.12 of the Constitution.

Relevant question was whether the act purportedly committed by the accused could be characterized as an act attracting the provisions of Article 6 of the Constitution. While evaluating this aspect, it was to be noted that emergency was proclaimed by the accused on 03-11-2007.

Article 6 of the Constitution was amended by means of the Constitution (Eighteenth Amendment) Act, 2010 on 20-04-2010 i.e. subsequent to the act alleged against the accused, whereas there was no deeming clause embodied therein regarding its applicability retrospectively. Even otherwise, in section 2(b) of the High Treason (Punishment) Act, 1973, which was promulgated on 26th September, 1973, the provisions of Article 6 of the Constitution, as it was applicable at that time, were mentioned. Hence, after any relevant amendment in Article 6 of the Constitution, corresponding amendment in the High Treason (Punishment) Act, 1973 was essential for holding it in field, which was not done in the present case. Such aspect alone was sufficient to discard the acts introduced through the Eighteenth Amendment in Article 6 of the Constitution.

Perusal of complaint filed against the accused before the 'special court' and subsequent proceedings clearly demonstrated that the acts mentioned therein were not part of Article 6 of the Constitution at the time of commission of alleged accusation rather those were incorporated in Article 6 by virtue of Constitution (Eighteenth Amendment) Act, 2010, hence it could not be made basis for initiation of proceedings under Article 6 of the Constitution. Proceedings against the accused before the 'special court' were violative of Article 12(1)(a)(b) of the Constitution which offered protection against retrospective punishment.

Muhammad Fazal and others v. Saeedullah Khan and others 2011 SCMR 1137; Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404; Maqbool Ahmad and another v. The State 2007 SCMR 116 and Maqbool Ahmad and another v. The State 2007 SCMR 116 ref.

(m) Constitution of Pakistan---

----Art. 6---"High treason"---Scope---Suspension of the Constitution---Act of 'suspension' of the Constitution in no way would tantamount to 'abrogation' or 'subversion' of the Constitution as contained in Art.6 of the Constitution.

(n) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 2---Constitution of Pakistan, Arts. 6, 12(2) & 232---High treason---Powers of the President to proclaim emergency on account of war, internal disturbance etc.---Accusations of 'High Treason' arising out of issuance of proclamation of emergency by a former President and Chief of the Army Staff ('the accused') through Provisional Constitution Order No.1/2007 and Provisional Constitution Order No.2/2007, dated 03.11.2007---Plea on behalf of accused that while proclaiming emergency on 03.11.2007, he was exercising his authority as the President of the State, hence such emergency was covered under Art.232 of the Constitution---Held, that Art.232 of the Constitution was brainchild of the Constitution which conferred powers to the President for issuance of proclamation of emergency subject to conditions laid down therein---Amendment in Art.6 of the Constitution with regard to insertion of additional words "suspends", "holds in abeyance", or "attempts or conspires to suspend" or "hold in abeyance", if evaluated on the threshold of Arts.232 & 12(2) of the Constitution, it became a question of fact which required judicial interpretation as it raised question of caution in the mind of a person of ordinary prudence qua exercise of this authority duly conferred by the Constitution.

(o) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Executive act---Where an act of the executive was committed without any legal justification and the same was not sustainable in the eyes of law, any superstructure raised over the same would fall to ground.

Rehmatullah and others v. Saleh Khan and another 2007 SCMR 729; Executive District Officer (Education) Rawalpinidi v. Muhammad Younas 2007 SCMR 1835; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 and Yousaf Ali's case PLD 1958 SC (Pak) 104 ref.

(p) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition before the High Court/Supreme Court---Prayer---Relief---Scope---Whether the Court could go beyond the prayer in the constitutional petition---Held, that Superior Courts were well within their jurisdiction rather were under obligation to take notice of the changed circumstances/subsequent events to mould the relief sought for in the interest of safe dispensation of justice.

Saiyyid Abul A'la Maudoodi's case PLD 1964 SC 673; Syed Ali Asghar and others v. Creators (builders) and 3 others 2001 SCMR 279; Samar Gul v. Central Government and others PLD 1986 SC 35 and Sharaf Fridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 ref.

(q) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review---Scope---Principle of judicial review was based upon the elimination of exploitation, protection and treatment of law on equal basis, absence of any element of discrimination and adherence to the principles of safe administration of justice.

(r) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review---Scope---Concept of judicial review in Pakistan had a wide scope and was placed on higher pedestal as compared to other (jurisdictions).

Khawaja Ahmad Tariq Raheem, Muhammad Azhar Siddique, Mian Shabbir Ismaeel and Mian Ali Asghar for Petitioner.

Ahmed Abdullah Dogar, Advocate in Diary No.3242/2020 and Azhar Iqbal, Advocate in Diary No.3267 and Sarfraz Hussain, Advocate in C.M.No.1/2020.

Syed Ali Zafar, Senior Advocate: Amicus Curiae.

Ishtiaq Ahmed Khan, Additional Attorney General assisted by Asad Ali Bajwa and Aftab Raheem, Deputy Attorneys General, Ms. Zarish Fatima, Mehmood Ahmad Joya and Ch. Zubair Ahmed, Assistant Attorneys General with Farrukh Ali Mughal, Solicitor General, Ministry of Law" Iftikhar-ul-Hassan, "Deputy Solicitor General Ministry of Law and Muhammad Awais Javed, Section Officer, Ministry of Interior for the State/Federation.

Shoaib Zafar, Additional Advocate General for the State/Federation.

P L D 2020 Lahore 324

Before Shakil-ur-Rehman Khan, J

Haji KHIZER HAYAT---Petitioner

Versus

ABID HUSSAIN---Respondent

Civil Revision No.194717 of 2018, decided on 28th January, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Suit for pre-emption---Talb-i-Muwathibat, demand of---Element of immediacy was embedded in such demand as otherwise it stood extinguished on a delay of the shortest interval.

First step to structure the right of pre-emption was to make immediate demand in the sitting or meeting (Majlis) in which the pre-emptor had come to know of the sale through any source, declaring his intention to exercise the right of pre-emption. Such demand was called Talb-i-Muwathibat. Element of immediacy was embedded in this demand as otherwise it stood extinguished on a delay of the shortest interval.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Suit for pre-emption---Talb-i-Muwathibat---Plaint---Mandatory for the pre-emptor to mention in the plaint the place, date, time and name of the witnesses before whom the Talb-i-Muwathibat was made; as non-compliance thereof was fatal (to the suit).

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Section Officer, Government of the Punjab, Finance Department and others v. Ghulam Shabbir 2011 SCMR 1545; Fazal ur Rehman v. Khurshid Ali and another 2012 SCMR 635 and Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Suit for pre-emption---Talb-i-Muwathibat---Benefit of doubt---Right of pre-emption was strict in character, thus, the benefit of doubt would go to the vendee and conclusion would be that the pre-emptor had failed to prove the making of Talb-i-Muwathibat in accordance with the prescribed conditions of law.

Mehmood Alam v. Mushtaq Ahmed and others 2017 CLC Note 110, p.121 ref.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice for---Proof---In order to discharge the burden of proving Talb-i-Ishhad, the plantiff was required to first aver in his plaint not only that notice was sent under registered cover along with acknowledgment due request but also to disclose the names of attesting witnesses and thereafter to prove the making of Talb-i-Ishhad through convincing and reliable evidence---Pre-emptor had to produce the postman through whom notice was allegedly served upon the vendee to prove that notice was actually sent to him at the right address and he received it or refused to receive it---In order to establish Talb-i-Ishhad the pre-emptor had to prove that notice was sent to the vendee through registered post acknowledgment due card and its acknowledgment receipt was received by the pre-emptor after its service on the vendee.

Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 and Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 ref.

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

----O. XXXII---Punjab Pre-emption Act (IX of 1991), S. 13---Suit for pre-emption filed against minor---Suit land was bought by minor's father and subsequently transferred in minor's name---Father of minor was not impleaded as a party to the suit, however no prejudice was caused to the minor---Non-compliance of O. XXXII, C.P.C ought to be treated as inconsequential in such circumstances.

Pre-emptor had instituted the suit against the respondent who at the time of sale was 6 or 6½ years of age. During the evidence of the respondent, it was pointed out that he was a minor and that his father had actually bought land in question but the same had been transferred in the respondent's name. Neither of the parties nor the trial court impleaded respondent's father, who throughout had been defending the case on behalf of his son i.e. the respondent. It was also noted that respondent was not sued through his father. This aspect was also not taken into consideration by the Appellate court where again respondent was impleaded without his next friend nor a guardian was appointed. The pre-emptor again had not impleaded the minor-respondent through his father nor did the counsel for the pre-emptor pointed out this aspect of the matter during the course of hearing of the present petition. Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 had been ignored. However, in view of the facts and circumstances of present case, no prejudice had been caused to the minor-respondent. The suit as well as appeal against him were being defended by his real father, who had no interest adverse to him and secondly the concurrent findings of the courts below were against the pre-emptor. Moreover, considering the fact that the provisions of Code of Civil Procedure, 1908 did not relate to the substantive rights of the individuals and these being simply a machinery to achieve an end and that the object and purpose of Order XXXII, C.P.C. was to ensure due and proper representation on behalf of the minor, therefore, non-compliance of the Order XXXII, C.P.C. ought to be treated as inconsequential in the peculiar facts and circumstances of the present case.

Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Adil through Legal Heirs and others v. Ashiq Hussain and others 2003 CLC 945 ref.

P L D 2020 Lahore 332

Before Mujahid Mustaqeem Ahmed and Ch. Abdul Aziz, J

Mst. PARVEEN BIBI---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.7200 of 2019, heard on 24th October, 2019.

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

----S. 6 & Third Sched, Item 4(iv)---Penal Code (XLV of 1860), Ss.336-B, 302, 364, 148 & 149---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-i-amd, kidnapping and hurt caused by corrosive substances---Transfer of case---Anti-Terrorism Court, jurisdiction of---Complainant lodged F.I.R. for qatl-i-amd of her son and mutilation of his dead body with acid---Trial Court transferred case to court of ordinary jurisdiction as it did not attract provisions of Anti-Terrorism Act, 1997---Validity---Dead body was mutilated by pouring acid thereupon but even then, case did not fall within jurisdiction of special court constituted under Anti-Terrorism Act, 1997---Complainant herself mentioned in crime report that acid was poured upon corpse of deceased after his death---Medical officer even after receipt of report from Forensic Science Agency expressed his inability to opine with certainty about actual causes which led to death of deceased---Case was of homicidal death and not of causing hurt as latter stood for causing injury to a living person---High Court declined to interfere in transfer of case as there was no perversity---Constitutional petition was dismissed in circumstances.

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

----Third Sched. Item 4(iv)---Penal Code (XLV of 1860), Ss. 302 & 332---Hurt---Conviction---Precondition---Expression 'Hurt' stands only for harm or injury etc., which is inflicted without causing death of victim---If harm, infirmity or injury caused by perpetrator ends with death of victim, he can only be convicted under S.302 P.P.C. and not for kind/nature of injury caused by him---Such an accused can only be indicted with accusation of committing qatl-i-amd and can in no manner be charged with nature of hurt caused by him---When accused persons cannot be charged or convicted for causing hurt through corrosive substance then case does not attract mischief of Item 4(iv) of Third Schedule of Anti-Terrorism Act, 1997.

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

----S. 173---Crime report---Jurisdiction, determination of---Principle---Question of jurisdiction is to be determined from nature of accusation contained in crime report and statements of witnesses, material collected during investigation and placed before court along with report under S. 173 Cr.P.C.

Allah Din and 18 others v. The State and another 1994 SCMR 717 rel.

Ch. Irfan Aziz for Petitioner.

Ch. Faqir Muhammad for Respondent.

Jam Abdul Malik, Assistant Advocate-General, Punjab for the State.

P L D 2020 Lahore 337

Before Muhammad Tariq Abbasi and Mujahid Mustaqeem Ahmed, JJ

SARDAR KHAN---Petitioner

Versus

The STATE and another---Respsondents

Writ Petition No.1095 of 2017, decided on 9th May, 2019.

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

---S. 397---Sentence of offender already sentenced for another offence---Concurrent sentences---Scope---Petitioner was awarded sentences of imprisonment for life and imprisonment for four years in two different trials/appeals however, no order for concurrent running of sentences was made---Petitioner was convicted and sentenced simultaneously and even his appeals were decided at the same time, however, while converting his death sentence into imprisonment for life appropriate orders for concurrent running of sentences escaped notice of the court---High Court directed that sentence of imprisonment for life and sentence of imprisonment for four years shall run concurrently---Constitutional petition was allowed.

Juma Khan and another v. The State 1986 SCMR 1573; Javaid Shaikh v. The State 1985 SCMR 153 and Mst.Zubaida v. Falak Sher and others 2007 SCMR 548 ref.

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

----S. 397---Sentence of offender already sentenced for another offence---Concurrent sentences---Scope---Section 397, Cr.P.C. contemplates that sentences awarded to a person in a subsequent trial would commence at the expiration of imprisonment for which he had been previously sentenced, however, discretion has been left with the court to direct concurrent running of sentence awarded in a subsequent trial---Command of law for consecutive sentences is general rule while discretion for concurrent sentences is discretionary power of the court.

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

----S. 397---Sentence of offender already sentenced for another offence---Concurrent sentences---Time for making such order---Scope---Appropriate order within the meaning of S.397, Cr.P.C. ought to be made at the time of deciding the case or appeal but if, for any reason or due to some inadvertent omission, direction could not be issued at that time there is no embargo that the same cannot be passed afterwards---Court can exercise discretionary power at any time to direct that sentences in two different trials would run concurrently.

Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 and Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 rel.

Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Shah Hussain v. The State PLD 2009 SC 460 and Ishfaq Ahmad v. The State 2017 SCMR 307 ref.

Ch. Muhammad Ashfaq Khan for Petitioner.

P L D 2020 Lahore 343

Before Shakil-ur-Rehman Khan, J

SAIF ULLAH BAJWA---Petitioner

Versus

Mst. SAJIDA MANZOOR and 3 others---Respondents

Writ Petition No.519 of 2020, decided on 13th February, 2020.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched, & S.18.---Maintenance for minor and wife---Appearance through agent before Family Court---Effect---Concealment of source of income by husband---Effect---Suit for recovery of dower articles and maintenance of wife and minor was decreed concurrently---Contention of petitioner / husband, inter alia, was that impugned orders did not take into account that the husband/petitioner no longer had any source of income and furthermore that wife had not personally appeared before Family Court to substantiate her contentions---Validity---Evidence showed that husband/petitioner had concealed his sources of income and there existed contradictions on behalf of petitioner and his father, who was a witness, regarding his sources of income---Husband, if he fails to disclose his salary, or financial earnings, then adverse inference was to be drawn against him---No bar existed in wife being represented before Family Court by her authorized agent, therefore contention that wife did not appear before Family Court to substantiate her contentions was not tenable since her appearance was made through her authorized agent, who was her father---No illegality existed in impugned order---Constitutional petition was dismissed, in circumstances.

Muhammad Asim v. Mst. Samro Begum and others PLD 2018 SC 819 and Qalandri Bibi v. Mst. Irum Bibi and others 2019 YLR 86 rel.

Zeeshan-ur-Rehman for Petitioner.

P L D 2020 Lahore 350

Before Ch. Muhammad Masood Jahangir, J

ZULFIQAR ALI and others---Appellants

Versus

LIAQAT ALI and others---Respondents

E.F.A. No.117859 of 2017, decided on 22nd May, 2019.

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

----S. 145---Contract Act (IX of 1872), S. 128---Surety's liability---Scope---Enforcement of liability of surety---Decree-holder had instituted recovery suit on the basis of cheque---Judgment-debtor was granted leave to defend the suit subject to furnishing surety bonds---Sureties had jointly stood surety and ultimately the suit was decreed---Executing court vide impugned order proceeded to initiate proceedings for the satisfaction of decree against the sureties, which was contested on the grounds that their liabilities stood absolved after the death of the judgment-debtor; that unless the principal debtor was proceeded against in the first instance, the recovery proceedings against sureties were not warranted and that they were not party to the original lis, as such decree was not executable against them---Validity---Sureties had bounded themselves and subsequently it was not open for them to wriggle out of their liability---Prior to discharge of their liability, sureties had no right to dictate terms to the creditor and ask him to pursue his remedy against the principal debtor in the first instance---Section 145, C.P.C. clarified that surety, for the purposes of appeal, would be deemed to be a party to the proceedings---Mere fact that the principal had died did not absolve the surety from performing his contract---Executing court was justified to proceed with the measures for satisfaction of the decree against the sureties---Appeal of sureties having no merit and force, was dismissed.

Mirza Anwar Ahmad v. Habib Bank Ltd., Faisalabad and others 1989 CLC 2441; Muhammad Bashir through Legal Heir v. Zarina Bibi and others PLD 2014 Lah. 429; Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22 and Mrs. Muhammad Shafi through Agent v. Sultan Ahmed 2000 CLC 85 ref.

Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 CLD 687; Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 and Habib Bank Limited v. Malik Atta Muhammad and 4 others 2000 CLC 451 rel.

Maula Dad v. Wadhawa Singh and others AIR 1924 Lah. 428 foll.

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

----S. 128---Surety's liability---Scope---Surety under the law has no right to restrain an action against him rather having stood guarantor, he substitutes himself for his principal---Contract of guarantee binds the surety in a co-extensive manner.

Mirza Anwar Ahmad v. Habib Bank Ltd. Faisalabad and others 1989 CLC 2441 and Muhammad Bashir through Legal Heir v. Zarina Bibi and others PLD 2014 Lah. 429 ref.

Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 CLD 687 and Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 rel.

Ch. Muhammad Rafiq Warraich for Appellants.

P L D 2020 Lahore 354

Before Ayesha A. Malik, J

SHEHZAD ALI SHAH---Petitioner

Versus

SPECIAL JUDGE RENT, LAHORE and others---Respondents

Writ Petition No.24651 of 2019, heard on 22nd January, 2020.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 26 & 34---Civil Procedure Code (V of 1908), S.12(2)---Qanun-e-Shahadat (10 of 1984), Preamble---Rent Tribunal to exercise powers of Civil Court---Bar on provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 on proceedings under Punjab Rented Premises Act, 2009---Application under S.12(2), C.P.C. for setting aside ex parte ejectment order---Scope---Question before High Court was whether an application under S.12(2), C.P.C. read with S.151, C.P.C. for setting aside ex parte order in ejectment petition under Punjab Rented Premises Act, 2009 was maintainable---Held, that per Ss.26 & 34 of Punjab Rented Premises Act, 2009, provisions of C.P.C. were only applicable to the extent specified in S.26 of the Act and no other provision of C.P.C. was applicable in proceedings under Punjab Rented Premises Act, 2009---High Court observed that S.12(2), C.P.C. was not applicable on account of bar contained in S.34 of the Punjab Rented Premises Act, 2009---Constitutional petition was allowed, accordingly.

Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 and Saeed Pervaiz v. Syed Masood Hassan 2008 SCMR 568 rel.

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

----Ss. 29(2) & 5---Limitation period prescribed by special law---Condonation of delay---Scope---Ability of a court to condone delay had been excluded under special or local laws and it was only authorized specifically where law of limitation had been made applicable in such a statute---Where law of limitation had not been made applicable under a special law, then court could not condone delay and had to ensure that an application was made within specified period given in such statute---Where law under which proceedings had been initiated itself prescribed a period of limitation, then benefit of S.5 of the Limitation Act, 1908 could not be availed unless same had been made applicable as per S.29(2) of the Limitation Act, 1908.

Allah Dino v. Muhammad Shah and others 2001 SCMR 286 rel.

Umer Afzal Chaudhry for Petitioner.

Sheikh Muhammad Suleman Qureshi for Respondents Nos. 3 and 4.

P L D 2020 Lahore 358

Before Muhammad Qasim Khan, J

ZAHID KAMAL---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, SHEIKHUPURA

and 2 others---Respondents

Writ Petition No.41737 of 2019, decided on 12th September, 2019.

(a) Criminal trial---

----Mens rea and actus reus---Specific and general intent--- Principle---To constitute a criminal offence, existence of mens rea and actus reus are two essentials as most crimes consistent of these two broad elements---Mens rea means to have 'a guilty mind' and rationale behind rule is that it is wrong for society to punish those who innocently cause harm---Actus reus literally means 'guilty act' and generally refers to an overt act in furtherance of crime---Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds not bad thoughts---Specific intent and general intent are other terms to describe state of mind of a person--- General intent means intent to do something that law prohibits---Prosecution does not need to establish that accused actually intended precise result---Specific intent designates a special element above and beyond actus reus of crime and generally signifies an intentional or knowing state of mind.

(b) Electricity Act (IX of 1910)---

----S. 42---Wrongful act---Liability of---Principle--- Normally, a company may be liable for a wrong attributed to it but once an act is committed which constitutes an offence which is punishable then individuals may be held responsible and not company.

Chiragh Ali Chishti v. Abdul Ghaffar PLD 1961 (W.P) Lah. 875 rel.

(c) Electricity Act (IX of 1910)---

----S. 42---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Faulty installation of electric wires---Electrocution of animals---Negligence of officials---Complainant filed application against petitioner under Ss.22-A & 22-B, Cr.P.C. for negligently installing electric wires causing damage to his cattle---Ex-Officio Justice of Peace allowed the application---Validity---Wrong committed by an employee during performance of his official duties, unless mens rea and actus reus was established, launching criminal proceeding against him for such a wrong was least permissible exercise---Course available to an aggrieved, in such circumstances, might be to file suit for damages---High Court set aside order passed by Ex-Officio Justice of Peace as same was not sustainable---Constitutional petition was allowed in circumstances.

Syed Abdul Hameed v. Mian Izhar Ahmad PLD 2019 Pesh. 154;Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Mian Touseef v. District Police Officer 2017 PCr.LJ 1140; Rafiullah v. The State 2006 YLR 1345 and Tabish Gauhar v. The State 2016 PCr.LJ 1398 rel.

Muhammad Zakir Hussain for Petitioner.

Rai Ashfaq Ahmad Kharral for Respondent.

P L D 2020 Lahore 363

Before Sayyed Mazahar Ali Akbar Naqvi, J

Dr. FAROOQ AHMAD RANA---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary and 5 others---Respondents

Writ Petition No.66583 of 2019, decided on 16th December, 2019.

Constitution of Pakistan---

----Arts. 90 & 99---Rules of Business, 1973, Sched. II, Item No. 28, R.3(3)---User's Guideline Manual, 3.2, Pg. No. 20---Executive authority of the Federation---Conduct of business of Federal Government---Pakistan Citizen's Portal---Anonymous complainant---Scope---Petitioner was aggrieved of anonymous complaints lodged against him on Pakistan Citizen's Portal---Plea raised by petitioner was that identity of complainant be disclosed to him and that proceedings initiated through complaint on Pakistan Citizen's Portal be terminated---Validity---Pakistan Citizen's Portal was not competent to proceed in any matter/complaint as it was only a platform for citizens to raise their issue with concerned authorities---Authorities were bound to deal issues as per their applicable laws/rules/regulations---For purpose of technical guidance, complaint handling techniques and frequently asked questions (FAQs), User's Guidelines Manual were circulated---No anonymous application/complaint could be lodged through Pakistan Citizen's Portal and all citizens were properly registered into Portal by requisitioning certain mandatory information, i.e., name, CNIC, Mobile Number---No one could be registered without mandatory information and complaint after being lodged was routed by system to concerned authority for necessary action under relevant laws/rules/regulations of organization---As per Complaint Handling Manual, every registered member/citizen on Pakistan Citizen's Portal had liberty to hide or restrict his/her identity with regard to contents of complaint being lodged---Citizens lodged their complaints by selecting relevant category of complaint/grievance which were forwarded to concerned authorities by system for necessary action at their end---No anonymous complaint/application could be lodged as in case profile of complainant was hidden, authority could send a request to complainant via system to unveil required information regarding his/her profile within 48 hours---Such request was permissible in cases where disclosure of profile of complainant was inevitable for processing and resolution---High Court declined to interfere in exercise of Constitutional jurisdiction as there was no transgression of power, misuse of authority committed contrary to Rules of Business, 1973 and User's Guidelines Manual---Constitutional petition was dismissed in circumstances.

Rana Muhammad Mehtab for Petitioner.

P L D 2020 Lahore 367

Before Ayesha A. Malik, J

SUI NORTHERN GAS PIPELINES LIMITED---Petitioner

Versus

OIL AND GAS REGULATORY AUTHORITY---Respondent

Writ Petition No.40897 of 2019, heard on 3rd February, 2020.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 6, 12(2) & Preamble---Regulatory powers of Oil and Gas Regulatory Authority (OGRA)---Supply of gas to domestic consumers---Pressure Factor---Presumptive billing---Scope---Petitioner Sui Northern Gas Pipelines Ltd. ("SNGPL) impugned decisions of Oil and Gas Regulatory Authority (OGRA) whereby it was directed to refund amounts charged to demestic consumers under head of "Pressure Factor"---Contention of SNGPL, inter alia, was that Gas Meters installed in consumers' premises did not meansure Pressure Factor, and they were often tampered with, hence Pressure Factor was charged to prevent misappropriation of gas---Validity---SNGPL had not physically verified each and evey domestic consumer to conclude that gas meters had been tampered with, therefore, charging of Pressure Factor across the board was a presumptive exercise which was rejected by OGRA as not being sufficient reasons to charge said Pressure Factor---SNGPL's charging of all domestic consumers was, therefore, rightly rejected by the regulator OGRA as not being in compliance with the contractual understanding between the parties---In terms of the Preamble of the Oil and Gas Regultory Authority Ordinance, 2002, OGRA was mandated to protect public interest while respecting individual rights and in the present matter, OGRA had repeatedly required petitioner SNGPL to honour the terms of its contracts with domestic consumers and to bill ony those who have tampered with gas installations to obtain higher Pressure Factor---No reasons existed for High Court to interfere in the impugned directions of OGRA---Constitutional petition was dismissed, in circumstances.

Uzair Karamat Bhandari, Arsalan Saleem Chaudhary and Qasim Ali, with Faisal Iqbal, CFO and Ahmed Arsalan, Chief Law Officer for Petitioner.

Samia Khalid and Ambreen Moeen, DAG for Respondent

P L D 2020 Lahore 378

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

MUHAMMAD ILYAS GHUMAN---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Home Department Lahore

and others---Respondents

Criminal Appeal No.70578 of 2019, heard on 15th January, 2020.

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

----S. 11EE & Fourth Sched.---Proscription of person---Scope---Reasonable "information" about the person to be proscribed---Scope---In order to invoke the provisions of S.11-EE of the Anti-Terrorism Act, 1997, there must be reasonable information in order to prima facie establish that the person to be enlisted in the (Fourth) Schedule was an activist, office-bearer or an associate of a proscribed organization or an organization suspected to be involved in terrorism or sectarianism---Such information should be gathered from any credible source whether domestic or authorized including governmental and regulatory authorities, the law enforcement and intelligence agencies, financial institutions, Banking and non-Banking companies and even international institutions---Nothing had been mentioned in the Act to the effect that the material must be placed in black and white in support of such information---Word 'information' had been used and not 'material' for inserting name of any person in the (Fourth) Schedule.

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

----S. 11EE & Fourth Sched.---Proscription of person---Credible information and sufficient material---Scope---Report submitted by the Provincial Government showed that the name of the appellant was included in the (Fourth) Schedule to the Anti-Terrorism Act, 1997 on the source of information received through credible means and Banking institutions; that the appellant was detained for 90-days under S.11(EEEE) of the Act due to his negative activities being initiated by him in his madrissah and fourteen criminal cases had so far been registered against him wherein though he had been acquitted in most of the cases yet it showed his conduct; that joint combing operation was conducted in the religious institution being run by the appellant from where different weapons were recovered out of which, most of the weapons were licensed in different names; that three Bank accounts in the name of the appellant were blocked, whereas an account in the name of some other person was used for foreign funding for the religious institution of the appellant; that appellant had affiliation with proscribed organizations and he used to indulge himself in negative activities against the State---Name of appellant had been inserted in Fourth Schedule to the Act for the fourth time but he had not mended his ways and even during that period, he violated the restrictions imposed against him under S.11(EE) of the Act---Credible information and sufficient material was available against the appellant, which did not permit deleting his name from the (Fourth) Schedule to the Act---Appeal was dismissed.

Abid Masood Awan for Appellant.

Zafar Hussain Ahmad, Additional Advocate-General for the State.

Irshad Ahmad, Section Offier Home Department.

P L D 2020 Lahore 382

Before Sayyed Mazahar Ali Akbar Naqvi, Muhammad Waheed Khan and

Sardar Ahmed Naeem, JJ

NAVEED HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.20823 of 2019, decided on 29th April, 2019.

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

----S. 528---Jurisdiction of Sessions Judge to transfer cases---Scope---Petitioner who was taken into custody in a murder case applied for his post-arrest bail before the Additional Sessions Judge where challan of the said case was already pending adjudication but the application could not be decided due to transfer of the Presiding Officer---Judicial Officer who had taken over, was shown distrust by the complainant and subsequently a series of episodes had erupted in the court proceedings wherein initially allegations of distrust were levelled against the Judicial Officers while few of the Judicial Officers themselves declined to hear the matter assigning one reason or the other---Bail application of the petitioner was transferred to various Judicial Officers by the Sessions Judge for assorted reasons and at least 44 times the proceedings upon the application were postponed---Validity---Judicial powers of Sessions Judge and Additional Sessions Judge were synonymous to each other leaving no edge over the powers of the other---Legislature had introduced the word "Assistant Sessions Judge" in S.528, Cr.P.C., which never meant "Additional Sessions Judge", hence the authority exercised by the Sessions Judge while withdrawing the cases from Additional Sessions Judge in the spirit of S.528, Cr.P.C. seemed to be an authority which was not vested with him---Sessions Judge, therefore, was not vested with the powers to transfer cases from one court of Additional Sessions Judge to the court of another Additional Sessions Judge---Revision petition was allowed by the High Court with direction to the Sessions Judge to entrust the bail application of petitioner to the court where challan of the case was submitted.

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

----Ss. 526, 539-A & 528---Penal Code (XLV of 1860), S.21---Transfer application---Transfer of case of subordinate court or itself try by the High Court---Procedure---Affidavit in proof of conduct of subordinate court---"Public servant"---Scope---High Court has three-dimensional powers for the supervision/ superintendence of the courts subordinate to it in the Province, i.e. constitutional jurisdiction, inherent jurisdiction and jurisdiction under general law---Any person who is aggrieved by the conduct of any court subordinate to the High Court can file a petition under S.526, Cr.P.C. if there appears reasonable apprehension of injustice being done due to the conduct of the subordinate court---Such person has to bring forth accusations, having substance, supported by an affidavit duly attested by the 'Oath Commissioner'---However, if during the course of proceedings the accusations so levelled are found to be false, the applicant must prepare himself for legal consequences---Though the provisions of S.539-A, Cr.P.C. relate to word 'public servant', however, as envisaged in S.21, P.P.C., Judicial Officer is a "public servant" in all eventualities---High Court observed that procedure of appending affidavit along with the petition for transfer of the case in criminal proceedings is a sine qua non which cannot be ignored by any stretch of imagination---Intent behind the whole procedure is to provide safeguard and protection to the Judicial Officers from levelling bold allegations with intent to bring their repute in question, hence it is a tool to protect them---Power to transfer case from the court of Additional Sessions Judge to the court of another Additional Sessions Judge lies exclusively with the High Court---High Court shall entertain and decide transfer application if at all compelling reasons justiciable within four corners of law are available, in the safe administration of justice

Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327 rel.

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

----S. 497---Bail---Principles---Scope---Bail is a discretionary relief, temporary in nature, granted to accused till final adjudication of criminal case---Main theme of bail is to hand over the custody of accused in the hands of the surety---Court exercises power under S.497(2), Cr.P.C., if comes to the conclusion that the case of accused is one of further inquiry having room to release him on bail subject to furnishing of bail bond---Liberty of a person is a precious right which has been guaranteed under the Constitution, hence the courts of law in normal circumstances construe and apply S.497(2), Cr.P.C. liberally---Exception to the said principle is embodied in S.497(5), Cr.P.C. which reveals that the same court can recall the order if the order was procured through mis-representation, fraud, undue influence and without touching upon the merits of the case---Said provision is also applicable before the High Court, if the discretionary relief has been granted against the fundamentals of the law and against the principles enunciated by the superior courts---Sufficient possibility exists to contest even the discretionary relief in ordinary proceedings before a court of law.

Syed Farhad Ali Shah for Petitioner.

Malik Muhammad Asif Ahmad Nissoana, Deputy Attorney General.

Syed Ihtesham Qadir Shah, Prosecutor General Punjab with Mian Muhammad Awais Mazhar and Muhammad Naveed Umar Bhatti, Deputy Prosecutors General.

Asif Afzal Bhatti and Ch. Jawad Yaqoob, Assistant Advocates-General.

Azam Nazeer Tarar, Usman Naseem, Mian Ali Haider, Ijaz Haider Jaffari, Abdullah Javed and Ms. Shazia Parveen, Advocates/Amici Curiae.

P L D 2020 Lahore 394

Before Mujahid Mustaqeem Ahmed, J

BEGUM MAI---Petitioner

Versus

ADDITIONAL SESSSIONS JUDGE and others---Respondents

Writ Petition No.18401 of 2019, decided on 27th November, 2019.

(a) Islamic jurisprudence---

----"Life"--- Concept of life in Islam stated.

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

----S. 176---Penal Code (XLV of 1860), S.302(b)---Disinterment/ exhumation of dead body---Scope---In case when offence of murder had been committed in mysterious manner and evidence was destroyed and dead body buried in haste, under the social norms/pressure and designs of the killer(s), if circumstances so existed to reflect that death had occurred other than natural way, in order to make a probe, if it was necessary for the sake of justice, then even disinterment should be ordered---Mere fact that dead body had already been buried or family of the deceased was not consenting for disinterment was not a good ground to deny doing justice---Sole purpose of exhumation of dead body was to discover cause of death of the deceased and to unearth whether it was a natural death or otherwise (qatl-i-amd).

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

----S.176---Disinterment/exhumation of dead body---Locus standi of applicant/petitioner---Section 176(2) Cr.P.C. did not put any clog of locus standi to approach a Magistrate for exhumation of dead body---Order for exhumation could be made by the Magistrate on his own or on the request or information of even a stranger with the sole purpose to know the actual cause of death.

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

----S.176---Disinterment/exhumation of dead body against wishes of legal heirs, order for---Ascertaining real cause of death and advancing cause of justice---Deceased-daughter of petitioner had died in suspicious circumstances---Applicant, who was a maternal cousin of the deceased, suspected murder and consequently moved an application before Special Judicial Magistrate for exhumation of dead body---Said application was contested by the petitioner which was, however, allowed by the Magistrate---Plea of petitioner that legal heirs of deceased appeared before the revisional Court and got recorded their statements to the effect that they were not interested in exhumation of dead body but such request was not considered in accordance with law---Held, that accusation of murder at least warranted an investigative probe which was only possible through forensic analysis of the corpse---Real cause of death could be ascertained only by exhuming the body of deceased---Since intent of impugned orders was merely to ascertain real cause of death, same was just and proper as the same was to advance the cause of justice---No mala fide whatsoever had been attributed against the applicant or local police for initiating the proceedings for exhumation of dead body of deceased---Exhumation and thereafter the postmortem were mere tools of investigation which, in the ordinary course, would not be interrupted---Special Judicial Magistrate after proper exercise of jurisdiction vested with him had allowed the application---Constitutional petition was dismissed accordingly.

Ameer Afzal Baig v. Ahsan Ullah Baig and others 2006 SCMR 1468; Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others 2008 PCr.LJ 175 and Mst.Shama v. The State and 3 others PLD 2017 Lah.337 ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction of High Court under Art.199 of the Constitution was to be exercised for advancement of justice and not to perpetuate injustice.

Abdul Rashid Khan and 80 others v. President Services Institute PAF Base Lahore 1999 MLD 1870 ref.

Kanwar Farhan Ahmad for Petitioner.

P L D 2020 Lahore 400

Before Ayesha A. Malik, Shahid Jamil Khan and Muhammad Sajid Mehmood Sethi, JJ

UNITED BANK LTD. Through Authorised Attorneys of the Bank and 2 others---Appellants

Versus

MUHAMMAD ASHRAF and another---Respondents

I.-C.A. No.434 of 2009, heard on 22nd November, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Object and scope---Interpretation of terms of contract and enforcement---Scope--- High Court, in ordinary circumstances, cannot embark upon interpretation of terms of contract and its enforcement---Such rights, involving disputed facts, cannot be enforced by taking recourse to Constitutional jurisdiction---Entertainment of Constitutional petition in such a case may defeat very purpose of law under which competent courts are established and vested with jurisdiction under law---Constitutional remedy is primarily a public remedy and is not generally available against private wrongs---Such jurisdiction is equipped to serve as a judicial control over administrative actions and where dispute is of a private character and not for enforcement of fundamental rights as of public duty, Constitutional petition is not maintainable for resolution of such private dispute---Constitutional jurisdiction being discretionary and extraordinary, is exercised in grave cases rather than in routine---Despite extensive nature of powers and jurisdiction, it does not enable a High Court to act as an appellate forum as various trappings or limitations are required to be satisfied before said jurisdiction is to be assumed by High Court.

Noor Muhammad Qureshi and another v. The Divisional Superintendent, Pakistan Railways, Quetta 1979 SCMR 157; Lahore Cantonment Co-operative Housing Society Limited, Lahore, Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 = 2019 PLC (CS) 928 and Maj. (Retd.) Syed Muhammad Tanveer Abbas and another v. Federation of Pakistan through Secretary, Ministry of Interior and another 2019 SCMR 984 rel.

(b) Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S. 3---Constitutional jurisdiction of High Court---Scope---Constractual obligations, fulfilment of---Appellant Bank introduced investment scheme but before maturity, decreased the rate of profit offered---Single Judge of High Court in exercise of Constitutional jurisdiction set aside the decrease in rate of profit as it was without lawful authority and of no legal effect---Validity---Where relief was regarding enforcement of contractual stipulations/obligations and infringement of any condition of such a contract at most entitled aggrieved person to avail alternate remedy for breach of contract before court of plenary jurisdiction---Fundamental Rights of such a person were not violated conferring upon him right to enforce same in terms of Art. 199 of the Constitution---High Court could only interfere where rights were based on statute, law or rules framed thereunder, or when obligations or duties were vested in public functionary or a constitutional body, performing functions in relation to affairs of Federation or a Province or a legal authority---Contractual rights and obligations could be enforced in Constitutional jurisdiction, however, subject to important rider of corresponding absence of an adequate remedy--- Relief sought by respondents was primarily with regard to enforcement of contractual obligations between private parties and same could not be enforced or granted while exercising discretionary jurisdiction of High Court---Appropriate remedy for such matter was through suit before court of competent jurisdiction---Facts as averred by respondents were disputed by appellant Bank and respondents were at liberty to avail any other alternate remedy available to them under law before relevant forum, including State Bank of Pakistan---Division Bench of High Court set aside judgment passed by Single Judge of High Court as same was not maintainable---Intra-Court Appeal was allowed in circumstances.

Noor Badshah through L.Rs. v. United Bank Limited through its President and others I.C.A. No37 of 2015; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Human Rights Commission of Pakistan and others v. Government of Pakistan and others Civil Petition No.317-L of 2005 (PLD 2009 SC 507); Suo Motu Action regarding non-payment of Retirement Benefits by the relevant Departments and others 2018 SCMR 736; Pakistan Olympic Associatin v. Nadeem Aftab Sindhu 2019 SCMR 221; Zonal Manager U.B.L. and another v. Mst. Perveen Akhtar PLD 2007 SC 298 and Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi 2005 SCMR 678 rel.

Salman Akram Raja, Abuzar Salman Khan Niazi, Arslan Riaz, Tariq Bashir and Nadeem Shahzad Hashmi for Appellants.

Ch. Muhammad Yaqoob, Ch. Imran Raza Chadhar and Ch. Qasim Raza Chadhar, for Private Respondents.

Sahibzada Anwar Hameed, Advocates for Respondent-State Bank of Pakistan.

Mian Ashiq Hussain (in I.C.A. No.433 of 2009).

Muqtedir Akhtar (in I.C.A. No.437 of 2009).

P L D 2020 Lahore 407

Before Jawad Hassan, J

MUHAMMAD TAHIR JAMAL, ADVOCATE---Petitiioner

versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.7634 of 2019, decided on 12th February, 2020.

(a) Constitution of Pakistan---

----Art. 15---National Highway Authority Act (XI of 1991), S. 4---Freedom of movement---Right to travel---Scope---National Highway Authority ('NHA')---Purpose and functions---Providing an appropriate safe passage to travel throughout the country was a responsibility shouldered upon the state and the NHA, which was established for the very purpose of planning, development, operation and maintenance of the National Highways and strategic roads to provide safe, time efficient and better road facilities of international standards to travelers/ commuters /passengers so that they could exercise their right of movement in a more better way---Different phases of motorways were also constructed by the NHA to undertake such very purpose at the level of utmost excellence because the NHA was custodian of the highway assets of Pakistan's road network and committed to provide a safe, modern and efficient transportation system.

(b) Constitution of Pakistan---

----Art. 15---Freedom of movement---Right to travel---Scope---Unreasonably protracted obstruction of a road or its prolonged non-functionality due to sluggish construction work---Effect---Infringement of fundamental right to movement.

Freedom of movement envisaged access of every citizen to all the roads constructed for public to travel including motorways subject to condition of toll tax or other taxes imposed by government under the law. Any unreasonably protracted obstruction of the road or its prolonged non-functionality on the pretext of a construction work which was taken out in a sluggish manner tantamount to restriction and infringement of fundamental right to movement of commuters/ passengers/travellers provided and protected under Article 15 of the Constitution.

(c) Constitution of Pakistan---

----Art. 20---Freedom to profess religion---Right to prayer facilities on motorways---Scope---Service areas of Motorway (M-3) [Lahore-Abdul Hakeem Motorway]---Lack of mosquesat service areas---Right to practice religion implied that a Muslim citizen had a fundamental right to offer his prayer at the time of prayers while he was travelling on Motorway M-3 and it was the duty of State to provide appropriate area to offer prayers at service areas of M-3---Order accordingly.

(d) Constitution of Pakistan---

----Arts. 9, 14, 15, 20, 26 & 38(d)---Rest areas on motorways---Concept and purpose---Lack of rest areas on Motorway (M-3) [Lahore-Abdul Hakeem Motorway]---Rest area was a public facility, located next to a large thoroughfare such as a motorway, expressway, or highway, at which drivers and passengers could rest, eat, or refuel without exiting onto secondary roads---Facilities may include park-like areas, fuel stations, public toilets, water fountains, restaurants, and dump and fill stations for caravans---Features of rest areas in different Islamic countries, Australia and the United Kingdom stated.

(e) Islamic jurisprudence---

----Rights of travellers (musafirs) and guests in Islam---Scope and significance---Treating a guest or traveler well was the most important belief in Islam, belief in God and belief in the Day of Judgement.

Surah Al-Bakara (Verse 177); Surah An-Nisa (Verse 36) and Surah Ar-Rum (Verse 38) ref.

(f) Constitution of Pakistan---

----Arts. 9, 14, 15, 20, 26 & 38(d)---National Highway Authority Act (XI of 1991), S. 4---Service areas of Motorway (M-3) [Lahore-Abdul Hakeem Motorway]---Lack of emergency services, mosques, rest and food areas, tress and plantation etc. at service areas of M-3 Motorway---Violation of Art.14, 15 & 26 of the Constitution---Breach of fundamental duty cast upon the National Highway Authority and local district administration---High Court kept the present writ pending under the doctrine of continuing mandamus and issued certain directions.

Motorway was a road with exclusive and limited points to access entry and to exit therefrom by commuters/travellers. Besides such given points, a traveller could neither make an entry thereon or exist therefrom, which meant that while being on a motorway, a traveller was solely dependent upon the services provided by motorway authorities regarding basic necessities and amenities i.e, gasoline station, food, air filling station, rest room, prayer area, emergency medical care center etc., which were necessary for safe and sound travelling. Failure on the part of the State and authorities acting on behalf of the State including local administration to provide the said basic necessities and amenities was violative of Articles 14, 15 and 26 of the Constitution.

When the entry in and exit from a motorway was controlled by the National Highway Authority ('NHA') by restricting it to certain points then it was incumbent upon all the authorities involved including NHA as well as local district administration to provide all basic facilities and amenities at the service areas of the motorway. Any failure or negligence on their part was breach of fundamental duty cast upon them by the Constitution.

High Court directed that all the government functionaries were to strictly adhere to the undertakings/assurance given in the Court regarding completion of the construction work of service areas within the deadline/timeframe; that a weekly progress report shall be submitted to the High Court with complete detail of the work done, the work which was still required to be done and any impediment or obstruction which hindered the progress and completion of work; that report regarding plantation of trees at service areas also be submitted by the respondents within one month specifying measures taken by them respectively to comply with the direction of the Court; that in case of any deficiency/dispute regarding the progress being made in the matter, the representative of all the departments concerned, including the government functionaries, shall properly negotiate/communicate with each other and make out all efforts for amicable resolution of the issue, and they may also establish a contact with the Law Officers who were to render proper assistance to them and play their pivotal role in overall expediting the matter; that they may also approach the High Court for guidance, if felt necessary; that all the directions issued through present order and contained in the previous order(s) were to be followed in letter and spirit, disobedience of which would tantamount to initiating contempt proceedings against the delinquents; that the National Highway Authority (NHA) was to establish Emergency Response Centres at suitable places i.e. rest areas beside the motorway, equipped with various facilities including doctors, paramedics and ambulances for the provision of timely aid and care in case of emergency.

(g) Constitution of Pakistan---

----Art. 199---Continuous mandamus, doctrine of---Concept of continuous mandamus stated.

Continuing Mandamus was a writ of mandamus issued to an authority by the High Court under Article 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. The doctrine of Continuing Mandamus, at times also referred to as structural interdict or structural injunction, in other words, 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. This happened in a situation which could not be remedied instantaneously but required a solution over a long time, at times going on for years. With this 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.

Sheikh Asim Farooq v. Federation of Pakistan and others PLD 2019 Lha. 664 and Swaraj Abhiyan (IV) v. Union of India AIR 2016 SC 2953 ref.

Zafar Ullah Khakwani, Advocate Supreme Court for Petitioner.

Mehr Zamir Hussain Sandhal, Deputy Attorney General for Pakistan and Syed Najam-ul-Saqib Mumtaz, Assistant Attorney General along with Muhammad Azam, Director NHA, Headquarter, Islamabad and Muhammad Bilal Hassan, Assistant Director (Rev-Row), NHA, Headquarter, Islamabad and Muhammad Naseem Arif, G.M. (M-3), NHA, Lahore.

Azhar Saleem Kamlana, Assistant Advocate General, Punjab along with Habib Muhammad Khan and Sana Tauseef.

Malik Muhammad Tariq Rajwana for Respondent-NHA.

Ms. Amina Munir, Deputy Commissioner, Toba Tek Singh, Mansoor Ahmad, Deputy Commissioner, Nankana Sahib and Aftab Ahmad ADC (R), on behalf of Deputy Commissioner Faisalabad.

P L D 2020 Lahore 423

Before Shahid Waheed and Faisal Zaman Khan, JJ

KHALID HUSSAIN---Appellant

Versus

PSIC EMPLOYEES CO-OPERATIVE HOUSING SOCIETY and others- Respondents

I.-C.A. No.78078 of 2019, decided on 3rd February, 2020.

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

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Application of C.P.C. to proceedings undertaken in exercise of Constitutional jurisdiction of High Court in civil matters---Scope---Question before High Court was whether an order passed under its Constitutional jurisdiction, could be set aside on ground of fraud, misrepresentation or want of jurisdiction under S.12(2) C.P.C.---Held, that Constitutional jurisdiction under Art.199 of Constitution pertained to civil as well as other matters---Proceedings undertaken for enforcement of civil right(s) were civil proceedings, whatever may be source of High Court's jurisdiction invoked for enforcement of such a right---Provisions of C.P.C., except where specially excepted, would apply in exercise of High Court's jurisdiction in civil matter(s)---Power to set aside order on ground of fraud, misrepresentation or want of jurisdiction under S.12(2) C.P.C. was therefore available against an order passed under Constitutional jurisdiction of High Court in a civil matter.

Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and Mst. Khurshid Begum PLD 1966 SC 276; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West and others PLD 1968 SC 171; Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Bradlaugh v. Clarke (8 AC 354); Mt. Sahitiri Thakurain v. Savi and another AIR 1921 PC 80 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---Civil Procedure Code (V of 1908) Ss.12(2) & 2(2)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Intra-court appeal---Appeal to High Court in certain cases---Exercise of its original civil jurisdiction by High Court---Nature of remedy available under S. 3 of Law Reforms Ordinance, 1972---Scope---Question before High Court was whether an order passed by Single Judge of High Court upon an application under S.12(2) C.P.C., could be assailed by intra-court appeal under S.3 of the Law Reforms Ordinance, 1972---Held, that appeal under S.3 of Law Reforms Ordinance, 1972 could either lie against a decree passed or final order of Single Judge of High Court in exercise of original civil jurisdiction---Although an application under S.12(2) C.P.C. was a civil proceeding yet it could not be regarded as a suit as every suit was commenced by a plaint, and where there was no suit, there could be no decree---Mere fact of a matter coming directly before High Court, under law, would not suffice the same to be within ordinary meaning of original civil jurisdiction---Remedy of making application under S.12(2) C.P.C. would arise only if there was a judgment or order of a Court meaning thereby it was contemplated as a sort of reconsideration or reopening or in a way review of a decided matter on limited ground of fraud misrepresentation or want of jurisdiction---Such type of rethinking of matter relating to enforcement of civil right brought before the Constitutional jurisdiction could not possibly be claimed to be exercise of original jurisdiction---High Court held that order under S.12(2) C.P.C. made in a petition before Single Judge of High Court under Art.199 of the Constitution could not be challenged by way of intra-court appeal under S.3(1) of Law Reforms Ordinance, 1972---Intra-court appeal, being not maintainable, was dismissed, in circumstances.

Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) 11 Ind. App 37 (PC) and Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Minakshi Naidu v. Subramanya Sastri (1888) ILR 11 Mad. 26 (PC); Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman, M.D., Karachi PLD 2001 SC 182; Saif-Ur-Rehman Toor and another v. Registrar, Cooperative Society, Punjab, Lahore and 11 others 2002 YLR 3343 and Secretary Agriculture, Government of the Punjab and another v. Muhammad Akram and another 2005 MLD 915 rel.

(c) Jurisdiction---

----"Original jurisdiction", meaning of---Original jurisdiction was jurisdiction to consider a case in the first instance and jurisdiction of a court to take cognizance of a cause at its inception and try and pass judgment upon law and facts; and the same was distinguished from "appellate jurisdiction".

Ms. Saba Saeed Sheikh for Appellant.

Gohar Nawaz Sindhu, Assistant Advocate General, Punjab for Respondents.

P L D 2020 Lahore 430

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram , JJ

MUHAMMAD SAEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.653 of 2016, heard on 17th December, 2019.

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

---S. 514---Forfeiture of surety bond---Scope---Surety assailed order of Trial Court whereby his bond was forfeited on account of his failure to produce the accused---Accused was granted interim bail for a certain period i.e. till the next date of hearing and the bond submitted by the surety was only valid till that date and could not be treated to have been extended automatically---Surety bond already submitted by the surety for a specific period could not be treated valid for the extended or subsequent period---Accused had not disappeared during the period for which the surety bond was submitted, therefore, surety was not responsible for the absence of the accused after that period and had no liability in that behalf---Bond tendered by the surety before the Trial Court clearly showed that he had taken responsibility for the conduct and appearance of accused till the next date of hearing---Order of forfeiture of bond was set aside.

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

----S. 514---Forfeiture of surety bond---Scope---Purpose of standing surety of the accused is for production of the accused for whom surety was given and when the accused appears before the court the liability of the surety is over and the matter rests between the court and accused person---Surety is not under any obligation to produce the accused on a date for which he has not executed the bond---Surety bond is a contract between the surety and the Court that in case the accused defaults in appearance, only on a date for which the surety bond is executed, the surety would be responsible for the same.

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

----Ss. 498 & 514---Interim bail---Format of surety bond---Forfeiture of surety bond---Scope---High Court observed that in subordinate courts when an interim bail is granted up to a certain date, thereafter, if the same is extended then care should be taken that accused furnishes surety bond up to that date or suitable amendment is incorporated in the bond which was obtained from the surety to the effect that he will be responsible to produce the accused on next date of hearing or on any date, fixed subsequent to that date---Surety deed being used in the court of first instance provides that the surety will be responsible for production of the accused on one date only which is provided next after grant of ad-interim bail and on account of such defect the Zamanat Nama, which is available in printed Form, is being accepted in routine without realizing the consequences as to what will be the situation in case the matter is adjourned to some other date and the bail is extended any further---Printed Form should incorporate a covenant that the surety shall be bound to produce the accused till disposal of application for the pre-arrest bail or in the alternative the surety should give an undertaking to produce the accused till then.

Malik Imtiaz Haider Maitla for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

P L D 2020 Lahore 434

Before Anwaarul Haq Pannun, J

ASWAD IQBAL---Petitioner

Versus

R.P.O. and others---Respondents

Writ Petition No.4994 of 2019, decided on 23rd April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 173---Police Order (22 of 2002), Art.18-A (as amended by Punjab Police Order (Amendment) Act (XXI of 2013)---Change of investigation after commencement of trial---Scope---Petitioner assailed the order for change of investigation---Plea of petitioner was that after submission of interim report under S. 173, Cr.P.C. by the SHO, taking cognizance of the offence and framing of charge by the Trial Court, the order for the change of investigation could not be passed---Validity---Section 173, Cr.P.C., contained a command that every investigation under Chapter XIV, Cr.P.C. would be completed without any unnecessary delay and as soon as it was completed, the SHO, through the Public Prosecutor, would forward a report to the court empowered to take cognizance of the offence on a police report---In case, where investigation was not completed within a period of 14 days from the date of recording of FIR under S.154, Cr.P.C., the SHO, within three days of the expiration of said period, would forward interim report to the Magistrate through the Public Prosecutor and the court would commence the trial on the basis of such interim report, unless for the reasons to be recorded, the court decided that the trial would not so commence---Provision containing word 'interim report' allowed, while placing no bar on the police officer, to hold further investigation in the criminal case---Said provision permitted submission of a report before the court on the basis of a subsequent investigation---Said provisions in verbatim left no doubt to point out that after submission of report under S.173, Cr.P.C., it was the sole and exclusive domain and discretion of the court for commencement of trial or its postponement---Article 18-A, Police Order, 2002, explicitly set out no period of limitation for filing of applications seeking any change of investigations after its commencement from the stage of registration of a criminal case under S.154 Cr.P.C.---Only the statutory period of seven days had been provided in the said Article in order to pass an order by the relevant authority for the change of first and second investigation---Said period, however, in case of third change of investigation had been fixed as thirty days---Even after passing of the order for change of investigation, no outer time line had been prescribed for completion or conclusion of investigation---Said factor was perhaps to enable the Investigating Officer to find out the truth of the matter under , his investigation---Submission of report under S.173, Cr.P.C and commencement of trial thus created no bar to pass an order for the change of investigation in terms of Art. 18-A of the Police Order, 2002---Contrary view would tantamount to defeat the object of Art.18-A leading to its redundancy---Opinion of the Investigating Officer was neither admissible in evidence nor binding upon the courts---Proposed evidence, collected through investigation, on its transformation into real evidence in a court of law only mattered for deciding a case---No defect was found in the impugned order of first change of investigation---Constitutional petition being without merits was dismissed.

Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.) Punjab and others 2014 SCMR 1499; Raja Khurshid Ahmad v. Muhammad Bilal and others 2014 SCMR 474; Abdul Qayyum v. Niaz Muhammad and another 1992 SCMR 613; Muhammad Ashfaq v. Additional Inspector General of Police (Investigation) Punjab, Lahore and 3 others 2013 PCr.LJ 920 and Abdul Qayyum v. D.P.O. and others 2016 PCr.LJ 618 ref.

Raja Khursheed Ahmad v. Muhammad Bilal and others 2014 SCMR 474 rel.

Mazhar Abbas Wasli for Petitioner.

Rana Mehboob Ali for Respondents.

Zulfiqar Ali Sidhu, Assistant Advocate General with Abdul Rehman ASI for the State.

P L D 2020 Lahore 453

Before Jawad Hassan, J

TANVEER CHISHTI---Petitioner

Versus

CITY POLICE OFFICER and others---Respondents

Writ Petition No. 4276 of 2020, decided on 19th March, 2020.

(a) Words and phrases---

----'Emigration' and 'immigration'---Distinction.

Black's Law Dictionary 11th Edition ref.

(b) Words and phrases---

----'Emigrant' and 'immigrant'---Definition and distinction---'Emigrant' meant a person who left his/her own country in order to settle permanently in a foreign country, while 'immigrant' meant a person who came to live permanently in a foreign country.

Words and Phrases Volume 14-A and 20 Permanent Edition ref.

(c) Words and phrases---

---'Overseas'---Definition.

Oxford Advanced Learner Dictionary New 8th Edition ref.

(d) Punjab Overseas Pakistanis Commission Act (XX of 2014)---

----Ss. 2(g) & 2(i)---Complaint filed by 'Overseas Pakistani' before the Punjab Overseas Pakistanis Commission ('the Commission')---Pre-requisites---Commission, had to firstly, ensure that the person preferring a complaint to it, fell under the definition of "Overseas Pakistani", before taking any step, under the Punjab Overseas Pakistanis Commission Act, 2014 ('the Act') or proceeding with his complaint---For a complainant, this was the necessary foundational touchstone, which was required to be met, for putting in place the extraordinary forum to seek redressal of his grievance, against a Government Agency, and it was this very quintessential part, which was required to be determined, in the first instance by the Commission, before proceeding with the complaint, and adopting the mechanism of transmitting the same to the Government Agency, while recommending initiation of disciplinary actions against the delinquent.

(e) Punjab Overseas Pakistanis Commission Act (XX of 2014)---

----S. 2(i)---Complaint filed by 'Overseas Pakistani' before the Punjab Overseas Pakistanis Commission ('the Commission')---'Overseas Pakistani'---Scope---Person merely having nationality of another country but living in Pakistan permanently could not be termed as an Overseas Pakistani [for purposes of the Punjab Overseas Pakistanis Commission Act, 2014 ('the Act')]---Said Act provided mechanism for redressal of grievance and protection for Overseas Pakistani only and not for every dual national---In order to invoke jurisdiction of the Commission, a person had to show that he was an Overseas Pakistani with Pakistani origin and he/she either permanently or temporarily resided outside Pakistan for employment, business or any other purpose as defined in the Act with intention to stay there for an unspecified period.

(f) Punjab Overseas Pakistanis Commission Act (XX of 2014)---

----S. 7---Overseas Pakistanis Commissioner ('the Commissioner'), powers of---Scope---Punjab Overseas Pakistanis Commission Act, 2014 ('the Act') did not authorize the Commissioner or the Government Agencies to either register a case or file a suit against a private person either on the complaint so filed, or on behalf of an Overseas Pakistani in any manner---Commissioner was empowered to only transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal, or to refer any complaint of an Overseas Pakistani to the Ombudsman for further necessary action in accordance with law.

Shahid Idrees v. Government of the Punjab and others PLD 2018 Lah. 284 ref.

(g) Punjab Overseas Pakistanis Commission Act (XX of 2014) ---

----Ss. 4 & 7---Punjab Overseas Pakistanis Commission ('the Commission'), the Overseas Pakistanis Commissioner ('the Commissioner') and 'Government Agencies', powers of---Scope---Civil dispute between private persons relating to transaction of money---Government Agencies on the behest and directive of the Commissioner could not initiate proceedings against such private persons by issuing them summons/notices in order to resolve a civil dispute.

Determination of third-party rights was unequivocally a judicial function and could only be carried out by a court of law i.e., the judicature, and not by the Punjab Overseas Pakistanis Commission ('the Commission') or the Government Agencies, which formed executive organs of the State. Government Agency had no authority to summon a private person in excess of its powers particularly when the law it operated under, did not expressly or by necessary implication find mention of such powers. No law could authorize an executive Government Agency to determine rights of private parties, as it was the sole prerogative of the courts of law. When the Government Agency began to exercise judicial power in order to determine private rights, the proceedings became unconstitutional and illegal. Commission or the Government Agencies were not the Courts and, therefore, any assumption of judicial power by the Commission or the Government Agencies on the behest of the Commission was also unconstitutional and illegal. Private parties having a dispute over transaction of money, may avail remedy under the Civil Procedure Code, 1908 before the Civil Court which was court of ultimate jurisdiction and was empowered to deal with such like matters.

Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 1999 SC 504 ref.

(h) Punjab Overseas Pakistanis Commission Act (XX of 2014)---

----S. 2(i)---Constitution of Pakistan, Art. 4(1)---'Overseas Pakistani'---No preferential treatment for resolution of disputes---Overseas Pakistanis, no matter wherever they may be, were subject to the same protection of law as every other Pakistani without any discrimination---Equal was not preferential and thus Overseas Pakistanis were not given any preference for resolutions of disputes by the Government Agencies.

Tahir Mirza v. Saleha Mehmood, DCO and others (2019 YLR 2852 ref.

(i) Constitution of Pakistan ---

----Arts. 184(3) & 199---Judicial review by the superior Courts---Scope---Executive organ/functionary---Every executive organ was obliged to perform his duties and to exercise only those powers which law had conferred upon it; otherwise same would be subject to the judicial review of superior Courts.

(j) Constitution of Pakistan ---

----Arts. 184(3) & 199---Executive, legislative and administrative actions---Judicial review by superior Courts---Meaning and scope---"Judicial review" meant a court's power to judicially review the legislative and executive actions in order to maintain and sustain the rule of law.

Courts by means of writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto controlled the administrative actions. Under the dominion of judicial review, the superior Courts reviewed the lawfulness of a decision or action made by a public body. In fact this was a process under which executive or legislative actions may be subject to review by the judiciary. Judicial review could be sought on the grounds that a decision-maker misdirected itself in law, exercised a power wrongly, or improperly purported to exercise a power that it did not have, which was known as acting ultra vires. The court's function, in exercising such power, was to ensure that the public functionaries did not act unjustly by overstepping their proper sphere. Thus when an administrative authority took an action under a law, the question could be whether he had exceeded or abused the power conferred by the law and had therefore acted ultra vires.

In the field of judicial review, the word "lawful" had acquired a technical meaning. When it was said that a person had acted unlawfully, it meant that he had acted outside the powers conferred on him by law; and when the question was of the validity of an administrative action, the only question the court asked was, has the decision maker exceeded his statutory powers, thus acting ultra vires and therefore unlawfully?. Further power of "judicial review" as compared to "jurisdiction" was available to the superior Courts enshrined by the Constitution which by no stretch of imagination either could be curtailed or abridged.

Bank of Punjab's case PLD 2014 Lah. 92 ref.

In exercise of powers of judicial review of administrative action the High Court always had the jurisdiction to examine whether any order passed by any executive or administrative authority was with or without jurisdiction. Since every order passed without jurisdiction was always void ab initio and nullity in law, therefore, the High Court shall always have jurisdiction to consider such point. Furthermore, if the action or decision was perverse or was such that no reasonable body of persons, properly informed could come to or had been arrived at by the authority misdirecting itself by adopting a wrong approach or had been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same.

Corruption in Hajj Arrangements in 2010's case PLD 2011 SC 963 ref.

Mian Tanveer Kamran for Petitioner.

Azhar Saleem Kamlana, A.A.G. (on Court call).

P L D 2020 Lahore 471

Before Tariq Saleem Sheikh, J

MUHAMMAD ABDAAL alias ABDALI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 16447 of 2019, decided on 12th November, 2019.

(a) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Vague grounds---Scope---Petitioner was detained for having a criminal history, association with other people of such background, involvement in several FIRs, for instigating young people against the regime and for intimidating people---Validity---Respondent could not place any material on record which showed that the petitioner was convicted in any of the criminal cases---Involvement in certain criminal cases and association with other people of bad character hardly justified preventive detention---Other grounds mentioned in the impugned orders were vague and indefinite and no material was available on record to support them---Authority had no occasion to apply its independent mind to the question whether S.3(1) of the Punjab Maintenance of Public Order Ordinance, 1960 should be invoked against the petitioner---Impugned orders were declared to have been issued without lawful authority and the petitioner was directed to be released---Constitutional petition was accepted.

Liaquat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78; Mst. Shazia Perveen v. District Magistrate, Okara PLD 1988 Lah. 611; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913, Said Ahmed v. The Province of Sindh through Secretary, Home and 2 others 1991 MLD 8; Arif Khan v. The District Magistrate, Lahore 1993 MLD 2245 Muhammad Yasin v. District Magistrate, Kasur and another 1997 MLD 2211 and Kausar Ali alias Kausary v. Government of NWFP and others PLD 1999 Pesh. 82 ref.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

(b) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

---S. 3---Preventive detention---Criteria to be followed detailed.

Federation of Pakistan through Secretary, Ministry of Interior Islamabad. v. Mrs. Amtul Jalil Khawaja and others PLD 2003 SC 442 rel.

(c) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Scope---Grounds of detention must be precise and the detention order can be struck down if those are not precise.

Noor Mohammad v. District Magistrate Hyderabad Sindh and 2 others 1990 PCr.LJ 2052 rel.

(d) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3 & 5(5)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Preventive detention---Representation to the government---Alternate remedy---Scope---Mere availability of alternate remedy by way of representation to the government against detention order does not fetter constitutional jurisdiction of the High Court under Art. 199.

Abdul Latif Shamshad Ahmed v. District Magistrate, Kasur 1999 PCr.LJ 2014 rel.

(e) Constitution of Pakistan---

----Arts. 4, 9 & 10---Right of individuals to be dealt with in accordance with law---Security of person---Safeguards as to arrest and detention---Scope---Article 4 of the Constitution stipulates that every citizen, wherever he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law---No action detrimental to life, liberty, body, reputation or property can be taken except in accordance with law---Article 9 of the Constitution commands that no person shall be deprived of life or property save in accordance with law---Article 10 of the Constitution provides safeguards as to arrest and detention---Rights guaranteed under Arts. 4, 9 & 10 are sacrosanct and are required to be jealously guarded by the Courts.

Ismaeel v. The State 2010 SCMR 27 rel.

Ch. Naeem Rauf Dharewal for Petitioner.

P L D 2020 Lahore 478

Before Jawad Hassan, J

Brig. (R) MASOOD SALAM through Legal Heirs---Petitioners

Versus

SOHAIL AHMAD and others---Respondents

Writ Petition No. 11548 of 2015, decided on 4th March, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition against order of Revenue Authority---Maintainability---Constitutional petition was maintainable against any error on part of the Board of Revenue in understanding, applying or laying down the law.

Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others PLD 1991 SC 531 ref.

(b) Punjab Land Revenue Act (XVII of 1967) ---

-----Ss. 43(a) & 45---Record of rights/periodical record---Disputed entries, correction of---Such entries could only be corrected through a decree of the competent court and not by an official in the revenue hierarchy.

No disputed entry in a record-of-rights or periodical record could be altered, either on ground of mistake or a fraud, except on basis of obvious clerical error or patent facts, requiring no elaborate inquiry for their establishment, thus, the disputed entries having been incorporated in the Revenue Record could only be corrected through a decree of the competent court and not by the order of any of the official in the hierarchy of revenue authorities. Waris Khan v. Col. Humayun Shah PLD 1994 SC 336 and Nemat Ali v. Malik Habib Ullah 2004 SCMR 604 ref.

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

----Ss. 45 & 53---Specific Relief Act (I of 1877), Chapt. VI [Ss.42 & 43]---Revenue courts, jurisdiction of---Scope---Fraud---Mutation alleged to be outcome of fraud---Disputed questions of fact---Matter concerning revenue entries, which were allegedly the outcome of fraud could not be resolved by Revenue Courts---Where fraud was alleged, civil suit in terms of S.42 of the Specific Relief Act, 1877 read with S.9 of C.P.C. was to be filed and the Revenue Courts lacked jurisdiction---Disputed questions of fact and allegation of fraud regarding cancellation of mutation could not be decided by the Revenue Courts---In such-like cases, the parties ought to approach the Civil Courts.

Whenever complicated question of fact was involved, the exclusive jurisdiction vested in the Civil Court to decide the same Longstanding entries qua the allegation of fraud should be dealt by the Civil Court because Revenue Courts had no jurisdiction to interfere in such like matters. Mutation being summary proceedings Revenue authorities could not clinch such complicated matter in summary proceedings. At the time of attestation of mutation, no detailed evidence was recorded by the Revenue Officers and it was otherwise the function of the Civil Court to decide matters after framing of issues and recording of evidence of both the parties.

Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612; Muhammad Naeem v. Siraj- Ud-Din and 6 others 2015 CLC 1084; Hafiz Kalu and others v. Muhammad Bakhsh and others 2019 YLR 1523; Mst. Khurshid Bibi and others v. Liaqat Ali and others 2010 YLR 2729, Muhammad Nawaz and others v. Pir Bakhsh and others 1990 CLC 1968 and Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others 1994 MLD 2254 ref.

If a person considered himself aggrieved by any entry in records of rights or in a periodical record and he was of the view that such entries were the product of fraud, which were even longstanding, then his remedy laid in filing a civil suit as per mandate of S.53 of the Punjab Land Revenue Act, 1967.

Muhammad Munawar v. Abdul Razaq and 6 others 2018 CLC 1227 and Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 ref.

Where fraud was alleged, civil suit in terms of section 42 of the Specific Relief Act, 1877 read with section 9 of CPC was to be filed and the Revenue Courts lacked jurisdiction. Dispute with regard to entry in the record of rights or in periodical record had to be taken to the court of competent civil jurisdiction.

Disputed questions of fact and allegation of fraud regarding cancellation of mutation could not be decided by the Revenue Courts, including the Collector and the Member Judicial, (Provincial Board of Revenue) proceedings before whom were summary in nature, and in such-like cases, the parties ought to approach the Civil Courts

Mudassar Khalid Abbasi, Advocate Supreme Court, Ch. Abdul Ghani, Advocate Supreme Court, Ch. Khalid Masood Ghani and Mian Muhammad Ayub for Petitioners.

Aftab Hussain Malik for Respondents.

P L D 2020 Lahore 489

Before Tariq Saleem Sheikh, J NASIRA---Petitioner

Versus

JUDICIAL MAGISTRATE and 5 others---Respondents

Writ Petition No. 45156 of 2019, heard on 2nd August, 2019.

(a) Constitution of Pakistan---

----Art.20(a)---International Covenant on Civil and Political Rights (ICCPR), 1966, Art.18---"Religious conversion", meaning of---Religious conversion was adoption of a set of beliefs identified with one particular religious denomination to exclusion of others and said phrase described abandoning of adherence to one denomination and affiliating with another, which might be from one to another denomination within the same religion, for example, from Baptist to Catholic Christianity or from Shi'a to Sunni Islam, etc.

The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 and Stark, Rodney and Roger Finke, "Acts of Faith : Explaining the Human side of Religion" University of California Press, 2000 p.114 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Custody of minor---Domestic employment of minor under the age of fifteen---Forced religious conversion---Legal recognition of religious conversion, criteria---Nature of religious conversion / belief---Scope---Petitioner sought custody of minor daughter, who whilst under domestic employment of respondents, allegedly converted from Christianity to Islam and refused to see petitioner / mother---Petitioner impugned order of Judicial Magistrate whereby said minor daughter was lodged in a shelter home instead of being returned to petitioner on ground that such minor expressly stated that she had converted to Islam and did not want to go with her mother / petitioner---Validity---Minor lacked legal capacity to abjure her religion without consent of her parents or guardian---While petitioner / mother stated before Judicial Magistrate that she had no objection to minor's conversion to Islam however such statement could not be regarded as parental consent for change of religion as it was made in anxiety under a misguided belief that same would help her to get custody of her daughter---Contention that alleged forced religious conversion of minor be declared void was not tenable as concepts of valid, void and voidable could not be applied to religious rights and resulting personal law unless latter itself ordained the same, or was sanctioned by statutory law; and a person's religious belief was not tangible and could not be seen or touched---Change of religion did not, ipso facto, deprive a parent of right to custody of a child and petitioner being real mother of minor was entitled to custody and also to exercise control over minor---High Court observed that minor was not sui juris and lacked legal capacity to change religion on her own, however, since question of faith was a matter of heart and conviction, therefore no Court could declare said conversion invalid or void and could only refuse to recognize or give effect to it for certain legal purposes---High Court directed that minor be returned to petitioner who was entitled to custody---Constitutional petition was allowed, accordingly.

Meghan G. Fischer, Anti-Conversion Laws and the International Response, 6 PENN.ST.J.L. and INT.L AFF.1(2018). Available at:https://elibrary. law.psu.edu/jlia/vol6/iss1/5; CCPR/C/21/Rev.1/ Add.4, General Comment No.22; Suo Motu Case SMC No.1 of 2014 PLD 2014 SC 699; Rev. Stainislaus v. State of Madhya Pradesh and others AIR 1977 SC 908; Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others AIR 1995 SC 1531; Lily Thomas and others v. Union of India and others AIR 2000 SC 1650; Interim report of the Special Rapporteur on freedom of religion or belief, 15, U.N.Doc.A/67/303(Aug.13, 2012); Pakistan Hindu Council v. Pakistan through Ministry of Law PLD 2012 SC 679; Sahih Muslim, Book 33, Hadith No.6426; Tafseer Ibn Kathir; Encyclopedia of Islam, University of the Punjab; Chapter IV of his book on Muhammadan Law, Ameer Ali; Muhammad Sadiq v. (Mrs.) Sadiq Safoora PLD 1963 (WP) Lah. 534; Eyal Ginio, Childhood, mental capacity and conversion to Islam in the Ottoman State, Byzantine and Modern Greek Studies 25(2001) 90-119; Re: Maria Huberdina Hertogh, [1951] MLJ 164; Teoh Eng Huat v. Kadhi, Pasir Mas and Anor (1990) 2 MLJ 300; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Reade v. Krishna (1886) I.L.R. 9 Mad. 391; Mst. Rani v. Roshan Masih and another 1986 PCr.LJ 1404; Abdul Razack v. Aga Mahomed Jaffer Bindanim [(1894) L.R. 21 I.A. 56; verse No.10 of Surah Al-Mumtahana (Chapter 28); Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Re: Agar Ellis, (1878) 10 Ch.D.49; Reade v. Krishna ILR 9 Mad.391; Mrs. Grace Abdul Hadi Haqani v. Abdul Hadi Haqani and others PLD 1961 (W.P.) Kar. 296; Mst. Ghulam Fatima alias Shammi Bai v. Chanoomal and another PLD 1967 Kar. 569; Helen Skinner v. Sophia Evelina Orde [(1871) 14 MIA, 309; Peggy Collin v. Muhammad Ishfaque Malik PLD 2010 Lah. 48; Sheila Umesh Tahiliani v. Soli Phirozshaw Shroff and others AIR 1981 Bombay 175 and Lekshmi and another v. Vasantha Kumari AIR 2005 Ker. 249 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Question of religious conversion---Factual controversy---Scope---Conversion from one religion to another had far reaching legal consequences as it affected succession, marital status and right to seek elective office, etc.---Courts in certain cases, therefore, may be called upon to decide whether a conversion was bona fide, genuine, voluntary or otherwise and in such eventualities they gave findings on basis of evidence produced---Unless there existed statutory prescription about nature of proof required, subsequent conduct of a convert had immense importance and courts were to insist that declaration of conversion must be followed by adherence to cultural and spiritual tradition---High Court, under Art. 199 of the Constitution, could not undertake factual inquiry and thus question as to whether a conversion was tainted or otherwise could not be determined without recording evidence, therefore it could only be challenged through appropriate proceedings before a forum/court provided by Sub-Constitutional law.

Chapter II of the Principles of Muhammadan Law by D.F. Mullah; Moulabux v. Charuk and others PLD 1952 Sindh 54; Mst. Zarina and another v. The State PLD 1988 FSC 105; Punjabrao v. Dr. D. P. Meshram and others AIR 1965 SC 1179; Perumal Nadar v. Ponnuswami Nadar AIR 1971 SC 2352; S. Anbalagan v. B. Devarajan and others AIR 1984 SC 411; Skinner v. Skinner (1897) L.R. 25 I.A.34; Abdul Razack v. Aga Mahomed Jaffer Bindanim (1894) L.R. 21 I.A. 56; Kailash Sonkar v. Smt. Maya Devi AIR 1981 SC 600; Sapna Jacob, minor v. The State of Kerala and others AIR 1993 Kerala 75; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

(d) Interpretation of statutes---

----Intention of Parliament---Most settled principle of interpretation was that a court must deduce intention of the Parliament from the words used in an Act / Statute.

Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32 rel.

Malik Zeeshan Ahmad for Petitioner.

Malik Naveed Akram, Assistant Advocate General for Respondents

Shaukat Ali Mirza for Respondents Nos. 5 and 6.

Sheraz Zaka as Amicus curiae.

Muhammad Sher Abbas, Shafqat Abbas Mighiana, Muhammad Shafique and Fakhar Bashir Sial, (Lahore High Court Research Centre) Research Officers.

P L D 2020 Lahore 515

Before Mamoon Rashid Sheikh,C J

ALLAH RAKHA MEHMOOD MUGHAL alias A.R. MEHMOOD MUGHAL---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 13176 of 2020, decided on 4th March, 2020.

Constitution of Pakistan---

----Arts. 15, 16, 17 & 19---'Aurat March, Lahore 2020' ('the March') proposed to be held on International Women's Day---Plea of petitioner that participants of March should be permanently stopped and persons may be restrained from assembling, holding, participating, or carrying out the said March in any manner whatsoever for the sake of justice and dignity of Islamic Ideology of the country---Held, that matter of granting an 'NOC' to the organizers of the March was pending before the District Administration--- Petitioner had also moved an application against the grant of said 'NOC' before the Deputy Commissioner precisely on the same grounds as taken in the present Constitutional petition---As the matter was still pending before the District Administration, the High Court would not intervene in the matter---Constitutional petition was accordingly disposed of with the observation that the petitioner may pursue his application before the District Administration, and that such application shall be considered and decided strictly in accordance with the law and after affording an opportunity of hearing to all concerned---Order accordingly.

Muhammad Qasim Mughal for Petitioner.

P L D 2020 Lahore 518

Before Ch. Muhammad Iqbal, J

DUBAI ISLAMIC BANK PAKISTAN and others---Petitioners

Versus

Mst. SAIMA YASIN and others---Respondents

Civil Revision No. 55-D of 2020, decided on 16th January, 2020.

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

----S. 42---Constitution of Pakistan, Art. 24---Suit for declaration---Joint-Bank account---Death of one party to a joint Bank account--- Mandate / authority of "Either or Survivor"---Unilateral withdrawal of funds by one joint-account holder after death of second joint-account holder---Constitutional protection of property rights---Islamic Law of inheritance---Scope---Plaintiffs sought declaration to the effect that unilateral withdrawal of funds from joint-account, where deceased account-holder was predecessor in interest of the plaintiffs, was illegal as the plaintiffs were entitled to half of said funds as their inheritance---Contention of defendant Bank, inter alia, was that as per its SOP, (Standard Operating Procedure), a joint account, with mandate/ authority of "Either or Survivor" allowed defendant Bank to disburse funds in an account to surviving account-holder---Validity---Mere existence of printed stipulation in account opening agreement/form that a joint account bore characteristic of "Either and Survivor" giving authority to the Bank to disburse available amount to survivor joint account holder, had no sanctity in eyes of law and it was mandatory for Bank to prove said nature of an account---Joint-account holder was debarred to withdraw any amount from such account after death of other joint-account holder without adopting due process of law---With death of an account holder of joint-account, any authorization given by a deceased stood automatically revoked and even a validly authorized person was denuded of such power after death of the principal as all assets of deceased by operation of law stood vested in ownership of legal heirs---Bank or joint account-holder were not empowered to unilaterally operate said account or withdraw any amount until and unless as per law a declaration of the rendition of account was obtained, or succession certificate, letter of administration or probate was issued---Such modus operandi visualized in mandate of "Either or Survivor" account was against fundamental principles of law of power of attorney as well as Islamic Law of inheritance and against Art. 24 of the Constitution---High Court observed that SOP of "Either or Survivor" allowing unilateral withdrawal of the amount of deceased was ultra vires the applicable laws---Suit was rightly decreed by courts below---Revision was dismissed, in circumstances.

(b) Islamic law---

----Inheritance---After death of a Muslim, all moveable or immovable assets/ legacy left by deceased automatically devolved upon legal heirs by operation of law and rest of the proceedings were mere formalities.

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

----S. 115---Revision---Concurrent findings of fact---Concurrent findings of facts did not call for interference by a Court in exercise of jurisdiction of revision under S. 115, C.P.C.

Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

P L D 2020 Lahore 523

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

REHAN RASHEED---Petitioner

Versus

SUPERINTENDENT NEW CENTRAL JAIL, BAHAWALPUR---Respondents

Criminal Miscellaneous No. 3173-M of 2019/BWP, decided on 21st January, 2020.

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

---Ss. 35 & 397---Sentence in case of conviction of several offences at one trial---Sentence on an offender already sentenced for another offence---Concurrent running of sentences---Scope--- Petitioner contended that sentences handed to him in two FIRs (one of them being the offshoot of the other) be ordered to run concurrently---Sessions Judge, at the time of decision of appeal, had not noticed that the petitioner was already serving sentence---Courts generally took generous view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances did not permit so, liberally exercised enabling power under Ss.35 & 397, Cr.P.C., respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial--- No exceptional circumstances, held, existed to reject prayer of the petitioner---Petition was allowed.

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

----S. 397---Sentence on an offender already sentenced for another offence---Scope---Courts ordinarily order concurrent running of sentences recorded against a convict in different cases tried by different courts irrespective of the fact whether such conviction has been maintained, enhanced or modified by the Appellate and/or Revisional Court.

Mst. Shahista Bibi and another v. Superintendent Centred Jail Mach and 2 others PLD 2015 SC 15 and Rahib Ali v. The State 2018 SCMR 418 ref.

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

----S. 397---Sentence on an offender already sentenced for another offence---Scope---Where a person undergoing a sentence of imprisonment is subsequently convicted and sentenced in another trial, his subsequent sentence would commence at the expiration of his previous sentence, however, Trial Court seized of the subsequent trial and appellate/revisional court in the appeal/revision arising therefrom is competent to direct that the subsequent sentence would run concurrently with the previous one.

Mst. Zubaida v. Falak Sher and others 2007 SCMR 548; Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 and Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 ref.

Rahib Ali v. State 2018 SCMR 418 rel.

Syed Zeeshan Haider for Petitioner.

P L D 2020 Lahore 528

Before Mamoon Rashid Sheikh,C. J.

MUNIR AHMAD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 2816 of 2020, decided on 3rd March, 2020.

Constitution of Pakistan---

----Arts. 15, 16, 17 & 19---'Aurat March, Lahore 2020' ('the March') proposed to be held on International Women's Day---Apprehension of petitioner that participants of March could carry placards or deliver speeches that were obscene, immoral, against the teachings of Islam or came within the ambit of hate speech---Held, that rights conferred upon the citizens of the country under Arts. 15, 16, 17 & 19 of the Constitution were subject to any reasonable restrictions imposed by law---High Court directed the District Administration to process and decide the application of the organizers of the March for issuance of an NOC for holding the March, at an early date, strictly in accordance with the law, whilst bearing in mind the guidelines set down by the organizers of the March as well as the freedoms guaranteed to the citizens under Arts. 15, 16, 17 & 19 of the Constitution---Order accordingly.

Mohammad Azhar Siddique, assisted by Mian Shabir Asmail, Jamil Asif and Mian Ali Asghar for Petitioner/Applicant (in C.M.No.9 of 2020).

Usman Arif, Deputy Attorney-General, Asif Mehmood Cheema, Addl. Advocate-General.

Hashim Javed for Respondent No.7-PTA.

Ahsan Masood for Respondent No.8-PEMRA.

Hamid Rafiq, Law Officer for Respondent No.10-NADRA.

Usama Khawar Ghumman assisted by Ramis Sohail and Rahman Aziz, Advocates for Applicant (in C.M.No.5 of 2020).

Mohammad Saqib Jillani assisted by Ms. Nighat Daad for Applicant (in C.M.No.8 of 2020).

Rai Babar, DIG (Operation), Lahore.

Bilal Zafar, SP Security, Lahore.

Abdur Rub, Director FIA, Cyber Crime, Lahore.

P L D 2020 Lahore 534

Before Tariq Saleem Sheikh, J

MUHAMMAD SULEMAN---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 409 of 2020, decided on 31st January, 2020.

(a) Constitution of Pakistan---

----Art. 199---Public interest litigation---Social and economic rights of underprivileged segments of society---Definition and scope of public interest in foreign jurisdictions including United States of America, United Kingdom, Malaysia and India stated.

Russel v. Wheeler, [439 P.2d 43 (Colo. 1968); S.P. Gupta v. President of India and others AIR 1982 SC 149; Jacob, Safeguarding the Public Interest: New Institutions and Procedures", in Cooper and Dhavan (Eds.) Public Interest Law, (1985), p.54; L. C. Golak Nath and others v. State of Punjab and another AIR 1967 SC 1643; His Holiness Kesavananda Bharati Sripadgalvaru and others v. State of Kerala and another (1973) 4 SCC 225; Bihar Legal Support Society, through its President, v. Chief Justice of India and another (1986) 4 SCC 767; M.C. Mehta and another v. Union of India and others AIR 1987 SC 1086; Kishen Pattnayak and another v. State of Orissa AIR 1989 SC 677; Bangalore Medical Trust v. B. S. Mudappa and others AIR 1991 SC 1902; Supreme Court Legal Aid Committee through its Hony. Secretary v. State of Bihar and others (1991) 3 SCC 482 and Muhammad Bin Ismail v. Tan Sri Haji Othman Saat 1982-2 MLJ 133 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199 & Chap.1, Part II [Arts.8 to 28]---Public interest litigation---Scope and purpose---Articles 184(3) & 199 of the Constitution gave wide powers to the superior courts to enforce fundamental rights, ensure compliance with the rule of law and provide access to justice to all citizens---Raison d'etre of public interest litigation was to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice, to a particular individual, class or community, who on account of any personal deficiency or economic or social deprivation or State oppression were prevented from bringing a claim before the court of law.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236; 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; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Province of Sindh and others v. Lal Khan Chandio and others 2016 SCMR 48 and Mian Shabir Asmail v. Chief Minister of Punjab and others PLD 2017 Lah. 597 ref.

(c) Punjab Bonded Labour System (Abolition) Act (III of 1992)---

---Ss. 2(b), 2(c), 2(d), 2(e) & 4---Constitution of Pakistan, Arts. 11, 17 & 18---Bonded labour---Meaning and scope.

Bonded labour was one of the severest forms of human rights abuse in which the powerful became vicious masters and the weak turned into captive toilers. When a person becomes an oppressed menial worker in exchange for repayment of a loan, he or she becomes a bonded labourer and the lender becomes his/ her owner. Often the debts were even passed on to the next generations leading to children being involved in this bondage. The terms of this unwritten, interlinked labour-creditor contract were heavily biased in favour of the lender. As a result, the bonded labourers were forced to forfeit their basic human rights, including the right to employment, to live freely, to exercise the freedom of association and even the right to sell the product of their labour at market value. The workers and their families were additionally subjected to physical and mental abuse.

http://library.fes.de/pdf-files/bueros/pakistan/10382.pdf. ref.

(d) Punjab Restriction of Employment of Children Act (L of 2016)---

----S. 3---Child labour---Adverse consequences---Child labour was condemned because it deprived children of their childhood, potential and dignity and was harmful for their physical and mental development---Child labour reinforced intergenerational cycles of poverty, undermined national economics and impeded progress towards sustainable development goals.

https://www.unicef.org/protection/57929 child labour.html ref.

(e) Punjab Bonded Labour System (Abolition) Act (III of 1992)---

---S. 4---Punjab Prohibition of Child Labour at Brick Kilns Act (XXXVII of 2016), S. 5---Punjab Restriction of Employment of Children Act (L of 2016), S.3---'Slavery'---'Forced and child labour'---International instruments regarding slavery and forced and child labour to which the State of Pakistan was a signatory, stated.

(f) Punjab Bonded Labour System (Abolition) Act (III of 1992)---

----S. 4---Punjab Prohibition of Child Labour at Brick Kilns Act (XXXVII of 2016), S. 5---Punjab Restriction of Employment of Children Act (L of 2016), S. 3---Factories Act (XXV of 1934), S. 50---Forced labour---Bonded labour---Child labour---High Court issued writ of mandamus to the concerned authorities and functionaries and directed that they shall faithfully discharge their duties and perform their functions for implementing all the relevant laws in letter and spirit for eradication of forced, bonded and child labour from all sectors of the economy, including (but not limited to) agriculture, brick kilns, mining, tanneries, carpet weaving, glass-bangle making, construction and fisheries---High Court gave further necessary directions and without disposing of the Constitutional petition directed office to fix present case before any available Bench on 22-09-2020.

(g) Constitution of Pakistan---

---Art. 199---Continuous mandamus, doctrine of---Concept stated.

Continuing mandamus, which was also referred to as structural interdict or structural injunction, consisted of a series of orders issued by a court of law over a period of time directing an authority to perform its statutory functions or duties. The court did not dispose of the case but kept it pending so that it could supervise the performance of the duty and execution of the mandate. This happened in a situation which could not be remedied instantaneously and required a solution over a long period of time - some times even years.

Doucet-Boudreau v. Nova Scotia (Minster of Education) (2003) 3. S.C.R. 3, (2003 SCC 62; Metro Manila Development Authority v. Concerned Residents of Manila Bay 574 SCRA 661 (2008); Shreemanshu Kumar Dash, Writ of Continuing Mandamus in matters of PILs: A Step towards Development of Environmental Jurisprudence: IOSR Journal of Humanities and Social Science (IOSR-JHSS), Volume 22, Issue 8, Ver. 9 (August. 2017) PP 26-35 available at www.iosrjournals.org http://www.iosrjournals.org; Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161; Sheela Barse v. Union of India 1986 SCALE (2) 230; Vineet Narain and others v. Union of India and another AIR 1998 SC 889; M.C. Mehta v. Union of India (2008) 1 SCC 407; Swaraj Abhiyan (IV) v. Union of India AIR 2016 SC 2953; Manushi Sangthan Delhi v. Government of Delhi (Delhi) 2010 (168) DLT 168; Mahendra Lodha v. State of Rajasthan RLW 2007(2) Raj. 1428; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265; Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan PLD 2017 SC 692; Asghar Leghari v. Federation of Pakistan and others PLD 2018 Lah. 364 Mall Road Traders Association v. The Deputy Commissioner, Lahore 2019 CLC 744 and Sheikh Asim Farooq v. Federation of Pakistan PLD 2019 Lah. 664 ref.

Doctrine of continuous mandamus formed part of jurisprudence of courts in Pakistan.

Malik Ayaz Mahmood Jarh for Petitioner.

Yousaf Ijaz Mohsin for Respondent No.2.

Nemo for Respondent No.3.

Malik Shahnawaz Kalyar, Assistant Advocate General,·Rana Muhammad Ismail, Litigation Officer (Education Department), Bahawalpur, Muneeb-ur-Rehman, Additional Secretary (Labour), Rabnawaz Zahid, Director (Law), Labour Department, Lahore, ·Shozab Saeed, Deputy Commissioner, Bahawalpur, Muhammad Sohaib Ashraf, DPO, Bahawalpur, Malik Muhammad Farooq, Director Labour Welfare, Bahawalpur, Shahid Iqbal, DSP (Legal) Bahawalpur, Noshaba Malik,District Officer, Child Protection and Welfare Bureau, Bahawalpur, Yasir Pasha, Deputy Director, Social Security, Bahawalpur,·Junera Sadaf, Social Welfare Officer (Bonded Labour), Bahawalpur, Irshad Haider, IO/SHO and Umer Hayat, SI, Police Station, Noshehra Jadeed for Respondents Nos. 4 to 15.

Ch. Riaz Ahmad for Respondent No.16.

P L D 2020 Lahore 565

Before Jawad Hassan, J

Messrs BIO-LABS PRIVATE LTD.---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.426 of 2020, decided on 9th March, 2020.

(a) Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----Preamble---Punjab Procurement Rules, 2014, R. 4---Procurement law regime---Concept, philosophy and legal anthropology of procurement law regime stated.

Historically people and businesses have always had to purchase goods, material and labour to complete projects. Concept of procurement had always been in existence but mostly developed due to the strict requirements of the international financial institutions and international donor agencies. Most international financial institutions required a transparent, competitive bidding process as a condition of financing for major infrastructure projects.

Formalized acquisition of goods and services had its roots in Military logistics, where the ancient practice of foraging and looting was taken up by professional quarter masters, a term which dates from the 17th Century.

Procurement was primarily the process of finding and agreeing to terms, and acquiring goods, services, or works from an external source, often via a tendering or competitive bidding process. However, the procurement was used to ensure the buyer received goods, services, or works at the best possible price when aspects such as quality, quantity, time, and location were compared. The corporations and the public bodies often defined processes intended to promote fair and open competition for their business while minimizing risks such as exposure to fraud and collusion. Hence, the bidding was the most important element of procurement. It was an offer (often competitive) to set a price tag by an individual or business for a product or service or a demand that something be done. Moreover, the bidding was used to determine the cost or value of something which could be performed by a person under influence of a product or service based on the context of the situation.

Book by Charles Babbage in 1832 titled 'On the Economy of Machinery and Manufactures' ref.

Government or public procurement was the formal process through which official government agencies obtained the necessary goods, services and work to carry out government activities. Every Government across the globe needed some material, equipment and services (including consultancy services) to perform its activities. The acquisition of these materials, equipment and services warranted that the whole activity should be undertaken in the most transparent, economical and efficient manner that resulted in best value to the government and the people. Transparency and accountability in a public procurement system essentially covered important aspects of the procurement system that included stakeholders as part of the system. It required an enabling environment, an institutional framework, management capacity and a legislative framework.

(b) Public Procurement Regulatory Authority Ordinance (XXII of 2002) ---

----Preamble---Punjab Procurement Regulatory Authority Act (VIII of 2009)---Preamble---Punjab Procurement Regulatory Authority Ordinance (XIX of 2007) [since repealed], Preamble---Punjab Procurement Rules, 2014, R. 3---Punjab Procurement Rules, 2009 [since repealed], R. 3---History of 'procurement law regime' in Pakistan and Province of Punjab stated.

(c) Punjab Procurement Rules, 2014---

----Rr. 2(1)(f) & 2(1)(g)---"Bidder"---Definition---Term "bidder" was not defined in Punjab Procurement Rules, 2014---Definitions of the term 'bidder' provided in various dictionaries stated.

Words and Phrases, Volume 5A by Thomson West p.42; The Major Law Lexicon 4th Edn. P.768; Black's Law Dictionary 10th Edn.; Cambridge Dictionary; Business Dictionary; Collins Dictionary and Oxford Learner Dictionary ref.

(d) Punjab Procurement Rules, 2014 ---

----R. 2(1)(n)---Contract---Scope---Letter of intent---Vested right---Mere intent to award the contract (to a successful bidder) did not constitute a concluded contract---Intent to award the contract did not create the vested right to claim a concluded contract.

City Schools (Pvt) Ltd. Lahore Cantt. v. Privatization Commission, Government of Pakistan and another 2002 CLD 1158 ref.

(e) Punjab Procurement Rules, 2014---

----Rr. 2(1)(n), 63(a) & 63(b)---Commencement of procurement contract---Scope---Framework contract---Mere letter of intent and not an offer---Whether there was a valid contract between procuring agency and petitioner-bidder---Bid submitted by the petitioner-company was evaluated by the Technical Evaluation Committee constituted by the procuring agency which informed the petitioner-company about its being responsive for the quoted items and resultantly the petitioner-company was awarded framework contract for the supply of items along with certain terms and conditions mentioned therein---Clause 27 of the alleged award of contract provided that after acceptance of bid and award of framework contact, firstly the petitionercompany was bound to give an agreement on judicial paper for the acceptance of terms and conditions of tender inquiry and, secondly, it was bound to do it for the contract---Neither the petitioner-company attached any document with regard to acceptance of terms and conditions nor an agreement on judicial paper for acceptance of term and conditions was submitted---Clause 27 also found mention in Terms and Conditions of Bidding Document, whereby petitioner-company had to submit an agreement for the purpose of accepting terms and conditions prior to issuance of supply orders meaning thereby that alleged award of framework contract was just an offer to accept or not the terms and conditions mentioned therein which lead toward execution of a contract---Alleged award of framework contract was a mere letter of intent and could not be said to be a valid concluded contract---Constitutional petition was dismissed.

(f) Punjab Procurement Rules, 2014---

----Rr. 37, 38(2)(a)(vi), 55 & 63---Procedure for selection of contractors---Acceptance of bid---Scope---Approval of technical proposal---Not to be equated with acceptance of bid---Rule 38(2)(a)(vi) of the Punjab Procurement Rules, 2014 ('the 2014 Rules') indicated that upon approval of technical proposals the financial proposals were publicly opened at the appointed time---Approval of technical proposal had been equated there with acceptance of technical bid, but that could not be construed as acceptance of bid for all the future purposes creating inalienable right in favour of technically successful bidder---Rule 55 of the Punjab Procurement Rules, 2014 had a very clear concept of what the acceptance of bid meant---Bid was accepted only when, in addition to being the lowermost financially, it was not in conflict with any other law, rules, regulation or policy of the Federal Government, and it culminated into a procurement contract in terms of Rr. 55 & 63 of the said Rules---Declaration at the time when financial proposals were opened that a particular party was a lowest bidder would not mean that its bid stood accepted---Procedure in terms of Rr.37 & 55 of the Punjab Procurement Rules, 2014 had to be followed before a bid could be declared to have resulted into contract.

Messrs Pakistan Gas Port Ltd. v. Messrs Sui Southern Gas Co. Ltd. and 2 others PLD 2016 Sindh 207; Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. through Managing Director, Islamabad 2010 SCMR 306 and Messrs Bagh Construction Company v. Federation of Pakistan and others 2001 YLR 2791 ref.

(g) Vested right---

----Scope---Vested right was free from contingencies, but not in the sense that it was exercisable anywhere and at any moment---Vested right could mean no more than those rights which under particular circumstances would be protected from legislative interference (unless it was clearly intended)---As vested right was a right which vested upon equities, it had reasonable limits and restrictions.

Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533 ref.

Mahmood Ashraf Khan, Advocate Supreme Court, Rana Ali Imran and Khalid Ashraf Khan, Advocate Supreme Court for Petitioner.

Tariq Nadeem and Azhar Saleem Kamlana Assistant Advocate General

Haji Muhammad Aslam, Legal Advisor for Respondents Nos. 3 to 10 with Ms. Tanzeela Huma, Junior Law Officer.

Syed Muhammad Ghazanfar for Respondent No.11.

P L D 2020 Lahore 599

Before Tariq Saleem Sheikh, J

PUNJAB FOOD AUTHORITY---Petitioner

Versus

AMANAT ALI and others---Respondents

Writ Petitiion No.152 of 2019, decided on 7th May, 2020.

(a) Interpretation of statutes---

----Exclusionary clauses---Construction---Jurisdiction must be excluded by clear and definite words and not by implication.

Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another PLD 2015 SC 348; Halsbury's Laws of England (4th Edn.); Oil and Gas Development Co. Ltd. v. The Sacked Employees Reviw Board and others 2016 PLC (C.S.) 1318; Sheo Nandan Prasad Singh v. Emperor AIR 1918 Patna 103; Banwari Gope and others v. Emperor AIR (30) 1943 Patna 18; Emperor v. Benoari Lal Sarma AIR 1945 PC 48; Gopal Marwari and others Emperor AIR (30) 1943 Patna 245; Hari Meah v. The State PLD 1958 Dacca 333; Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273; Abdul Hafeez v. The State PLD 1981 SC 352; Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853; Muhammad Jawad Hamid v. Mian Muhammad Nawaz Sharif and others PLD 2018 Lah. 836; Aziz Ahmad v. Syed Irshad Hussain Shah and 18 others 2019 YLR 355; Syed Saleem Shah v. The State and 5 others PLD 2019 Lah. 435 and Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 rel.

(b) Punjab Food Authority Act (XVI of 2011)---

----Ss. 45A & 40---Criminal Procedure Code (V of 1898) Ss.435 & 439-A---Special Court under Punjab Food Authority Act, 2011---Power of Sessions Judge or High Court to call for records of inferior Courts---Sessions Judge's powers of revision---Nature of proceedings of Special Court under Punjab Food Authority Act, 2011---Ouster of jurisdiction of revision or appeal of Sessions Judge upon proceedings under Special Court constituted by Punjab Food Authority Act, 2011---Scope---Question before High Court was whether proceedings under Special Court constituted by Punjab Food Authority Act,2011 were susceptible to revisional jurisdiction of Sessions Judge under S.435 read with S.439-A Cr.P.C.---Held, that Special Court constituted under Punjab Food Authority Act, 2011 was essentially a Magisterial Court and per S.43, ordinarily conducted summary trial of offences punishable under said Act---Section 45A(1) of Punjab Food Authority Act, 2011 made said Special Court subject to appellate jurisdiction of High Court and it was therefore inferior to High Court within contemplation of S.435 Cr.P.C. and thus amenable to High Court's revisional jurisdiction---Special Court however was not subject to appellate authority of Sessions Judge and was therefore neither judicially inferior to Sessions Judge nor under supervisory control of Sessions Judge---High Court observed that it would be anomalous to hold that Sessions Judge had no appellate powers but could still exercise revisional jurisdiction---High Court held that Sessions Judge did not have jurisdiction to exercise revisional jurisdiction upon proceedings of Special Court constituted under Punjab Food Authority Act, 2011---Constitutional petition was allowed, accordingly.

The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi PLD 2013 SC 361 distinguished.

Abdul Hafeez v. The State PLD 1981 SC 352; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Mian Khalid Rauf v. Chaudhry Muhammad Saleem and another PLD 2015 SC 348 and Syed Saleem Shah v. The State and 5 others PLD 2019 Lah. 435 ref.

Het Ram v. Collector of Aligarh AIR 1941 All. 355; Hari Meah v. The State PLD 1958 Dacca 333; The Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Fazlur Rahman and others PLD 1960 Dacca 200; Hussain Bakhsh v. Settlement Commisisoner, Rawalpindi and others PLD 1970 SC 1; I.C.I. Pakistan Limited v. Salahuddin and others 1991 SCMR 151; Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853; Faiz Muhammad v. Merab Shah and others PLD 1997 Pesh. 166; Syed Masroor Shah and others v. The State PLD 2005 SC 173; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 19889 SC 26; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad, and others PLD 2001 SC 607; Malik Muhammad Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bahawalpur and others PLD 2005 Lah. 251 and Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221 rel.

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

----S. 435---Interpretation of S.435 Cr.P.C.---Meaning, scope and connotation of expression "inferior courts"---Court was inferior to another when it was placed under supervisory or appellate control of such other court---Superiority could be shown by giving Constitutional court controlling authority over Legislative court, for example by appeal or revision---While superior court was a court that may hear appeals from a result reached by a court of original jurisdiction, inferior courts were those courts whose judgments and decrees may be reviewed by an appellate tribunal---Inferior court meant "judicially inferior" and was a court whose orders were subject to appeal to another independent and separate court, and was in such particular sense, inferior to the appellate court.

The Major Law Lexicon 4th Edn., p.3384; Words and Phrases (Permanent Edn. 21A-112); American Jurisprudence (Edn. 2005, Vol 20 and 12; Nobin Krishto Hookerjee v. Russick Lall ILR 10 Cal. 268 and Krishnaji Vithal Kangutkar v. Emperor AIR (36) 1949 Bombay 29 rel.

Noshair Khan, assisted by Imran Hussain Hiraj for Petitioner.

Rao Nasir Mehmood Khan for Respondent No.1.

Malik Shah Nawaz Kalyar, Assistant Advocate-General for Respondents.

P L D 2020 Lahore 622

Before Mamoon Rashid Sheikh, C.J.

MUHAMMAD IDREES---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.5717 of 2020, decided on 6th March, 2020.

Pakistan Prison Rules, 1978---

----Rr. 92, 543 & 545---Memo No. Legal/2020/18307-56, dated 5.3.2020---United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandala Rules), R.61(1)---Signing of power of attorney by prisoner---Discretion of Jail Superintendent, exercise of---Scope---Policy/Standard Operating Procedure (SOP)---Petitioner was aggrieved of refusal to get signed power of attorney (Vakalatnama) by Jail Authorities from a convict prisoner whose mercy petition had also been refused by the President---Validity---Power for exercise of discretion, under Rr.543 & 545 of Prison Rules, 1978, were conferred upon Jail Superintendent but exercise of discretion was neither to be arbitrary, nor whimsical or fanciful---Exercise of such discretion should be strictly in accordance with law---High Court directed Jail Superintendent concerned to follow law in letter and spirit while exercising clause "R" of the Policy/SOP prepared for the subject---Constitutional petition was disposed of accordingly.

Ms. Sarah Belal for Petitioner.

Asif Mehmood Cheema, Additional Advocate-General.

P L D 2020 Lahore 629

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

MUHAMMAD SHAKEEL and others---Appellants

Versus

GOVERNMENT OF PUNJAB through Home Secretary, Lahore and 3 others---Respondents

Criminal Appeals Nos.9249, 9248, 38981 of 2019, 249929 of 2018, 50221, 25426, 62906 of 2019 and 9637 of 2017 decided on 11th November, 2019.

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

----S. 11-EE---Proscription of person---Administrative order---Scope---Question before High Court was whether, in appeals filed under S.11-EE(3-A) of Anti-Terrorism Act, 1997, the Prosecutor Department had to assist the court or it was a matter wherein the Advocate-General Office was required to render assistance---Held, Anti-Terrorism Act, 1997 was primarily linked with criminal law, repercussions flowing therefrom were penal and right of appeal also laid before the judicial forum---Where the order was passed in administrative capacity against which right of appeal was provided before the High Court, in such like matters, Advocate-General Office represented the State---Order passed under S.11-E(3) of Anti-Terrorism Act, 1997 was administrative in nature, hence, Advocate General Office was required to assist the court.

Khizer Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470 rel.

Fida Hussain Rana for Appellants (in Crl. As. Nos.9249 & 9248 of 2019).

Muhammad Arshad Bhatti for Appellant (in Cr1. A. No.38981/2019).

Rai Bashir Ahmad for Appellant (in Cr1. A. No.249929 of 2018).

Muhammad Waseem Rana for Appellant (in Crl. A. No.50221/2019).

Rana Baleegh-ur-Rehman for Appellant (in Cr1. A. No.25426/2019).

Mudassar Naveed Chattha for Appellant (in Crl. A. No.62906 of 2019).

Ch. Umar Hayat Sindhu for Petitioner (in Writ Petition No.9637/2017).

Rana Muhammad Arif Kamal Noon, Prosecutor General, Muhammad Moin Ali and Muhammad Nawaz Sial, Deputy Prosecutor Generals.

P L D 2020 Lahore 632

Before Jawad Hassan, J

RELIANCE COMMODITIES (PRIVATE) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.1014 of 2018, decided on 17th March, 2020.

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

----Ss. 4B, 122(5A), 122(9) & 137(1) & Chaps. X & XI---Super tax for rehabilitation of temporarily displaced persons---Scope---Charge/levy of super tax under S.4B of the Income Tax Ordinance, 2001 appeared to be an independent provision---However, subsections (3), (4) & (5) of S.4B needed to be read in consonance with each other along with the other provisions of the Ordinance as specified in those sections---Provisions of the Income Tax Ordinance, 2001 ('the Ordinance') mentioned in S.4B of the Ordinance were applicable while interpreting said section i.e. S. 4B---Section 4B of the Ordinance did not preclude the scope of Ss.122(5A) & 122(9) of the Ordinance as express reference had been made to them in S. 4B.

Following the principles of interpretation, said provisions had to be read in consonance with each other.

Legislature had envisaged application of provisions of assessment and recovery as contained in Chapter X of the Income Tax Ordinance, 2001, ('the Ordinance') i.e. inter alia Sections 120 and 122 of the Ordinance to Section 4B by employing the term "all" in Section 4B subsection (3). Further Section 4B also found specific reference to Section 137(1) of the Ordinance with regard to payment, collection and deposit. Similarly subsection (5) of Section 4B imported the provisions of Part IV, X, XI and XII of Chap. X and Part 1 of Chap.XI with regard to recovery of super tax and found mention of the following words, "so far as may be, apply to the collection of super tax as these apply to the collection of tax under the Ordinance". Thus, section 4B encapsulated and made direct reference to provisions of the Ordinance suggesting their applicability while interpreting section 4B of the Ordinance.

Maple Leaf Cement Factory v. Additional Commissioner Inland Revenue and others Writ Petition No.10477 of 2017 not agreed with.

Section 4B of the Ordinance did not preclude the scope of sections 122(5A) and 122(9) of the Ordinance as express reference had been made to them in section 4B. Following the principles of interpretation, they had to be read in consonance with each other. Hence the Commissioner (Inland Revenue) could very well invoke and utilize the provisions of section 4B read with sections 122(5A) and 122(9) of the Ordinance.

Super tax, by its very nature, related to an additional duty of income tax and such charge had been recognized to exist independent of income tax. Hence, in so far as the charge/levy of super tax was concerned, section 4B appeared to be an independent provision. However, its subsections (3), (4) and (5) needed to be read in consonance with each other along with the other provisions of the Ordinance as specified in those sections.

Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance 1992 SCMR 891; D.G. Khan Cement Company Limited v. Federal Board of Revenue and others 2018 PTD 287 and D.G. Khan Cement v. Federation of Pakistan and others 2020 LHC 1066 ref.

(b) Interpretation of statutes---

----Self-executory provision---Scope---Provision in a statute could not be taken to be self-executing if framing of Rules was directed in the said provision.

Nestle Pakistan Ltd. and others v. Federal Board of Revenue and others 2017 PTD 686 ref.

(c) Interpretation of statutes---

----Fiscal statute---Survey of case law providing principles of construction and rules of interpretation of fiscal statutes.

Partnership Concern v. The Deputy Collector Central Excise and Sales Tax, Lahore and 3 others PLD 1989 Lah. 337; Messrs Multan Electric Power Co. Limited (MEPCO) through Chief Executive v. Commissioner, Inland Revenue (WHT), Regional Tax Officer, Multan and another 2016 PTD 2567; Pakistan Tobacco Company Ltd. v. Federation of Pakistan and others 2016 PTD 596; Allied Motors Ltd. through Manager Finance v. Commissioner of Income Tax and another 2004 PTD 1173; Commissioner of Income Tax v. Messsrs Kamran Model Factory 2002 PTD 14; Mustafa Prestressed R.C.C. Pipe Works Ltd. Karachi v. Commissioner of Sales Tax Karachi 1990 PTD 974; Hirjana and Co. (Pak) Ltd. Karachi v. Commissioner of Sales Tax, Central Karachi 1971 PTD 200; CIT v. Nagina Talkies (Property) Karachi PLD 1974 Kar. 6 and Commissioner of Income Tax, East Pakistan Dacca v. Messrs Hoosen Kasam Dada Karachi 1960 PTD 574 ref.

(d) Interpretation of statutes---

----Fiscal/taxing statute---Harmonious construction of provisions---Provisions in a taxing statute must be harmoniously reconciled instead of picking out any inconsistency between the different provisions---All provisions of a statute had to be read together and harmonious construction was to be placed on such provisions so that no provision was rendered nugatory.

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

----Ss. 4B, 122(5A), 122(9) & 210---Super tax for rehabilitation of temporarily displaced persons---Delegation of power by Commissioner Inland Revenue to Additional Commissioner Inland Revenue---Power to assess and determine liability for the purposes of super tax under S.4B of the Income Tax Ordinance, 2001 ('the Ordinance), which vested exclusively with the Commissioner Inland Revenue, could be delegated to the Additional Commissioner Inland Revenue for invoking the machinery provisions i.e. S.122(5A) read with S.122(9) of the Ordinance---Conditions for valid delegation of such powers in terms of S.210(1) of the Ordinance stated.

In terms of section 210 of the Income Tax Ordinance, 2001 ('the Ordinance), the Commissioner (Inland Revenue) could delegate his powers and functions. Further section 210 (1A) revealed that the power in terms of section 122(5A) regarding amendment of assessment could not be delegated below the rank of the Additional Commissioner.

Pak Telecom Mobile Ltd. and others v. Federal Board of Revenue through its Chairman, Islamabad and others 2013 PTD 2151 and Messrs Ocean Pakistan Ltd. v. Federal Board of Revenue, Islamabad and others 2012 PTD 1374 ref.

Section 210 of the Ordinance applied to section 4B of the Ordinance as well. In other words, all those sections in the Ordinance which dealt with the powers and responsibilities of the Commissioner, the said powers could very well be delegated by the Commissioner as per the mandate of Section 210 of the Ordinance. Section 4B was indeed part of the Ordinance being one of the sections so the applicability of section 210 to section 4B of the Ordinance could not be excluded.

Pak Telecom Mobile Ltd. and others v. Federal Board of Revenue through its Chairman, Islamabad and others 2013 PTD 2151 ref.

For constituting a valid delegation of powers under section 210(1) of the Ordinance, the following conditions must be satisfied:

(i) The delegation must be in writing;

(ii) The delegation order must specify precisely the powers and functions of the Commissioner Inland Revenue that have been delegated to the delegate; and

(iii) The delegation order must specify the persons in respect to whom the powers and functions of the Commissioner Inland Revenue have been delegated.

Jahangir Khan Tareen v. Federation of Pakistan and others W.P. No.27535 of 2016 ref.

(f) Constitution of Pakistan---

----Art. 199---Show cause notice---Constitutional petition filed against a show cause notice---Maintainability---Mere show cause notice was not an "adverse order"---However, the High Court in exercise of its constitutional jurisdiction could take up writs to challenge a show cause notice if it was found that the show cause notice was totally non est i.e. suffered from want of jurisdiction of the issuing authority or had been issued malafidely i.e. merely to harass the subject---Issuance of a show cause notice was in itself a complete act and decision which could be subject to judicial review if inter alia, the show cause notice was not lawfully issued by the competent authority, or, if the issuance of the show cause notice was ultra vires the relevant law and/or if issuance of the show cause notice was without jurisdiction or with mala fide.

Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary 2011 PTD 2260; Messrs Siemens Aktiengesellschaft ("Siemens AG") through Authorized Person v. Pakistan through Secretary Revenue Division and 3 others 2016 PTD 1158; Dr. Seema Irfan and others v. Federation of Pakistan PLD 2019 Sindh 519; Khalid Mahmood Ch. v. Government of Punjab 2002 SCMR 805; Karachi Bulk Storage and Terminals (Pvt. Ltd. v. Collector of Central Excise and Land Customs 2011 PTD 2103; Union of India (UOI) and others v. Vicco Laboratories (2007) 13 SCC 270; SBQ Steels Limited v. The Commissioner of Customs, Central Excise and Service Tax, Guntur Commissionerate 2013 (2) ALD 158; State of Uttar Pradesh v. Brahma Datt Sharma (1987) 2 SCC 179; The Special Director and others v. Muhammad Ghulam Ghouse and others AIR 2004 SC 1467; Union of India and others v. Kunisetty Satyanarana and AIR 2007 SC 906; Messrs Kirlosar Computer Service Limited Bangalore v. Union of India and others 1997 (73) ECR 651 (Karnataka); Mari Petroleum Company Limited through General Manager Finance, Islamabad v. Federation of Pakistan through Secretary Revenue, Islamabad and 3 others 2019 PTD 1774; Messrs Attok Gen. Ltd. v. Additional Commissioner (AUDIT), Largetaxpayer Unit, Islamabad and 3 others 2019 MLD 870; Collector of Sales Tax v. Khurshid Spinning Mills Limited and another 2017 PTD 196; Zaver Petroleum Corporation v. Federal Board of Revenue and another 2016 PTD 2332; Chaudhary Sugar Mills Limited v. Chief Commissioner and 2 others 2016 PTD 527; Oil and Gas Development Company Limited v. Federal Board of Revenue and 2 others 2016 PTD 1675; KK Oil and Ghee Mills (Private) Limited v. Federal Board of Revenue and others 2016 PTD 2601; Messrs J.K. Brothers Pakistan (Private) Limited v. The Additional Commissioner Inland Revenue and another 2016 PTD 461; Commissioner of Income Tax v. Eli Lilly Pakistan Limited and others 2009 SCMR 1279; Muslim Commercial Bank Limited v. Deputy Commissioner of Income Tax and others 2004 PTD 1901; Al Ahram Builders (Private) Limited v. Income Tax Tribunal 1993 SCMR 29; Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279 and Ocean Pakistan Limited v. Federal Board of Revenue and others 2012 PTD 1374 ref.

Chaudhary Muhammad Ali for Petitioner.

Malik Zafar Ali Thaheem for FBR.

Mehar Zameer Hussain Sundhal, Deputy Attorney General for Respondents.

P L D 2020 Lahore 670

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD ABDULLAH---Petitioner

Versus

SUPERINTENDENT DISTRICT JAIL, KHANEWAL---Respondent

Writ Petition No.18328 of 2019, decided on 16th December, 2019.

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

----S. 397---Sentence on offender already sentenced for another offence---Scope---Petitioner, sought a direction under Constitutional Jurisdiction to the authorities for concurrent reckoning of sentences of the petitioner awarded to him on conviction in three different criminal cases---Admitedly, had assailed his conviction and sentence recorded in a criminal case by way of an appeal which was pending before High Court and during pendency of said appeal it could not be predicted that the conviction and sentence of the petitioner would remain intact necessitating an order in the present petition making running of the said sentence with other sentences of the petitioner---Prayer of the petitioner to such extent was pre-mature.

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

----S. 397---Sentence on offender already sentenced for another offence---Scope---Petitioner sought a direction under the Constitutional Jurisdiction to the authorities for concurrent reckoning of sentences of the petitioner awarded to him on conviction in three different criminal cases---Held; at the time of passing subsequent conviction appropriate orders for concurrent running of sentences escaped notice of the Trial Court or it was not brought to its notice that the petitioner was also convicted in other cases---High Court extended the benefit of S.397, Cr.P.C. to the petitioner---Petition was partially accepted.

Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 rel.

Mst. Zubaida v. Falak Sher and others 2007 SCMR 548 and Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583 ref.

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

----S. 397---Sentence on offender already sentenced for another offence---Scope---Where an accused is convicted and sentenced to different terms in different trials, for the purposes of reckoning his sentences, S.397, Cr.P.C. comes into operation---Said provision of law contemplates that sentences awarded to a person in a subsequent trial would commence at the expiration of imprisonment for which he had been previously sentenced---Discretion has been left with the court to direct concurrent running of sentence awarded in a subsequent trial---Command of law for consecutive sentences is a general rule while direction for concurrent sentence is discretionary power of the court---Although appropriate order within the meaning of S.397, Cr.P.C. ought to be made at the time of deciding the case or appeal but if, for any reason or due to some inadvertent omission, direction could not be issued at that time there is no embargo that the same cannot be passed afterward---Court can exercise discretionary power at any time to direct that sentences in two different trials would run concurrently.

Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 rel.

Abdul Salam Alvi for Petitioner.

P L D 2020 Lahore 675

Before Muzamil Akhtar Shabir, J

MUHAMMAD SANA ULLAH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.14404 of 2019, decided on 26th September, 2019.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 2---Summons to attend to give evidence or produce documents---Expenses of witness to be paid into Court on applying for summons---Delay in submitting the list of witnesses---Scope---Petitioner assailed concurrent dismissal of his application under O. XVI, Rr. 1 & 2, C.P.C.---Respondents had filed a suit for declaration and cancellation of mutation which was contested by the petitioner by filing of written statement; thereafter issues were framed and after the evidence of the respondents was recorded and case was fixed for evidence of the petitioner, application under O. XVI, Rr. 1 & 2, C.P.C., was filed without explaining as to why such list of witnesses was not earlier filed and blame was put on his own counsel for not doing the needful despite the fact that petitioner had provided him the list---List of witnesses had to be presented in the court not later than seven days after framing of issues---Law favoured adjudication on merits and not mere technicalities but also favoured the vigilant and not the indolent and he whoever slept over his rights had to suffer the consequences---Ground raised by the petitioner was not sufficient or good ground for condoning the delay in filing the list of witnesses---Courts below had rightly dismissed the application---Constitutional petition was dismissed.

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

Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 ref.

P L D 2020 Lahore 679

Before Shahid Bilal Hassan, J

Mst. ASMA BIBI---Petitioner

Versus

CHAIRMAN RECONCILIATION COMMITTEE and others---Respondents

Writ Petition No.6782 of 2019/BWP, heard on 28th January, 2020.

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

----Ss. 7 & 2(b)---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R. 3---SRO No. 1086(K)61, dated: 09-11-1961---Talaq---Territorial jurisdiction of Chairman---Scope---Petitioner/wife assailed validity of order passed by Chairman, Reconciliation Committee, whereby divorce to the petitioner was confirmed through an ex-parte order---Validity---Respondent/husband was permanently residing abroad and the petitioner was also there at the time of alleged talaq---Petitioner had categorically asserted in the petition, which was supported by an affidavit, that at the time of alleged pronouncement of talaq she was residing abroad, so as per SRO No.1086(K)61, dated: 09-11-1961, officers of Pakistan Mission abroad were authorized to discharge the functions of Chairman under the Muslim Family Laws Ordinance, 1961---Chairman, Reconciliation Committee, had no authority to exercise that authority which he had exercised---Divorce registration certificate and impugned order of confirmation were declared to be of no legal effect and value---Constitutional petition was allowed, in circumstances.

Mt. Sharifan v. Abdul Khaliq and another 1983 CLC 1296 and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others PLD 2019 Lah. 285 ref.

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

----S. 7---Talaq---Talaq by husband residing abroad---Procedure.

Where husband is not a Pakistani National or even if both husband and wife are not Pakistani National they can get divorce in Pakistan provided that the marriage is registered in Pakistan by adopting following procedure, in case of husband:-

(i) Husband will send a power of attorney to his lawyer;

(ii) Power of attorney should be attested from the Pakistani Embassy or Consulate of the Country where he is residing;

(iii) Where a lawyer receives the power of attorney, he will proceed according to law;

(iv) Proceedings of overseas divorce in Pakistan are conducted in Arbitration Council;

(v) Minimum 90 days proceedings will be conducted by lawyer in arbitration council;

(vi) After the proceedings of overseas divorce in Pakistan, a divorce certificate will be issued by NADRA through arbitration council and this certificate is considered as sole and only proof of divorce.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Averments of facts---Affidavit---Scope---Averments of the facts made in a petition, which is supported by an affidavit, have to be accepted as correct, in absence of a counter affidavit or other material in rebuttal.

Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others PLD 2019 Lah. 285 and Islamic Republic of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza PLD 1977 SC 182 ref.

Muhammad Ayaz Kalyar for Petitioner.

Zohaib Abdullah Akhtar for Respondent No.4.

Mazhar Hussain Anjum, Secretary, Union Council Chak 94/NP No.83 Tehsil Khanpur District Rahim Yar Khan for Respondents.

P L D 2020 Lahore 684

Before Mamoon Rashid Sheikh, C.J.

Mst. ZAHIDA BEGUM---Petitioner

Versus

ASHFAQ AHMED and others---Respondents

C.R. No.65290 of 2019, heard on 21st November, 2019.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 4 & 8---Civil Procedure Code (V of 1908), O. VI, R. 16---Suit for administration and partition of immovable property---Striking out of pleadings---Question of title or share---Scope---Petitioner filed suit for administration and partition of immovable assets left by parties' common ancestors---Two of the respondents instead of filing written statement filed an application under O. VI, R. 16, C.P.C. for deletion of certain plot from the list of properties on the ground that the plot was gifted to their predecessor through registered gift deed---Trial Court allowed the said application---Validity---Petitioner, through her reply to the application of said respondents, had not only denied the factum of gift deed but also the existence of the gift deed---High Court observed that in view of the explicit provision of S.8 of Punjab Partition of Immovable Property Act, 2012, and in presence of a dispute as to title in said plot, the Trial Court was duty bound to decide the dispute by framing issues and recording evidence before proceeding further in the matter---Impugned order as well as the application of respondents were set aside, in circumstances.

Mt. Shafi-ul-Nisa v. Mt. Fazal-ul-Nisa AIR (37) 1950 (East) Punjab 276; Syed Mehdi Hussain Shah v. Shadoo Bibi and others PLD 1962 SC 291; Muhammad Sarwar and 2 others v. Abdul Lateef and another PLD 1978 Lah. 391; Muhammad Younus Qureshi and 5 others v. Mrs. Feroz Quraishi and 2 others 1982 CLC 976; Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari 1993 CLC 31; Mst. Ghazala Zakir v. Muhammad Khurshid and 7 others 1997 CLC 167; Muhammad Amin v. Muhammad Yasin and another through Legal Heirs PLD 2001 Lah. 242 and Mrs. Bilquis Mohsin Butt and 3 others v. Muhammad Mahmood Butt and 15 others 2015 CLC 1333 ref.

(b) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 4 & 8---Suit for administration and partition of immovable property---Question of title or share---Scope---Defendant, in a suit for administration and partition of immovable assets, claimed that a certain plot was gifted to his predecessor by the common ancestor of parties---Contention of defendant was that the question of title of property could not be determined in a suit for administration of property---Validity---Suit filed by plaintiff was not a suit for administration alone, it was also a suit for partition---Plaintiff, in the title of the suit as also in the body of plaint, had time and again prayed for partition of properties in question---Objection of the defendant was turned down.

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

----O. VI, R. 16---Striking out pleadings---Scope---Court may at any stage of the proceedings order to strike out or amend any matter in any pleadings, which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.

(d) Pleadings---

----Court has to examine the pleadings as a whole and not in isolation.

(e) Administration of justice---

----Court can mould relief according to the contents of the plaint.

Ahmad Waheed Khan for Petitioner.

Chaudhary Muslim Abbas for Respondents Nos.1 and 9.

Mian Mohsin Mahmood for Respondents Nos. 5 and 6

Respondent No.7 (in person).

Mohammad Usman for Respondent No.8.

P L D 2020 Lahore 690

Before Tariq Saleem Sheikh, J

Mst. RABIA BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 3 others---Respondents

Criminal Revision No.254 of 2019, decided on 21st November, 2019.

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

----Ss. 302, 34 & 109---Criminal Procedure Code (V of 1898), Ss. 337, 338 & 339---Qatl-i-amd, common intention, abetment---Tender of pardon to accomplice---Power to grant or tender pardon---Commitment of person to whom pardon has been tendered---Scope---Accused assailed order passed by Trial Court whereby her application under S.338, Cr.P.C. for grant of pardon was dismissed---Prosecution evidence primarily consisted of extra-judicial confession of petitioner, wajtakar evidence and recovery of crime empty from the place of occurrence which the complainant handed over to the Investigating Officer after three days of the incident---Circumstances showed that the petitioner, who had undertaken to make full disclosure if she was made an approver, could help in bringing additional material on record which would advance the interest of justice---State as well as heirs of the deceased were supporting the petition, there was all the more reason that it should be accepted---Co-accused had no right to object the tender of pardon to their cohort because they would have full opportunity to cross-examine her when she would appear in the witness box as an approver---Officer-in-charge of the prosecution was directed to tender pardon to the petitioner subject to the condition that she would make full and true disclosure of all the circumstances within her knowledge relating to the qatl-i-amd of the deceased and every other person concerned with the commission of the offence in any capacity whether as principal or abettor and in the event of breach of such condition, the consequences stipulated in S.339, Cr.P.C. would follow---Impugned order was set aside and the petition was accepted.

Muhammad Iqbal v. The State 1984 PCr.LJ 1197 and Jasbir Singh v. Vipin Kumar Jaggi and others AIR 2001 SC 2734 ref.

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

----Art. 16---Accomplice as witness---Scope---High Court observed that at time there were cases in which criminals commit an offence in such an organized or sophisticated manner that it becomes difficult for the prosecution to track them down or secure the quality of evidence that is required in the court of law to prove charge, therefore, prosecution was constrained to seek the help of an accomplice---Article 16 of Qanun-e-Shahadat, 1984 expressly declares that an accomplice is a competent witness.

(c) Words and phrases---

---Accomplice---Defined.

Black's Law Dictionary (Tenth Edn.); Corpus Juris Secundum (Vol 23 p. 1349 at p.323 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 rel.

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

----S. 337---Tender of pardon to accomplice---Scope---Accomplice is one of the accused persons but he ceases to be so and becomes an approver when granted pardon.

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

----Ss. 337 & 338---Tender of pardon to accomplice---Power to grant or tender pardon---Scope---Section 337, Cr.P.C. stipulates that in the case of any offence triable exclusively by the High Court or the Court of Sessions, or where the offence is punishable with imprisonment which may extend to 10 years, or when the offence is punishable under S.211, P.P.C. with imprisonment which may extend to seven years, or where the offence falls within the ambit of Ss.216-A, 369, 401, 435 or 477-A, P.P.C., the officer-in-charge of the prosecution in the district may tender pardon to any person supposed to be directly or indirectly concerned in or privy to the offence on the condition that he would make a full and true disclosure of all the circumstances within his knowledge relative to the offence and the persons involved in it---Such pardon may be tendered at any stage of the investigation or trial---Such power cannot be exercised in offences of hurt or qatl without the permission of the victim or, as the case may be, of the heirs of the victim and in every instance reasons must be recorded---Section 338, Cr.P.C. empowers the High Court and the Sessions Court trying a case to exercise similar powers during the trial before the judgment is passed---Primary purpose of both the provisions (Ss.337 & 338 Cr.P.C) is to obtain more evidence in connection with the offence.

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

----Ss. 338 & 540---Power to grant or tender pardon---Power to summon material witness or examine person present---Scope---Section 338, Cr.P.C. has its own sway and powers conferred on the court thereunder are not circumscribed by the considerations that underlie S.540, Cr.P.C.

Lt. Commander Pascal Fernandes v. State of Maharashtra and others AIR 1968 SC 594 rel.

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

----Arts. 16 & 129(b)---Criminal Procedure Code (V of 1898), Ss.337---High Court (Lahore) Rules & Orders, Chap. 14, Vol. III, R.5---Accomplice---Tender of pardon to accomplice---Corroboration---Scope---Albiet Art. 16 of the Qanun-e-Shahadat, 1984, makes an accomplice a competent witness, Art.129(b) provides a sort of rider thereto when it enacts that the Court may presume "that an accomplice is unworthy of the credit unless he is corroborated in material particulars."---Rule 5 of Chap. 14, Vol. III, High Court (Lahore) Rules and Orders, also stipulates that since the evidence of an approver being that of an accomplice is prima facie of a tainted character, it should be scrutinized with utmost care and accepted with caution---Rule 5 adds that as a matter of law, pure and simple, a conviction is not bad merely because it proceeds upon the uncorroborated testimony of an accomplice but it has become almost a universal rule that conviction cannot be based on the testimony of an accomplice unless it is corroborated in material particulars---As to the amount of corroboration which is necessary, no hard and fast rule can be laid down; it will depend upon various factors, such as the nature of the crime, the nature of the approver's evidence, the extent of his complicity and so forth---Corroboration is considered not only in respect of the general story of the approver but also in respect of facts establishing the accused's identity and his participation in the crime---No strait jacket formula can be laid down as to the amount of corroboration but it must be in material particulars.

The King v. Baskerville [(1916) 2KB 658]; Mahadeo v. Emperor (40 CWN 1164); Sarwan Singh Rattan Singh v. State of Punjab PLD 1957 SC (Ind.) 555; Rafiq Ahmad v. The State PLD 1958 SC (Pak.) 317; Ramzan Ali v. The State PLD 1967 SC 545; Hassu v. The Crown 1969 SCMR 621; Dr. Muhammad Bashir v. The State PLD 1971 SC 447; Abdul Sattar v. The State PLD 1976 SC 404; Ali Muhammad v. The State 1985 SCMR 1834; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Ishaq v. The Crown PLD 1954 FC 335; Fazal Dad v. The Crown PLD 1955 FC 152; Ghulam Qadir and another v. The State PLD 1959 SC (Pak.) 377; Abdul Khaliq v. The State PLD 1970 SC 166; Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363 and Abdul Majid and another v. The State PLD 1973 SC 595 ref.

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

----Ss. 337 & 339---High Court (Lahore) Rules and Orders, Chap. 14, Vol. III, R.7---Tender of pardon to accomplice---Commitment of person to whom pardon has been tendered---If the approver gives false evidence he can be tried for the offence and also for perjury---Scope---Pardon is tendered on the condition that he would make a full disclosure, the approver is bound to keep his promise---If he fails to do so and the Public Prosecutor certifies that he has given false evidence or willfully concealed something essential, as per S.339 Cr.P.C., he may be tried for the offence in respect of which the pardon was tendered and also for perjury subject to the sanction of the High Court under R.7 of Chap.14, Vol. III of the High Court (Lahore) Rules and Orders.

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

----Ss. 337 & 338---Tender of pardon to accomplice---Power to grant or tender pardon before the judgment is passed---Scope---Mere fact that the trial has concluded is no ground to reject the application for tender of pardon---Section 338, Cr.P.C. unequivocally states that pardon can be tendered by High Court or the Sessions Court trying a case at any time before the judgment is passed---Powers of the Court under S.338, Cr.P.C. are circumscribed by two conditions: firstly, that the action must be with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in an offence or is privy to it; secondly, pardon cannot be tendered to a person in an offence relating to hurt or qatl without the permission of the victim or, as the case may be, his heirs.

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

----S. 337---Tender of pardon to accomplice---Scope---Accomplice does not have any vested right to be tendered a pardon and made an approver.

Mushtaq Ahmad alias Shaqi v. The State and another 2003 MLD 1627 ref.

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

----S. 338---Power to grant or tender pardon---Scope---Situations, the conditions, the offences and the requirements justifying reception of approver's testimony are all exceptional, bordering on necessity and demands of public policy---Powers under S.338, Cr.P.C. must be exercised with great care and caution and only to advance the interest of justice---Court should always bear in mind that in every pardon there is a risk that an offender would escape just at the expense of other accused---In order to determine whether in a particular case pardon should be tendered to an accused or not, consideration would be the quality of evidence available on the record, the nature of additional evidence he is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and to his co-accused.

Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 fol.

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

----Ss. 337 & 338---Tender of pardon to accomplice---Power to grant or tender pardon---Right of co-accused to object---Scope---Co-accused has no right to object the tender of pardon to their cohort because co-accused would have full opportunity to cross-examine him when he appears in the witness box as an approver.

Malik Mushtaq alias Black Prince v. The State and 11 others 2005 YLR 1728 and Force Commander, Regional Directorate ANF, Rawalpindi v. Judge Special Court (CNS) and others 2013 PCr.LJ 279 ref.

Ch. Muhammad Afzal Jatt for Petitioner.

Syed Nadeem Haider Rizvi, Deputy Prosecutor General for the State.

Ch. Muhammad Arshad for Respondent No.2.

Manzoor Hussain Bhutta for Respondent No.3.

P L D 2020 Lahore 703

Before Farooq Haider, J

TAHIR MAHMOOD GUJJAR, D.S.P., C.I.A., GUJRANWALA---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision No. 1090 of 2012, heard on 16th March, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Ex-Officio Justice of Peace, jurisdiction of---Direction to pay compensation---On recovery of detenus from the Police Station, Ex-Officio Justice of Peace directed petitioner Deputy Superintendent of Police (DSP) to pay compensation to each detenu---Plea raised by petitioner was that the Ex-Officio Justice of Peace had no authority to direct police officials to pay compensation---Validity---Monetary compensation always awarded in favour of detenus, which was based upon tentative assessment and could not be treated as final amount of damages for which the detenu could file a suit for damages for the loss caused to his person and property, mental agony, shock and in case of torture for the injuries suffered by such detenu---All such aspects were subject-matter of regular suit where concerned police officers were also entitled to claim set off for the amount paid as compensation in proceedings under S.491, C.P.C.---No bar or prohibition existed in the relevant law to pass any order to police official to pay monetary compensation to detenu who was deprived of his freedom---Ex-Officio Justice of Peace was to first determine through summary inquiry that who was responsible for illegal detention of detenus or get it determined from any Magistrate through inquiry under S.4(k), Cr.P.C. or from any police official of higher rank like Regional Police Officer and then to pass order for awarding compensation---High Court set aside the order passed against petitioner and case was remanded to Ex-Officio Justice of Peace to first determine liability of illegal detention---Constitutional petition was allowed accordingly.

Ali Ahmed v. Muhammad Yaqoob Almani, Deputy Superintendent of Police, Qasimabad, Hyderabad and 5 others PLD 1999 Kar. 134; Muhammad Ibrahim v. S.H.O., Police Station, Sheikhupura 1990 PCr.LJ 1717; Ilyas Masih v. Raja Zafar Iqbal, S.H.O., Police Station Satrah, District Sialkot PLD 1992 Lah. 220; Faqir Muhammad v. S.H.O, Police Station Chak Jhumra and others 1992 PCr.LJ 1387; Abdul Qayyum v. S.H.O. Police Station Shalimar, Lahore 1993 PCr.LJ 91; Mureed Hussain v. S.H.O., Police Station Civil Lines, D.G. Khan 1993 MLD 1167; Abdul Majid v. S.H.O., Police Station Rohilanwali District Muzaffargarh 1995 PCr.LJ 1209; Muhammad Aslam v. S.H.O., Police Station, Nankana Sahib 1997 PCr.LJ 508; Mehboob Alam v. Station House Officer and 2 others 1997 PCr.LJ 1561; Shahid Hussain v. The State and others 1997 PCr.LJ 1582; Ahmad Bakhsh v. Saeed Ahmad, Inspector/S.H.O. Police Station Uch Sharif 1997 MLD 45; Lal Din v. S.H.O., Police Station Dehli Gate, Multan 1997 MLD 246; Muhammad Manzoor v. S.H.O., Police Station Layya, District Multan and another 1997 MLD 1331; Muhammad Akram v. The State 1998 PCr.LJ 1558; Haji Noor Hassan v. Khalid Masood, Inspector/S.H.O., Police Station "B" Division, Rahim Yar Khan 1998 PCr.LJ 1451; Naseer Ahmad v. S.H.O., Police Station Tirandah Muhammad Panah, District Rahim Yar Khan 1998 PCr.LJ 196; Rana Muhammad Aslam v. Azmat Bashir and others 2011 SCMR 1420; Bhim Singh v. State of J. and K. and others AIR 1986 SC 494 = 1986 Cri.LJ. 192 and Arvinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117 ref.

Sarfraz Gondal for Petitioner.

Rana Muhammad Arif Kamal Noon, Prosecutor General, Punjab along with Ms. Nuzhat Bashir, Deputy Prosecutor General, Usman Iqbal, Deputy Prosecutor General and Safdar Hayat Boasl, Assistant Advocate General, Punjab for the State.

Asghar Ali Hashmi for Respondent No.2.

P L D 2020 Lahore 713

Before Shujaat Ali Khan, J

HASSAAN AHMED---Petitioner

Versus

CIVIL JUDGE/SPECIAL JUDGE (RENT), LAHORE and 5 others---Respondents

Writ Petition No. 25619 of 2013, decided on 27th February, 2020.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 12, 8 & 9---Application for restoration of utility services by tenant---Defect in the tenancy---Effect---Deposit of fine---Scope---Tenant earlier filed application for seeking permission to deposit rent in the Court wherein he was ordered to deposit 5% fine of the annual value of rent---Rent Tribunal disposed of said application directing the tenant to deposit monthly rent in the Court---Landlords, thereafter, disconnected utility services of the tenant and he filed an application for restoration of the same---Rent Tribunal had directed the tenant to deposit 5% fine in terms of S.9(a) of Punjab Rented Premises Act, 2009, on the ground that it was a new application---Contention of tenant was that he had already deposited 5% fine in the earlier application and he could not be again burdened with the fine---Validity---Where tenancy between the parties was not in consonance with the provisions of Punjab Rented Premises Act, 2009, Rent Tribunal could not entertain an application until and unless the requisite fine had been deposited by the party approaching the said forum---Provision of S.9 of Punjab Rented Premises Act, 2009, did not suggest that fine would be leviable against a party only for once---Imposition of fine under S.9 of Punjab Rented Premises Act, 2009, was to encourage registration of tenancy between the parties---If parties had not opted to bring the tenancy in conformity with the provisions of Punjab Rented Premises Act, 2009, then they should face the consequences---Defect in tenancy would not be cured until and unless same was brought in conformity with the provisions of Punjab Rented Premises Act, 2009---Once the party had deposited fine even then it could be burdened with fine again, if he had approached the Rent Tribunal with a fresh application---Constitutional petition was dismissed, in circumstances.

Jahanzeb Khan for Petitioner.

Ahsan Shahzad for Respondents Nos.2 to 6.

P L D 2020 Lahore 716

Before Tariq Saleem Sheikh, J

SUMAYYAH MOSES---Petitioner

Versus

STATION HOUSE OFFICER, FAISALABAD and 3 others---Respondents

Writ Petition No. 74048 of 2019, decided on 21st April, 2020.

(a) Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague Convention)---

----Preamble---Child abduction---Scope---Hague Convention is not an extradition treaty, it focuses on procedure and jurisdiction rather than on merits of any underlying custody issue.

The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Non-Signatory Nations: Getting to Square One (1997) 20 Hous and Hague Convention on International Child Abduction: A brief Overview and Case Law Analysis 28 FAM. L.Q. 9, 11 (1994) rel.

(b) Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague Convention)---

----Arts.3 & 5---Abduction---"Civil" and "criminal" laws---Distinction---In private international law the term 'abduction' carries a meaning somewhat different from criminal law, there it connotes removal or retention of a child in breach of another's rights of custody---Phrase 'rights of custody' may have varying meanings---As 101 countries are party to Hague Convention one should prefer the definition given in Art. 5 of the Hague Convention, which says that such rights includes rights relating to care of the person of child and in particular the right to determine child's place of residence.

(c) Constitution of Pakistan---

----Art. 199 (1)(b)(i)---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---Habeas corpus---Recovery of detenue---Principle---Petitioner was a foreign national and she sought recovery of her two minor sons who were residing in Pakistan with her husband---Validity---High Court was competent to entertain a habeas corpus petition under Art.199 of the Constitution or S.491, Cr.P.C. and direct that a person in custody within its territorial jurisdiction be brought before it and satisfy itself that he was not being held in improper or illegal custody, more particularly when petition was made by mother who bona fide believed that children were removed from her custody by use of chicanery and thereafter forced to stay in Pakistan against her will and she could not be precluded from approaching the High Court---Proceedings in habeas corpus jurisdiction were summary in nature and High Court could not conduct detailed inquiry which was required in the matter for which the petitioner had recourse to Guardian Court which was a proper forum---High Court directed the petitioner to approach Guardian Court which Court would decide the matter in accordance with law---Constitutional petition was dismissed accordingly.

B's Settlement, (1940) Ch 54; McKee v. McKee, (1951) AC 352; H (Infants), (1966) 1 All ER 886; L (Minors) (Wardship: jurisdiction), 1974 (1) All ER 913 (CA); R (Minors) (Wardship: Jurisdiction), (1981) 2 FLR 416 (CA); Smt. Surindar Kaur Sandhu v. Harbax Singh Sandhu and another AIR 1984 SC 1224; Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another (AIR 1987 SC 3 = 1989 MLD 2009; Dhanwanti Joshi v. Madhav Unde 1998 (1) SCC 112; Surya Vadanan v. State of Tamilnadu and others AIR 2015 SC 2243; Mrs. Moselle Gubbay (formerly Mrs. Said) v. Khawaja Ahmad Said and others PLD 1957 (W.P.) Kar. 50; Christine Brass v. Dr. Javed Iqbal PLD 1981 Pesh.110; Sara Palmer v. Muhammad Aslam 1992 MLD 520; Peggy Collin v. Muhammad Ishfaque Malik and 6 others PLD 2010 Lah. 48; Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427; Muhammad Ramzan (deceased) through L.Rs. and others v. Nasreen Firdous and others PLD 2016 SC 174; M (Abduction: Non-Convention Country), [1995] 1 FLR 89 and S. v. S. (Abduction: Non-Convention Country), [1994] 2 FLR 681 ref.

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

----S.7---Pakistan Citizenship Act (II of 1951), S.5---Guardian Court, jurisdiction of---Nationality of minors---Scope---According to S.5 of Pakistan Citizenship Act, 1951, all children, wherever born of a Pakistani father, are deemed to be citizens of Pakistan by descent.

Abu Saeed A. Islahi v. Mrs. Talat Mir and 2 others 1994 MLD 1370; Muhammad Younas v. Shahzad Qamar and 3 others PLD 1981 Lah. 280 and Rochomal Daryanomal v. The Province of West Pakistan PLD 1960 (WP) Kar. 150 rel.

Pir Abdul Wahid for Petitioners.

Zaman Khan Vardag, Additional Advocate General for the State.

Zubair Afzal Rana assisted by Tasawar Hussain Virk for Respondent No.3.

Muhammad Shahzad Shaukat, amicus curiae.

P L D 2020 Lahore 737

Before Muzamil Akhtar Shabir, J

MANZOOR AHMAD---Petitioner

Versus

FAQIR MUHAMMAD and 3 others---Respondents

Civil Revision No. 44 of 2020, decided on 15th January, 2020.

Civil Procedure Code (V of 1908)---

----S. 115--- Revision--- Maintainability--- Appointment of local commission---Expression "case which had been decided" in S.115, C.P.C.---Scope---Order for appointment of local commission was discretionary and interlocutory in nature---Order passed by the Court below did not come within the ambit of "a case decided" which was a mandatory requirement for exercising revisional jurisdiction---Court below had exercised its discretionary jurisdiction vested by law to appoint local commission to find out position pertaining at the spot---Petitioner had right to file objections against the report of local commission which, if filed, had to be decided on merits---Revision against the impugned order was premature and not maintainable---Revision was dismissed in limine, in circumstances.

Mian Muhammad Luqman and 5 others v. Farida Khanum and another 1994 SCMR 1991 rel.

P L D 2020 Lahore 739

Before Muhammad Qasim Khan and Asjad Javaid Ghural, JJ

MUHAMMAD IQBAL alias BALI---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Home, Punjab and 6 others---Respondents

Writ Petition No. 24302 of 2019, decided on 13th March, 2020.

(a) Criminal trial---

----Policy matter---Scope---Policy has force of law---Enforcement or implication of law, especially when it favours an accused cannot be restricted at any stage on any ground.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S.7---Penal Code (XLV of 1860), S. 302(b)---International Convention on Civil and Political Rights, 1966, Art. 6, paragraph 5---United Nations Convention on the Rights of Children, 1989, Art.37(a)---Constitution of Pakistan, Arts. 45 & 199---Death penalty to juvenile---Remissions---Applicability---Petitioner was convicted by Trial Court for committing Qatl-i-amd and was sentenced to death---Conviction and sentence was maintained up to Supreme Court and even mercy petition was also dismissed---Special remission was granted by the President of Pakistan in exercise of his powers under Art. 45 of the Constitution, whereby death sentence was converted into imprisonment for life for those convict who were juvenile at the time of commission of the offence---Authorities declined extension of such benefit of remissions to petitioner and referred the matter to the President of Pakistan to reconsider his mercy petition---Validity---After setting a proper law into motion and going through the entire exercise with regard to analysis of juvenility of petitioner, it was unjust for authorities to keep on restricting uniform benefit of law as well as law to all similarly placed persons, on one excuse or the other---Juvenile status of petitioner at the time of commission of offence was not under question and legal heirs of victim pardoned the petitioner, therefore, giving benefit of same legislative intent to other similarly placed accused was not denied---International legislation and domestic legislation imposed a clear bar on inflicting death penalty on an accused under the age of eighteen years---Claim of petitioner to seek a benefit which otherwise was fully available to him under the policy having force of law, could not have been denied by authorities at their level and no legislation could compel them to still refer the matter to the President of Pakistan for consideration merely on the ground that earlier mercy petition had been dismissed by the President---Age of juvenility was already assessed by Trial Court as required under S.7 of Juvenile Justice System Ordinance, 2000---High Court, in exercise of jurisdiction under Art. 199 of the Constitution, instead of sending the matter to Trial Court for re-examination / re-evaluation of age of petitioner, commuted death sentence into imprisonment for life---Constitutional petition was allowed in circumstances.

Ziaullah v. Najeebullah and others PLD 2003 SC 656 ref.

Barrister Sarah Belal, Orubah Sattar Ahmad, Zainab Mehboob, Sana Farrukh, Mahmood Iftikhar Ahmad Zufar, Ahmad Hassan Khan Niazi, Mehr Muhammad Iqbal and Imran Khan Kulair for Petitioner.

P L D 2020 Lahore 747

Before Tariq Saleem Sheikh, J

M. NAZIR INAYATULLAH TRANSPORT COMPANY through Managing Partner---Petitioner

Versus

The STATE and 4 others---Respondents

Writ Petition No. 8600 of 2020, heard on 20th March, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate and adequate remedy---Effect---Question of adequacy is not a rule of law barring or limiting jurisdiction of High Court, it controls and regulates the same where order, act or omission of a functionary appears to be autocratic, capricious or tends to defy mandatory pre-condition for exercise of authority or suffers from total lack of jurisdiction or indicates exercise of assumption of authority which evidently does not vest in it or reflects patent illegality whereby alternate remedy does not seem to be effective or efficacious.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 95---Criminal Procedure Code (V of 1898), S. 516-A---Police Rules, 1934, R. 22.16---Release of vehicle---"Case property", question of---Inspection by Motor Vehicle Examiner---Petitioner was owner of bus seized by police as "case property" in consequence of a road accident---Validity---Motor vehicle detained by police may be of two types: those involved in accidents and those seized in other cases---First category is dealt with by Provincial Motor Vehicles Ordinance, 1965, which is a special law---Police Rules, 1934 are general law and are in conflict with Provincial Motor Vehicles Ordinance, 1965---Where driver was being prosecuted for causing hurt or death of a person by rash or negligent driving, the vehicle could not be said to have been 'used' for commission of offence within the meaning of S.516-A, Cr.P.C.---If inspection of Motor Vehicle Examiner was required, they should have got it done and returned the bus to petitioner after 48 hours but the same had not been done---High Court directed the police to return bus to petitioner as its detention was without lawful authority---Constitutional petition was allowed accordingly.

Muhammad Hanif v. The State 1984 PCr.LJ 746; Badshahzada v. The State 1993 PCr.LJ 699; Haris Khan v. The State PLD 1993 Pesh. 146; Maxwell on the Interpretation of Statutes (Twelfth Edition) at p.314; Understanding Statutes (Fourth Edition 2016) and Corpus Juris Secundum (Volume 82, page 876) ref.

Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others 2013 SCMR 85; Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218; Phula Singh v. Emperor AIR 1931 Lahore 565; Syed Razi Shah v. The State 1971 PCr.LJ 19; Rai Bashir Ahmad v. The State 1971 PCr.LJ 255; Sheraz Elahi v. The State 1984 PCr.LJ 1935; Burkamal v. The State 1989 PCr.LJ 1110; Rana Muhammad Salim v. The State 1992 PCr.LJ 750; Muhammad Rashid and others v. The State PLD 1991 Kar. 200; Karachi Bus Owners Association and another v. Inspector-General of Police and 2 others 1995 PCr.LJ 608; Sher Muhammad v. The State 1999 PCr.LJ 2121; Pakistan Motors Transport Federation (Regd.) v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 3 others PLD 2004 Lah. 295 and Ajjab Khan v. The State 2005 PCr.LJ 1510 rel.

Arshad Nazir Mirza for Petitioner.

Zaman Khan Vardag, Additional Advocate General with Asghar Ali/ASI for the State.

Akhlaq Sulehri, Deputy Prosecutor General assisted by Rao Muhammad Atif Khan, Deputy District Public Prosecutor for Respondents.

Khalid Masood Sandhu for Respondent No.5.

P L D 2020 Lahore 757

Before Muhammad Ameer Bhatti, J

The GENERAL MANAGER GULBERG OFFICE OF TCS and another---Appellants

Versus

Syed NAEEM UD DIN---Respondent

F.A.O. No. 176 of 2011, heard on 2nd June, 2020.

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

----S. 13---Liability for faulty or defective services---Scope---Appellant assailed order passed by Consumer Court whereby damages were granted in lieu of claim of the complainant---Respondent had dispatched some documents to a foreign Immigration Tribunal where an appeal for Asylum was pending disposal through appellant, a courier service (TCS) on payment of charges claimed by appellants and receipt was also issued by the appellants---Documents were not transmitted to the destination on the pretext of shortage of payment; as a result whereof immigration appeal was rejected---Validity---Appellants had received/booked the shipment after receiving the requisite charges and issued the receipt in that regard---Appellant was left with no jurisdiction to retain and not to transmit the shipment to the destination for any reason let alone deficiency of charges---Appeal was dismissed.

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

----S. 28---Settlement of claims---Non-issuance of notice to the manufacturer or service provider---Effect---Appellant a courier service (TCS) assailed order passed by Consumer Court on the ground that the claim before it was not maintainable without issuing notice under subsection (3) of S.28 of the Punjab Consumer Protection Act, 2005---Validity---Petition before Consumer Court could not be dismissed as incompetent solely for the non-compliance of procedural formalities, in that, it lost its legal significance and cast to the wind when the matter before the Consumer Court was dealt with after receiving the written reply and recording evidence of the parties---Significance of the notice was only to provide opportunity to the manufacturer or service provider to settle the dispute outside court which could even be availed on first appearance in court---Parties were heard at length and no prejudice had occasioned to the appellants for non-compliance of the provisions of subsection (3) of S.28 of Punjab Consumer Protection Act, 2005, therefore, the contention carried no force---Appeal was dismissed.

Ch. Nazir Ahmad Kamboh for Appellants.

Atif Pervaiz Ch. for Respondent.

P L D 2020 Lahore 759

Before Anwaarul Haq Pannun, J

MUKHTIAR AHMAD and 3 others--- Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 171-J and Criminal Revision No. 94 of 2019, heard on 25th September, 2019.

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

----Ss. 148 & 149---Criminal Procedure Code (V of 1898), S. 367---Rioting, armed with deadly weapon, common object---Scope---Contents of judgment---Appellants were distinctly and separately charged under Ss.148 & 149, P.P.C. but contrary to the express and mandatory provisions of S.367, Cr.P.C., Trial Court had failed to even advert to such charge while passing the judgment, thus creating scope for remanding the case for decision afresh---Appeal was accepted, impugned judgment was set aside as well as conviction and sentences awarded to the appellants and the case was remanded to the trial court for decision afresh regarding guilt or innocence of the appellants under Ss. 148 & 149, P.P.C.

(b) Words and phrases---

----"Judgment"---Scope---Judgment means judicial determination/ decision of a court seized of the matter.

Black's Law Dictionary; Cambridge English Dictionary and Law Dictionary rel.

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

----S. 367---Contents of judgment---Scope---Section 367, Cr.P.C. envisages that the court while delivering its verdict shall specifically express the offence and the section of the Penal Law, under which the accused is convicted and sentenced---Even in case of acquittal, the judgment shall state the offence of which the accused is acquitted of and a direction shall be issued that the accused be set at liberty if under custody and not required in any other case and in case of being on bail, his bail bonds shall be ordered to be discharged forthwith.

Messrs Union Bank Limited v. Messrs Silver Oil Mills Limited and others 2003 CLD 239; Mohib Ali v. The State 2004 YLR 1106 and Muhammad alias Jhari v. The State 1986 PCr.LJ 2535 rel.

(d) Appeal---

----Right of appeal cannot be exercised unless granted under a statute---Such is a statutory right which is conferred upon a person through legislation.

Syed Masroor Shah and others v. The State PLD 2005 SC 173 rel.

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

----Ss. 367, 537 & 561-A---Contents of judgment---Finding or sentence when reversible by reason of error or omission in charge or other proceedings---Inherent powers of High Court---Scope---Provisions of S.367, Cr.P.C., are mandatory, non-compliance whereof is an illegality, neither curable under S.537, Cr.P.C. nor rectifiable under S.561-A, Cr.P.C.

Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1; Shoukat Bus Service, Shahkot v. The State and another 1969 SCMR 325; Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298 and Muhammad Ijaz and others v. Muhammad Shafi through LRs. 2016 SCMR 834 rel.

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

----S. 367---Contents of judgment---Scope---Accused, in case of acquittal, earns double presumption of innocence---Judgment of acquittal of an accused, previously accused of commission of some offence, passed while complying with the mandatory provisions of S.367, Cr.P.C, should be deemed as a proof of a clean chit of innocence of that person---Each person has a right to enjoy the life in a dignified manner and free of any stigma---Judgment of acquittal passed in violation of mandatory provisions of S.367, Cr.P.C. may cause prejudice to the exercise of statutory right of acquitted accused, in case of his malicious prosecution, to claim damages.

Sh. Muhammad Raheem and Ch. Saeed Ahmad Farrukh for Appellants.

Muhammad Abdul Wadood, Deputy Prosecutor General for the State.

Ch. Faqir Muhammad for the Complainant.

P L D 2020 Lahore 774

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

TANVIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 660-ATA and 665-ATA of 2012, decided on 27th November, 2019.

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

----Ss. 365-A & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable security, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Acquittal of co-accused persons---Dishonest improvements---Delay in sending samples (swabs of victim) to Forensic Laboratory---Non-production of sample bearer---Effect---Prosecution case was that the accused, along with others and with the help of ex-housemaid (co-accused) of complainant, abducted the victim, obtained ransom and committed rape with her---Victim deposed that the co-accused stood by and watched while the accused persons abducted her---Victim did not specifically mention the name of accused as one of the abductors and the act of co-accused did not prove her to be an accomplice---Prosecution was required to prove that the complainant party had arranged the amount of ransom within a few hours but it did not bring any material on record to that effect---Prosecution witnesses had claimed that they had seen the person receiving the ransom in the street light which was illuminated but no evidence was produced in that regard---Ransom money was not recovered during the investigation---Prosecution had failed to prove that the accused had made the phone call for ransom---Statement of victim was in conflict with that of what she had stated before the police---Trial Court had partly disbelieved the evidence of prosecution witnesses by acquitting two co-accused persons---Vaginal swabs of the victim were sent to the Forensic Laboratory with a delay of six days---Police official, who had taken the swabs to the Forensic Laboratory, was not examined---DNA test report had lost its credibility, in circumstances---Evidence produced by prosecution was highly discrepant and suffered from serious legal infirmities---Appeals were allowed, in circumstances.

Yousuf and another v. The State 1995 PCr.LJ 1739 and Shakir Muhammad alias Shakeel and another v. The State 2019 PCr.LJ Note 120 ref.

The State and others v. Abdul Khaliq and others PLD 2011 SC 544 rel.

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

----Arts. 59 & 164---Criminal Procedure Code (V of 1898), S. 510---Punjab Forensic Science Agency Act (XIII of 2007), S. 9---Expert opinion---Production of evidence that has become available because of modern devices---Report of Chemical Examiner, Serologist, etc---DNA report---Scope---DNA identification is capable of producing reliable results---DNA evidence is evaluated on the strength of Arts. 59 & 164 of Qanun-e-Shahadat, 1984---Article 59 states that expert opinion on matters such as science and art falls within the ambit of relevant evidence and latter Art. 164 provides that the court may allow reception of any evidence that may become available because of modern devices and techniques---Under this regime, the technician who conducts experiment to scrutinize DNA evidence is regarded as an expert whose opinion is admissible in the court---Subsection (3) of S.9 of the Punjab Forensic Science Agency Act, 2007, reaffirms such legal position---Combined reading of said provisions shows that the report of Punjab Forensic Science Agency regarding DNA is per se admissible in evidence under S.510, Cr.P.C.--- DNA report cannot be treated as primary evidence and can only be relied upon for the purposes of corroboration.

Muhammad Sohail alias Samma and others v. The State and others 2019 PCr.LJ 1652 ref.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 rel.

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

----Art. 59---Opinion of expert---DNA test, credibility of---Safe custody---Scope---Credibility of DNA test inter alia depends on the standards employed for collection and transmission of samples to the Forensic Laboratory---Safe custody of the samples is pivotal---Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure---Any break in the chain or lapse in the control of sample would make the DNA test report unreliable.

Ikramullah v. The State 2015 SCMR 1002; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

(d) Medical jurisprudence---

----DNA, explained.

Modi's Textbook of Medical Jurisprudence and Toxicology (24th Edition) rel.

(e) Criminal trial---

----Witness---Dishonest improvements---Scope---When a witness changes his version or dishonestly improves his statement, he loses his credibility and his evidence cannot be relied upon.

Muhammad Naeem Inayat v. The State 2010 SCMR 1054; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 ref.

Ibrar Hussain and others v. The State and another 2007 SCMR 605 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence is a confirmatory piece of evidence and cannot be a substitute for primary evidence---Such evidence can furnish details of the injuries and their duration (and the weapon of offence, if any, used in the commission of offence) but cannot identify the culprit.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

(g) Criminal trial---

----Benefit of doubt---Scope---Several circumstances creating doubt in a prosecution case are not necessary, even a single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused would entitle him to acquittal.

Allah Bachaya and another v. The State PLD 2008 SC 349; Muhammad Akram v. The State 2009 SCMR 230 and Abdul Jabbar and another v. The State 2019 SCMR 129 ref.

Syed Badar Raza Gillani for Appellants (in Criminal Appeal No. 660-ATA of 2012).

Ashfaq Ahmad Khan for Appellants (in Criminal Appeal No. 665-ATA of 2012).

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Nemo for the Complainant.

P L D 2020 Lahore 788

Before Anwaarul Haq Pannun, J

GHULAM MURTAZA---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 6039-B and C.M. No. 1305 of 2019, decided on 5th November, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 496, 497 & 344---Penal Code (XLV of 1860), Ss. 337-A(i) & 337-F(i)---Prison Rules, 1978, R.1242, Register No.1---Shajjah-i-Khaffifa and Ghayr-Jaifah Damiyah---Bail, grant of---Bailable offence---Earlier bail order---Jail record---Omission of offences---Accused was earlier granted bail in main offence of Qatl-i-Amd etc. but due to offences under Ss. 337-A(i) & 337-F(i), P.P.C. mentioned in jail record, accused was not released---Validity---Serial number of the FIR along with other particulars of the accused and the "offence or offences" all are equally relevant---In order to enjoy concession of bail by way of his release in a particular case, accused had to seek his bail in 'each and every offence' for which he was charged with, either at the inception of registration of FIR or as a result of any subsequent addition thereof during the course of investigation or by way of framing of charge by Court---High Court directed all subordinate Courts to send copy of remand paper, its order thereon along with judicial warrant to concerned jail for admission of accused to prison.

Following directions were issued by High Court:-

1. That all the Subordinate Courts while granting judicial remand under section 344, Cr.P.C. shall also send a copy of remand paper, its order thereon along with the judicial warrant to the concerned jail for admission of the accused to prison.

2. That the jail authorities at the time of admission of the accused to prison, shall enter accurately while tallying the particulars of the accused with those mentioned in the remand paper and judicial warrant, in the relevant register maintained by it under the Jail Manual/Rules.

3. The jail authorities before attestation of thumb impressions or the signatures of the accused/prisoners, shall ensure that the particulars of prisoner given in the power of attorney/wakalatnama are in conformity with the particulars mentioned in the jail record and if any deficiency is found, the same shall be rectified accordingly.

4. The Prosecutors under the provisions of Code of Criminal Procedure, 1898 and the Punjab Criminal Prosecution Service Act, 2006, are responsible for conducting prosecution of the accused and during discharge of this duty, they are privileged with the authority to examine the record of the case, therefore, all the learned Prosecutors are bound to bring any deficiency/ omission regarding addition or deletion of offence etc., if any, in notice of the Court, so that such deficiency/omission in particulars of the accused may be made up at that stage.

5. The Court of first instance at the time of decision of bail application shall objectively peruse the record of the case and if any deficiency/omission in the particulars of the accused on the memo of bail petition is found while taking judicial notice or on its pointing out by the Prosecutor, the requisite observation shall be made in writing in its order by the Court specifically, so that the release robkar may be issued with exact particulars of the accused.

6. The bail petitions, in case of post arrest bail application, shall preferably be drafted by the Advocates with the particulars of the accused given in the remand order instead of the FIR.

7. All the police officials before issuing a certified copy of FIR shall ensure that the exact particulars of the accused including addition or omission, if any of the offence made so far has been reflected in it.

8. Office of High Court was directed to transmit copy of this order to the Registrar of this Court, who shall circulate the same to all the Sessions Divisions for its onward transmission to the courts concerned, I.G. Punjab (Police), I.G. Prisons/jail authorities and Prosecutor General (Punjab) for their guidance and issuance of instructions for compliance. Ch. Muhammad Imran and Khawaja Qaiser Butt for Petitioner.

P L D 2020 Lahore 801

Before Ayesha A. Malik, J

NAZIR A.M. JOINT VENTURE through Chief Executive---Petitioner

Versus

The NATIONAL HIGHWAY AUTHORITY through Chairman and 4 others---Respondents

Writ Petition No. 19175 of 2020, heard on 19th June, 2020.

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

----R. 203---Constitution of Pakistan, Arts. 69 & 199---Majlis-e-Shoora (Parliament)---Public Accounts Committee of the National Assembly, functions of---Constitutional jurisdiction of High Court---Scope---Public Accounts Committee of National Assembly was a recommendary committee which was required to examine accounts of relevant year and to make recommendations---Report of Public Accounts Committee was to be presented along with recommendations to National Assembly for decisions---Per Art. 69 of the Constitution, there existed a bar on questioning and inquiring into proceedings of Majlis-e-Shoora (Parliament) which included any decision/proceeding(s) of Public Accounts Committee of National Assembly---Proceedings of Public Accounts Committee being internal proceedings were immune from being inquired into by High Court under Art. 199 of Constitution.

Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774; Nawab Khan Khattak v. Public Accounts Committee and others 2002 YLR 2209 and BNP (Pvt.) Ltd. v. Capital Development Authority and others 2016 CLC 1169 rel.

(b) Constitution of Pakistan---

----Arts. 69 & 199---Majlis-e-Shoora (Parliament)---Public Accounts Committee of the National Assembly, functions of---Statutory audit of Public Authorities---Nature of audit of public authority---Audit objection, effect of---Construction contracts---National Highway Authority ("NHA")---Scope---Petitioner which held a construction contract with National Highway Authority, impugned demand made by NHA for recovery of certain amounts paid to petitioner, allegedly on instructions of Public Accounts Committee of National Assembly--- Validity---As per record, audit report of National Highway Authority was placed on agenda of Public Accounts Committee however, paragraph which stated an audit objection on payment made to petitioner was not discussed and no instructions/recommendations on same were given by Public Accounts Committee---National Highway Authority was using an audit objection as basis for recovering of amount from petitioner, which was not valid as audit objection was merely an observation which required probe and by itself was merely information to be placed before an authority---Audit objection therefore could not form basis for recovery of amount from petitioner and NHA could not ignore terms of the construction contract---High Court held that NHA could not seek to recover the amount from petitioner as there existed no instructions by Public Accounts Committee in this regard, and even otherwise Public Accounts Committee was a recommendary committee and as such could not issue directions to NHA to initiate any recovery---Constitutional petition was allowed, accordingly.

Mian Muhammad Kashif and Imran Iqbal for Petitioners.

Ms. Ambreen Moeen, D.A.G. along with Shaukat Ali, Audit Officer in the office of Respondent No.4.

Chaudhary Muhammad Shabbir Ahmed for Respondent NHA.

P L D 2020 Lahore 811

Before Anwaarul Haq Pannun, J

TAHIRA BIBI---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 15567 of 2019, decided on 29th October, 2019.

(a) Islamic-law---

----Marriage---Marriage contracted for a minor by any guardian other than the father or father's father---Option to repudiate marriage by minor on attaining the puberty---Scope---Right to repudiation of marriage is lost, in case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate without reasonable delay.

'Fatawa Alamgiri', Page-93 of Vol-V and Paragraph-274 of Mahomedan Law rel.

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

----S. 2 (vii)---Term 'repudiation of marriage'---Option of puberty (Khyar-ul-Bulugh), principle of---Scope---Female has been given a right under Dissolution of Muslim Marriages Act, 1939, to repudiate marriage before attaining age of eighteen years provided that marriage has not been consummated---In case of a male the right continues until he has ratified marriage either expressly or impliedly as by payment of dower or by cohabitation.

(c) Words and phrases---

----Misconduct---Defined---Even if expression 'misconduct' is not defined in statute or rules, yet it was to be interpreted by courts narrowly in the sense of an infringement of binding rule of conduct applicable.

The Province of East Pakistan v. Muhammad Sajjad Ali Mazumdar PLD 1962 SC 71 rel.

(d) Family Courts Act (XXXV of 1964)---

----S. 20---Child Marriage Restraint Act (XIX of 1929), S. 2 (a)---Constitution of Pakistan, Arts. 9 & 25-A---Child marriage---Trial, forum of---Right to life and education---Scope---Trial of offence under provisions of Child Marriage Restraint Act, 1929, is to be held by Family Court exercising powers of Judicial Magistrate of First Class in accordance with the provisions of Family Courts Act, 1964---Due to child marriage, possibility/chances/likelihood of infringement of fundamental rights of a child which have duly been guaranteed by the Constitution are enhanced---Right of life is not a mere right to exist or live, it also encompasses the idea of leading a meaningful and dignified life---Offering of an opportunity to get education by State is also a fundamental right of a minor, denial whereof may amount to denial to excel and progress in life.

(e) Constitution of Pakistan---

----Arts. 9, 14 & 35---Family matter---Jurisdiction of High Court---Scope---Petitioner, a minor, entered into marriage of her choice without consent of her parents---Grievance of petitioner was that police authorities were harassing her on the behest of her parents and other family members---Validity---Paramount consideration before Court had always been welfare and betterment of a minor---Courts always acted in loco parentis position while keeping in view a variety of considerations---Technicalities of law were not supposed to circumvent exercise of jurisdiction and powers by Courts in dealing with matters pertaining to minor/child---Courts were supposed to exercise their jurisdiction proactively to forestall any endeavor to cause a breach of fundamental rights of children, protection/provision of which essentially was also in welfare of minor/child---In view of Arts. 9, 14 & 35 of the Constitution, the State was to protect marriage, the family, the mother and the child, as the same was granted---High Court directed the authorities to remain within the four corners of law and restrained them from causing any harassment to petitioner in any manner---Constitutional petition was allowed accordingly.

Ismaeel v. The State 2010 SCMR 27; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Bushra Jabeen and 367 others v. Province of Sindh through Chief Secretary and others 2018 MLD 2007; Liaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 and 2019 SCMR 247 ref.

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

----S.5 (2A)---Registration of Nikah---Contents---Duty of Nikah Registrar---Scope---All Nikah Registrars or other persons who solemnize marriages are under legal obligation to scrutinize credentials at the time of Nikah as to whether marriage is solemnized with free will of parties and no child is exposed to marriage---Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from parties to marriage preferable which should be in shape of some authentic document either issued by National Database and Registration Authority in the form of National Identity Card, B-Form or School Leaving Certificate, Medical certificate based on ossification test issued by competent authority and Birth Certificate validly issued by Union Council etc. is produced.

Sh. Aamer Habib Siddiqui for Petitioner.

P L D 2020 Lahore 831

Before Muzamil Akhtar Shabir, J

ABDUL AZIZ and 2 others---Appellants

Versus

Ch. ASGHAR ALI---Respondent

F.A.O. No.242 of 2010, heard on 2nd May, 2019.

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

----Ss. 152, 33, 2(2)(9) & O. XX, Rr. 6 & 7---Amendment in the decree---Limitation---Suit was decreed by the Trial Court and plaintiff was declared as owner of suit property and impugned mutation was set aside---Defendant filed appeal against the judgment and decree of Trial Court---Appellate Court modified judgment and decree of Trial Court and granted relief of possession of suit property in favour of plaintiff but while preparing decree sheet the portion of relief of possession was not included therein---High Court dismissed revision petition against the judgment and decree of Appellate Court and same was upheld by the Supreme Court---Plaintiff thereafter moved application for correction of decree sheet before the Appellate Court which was accepted and relief of possession of suit property was included therein---Validity---Decree sheet was to be prepared in accordance with the judgment---Court was bound to draw decree sheet in conformity with the judgment---Appellate Court while drawing decree sheet had not exercised jurisdiction vested in it in circumstances---Only decree was executable not the judgment---Decree sheet drawn by the Appellate Court did not depict the matter in the terms actually decided by the said Court and same was not executable---Decree-holder was not at fault rather Appellate Court had not prepared decree sheet properly---Parties should not suffer due to act or omission of the Court---Where injustice had been caused due to act or omission of the Court then Court was required to remedy the said defect---Court was empowered under S.152, C.P.C. to correct decree in circumstances---Power under S.152, C.P.C. could be exercised by the Court at any stage on the application of any party as well as on its own motion unless decree had been set aside or varied---Rules of limitation were not applicable to acts which the Court could perform by exercising its suo motu powers---Relief of possession of suit property provided in the judgment of Appellate Court had not been set aside or modified therefore, Appellate Court was justified to correct the decree sheet---Appeal was dismissed, in circumstances.

Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Zia ur Rehman v. Syed Ahmad Hussain 2014 SCMR 1015; Government of NW.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Rehmat Wazir and others v. Sher Afzal and others 2005 SCMR 668; Pakistan Industrial Credit and Investment Corporation Ltd. v. Mahboob Industries Ltd. and 10 others PLD 1984 Kar. 82; Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834; Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265; Province of Punjab through Collector, Toba Tek Singh and others v. Muhammad Farooq and others 2012 SCMR 1942; Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and Khurshid Zaman Khan and others v. Mukhtar Ahmad Butt 1999 SCMR 1007 rel.

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

----S. 115---Suo motu revisional jurisdiction, exercise of---Limitation---Limitation could not be treated as a hindrance for exercising suo motu revisional jurisdiction to remedy jurisdictional defect in judgment and decree passed by the Court below.

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

----Ss. 2(2)(9), 33, O. XX, Rr. 6 & 7---"Judgment" and "decree"---Meaning and scope.

The judgment is the statement given by the judge relating to the grounds resulting in the decree passed by the Court and decree sheet is drawn in accordance with the said statement by the Court to express the conclusively determination of rights of the litigating parties, relating to the matter in controversy. The said statement of the judge not only provides the reasons for the decision, it also conclusive determines the rights of the parties and the decree sheet prepared as a result is its formal expression.

The decree had to follow the judgment. Rule 6 of Order XX of C.P.C. provides that the decree sheet shall agree with the judgment and it is required to include number of the suit, the names and description of the parties, particulars of the claim, and clear specification of the relief granted or other determination of the suit. Rule 7 of Order XX of C.P.C. provides that the decree shall bear the date the day on which judgment was pronounced with and additional condition that the judge before signing the decree has to satisfy himself that the decree has been drawn up in accordance with the judgement. The word 'shall' used in phrases 'on such judgment decree shall follow' used in section 33, C.P.C. and 'decree shall agree with the judgment' used in Rule 6 of the Order XX of C.P.C. clearly mean that it was the duty of the Court that decree sheet is drawn up in conformity with the judgment passed by the Court, which duty is to be performed with due diligence, as the mandate of rule 7 makes it imperative for the Judge, before signing the same, to satisfy himself through application of judicious mind that the decree has been drawn up in accordance with the judgment.

Where a provision uses the word 'shall' and requires an authority to do something in a particular manner, it is deemed to be mandatory. [pp. 837, 839, 841] A, B & C

Mst. Mumtaz Begum v. Said Zaman and 11 others 1993 CLC 1202; Messrs Lasbella Industrial Estate Development Authority, Hub through Managing Director and another v. Messrs Prism Printer (Pvt.) Ltd. through Director PLD 2011 Quetta 48; Dilmeer v. Rajab Ali and others 2003 MLD 484 and Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others PLD 1990 Lah. 229 rel.

(d) Administration of justice---

----Where law required an act to be done in a particular manner then it had to be done in that manner alone and if done otherwise then it would be non-compliance of the legislative intent.

(e) Administration of justice---

----Court is bound not only to apply correct law but also to apply the law correctly.

(f) Administration of justice---

----Act of court should prejudice no one.

(g) Administration of justice---

----Parties should not suffer due to act or omission of the Court.

(h) Interpretation of statutes---

----Mandatory or directory provision, determination of---Procedure---Word "shall" used in a provision of law---Scope.

The Collector of Sales Tax Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 rel.

Muhammad Akhtar Rana for Appellants.

Malik Muhammad Imran Joiya for Respondent.

P L D 2020 Lahore 848

Before Anwaarul Haq Pannun, J

PARVEEN BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Revision No. 7500 of 2020, decided on 19th February, 2020.

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

----S. 512---Record of evidence in absence of accused---Scope---Petitioner assailed order passed by trial court whereby her application for transposing to the record of trial, the statement got recorded by complainant under S.512, Cr.P.C. was dismissed---Contention of petitioner was that the complainant was residing out of country; that due to pitched enmity inter-se the parties, his coming to the country for recording of evidence was not safe; that it would cause delay and that the complainant would have to bear expenses unreasonably---Validity---Trial Court had ample power to direct the relevant authorities to ensure the safety of the person of complainant---Trial Court could also consider the possibility of recording of evidence of the prosecution witnesses by resorting to modern devices---Petitioner could not point out any impropriety or illegality in the impugned order---Order accordingly.

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

----S. 512---Record of evidence in absence of accused---Discretionary jurisdiction---Scope---Section 512, Cr.P.C., provides that there being no immediate prospects of arrest of an accused, on fulfillment of legal requirements, proving his absconsion, the court competent to try or send for trial to the court of Sessions or High Court may in absence of such person, examine the witnesses for the offences complained of if produced by the prosecution and record their depositions---On arrest of such absconding accused, such deposition, may be given in evidence against him---Such deposition can only be given in evidence in certain exceptional circumstances, where the attendance of the witnesses, whose evidence has already been recorded under S.512, Cr.P.C., cannot be procured without any unreasonable amount of delay, expenses or inconvenience---Question of reasonableness or otherwise of the delay, expenses or inconvenience can only be determined by the court in the given facts and circumstances of the every individual case before it.

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

----S. 512---Record of evidence in absence of accused---Enabling provision of S.512, Cr.P.C.---Scope---Section 512, Cr.P.C., is enabling in its nature, for catering to certain exceptional circumstances and situations---Section 512, Cr.P.C. enables the court to preserve evidence for its use in certain circumstances against the absconding accused, especially when the prosecution is not at fault, and to safeguard the interest of a party giving evidence against some possible unscrupulous endeavor of the adversaries---Section 512, Cr.P.C. fully takes care of the situation tending to place a party for none of its fault in an awkward and unreasonable situation to its disadvantage.

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

----Ss. 512 & 353---Constitution of Pakistan, Art. 10-A---Record of evidence in absence of accused---Evidence to be taken in presence of accused---Right to fair trial---Scope---Constitution has enhanced the status and attributes of due process of law through insertion of Art. 10-A and right of fair trial has been granted the status of a fundamental right---Constitution guarantees the enforceability of said right for its enjoyment through a legal process by the courts which are the defenders and custodians of such rights of the citizenry---Accused facing the criminal charge, in order to ensure the avoidance to any breach to said fundamental right, demands a nicely drawn balance between the exceptional situations mentioned in S. 512, Cr.P.C. and the mandatory rule embodied in S. 353, Cr.P.C.

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

----Ss. 353, 512 & 537---Evidence to be taken in presence of accused---Record of evidence in absence of accused---Provisions of S.353, Cr.P.C., to be mandatory---Scope---All evidence under Chapters XX and XXII-A of Criminal Procedure Code, 1898, shall be taken in the presence of the accused, except where his personal attendance is dispensed with, it shall be taken in presence of his pleader---Evidence recorded in violation of S.353, Cr.P.C., vitiates the proceedings and such illegality even cannot be cured under S.537, Cr.P.C.---Use of word 'shall' in S.353, Cr.P.C. as compared to word 'may' is sufficient to highlight the importance of recording of evidence in presence of the accused.

(f) Criminal trial---

----Absconsion---Scope---Absconsion of an accused is merely taken as additional circumstance leading to the guilt of an accused provided the charge against him is proved otherwise through unimpeachable incriminating evidence beyond a shadow of reasonable doubt.

(g) Criminal trial---

----Absconsion---Presumption of innocence---Scope---Accused is inherently deemed innocent unless found guilty by the court of competent jurisdiction---Accused can not be held guilty on the basis of proved absconsion as it is not a substitute to the incriminating evidence.

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

----S. 512---Qanun-e-Shahadat (10 of 1984), Arts. 46 & 47---Record of evidence in absence of accused---Section 512, Cr.P.C., duly galvanized with Arts. 46 & 47 of the Qanun-e-Shahadat, 1984, envisages, besides enabling the court to weigh the circumstances judicially before resorting to the exceptions for using any deposition recorded during the absconsion of an accused as evidence against him.

Arbab Tasleem v. The State PLD 2010 SC 642 rel.

Safwan Abbas Bhatti for Petitioner.

Haroon ur Rasheed, Deputy Prosecutor General.

P L D 2020 Lahore 858

Before Muhammad Sajid Mehmood Sethi, J

Syed HUSSAIN HAIDER---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and others---Respondents

Writ Petition No. 127600 of 2017, decided on 29th June, 2018.

(a) Constitution of Pakistan---

----Arts. 139 & 199---Punjab Government Rules of Business, 2011, Rr. 3, 4 & First Sched. Entry No. 30---Provincial Government---Exercise of executive authority per Constitutionally mandated Rules of Business by Provincial Government---Conduct of business of Provincial Government---Formation of a "Planning and Development Board" by Provincial Government---Undertaking projects of Provincial Government by such "Planning and Development Board"---Scope---Question before High Court was whether formation of "Planning and Development Board" by Provincial Government, which was not a department/autonomous body/"attached department" under Punjab Government Rules of Business, 2011; could undertake business and execute projects of Provincial Government---Held, that after promulgation of Punjab Government Rules of Business, 2011 by Provincial Government upon mandate conferred upon it by Art. 139 of Constitution, such "Planning and Development Board" could not undertake projects which fell within the domain of "Planning and Development Department" of Provincial Government instead---Punjab Government Rules of Business, 2011 did not designate any such Board, which was merely a board in name or an empty shell and same could not embark upon undertaking a number of projects and schemes for which it had no mandate---By undertaking projects, the impugned "Planning and Development Board" bypassed long-standing and established Provincial Government departments which were designated under the Punjab Government Rules of Business, 2011---High Court held that formation of "Planning and Development Board" by Provincial Government was not in conformity with Art. 139(3) of Constitution and the Punjab Government Rules of Business, 2011 framed thereunder, and same was dissolved accordingly, with direction to transfer business of said Board to Planning and Development Department of Provincial Government---Constitutional petition was allowed, accordingly.

Dr. Shehla Waqar and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2010 PLC (C.S.) 416; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Muhammad Bachal Memon and others v. Syed Tanveer Hussain Shah and others 2015 PLC (C.S.) 767 and Shahab Usto v. Government of Sindh through Chief Secretary and others 2017 SCMR 732 rel.

(b) Constitution of Pakistan---

----Art. 139---Provincial Government---Conduct of business of Provincial Government---Exercise of executive authority per Constitutionally mandated Rules of business of Provincial Government---Rules of Business of Provincial Government---Nature---Provincial Government did not have discretion to bypass provisions of Rules of Business framed by it and following the same was mandatory and binding on Provincial Government---Failure to follow Rules of Business by Provincial Government would lead to an order lacking any legal validity---Framer of rules was as much bound by the contents thereof as anyone else was subject thereto---Constitutionally mandated rules such as the Rules of Business of Provincial Government were closely intertwined with concept of good governance and allowing departure therefrom would be detrimental to open and transparent forms of governance---To allow Provincial Executive to depart from the language of Rules of Business, in its discretion, would tantamount to legitimizing unconstitutional executive actions---Executive authority of the Province, as exercised by the Provincial Government, was subordinated to Constitutional scheme in relation to conferment of Constitutional powers and responsibility on the three organs of the State.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of quo-warrano---Judicial review of executive authority---Public interest----Scope---High Court under its Constitutional jurisdiction could interfere where violation of law and Constitution was floating; where questions of public interest were raised; where there was unnecessary duplication of work/duty by executive authorities; and where actions against law and Constitution were brought to notice of Court---Any legislative instrument/order if found to be in derogation of any provision of Constitution, then the same could not be allowed to hold field---While adjudicating on vires of a legislative instrument/order, High Court could consider not only the substance of law but also the competence of authority for making the same.

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

Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Muhammad Idrees and 6 others v. Federation of Pakistan through Secretary, Ministry of Defence and 4 others 2015 PLC (C.S.) 183; The Federal Board of Revenue and others v. Messrs Chenone Stores Ltd. 2018 PTD 208 and Moazzam Habib and others v. Federation of Pakistan and others 2018 YLR 222 rel.

(d) Interpretation of statutes---

----Construction of statutory instruments/order having status of law---Attribution of redundancy to statutory instrument/order---Scope---Order or any other instrument having status of law had to be interpreted according to words used therein and no provision of such instrument was to be considered meaningless---Such instrument had to be read as a whole in its context and no part or word thereof could be omitted from consideration---Intention behind such instrument had to be taken into consideration, which could be gathered from looking at the same as a whole, and not in bits and pieces---Redundancy cannot be attributed to any part of such instrument.

Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others 1995 SCMR 1505; Ibrar Hussain and others v. Government of N.W.F.P. through Secretary, Board of Revenue and others 2001 SCMR 914; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; National Bank of Pakistan and 117 others v. Saf Textile Mills Ltd. and another PLD 2014 SC 283; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236 and Muhammad Ismail v. District Coordination Officer and 3 others 2018 PLC (C.S.) Note 49 rel.

Dr. A. Basit and S.M.J. Iqbal Jafree for Petitioner.

Khalid Waheed, Additional Advocate General, Muhammad Ejaz, Assistant Advocate General, Ata Muhammad Khan, Senior Law Officer and Mariyam Mustafa, Legal Expert for Respondents.

P L D 2020 Lahore 869

Before Jawad Hassan, J

PRESSON-DESCON INTERNATIONAL (PRIVATE) LIMITED and others-- Petitioners

Versus

JOINT REGISTRAR OF COMPANIES---Respondent

C.O. No. 25683 of 2019, decided on 8th June, 2020.

(a) Companies Act (XIX of 2017)---

----Ss. 279, 280, 281, 282, 283 & 284---Compromise with creditors and members---Power of Securities and Exchange Commission (Commission) to enforce compromise and arrangement---Information as to compromise or arrangement with creditors and members---Powers of Commission to facilitate reconstruction or amalgamation of companies---Amalgamation of wholly owned subsidiaries in holding company---Scope---Petitioners urged the Court to sanction a Scheme of Arrangement for reconstruction and de-merger---Securities and Exchange Commission took an objection regarding non-disclosure of the transferor company's intellectual property value in the Scheme of Arrangement---Raison d'etre given by the petitioners for non-valuation was that since the beneficial owner of the petitioners/companies was the same family, therefore, valuation was neither required to the Securities and Exchange Commission nor material to the Scheme of Arrangement---Validity---Held; reason given by the petitioners for non-valuation appeared to have due strength---All indispensable statutory benchmarks, requirements and formalities were accomplished and adhered to by the petitioners as envisioned under the relevant provisions of law---Scheme set up for sanction was reinforced and fortified by the requisite majority which seemed to be just and fair---Minutes of meetings unequivocally conveyed that all essential and fundamental characteristics and attributes of scheme was placed before the voters at the concerned meetings to live up to statutory obligations---No impediment existed in the way of grant and sanction of the Scheme of Arrangement---Petition was allowed.

(b) Companies Act (XIX of 2017)---

----Ss. 279, 280, 281, 282, 283 & 284---Compromise with creditors and members---Power of Securities and Exchange Commission (Commission) to enforce compromises and arrangements---Information as to compromise or arrangement with creditors and members---Powers of Commission to facilitate reconstruction or amalgamation of companies---Amalgamation of wholly owned subsidiaries in holding company---Scope---Where the Scheme is found to be reasonable and fair, it is not the sense of duty or province of the Court to supplement or substitute its judgment against the collective wisdom and intellect of the shareholders of the companies involved---Nevertheless, it is the duty of the Court to find out and perceive whether all provisions of law and directions of the Court had been complied with and when the scheme seemed to be in the interest of the company as well as in that of its creditors, it should be given effect to---However, the Court has to satisfy and reassured the accomplishment of some foremost and rudimentary stipulations that was to say, the meeting was appropriately called together and conducted; the compromise was a real compromise; it was accepted by a competent majority; the majority was acting in good faith and for common advantage of the whole class; what they did was reasonable, prudent and proper; the Court was also to satisfy itself as to whether the provisions of the statute had been complied with; whether the Scheme was reasonable and practical or whether there was any reasonable objection to it; whether the creditors acted honestly and in good faith and had sufficient information; whether the Court in the public interest ought to override the decision of the creditors and shareholders.

IGI Insurance Limited and 3 others's case 2018 CLD 572; International Complex Projects Limited and another's case 2017 CLD 1468; Sidhpur Mills Co. Ltd.'s case AIR 1962 Guj. 305; Miheer H. Mafatlal v. Mafatlal Industries Ltd. AIR 1997 SC 506; Dawood Hercules Chemicals and others' case 2012 CLD 582 and Gadoon Textile Mills and others case 2015 CLD 2010 rel.

(c) Companies Act (XIX of 2017)---

----Ss. 279, 280, 281, 282, 283 & 284---Compromise with creditors and members---Power of Securities and Exchange Commission (Commission) to enforce compromise and arrangement---Information as to compromises or arrangements with creditors and members---Powers of Commission to facilitate reconstruction or amalgamation of companies---Amalgamation of wholly owned subsidiaries in holding company---Scope---One of the effects of the sanction of the Court is that it becomes binding upon the company and its members including those who voted against the scheme once the scheme of compromise and arrangement is approved by statutory majority it binds the dissenting minority and the company---Court has the power to give effect to all the incidental and ancillary questions in the effort to satisfy itself whether the scheme has the approval of the requisite majority---Court was not to examine whether there was a scope for better scheme---However, where the Court finds that the scheme is patently fraudulent, it may not respond or function as mere rubber stamp or post office but reject the scheme of arrangement.

IGI Insurance Limited and 3 others's case 2018 CLD 572; International Complex Projects Limited and another's case 2017 CLD 1468; Sidhpur Mills Co. Ltd.'s case AIR 1962 Guj. 305; Miheer H. Mafatlal v. Mafatlal Industries Ltd. AIR 1997 SC 506; Dawood Hercules Chemicals and others's case 2012 CLD 582 and Gadoon Textile Mills and others case 2015 CLD 2010 rel.

(d) Companies Act (XIX of 2017)---

----Ss. 279, 280, 281, 282, 283 & 284---Compromise with creditors and members---Power of Commission to enforce compromises and arrangements---Information as to compromise or arrangement with creditors and members---Powers of Commission to facilitate reconstruction or amalgamation of companies---Amalgamation of wholly owned subsidiaries in holding company---Scope---Court acts like an umpire in a game of cricket who has to see that both the teams play their games according to the rules and do not over stepped in limits---Propriety and the merits of the compromise or arrangement have to be judged by the parties who, as sui juris with their open eyes and fully informed about the pros and cons of the Scheme, arrive at their own reasoned judgment and agree to be bound by such compromise or arrangement.

IGI Insurance Limited and 3 others's case 2018 CLD 572; International Complex Projects Limited and another's case 2017 CLD 1468; Sidhpur Mills Co. Ltd.'s case AIR 1962 Guj. 305; Miheer H. Mafatlal v. Mafatlal Industries Ltd. AIR 1997 SC 506; Dawood Hercules Chemicals and others case 2012 CLD 582 and Gadoon Textile Mills and others case 2015 CLD 2010 rel.

(e) Companies Act (XIX of 2017)---

----S. 279---Compromise with creditors and members---Scope---Basic requirements of S.279 of Companies Act, 2017 detailed.

Basic requirements of section 279 of Companies Act, 2017 are as follows;

(i) there must be a compromise/arrangement/scheme;

(ii) proposed compromise/arrangement was between a company and its creditors;

(iii) application to be made to the Commission;

(iv) Compromise/arrangement supported by meetings;

(v) mandatory filing of material facts relating to the company which is;

(a) financial position;

(b) auditor's report;

(c) latest accounts of the company;

(d) the pendency of any investigation proceedings;

(e) supported by the affidavits. [p. 882] I

(f) Company---

----"Merger"--- Marriage of companies---De-merger--- Corporate divorce---Meaning---Scope---Frequent metaphor of mergers and acquisitions is the marriage of companies---Antonym to marriage is the divorce, and the term "corporate divorce" is used to define how previously merged companies are separated---De-merger is a situation where an entity undertakes a reorganization of its operations and structure, leaving its members in the same economic position as they were immediately before the reorganization---Marger is form of structural readjustment for corporations in which a corporate or trust group splits into two or more entities or groups.

www.businessdictionery.com. ref.

(g) Company---

----"De-merger"---Meaning---Scope---Corporate strategy to sell off subsidiaries or divisions of a company is called de-merger.

(h) Companies Act (XIX of 2017)---

----Ss. 2(16) & 2(23)---Securities and Exchange Commission (Commission)---Scope---Court---Companies Bench of High Court---Powers given to Commission under S.2(16) of Companies Act, 2017 have been delegated to the Court vide Finance Division's Notification SRO No. 840(I)/2017 dated: 17th August, 2017---"Court" has been defined in S.2(23) of Companies Act, 2017, as a "Company Bench of High Court".

(i) Company---

----Valuation---Action of estimating or fixing the monetary or other value of something, especially by a professional evaluator.

Alococer GA and Woodworth C, "Reasons for Valuation" (2005) Issue 150 managing Intellectual Property 76-8 ref.

(j) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----S. 2(g)---"Intellectual property"---Valuation---Scope---Valuation of intellectual property is an act of estimating or fixing the monetary and other values of intellectual property rights (such as patents, copyright, design, trademark, trade secret and other recognized intangible rights).

(k) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----S. 2(g)---"Intellectual property"---Scope---Intellectual property refers to creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce and in general sense, it is used for a set of intangible assets owned and legally protected by a company from outside use or implementation without consent.

Ch. Muhammad Ali and Usman Virk for Petitioners.

P L D 2020 Lahore 888

Before Mirza Viqas Rauf, J

Mst. MAIRAJ BIBI and 4 others---Appellants

Versus

MUHAMMAD SHAFIQUE through L.Rs. and others---Respondents

R.S.A. No.88 of 2009, decided on 14th April, 2020.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 4---Suit for possession through pre-emption---Permission to produce additional evidence subject to payment of cost---Non-payment of cost---Disposal of suit pending miscellaneous application---Effect---Pre-emptors were allowed to produce additional evidence subject to payment of cost but same was not paid---Suit was decreed pending miscellaneous application---Validity---Failure to pay cost was a fault but it was not of such a magnitude that could be made basis for disarming a party from a right which had accrued through a valid order---Non-payment of cost could not be made basis for perpetuating a wrong or injustice which was otherwise apparent on the record and that too without affording the litigant an opportunity to do the needful---Non-payment of cost was neither intentional nor wilful in the present case---Cost could not be deposited due to some oversight at the time of tendering of additional evidence without any objection from the defendants---Non-decision of an application while disposing of a suit did not affect its merits---No substantial error or procedural defect had been pointed out in the impugned judgments and decrees passed by the Courts below---Findings recorded by the Courts below were neither perverse nor arbitrary---Plaintiffs were directed to deposit cost within fortnight accordingly---Second appeal was dismissed in circumstances.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 distinguished.

Mubarak Ahmad and others v. Hassan Muhammad 2001 SCMR 1868; Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Riffat Iqbal v. Mst. Fatima Bibi and others 2007 SCMR 494; Umar Baz Khan (deceased) through L.Rs. v. Syed Jehanzeb and others PLD 2013 SC 268; Peer Bakhsh and others v. Nabi Bakiish and others 2002 YLR 1630 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

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

----S. 100---Second appeal---Scope.

Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

(c) Administration of justice---

----No one should suffer due to an act of the Court.

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

----O. VII, R. 11---Deficiency in Court fee---Plaint, rejection of---Requirement---Plaint should not be rejected on account of deficiency of Court fee unless plaintiff was afforded a chance to make up the said deficiency.

Syed Kaleem Ahmad Khurshid for Petitioners.

Miss Khawar Naheed for Respondents.

P L D 2020 Lahore 899

Before Ayesha A. Malik, J

DAWAKHANA HAKIM AJMAL KHAN (PVT.) LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 3973 of 2017, decided on 5th August, 2020.

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

----Ss. 3, 4, 7 & 32---Alternative Medicines and Health Products (Enlistment) Rules, 2014---Regulatory regime of Drug Regulatory Authority of Pakistan (DRAP)---Enlisting of products---Health related purposes---Petitioners were manufacturers, importers and sellers of diverse products which included alternative medicines, nutraceuticals, food supplements, sanitizers, disinfectants, baby milk, health and over the counter products---Petitioners were aggrieved of the notification issued by authorities to get such products enlisted with DRAP---Validity---Products in question raised health claims as those were intended for or recommended for a health related purpose, which characterized relationship of any substance to a disease or health related condition---In public interest or public welfare, it was important to note that regulating health claim was about risk management, about safety and disclosure for the benefit of public---Objective of regulatory framework was to ensure that the consumer or user of the product was protected from harm and consumers would know what they were buying or consuming---Products of petitioners were classified under Drug Regulatory Authority of Pakistan Act, 2012, as they could be connected with some health related purpose---Products in question were not ordinary consumer products as those had claimed to have some health benefits---DRAP had to ensure products safety, efficiency and quality for the benefit of public---High Court directed DRAP to devise guidelines setting out acceptable standards of evidence required to support health related claims to prove quality, safety, efficacy and effectiveness of product; to rely on international standards, until guidelines were not available and to make known the standards of evidence that any applicant was required to satisfy under the Rules; to give proper hearing to those petitioners who claim that their products or entities did not fall under DRAP's regulatory regime and to pass a speaking order with regard to falling of the product or entity under Drug Regulatory Authority of Pakistan Act, 2012 or Rules and to deal hand sanitizers in view of the Cabinet Decision dated 5-5-2020 during emergency declared for COVID-19---Constitutional petition was dismissed accordingly.

Messrs Azfar Laboratories Private Limited through Directors and others v. Federation of Pakistan through Secretary Ministry of National Health Services and 4 others PLD 2018 Sindh 448 rel.

Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 and State of M.P. v. Rakesh Kohli and another 2013 SCMR 34 ref.

(b) Interpretation of statutes---

----Regulatory objectives---Object---Regulatory objective defines process which the regulator has to follow to identify products and to ensure that the regulations and regulatory framework serves public interest---Entire regulatory framework is designated to effectively achieve and retain policy objectives---Regulator is identified by its objective and usually its policy objectives are evident from the law.

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

----Ss.3 & 7---Drug Regulatory Authority of Pakistan (DRAP)---Regulatory regime---Principle---To fall under DRAP's regulatory regime the product must have a health related purpose and must be presented in a pharmaceutical dosage form---When evaluating health related purpose and pharmaceutical dosage form, DRAP has to ensure that the product is safe, qualitative, efficacious and effective in terms of its intended and recommended use.

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

----Ss. 4 & 7---Enlistment of product---Object, purpose and scope---Enlistment is a provisional allocation of number given to a product or entity (manufacture or import) to authorize manufacture, import and marketing of a product---Provisional certification has become necessary because DRAP has not initiated process of issuing licenses---In order to ensure that a product or entity can continue dealing with its business, the process of enlistment has been devised through Rules---Entity or product has to be enlisted until licensing function becomes operative.

Barrister Haroon Duggal, Mrs. Samia Khalid, Ms. Shafkat Parveen Mughal, Ch. Habib ur Rehman, Hasan Irfan Khan, Ali Mohsin Qazlibash, Miss. Khdija Bukhari, Mirza Saqib Baig, Muhammad Shakeel Taj, Mudassar Hassan, Imtiaz Rashid Siddiqui, Barrister Shehryar Kasuri, Raza Imtiaz Siddiqui, Jamshid Alam, Muhammad Hamza Sheikh, Qadeer Ahmad Qulyar, Sabeel Tariq Maan, Mansoor Usman Awan, Ms. Shazeen Abdullah, Ms. Kashif on behalf of Nawab Saeed Ullah Khan, Muhammad Aslam Sheikh, Sh. Irfan Saeed, Saeed Akhtar Khan Khetran, Ch. Irshad Ullah Chattha, Javaid Aslam, Hafiz Mussab Rasul, Farooq Amjad Meer, Nabeel Rafaqat, Shazad Ahmad Cheema, Dr. Khawaja Tahir Mahmood, Barrister Danyal Ijaz Chadhar, Mian Imran Mushtaq, Syed Kashif Hassan, Zaheer Mirza, Qazi Salman Zahid, Ms. Rafila Anjum Minhas, Muhammad Wasif Shahzad, Muhammad Nadeem Ahmad Malik, Yasir Munawar Cheema, Zahid Imran Gondal, Syed Raza Ali, Sardar M. Ali, Sh. Muhammad Nawaz, Ghulam Murtaza, Ch. Nisar Ahmad Saikhu, Ch. Muhammad Afzal Jutt, Farman Ahmad Bhatti, Muhammad Yousuf Khan-II, Syed Umair Abbas, Mian Abdul Majid, Syed Ali Tahir, Muhammad Asad Riaz, Jabbar Qadir, Muhammad Ahad Nadeem, Rashid Mehmood Khan, Saeed Akhtar Kethran, Munir Hussain Panjutha, Allah Ditta Sial, Muhammad Mustafa Khalid, Muhammad Adeel Gohar, Barrister Asfand Yar Khan Tareen, Qambar Ali Shah, Shamim ur Rehman Malik, Shahid Mehmood Minhas, Ms. Samran Mushtaq Chaudhry, Muhammad Azhar Siddique, Ms. Salma Riaz, Mian Shabir Ismail, Mian Asghar Ali, Muhammad Asif Butt, Sardar Muhammad Asim Javed, Sardar Muhammad Safian Amin, Hasan Ahsan Mian, Abdul Latif, Mian Muhammad Ahmad Chhachhar, Muhammad Amin Bhatti, Syed Samar Rizvi, Malik Azhar Iqbal Khokhar, Rana Intezar, Arslan Yousaf, Sami ul Hassan Rana and Zubair Ahmad Kundi for Petitioners.

Ch. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan, Mrs. Ambreen Moeen and Asad Ali Bajwa, Deputy Attorney Generals for Pakistan, Zahid Sikendar and Ms. Zarish Fatima, Assistant Attorneys General for Pakistan for Respondents (Federation of Pakistan).

Akhtar Javed, Additional Advocate General, Punjab along with M. Aleem Akhtar Cheema, Legal Consultant (PDCU), P&SHD and Muhammad Adnan, Law Officer, CDC Officer Punjab for Respondents (Province of Punjab).

Ahmed Pervaiz and Ms. Scheherezade Shaharyar for DRAP along with Shahrukh Ali, Assistant Director Legal Affairs DRAP.

Syed Muhammad Ghazanfar for Respondents (in W.P. No.2776 of 2017).

Zafar Iqbal Bhatti and M. Saad Ghazi for Respondents (in W.P. No.258002 of 2018).

P L D 2020 Lahore 931

Before Shahid Bilal Hassan, J

IFTIKHAR AHMED---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 28536 of 2020, decided on 17th July, 2020.

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

----Ss. 63, 169 & 497---Discharge of accused---Procedure---Magistrate may discharge an accused person during investigation but the same has to be done on report of police and not at his own---If Magistrate considers that there is no case whatsoever against accused person in custody then accused cannot be kept in custody by restricting his right of liberty---Provision of S.497, Cr.P.C. takes care and to order straight away under S.63, Cr.P.C. is contrary to the provisions of S.497, Cr.P.C.

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

----Ss. 63 & 161---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Discharge of accused on first day of arrest---Complainant was aggrieved of discharge of accused by Magistrate on first day of his arrest on the ground that offence under S.406, P.P.C. was not made out---Validity---Submission of report by police was necessary for such discretion to pass order under S.63, Cr.P.C. to discharge accused justly and fairly---Accused was discharged by Magistrate on the first day of arrest despite the fact that statements of complainant and witnesses recorded under section 161 Cr.P.C. were available on record---Magistrate had not already granted physical remand of accused and police could not collect incriminating evidence against them---High Court set aside such mechanical order of discharge and remanded the matter to Magistrate for decision afresh on remand application filed by police---Constitutional petition was allowed in circumstances.

Muhammad Shafi and others v. S.H.O. and others 1999 PCr.LJ 1345; The State through Advocate-General N.-W.F.P. v. Ubaidullah and another 2005 MLD 1883; Shahid Raza Bhatti v. Magistrate S. 30 and others 1999 MLD 1847; Imran Sattar v. Judicial Magistrate and others PLJ 2001 Lah. 728 and Hidayatullah and others v. State through Advocate General NWFP, Peshawar 2006 SCMR 1920 rel.

Muhammad Maqsood Buttar for Petitioner.

Ch. Muhammad Rafique Jathol for Respondents Nos.5 and 6.

P L D 2020 Peshawar 1

Before Waqar Ahmad Seth, C.J. and Abdul Shakoor, J

MASOOM JAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad and 4 others---Respondents

C.M. No.2224-P of 2019 in Writ Petition No.5265 of 2018, decided on 5th November, 2019.

(a) Constitution of Pakistan ---

----Art. 199---Earlier judgment of Bench consisting of equal Judges of the High Court---Binding effect---Constitution of a Larger Bench---Scope---When a subsequent Bench of the High Court comprising of same numbers of Judges, did not wish to agree with the view of earlier Benches on the same point then instead of giving a different view, it had to request for the constitution of Larger Bench to revisit the earlier view of the Court---Wisdom behind honouring the earlier view of the Benches of the same High Court by the subsequent Bench on the same point of law, was to maintain harmony in the decisions of the Court on the same point of law---If, a Bench of equal numbers of Judges, was permitted to give a different view than the earlier view of the Bench of equal numbers of Judges on the same point of law, it would certainly create chaos and confusion, not only for the public at large, but also for the Courts, subordinate to the High Court.

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

----S. 97---Constitution of Pakistan, Art. 199---Decision of Military Courts/Criminal Courts---Constitutional jurisdiction of the High Court to interfere in such decision---Scope---High Court, in exercise of its judicial review under Art.199 of the Constitution had the mandate to positively interfere with the decisions of the Criminal Courts/Military Courts, against which no right of appeal was available to the accused/convicts, if the case of prosecution was based on no evidence or insufficient evidence, was void, coram non-judice, without jurisdiction and based on mala fide or malice in law.

(c) Administration of justice--

----Constitution of High Court Benches---Scope---(Peshawar) High Court Rules and Orders---Constitution of Larger Bench---Scope---No provision existed either in Peshawar High Court Rules or Civil Procedure Code, 1908, which may give right to a party to a case to make a request for the constitution of Larger Bench.

Qazi Babar Irshad, Additional Attorney General, Shumail Ahmad Butt, Advocate-General and Amir Javed, Advocate on behalf of applicants/respondents Nos.1, 2, 3 and 5.

P L D 2020 Peshawar 7

Before Waqar Ahmad Seth, C.J. and Abdul Shakoor, J

JAVED IQBAL---Petitioner

Versus

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

Writ Petition No.2536-P of 2017, decided on 19th December, 2018.

(a) Prisons Act (IX of 1894)---

----S. 45(11)---Prison-offences---Tampering with record or documents---Maxim: Audi alteram partem---Applicability---Petitioner assailed order of jail authorities whereby Chief Capital Police Officer was directed to re-arrest the petitioner and admit him into jail to undergo his remaining sentence---Held, allegation against petitioner was that he fraudulently got himself releasesd from prison by managing to get a remission of 1080 days (03 years) through bogus documents---Validity---Petitioner was released by the jail authorities and if there was any fraud, a separate criminal case should have been registered against the petitioner and the jail officials who had played active role in release of prisoner were responsible for his release---No action had been taken against said officials---No one could be penalized for the inaction or non-action of public functionaries---Jail authorities should have properly checked and inquired into the authenticity of the documents or the remission order; said authorities were lethargic and negligent for a long period of two and half years and did not take any step regarding the alleged fraud of the petitioner---Jail authorities, in order to arrive at just and logical conclusion, should have associated the petitioner in the inquiry proceedings---Liberty of petitioner could not be curtailed because of negligence on the part of jail authorities, particularly, when he had already undergone major portion of his sentence---Constitutional petition was allowed and the impugned order was set aside.

(b) Administration of justice---

----No one should be penalized for the inaction or non-action of public functionaries.

Noor Alam Khan for Petitioner.

Qaiser Ali Shah, A.A.G. for Respondents.

P L D 2020 Peshawar 10

Before Musarrat Hilali and Abdul Shakoor, JJ

AKBAR KHAN---Petitioner

Versus

SAID GUL and 2 others---Respondents

Writ Petition No.3347-P of 2017, decided on 19th March, 2019.

Constitution of Pakistan---

----Arts. 260 & 199---Constitutional jurisdiction of High Court---Scope---Holder of public office"---Directors of Public Limited Company---Scope---Question before the High Court was whether for purpose of jurisdiction of High Court under Art.199 of the Constitution, could a Director of a Public Limited Company be considered a "holder of public office"---Held, that although the term "public office" had not been defind under Art.260 of the Constitution, it generally referred to any person working in the Public Sector, whether in Parlimentary Government or Municipal institutions, and could be an elected official or person appointed to work in public administration---Director of the Public Limited Company had nothing to do with the Federal, Provincial or Local Governments and therefore was not amenable to Constitutional jurisdiciton of High Court.

Petitioner in person.

Barrister Adam Hassan Malik for Respondents Nos. 1 and 2 and Syed Haziq Ali Shah for Respondent No.3.

P L D 2020 Peshawar 15

Before Ijaz Anwar and Shakeel Ahmad, JJ

NASIR KHAN---Petitioner

Versus

DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No.637-A of 2011, decided on 8th October, 2019.

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

----Ss. 169, 170 & 173---Khyber Pakhtunkhwa Anti-Corruption Establishment Ordinance (XX of 1961), S. 8--- Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1965, Rr.8 & 11---Dropping of case---Cancellation of FIR---Procedure---Provisions of West Pakistan Anti-Corruption Establishment Ordinance, 1961 and West Pakistan Anti-Corruption Establishment Rules, 1965 are in addition to Criminal Procedure Code, 1898 and Police Rules, 1934---For all matters not expressly provided without recourse to Cr.P.C., neither FIR can be cancelled nor criminal case can be closed---Decisions made under R.8(4) of Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1965 for dropping a case is considered final and no further procedure is provided as such, there is either deficiency or lacuna left in Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1965---Whatever course investigating officer adopts, i.e., whether acts under S.169 or 170 Cr.P.C., it is incumbent upon him to submit a final report under S.173, Cr.P.C. with regard to result of his investigation to a competent Magistrate.

Habib v. The State 1983 SCMR 370 and Dr. Muhammad Salman Ashraf v. Director, Anti-Corruption Establishment, Punjab, Lahore 2004 YLR 2962 rel.

(b) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 477-A---Khyber Pakhtunkhwa Anti-Corruption Rules, 1999, R.8---Criminal Procedure Code (V of 1898), S. 173---Police Rules, 1934, Chap.24.7---Constitution of Pakistan, Art. 199---Constitutional petition---Dropping of case---Withdrawal of F.I.R.---Restoration of criminal case---Petitioner was aggrieved of dropping of case and withdrawal of F.I.R. against accused and sought Constitutional jurisdiction of High Court for restoration of the same---Validity---Provisions of R.8 of Khyber Pakhtunkhwa Anti-Corruption Rules, 1999 was violative of statute and to that extent it required amendment---High Court directed that after completion of investigation, if competent authority reached conclusion that case was liable to be dropped or required to be recommended for departmental action, final report as required under S.173, Cr.P.C. would be submitted before the Trial Court---Procedure provided under S.173, Cr.P.C. was applicable and it was up to the Trial Court either to agree or disagree with the same after considering evidence collected during investigation of case---High Court struck down orders of Director Anti-corruption Establishment, KPK dropping cases against accused---Constitutional petition was allowed in circumstances.

M.Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 and Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 rel.

Muhammad Ilyas Khan and Hafiz Muhammad Amjad for Petitioner.

Sardar Muhammad Asif, Assistant Advocate General for official respondents along with Mohammad Sohail, AD Crime Anti-Corruption, Abbottabad and Haji Ghulam Basit and Hafiz Kalal Khan for private Respondents.

P L D 2020 Peshawar 25

Before Wiqar Ahmad, J

GULA JAN---Appellant

Versus

JAN WALI---Respondent

R.S.A. No.17-M of 2018 with C.M. No.1150-M of 2018, decided on 19th September, 2019.

Federally Administered Tribal Areas Interim Governance Regulations, 2018 (since repealed)---

----S. 36---Constitution of Pakistan, Arts.247(4) & 247(5) (since repealed)---With the repeal of Art.247 of the Constituiton, all the regulations (relating to tribal areas) promulgated by the President of Pakistan or Governor of Khyber Pakhtunkhaw, ceased to exist.

FATA Interim Governance Regulations, 2018 was promulgated by the President of Pakistan in exercise of powers vested in him by Article 247(5) of the Constitution. With the repeal of Article 247, through the Twenty-Fifth Constitutional Amendment Act, 2018, without providing for any saving clause, all the Regulations promulgated by the President of Pakistan under Article 247(5) or by the Governor under Article 247(4) of the Constitution or before the enactment of the Constitution, seized to exist. The case of FATA Interim Governance Regulation, 2018 was no different than the other Regulations which seized to exist.

National Commission On Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218 ref.

Muhammad Mushtaq Khan for Appellant.

Amjad Ali for Respondent.

P L D 2020 Peshawar 27

Before Rooh-ul-Amin Khan and Muhammad Nasir Mehfooz, JJ

MUHAMMAD BILAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.1118-P of 2019, decided on 21st November, 2019.

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

----Ss. 302(c) & 100---Criminal Procedure Code (V of 1898), S.342---Juvenile Justice System Ordinance (XXII of 2000), S. 6---Qatl-i-amd---Appreciation of evidence---Confessional statement, retraction of---Scope---Statement of accused, a juvinile under S.342, Cr.P.C. stating therein that his confession was not voluntary etc.---Effect---Exceeding of right of self-defence---Scope---Complainant lodged F.I.R. against accused for committing qatl-i-amd of his brother---Trial Court convicted and sentenced accused person to imprisonment on basis of his confession---Held, conviction of accused could be recorded on basis of retracted judicial confession if same was recorded voluntarily, true and corroborated by other strong circumstances of case---Mere denial of accused in his statement under S.342, Cr.P.C. that confession was not voluntary or that he had not made such statement would not make his confessional statement inadmissible---Accused, a juvenile, had committed murder of deceased due to sexual blackmailing by deceased and accused by selecting to hit vital part of body of the deceased, i.e., skull had exceeded right of self-defence---Accused by taking shelter of S.100, P.P.C., could not be acquitted---Keeping in view the juvenility of accused and peculiar facts and circumstances of case, ten years' rigorous imprisonment already awarded to the accused by the Trial Court was maintained by the High Court---Appeal was dismissed in circumstances.

Manjeet Singh v. The State PLD 2006 SC 30 rel.

(b) Criminal trial---

----Confessional statement---Direct evidence, absence of---Procedure--- Whenever prosecution is relying on solitary confessional statement of an accused and there is no direct evidence then confessional statement of accused is to be accepted or rejected in whole/toto---Where direct and circumstantial evidence is available besides confessional statement of accused, in that eventuality, portion of confessional statement which supports version of prosecution would be taken into consideration while other portion of confessional statement which is inconsistent with it would not be taken into account.

Gana Ram v. The State 1999 PCr.LJ 490 and Ajab Khan v. The State 1995 MLD 1190 rel.

Muhammad Riaz for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Muhammad Abid for the Complainant.

P L D 2020 Peshawar 35

Before Waqar Ahmad Seth, C.J. and Muhammad Naeem Anwar, J

ASMAT ULLAH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Civil Secretariat and 4 others---Respondents

Writ Petition No.53681-P of 2019, decided on 20th November, 2019.

(a) Constitution of Pakistan---

----Arts. 142, 143 & Sr. 26, Part I, Federal Legislative List---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Preamble---Subject-matter of Federal and Provincial laws---Inconsistency between Federal and Provincial law---Effect---Opium sale for export---Occupied field, doctrine of---Applicability---Scope---Petitioner challenged the vires of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 on the ground that the Provincial Assembly had no jurisdiction to enact the same when law on the same subject, i.e. Control of Narcotic Substances Act, 1997 was already in field---Validity---Power of Provincial Assembly for legislation was provided under sub-cl.(b) and (c) of Art.142 of the Constitution---Provincial Assembly had the power to make law in respect of any matter which was not specifically enumerated in the Federal Legislative List---Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 apart from "opium" contained cannabis, coca bush, coca derivative, coca leaf, manufactured drug, medical hemp, methamphetamine, narcotic substance and psychotropic substance which were not mentioned in the Federal Legislative List, as such, there was no impediment for the Provincial Assembly to make legislation with respect to the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and the doctrine of occupied field did not apply---Provincial Assembly had enacted the law and to that extent the applicability of Control of Narcotic Substances Act, 1997 had been repealed---Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 was enacted within the sphere and powers of the Provincial Assembly---Constitutional petition was dismissed.

Shams Textile Mills Ltd. v. The Province of Punjab 1999 SCMR 1477 and Lahore Development Authority v. Ms. Imrana Tiwana 2015 SCMR 1739 rel.

(b) Constitution of Pakistan---

----Art. 142---Subject-matter of Federal and Provincial laws---Scope---Question before High Court was as to whether the Control of Narcotic Substances Act, 1997, being Federal Law was an impediment for Provincial Assembly to legislate on the same subject---Held; Provincial Assembly, under Art.142(c) of the Constitution was vested with the power to legislate in any matter if not provided in the Federal Legislative List---Over and above, the Provincial Assembly under Art.142(b), of the Constitution had the power to make the law with respect to criminal law and criminal procedure, so, notwithstanding the Control of Narcotic Substances Act, 1997, Provincial Assembly in order to meet the socio economic well being of the people of the Province, in the sphere as embodied in the Preamble of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, had the mandate to legislate on the subject---Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Arts. 8, 10 & 199---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 27, 28, 29, 30 & 32---Vires of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Laws inconsistent with or in derogation of Fundamental Rights---Safeguards as to arrest and detention---Scope---Petitioner assailed the vires of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 on the ground of being violative of Art.10 of the Constitution---Validity---Article 10 of the Constitution provided safeguards as to arrest and detention---Provincial Assembly had, within the parameters of cls.(1) and (2) of Art.10, enacted Ss.27 to 30 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 which provided mechanism and safeguarded the Fundamental Rights of citizens so that an innocent person could not be dragged into an unwarranted situation---Section 32 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 provided punishment for vexatious entry, search, seizure or arrest---Constitutional petition, being misconceived, was dismissed.

Amir and others's case PLD 2004 Quetta 16 rel.

(d) Constitution of Pakistan---

----Arts. 8, 10-A & 199---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 22, 23 & 24---Constitutional petition---Laws inconsistent with or in derogation of Fundamental Rights---Right to fair trial---Establishment of Special Courts---Jurisdiction to try offences---Appeal---Scope---Petitioner assailed the vires of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 on the ground of being violative of Art. 10-A of the Constitution---Validity---Article 10-A of the Constitution gave the right to fair trial, whereas in Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 Ss.22 to 24 provided "Establishment of the Special Court", "Jurisdiction to try offences" and "Appeal" within the meaning of the right of fair trial---Establishment of Special Court was with the intention to provide expeditious and speedy trial---Contention of petitioner assailing the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2009 was misconceived, therefore, constitutional petition was dismissed.

(e) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2009)---

----Preamble---Vires of legislation---Where all offences under the statute were cognizable and non-bailable but nowhere the statute provided the provisions of release of an accused person on bail either before the commencement of trial or when trial delays for any reasons beyond the control of an accused---Law stressed the principle of presumption of innocence---Said principle embodied freedom from arbitrary detention and provided a safeguard against punishment before conviction for the reason that ultimate conviction and incarceration of a guilty person could repair the wrong caused by mistaken relief of interim bail granted to him but there is no satisfactory compensation to an innocent person at any stage of the case, albeit his acquittal in the long run---High Court directed the Government to streamline the law in order to maintain strict discipline in the society.

Noor Alam Khan for Petitioner.

Syed Qaiser Ali Shah, AA.G. for Respondents.

P L D 2020 Peshawar 44

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ANWAR ALI---Petitioner

Versus

DISTRICT MAGISTRATE DIR UPPER and 8 others---Respondents

Writ Petition No.1156-M of 2019, decided on 5th November, 2019.

(a) Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 10---Right of liberty and detention---Principle---Framers of the Constitution took great pain for ensuring liberty of citizens of the State and for taking proper safeguards against unlawful arrest and detention by the State authorities---Balance has also been tried to be struck between right of liberty of an individual and maintenance of public peace, order and harmony in society---Any law providing for preventive detention has to be compliant with mandate of Art. 10 of Constitution and only then can it be saved from operation of Arts.10(1) and (2) of Constitution.

(b) Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention---Narcotics peddler---Accused person was an alleged narcotics peddler who was detained by authorities under S.3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---Validity---No allegations of smuggling were mentioned in order of detention of accused issued under S.3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---Alleged act of accused had got no nexus with purpose and object of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---If government wanted to deal with accused they had at their disposal a robust legal regime in form of Control of Narcotic Substances Act, 1997 wherein Legislature took care to deal with all aspects of business in trade of narcotics---Accused even if found to have been dealing with any such business of selling narcotics could have been dealt with under provisions of such law---Recourse to provisions of S.3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960 was not at all justified---High Court in exercise of Constitutional jurisdiction set aside order of detention as same passed in respect of accused was found to be suffering from jurisdictional defect and passed without lawful authority---Constitutional petition was allowed in circumstances.

Arshad Ali Khan v. Government of Punjab 1994 SCMR 1532; Liaqat Ali v. Government of Sindh PLD 1973 Kar. 78 and The Murree Brewery Company Limited v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 rel.

Aziz Ahmad Hashmi for Petitioner.

Wilayat Ali Khan, A.A.G. for Respondents.

P L D 2020 Peshawar 52

Before Waqar Ahmad Seth, C.J. and Ms. Mussarrat Hilali, J

SHABBIR HUSSAIN GIGYANI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary and 9 others---Respondents

Writ Petition No.3035-P of 2019, decided on 17th October, 2019.

(a) Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (III of 2019) ---

----S. 3 & Preamble---Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act (XXIV of 2019), Preamble---Actions (in Aid of Civil Power) Regulation, 2011, Regln. 11 & Chapt. V---Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance (V of 2019), S. 11 & Preamble---International Covenant on Civil and Political Rights (ICCPR), 1966, Art. 9(4)---Constitution of Pakistan, Arts. 4, 8, 9, 10, 10A, 15, 17, 19 & 25 & Fourth Sched., Pt.1, Sr. No. 1-Criminal Procedure Code (V of 1898), S. 61---Internment centers operating in erstwhile Federally Administered Tribal Areas---Constitutionality---Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act, 2019 coupled with Actions (in Aid of Civil Power) Regulation, 2011 were ultra vires of the Constitution---High Court directed the relevant Provincial Secretary to notify all the Internment Centers, as Sub-Jails in accordance with law and Provincial Inspector General of Police was directed to take control of all such sub-jails so declared---Constitutional petitions were allowed with certain directions.

Action (in Aid of Civil Power) Regulation, 2011 ('the 2011 Regulations') stood omitted/deleted by virtue of (Twenty Fifth) Constitutional amendment, introduced on 4-6-2018, which was effective/applicable to the Federally Administered Tribal Areas (FATA) of Pakistan. Sensing the situation that the 2011 Regulation ceased to exist and no further legislation/rules, bye-law etc were not made, the Provincial Government promulgated the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 ('the 2018 Act') and the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act,2019 ('the 2019 Act').

Act/Ordinance/Regulation enacted by the Federation which was not in existence at all could not be made to continue in a Province. The continuation of Action (in Aid of Civil Power) Regulation, 2011, through the 2018 and 2019 Acts on the face of it was defective legislation. Said two acts were promulgated on 10-01-2019 and 03-05-2019 respectively; whereas the (Twenty-Fifth) Constitutional Amendment was introduced on 4-6-2018.

Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019 ('the 2019 Ordinance') was promulgated on 5-8-2019 by the Provincial Governor. Plain reading of Serial No.1 of Part 1 to the Fourth Schedule to the Constitution and the Preamble of the 2019 Ordinance showed that such legislation was the job of the Federation and according to the Federal Legislative List the Bill was to be introduced by the President and not by the Provincial Governor. As such the Governor had no authority whatsoever to pass such the 2019 Ordinance in the given circumstances. Furthermore the provisions of the 2019 Ordinance violated almost all the fundamental rights enshrined in the Constitution, specially the mandatory provisions of Articles, 4, 8, 9, 10, 15, 17, 19 and 25.

Under the 2011 Regulation and 2019 Ordinance there was no concept of trial etc rather it was 'preventive detention' only and the duration of the internment was given in section11 of the 2019 Ordinance which read "the power of intern shall be valid from the date when this Ordinance deemed to have come into force, or on the day the order of internment is issued, whichever is earlier, till the continuation of Action in aid of civil power". Same wording was used in Regulation 11 of the 2011 Regulations. Looking at both said provisions on the touchstone of violation of fundamental rights as enshrined in the Constitution along with law of the land, section 61, Cr.P.C prescribed that "persons arrested not to be detained for more than 24 hours". No law enforcing agency was to detain in custody a person arrested without warrant for period longer than 24 hours. In the present cases, the Armed Forces were not the law enforcing agencies, but had been given the powers to detain the person indefinitely. In the internment centers, the detenues were kept for years with no access to the lawyers and they were denied meeting with their families/closed blood relations nor any charge was communicated to them. Neither there was any time (frame) given for prosecuting them.

Internment centers were in the control of Armed Forces and not with the civil administration, as claimed. Even in the presence of the 2011 Regulations and the 2019 Ordinance, no clear picture regarding the operation, functioning, management etc of internment centers was disclosed to the Courts, which showed the mala fide, ill-will and unconstitutional acts of the Armed Forces, as well as the civil administration. Using camouflage activities the citizens of erstwhile tribal area were treated inhumanly and unconstitutionally. Since the inhabitants of the erstwhile tribal areas, the Province and the entire country were equal after the Twenty-fifth Constitutional Amendment, they all enjoyed (the same) the protection of law.

The 2011 Regulations and the 2019 Ordinance clearly violated the entire human rights enshrined in the Constitution. Citizens of the country under no circumstances could be put to the mercy of Armed Forces for an indefinite period, or for investigation, prosecution or trial. Now here in the world preventive detention was for an indefinite period without providing the reasons for such detention. The 2019 Ordinance gave sweeping powers to members of the Armed Forces, including the power to detain people without charge or trial on a number of vaguely defined grounds where it appeared that such internment would be expedient for peace. Individuals could be detained for an unspecified period without any right to be brought before a court of law or to challenge the lawfulness of their detention before a Court. In addition to the vague and overbroad detention provisions, the 2019 Ordinance provided that statements or deposition by members of the armed forces shall on their own be sufficient for convicting the detainees if they were tried for any offence. The said Ordinance also provided wide immunity for armed forces for any action done, taken, ordered to be taken, or conferred, assumed or exercised by, before or after the promulgation of the 2019 Ordinance. The 2019 Ordinance was incompatible with "fundamental rights" guaranteed by the Constitution, as well as the country's international legal obligations, including under the International Covenant on Civil and Political Rights (ICCPR).

The 2019 Ordinance and 2011 Regulations gave complete control to the Armed Forces, whereas under no law the Armed Forces could prosecute civilians, and as such the said two laws were also hit by the law laid down by the Supreme Court in the case of Malik Mumtaz Qardi v. The State and others (PLD 2016 SC 17).

PLD 2019 SC 218 and Malik Mumtaz Qadri's case PLD 2016 SC 17 ref.

Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, the Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Federally Administered Tribal Areas Act, 2019 coupled with Actions (in Aid of Civil Power) Regulation, 2011 were ultra vires of the Constitution. Besides the 2019 Ordinance was of no lawful authority. High Court directed that the Provincial Secretary Home was to notify all the Internment Centers, as Sub-Jails in accordance with law within 24 hours, from the receipt of present judgment and Provincial Inspector General of Police (IG) for prisons was to take control of all such sub-jails so declared, within next three days; that the Provincial IG Prisons shall release all the internees who were not charged in any case and a period of 90 days preventive detention had lapsed from the date of their arrest; that all those who had been charged shall be produced before competent Court of law duly established in the area, failing which the Provincial Secretary Home and the Provincial IG Prisons, would be responsible for the life and liberty of the people interned in the internment centers, and that the Provincial Secretary Home as well as the IG Prisons shall prepare a list of the internees and produce the same in the Court/proceedings of missing person cases.

(b) Constitution of Pakistan ---

----Arts. 184(3) & 199& Pt. II, Chapt. 1---Legislative enactment---Power of superior Courts to strike down a legislative enactment---Grounds---Legislative enactment could be struck down by the Courts only on two grounds; firstly where the appropriate legislature did not have competency to make the law and secondly, where it abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provision.

2015 SCMR 1739 ref.

(c) Constitution of Pakistan ---

----Art. 199---Constitutional petition---Maintainability---Law inconsistent with or in derogation of fundamental rights---Aggrieved person---Scope---Pro bono publico---Where any person filed a (Constitutional) petition alleging that a law contravenes any fundamental rights conferred by the Constitution, the High Court was obliged to examine the same in its constitutional jurisdiction and could not refuse to agitate the same by pro bono publico.

PLD 2012 Bal. 57 ref.

Dr. Adnan Khan and Petitioner in person.

Shumail Ahmad Butt A.G. and Qazi Babar Irshad, A.A.G. (Federation) for Respondents.

P L D 2020 Peshawar 70

Before Syed Muhammad Attique Shah, J

MOMIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 49-D of 2019, decided on 7th November, 2019.

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

----S. 265-D---Penal Code (XLV of 1860), S.377---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss.53 & 61---When charge to be framed---Omission to frame charge under relevant section---Effect---Accused assailed his conviction under S. 377, P.P.C.---Validity---Complete challan against accused was submitted by police under S.377, P.P.C., read with S. 53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 but the Trial Court had framed charge only under S.377, P.P.C. and nothing was available on record to show that the Trial Court had found S.53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, to be not applicable---Section 61 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, provided that the provisions of the Act had an overriding effect, notwithstanding anything contained in any other law for the time being in force, with the exception of any section or sections of any other law, which could be more protective in case of a child at risk---Section 377, P.P.C. was more protective in the present case---Omission of Trial Court to frame charge under S.53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, was against the parameters of law and thus, the impugned judgment was not sustainable in the eyes of law---Appeal was accepted and the case was remanded to the Trial Court for de-novo trial.

(b) Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010)---

----S. 53---Penal Code (XLV of 1860), S. 377---Sexual abuse---Unnatural offence---Scope---Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 has been promulgated to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the province and the Act has been given overriding effect---Practice of police registering cases against accused persons simultaneously under S.377, P.P.C. and S.53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 is not justified.

(c) Interpretation of statutes---

----Special and general law---Scope---Special law overrides the general law.

(d) Interpretation of statutes---

----Parallel laws---Scope---Where there are two parallel laws then the law which is later in time would prevail.

Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426 ref.

Haji Muhammad Shakeel for Appellant.

Adnan Ali, Asstt: A.G. for the State.

Muhammad Kamran Baloch for Respondent No.2.

P L D 2020 Peshawar 74

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

NASEER KHAN---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 4 others---Respondents

Writ Petition No. 2725-P of 2019, decided on 18th September, 2019.

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

----S. 9(a)(v)---Benami transaction---Dispute of ownership---Prerequisites---For a benami transaction there are certain requirements especially when dispute is between real owner and benamidar---If dispute is between third party on one hand and real owner and benamidar on other hand, then its consideration would lose its importance---Conduct of parties and surrounding circumstances in such a situation, are to be kept in view---To determine whether a transaction was a benami one or not, source of consideration money and possession of title documents are essential elements to determine nature of transaction---Where dispute arose between benamidar and real owner or in case of third party some traits for benami transaction are; (i) source of consideration; (ii) from whose custody original title deed of property is produced and who possesses prior deed by which vendors proved their own title; (iii) who is in possession of property and; (iv) motive for benami transaction---Benami being neither a law nor rule, extreme caution is to be observed when a genuine transaction is to be made in good faith---Said facts are to be taken into consideration to arrive at a just and fair conclusion whether transaction is benami or not.

Iqbal Ahmed Turabi v. The State PLD 2004 SC 830 rel.

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

----S. 265-K---Words 'at any stage'---Connotation---Use of expression 'at any stage' of the case is indicative enough of intention that any stage could be very initial stage, after taking cognizance or it could be a middle stage after recording some statements or even it could be later stage as well---Provisions of S.265-K, Cr.P.C. were to be used with great care and caution.

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

----S. 9(a)(v) & (b)---Criminal Procedure Code (V of 1898), S. 265-K---Acquittal at any stage---Summoning of material witnesses---Possession of property---Accused was facing trial as benamidar of principal accused and filed application for acquittal but Trial Court set aside the same---Plea raised by authorities was that allowing application under S. 265-K, Cr.P.C. would prejudice case of other accused persons---Validity---Trial Court was fully competent to appraise, analyze and scrutinize prosecution evidence with a view to find out whether charge was groundless or that there was no satisfactory and reliable evidence to establish guilt of accused---Where there were more accused than one and one of them moved an application under S. 265-K, Cr.P.C. then in such a situation approach of court, to analyze and appraise evidence would be different from one where there is only one accused facing trial---Prosecution, in the present case, had to produce 20 more witnesses and any other witness of their choice to prove allegations against accused---High Court declined to interfere in orders passed by Trial Court as acquittal of accused could prejudice case of co-accused---Constitutional petition was dismissed in circumstances.

(d) Benami transaction---

----Ingredients.

Iqbal Ahmed Turabi v. The State PLD 2004 SC 830 rel.

Barrister Waqar Ali Khan for Petitioner.

Sohail Jadoon, A.D.P.G., NAB for Respondents.

P L D 2020 Peshawar 79

Before Wiqar Ahmad, J

ISLAM UD DIN through L.Rs. and others---Petitioners

Versus

Mst. HAJJ BEGUM and others---Respondents

Civil Revision Petition No. 391-M of 2019, decided on 7th November, 2019.

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

----O. XXI, R. 10 & Ss. 47, 2(2)(3)---Suit for declaration---Inheritance---Execution petition---Objection petition---Decree and decree holder---Words "parties" contained in S.2(2), C.P.C.---Scope---Suit was decreed that legal heirs of deceased would be entitled to their due shares in the inheritance---Defendants filed execution petition wherein plaintiffs moved objection petition that no decree had been passed in favour of defendants and execution petition was not maintainable---Objection petition was dismissed concurrently---Validity---Suit property had been declared in the ownership of predecessor of the parties---Defendants being legal heirs of deceased were entitled to their due shares according to Law of Inheritance---Words 'parties' had been used in S.2(2), C.P.C. rather than plaintiff or plaintiffs---Decree determined the rights of plaintiffs or defendants---When decree had determined certain rights to which defendant or defendants were held entitled then in such a case the defendants would be included in the definition of 'decree holder' or 'holder of a decree'---Words 'decree holder' or 'holder of a decree' could not be restrained to the persons who stood on the panel of plaintiffs during proceedings of the case---Once court had declared some rights enforceable then all the persons entitled under such a decree would be entitled to file execution petition regardless of the fact they were plaintiffs or defendants---Executing Court was to determine as to how much was the share of each of the successors according to Law of Inheritance and whether any of the legal heirs had received or sold any part of his property---Court for the said determination should record evidence and then proceed in accordance with law---Revision was disposed of, in circumstances.

PLJ 2013 (sic) 164; 2014 YLR 1193 and 2017 MLD 1180 ref.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Chunilal Jamnadas v. Mulchand Harijivandas AIR 1923 Bom. 23(2); Swaminatha Mudaliar v. Kumaraswami Chettiar and others AIR 1923 Mad. 472(2); 2010 SCMR 973; PLD 1973 SC 418; 1995 SCMR 435; PLD 1986 SC 150; 2005 SCMR 1144; 2010 SCMR 973 and AIR 1941 Cal. 670 rel.

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

----S. 2(2)(3)---Words 'decree', "decree holder", "holder of a decree" and "parties" as used in S.2(2), C.P.C.---Connotation.

Decree actually connotes the conclusive determination of rights of the parties with regard to all or any of the matters in controversy in the suit. The word "parties" have been used rather than plaintiff or plaintiffs. It clearly means that a decree may determine the rights of the plaintiffs or the defendants. When the decree determines certain rights to which the defendant or defendants are held entitled, then in such a case the defendants would also be included in the definition of "decree holder" or "holder of a decree". The words "holder of a decree" or "decree holder" cannot therefore be restrained to the persons who have stood on the panel of plaintiffs during proceedings of the case. Such a narrow interpretation would compel repetition of adjudication in Courts of law and parties would be litigating for declaration of such rights which are already settled and declared by the Courts. Neither the Courts nor the parties in this busy age of today can afford the luxury of successive rounds of litigation for settling and resettling the already declared rights. When the Courts once declares some right after a due process and finds it enforceable and such a decision gets finality then all the people entitled under such a decree would be entitled to fall in the definition of "holder of a decree" for the purpose of filing an application under Order XXI, Rule 10, C.P.C., regardless of the fact whether they stood on the panel of plaintiffs or on the panel of defendants. The "holder of a decree" would mean a person who is entitled to enforcement of a right under a decree.

Gauhar Ali Khan and Ali Namdar for Petitioners.

Adil Khan Tahirkheli for Respondents.

P L D 2020 Peshawar 89

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

MUHAMMAD TARIQ AFRIDI-Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad and another---Respondents

Writ Petition No.4552-P of 2019, decided on 5th March, 2020.

Constitution of Pakistan---

----Art. 175-A---Parliamentary Committee---Powers---Scope---Expunction of remarks---Petitioner was recommended by Judicial Commission for appointment as Additional Judge of High Court---Parliamentary Committee rejected the nomination of petitioner with certain observations to his professional abilities---Validity---While rejecting petitioner's nomination and sending its decision to the Commission, the Committee acted within the Constitutional mandate---High Court declined to take any exception to the decision of Parliamentary Committee---Findings on the petitioner's professional competence and compromising attitude were beyond the mandate of Parliamentary Committee---High Court set aside the findings made by Parliamentary Committee and expunged such findings of the Committee from its decision---High Court maintained the decision of Parliamentary Committee to the extent of sending the petitioner's case to Judicial Commisison for its confirmation or otherwise in terms of 2nd proviso to Art.175-A(12) of the Constitution---Constitutional petition was dismissed accordingly.

PLD 2012 SC 1067; Munir Hussain Bhatti, Advocate v. Federation of Pakistan and another PLD 2011 SC 407; PLD 2010 SC 1165 and PLD 2007 SC 52 ref.

Munir Hussain Bhatti, Advocate v. Federation of Pakistan and another PLD 2011 SC 407 rel.

Qazi Muhammad Anwar and Abdus Samad Khan for Petitioner.

Qazi Babar Irshad, Additional Attorney General along with Muhammad Javed Iqbal, Deputy Direcetor Senate Secretariat, Islamabad for Respondents Nos. 1 and 2.

Amjad Ali Shah on behalf of Pakistan Bar Council.

Shah Jehan Khan Swati advocate/respondent No.4 in person.

P L D 2020 Peshawar 94

Before Muhammad Naeem Anwar, J

PAK MUHAMMAD---Petitioner

Versus

Mst. ROZEENA WASEEM and another---Respondents

Civil Revision No.1231-P with C.M. No.1696-P of 2019, decided on 16th December, 2019.

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

----S. 12(2)---Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959), S. 13---Eviction of tenant---Bar to further suits---Scope---Petitioner filed applications under S.12(2), C.P.C.), before the Rent Controller challenging the decrees on the ground of fraud and collusion between the alleged landlord and alleged tenant---Case of petitioner was that he had purchased the disputed premises from the original owner and the respondents had no connection with it---Rent Controller and Appellate Court concurrently dismissed the applications under S.12(2), C.P.C.---Validity---Title of petitioner was sub judice before the civil court against the vendor, who had denied the version of petitioner---Petitioner had to prove his title before the civil court through solid and concrete evidence---Original owner had transferred the property through registered deed in favour of alleged landlord---Pendency of civil suit did not affect the proceedings before the Rent Controller---Petitioner could not point out his locus standi and factum of fraud practiced upon the court---Revision petition was dismissed, in circumstances.

Muhammad Akbar Ali v. Mst. Fatima Bibi and others 2019 YLR 1763 rel.

Mrs. Ghazala Arif v. Muhammad Aftab 2016 CLC 120; Dr. Shabbir Hussain Hyderi v. Syed Rizwan Hussain Rizvi 2017 MLD 953; Sharafat Ali Khan v. Akram Ali Khan 2012 CLC 1368 and Haji Altaf Ahmad v. Haji Ahmad Din 2006 MLD 1240 ref.

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

----S. 12(2)---Bar to further suits---Framing of issues---Scope---Framing of issues in process of every application under S.12(2), C.P.C. is not sine qua non. [p. 98] C

Basharat Amjad Hussain v. Additional District Judge 2019 CLC 252 rel.

2018 CLC 1471; 2014 YLR 2329; 2012 CLC 1536 and 2011 MLD 1956 ref.

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

----S. 12(2)---Bar to further suits---Scope---Alleged fraud or misrepresentation mut have been committed before the court and not outside.

Muhammad Yousaf v. Haji Fiaz Muhammad and others PLD 2014 Sindh 374 and Masjid Ahle Hadees v. Mst. Akram Noor 2009 CLC 1421 rel.

P L D 2020 Peshawar 101

Before Ahmad Ali, J

MUHAMMAD ALAM and 6 others---Petitioners

Versus

SENIOR MEMBER BOARD OF REVENUE and 28 others---Respondents

Writ Petition No.484-A of 2018, decided on 17th February, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 135---Partition of landed property---Partial partition---Effect---Petitioners moved applications for partition of different Khasras---Partition proceedings were conducted and after deriving mode of partition in all the Khasras files were sent to Patwari Halqa for further proceedings---Patwari Halqa submitted report that partition proceedings in one Khasra number could not be completed due to snowfall and partition application for partition of said Khasra was sine die adjourned---Appellate Court set aside the said order and directed that partition proceedings in all the petitions be conducted simultaneously---Validity---Parties were joint owners in all the Khasra numbers and no proper partition could be conducted by exclusion of one Khasra---High Court observed that partition petitions should have been kept pending till the end of snowfall and thereafter proceedings should have been conducted in the same---Partial partition could not be allowed and entire properties owned by the parties should be included in the partition proceedings to safeguard the co-owners from being discriminated---Entire corpus had been placed in a common pool for the Court to ensure allotment to each co-owner equitably depending on the value---No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below---Partition proceedings conducted in exclusion of one of the Khasra numbers were declared null and void---Trial Court was directed to derive a fresh mode of partition with regard to all the Khasra numbers and decide all the partition petitions simultaneously---Constitutional petition was dismissed, in circumstances.

Ghulam Rasool and another v. Muhammad Khalid and 2 others 2006 YLR 2289; Muhammad Ayaz's case PLD 2016 Pesh. 8 and Syed Azhar Hussain Shah's case 2016 YLR 1489 rel.

Muhammad Ayub Awan for Petitioners.

Sajjad Ahmad Abbasi for Private Respondents.

S.M. Asif A.A.G. for Official Respondents.

P L D 2020 Peshawar 105

Before Waqar Ahmad Seth, C.J. and Muhammad Nasir Mahfooz, J

ALI AZIM AFRIDI, ADVOCATE HIGH COURT, PESHAWAR---Petitioner

Versus

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

Writ Petition No. 4817-P of 2019, decided on 30th April, 2020.

(a) Interpretation of statutes---

----Golden rule of interpretation---Scope---Golden rule of interpretation allows judges to depart from a normal meaning of a word in order to avoid absurd results.

(b) Interpretation of statutes---

----"Literal interpretation"---Meaning---Literal interpretation means that text is to be interpreted according to 'plain meaning' conveyed by its grammatical construction and historical context.

(c) Interpretation of statutes---

----Reason behind positive approach---Object---Reason behind positive approach is to clarify meaning of words used in statutes which might not be that clear.

(d) Interpretation of statutes---

----Mischief rule---Connotation---Mischief rule is a principle used by Courts to determine intention of legislators---Such principle aims at finding out the mischief and defect in a statute and to implement a remedy for the same.

(e) Interpretation of statutes---

----Ouster clause---Scope---Courts while applying and interpreting principle behind ouster clause tries to find out real intention behind enactments---Rules of interpretation have one thing in common, that is to assist Courts in identifying proper construction of statutory wording according to the original intention of legislators not only to avoid absurdity but to elucidate its true meaning.

(f) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 27, 80, 81, 82, 141 & 172---Constitution of Pakistan, Art. 175---Vires of law---Judicial functions---Revenue Officers, jurisdiction of---Petitioner sought declaration to the effect that provisions of Khyber Pakhtunkhwa Land Revenue Act, 1967 under which Revenue Officers were performing judicial functions, were ultra vires the Constitution---Validity---All those provisions wherein revenue officers performed functions as a revenue Court were against the provisions of Art. 175 of the Constitution and were non est in law---High Court directed the authorities to amend the law accordingly within reasonable time---High Court directed that all cases which fell within the purview of Ss. 27, 80, 81, 82, 141 & 172 of Khyber Pakhtunkhwa Land Revenue Act, 1967, stood transferred to the Court of Civil Judge and Judicial Magistrates concerned and would be entrusted to the Court of District Judges---In such circumstances when such new occasion would arise resort was to be had to S.195, Cr.P.C. before a criminal Court---Constitutional petition was allowed accordingly.

PLD 2000 SC 869; PLD 2012 SC 923; PLD 2013 SC 501; PLD 2010 SC 61; PLD 2013 Lah. 386; 2017 SCMR 683; PLD 2010 SC 265; Gul Shah and others v. Hafiz Ghulam Muhammad and others 2009 SCMR 1058; University of Punjab v. Miss Wajuha Arooj 2008 SCMR 1577; Mubeen us Salam's case PLD 2006 SC 602; 1999 SCMR 1477; Sharaf Faridi's case PLD 1994 SC 105; PLD 2013 SC 501; 2000 SCMR 567; 2003 SCMR 370; PLD 2009 SC 879 and Ali Azim Afridi v. Federation of Pakistan and others W.P. No. 3098-P of 2018 ref.

Ali Azim Afridi, Advocate/Petitioner in person.

Qazi Babar Irshad, A.A.G. (F) and Arshad Ahmad Khan, A.A.G. (P) for Respondents.

P L D 2020 Peshawar 121

Before Wiqar Ahmad, J

SAHIB ZAMAN and another---Petitioners

Versus

Haji NOOR ZADA and others---Respondents

Writ Petition No. 608-M of 2019, decided on 22nd April, 2020.

(a) Frontier Crimes Regulation (III of 1901)---

----S. 55-AA (since repealed)---Review petition/application filed before FATA Tribunal---Words 'any other sufficient ground" used in S.55-AA of Frontier Crimes Regulation, 1901 ('the FCR')---Interpretation---Ejusdem generis, rule of---Review jurisdiction provided in the FCR neither provided an open ended remedy to an aggrieved person to re-agitate his entire case nor had the same furnished the FATA Tribunal with a jurisdiction of re-opening the entire controversy or sit in appeal against its original judgment---Legislature had employed the wordings "to correct any mistake or error apparent on the face of record or for any other sufficient ground" in S.55-AA of FCR with a particular aim in mind and that was to restrict the review jurisdiction and not to leave it open ended---Words "any other sufficient ground" was not an independent clause and had to be read as ejusdem generis with the preceding words "to correct any mistake or error apparent on the face of record"---Words "any other sufficient ground" used in S.55-AA of FCR would be read as employing any other sufficient ground akin and similar to the wordings, "to correct any mistake or error apparent on the face of record".

Maxwell on the Interpretation of Statutes Twelfth Edition by P. St. J. Langan; Borwnsea Haven Properties, Ltd. v. Poole Corporation (1958) Ch. 574; Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas PLD 2014 SC 471; Province of West Pakistan through the Vice-Chairman, Pakistan Western Railway, Lahore v. Syed Moharram Ali and 93 others 1970 PLC 408; 2020 SCMR 333; 2002 SCMR 250; PLD 2000 SC 111; PLD 1989 SC 128 and 1998 PLC (C.S.) 1484 ref.

(b) Frontier Crimes Regulation (III of 1901)---

----S. 55-AA [since repealed]---Supreme Court Rules, 1980, O.XXVI, R. 1---Constitution of Pakistan, Art. 188---Review jurisdiction of FATA Tribunal under S.55-AA of Frontier Crimes Regulation, 1901 ('the FCR')---Scope---Grounds for review provided in S.55-AA of FCR were pari materia with O. XXVI, R.1 of the Supreme Court Rules, 1980---Rehearing of a case was not permissible in review jurisdiction.

Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Wafi Associates (Pvt.) Limited v. Farooq Hamid and others 2010 SCMR 1125; Syed Ashfaq Hussain Shah v. N.E.D. University of Engineering and Technology, Karachi and others 2007 SCMR 73; Messrs Pakistan Tourism Development Corporation Ltd. and another v. Collector, Customs Central Excise and Sales Tax, Lahore and others 2005 SCMR 54; Naseer Ahmed v. The State 2006 SCMR 942; Muhammad Hussain v. Mukhtar Ahmad 2006 SCMR 71 and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 1289 ref.

(c) Frontier Crimes Regulation (III of 1901)---

----S. 55-AA [since repealed]---Review petition/application filed before erstwhile FATA Tribunal transferred to (Peshawar) High Court as a 'writ petition' after merger of FATA in Khyber Pakhtunkhwa province---Scope---High Court while adjudicating such a writ petition was not supposed to substitute its findings for the recommendation of Jirga or decision of the Assistant Political Agent thereupon in review proceedings---Interpretation of custom and Riwaj was domain of Council of Elders in the erstwhile regime of Frontier Crimes Regulation, 1901 (FCR) and it had its own peculiar way of judging things which could not be re-judged in the review application transferred from erstwhile FATA Tribunal to the High Court as a writ petition.

Salimzada Khan for Petitioners.

Aurangzeb for Respondents Nos. 1 and 2.

P L D 2020 Peshawar 129

Before Syed Arshad Ali and Wiqar Ahmad, JJ

SAID BAKHSHAD---Petitioner

Versus

The STATE through Additional Advocate General, Peshawar and another---Respondents

Writ Petition No. 840-M of 2018 with Interim Relief(N), decided on 25th February, 2020.

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

----S. 22---Justice of Peace---Status---Office of Justice of Peace can not be called a "Court of law"---Justice of Peace does not have power to try a criminal offence and is only an administrative officer.

Muhammad Ali v. Additional I.G., Faisalabad and others PLD 2014 SC 753; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 and Syed Abdul Hameed v. Mian Izhar Ahmad PLD 2019 Pesh. 154 rel.

(b) Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act (XVII of 2016)---

----Ss. 3, 6 & 9---Criminal Procedure Code (V of 1898), Ss. 2(h), 22 & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Word 'complaint' as used in S. 6 of Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016---Scope---Petitioner was accused who sought quashing of FIR on the plea that no FIR could be registered for such offence and only complaint was to be filed before Justice of Peace---Validity---Justice of Peace could not be called a Court---Remedy of complaint for punishing an offence was before a Court---Word 'complaint' was used in its etymological meaning and was to be defined according to its normal English usage and not as complaint as defined in S.2(h), Cr.P.C.---When FIR was taken to have competently been registered, High Court was not supposed to further inquire into the veracity of allegations contained in FIR---Accused did not attribute any mala fide to investigating agency nor any such mala fide was visible in the matter---Petition was dismissed in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; 2003 YLR 2806; 2008 YLR 2695; 2014 MLD 599 and 2017 YLR 2354 distinguished.

R. v. Hare [1934] 1 K.B. 354, at p. 355; Messrs Frick India Ltd. v. Union of India and others AIR 1990 SC 689; Government of Punjab (Health Department) through Secretary Health, Lahore and another v. Naila Begum PLD 1987 Lah. 336; AIR 1970 (sic) 1582; 1971 SCR (1) 422 and 1994 CLC 2214 and Maxwell on the Interpretation of Statutes, Twelfth Edition ref.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 rel.

Aurangzeb Khan for Petitioner.

Haq Nawaz, Asstt. A.G. for the State.

P L D 2020 Peshawar 137

Before Ikramullah Khan and Muhammad Ayub Khan, JJ

UMAR ISLAM and 8 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Rawalpindi---Respondent

Writ Petition No. 2593-P of 2017, decided on 1st November, 2018.

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

----S.20---Pakistan Air Force Rules, 1957, Rr. 191, 31-A, 31-B & 31---Pakistan Air Force Order, O. 39-1---Constitution of Pakistan, Arts. 199 & 10-A---Dismissal, removal or reduction of employees by Chief of the Air Staff or other officers---Constitutional petition---Maintainability---Right to fair trial---Mala fide of competent authority---Effect---Petitioners, being airmen, were removed from service for involving in homosexual activities with an Upper Division Clerk (UDC)/victim---Validity---Powers exercisable by Chief of Air Staff or any other officer in terms of S.20 of Pakistan Air Force Act, 1953, were not unfettered but were subject to other provisions of the Act, Rules or Regulations---Rules 31-A & 31-B of Pakistan Air Force Rules, 1957, strictly and in unequivocal terms made it mandatory that the show cause notice had to be given to the person, proposed to be removed from service---Show-cause notice was issued to the petitioners by the officer who was authorized under clause (c) of paragraph 3 of the Order 39-1 of Pakistan Air Force Order to recommend the removal and not by the Vice Chief of Air Staff---Provisions of R. 31-B of Pakistan Air Force Rules, 1957, were not followed---Petitioners, in view of R. 31(ix)(c) of Pakistan Air Force Rules, 1957, deserved to be discharged instead of removal from service---Petitioners were not provided fair opportunity of trial in terms of Art. 10-A of the Constitution---Act of authority could easily be construed as mala fide in law---No right of appeal was available to the petitioners and in such situation they could not be denied the right to file constitutional petition on account of Art. 199(3) of the Constitution---Impugned order to the extent of removal of petitioners from their services was set aside and they were treated as discharged from services---Constitutional petitions were disposed of accordingly.

Civil Appeal No.1172 of 2009 and Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

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

----S.20---Pakistan Air Force Rules, 1957, Rr. 191, 31-A, 31-B & 31---Pakistan Air Force Order, O. 39-1---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Member of Armed Forces---Constitutional petition---Maintainability---Mala fide of competent authority---Scope---When any action of the Army Authorities regarding a serving officer of the Armed Forces, subject to any law of Armed Forces, is established to be either mala fide, coram non judice or without jurisdiction, then the same can be assailed through constitutional jurisdiction of High Court.

Federal Government Ministry of Defence, Rawalpindi v. Lt.-Col. Munir Ahmed Gill 2014 SCMR 1530 and Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229 rel.

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

---S. 20---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Member of Armed Forces---Dismissal, removal or reduction by Chief of the Air Staff or other officers---Non-availability of right of appeal---Effect---No right of appeal is provided under any provision of Pakistan Air Force Act, 1953, to a person, removed from his service, in exercise of power under S. 20 of the Pakistan Air Force Act, 1953 and in such situation an aggrieved person cannot be denied the right to file constitutional petition on account of Art. 199(3) of the Constitution.

Civil Appeal No.1172 of 2009 ref.

Amin-ur-Rehman Yousafzai and Umer Farooq Awan for Petitioners.

Mansoor Tariq and Arbab Saiful Kamal, A.A.Gs. for Respondent.

P L D 2020 Peshawar 148

Before Ahmad Ali, J

SHAFQAT ALI SHAH---Petitioner

Versus

NASREEN AKHTAR and 3 others---Respondents

Civil Revision No. 06-A of 2020 with C.M. No.10-A of 2020, decided on 9th March, 2020.

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

----S. 54---Suit for recovery of sale consideration---Agreement---Proof of---"Sale"---Essential ingredients---Mutation---Scope---Contention of plaintiff was that defendant had not paid all the consideration amount of suit property and impugned sale mutation was null and void---Suit was decreed concurrently---Validity---Plaintiff had alleged non-payment of sale consideration of suit property and had relied upon an agreement---Defendant had not specifically denied the said agreement in his written statement---Plaintiff had not only exhibited the alleged agreement but had also produced its scribe, marginal witnesses, notary public and stamp vendor---Defendant was required to prove the payment of entire sale consideration but he had failed to produce any witness in that regard---Statement of defendant with regard to payment of consideration amount was self-contradictory---Defendant had not come in the Court with clean hands and was not a truthful witness---Plaintiff was still in possession on the suit property and defendant had failed to prove the payment of sale consideration---Essential ingredients of "sale" were missing and there was no sale in the eye of law---Mutation was not a title deed and it did neither confer any title nor take away any right---Transfer of suit property in favour of defendant and impugned sale mutation as well as registered deed had automatically became null and void---Trial Court had decreed the suit with regard to recovery of outstanding sale consideration and had declared impugned mutation null and void despite the fact that plaintiff was entitled to any one of the two reliefs---Impugned mutation being void one could not sustain legally, in circumstances---Decree to the extent of recovery of outstanding sale consideration was set aside and findings to the extent of declaration of impugned mutation as null and void were maintained---Revision was disposed of accordingly.

Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94; Muhammad Moizuddin and another v. Mansoor Khalil and another 2017 SCMR 178; 2017 CLD 1459; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Shafi-ur-Rehman v. Aziz-ur-Rehman and others 2019 CLC 1710; Mst. Farukh Sultan v. Haji Muhammad Younas and 6 others 2019 YLR 1578; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 rel.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Scope---Mutation was not a title deed and it did neither confer any title nor take away any right.

Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 rel.

(c) Administration of justice---

----When basic order was without lawful authority then all the superstructure built thereon would fall to the ground automatically.

Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 and Maulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663 rel.

(d) Maxim---

----"Allegans suam turpitudinem non est audiendus"---Meaning: Person alleges/boasts of his own depraved conduct should not be heard.

Samavia Zafar for Petitioner.

P L D 2020 Peshawar 154

Before Rooh-ul-Amin Khan, J

IRSHAD KHAN---Appellant

Versus

BILAL and another---Respondents

Criminal Appeal No. 853-P of 2019, decided on 2nd March, 2020.

(a) Juvenile Justice System Act (XXII of 2018)---

----Ss. 4 & 2(h)---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss. 16 & 2(1)(e)---Jurisdiction of Juvenile Court---Powers and Functions of Children Protection Court---Child at risk---Scope---Question before High Court was as to whether the accused, a juvenile, was to be tried by the Juvenile Court or the Child Protection Court---Held, Juvenile Justice System Act, 2018 provided for criminal justice system and social reintegration of juveniles whereas, the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, was enacted to provide care, protection, maintenance, welfare, training, education, rehabilitation and re-integration to children at risk in the Khyber Pakhtunkhwa---"Juvenile", according to S.2(h) of Juvenile Justice System Act, 2018, meant a child who could be dealt with for an offence in a manner which was different from an adult, while the purpose, aim and object of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, was the protection of the children who were at risk and not accused, therefore, the same could not be stretched in such a way so as to give shelter to a juvenile, who was accused for an offence---Accused did not fall within the ambit of "child at risk" as defined in S.2(1)(e) of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, rather came within the meaning of juvenile---Trial of accused was withdrawn from the diary of Child Protection Court and entrusted to the Juvenile Court---Appeal was allowed according.

(b) Juvenile Justice System Act (XXII of 2018)---

----S. 4---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 16---Jurisdiction of Juvenile Court---Powers and functions of Children Protection Court---Scope---Offence committed by a juvenile or adult against a "child at risk" shall be triable by the Court established under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, while an offence committed by a child against an adult shall be tried by the Court created under the Juvenile Justice System Act, 2018.

Shabbir Hussain Giyyani for Petitioner.

Arshad Ahmad, A.A.G. for the State.

Sahibzada Riyazat ul Haq for Respondent No.1.

P L D 2020 Peshawar 158

Before Ahmad Ali, J

AMIR MUHAMMAD---Petitioner

Versus

WALIULLAH KHAYALI---Respondent

Civil Revision No. 219-A of 2018, decided on 6th March, 2020.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Transfer of Property Act (IV of 1882), S. 3---Talbs, performance of---Requirements---Attesting witness---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Talbs were sine-qua-non for maintaining, suit for pre-emption---Notice of Talb-i-Ishhad in the present case, had not been signed by the pre-emptor in presence of its other attesting witnesses---Talb-i-Muwathibat had not been repeated by the pre-emptor or his witnesses while drafting notice of Talb-i-Ishhad---Mere signing and sending of a notice of Talb-i-Ishhad did not fulfill the requirements of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Personal service of defendant had not been proved---Appellate Court had failed to appreciate the evidence in its true perspective---Impugned judgment and decrees passed by the Appellate Court being not sustainable were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Munawar Hussain v. Afaq Ahmed and others 2013 SCMR 721; Muhammad Bashir v. Abbasi Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Allah Ditta through L.Rs v. Muhammad Anwar 2013 SCMR 866; Muhammad Ali v. Mst. Humera Fatima 2013 SCMR 178; Muhammad Anwar v. Safeer Ahmed 2017 SCMR 404; Nazir Ahmed v. M. Muzaffar Hussain 2008 SCMR 1639 and Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488 rel.

Tahir Faraz Abbasi for Petitioner.

Muhammad Ilyas Khan for Respondent.

P L D 2020 Peshawar 163

Before Muhammad Naeem Anwar, J

MUHAMMAD JAVED---Petitioner

Versus

JAMSHED KHAN---Respondent

Civil Revision No. 417-P of 2018, decided on 7th February, 2020.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession through pre-emption---Names of witnesses of notice of Talb-i-Ishhad, date and place where it was written had not been mentioned in the plaint but the copy of such notice was appended therewith---Plaint, rejection of---Scope---Plaint was rejected on the ground that pre-emptor had not mentioned in the plaint names of witnesses of notice of Talb-i-Ishhad, date and place where it was written---Validity---Notice of Talb-i-Ishhad did contain its witnesses, date and place where it was written and same had been signed by the pre-emptor and other witnesses---Notice of Talb-i-Ishhad had been sent to the vendee through registered post acknowledgement-due and it had been appended with the plaint---Non-mentioning of date, time and place of Talb-i-Muwathibat and names of witnesses before whom pre-emptor had declared his intention to exercise the right of pre-emption in the plaint was fatal for the pre-emptor---If notice of Talb-i-Ishhad containing all the details with receipt of acknowledgement due had been annexed with the plaint then omission to mention the said details in the plaint was not fatal---Pre-emptor had annexed notice of Talb-i-Ishhad with the plaint containing all the necessary details in the present case---Pre-emptor was not required to specifically mention the names of witnesses of notice of Talb-i-Ishhad, date and place in the plaint where the said notice was annexed with plaint containing all such details---Courts below had committed illegality while passing the impugned judgments and decrees---Impugned judgments and decrees passed by the Courts below were set aside---Plaint was to be deemed to be pending before the Trial Court---Revision was allowed, in circumstances.

2019 YLR 408; 2019 CLC 490; 2019 MLD 195 and 2019 YLR 730 ref.

PLD 2011 SC 119; Muzaffar Khan v. Sanchi Khan and another 2007 SCMR 181; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Bashiran Begum v. Nazar Hussain, PLD 2008 SC 559; Ghafoor Khan v. Israr Ahmad 2011 SCMR 1545 and Daud Shah v. Waris Shah and others 2014 SCMR 852 rel.

Baazullah Barkandi for Petitioner.

Muhammad Sabir Khan for Respondent.

P L D 2020 Peshawar 170

Before Waqar Ahmad Seth and Ahmad Ali, JJ

KAUSAR ALI SHAH---Petitioner

Versus

REGIONAL POLICE OFFICER and others---Respondents

Writ Petition No. 785-P of 2013, decided on 22nd January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Alternate remedy, availability of---Effect---Petitioners sought quashing of FIRs and proceedings conducted thereunder---Validity---Alternate remedy in the shape of applications under Ss.249-A & 265-K, Cr.P.C. was available to the petitioners---Petitioners could avail said remedies, if, at all, the trial court proceeded against them---High Court had no jurisdiction, whatsoever; to take the role of investigation agency and to quash the FIR or any proceedings thereunder, while exercising power under Art.199 of the Constitution, unless and until exceptional circumstances existed---Constitutional petitions were dismissed.

PLD 1992 SC 353; 2006 SCMR 276; 2006 SCMR 1192 and Doctor Ghulam Mustafa v. The State 2008 SCMR 76 ref.

Ghulam Muhammad v. Muzammil Khan PLD 1967 SC 317 rel.

Nemo for Petitioner.

Muhammad Riaz Khan, A.A.G. for official Respondents.

P L D 2020 Peshawar 173

Before Sahibzada Asadullah, J

Mst. YASMEEN GUL---Appellant

Versus

MUHAMMAD ZUBAIR and 2 others---Respondents

Writ Petition No. 743-D of 2019 with C.M. No. 850 of 2019, decided on 7th January, 2020.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S. 10(4)---Suit for dissolution of marriage and recovery of dowry articles---Khula---Scope---Family Court dissolved marriage on the basis of Khula---Validity---Plaintiff (wife) had produced sufficient evidence in support of her claim for dowry articles---Defendant (husband) had submitted that he himself had purchased articles but he had failed to substantiate the same---Evidence of plaintiff with regard to dowry articles was cogent and convincing as compared to the evidence produced by the defendant---Khula could be granted by the Family Court if wife had failed to establish any allegation leveled in the plaint---Family Court, in the present case, had granted Khula as reconciliation between the parties had failed---Such findings of Family Court were not based on evidence and same could not be challenged through constitutional petition---Right for dissolution of marriage on the basis of Khula was absolute and contingent upon restoration of dower to the husband---Muslim woman had been given right to get herself released from the bond of marriage, if she could not live with her husband within the limits prescribed by Allah Almighty---Wife in such event had to seek Khula by foregoing dower received by her from her husband in consideration of marriage---If husband had left his wife giving divorce then he would not be entitled to receive anything back giving by him to his spouse---If wife herself deserted her husband then she had to give something in lieu of her release---Courts below were competent to draw inference while delivering the judgments---High Court in constitutional jurisdiction could not interfere into such findings unless and until miscarriage of justice had been established---Constitutional petition was not maintainable when evidence in the case had properly been appreciated---Appellate Court had passed the decree after properly evaluating the evidence available on record---Constitutional petition was dismissed, in circumstances.

Mst. Khrushid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Muhabbat Hussain v. Mst. Naseem Akhtar and others 1992 PSC 1034; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 Lah. 566; Muhammad Kamran v. Mst. Samera Majeed and others 2018 YLR 1251; Verse No.229 of Surah Al-Baqra of Holy Quran and Sayings of Holy Prophet (Peace Be Upon Him) rel.

Muhammad Aslam Khan for Petitioner.

Muhammad Mohsin Ali for Respondent.

P L D 2020 Peshawar 179

Before Ahmad Ali, J

MUHAMMAD HUSSAIN---Petitioner

Versus

SHAKEEL AHMED and 4 others---Respondents

Civil Revision No. 123-A of 2018, decided on 2nd March, 2020.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, permanent injunction and possession---Transaction in favour of a son---Benami transaction---Fraud---Proof of---Requirements---Contention of plaintiff was that he had paid consideration amount of suit property and defendant was Benamidar and impugned mutation was based on fraud---Suit was dismissed concurrently---Validity---Plaintiff was bound to prove that transaction in favour of defendant was Benami and fraud had been committed---Plaintiff had failed to discharge the said onus through cogent, reliable and confidence inspiring evidence---No witness had been produced in whose presence the amount of consideration had been paid on behalf of plaintiff---Plaintiff had not asserted the time, date, month, year or place when consideration amount had been paid on his behalf---Defendant was working abroad for the last many years and he had constructed a house on the suit land and his family had been residing therein---Burden to prove fraud would be on the person who had alleged fraud---Plaintiff had failed to discharge the said burden---Plaintiff had failed to prove through tangible evidence that disputed sale transaction was a 'Benami' transaction---Mere oral assertion on the part of plaintiff qua the disputed transaction without any independent and cogent evidence could not be believed---Defendant had proved that suit land had been purchased by him from his own pocket and house had been constructed where his family was residing---No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstance.

Khan Muhammad v. Muhammad Din 2010 SCMR 1351 and Muhammad Nawaz Khan and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124 rel.

Muhammad Zahid for Petitioner.

Shoukat Zaman Khan for Respondents.

P L D 2020 Balochistan 1

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

CHAIRMAN, NAB through Prosecutor General---Appellant

Versus

MUNAWAR MASIH and another---Respondents

Criminal Ehtesab Appeal No.14 of 2019, decided on 9th August, 2019.

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

----Ss. 15, 25 & 32---Criminal Procedure Code (V of 1898), S. 265-K---Plea bargain---Appreciation of evidence--- Determination of liability, responsibility of---Application under S.265-K, Cr.P.C. filed by accused was converted into plea bargain application by Trial Court and same was allowed on basis of liability determined by Trial Court---Validity---Plea bargain was offer and confession of accused that he received corrupted money by corruption and corrupt practice---Such accused was liable to be convicted for disqualification for a period of ten years under S.15 of National Accountability Ordinance, 1999---Accused neither filed application for plea bargain before NAB nor the Chairman NAB approved plea bargain of accused---Trial Court directly converted application filed by accused under S.265-K, Cr.P.C. into application under S.25 of National Accountability Ordinance, 1999 for plea bargain and accepted same as plea bargain---Application of accused before Trial Court to fix his liability was not maintainable---Trial Court had no power to fix liability and direct the Chairman NAB to accept the same---Fixing of amount of liability was in discretion of the Chairman NAB and Trial Court had no role in such respect---High Court set aside order passed by Trial Court and remanded matter to proceed from stage at which case stood when application of accused under S.265-K, Cr.P.C. was decided---Appeal was allowed of accordingly.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

(b) Administration of justice---

----Doing of a thing---Principle---Where procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all---Such impliedly prohibits doing of a thing in any other manner, compliance for such thing in no way could be either ignored or dispensed with.

Ch. Mumtaz Yousaf, DPG along with Jaffar Raza, ADPG for National Accountability Bureau (NAB) for Appellant.

Shahid Javed for Respondents.

P L D 2020 Balochistan 5

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

SHAH MUHAMMAD and 9 others---Petitioners

Versus

HABIBULLAH and 25 others---Respondents

Constitution Petition No.(S)43 of 2019, decided on 5th September, 2019.

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

----O. VII, R. 14, O. XIII, Rr. 1, 2, 3 & O. XVI, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 90 & 134---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of document not relied upon---Good cause---Scope---Phrase 'good cause' to be construed liberally to serve the ends of justice---Rational behind O. XIII, R. 2, of C.P.C. was to prevent fraud and not to penalize the parties for non-production of documents on the first hearing of the suit or at the time of filing of plaint or written statement---If there was no element of fraud or doubt as to authenticity of documents then application for production of documents could not be discarded---List of witnesses should be filed within seven days from framing of issues---No one could be permitted to call witnesses other than those mentioned in the list except with the permission of Court on showing good cause for omission of said witnesses from the list---Delinquent party for calling a witness through Court had to show good cause and explain the delay in disclosing the name of witnesses---Document required to be produced was public document having presumption of truth and it should not be discarded unless proved otherwise by convicing and cogent evidence---Person summoned to produce a document did not become a witness by mere fact that the had produced the same---Constitutional petition was dismissed, in circumstances.

PLD 2013 SC 255 foll.

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

----O. XIII, R.2---"Good cause"---Connotation.

The phrase "good cause" means adequate sound and genuine reason and it depends upon the facts and circumstances of each case, no hard and fast and absolute criteria can be set forth, as to what constitutes a good cause, however, the phrase "good cause" used in Order XIII, Rule 2, C.P.C. should be construed liberally to serve the ends of justice. Order XIII, Rule 2, C.P.C. being a general provision applicable to both i.e. the plaintiffs as well as defendants. The rationale behind Order XIII, Rule 2, C.P.C. is to prevent the fraud and not to penalize the parties for non-production of documents on the first hearing of the suit or at the time of filing plaint or written statement, if there is no element of fraud or doubt as to authenticity of the documents that the application ought not to be discarded as Rule 2 and the procedure are intended to advance balance on showing "good cause".

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

----O.XVI, Rr. 1 & 2---Filing of list of witnesses after settlement of issues---Time frame---Calling of witnesses other than those in the said list---Scope and requirements.

Provision of Order XVI(1), C.P.C. is mandatory by using word "shall" giving timeframe of seven days to the party to file list of witnesses after settlement of issues and Sub-rule (2) further prohibits that the party "shall not" be permitted to call witnesses other than those in the said list except with the permission of the Court on showing "good cause" for the omission of the said witnesses from the list, therefore, not only the 'good cause" has to be shown by the delinquent party for calling a witness through the Court but at the same time the applicant is required to explain the delay in disclosing the name of the witnesses.

Anwar-ul-Haq Chaudhry for Petitioners.

Habib-ur-Rehman for Respondents Nos. 1 to 13.

Muhammad Nasir Mari for Respondent No.4.

P L D 2020 Balochistan 10

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General, NAB, Islamabad---Petitioner

Versus

ABDUL HAKEEM, GENERAL MANAGER EXPORT, PSO, KARACHI

and 3 others---Respondents

Constitutional Petition No.457 of 2019, decided on 3rd October, 2019.

(a) Criminal trial---

----Re-investigation---Discharge of accused---Prerequisites---No provision of law existed preventing an investigating agency from conducting reinvestigation or even multi-investigations after discharging an accused in earlier investigation---Such is subject to condition that investigator has discovered some new evidence connecting accused with commission of offence which were not in his knowledge during earlier investigation---If investigating agency intends to reinvestigate case, right course is to seek permission form Magistrate or a Court which passed for closure for earlier investigation.

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

----S.18(c)---Seventeen years old case---Reinvestigation---"Investigation by National Accountability Bureau (NAB) and "Police investigation"---Distinction---National Accountability Bureau was aggrieved of order passed by Accountability Court denying reinvestigation of the case---Lot of difference existed between manner and procedure of investigation conducted by police and NAB as latter had more resources and time to collect all possible evidence---Presumption after closure of earlier investigation, was that accused was granted clean chit---If in same case, reinvestigation was requested by NAB authorities, it had to approach Accountability Court concerned and must show that some new and important evidence was collected connecting accused with commission of offence which for reason, could not be collected at time of earlier investigation---Accountability Court was not to blindly follow opinion of investigator and upon its satisfaction could order reinvestigation by assigning reasons---Accused persons, in the present case, were facing inquiry and investigation for a long period and inquiry started in year 2002---In between period, accused persons were called many times during inquiry as well as during investigation---Investigation/case was closed on request of Chairman NAB by Trial Court, even when Trial Court noticed accused persons at time of filing application for investigation/reopening of case, same were received unserved to extent of some accused persons as some of them reportedly had died---High Court declined to allow reinvestigation as accused persons had suffered for last 17 years for no fault on their part---Investigation agency could not be allowed to make mockery of law and keep sword of proceedings/prosecution hanging over heads of accused persons for any further period---Constitutional petition was dismissed in circumstances.

Aftab Ahmed v. Hassan Arshad PLD 1987 SC 13; Mirdad Khan v. Zahir Shah 2000 PCr.LJ 1739 and Bahadur Khan v. Muhammad Azam and others 2006 SCMR 373 rel.

Jaffar Raza, Special Prosecutor NAB for Petitioner.

Nemo for Respondents.

P L D 2020 Balochistan 15

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

BASHIR AHMED---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU through DPGA, NAB(b), Quetta---Respondent

Constitutional Petition No.397 of 2019, decided on 16th October, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(v)(vi) & (b)---Criminal Procedure Code (V of 1898), S.498---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail, grant of---Mala fide---Filing of reference---Petitioner was government servant who was investigated by National Accountability Bureau (NAB) on misappropriation and wastage of stored and surplus wheat under his supervision---Validity---Petitioner being incharge of go-down in question submitted number of applications regarding deterioration of wheat on account of weevil-ing/insect attacks and making arrangements for fumigation as well as repair of go-downs but no heed was paid by high-ups of department copy where of were attached with petition to high-ups of department---Allegatgions of prosecution regading guilt of petitioner required further probe and singling out petitioiner as accused was unfair---In presence of such requests made by petitioner followed by repeated reminders, high officials could not be exonerated from liability---Prima facie, it seemed that petitioner, being official of lower grade was made scapegoat by department just to save skin of high officials from clutches of law---Despoite there being total capacity of 2,38,000 bags at go-down in question, why wheat stock of 5,14,492 bags were stored in open premises for long period and who was responsible for procuring such huge quantity of wheat and kept it in open place---High Court accepted petitions despite cooperating wih NAB authorities in inquiry, petitioner apprehended his arrest by NAB in inquiry causing humiliation and unjustifiable harassment---Bail was allowed in circumstances.

Bashir Ahmed, present in person.

Jaffar Raza Khan, Special Prosecutor, NAB for Respondents.

P L D 2020 Balochistan 21

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

ALI NAWAZ SHAHWANI AND BROTHERS through Proprietor and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary C&W Department, Quetta and 2 others---Respondents

Constitutional Petition No.614 of 2019, decided on 16th October, 2019.

Constitution of Pakistan--

----Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate remedy---Factual controversy---Effect---Bidding process--- Petitioners were government contractors who were aggrieved of allocation of tender by the authority to contractor of his choice--- Validity---Certain controversial questions were involved which could not be resolved while exercising Constitutional jurisdiction of the High Court---Fate of Constitutional petition could not be decided on basis of such documents, authenticity whereof could only be determined and established before civil court as it required a full-fledged enquiry and scrutiny after providing full opportunity of hearing to both parties---In presence of alternate remedy Constitutional petition was not maintainable---Constitutional jurisdiction of High Court could not be invoked in all matters as a matter of right---Such jurisdiction had certain circumventions which High Court was required to keep in view while exercising its extraordinary jurisdiction---Availability of alternate remedy was one of the limitations which barred exercise of Constitutional jurisdiction by High Court---Extraordinary jurisdiction was intended primarily for providing an expeditious remedy in a case where illegality of action of an executive or other authority could be established without any elaborate enquiry into complicated or disputed facts---Controversial questions of facts adjudication on which was possible only after obtaining all types of evidence in power and possession of parties could be determined only by courts having plenary jurisdiction in the matter and on such ground Constitutional petition was not maintainable---While invoking Constitutional jurisdiction, it was mandatory for a party to establish clear legal right which could be beyond any doubt and controversy---High Court declined to exercise Constitutional jurisdiction as in the light of alleged foul play, legal right and entitlement of petitioners were controversial and such disputed questions of fact could not be decided in Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 and Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 ref.

Munawar Ahmed for Petitioners.

Shai Haq Baloch, Additional Advocate General and Muhammad Akram, XEN Mastung for Respondents/State.

P L D 2020 Balochistan 26

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

The STATE through District and Sessions Judge, Kalat---Petitioner

Versus

ASSISTANT COMMISSIONER and others---Respondents

Constitutional Petition No.141 of 2016, decided on 6th November, 2019.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 204---Contempt of court---Unconditional apology by contemnor---Scope---Submission of an unconditional apology by the alleged contemnor in every case was neither a condition precedent, nor a point of ego or prestige for the Courts, which practices were to be adhered to in each case as a rule of thumb before discharging the notice for contempt---Similarly, mere submission of unconditional apology was also no ground for further inaction in the proceedings or discharge of such notice without looking into the intent behind it.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 3, 4 & 5---Constitution of Pakistan, Art. 204---Contempt of court---Assistant Commissioner (contemnor) arresting a Qazi (judicial officer) during a raid---Manhandling and beating of judicial officer in public view after his arrest---Unconditional apology by contemnor---Had the present case been a simple case of raid or arrest of a judicial officer from his house, the contemnor could have been excused on the ground that he was not aware of the legal position regarding the arrest of a judicial officer but the acts of dragging, manhandling and beating the judicial officer in view of the general public could by no stretch of imagination be regarded as innocent and bona fide acts, rather it appeared to be a flagrant attempt to undermine and lower authority of the Court---In such like cases the Courts, in order to safeguard the dignity and honour of the Courts were not reluctant to initiate contempt proceedings against the contemnors---General interest of the community was based on protecting the authority of subordinate courts---If the Civil Judges, Judicial Magistrates and Qazis were led into a trap by unscrupulous officers, and if they were assaulted, hand cuffed, the public was bound to loose faith in courts, which would be destructive of the basic structure of an ordered society---Permitting such actions would supplant the rule of law by civil servants and the police---Present case was of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the province was adversely affected and the administration of justice was paralyzed---Incident in question undermined the dignity of courts in the province---Judicial Officers, Qazis, Judges and Magistrates all over the province were in a state of shock and felt insecure and humiliated---Number of Bar Associations also passed resolutions and went on strike---Contemnor (Assistant Commissioner) was the main character in the entire incident and he had planned the entire episode to humiliate the judicial officer in the public eye---Though the contemnor deserved maximum punishment being the main actor, yet the High Court was inclined to take lenient view against the contemnor for the reason that from the first day notice was given to him, he tendered unconditional apology---Contemnor was convicted under S.4 of the Contempt of Court Ordinance, 2003 and sentenced to pay a fine of Rs.5,000/ with imprisonment till rising of the Court---In default in payment of fine, the contemnor was directed to further undergo imprisonment for a period 15 days---Constitutional petition was disposed of.

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

----S. 221---Charge, framing of---Omission or defect---Any omission or defect in charge which did not mislead or prejudice the right of the accused could not be regarded as material and made the basis to vitiate a trial on the ground of error or omission in framing of charge.

(d) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 204---Criminal Procedure Code (V of 1898), S. 5---Contempt of court---Power to initiate proceedings---Scope---Non-application of Criminal Procedure Code, 1898---Jurisdiction to initiate proceeding and take decision of the contempt was inherent in a High Court or Supreme Court and the procedures of the Criminal Procedure Code, 1898 did not apply to contempt proceedings.

(e) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 204---Criminal Procedure Code (V of 1898), S. 5---'Contempt of court proceedings' and 'criminal proceedings'---Distinction---Contempt proceedings were sui generis, and had peculiar features which were not found in criminal proceedings---Contempt proceedings were not in the nature of criminal proceedings for an offence---Pendency of contempt proceedings could not be regarded as criminal proceedings because it may end in imposing punishment on the contemnor---Contemnor was not in the position of an accused; it was open to the Court to cross-examine the contemnor and even if the contemnor was found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology was no defence to the trial of a criminal offence.

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

----S. 54---Arrest of a judge belonging to the District Judiciary---Permissibility---Judge of District Judiciary could be arrested---No person, whatever his rank or designation may be, was above the law and he must face the penal consequences of infraction of criminal law---Qazi, Magistrate, Judge or any other judicial officer of District Judiciary was liable to criminal prosecution for an offence like any other citizen.

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

----S. 54---Arrest of a judge of District Judiciary---Guidelines for arrest of a judicial officer belonging to the District judiciary provided.

Following are the guidelines for arrest of a judicial officer belonging to the District judiciary:

(i) If a judicial officer was to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be;

(ii) If facts and circumstances necessitated the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected;

(iii) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court;

(iv) The judicial officer so arrested shall not be taken to a police station without the prior order or directions of the District and Sessions Judge of the concerned District, if available;

(v) Immediate facilities shall be provided to the judicial officer for communication with his family members, legal advisors and judicial officers, including the District and Sessions Judge;

(vi) No statement of a judicial officer who was under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the legal advisor of the Judicial Officer concerned or another judicial officer of equal or higher rank, if available; and

(vii) There should be no handcuffing of a judicial officer. If however, violent resistance to arrest was offered or there was imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over-powered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish necessity for effecting physical arrest and handcuffing the judicial officer. If it was established that the physical arrest and handcuffing of the judicial officer was unjustified, the police officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.

Delhi Judicial Service Association v. State of Gujarat and others 1991 AIR 2176 = 1991 SCR(3) 936 ref.

Above mentioned guidelines were not exhaustive but were the minimum safeguards to be observed in case of arrest of a judicial officer and in order to avoid any such situation in future, they should be followed. [p. 38] L

Delhi Judicial Service Association v. State of Gujarat and others 1991 AIR 2176 = 1991 SCR(3) 936 qouted.

Shai Haq Baloch, Addl. Advocate General for Petitioner.

Adnan Ejaz Sheikh for Qazi Zahid.

Amanullah Kanrani for Respondents.

P LD 2020 Balochistan 38

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

MUHAMMAD KHAN KURD---Appellant/Plaintiff

Versus

ARBAB MUHAMMAD HASHIM---Respondent/Defendant

Regular First Appeal No.93 of 2009, decided on 17th September, 2019.

(a) Malicious prosecution---

----Damages, recovery of---Essential elements---Criminal case was got registered against the plaintiff wherein he was discharged---Plaintiff filed suit for recovery of damages on the basis of malicious prosecution but the plaint was rejected---Validity---Prosecution of a criminal offence would only provide a cause for damages for malicious prosecution to the acquitted accused if it was based on malice of the complainant and was without any reasonable and probable cause---Civil case between the parties was pending before Civil Judge---Prosecution of a criminal offence was not without probable and reasonable cause, in circumstances---Plaintiff was acquitted from criminal case on the ground that prosecution had failed to establish its case beyond reasonable doubt---Nothing was on record that defendant had involved the plaintiff in criminal case with malice and without probable or reasonable cause---Acquittal of plaintiff from the criminal case was not on merit rather it was on technical ground---Plaintiff was not entitled for any damages, in circumstances---Plaintiff had filed the suit alter lapse of four years which was barred by time---No illegalities or irregularities had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

Abdur Rauf v. Akhtar Razzaq and another PLD 1994 SC 476 rel.

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

----S. 23---Suit for compensation on the basis of malicious prosecution---Limitation---Limitation for filing a suit for compensation on the basis of malicious prosecution was one year and same would start from the date of acquittal of the plaintiff or the prosecution was otherwise terminated.

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

----S. 3---Suit instituted after limitation period---Effect---Suit instituted after limitation period would be subject to the provisions of Limitation Act, 1908 irrespective of the fact that the limitation had been pleaded as defense or not---Court was to decide the question of limitation first and only thereafter proceed to decide the matter on merits---Suit which was barred by time was to be dismissed even if nobody had pointed out such lacuna---If proceedings brought before the Court were barred by time then Court could not assume jurisdiction and would not have jurisdiction in the matter unless delay was condoned first---Disposal of suit on merits alone was not sufficient for presuming that delay had been condoned---If suit was barred by limination then plaint was to be rejected forthwith without resorting to the evidence or framing of any issue.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.

(d) Malicious prosecution--

----Suit for recovery if damages---Scope---Basic elements on the basis of which suit for recovery of damages for malicious prosecution could be accepted or rejected detailed:

Following were the basic elements on the basis of which suit for recovery of malicious prosecution could be accepted or rejected:

(a) The prosecution of the respondent/plaintiff by the petitioner/defendant.

(b) There must be a want of reasonable and probable cause for that prosecution.

(c) The petitioner/defendant must have acted maliciously i.e. with a improbable motive and not to further the ends of justice.

(d) The prosecution must have ended in favour of the person proceeded against.

(e) It must have caused damage to the party proceeded against.

Muhammad Akram's case PLD 1990 SC 28 rel.

(e) Malicious prosecution---

----Meanings.

Following are the meanings of term "malicious prosecution".

The institution of a criminal or civil proceeding for an improper purpose and without probable cause.

The institution of any action or proceeding, either civil or criminal, against another maliciously and without probable cause.

A tort which provides redress to those who have been prosecuted 'without reasonable cause' and with malice.

Black's Law Dictionary; Balentine's Law Dictionary and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel.

(f) Words and phrases---

----"Acquittal" and "discharge"---Distinction---Acquittal means to declare a "person accused of a crime to be innocent", while on the contrary discharge means "to release someone from custody" or allow someone to leave, or "to pay off".

Syed Ayaz Zahoor and Mrs. Robina Shaheen for Appellant.

Gul Hassan Tareen for Respondent.

P L D 2020 Balochistan 47

Before Abdullah Baloch, J

ABDUL QAHAR KHAN WADAN---Petitioner

Versus

ZAMARAK KHAN ACHAKZAI and 12 others---Respondents

Election Petition No.20 of 2018, decided on 2nd August, 2019.

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

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15 & O.VII, R. 11 & S. 139---Notaries Ordinance (XIX of 1961), S. 8 (1) (e)---Notaries (West Pakistan Amendment) Ordinance (W. P. Ord. I of 1966), S. 2---Election petition, verification of---Verification of election petition from a Notary Public---Effect---Every election petition and Schedule or Annexures was to be signed and verified by the petitioner in the manner as laid down in the Civil Procedure Code, 1908 for verification of pleadings---Pleadings had to be verified on oath to be administered by a person who was duly authorized in that behalf by the High Court i.e. the Oath Commissioner and not the Notary Public---In the present case, election petition was neither verified nor attested by a person authorized to administer oath---Requirements of S.144(4) of Elections Act, 2017 had not been complied, in circumstances---Petitioner was bound to verify the election petition in the same manner as prescribed for verification of plaint by the Civil Procedure Code, 1908---Only authorized person or officer before whom the oath was required to be administered or the contents of election petition had to be verified was the Oath Commissioner---Oath had not been administered to the petitioner by a person authorized to do so, in circumstances---Petitioner having failed to comply with the provisions of law with regard to verifying the election petition and administering oath through authorized person, election petition was not maintainable which was dismissed, in circumstances.

Iqbal Zafar Jhagra v. Khalil-ur-Rehman 2000 SCMR 250; Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362; Gatron (Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072; Haji Ch. Masood Akhtar v. Election Commission of Pakistan 2005 CLC 172 and Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

(b) Administration of justice---

---Ignorance of law is no excuse.

(c) Administration of justice---

----If law had prescribed a method for doing of a thing in a particular manner then such provision of law should be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than the provided manner would not be permitted under the law.

Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

M/s. Muhammad Amir Rana, Barrister Zahoor Hassan Jamot, Muhammad Dawood and Muhammad Arif Achakzai for Applicant/Respondent No.1.

Naseebullah Tareen for Respondent No.1/Petitioner.

M/s. Nasrullah Khan Achakzai and Abdul Khair Achakzai for Respsondent No.3.

P L D 2020 Balochistan 58

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

MUNIR AHMED KHAN KAKAR and another---Petitioners

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary and 7 others---Respondents

Constitution Petition No. 138 of 2018, decided on 4th June, 2018.

(a) Constitution of Pakistan---

----Arts. 189 & 190---Judgment of the Supreme Court---Scope---Law declared by Supreme Court becomes law of land under Arts. 189 & 190 of the Constitution and is binding not only on all courts in Pakistan but also on all organs of the State---No escape from acceptance obedience or compliance of an order passed by Supreme Court which is final and highest court in the country---No one can be allowed to violate such orders while taking shelter behind technicalities---Effect of judgment of Supreme Court cannot be eroded or nullified through any executive or administrative instrumentality---Even legislature cannot destroy, annul, set aside, vacate, reverse or modify a final judgment of court of competent jurisdiction.

Mir Alam Gul v. Ismail PLD 1990 SC 926; Ashiq Hussain v. The State PLD 1994 SC 879; Province of the Puniab v. Haji Yaqoob Khan 2007 SCMR 554; Syed Sajjad Hussain v. Secretary, Establisbment Division Cabinet Secretariat Islamabad 1996 SCMR 284; Abdul Waheed v. Mst. Ramzanu 2006 SCMR 489 and Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan PLD 2006 SC 66 rel.

(b) Constitution of Pakistan---

----Arts. 199(1)(c) & 4---Constitutional jurisdiction of High Court---Mandamus, writ of---Scope---High Court under Art.199(1)(c) of the Constitution has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law and in view of Art. 4 of the Constitution---When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its Constitutional jurisdiction has ample power to grant relief to aggrieved party.

Pakistan Petroleum Ltd. v. Director General Mines and Minerals PLD 2011 Quetta 1; Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 and Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 rel.

(c) Balochistan Rules of Business, 2012---

----Rr. 3, 6(1), 8(1)(2), 9(4) & 22(2)---Constitution of Pakistan, Arts. 187(2) & 204(2)(a)---Transfers of public servants---Minister, functions of---Delegatus Non Potest Delegare, principle of---Applicability---Implementation of judgment of Supreme Court---Petitioner was member of Balochistan Bar Council who assailed postings and transfers of officials made on orders of provincial minister on basis of notification dated 17-07-2012---Plea raised by petitioner was that transfers and postings were being made in violation of judgments passed by Supreme Court---Validity---Secretary concerned was official head of the department who was responsible for its efficient administration and discipline and for proper conduct of business assigned to department under R.3 of Rules of Business, 2012---Minister had nothing to do with transfers/postings of civil servants and notification dated 17-07-2012 whereby powers of transfer/posting were assigned to minister was illegal and void ab initio---Notification dated 17-07-2012 was not only against principle of Delegatus Non Potest Delegare but was also against provisions of Rules of Business, 2012---High Court directed that no transfers/postings of civil servants would be made in violation of guidelines issued by Supreme Court in its judgments and same should be implemented in letter and spirit---High Court restrained transfer and posting orders on verbal directions of competent authority and directed to follow provisions of R. 9(4) of Balochistan Rules of Business, 2012---High Court further directed that Administrative Secretary while submitting summary/note to competent authority for transfer and posting of any officer, provision of R. 22(2) of Balochistan Rules of Business, 2012 would be strictly followed---In case of any failure on part of State functionary to comply with direction issued by Supreme Court, Chief Secretary as well as Administrative Secretaries would expose themselves to contempt proceedings under Art. 204(2)(a) of Constitution---Constitutional petition was allowed accordingly.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 and Khan Muhammad v. The Chief Secretary Government of Balochistan (Civil Petition No.2812 of 2017) rel.

Khushi Muhammad v. Inspector General of Police Punjab 1999 SCMR 2868; Amanullah Khan Yousafzai v. Federation of Pakistan PLD 2011 Kar. 451; Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 and Zahid Akhter v. Government of Punjab PLD 1995 SC 530 ref.

(d) Discretion---

----Principles---Discretion cannot be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fair play.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.

(e) Civil service---

----Good governance---Civil servant---Status---In order to improve governance it is necessary that independent, impartial and professional status of civil service as an institution is restored---Civil servants are backbone of system and have to be protected against injustices particularly political victimization enabling them to deliver to best of their abilities without any fear or favour---Civil servants have to be reassured that they are not subservient to political executives and are under obligation to remain compliant with the Constitution and law.

Raja Abdul Rehman, Amanullah Kanrani, Naseebullah Tareen, Aamir Rana, Nadir Ali Chalgari, Attaullah Langov for Petitioner along with Petitioner Munir Ahmed Kakar.

Abdullah Khan Kakar, Deputy Attorney General and Muhammad Rauf Atta, Advocate General, assisted by Shai Haq Baloch, Additional Advocate General for Respondents.

Kamran Murtaza and Mazhar Ilyas Nagi asAmici Curiae.

P L D 2020 Balochistan 78

Before Muhammad Kamran Khan Mulakhail, J

ZAHID HUSSAIN KHAN---Appellant

Versus

SHAMS ULLAH---Respondent

F.A.O. No.1 of 2019, decided on 18th November, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 5---Ejectment of tenant---Default in payment of rent-Bona fide personal need of landlord---Rent Controller while accepting eviction petition on the ground of default in payment of rent directed landlord to approach the civil Court for recovery of arrears of rent and outstanding utility bills---Validity---Rent Controller was empowered to determine rent of premises and pass order for payment of arrears of rent for the period of three years from institution of eviction petition---Tenant was bound to pay utility bills regularly and Rent Controller could pass order for payment of outstanding utility bills---Landlord was not entitled for any enhanced rent rather he should approach the Rent Controller under S.5 of Balochistan Urban Rent Restriction Ordinance, 1959---Landlord was entitled for arrears of rent but not beyond the period of three years from the date of filing of ejectment petition---Civil Court was competent to try cases for recovery of arrears of rent and utility bills but jurisdiction of Rent Controller was not barred under law----Landlord had proved his entitlement for recovery of outstanding arrears of rent and utility bills but he was not entitled for enhanced monthly rent after every three years---Appeal was disposed of, accordingly.

Riaz Akhtar Tareen for Appellant.

Respondent: Ex parte.

P L D 2020 Balochistan 83

Before Muhammad Kamran Khan Mulakhail, J

ERICK (ARICK) FEROZE---Appellant

Versus

PETHRES alias MITHO and another---Respondents

F.A.O. No.7 of 2015, decided on 29th October, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---West Pakistan Urban Rent Restrictions Ordinance (VI of 1959), S.5-A---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Words "requires it in good faith for his own occupation"---Scope---Landlord filed eviction petition on the grounds of default in payment of rent and for his personal bona fide need wherein he also sought recovery of enhanced monthly rent---Eviction petition was accepted on the ground of default in payment of rent and tenant was directed to vacate the premises within two months and pay outstanding enhanced rent---Validity---Tenant had failed to produce any evidence through which it could be inferred that petitioner was not his landlord---Nothing was on record that demised premises was not required to the landlord for his personal bona fide need---Words 'requirement for personal bona fide occupation' did not denote a 'desire'---Desire for occupation could be denied but requirement of personal bona fide use could not be turned down in slipshod and cursory manner---Solitary statement of landlord unless proved contrary to the facts and evidence was sufficient to establish his personal bona fide requirement---Rent Controller had erred in law to enforce provision of S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 which was not applicable to the present case being not part of Balochistan Statute---Rent Controller was not competent to direct the tenant to pay outstanding rent beyond the period of three years---Nothing was on record with regard to automatic enhancement of rent after every three years---Findings of Rent Controller with regard to outstanding amount of rent coupled with payment of previous arrear on enhanced rate were set aside---Tenant was directed to pay outstanding monthly rent from the date of institution for a period of three years only---Landlord for remaining outstanding amount might avail remedy as provided under the law---Appeal was disposed of, in circumstances.

Dr. Abdul Waheed v. Jaffar Ali and another 2009 MLD 564 ref.

PLD 1991 (Punjab Statute) 116 rel.

Khushal Khan Kasi for Appellant.

Syed Manzoor Shah for Respondent No.1.

P L D 2020 Balochistan 89

Before Jamal Khan Mandokhail, C.J. and Nazeer Ahmed Langove, J

KAMRAN MURTAZA and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 6 others---Respondents

Constitutional Petitions Nos. 414, 419 and 429 of 2020, decided on 23rd June, 2020.

(a) Constitution of Pakistan---

----Arts. 92, 132 & 160(1)---National Finance Commission (NFC)---Composition---Advisor to Prime Minister---Eligibility---Terms of Reference-- Petitioner assailed notification issued by the President, constituting NFC, in which Advisor to Prime Minister on Revenue and Finance was included in the Commission who was to chair the meetings of Commission and also fixed Terms of Reference for the NFC---Validity---Purpose of appointing Federal and Provincial Ministers as permanent Statutory Members of NFC was because they were elected representatives and part of their respective cabinets-- Such members were under Constitutional oath, once on becoming members of Parliament and Provincial Assemblies and then before entering into the offices of Federal or Provincial Ministries respectively---Such Members were chosen representatives well conversant with the problems and needs of people whom they represented and were also collectively responsible to the Parliament and Provincial Assembly---Federal and Provincial Ministers had been made permanent members of NFC by designation only---No one including an Advisor to Prime Minister or Advisor to Chief Minister could replace Federal and Provincial Finance Ministers---Notification in question was clear enough, according to which in absence of Federal Minister of Finance, the Advisor to Prime Minister was to chair the NFC---According to Art. 160 of the Constitution, the President had no power to do so, as such the Advisor to Prime Minister could not act on behalf of the Federal Minister of Finance in NFC---If Prime Minister was holding portfolio of Federal Minister of Finance, he in his capacity as Minister of Finance could attend the meeting of NFC---Scope and mechanism for NFC to be followed was provided in Art.160 of the Constitution---Any direction contrary to the provisions of Art.160 of the Constitution with regard to proceedings of NFC was unconstitutional-- Terms of Reference made by the President with direction to the members of NFC to follow the same were illegal and unconstitutional---President and NFC were bound to follow whatever the Constitution of Pakistan empowered them---High Court set aside the notification to the extent of appointing Advisor to Prime Minister as member of NFC---High Court also set aside the Terms of Reference made by the President for NFC---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Arts. 105 & 160(1)---National Finance Commission (NFC)---Non-statutory members, appointment of---Phrase "after consultation with the Governors of the Provinces"---Scope---Appointment of non-statutory members is to represent the concerned Province and because of such reason, one member from each Province is nominated---Such member is appointed after consultation with Governors of Provinces but according to Art. 105 of the Constitution, in performance of its functions, the Governor is a representative of the President and has to act on and in accordance with the advice of the Cabinet or Chief Minister---Governor was constitutionaly obliged to get advice of the Cabinet or Chief Minister concerned in respect of executive and legislative authority of the Provincial Government, controlled by the Constitution---Before recommending name of a non-statutory member to represent a Province in NFC, the concerned Governor is Constitutionally bound to get advice from Provincial Government or Chief Minister.

(c) Constitution of Pakistan---

----Art. 160(1)---National Finance Commission (NFC)---Non-Statutory Member---Domicile---Governor and Provincial Government or Chief Minister concerned has the prerogative to nominate any qualified person as a non-statutory member, irrespective of his/her domicile---Preference may be given to a person belonging to the Province concerned, with a view that he/she may have more knowledge about dynamics of the Province.

(d) Constitution of Pakistan---

----Art. 160(1)---National Finance Commission (NFC)---Composition---Federal Secretary for Finance cannot be included in NFC through any notification as the same is against relevant provision of the Constitution---Finance Secretaries of Federal and Provincial Governments can assist their respective Ministers before or during the meetings of NFC.

(e) Constitution of Pakistan---

----Arts. 1 & 160--- Federation and National Finance Commission (NFC)---Strengthening of Federation---Scope---NFC is supposed to amicably reach a consensus regarding distribution of resources between the Federal and Provincial Governments for joint goal of development and prosperity---To achieve judicious distribution, members of NFC are required to take into consideration different factors of federating units---If any of the Province feels injustice in distribution of revenue, it may result into serious repercussions.

Hamood-ur-Rehman Commission Report compiled by the Hon'ble Chief Justice Hamood-ur-Rehman rel.

(f) Constitution of Pakistan---

----Art. 160(3A)---National Finance Commission (NFC)---Share, settlement of---Principle---Share of each Province in each Award of NFC should not be less than the share given to the Province in the previous Award.

Kamran Murtaza (in person), Attaullah Langove, Khalid Ahmed Kubdani and Najamuddin Mengal for Petitioners (in Constitutional Petition No. 414 of 2020).

Ghulam Mustafa Buzdar and Syed Iqbal Shah, Deputy Attorney General for Respondents (in Constitutional Petition No. 414 of 2020).

Arbab Muhammad Tahir, Advocate General, Shai Haq Baloch, Additional Advocate General for Respondents (in Constitutional Petition No. 414 of 2020).

Sajjid Tareen, Petitioner (in person) (in Constitutional Petition No. 419 of 2020).

Ghulam Mustafa Buzdar and Syed Iqbal Shah, Deputy Attorney General for Respondents (in Constitutional Petition No. 419 of 2020).

Arbab Muhammad Tahir, Advocate General and Shai Haq Baloch, Additional Advocate General for Respondents (in Constitutional Petition No. 419 of 2020).

Rahib Buledi for Petitioner (in Constitutional Petition No. 429 of 2020).

Ghulam Mustafa Buzdar and Syed Iqbal Shah, Deputy Attorney General for Respondents (in Constitutional Petition No. 429 of 2020).

Arbab Muhammad Tahir, Advocate General, Shai Haq Baloch, Additional Advocate General for Respondents (in Constitutional Petition No. 429 of 2020).

P L D 2020 Balochistan 100

Before Muhammad Ejaz Swati and Abdul Hameed Baloch, JJ

ARSALA---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT and another---Respondents

Constitutional Petition No. 12 of 2019, decided on 14th March, 2020.

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

----S. 21-F---Constitution of Pakistan, Art. 25---Remissions---Discrimination---Petitioner was convicted and sentenced under Anti-Terrorism Act, 1997, and benefit of remissions was denied to him---Validity---All citizens were entitled to be treated similarly, subject to law---"Equality" meant that among equal the law should be equal and equally administered and that the like should be treated alike---Principle of "equal treatment" was applicable to prisoners---Constitution did not permit unequal treatment among prisoners and there had to be one set of Rule for every convict under law, though the forum of punishment was different and more stringent under different law but after conviction the convicts should be governed under the Prison Rules---By mere change of forum one set of convict could not be entitled for remission---State did not make any classification of prisoners to deprive them from Fundamental Rights---Where certain group of persons were denied benefit of privilege or other group was allowed, such was discrimination between the person or things similarly situated and consequently was void on account of provisions of Art. 25(1) of the Constitution---High Court directed the authorities to include all remissions to the sentence of petitioner which had been denied to him---Constitutional petition was allowed accordingly.

Muhammad alias Khuda Bakhsh v. ATC Mekran at Turbat 2018 PCr.LJ 148; Hammad Abbasi v. Superintendent Central Adiala Jail Rawalpindi PLD 2010 Lah. 428 and Saleem Raza v. The State PLD 2007 Kar. 139 rel.

Shams-ur-Rehman Rind for Petitioner.

Muhammad Aslam Jamali and Jameel Akhtar, Additional Prosecution General for Respondents.

P L D 2020 Balochistan 106

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ABDULLAH UMAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 113 of 2020, decided on 30th June, 2020.

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

----Ss. 11-F(2), 11-F(5) & 11-F(6)---Membership, support and meetings relating to a proscribed organization, collection of money for proscribed organization---Appreciation of evidence---Prosecution case was that accused was working for proscribed organization and collecting chanda/donation for the said organization---Accused pleaded guilty and confessed his guilt---Record revealed that accused was intimated about the charge and its consequences and show cause notice was also given to him under S.243, Cr.P.C. but accused remained consistent with his statement---Trial Court after fulfilling codal formalities recorded his confessional statement---Once a person, involved in a criminal case, wanted to plead guilty to the charge levelled against him and placed himself at the mercy of the court, he became a friend of the court and the court always took lenient view in respect of his sentence---Trial Court had rightly taken a lenient view in respect of the sentences recorded against the accused, which were neither illegal nor contrary to the punishments provided under the relevant law---Even otherwise, by virtue of the provisions of S.412, Cr.P.C. accused, who pleaded guilty to the charge, had no right of appeal against his conviction but he could maintain an appeal only to the extent of the legality of the sentence passed against him by the Trial Court---Appeal against conviction was dismissed accordingly.

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

----Ss. 11-F(2), 11-F(5), 11-F(6)& 25---Limitation Act (IX of 1908), S. 5---Membership, support and meetings relating to a proscribed organization, collection of money for proscribed organization---Appeal---Condonation of delay---Scope---Appeal was time barred by five months and seven days as it was required to be filed within a period of fifteen days from the date of impugned order as per S.25 of the Anti-Terrorism Act, 1997---Said Act was a special statute and it overrode the general law---Accused had also filed an application under S.5 of the Limitation Act, 1908, for condoning the delay---Section 5 of Limitation Act, 1908, would be applicable subject to provision 29 of the Anti-Terrorism Act, 1997 which provided that if time was provided under any statute for filing appeals etc, which was different from the time mentioned in the Schedule attached to the Limitation Act, 1908, then S.5 of Limitation Act, 1908 would not be applicable unless it was made applicable by the statute under which the appeal was filed---No provision in the Anti-Terrorism Act, 1997 authorized the court to invoke the provisions of S.5 of the Limitation Act, 1908---Time provided under the Anti-Terrorism Act, 1997 for filing the appeal was different from the time provided in the Schedule attached to the Limitation Act, 1908, for filing such appeal---Section 5, Limitation Act, 1908 would not be applicable in the present case, hence the delay could not be condoned by invoking S.5 of the Limitation Act, 1908---Appeal against conviction was dismissed accordingly.

Syed Saleem Akhtar for Appellant.

P L D 2020 Supreme Court 1

Present: Asif Saeed Khan Khosa, C J, Mazhar Alam Khan Miankhel and

Syed Mansoor Ali Shah, JJ

JURISTS FOUNDATION through Chairman---Petitioner

Versus

FEDERAL GOVERNMENT through Secretary, Ministry of Defence and others---Respondents

Constitutional Petition No.39 of 2019, decided on 28th November, 2019

(In the matter of the Tenure and Extension of the Chief of the Army Staff).

Per Syed Mansoor Ali Shah, J; Asif Saeed Khan Khosa, CJ and MazharAlam Khan Miankhel, J agreeing.

(a) Constitution of Pakistan---

----Art. 184(3)---Public interest litigation before the Supreme Court---Withdrawal of petition with permission of Court---Scope and principles---Public interest litigation could only be withdrawn with the permission of the Court, because it did not raise a personal issue limited to the petitioner; it was not a dominis litis (the person to whom a suit belongs) that would give a right to the petitioner to withdraw it as a matter of choice---In granting the permission (to withdraw) the Court would be guided by considerations of public interest and would also ensure that it did not result in the abuse of the process of law---Courts must guard against possibilities of such litigants settling the matters out of Court to their advantage and then seeking withdrawal of the case---Sometimes withdrawal of a public interest litigation, for oblique ends, could be used to the detriment of the public interest agitated therein---Court had to be cautious not to fall prey to such oblique motives---Proceedings in public interest litigation were inquisitorial in nature and, therefore, the request for withdrawal of such litigation must always be weighed in the light of the question of public importance raised in it---Petitioner initiating public interest litigation was, therefore, not entitled to withdraw the petition at his sweet will---Court, however, may permit withdrawal of such litigation on considering the nature of the matter agitated therein and ensuring that it did not involve abuse of the process of law.

AIR 1997 SC 272; PLD 2017 Lah. 588; PLD 2014 Bal. 1 and AIR 1988 SC 2211 ref.

(b) Constitution of Pakistan---

----Arts. 9, 19A, 27, 243(4)(b) & 245---Pakistan Army Act (XXXIX of 1952), S.8(2)---Army Regulations (Rules), 1998, Regln. 19---Constitutional petition before the Supreme Court relating to the tenure and extension of the Chief of the Army Staff---Maintainability---Armed Forces were to defend the country against external aggression and threat of war, under the Constitution---Chief of the Army Staff (COAS) was an officer commanding the Army and was responsible for the command, discipline, training, administration, organization and preparedness for war of the Army; he was also the Chief Executive in the General Headquarters and an adviser to the Government on military matters --- Appointment of the COAS of the Army was, thus, inextricably linked with the life, security and liberty of every citizen and was undoubtedly a question of grave and vital public importance---Army was perceived to play an intrinsic role in upholding constitutional values of sovereignty, freedom, democracy and the fundamental rights relating to life, liberty and dignity---Hence, the questions relating to its structure, command, governance and organization were of public importance with reference to the enforcement of the fundamental rights---In today's age of information, the issues raised in the present petition also attracted fundamental right to information under Art.19A, as well as, the right to non-discrimination in services under Article 27 of the Constitution---Present petition was held to be maintainable accordingly.

(c) Constitution of Pakistan---

----Pt. II, Chapt. 1 [Arts. 8 to 28]---Fundamental rights---Interpretation---Fundamental rights in a living Constitution were to be liberally interpreted so that they continued to embolden freedom,equality, tolerance and social justice.

(d) Constitution of Pakistan---

----Art. 243(4)(b)---Pakistan Army Act (XXXIX of 1952), S. 8(2)---Army Regulations (Rules), 1998, Reglns. 19 & 255---Pakistan Army Act Rules, 1954---Constitutional petition before the Supreme Court relating to the tenure and extension of the Chief of the Army Staff---Incumbent Chief of the Army Staff (COAS) was provided an extension/re-appointment for a fresh term of three years in such office after expiry of his first term---Constitutionality and legality---No provision existed in the Army laws for the tenure and age of retirement of a General and as a consequence of the Chief of the Army Staff, as well as, for the extension of tenure or fresh appointment for another tenure---Summaries initiated by the Ministry of Defence and approved by the President, the Prime Minister and the Cabinet, for the reappointment, extension and fresh appointment of the incumbent COAS, were, therefore, meaningless and of no consequence---Exercising judicial restraint the Supreme Court gave an opportunity to the Federal Government in the light of the assurance of the Attorney-General to carry out appropriate legislation through an Act of Parliament within a period of six months---In order to preserve smooth functioning of the Army, the Supreme Court directed that the current status of the incumbent Chief of the Army Staff shall continue for a period of six months, whereafter the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service; that in case the Federal Government remained unable to regulate the tenure and terms of service of a General and as a consequence of the COAS through an appropriate legislation by the Parliament, within a period of six months, the institutional practice of retirement of a General on completion of the tenure of three years shall stand enforced to regulate the tenure of incumbent COAS, from the date of his promotion to the rank of General and appointment as COAS, i.e. 29.11.2016, and the President shall, on advice of the Prime Minister, appoint a serving General officer as the new Chief of the Army Staff---Constitutional and legal flaws in the exercise of jurisdiction by the President, the Prime Minister, the Cabinet and the Ministry of Defence, in the extension, reappointment and appointment of the incumbent COAS highlighted.

Following are some of the constitutional and legal flaws in the exercise of jurisdiction by the President, the Prime Minister, the Cabinet and the Ministry of Defence, in the extension, reappointment and appointment of the incumbent Chief of the Army Staff (COAS):

(i) The Prime Minister appointed the incumbent COAS as the Chief of the Army Staff for another term of three years from the date of completion of the current tenure vide his "order" dated 19.08.2019, while the Prime Minister had no such power under the Constitution.

(ii) The tenure of 3 years mentioned in the above order of the Prime Minister had no legal basis.

(iii) The extension of the tenure of COAS for a further period of three years vide notification dated 19-08-2019 was not supported by law as there was no provision of tenure or extension of tenure prescribed under the Constitution or the law.

(iv) The summary initiated by the Ministry of Defence dated 19.08.2019 stated that the incumbent COAS was due for retirement from 29.11.2019 by tenure but did not state the law providing for such tenure for retirement.

(v) The said summary mentioned that the General Officer may be granted extension of one further tenure of three years under Regulation 255 of the Army Regulations (Rules), despite the fact that there was no tenure prescribed for a General and that there was no provision for extension for another tenure in the Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 or the Army Regulations (Rules).

(vi) The President under Article 243(4)(b) of the Constitution granted extension to the incumbent COAS for three years on 19-08-2019, while the President had no power to grant extension under the Constitution or the law.

(vii) The Government, the very next day, i.e. 20-08-2019, retracted from the earlier position and without withdrawing the notification regarding grant of extension to the incumbent COAS, issued under the approval/authority of the President a day before, took up the matter of extension of the tenure of the COAS with the Cabinet relying on Army Regulation 255 in the absence of any tenure or age of retirement prescribed for a General.

(viii) Only 11 members of the Cabinet out of 25 approved the above summary through circulation. However, no notification was issued under the authority or approval of the Federal Government regarding extension of the tenure of the incumbent COAS. Thus, this exercise served no purpose.

(ix) This approval through circulation failed to comply with Rule 19 of the Rules of Business, 1973 which required that the Cabinet Secretary was to specify the time by which the opinions of the Ministers should be communicated to him. No such timeframe was specified.

(x) The Ministry of Defence issued notification dated 26.11.2019 stating that retirement of incumbent COAS, as a General Officer had been limited and he had been granted extension for further three years. This exercise conducted under the freshly amended Army Regulations (Rules) 255 (including the word "extension") could only be useful if there had been tenure or retirement age of a General provided under the law.

(xi) Finally on 28-11-2019, a fresh summary was put up before the Prime Minister for appointment of incumbent COAS as the Chief of the Army Staff w.e.f. 28-11-2019 under Article 243(4)(b) of the Constitution which was approved by the President, leading to notification dated 28-11-2019. This Notification stated that the notification dated 26.11.2019 regarding limiting retirement and granting extension of service to incumbent COAS stood withdrawn. This shows that there remained no notification in the field regarding limiting retirement and granting extension of service to the incumbent COAS. The appointment of the incumbent COAS on 28.11.2019 was again based on the assumption that his tenure had expired. [p. 21] D

Detailed examination of the laws relating to the Army revealed that there was no provision providing for the tenure and age of retirement of a General and as a consequence of the Chief of the Army Staff, as well as, for the extension of tenure or fresh appointment for another tenure; nor was there any consistent and continuous institutional practice of granting such extension, which could be enforced in absence of the law on the subject. The summaries initiated by the Ministry of Defence and approved by the President, the Prime Minister and the Cabinet, for the re-appointment, extension and fresh appointment of the incumbent COAS seemed to be meaningless and of no consequence in the absence of the law prescribing tenure of a General and providing extension for another tenure. Attorney General had assured the Court that the Federal Government would carry out legislation through the Parliament in the shape of an Act within six months to provide for the terms of service of a General (and as a consequence of COAS) so that effect could be given to Article 243 of the Constitution in letter and spirit and functionality of the constitutional provisions be realized at the earliest.

Supreme Court observed that exercising judicial restraint it was appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament within a period of six months, and to clarify the scope of Article 243 of the Constitution in such regard; that the Federal Government may also, if deemed appropriate, specifically provide for extension of the tenure of an army officer of the rank of a General in the Act with grounds for granting such an extension, so that the discretion of the Federal Government in granting extension to a General was structured.

Sindh High Coiurt Bar Association v. Federation of Pakistan PLD 2009 SC 879; Government of Sindh v. Sharaf Faridi, 1990 SCMR 91, PLD 1994 SC 105 and Nadeem Ahmad v. Federation of Pakistan PLD 2010 SC 1165 ref.

In the present state of legal vacuum regarding the tenure of a COAS and in the light of the assurance given by the Federal Government to address these issues through fresh legislation within six months, and considering that the COAS was the commanding officer of the Army and was responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and in order to preserve smooth functioning of the Army, the Supreme Court directed that the current status of the incumbent COAS shall continue for a period of six months, where after the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service; that in case the Federal Government remained unable to regulate the tenure and terms of service of a General and as a consequence of the COAS through an appropriate legislation by the Parliament, within a period of six months, the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever; that in case of such failure of the Federal Government the institutional practice of retirement of a General on completion of the tenure of three years as borne out from the record, shall stand enforced to regulate the tenure of incumbent COAS consequentially his tenure as COAS, from the date of his promotion to the rank of General and appointment as COAS, i.e.29.11.2016, and the President shall, on advice of the Prime Minister, appoint a serving General officer as the new COAS.

Supreme Court observed that its exercise of judicial restraint in the present matter may not be mixed up or confused with the application of the doctrine of necessity, which amounted to going against the law of the land to attend to some political or other goal; that this was not so in the present case where there was no law, in fact, there was a total legal vacuum regarding the tenure of a General.

(e) Constitution of Pakistan---

----Art. 243---Command of Armed Forces---History and evolution of Art.243 of the Constitution traced.

(f) Interpretation of statutes---

----Words in a provision could not be read and interpreted in isolation---Meaning and scope of a provision was determined by looking not to the isolated words used therein but by reading its text in context.

(g) Constitution of Pakistan---

----Art. 243(4)(b)---Army Regulations (Rules), 1998, Regln. 125---Pakistan Army Act (XXXIX of 1952), Preamble---Chief of the Army Staff, appointment of---Qualifications---Only a serving General could be appointed as the Chief of the Army Staff, because only a serving army officer was subject to the Pakistan Army Act, 1952---Retired army officer had no terms of service and was not regulated under the said Act.

(h) Army Regulations (Rules), 1998---

----Regln. 262-A---Pakistan Army Act, (XXXIX of 1952), S. 18---Pakistan Army Act Rules, 1954, R. 12---Constitution of Pakistan, Arts.240 & 243(3) & 243(4)(b)---Constitutional petition before the Supreme Court relating to the tenure and extension of the Chief of the Army Staff---Chief of the Army Staff (COAS) or an Army General (commissioned after the year 1970)---Retirement age and extension of tenure---Regulation 262-A of the Army Regulations (Rules), 1998, which dealt with officers commissioned after 1970, did not provide the retirement age of an officer of the rank of a General---Pakistan Army Act, 1952 fell deficient of the structural requirements for raising and maintaining an Army under clause (3) of Art.243 of the Constitution, as it did not provide for essential elements required to raise and maintain an Army, particularly the grant of Commissions in the Army and the terms of service of the Commissioned Officers including tenure and extension of a General---At present the tenure of a General and consequentially of a COAS was three years as per institutional convention and practice---Supreme Court observed that such an institutional practice could not be a valid substitute of the law required to be made in pursuance of the constitutional mandate under Art.243(3) of the Constitution; that this was a serious legislative omission, yet in the absence of such law the institutional convention and practice could be enforced to remove uncertainty as to the tenure of a General and to make the constitutional post of Chief of the Army Staff functional; that service in the Armed Forces being "Service of Pakistan" must be regulated by or under the law in accordance with the provisions of Art.240 of the Constitution read with Art.243(3), otherwise, it was inconceivable that the highest rank in the Army, would have no tenure or age of retirement or other terms of service; that in the first instance, the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution.

(i) Army Regulations (Rules), 1998---

----Regln. 255---Army officer---Delaying or suspending retirement or extending date of retirement---Scope---Regulation 255 of the Army Regulations (Rules), 1998, could only be invoked for an officer who had retired or was about to retire---Emphasis was to delay the retirement either by limiting the retirement or by extending the date of retirement or suspending retirement after retirement---Such an act was a temporary arrangement and could only be availed if the exigencies of service and public interest so required---Essence of Regln. 255 was that if an officer was on the way out (about to retire) and urgent or pressing circumstances required that he be retained in service, said Regulation came into play---Exercise of discretion by the Federal Government under Regln. 255 had to be structured on parameters of exigency of service with a corresponding temporary period in mind---Words suspension, limiting retirement and extension did not connote permanency and could not be equated with grant of new tenure or a fresh appointment, therefore, a new tenure or fresh appointment or extension of another full tenure could not be given or granted to an army officer, including a General, under Army Regulation (Rules) 255.

(j) Legislation---

----Delegated legislation---Rules and Regulations---Delegatee must have legislative guidelines to formulate Rules and Regulations, and such guidelines, contours or boundaries must come from the Legislature (Parliament) itself---Legislature could confer upon any person or body the power to make subordinate/delegated legislation (Rules, Regulations or byelaws, etc.) in order to give effect to the law enacted by it yet it must perform itself the essential legislative function, i.e. to exercise its own judgment on vital matters of policy and enact the general principles providing guidance for making the delegated legislation.

(k) Separation of powers, doctrine of---

----Delegation of an "essential legislative function" by the Legislature to the Executive was not permissible under the Constitution---Foundation of such embargo owed its genesis to the concept of trichotomy of powers between the Legislature, the Executive and the Judicature, which was a fundamental principle of the constitutional construct.

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

----S. 176A---Army Regulations (Rules), 1998---Power to make Regulations---Section 176A of the Pakistan Army Act, 1952, vires of---In order to provide a legal cover to the Army Regulations (Rules), S.176A was inserted in the Pakistan Army Act, 1952, which empowered the Federal Government to make Regulations---Army Regulations (Rules) once brought within the statutory fold must flow from the Pakistan Army Act, 1952---Regulations which did not meet such requirement would be ultra vires the said Act---Scope of the Pakistan Army Act, 1952 or the vires of the Army Regulations (Rules) could not be determined by the words inserted in S.176A like governance, command, discipline, recruitment, terms and conditions of service, rank, precedence and administration of the Pakistan Army---Said words were mere words when there was no essential or core legislation on these subjects---Section 176-A after its insertion provided a shortcut and authorized the Federal Government to regulate areas like governance, command, discipline, recruitment, terms and conditions of service, rank, precedence and administration of the Pakistan Army through the Army Regulations (Rules)---Power of the Parliament under the Constitution could not be delegated to the Federal Government without the Parliament performing the basic essential legislative function, i.e. providing policy guidelines on these areas---Through S.176A, the Parliament appeared to have divested itself of the essential legislative function which amounted to excessive delegation, as neither said section nor any other section of the Pakistan Army Act, 1952 provided the essential legislative policy guidelines for making the delegated legislation, viz. the Regulations, on the subjects mentioned therein---Army Regulations (Rules) would be rendered ultra vires if they did not draw their power from the parent Act, i.e. the Pakistan Army Act, 1952 and would suffer from excessive delegation if they drew their strength only from S.176A of the Act---Army Regulations (Rules) appeared to be without any legal cover and fell outside the scope of the Pakistan Army Act, 1952---Said Regulations had to be fully examined in the light of said principles---Supreme Court observed that it was for the Federal Government to bring about appropriate legislation to remove such defects so that the Army Regulations (Rules) had a proper legal cover and were fully enforceable under the law.

(m) Right of Access to Information Act (XXXIV of 2017)---

----Ss. 3 & 7(e)---Army Regulations (Rules), 1998---Inaccessible for public---Acts of the Parliament or subordinate legislation were public documents and must be readily available to the citizen of the country subject to the exceptions provided under the Right of Access to Information Act, 2017---Said exceptions extended only to record relating to defence forces, defence installations or connected therewith and ancillary to defence and national security and not to the Army laws---Every legislative instrument must be made accessible to public.

(n) Administration of justice---

----Institutional practice, reliance upon---Scope---Institutional practice followed continuously and consistently by an institution for a considerable period of time may be used to resolve a controversy, in the absence of the law.

2011 SCMR 408 and PLD 1990 SC 612 ref.

(o) Judicial restraint, doctrine of---

----Scope---Constitutional questions---Judicial restraint in its substantial approach urged Judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits had clearly been violated---While the principle, "if it is not necessary to decide more, it is necessary not to decide more" well stated the procedural aspect of judicial restraint---Judicial restraint (exercised so as not to intrude in other branches of Government) was essential to the continuance of rule of law, and for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts.

Judicial Restraint, definition by Kermit Roosevelt, available online at https://www.britannica.com/topic/judicial-restraint; PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786 (CADC 2004), per John Roberts, J. and Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 ref.

(p) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review, power of---Scope---Power of judicial review was a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by the parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts---Judicial review must, therefore, remain strictly judicial and in its exercise Judges must take care not to intrude upon the domain of the other branches of Government.

Per Asif Saeed Khan Khosa, CJ; agrreing with Syed Mansoor Ali Shah, J.

(q) Constitution of Pakistan---

----Arts. 243(3) & 243(4)(b)---Pakistan Army Act (XXXIX of 1952), S.8(2)---Army Regulations (Rules), 1998, Regln. 255---Constitutional petition before the Supreme Court relating to the tenure and extension of the Chief of the Army Staff---Terms and conditions of service of Chief of the Army Staff, the tenure of his office, extension in the tenure of his office or his reappointment to that office had remained unregulated by any law so far---Clause (3) of Art.243 of the Constitution mandated that the President's power to raise and maintain the armed forces was to be "subject to law" and, thus, leaving some vital aspects relevant to the office of Chief of the Army Staff without being regulated by any law militated against the said express provision of the Constitution---His Lordship observed with hope and optimism that framing of a law by the Parliament regulating the terms and conditions of the office of Chief of the Army Staff may go a long way in rectifying multiple historical wrongs and in asserting sovereign authority of the chosen representatives of the people besides making exercise of judicial power of the Courts all pervasive, and that the democratic maturity of the nation had reached a stage where the Supreme Court could proclaim that "Howsoever high you may be; the law is above you".

Petitioner in person.

For the Respondents:

Anwar Mansoor Khan, Attorney-General for Pakistan with Sajid Ilyas Bhatti, Addl. Attorney-General Amir-ur-Rehman, Addl. Attorney-General Ch. Ishtiaq Ahmed, Addl. Attorney-General.

Sohail Mehmood, Dy. Attorney-General.

Mian Asghar Ali, Dy. Attorney-General Assisted by Ms. Faryal Shah Afridi, Advocate.

Syed Iqbal Hashmi, Advocate Supreme Court.

Brig. Falak Naz, Director (Law), Ministry of Defence.

Flt. Lt. Khalid Abbas, Asst. Director (Law), Ministry of Defence.

Brig. Muhammad Khalid Khan, JAG Department, GHQ.

Lt. Col Rai Tanveer Ahmed Kharral, OIC, JAG Department, GHQ.

Dr. Farogh Nasim, Advocate Supreme Court for Respondent No.4, along with Abid S. Zuberi, Advocate Supreme Court, assisted by Ayan Memon, Shahid

Naseem Gondal and Barrister Maleeka Ali Bukhari.

Mehmood A. Sheikh, Advocate-on-Record.

Supreme Court Research Centre (SCRC) for Research Assistance.

Dates of hearing: 26th, 27th and 28th November, 2019.

JUDGEMENT

SYED MANSOOR ALI SHAH, J.---At the heart of this case lies the fundamental question of rule of law: Is our government of laws or of men?1 The case before us questions whether the top military post in the country, that of the Chief of the Army Staff ("COAS"), the commanding officer of the Pakistan Army, is regulated by the Constitution and the law; whether the COAS has a tenure or can seek an extension or has any terms of service under the law.

1. The proceedings of the case brought to fore more questions: Whether the constitutional mandate since 1956 of raising and maintaining an Army under the law, has been fulfilled by the Pakistan Army Act, 1952; whether Regulation 255 of the Army Regulations (Rules) is designed to grant extension to a COAS for another term; whether at all, the Army Regulations (Rules), inherited from the British India, enjoy the protection of the Pakistan Army Act, 1952? This judgment addresses these questions.

2. The history of our Army has seen successive appointments, retirements and extensions of several Chiefs of the Army Staff since Independence. However, for the first time the matter has come to the highest Court of the land questioning the legal framework under which these appointments, retirements and extensions take place.

Facts

1. The Prime Minister appointed the current COAS for another term of three years through his "order" dated 19.08.2019. Thereafter, the President on the advice of the Prime Minister granted "extension" for one further tenure of three years to the COAS w.e.f. 29.11.2019. This public interest litigation (PIL) has challenged the extension of the COAS on the ground that it is offensive to Article 243(4)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), thereby urging the Court to strike it down.

2. The petitioner did not appear on the first date of hearing. The Court Associate placed an undated handwritten application before the Court, which prayed that the petitioner be allowed to withdraw the petition. This application was not entertained by the Court for the following reasons recorded in the order dated 26.11.2019:

"The Court-Associate has produced before us a handwritten application statedly submitted by the petitioner seeking permission to withdraw this petition. The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been summited by the petitioner himself or that he has submitted the same voluntarily. Be that as it may the petition in hand invokes Article 184(3) of the Constitution and the subject matter of the petition involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition. The application attributed to the petitioner is, therefore, not entertained."

The Petitioner appeared in person, on the next date of hearing and made an oral request seeking permission to withdraw the petition. He was apprised of the above quoted observation of the Court, and his request was turned down.

Public Interest Litigation (PIL) - Withdrawal

1. A public interest litigation (PIL) can only be withdrawn with the permission of the Court. This is because it does not raise a personal issue limited to the petitioner; it is not a dominis litis (the person to whom a suit belongs) that would give a right to the petitioner to withdraw it as a matter of choice. "In granting the permission (to withdraw) the Court would be guided by considerations of public interest and would also ensure that it does not result in the abuse of the process of law. Courts must guard against possibilities of such litigants settling the matters out of Court to their advantage and then seeking withdrawal of the case."2 Sometimes withdrawal of a public interest litigation, for oblique ends, can be used to the detriment of the public interest agitated therein. The Court has to be cautious not to fall prey to such oblique motives. The proceedings in public interest litigation are inquisitorial in nature and, therefore, the request for withdrawal of such litigation must always be weighed in the light of the question of public importance raised in it. A petitioner initiating public interest litigation is, therefore, not entitled to withdraw the petition at his sweet will.3 The Court, however, may permit withdrawal of such litigation on considering the nature of the matter agitated therein and ensuring that it does not involve abuse of the process of law.

Maintainability and Jurisdiction under Article 184(3)

1. The Armed Forces are to defend Pakistan against external aggression and threat of war, under our Constitution.4 The COAS is an officer commanding the Pakistan Army5 and is responsible for the command, discipline, training, administration, organization and preparedness for war of the Army. He is also the Chief Executive in the General Headquarters and an adviser to the Government on military matters.6 The appointment of the COAS of the Pakistan Army is, thus, inextricably linked with the life, security and liberty of every citizen and is undoubtedly a question of grave and vital public importance. The Army is perceived to play an intrinsic role in upholding constitutional values of sovereignty, freedom, democracy and the fundamental rights relating to life, liberty and dignity. Hence, the questions relating to its structure, command, governance and organization are of public importance with reference to the enforcement of the fundamental rights. In this age of information, the issues raised also attract fundamental right to information under Article 19A, as well as, the right to non-discrimination in services under Article 27 of the Constitution. Fundamental rights in a living Constitution are to be liberally interpreted so that they continue to embolden freedom, equality, tolerance and social justice.

2. Even the learned Attorney-General appearing for the Federal Government and the learned counsel for the COAS thought it appropriate, in this case, not to raise any objection to the assumption of jurisdiction by this Court or to the maintainability of this petition. They, during the hearing, rather tried to satisfy and convince the Court about the legality of the extension granted to the COAS and practically demonstrated that "it is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law."7 They in the course of arguments beseeched the Court to provide guidance to the Federation in this important matter.

3. The case proceeded as the Attorney-General for Pakistan ("Attorney-General") was already in attendance on his own, on the first date of hearing, and took us through the Summaries, approvals and orders passed regarding the extension of the COAS. The Court in its order dated 26.11.2019 identified some prima facie constitutional and legal flaws in the process of granting extension to the COAS and issued notices to all the respondents after impleading General Qamar Javed Bajwa, the COAS, as a respondent in the petition. The Court also suspended the operation of the notification of his extension dated 19.08.2019. The case was fixed for hearing the next day, on the request of the Attorney General. Relevant extract of the order dated 26.11.2019 is given as follows for ready reference:

"i) A summary had initially been moved by the Ministry of Defence for extension of the term of office of the Chief of the Army Staff and subsequently he was appointed as Chief of the Army Staff for a second term of three years after completion of his first term in that office but the learned Attorney-General for Pakistan has not been able to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his re-appointment to that office after completion of his first term.

ii) In the case in hand the Prime Minister had himself passed an order appointing the current Chief of the Army Staff for a second term in that office on 19.08.2019 whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office. Apparently that mistake came to notice straightaway and on the same day, i.e. 19.08.2019 a summary was moved from the Prime Minister's office to the President for extension/re­appointment of the incumbent Chief of the Army Staff and on that very day, i.e. 19.08.2019 the President was pleased to approve the summary in that regard and, hence, the advice of the Prime Minister was apparently accepted and acted upon. It appears that even that process was found to be flawed and on that very day it was realized that the Prime Minister or the President could not take the above mentioned actions without the approval of the Cabinet and, thus, on the next day, i.e. 20.08.2019 a summary was moved in the relevant regard for approval of the Cabinet and on 21.08.2019 the Cabinet was said to have approved the said proposal through circulation. The opinion of the Cabinet recorded in this regard, photocopies whereof have been produced before us, shows that there are 25 members of the Cabinet and out of those 25 members only 11 had agreed to the proposal which shows that the majority of the Cabinet had not approved the said proposal. Yet another peculiar aspect is that after the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President respectively.

iii) After our repeated queries the learned Attorney-General for Pakistan has referred to Regulation No. 255 of the Army Regulations (Rules) according to which a retirement of an Army officer can temporarily be suspended or limited. By placing reliance upon the said Regulation the learned Attorney-General for Pakistan has maintained that the Federal Government has the requisite authority to re-appoint or extend the services of an incumbent Chief of the Army Staff prior to his retirement if the exigencies of the service so require or the public interest so demands. A bare perusal of Regulation No. 255, however, prima facie shows that the said provision can be invoked after an officer has already retired from service and that is why the said Regulation speaks of suspension of retirement or limiting of retirement. Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse. The learned Attorney-General for Pakistan has, however, very candidly submitted before us that in the entire body of laws pertaining to the Pakistan Army there is no express provision available regarding re-appointment or extension in the service of a Chief of the Army Staff.

iv) The stated purpose for the proposed re-appointment/extension in the term of office of the incumbent Chief of the Army Staff is "regional security environment". The said words are quite vague and if at all there is any regional security threat then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual's role in that regard may be minimal. If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason."

Submissions of Attorney-General

1. The Attorney-General defended the Federal Government by arguing that the fresh appointment/ extension of the COAS is fully within the constitutional and legal fold. He submitted that the tenure of a General/COAS is three years as per unwritten convention and practice; that the tenure of a General/COAS can be extended under Regulation 255 of the Army Regulations (Rules); that the said Regulations have been framed under section 176-A of the Pakistan Army Act, 1952 and, therefore, have statutory force; and that even a retired Army General can be appointed as COAS under Article 243(4) of the Constitution, as the said clause of Article 243 is not subject to law. The Attorney-General took us through a series of documents, prepared prior to the filing of the instant petition and also those prepared during the course of hearing of the case, comprising the Summaries put up before the President, Prime Minister and the Cabinet; the subsequent approvals; and the relevant notifications regarding "reappointment", "extension", "limit-in-retirement" and "appointment" of General Qamar Javed Bajwa. A brief summary of the said documents is given as follows:

Initial appointment of General Bajwa as COAS

a. On 15.11.2016, the Ministry of Defence moved a Summary for the Prime Minister seeking approval of the Prime Minister under Rule 12 of the Pakistan Army Act Rules, 1954 for the retirement of General Raheel Sharif, COAS w.e.f. 29.11.2016.

b. On 28.11.2016, the Ministry of Defence notified the approval granted by the Federal Government for the retirement of General Raheel Sharif, COAS w.e.f. 29.11.2016.

c. On 26.11.2016, the Prime Minister gave advice to the President to promote General Qamar Javed Bajwa to the rank of General and to appoint him as COAS under Article 243(4)(b) of the Constitution. The President approved the advice on the same date.

d. On 26.11.2016, the Ministry of Defence notified the promotion of General Bajwa to the rank of General and his appointment as COAS w.e.f. 29.11.2016.

Extension of General Bajwa as COAS

First Proceedings dated 19.08.2019

e. The Prime Minister of Pakistan made an "order" appointing General Bajwa, as the COAS for another term of three years from the date of completion of current tenure. He stated "the regional security environment" as a reason of his said order.

f. The Prime Minister's office addressed a letter to the Defence Secretary stating that the Prime Minister had desired the extension of service of General Bajwa as COAS for another term of three years from the date of completion of the current tenure, and directed the Ministry of Defence to initiate a Summary to that effect.

g. The Ministry of Defence initiated a Summary for the Prime Minister stating therein that General Bajwa was due for retirement from 29.11.2019 by tenure and the Prime Minister was desirous for the extension of tenure of the General Officer for another term of three years from the date of completion of current tenure. The Ministry recommended that the General Officer may be granted extension under the Army Regulations (Rules) 255 for one further tenure (3 years) w.e.f. 29.11.2019 and beyond superannuation. The Ministry proposed the Prime Minister to advise the President to approve the recommendation regarding extension of the General Officer under Article 243(4)(b) of the Constitution. The Prime Minister advised accordingly and the President approved the Summary on the same day.

h. The Ministry of Defence notified that General Bajwa, COAS, had been granted extension for one further tenure (03 years) w.e.f. 29.11.2019 to 29.11.2022.

Second Proceedings dated 20.08.2019 and 21.08.2019

i. The Ministry of Defence, on 20.08.2019, initiated a Summary stating that the President has been pleased to approve the extension of the term of the General Officer for another 3 years from 29 Nov. 2019 to 29 Nov. 2022; that Rule 255 of the Army Regulations (Rules) stipulates that the retirement of officers will always be subject to the exigencies of service. Full power is reserved to Federal Government to "limit retirement in general or in individual cases whenever it may be necessary to do so in the public interest". With the said statements of fact and of law, the Ministry of Defence recommended that approval of the Federal Government was solicited for extension of the term of the General Officer for another 3 years from 29 Nov. 2019 to 29 Nov. 2022 and proposed obtaining approval of the Summary from the Cabinet through circulation.

j. The Cabinet Division, on 21.08.2019, circulated the said Summary amongst the members of the Cabinet with the approval of the Prime Minister. 11 (eleven) members of the Cabinet endorsed the Summary, while approval of 11 (eleven) members remained "awaited", while 03 (three) members were stated to be out of city or country. The Cabinet Division, however, considered the Summary to have been endorsed by the available members of the Cabinet by circulation. But the extension purportedly granted by the Federal Government was not notified.

Third Proceedings dated 26.11.2019

k. The Ministry of Defence moved the following three Summaries for the consideration of the Cabinet:-

i. Summary for withdrawal of the earlier Summary dated 20.08.2019 which was got approved by circulation on 21.08.2019;

ii. Summary for amendment/ substitution of Rule 255 of the Army Regulations (Rules); and

iii. Summary for limiting the retirement of and grant of extension in service to General Qamar Javed Bajwa.

The Cabinet approved all the said three Summaries in its meeting held on 26.11.2019.

Fourth Proceedings dated 26.11.2019

l. The Ministry of Defence notified the amendment/ substitution of Rule 255 of the Army Regulations (Rules), and also moved the following two Summaries for the Prime Minister:-

i. Summary for proposing withdrawal of the advice dated 19.08.2019 given to the President so that the President may withdraw the appointment of the COAS dated 19.08.2019 and any subsequent order or notification; and

ii. Summary for proposing the Prime Minister to advise the President to re-appoint General Bajwa for another term of three years as COAS under Article 243(4)(b) of the Constitution.

The Prime Minister advised accordingly, and the President approved the said Summaries.

m. The Ministry of Defence issued Notification No.3 / 11 / D-2 (A-II)/2019 dated 26.11.2019 stating thus:

"This Ministry's Notification of even No. dated 19 August, 2019 regarding extension in service in respect of PA-19617 General Qamar Javed Bajwa, NI(M), HI(M), Chief of the Army Staff (CAOS) is hereby withdrawn."

The Ministry of Defence, on the same day, issued another Notification No. F.3/11/D-2 (A-II)/2019 stating that:

"PA-19617 General Qamar Javed Bajwa, NI(M), HI(M), Chief of the Army Staff's (CAOS) retirement has been limited and he has been granted extension for one further tenure (03 years) with effect from 29 November 2019 to 29 November 2022."

Fifth Proceedings dated 28.11.2019

n. The Ministry of Defence initiated yet another Summary stating that the earlier Summaries and subsequent orders and notifications are liable to be withdrawn, and proposed the Prime Minster to advise the President:-

i. to approve the appointment of General Qamar Javed Bajwa, Chief of the Army Staff (CAOS) with effect from 28.1.2019, in view of the exigencies and highest public interest, in terms of Article 243 (4) (b) of the Constitution of the Islamic Republic of Pakistan, 1973;

ii. to determine that General Qamar Javed Bajwa, Chief of the Army Staff, shall be entitled to salary and allowances as prescribed under the Pay and Allowances Regulations (Army) as amended from time to time; and

iii. to supersede the earlier approval of the President on the advice of the Prime Minister dated 26.11.2019.

The PM advised accordingly and the President approved the Summaries.

o. The Ministry of Defence, on the same day, finally issued Notification No.F.3/11/D-2(A-II)/2019 stating thus:

"In exercise of the powers conferred under Article 243 (4) (b) of the Constitution of the Islamic Republic of Pakistan, 1973, the President, on advice of the Prime Minister, is pleased to appoint PA-19617 General Qamar Javed Bajwa, NI(M), HI(M), Chief of the Army Staff (CAOS) with effect from 28th November 2019, on salary and allowances prescribed under the Pay and Allowances Regulations (Army) as amended from time to time.

2. This Ministry's Notification No.3/11/D-2(A-II)/2019 dated 26 Nov, 2019 regarding limiting retirement and granting extension in service to the above named General Officer and Notification No.3/ 11 /D-2(A-II)/2019 dated 27 November 2019 are hereby withdrawn."

Flaws in the above process

1. In addition to the flaws noted in the process in our order dated 26.11.2019, the exercise of jurisdiction by the President, the Prime Minister, the Cabinet and the Ministry of Defence, Government of Pakistan in the extension, reappointment and appointment of the COAS highlights some further constitutional and legal flaws which are stated as follows:

a. The Prime Minister appointed General Bajwa as the COAS for another term of three years from the date of completion of the current tenure vide his "order" dated 18.09.2019, while the Prime Minister has no such power under the Constitution.

b. The tenure of 3 years mentioned in the above order of the Prime Minister has no legal basis.

c. The extension of the tenure of COAS for a further period of three years vide Notification dated 19.08.2019 is not supported by law as there is no provision of tenure or extension of tenure prescribed under the Constitution or the law.

d. The Summary initiated by the Ministry of Defence dated 19.08.2019 stated that General Qamar Javed Bajwa was due for retirement from 29.11.2019 by tenure but did not state the law providing for such tenure for retirement.

e. The said Summary mentioned that the General Officer may be granted extension of one further tenure of three years under the Army Regulations 255, despite the fact that there is no tenure prescribed for a General and that there is no provision for extension for another tenure in the Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 or the Army Regulations (Rules).

f. The President under Article 243(4) (b) of the Constitution granted extension to General Bajwa for three years on 19.08.2019, while the President has no power to grant extension under the Constitution or the law.

g. The Government, the very next day, i.e. 20.08.2019, retracted from the earlier position and without withdrawing the notification regarding grant of extension to General Bajwa, issued under the approval/ authority of the President a day before, took up the matter of extension of the tenure of General Bajwa with the Cabinet relying on Army Regulation 255 in the absence of any tenure or age of retirement prescribed for a General.

h. Only 11 members of the Cabinet out of 25 approved the above Summary through circulation. However, no notification was issued under the authority or approval of the Federal Government regarding extension of the tenure of General Bajwa. Thus, this exercise served no purpose.

i. This approval through circulation failed to comply with Rule 19 of the Rules of Business, 1973 which requires that the Cabinet Secretary is to specify the time by which the opinions of the Ministers should be communicated to him. No such timeframe was specified.

j. The Ministry of Defence issued notification dated 26.11.2019 stating that retirement of General Bajwa, as a General Officer has been limited and he has been granted extension for further three years. This exercise conducted under the freshly amended Army Regulations (Rules) 255 (including the word "extension") could only be useful if there had been tenure or retirement age of a General provided under the law.

k. Finally on 28.11.2019, a fresh Summary was put up before the Prime Minister for appointment of General Bajwa as COAS w.e.f. 28.11.2019 under Article 243(4)(b) of the Constitution which was approved by the President, leading to notification dated 28.11.2019. This Notification stated that the notification dated 26.11.2019 regarding limiting retirement and granting extension of service to General Bajwa stands withdrawn. This shows that there remains no notification in the field regarding limiting retirement and granting extension of service to General Bajwa. The appointment of General Bajwa on 28.11.2019 is again based on the assumption that his tenure has expired.

1. Some Summaries mention that the same have been prepared in due deference to observations of the Supreme Court of Pakistan. This generates an impression that the same have been made on the orders or directions of this Court. This is totally incorrect. In fact the Court simply highlighted steps taken by the President, the Prime Minister and the Cabinet, without any supporting law and as a consequence they on its own tried to rectify the same. The impression generated that the said steps were taken on the desire, orders or directions of the Court is dispelled.

Scope of Article 243 of the Constitution

1. The questions highlighted above require us to understand the legal structure of the Pakistan Army and the terms of service of its Commander, i.e. the Chief of the Army Staff. Therefore, it is most appropriate to begin with the understanding of the scope of Article 243 of the Constitution, which relates to raising and maintaining the Armed Forces and the appointment of their Chiefs.

2. "It is a constitution we are expounding8." As Chief Justice Dickson of the Supreme Court of Canada noted that "the task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.9" "Any interpretation of the Constitution must be grounded in its own language." It is a language written in invisible ink, between the lines, and derived from the structure of the Constitution.10

3. The history of Article 243 of the Constitution begins with Article 40 of the Constitution of the Islamic Republic of Pakistan, 1956 ("1956 Constitution") and travels through 54 years to take its present shape in the year 2010 through the Constitution (Eighteenth Amendment) Act, 2010. Evolution of Article 243 through time has been traced and is reproduced hereunder for better understanding of the Article.

Comparative History of Article 243

| | | | | | | --- | --- | --- | --- | --- | | | 1956 Constitution | 1962 Constitution | 1973 Constitution (Original Provision) | 1973 Constitution (Present Provision) | | | 40. Supreme Command of the Armed Forces.- | 17. President to have Supreme Command of the Defence Services.- | 243. Command of Armed Forces. | 243. Command of Armed Forces. | | (1) The Supreme Command of the Armed Forces shall vest in the President, and the exercise thereof shall be regulated by law. | | (1) The Supreme Command of the Defence Services of Pakistan is vested in the President, to be exercised by him subject to law. | (1) The Federal Government shall have control and command of the Armed forces. | (1) The Federal Government shall have control and command of the Armed Forces. (2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. | | (2) Until Parliament makes provision by law in that behalf the President shall have the power- (a) to raise and maintain the Naval Military and Air Forces of Pakistan and the Reserves of such Forces; (b) to grant Commissions in such Forces; and (c) to appoint Commanders-in-Chief of the Army, Navy and Air Forces and determine their salaries and allowances. | | (2) Without limiting the generality of clauses (1) of this Article, the President has power, subject to law; (a) to raise and maintain the Defence Services of Pakistan and the Reserves of those Services; (b) to grant Commissions in those Services; and (c) to appoint chief commanders of those Services and determine their salaries and allowances. | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; (b) to grant Cmmissions in such Forces; and (c) to appoint the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff, and determine their salaries and allowances. | (3) The President shall subject to law have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces; and (b) to grant Commissions in such Forces. (4) The President shall, on advice the Prime Minister, apooint- (a) the Chairman, Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) The Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salries and allowances. | | | | | | |

1. Article 40 of the 1956 Constitution shows that the President was made the Supreme Commander of the Armed Forces and the said command was to be exercised by him under the law. The Article further provided that until the Parliament made law, the President would raise and maintain an Army and grant Commissions in Forces and appoint, inter alia, Commander-in-Chief of the Army. The underlying constitutional spirit gathered from the said Article is that the President was to raise and maintain an Army, to command it, to grant Commissions in it and to appoint its Commander-in-Chief under the law. It is important to note that the Pakistan Army Act, 1952 ("Act") was in force at the time of promulgation of the 1956 Constitution and despite its existence the framers of the Constitution required the Parliament to make provision by law to regulate the above matters. Article 40, thus, underlined that the Act had to provide the necessary structural underpinning that would constitute raising and maintaining of an Army, granting Commissions in the Forces and appointing its Commander-in-Chief.

2. Article 17 of the Constitution of the Republic of Pakistan, 1962 ("1962 Constitution") carried the spirit of Article 40 of the erstwhile Constitution; this time without awaiting for the legislation by the Parliament made the exercise of the President in relation to raising and maintaining the Armed Forces and granting Commissions in and appointing Chiefs of, such Forces, subject to law. No changes had been made in the Pakistan Army Act, 1952 since 1956 till 1962, therefore, the Act remained devoid of these constitutional structural requirements, in as much as, no provisions were added therein as to command of the Armed Forces by the President as the Supreme Commander, the powers to be exercised by him to raise and maintain an Army, to grant Commissions in the Forces and to make appointment of the "Chief Commander." This constitutional mandate was not actualized in law by the Legislature and the Government of the time, and remains unrealized even today.

3. This brings us to the present Constitution of 1973. The unrealized constitutional mandate once again is repeated in Article 243 with the same vigour and flair as it was done in the Constitutions of 1956 and 1962. Clauses (1) and (2) of Article 243 of the Constitution provide that the Federal Government shall command and control the Armed Forces and the President shall be its Supreme Commander. Clause (3) Article 243 of the Constitution provides that the President shall subject to law raise and maintain the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces and grant Commissions in the Forces. Integral and intrinsic to raising and maintaining an Army is to first provide for the post of Commander in Chief of the Army, the General Officers and other Commissioned Officers that stand behind him and constitute the body of the valiant Army. No Army can be visualized without its gallant commanders. Once the structure including terms of service and tenure of the General Officers is put in place under the law envisaged by the Constitution, the role of the President to appoint the Chief of the Army Staff, under clause (4) of Article 243, from amongst the General Officers, on the advice of the Prime Minister is then simply a matter of selecting the most appropriate and suitable General officer to act as COAS. The power to appoint COAS under Article 243(4) is, therefore, not an exercise in isolation but stands rooted and connected to the Army raised and maintained under Article 243(3) of the Constitution.

4. Review of the Military Laws of other countries shows that the law must provide for essential structural areas that would pass for raising and maintaining an Army. A comparative chart of the Laws of the Armed Forces of different countries is given hereunder:

Constituents of raising and maintaining Armed Forces

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Structural Areas | United States (10 U.S. Code Title Armed Forces). | Australia (Defence Act 1903) | Canada (National Defence Act 1985) | Singapore (Armed Forces Act 1972) | Malaysia (Aremed Forces Act, 1972) | New Zealand (Defence Act, 1990). | | Organization Control and Administration | Organization and General Military Powers | Control and administeration (Part II) | Canadian Forces Organization (Part II) | Organiztion of Singapore Armed Forces (Part II) | The Regular Forces of Malaysia (Part II) | Mew Zealand defence Part II | | Appoitment, Resignation Termination, Remuneration Superannuation and other Terms and Conditions. | Personnel | Appointment Resignation, Termination Remuneration Superannuation | Enrolment, Promotion, Service, Pay (Part (II) | Appointments Pay. Pension, Terms and Conditions, Remuneration (Ss.10-10C, 192-197,202-208). | Appointment of Officers of The Regular Forces and Terms of Service (Parts III, IV and VI). | Appointment of Chiefs, Terms and Conditions of Service in Armed Forces and Superannu-ation (Part 3-5) | | Military Offences | Punitive Matters (Subchapter VIII) | Offences and Offences in relation to service tribunl (Parts VII-VIII) | Service Offences and Punishments infraction (Part III Dv2). | Military Offences (Part III) | Service Offences and Punishments (Part V) | Offence punishable by Civil Courts (Part VII) | | Trial by Subordinate Military Courts | Uniform Code of Military Justice (Chapter 47). | Defence Force Discipline Act, 1982. | Trial by Court Martial and Civil Court (Part-III Dv6, Part-VII) | Trial by Subordinate Military Courts (Part V). | Offences relating to the Armed Forces punishable by Civil Courts (Part VII) | Redress of complaints (Sec.49) and Armed Forces Discipline Act, 1971 | | Punishments of Military Offences | Punitive Articles (Subchapter X) and Sentences (Subchapter VI) | Penalty (Part VII Sec.73-F) | Service Offences and Punishments infraction (Part-III Dv2). | Punishments of Military Offences and Execution of Sentences (Part VI). | Service Offences and Punishments (Part V) | Members may be discharged or released for incompatible behaviour and disciplinary proceedings (57 and 57A). | | Court of Appeal | Uniform Code of Military Justice (Chapter 47) | Defence Honors and Awards Appeals Tribunal (Part VIIIC) | Grievances (Right of Appeal) (Part -II Dv9). | Military Court of Appeal (Part VII) | Offences relating to the Armed Forces punishable by Civil Courts (Part VII) | Court Martial Appeals Act 1953 and Armed Forces Discipline Act 1971. | | Training and Development | Training and Education ($$) | Australian Defence Force Cadets (Part V) | The Governor in Council make regulations for the training and discipline of Armed Forces (Sec 12 (1)). | General Orders of Ministry of Defence (Sec 208 d) | Training and attachment (Sections 191, 201 and 201B). | Cadet Forces (Part VI). |

1. The above mentioned laws provide the essential structural areas that constitute raising and maintaining an Army. The key structural areas include Organization; Control; Personnel; Terms and Conditions of services of officers of the Armed Forces including Appointments, Ranks, Remuneration, Promotion, Resignation, Termination, Superannuation, Command, Rank; Discipline, Administration, Training and Development, Education and Offences. The United States Law of Armed Forces also provides for Procurement, Supply and Acquisitions for the Armed Forces. The above laws strongly underline that the officers, who are to command and control the Army, unquestionably form an essential component of the Army and must, therefore, be explicitly recognized under the law.

Review of the Pakistan Army Act, 1952

1. When the Pakistan Army Act, 1952 is reviewed in the context of raising and maintaining an Army, we see that it largely deals with offences, courts martial and punishments. There is no mention of the Chief of the Army Staff, the commanders of the Pakistan Army. There is no mention of the General Officers or the other Commissioned Officers or terms of their service. Only three chapters briefly touch upon definitions, appointment and termination of service. While the Act governs Commissioned Officers there is nothing in the Act that prescribes the terms and conditions of service of the said Officers. Chapter II deals with the Appointment, Enrolment and Attestation of Junior Commissioned Officers and Warrant Officers and not of Commissioned Officers, while section 18 in Chapter III, relating to Termination of Service deals with the retirement, release or discharge of persons subject to the Act. The Act is silent about key structural areas that constitute raising and maintaining an Army especially about the Commissioned Officers and their Commander-in-Chief.

2. In order to meet this structural constitutional requirement of Article 243(3) of the Constitution, it seems that a hurried effort was made and some key structural areas that are necessary for raising and maintaining an Army were inserted in section 176A of the Act in the year 196511 empowering the Federal Government to make Regulations in respect of "governance, command, discipline, recruitment, terms and conditions of service, precedence, and administration of the Pakistan Army." This slipshod legislative upload, however, does not meet the requirement of Article 243(3) of the Constitution, without providing for core, primary and essential legislation on these structural areas by the Parliament. This aspect is discussed in detail in later part of the judgment while examining the status of the Army Regulations (Rules). For now it would suffice to observe that the Pakistan Army Act, 1952, falls deficient of the Constitutional requirement under Article 243(3) as it does not provide for essential elements required to raise and maintain an Army, in particular, the grant of Commissions in the Army and the terms of service of the Commissioned Officers. Had this been done, the questions raised before the Court today, would not have arisen.

Post of COAS - Whether Unregulated

1. The appointment to the post of COAS is made under Article 243(4)(b) of the Constitution. It would be advantageous to have a look at the history of the successive amendments in the said Article before discussing various aspects surrounding the appointment of the COAS. The trajectory of constitutional amendments made in Article 243 is given as under:-

Constitutional amendments in Article 243

(Amendments are given in bold for convenience)

| | | | | | | | --- | --- | --- | --- | --- | --- | | 1973 Original Position | After 1985 Amendment | After 1997 Amendment | After 2002 Amendment | After 2003 Amendment | After 2010 Amendment/ Substituiton | | (1) The Federal Government shall have control and command of the Armed Forces | (1) The Federal Government shall have control and command of the Armed Forces | (1) The Federal Government shall have control and command of Armed Forces | (1) The Federal Government shall have control and command of the Armed Forces | (1) The Federal Government shall have control and command of the Armed Forces | (1) The Federal Government shall have control and command of the Armed Forces | | | (1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. (This clause was added). | (1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. | (1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. | (1A) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. | (2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. (This clause was renumbered as clause (2). | | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; (b) to grant Commisisons in such Forces; and (c) to appoint the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff and determine their salaries and allowances. | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; (b) to grant Commisisons in such Forces; and (c) to appoint in his discretion the Chairman, Joint Chiefs of Staff Committee, the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff and determine their salaries and allowances. (The highlighted words were added) | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; (b) to grant Commissions in such Forces; and (c) to appoint the Chairman Joint Chief of Staff Committee, the Chief of Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff and determine their salaries and allowances (Words "in his discretion" from clause 2(c) were omitted). | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and (b) to grant Commissions in such Forces, Paragraph (c) of clause (2) was omitted and clause (3) was added. | (2) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and (b) to grant Commissions in such Forces, | (3) The President shall subject to law, have power--- (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; (b) to grant Commissions in such Forces. (This clause was renumbered as clause (3). | | | | | (3) The President shall, in his discretion, appoint. (a) the Chairman, Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salaries and allowances. | (3) The President shall, in consultation with the Prime Minister, appoint- (a) the Chairman Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff and shall also determine their salaries and allowances (In clause (3), for the words "in his discretion" the words "in consultation with the Prime Mihister" were substituted.) | (4) The President shall, on advice the Prime Minister, appoint- (a) the Chairman, Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Airm Staff, and shall also determine their salries and allowances. (In clause (4), for the words "in consultation with the Prime Minister" the words "on advice of the Prime Minister" were substituted.) |

1. Article 243(4), which carries a long constitutional ancestry since 1956, provided in its original form that the President shall "subject to law" appoint and determine salary and allowances of the COAS, alongwith matters of raising and maintaining Armed Forces and granting Commissions in Forces. Under the Legal Framework Order, 2002 the matter of appointment of COAS was separated and provided for under clause (3) of Article 243 which was renumbered as clause (4) in the year 2010. Post 2002, clause (3), now clause (4) of Article 243, does not contain the expression "subject to law." Relying on the current language of clause (4) of Article 243 the learned Attorney-General submitted that the post of the COAS not being "subject to law" allows appointment of even a retired General as the COAS.

2. The submission of the learned Attorney-General, if accepted, immediately gives rise to a number of questions: Who can be appointed as a COAS? Can a COAS be a serving or a retired army officer? What will be the rank of such army officer? What will be the tenure of COAS? What will be the age of his retirement? Can he be removed from service? Can he resign or step down due to personal reasons? How will the President, the Supreme Commander of the Armed Forces or the Federal Government having the command and control of the Armed Forces regulate the post of COAS? These questions are of importance for the nation and for the Armed Forces as a premier security institution of the country. It is inconceivable that the constitutional appointment to the post of the COAS in the "service of Pakistan12" goes unregulated under a written Constitution.

3. The interpretation put by the learned Attorney General, to the provisions of clause (4) of Article 243 is the result of reading it in isolation from the other clauses of Article 243, particularly the immediately preceding clause, i.e. clause (3), and in oblivion of the overall constitutional scheme of appointment to the constitutional posts and their tenure. It is a settled principle of interpretation that the words in a provision cannot be read and interpreted in isolation. The meaning and scope of a provision is determined by looking not to the isolated words used therein but by reading its text in context. The relevant provision of the Constitution is, therefore, to be read in its immediate context as well as in the overall scheme of the constitutional appointments.13

4. Clause (3) of Article 243 as elaborated earlier, contemplates raising and maintaining the Armed Forces and granting Commissions in such Forces under a law enacted by the Parliament. Such a law must provide for a cadre of commanders who will eventually head the Army. Article 243(4) simply deals with selection/ appointment of the COAS by the President on the advice of the Prime Minister. This selection/ appointment is naturally to be made from amongst the General Officers of the Army raised and maintained under Article 243(3) and is solely the prerogative of the President on the advice of the Prime Minister which cannot be curtailed by law. Both clauses (3) and (4) of Article 243 work in tandem, without disturbing each others powers. Therefore, separation by the Legal Framework Order 2002 of clause (4) from that of clause (3) and omission of the expression "subject to law" in clause (4) has only given more autonomy to the Prime Minister, the head of the Executive branch, in selection and appointment of a General Officer as a COAS. The removal of the term "subject to law" does in no manner lessen the importance of Article 243(3), which envisages that the terms of service of the General Officers should be provided under the law.

5. A look at the scheme of the Constitution shows that the President in whom the Supreme Command of the Armed Forces vests, has a fixed tenure under the Constitution.14 The Prime Minister, on whose advice the COAS is appointed, being a Member of the National Assembly, has also a fixed term under the Constitution. A survey of the constitutional appointments to be made by the President is given as under:

Constitutional Appointments

| | | | | | --- | --- | --- | --- | | Article | Constitutional Office | Article | Tenure or Age of Retirement | | 92(1) | Federal Ministers and Minister of State | 92(3) | May be removed from office at anytime on the advice of the Prime Minister (Not a Service of Pakistan- Article 260) | | 93(1) | Advisors | 93(1) | The terms and conditions of appointment are determined by the President, on the advice of the Prime Minister. (Not a Service of Pakistan- Article 260) | | 100(1) | Attorney-General for Pakistan | 100(2) | Holds office during the pleasure of the President. (Not a Service of Pakistan- Article 260) | | 92(1) | Federal Ministers and Minister of State | 92(3) | May be removed from office at anytime on the advice of the Prime Minister (Not a Service of Pakistan- Article 260) | | 101(1) | Governors of Provinces | 101(3) | Hold offices during the pleasure of the President. | | 168(1) | Auditor General of | 168(3) | 4 years tenure, or age of 65 years | | 177(1) | Chief Justice of Pakistan | 179 | No tenure or age of retirement Connected with the Judge of the Supreme Court who holds office till age of 65 years. | | 177(1) | Judges of the Supreme Court | 179 | Hold offices till age of 65 years | | 193 | Chief Justices of High Courts | 195 | No tenure or age of retirement Connected with the Judge of the High Court who holds office till the age of 62 years. | | 193 | Judges of High Courts | 195 | Hold offices till age of 62 years | | 203C(2) | Chief Justice Federal Shariat Court | 203C(4) | Tenure not exceeding 3 years; and may be appointed for further term(s) | | 203C(2) | Judges of Federal Shariat Court | 203C(4) | Tenure not exceeding 3 years; and may be appointed for further term(s) | | 203F | Judges of Supreme Court Shariat Appellate Bench | 203F(4) | Holds office for such period as the President may determine | | 213(1) | Chief Election Commissioner | 215(1) | 5 years tenure | | 218(2)(b) | Members of Election Commission | 215(1) | 5 years tenure | | 228(2) | Members of Council of Islamic Ideology | 228(5) | 3 years tenure | | 228(4) | Chairman, Council of Islamic Ideology | 228(5) | No tenure. But same as that of a Member, i.e., 3 years under Article 228(5). | | 242(1A) | Chairman of Public Service Commission | | No tenure or age of retirement. Terms of service of a Member applicable. Section 4(1) of the FBSC Ordinance, 1977 provides a tenure of three years or an age of 65 years, whichever is earlier of a Member the Commission. | | 243(4) | Chairman, Joint Chiefs of Staff Committee; and Chiefs of Armed Forces | | No tenure prescribed in the Constitution and the law relating to the Armed Forces. |

The above provisions of the Constitution provide for the following constitutional positions as to tenure or age of retirement: (i) posts with specific tenure or age of retirement in the Constitution, (ii) posts with no specific tenure or age of retirement but are regulated at the pleasure of the President, and (iii) posts with no specific tenure or age of retirement but are regulated with the tenure or age of retirement of the persons so appointed to the posts. A quick reference can be made to the appointment of Chief Justice of the Supreme Court or of a High Court, which is an appointment without a tenure or age of retirement. This falls in the third category. Chief Justice of the Supreme Court or of a High Court is appointed from amongst the Judges of these Courts and it is the age of retirement of these Judges, under the Constitution, that regulates the age of retirement of the Chief Justices. Therefore, if a Judge of Supreme Court retires at 65 years of age, so does the Chief Justice of Pakistan. Similarly, the Chairman of the Council of Islamic Ideology has no tenure or age of retirement under the Constitution. However, as the Chairman of the Council is appointed from amongst the Members of the Council, it is his tenure as a Member that regulates his tenure in the post of Chairman. Another example is of the tenure of the Chairman of the Public Service Commission, who is not provided under Article 242(1A). However, being a Member15 of the Public Service Commission his tenure and age of retirement stand regulated under section 4(1) of the Federal Public Service Commission Ordinance, 1997 which determines tenure and age of retirement of a Member.

1. Army Regulations (Rules) 125 read with Annex D shows that an officer of the Army holding the rank of a "General" is appointed as a COAS. This is also an admitted position according to the submissions made by the Attorney-General besides being visible from the appointment notifications of the earlier and the present COAS, placed on the record. The appointment notifications provide that a Lieutenant-General is first promoted to the rank of a General and then appointed to the post of COAS. It is for this reason that the Federal Government in the Summaries and notifications, referred to above, have taken pains to extend the tenure of General Bajwa for a period of three years either through extension in service or limiting his retirement in order to make him available for re-appointment to the post of COAS. Therefore, the substantive rank of the army officer who is posted as a COAS is that of a General, which in turn then regulates the tenure, as well as, the other terms of service of the COAS. This puts to rest the impression that the post of COAS is without any tenure under Article 243(4)(b). Thus, the constitutional appointment of COAS, like similar constitutional appointments, stands regulated and falls in line with the constitutional scheme. It is important to underline that it is only a serving General who can be appointed as the COAS. This is because only a serving army officer is subject to the Pakistan Army Act, 1952.16 A retired army officer has no terms of service and is not regulated under the Act. Therefore, the terms of service of the rank of the General appointed as COAS regulates the tenure and terms of service of the COAS, other than his salary and allowances which are to be determined by the President under Article 243(4) of the Constitution.

Tenure or Age of Retirement of a General

1. We have examined the laws relating the Pakistan Army to determine the terms of service of a General, in particular his tenure and age of retirement. The Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 are totally silent about the tenure or age of retirement of a General. Section 18 of the Act states that the prescribed Authority may, in conformity with such rules as may be prescribed in this behalf, retire, release, or discharge from the service any person subject to this Act. While Rule 12 of the Rules provides that the retirement or release of an officer shall be authorized by the Federal Government and notified in the official Gazette. Both these provisions do not provide the age of retirement or tenure of army officers including a General.

2. The Army Regulations, however, contain the provisions regarding the retirement of the army officers. Regulations 262, 262-A and 262-C deal with normal retirement of officers. Regulation 262 deals with normal retirement of officers who were on the Effective List17 on 1.07.1970 (commissioned prior to 1970) and provides their retirement age and service limit including that of a General as follows:

| | | | | --- | --- | --- | | Rank | Age (yrs) | Service | | (a) Major and below | 47 | 23 | | (b) Lieut-Colonel | 50 | 25 | | (c) Colonels | 53 | 26 | | (d) Brigadiers | 55 | 28 | | (e) Major Generals | 57 | 30 | | (f) Lieut-Generals | 58 | 32 | | (g) Generals | 60 | 35 |

Regulation 262-A deals with officers commissioned after 1970 which includes the incumbent COAS, while Regulation 262-C deals with the officers commissioned after 1988. Regulation 262-A, which is applicable to General Bajwa, does not provide for age of retirement for the officer of the rank of a General as seen from the relevant provision reproduced hereunder:

| | | | --- | --- | | Rank | Age Limit | | (a) Major and below | 48 | | (b) Lieut-Colonel | 50 | | (c) Colonel | 52 | | (d) Brigadier | 53 | | (e) Major General | 55 | | (f) Lieut-General | 57 years or on completion of one tenure of four years which ever is earlier. However, an officer may be retained in service as a special case by the Federal Government for an extra year on completion of his tenure of four years. |

1. The laws relating to the Army discussed above do not provide for the tenure or age of retirement of a General. The learned Attorney-General has also conceded this legal deficiency and submitted that the tenure of a General, at present, is being regulated by the institutional convention and practice. As per the said practice, he submitted, the tenure of a General and consequentially of a COAS is three years. This institutional practice pleaded by the Attorney-General is discussed in detail in the later part of the judgment. It would suffice here to observe that such an institutional practice cannot be a valid substitute of the law required to be made in pursuance of the constitutional mandate under Article 243(3) of the Constitution. This is a serious legislative omission. Service in the Armed Forces being "Service of Pakistan" must be regulated by or under the law in accordance with the provisions of Article 240 of the Constitution read with Article 243(3). Otherwise, it is inconceivable that the highest rank in the Army, would have no tenure or age of retirement or other terms of service.

Extension in service and limit in retirement of a General

1. The re-appointment, extension or fresh appointment of General Bajwa as COAS has been structured by the Federal Government by first limiting the retirement of the General under Regulation 255 for three years and then appointing him as COAS for another term under Article 243(4) of the Constitution. During the course of hearing of this case, the said Regulation was amended overnight by the Federal Government on 26.11.2019 to include the expression "extension" in limiting retirement. In the absence of a tenure or age of retirement for the rank of a General under the law, this exercise to amend the Regulation 255 did not serve any purpose.

Scope and Meaning of Army Regulation (Rules) 255

1. The above Regulation has been provided in the Chapter dealing with Termination of Service of Army Regulations (Rules) and bears the heading Retirement and Resignation. This Regulation can only be invoked for an officer who has retired or is about to retire. The emphasis is to delay the retirement either by limiting the retirement or by extending the date of retirement or suspending retirement after retirement. This is a temporary arrangement and can only be availed if the exigencies of service and public interest so require. The essence of the Regulation is that if an officer is on the way out (about to retire) and urgent or pressing circumstances require that he be retained in service, this Regulation comes into play. An example could be that during war, an army officer may not be allowed to leave the war front just because he is about to retire or has retired, in such a situation the retirement can be limited, extended or suspended. This is in line with Regulation 255A. The exercise of discretion by the Federal Government under the said Regulation has to be structured on parameters of exigency of service with a corresponding temporary period in mind. The words suspension, limiting retirement and extension do not connote permanency and cannot be equated with grant of new tenure or a fresh appointment. Therefore, a new tenure or fresh appointment for a full new tenure cannot be given or granted to an army officer under Army Regulation (Rules) 255.

Status of Regulations 255

1. Reading of Regulation 255 in the light of the relevant provisions of the Act and the Rules has given rise to some serious doubts as to the vires of its provisions which we would like to highlight in the public interest so that the Federal Government when initiates a legislative process on the subject, may take it also into consideration. Section 18 of the Act provides as under:

18. Retirement, release or discharge.-- The prescribed Authority may, in conformity with such rules as may be prescribed in this behalf, retire, release, or discharge from the service any person subject to this Act.

Section 176(2)(a) empowers the Federal Government to make Rules on the subject of "retirement" and as a consequence Rule 12 of the Pakistan Army Act Rules, 1965 provide as follows:

12. Authorities empowered to authorize retirement, release or discharge.--(a) The retirement or release of an officer shall be authorized by the Federal Government and notified in the official Gazette. The Federal Government may at any time terminate the services of an officer.

1. Army Regulation (Rules) 255 appears in Chapter XI of the Regulations dealing with Termination of Service under the head Retirement and Resignation. Regulation 255, prior to the recent amendment, provided as follows:

Retirement and Resignation

255. General Provision:- Retirement of officers will always be

subject to the exigencies of service. Full power is reserved to the Federal Government temporarily or limit retirement, in general or in individual cases wherever it may be necessary to do so in public interest. Officer of the rank of Colonel and above will not be permitted to retire voluntarily unless deemed expedient by the Federal Government.

The above Regulation was amended in one day on 26.11.2019 during the pendency of this case. This was done when the Court asked the Attorney-General to show if there was any provision of the law dealing with "extension" of the tenure of a General or COAS. The amended Regulation is as follows:

Retirement and Resignation

255. General Provision:- Notwithstanding anything contained in the Army Regulations, Volume-I (Rules), 1998, the Federal Government shall have the power to suspend temporarily or limit retirement, the latter including the grant of extension in the service of any officer, in general or in individual cases, during the currency of tenure or upon reaching retirement, wherever it is necessary to do so in any exigency or in the public interest. Officer of the rank of Colonel and above will not be permitted to retire voluntarily unless deemed expedient by the Federal Government

1. Section 176A of the Act clearly provides that the Federal Government shall make Regulations for all or any of the purposes of the Act but other than those in respect of which Rules have been made under section 176. Rule 12 specifically covers the subject of "retirement"; therefore, Regulations could not deal with the subject of retirement. While the Act and the Rules mention simple retirement, the Regulation introduces a totally new concept of suspending, limiting in and extending retirement, which apparently exceeds the mandate of the Act.

Status of Section 176A of the Act and the Army Regulations

1. The examination of Regulation 255 has lead us to examine the history and constitutionality of section 176A of the Act and the vires of the Army Regulations as a whole. Before Independence, Army of the British India was governed by the Indian Army Act, 1911. After 1947, the Pakistan Army continued to be governed by the said Act by virtue of section 18 of the Indian Independence Act, 1947. The Act of 1911 was repealed and replaced by the Pakistan Army Act, 1952. We could not trace the history of Army Regulations (Rules) and their legislative authority before 1960 or 1965 when they are said to have been made under section 176A of the Act. The Regulations were in existence even in 1945 but did not have a legislative cover under the Indian Army Act, 1911 as there was no provision under the said Act to make the Regulations. India resolved this anomaly by adding sections 192, 193 and 193A in the Indian Army Act, 1950; and Pakistan did this in the year 1965 by adding section 176A to the Pakistan Army Act, 1952.

Essential Legislative Function - Excessive Delegation

1. In order to provide a legal cover to the Army Regulations, section 176A was inserted in the Act vide the Pakistan Army (Amendment) Ordinance, 1965 (Act XV of 1965) which empowered the Federal Government to make Regulations in the following manner:

176A. Power to make regulations. The Federal Government may make regulations for the governance, command, discipline, recruitment, terms and conditions of service, rank, precedence, and administration of the Pakistan Army and generally for all or any of the purposes of this Act, other than those in respect of which rules have been made under section 176. (emphasis supplied)

It is useful to refer to the debates18 in the National Assembly when Section 176-A was introduced through the Pakistan Army (Amendment) Ordinance, 1965. Dr. Aleem Al-Razi, the then Member of the National Assembly pointed out as follows:

"Thirdly, the last clause in section 176 of the Act is absolutely unnecessary. It takes away the entire thing from the purview of this Legislature to the Executive Government alone who will be determining the factors whom to be given precedence and whom to be given a new title or new favour this is absolutely in the hand of the Central Government. Under the previous rules, under section 176 of the Pakistan Army Ordinance, 1952, Mr. Speaker, the wording of that section are not so quiet but unfortunately by adding new section 176-A a comprehensive power we are giving to the Executive Government and we shall not know anything. Even there is no provision of publication of those rules and regulations in the official Gazette of Pakistan. So, Mr. Speaker, Sir, may I ask the Members of the Treasury Benches that they may publish these rules and regulations in the Official Gazette and if necessary produce those rules and regulations on the floor of the House if not for approval may be for our reading, for our understanding so that we may know the fate of our Army, we may know the rules and regulations by which our Armed Forces are governed so that we may also go in the Armed Forces of Pakistan." (emphasis supplied)

Mr. Muhammed Qasim Malik, the then Parliamentary Secretary to the Defence Division, who tabled the Ordinance for approval by the Assembly under clause (3) of Article 29 of the Constitution, 1962 pointed out as under:

"... This is actually to legalize the Pakistan Army Regulations which are already in existence. But unfortunately it was found later on that they had no legal force under the Army Act. Under the Army Act, Army regulations can be made and they already exist and there is a great necessity of these Regulations. Therefore, this Ordinance had to be brought in. The main purpose is to legalize this and to give a certain legal force behind those regulations because they could not be framed unless and until this Ordinance was passed or this Resolution is passed… …"

1. The debates are self-explanatory and set out the purpose of inserting section 176A in the Act. It can be safely maintained that the said Regulations existing from the time of the British India were promulgated as statutory Regulations by the Federal Government under section 176A of the Act after 1965. The only problem is that these Regulations once brought within the statutory fold must flow from the Act. Regulations which do not meet this requirement would be ultra vires the Act. The scope of the Act or the vires of the Regulations cannot be determined by the words inserted in section 176A like governance, command, discipline, recruitment, terms and conditions of service, rank, precedence and administration of the Pakistan Army. These words are mere words when there is no essential or core legislation on these subjects. Article 142(a) of the Constitution provides that the Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List. Item No. 1 of the said List provides for Military, Naval and Air Forces raised and maintained by the Federation. However, no such legislation was ever made since it was first clearly mandated under the 1956 Constitution. Section 176-A inserted in 1965 provided a shortcut and authorized the Federal Government to regulate areas like governance, command, discipline, recruitment, terms and conditions of service, rank, precedence and administration of the Pakistan Army through Regulations. The power of the Parliament under the Constitution cannot be delegated to the Federal Government without the Parliament performing the basic essential legislative function, i.e. providing policy guidelines on these areas.

2. This Court has time and again held that the essential legislative function of the Parliament cannot be delegated.19 The wisdom behind it is that the delegatee must have legislative guidelines to formulate Rules and Regulations, and that guidelines, contours or boundaries must come from the Legislature itself. Delegation of an "essential legislative function" by the Legislature to the Executive is not permissible under the Constitution. The foundation of embargo owes its genesis to the concept of trichotomy of powers between the Legislature, the Executive and the Judicature, which is a fundamental principle of our constitutional construct. Under the Constitution, these three organs of the State have been entrusted with separate and specified functions. The primary function of the Legislature is to legislate laws, of the Executive to execute laws, and of the Judicature to interpret laws.20 The words of Chief Justice Marshall of the US Supreme Court frequently quoted, in explaining the doctrine of separation of powers, by the Courts of various jurisdictions in the last about two centuries still hold: "the Legislature makes, the Executive executes, and the Judiciary construes, the law." The Legislature cannot abdicate performance of the function assigned to it by the Constitution and set up a parallel Legislative authority. Though the Legislature can confer upon any person or body the power to make subordinate/delegated legislation (rules, regulations or byelaws, etc) in order to give effect to the law enacted by it yet it must perform itself the essential legislative function, i.e. to exercise its own judgment on vital matters of policy and enact the general principles providing guidance for making the delegated legislation. Through section 176A, the Parliament appears to have divested itself of the essential legislative function which amounts to excessive delegation.

3. The Army Regulations (Rules) will be rendered ultra vires if they do not draw their power from the parent Act, i.e. the Pakistan Army Act, 1952 and will suffer from excessive delegation if they draw their strength only from section 176A of the Act. The Regulations have to be fully examined in the light of these principles. Once again it is for the Federal Government to bring about appropriate legislation to remove these defects so that the Regulations have a proper legal cover and are fully enforceable under the law.

Accessibility of Regulations

1. The copy of the Army Regulations (Rules) carries a stamp of "Restriction" stating as follows:

| | | --- | | RESTRICTED The information given in this document is not to be communicated either directly or indirectly, to the press or to any person not authorized to receive it. |

Acts of the Parliament or subordinate legislation are public documents and must be readily available to the citizen of the country subject to the exceptions provided under the Right of Access to Information Act, 2017. Those exceptions extend only to record relating to defence forces, defence installations or connected therewith and ancillary to defence and national security,21 and not to the Army Laws. It is important to remember that when there is information, there is enlightenment and when there is debate, there are solutions.22 Had the Army Regulations been made accessible to public and had these matters been discussed earlier, the omissions pointed out for the first time since 1947 could have been remedied much earlier. Therefore, every legislative instrument must be made accessible to public.

Legal Vacuum and the Assurance by the Federal Government

1. After detailed examination of the laws relating to the Army it is concluded that there is no provision providing for the tenure and age of retirement of a General and as a consequence of the COAS, as well as, for the extension of tenure or fresh appointment for another tenure. The Summaries initiated by the Ministry of Defence and approved by the President, the Prime Minister and the Cabinet, for the reappointment, extension and fresh appointment of the COAS seems to be meaningless and of no consequence in the said legal vacuum. The learned Attorney-General has assured the Court that the Federal Government will carry out legislation through the Parliament in the shape of an Act within six months to provide for the terms of service of a General (and as a consequence of COAS) so that effect can be given to Article 243 in letter and spirit and functionality of the constitutional provisions be realized at the earliest. Even otherwise, this Court could have directed23 the Federal Government to initiate and process legislation to give effect to a constitutional mandate. The Federal Government may also, if deems appropriate, specifically provide for extension of the tenure of an army officer of the rank of a General in the Act with grounds for granting such an extension, so that the discretion of the Federal Government in granting extension to a General is structured. It may also carry out necessary amendments in the law to protect the Army Regulations (Rules) as discussed above, which appear to be without any legal cover and fall outside the scope of the Pakistan Army Act, 1952.

Institutional Practice

1. When confronted with the legal vacuum regarding the tenure, age of retirement and other terms of service of a General, the learned Attorney-General candidly responded that there is an unwritten institutional practice in vogue since long whereby the tenure of a General is considered to be of three years. He admitted that no tenure or age of retirement of a General has been provided under the law. Perusal of the earlier notifications placed before us relating to the former Chiefs of Army Staff and the process of reappointment, extension and fresh appointment of the incumbent, pre-suppose a fixed tenure of three years for a General/COAS. An institutional practice followed continuously and consistently by an institution for a considerable period of time may be used to resolve a controversy, in the absence of the law.24 We can, therefore, place reliance on the institutional practice in order to ensure realization of the constitutional scheme under which it is inconceivable for a constitutional post in the service of Pakistan to be left totally unregulated and to continue forever. We are, however, of the view that, in the first instance, this matter should be allowed to be regulated by law as mandated by the Constitution, so that the people of Pakistan decide through their chosen representatives the length of tenure of a General, as this will consequentially determine the tenure of the COAS. The people of Pakistan may accept or reject the institutional practice through their chosen representatives in the Parliament. Besides, the question before us is not only regarding the tenure but also regarding the extension of tenure for another term, which in any case, requires legislation. The Attorney-General has assured us that necessary legislation will be brought into effect within six months to plug this legal vacuum. This assurance has tempted us to exercise judicial restraint in the matter, so that people of Pakistan may decide this question through the Parliament.

Judicial Restraint

1. Judicial restraint in its substantial approach urges Judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated;25 while the principle, "if it is not necessary to decide more, it is necessary not to decide more"26 well states the procedural aspect of judicial restraint. The power of judicial review is a "great weapon in the hands of Judges", but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts. Judicial review must, therefore, remain strictly judicial and in its exercise Judges must take care not to intrude upon the domain of the other branches of Government. Judicial restraint, in this perspective, is essential to the continuance of rule of law, and for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts.27

2. Separation of powers is a cornerstone of a constitutional democracy and we do not wish to encroach upon the domain of the legislature. This Court has, therefore, in many cases, exercised judicial restraint in deference to the principle of trichotomy of powers and given the other branches of Government a fair opportunity to fulfill their constitutional mandate before making a final verdict on the disputed matters. The cases of Sindh High Court Bar Association28, Sharaf Faridi29 and Nadeem Ahmad30 may be cited with advantage. We, therefore, exercise judicial restraint and give an opportunity to the Federal Government in the light of the assurance of the Attorney-General to carry out appropriate legislation through an Act of Parliament within a period of six months.

Continuity of Incumbent COAS for Six Months

1. In this state of legal vacuum regarding the tenure of a COAS and in the light of the assurance given by the Federal Government to address these issues through fresh legislation within six months, we considering that the COAS is the commanding officer of the Pakistan Army31 and is responsible for the command, discipline, training, administration, organization and preparedness for war of the Army 32 and in order to preserve smooth functioning of the Pakistan Army, find it appropriate to allow the current status of the COAS to continue for a period of six months, whereafter the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service.

2. This exercise of judicial restraint may not be mixed up or confused with the infamous and unpopular application of the doctrine of necessity, which amounts to going against the law of the land to attend to some political or other goal. This is not so in the present case where there is no law; in fact, there is a total legal vacuum regarding the tenure of a General. It is also instructive to refer to the spirit of Article 203D of the Constitution whereunder the Court can direct the Federal Government to initiate process for making appropriate legislative amendments in the relevant law and can grant reasonable time for doing the needful.

Summary of Findings of the Court

1. In our endeavour to address the legal questions raised in this case, we have explored the scope of Article 243 of the Constitution, reviewed the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954, and the Army Regulations (Rules) and have found:

1) That the Pakistan Army Act, 1952 falls deficient of the structural requirements for raising and maintaining an Army under clause (3) of Article 243 of the Constitution. It does not provide for essential elements required to raise and maintain an Army, particularly the grant of Commissions in the Army and the terms of service of the Commissioned Officers including tenure and extension of a General.

2) That the terms of service of the rank of General regulates the tenure and other terms of service (except salary and allowances) of the post of the COAS. The salary and allowances of the COAS are to be determined by the President under clause (4) of Article 243 of the Constitution.

3) That no tenure or age of retirement for the rank of General is provided under the law. As per the institutional practice a General retires on completion of a tenure of three years. Although an institutional practice cannot be a valid substitute of the law required to be made under clause (3) of Article 243 yet in the absence of such law the said practice can be enforced to remove uncertainty as to the tenure of a General and to make the constitutional post of COAS functional. However, in the first instance, the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution.

4) That there is no provision in the law for extending service of a General for another tenure; nor is there any consistent and continuous institutional practice of granting such extension, which could be enforced in absence of the law on the subject.

5) That the Summaries of the Ministry of Defence approved by the President, the Prime Minister and the Cabinet for the reappointment, extension and fresh appointment of General Bajwa seem to be meaningless and of no consequence, in absence of the law prescribing tenure of a General and providing extension for another tenure.

6) That Regulation 255 of the Army Regulations (Rules), in its original as well as amended form, does not confer authority on the Federal Government to grant extension of another full tenure to a General. This Regulation provides for only a temporary arrangement for a short term, if the exigencies of service so requires in the public interest.

7) That Regulation 255 and other Regulations of the Army Regulations (Rules) on the subject of "retirement" appear to be ultra vires the Pakistan Army Act, as Section 176 of the Pakistan Army Act has assigned the subject of "retirement" to be regulated under the Rules and not under the Regulations. The Regulations can be made only for the matters other than those which are to be dealt with under the Rules.

8) That Section 176A of the Pakistan Army Act and the Regulations made under it appear to suffer from the excessive delegation of the essential legislative function, as neither that section nor any other section of the Pakistan Army Act provides the essential legislative policy guidelines for making the delegated legislation, viz. the Regulations, on the subjects mentioned therein.

9) That in view of the assurance of the Attorney-General given on behalf of the Federal Government to process the legislation for meeting the deficiencies in the Pakistan Army Act, in particular, the tenure, age of retirement and if deemed proper, the extension of tenure of a General, it is appropriate to leave the matter, at the first instance, to be decided by the chosen representative of the people of Pakistan by making an appropriate legislation.

10) That in view of the legal vacuum regarding tenure and extension of a General and the assurance given by the Attorney-General to process legislation on the subject within six months, and also considering the importance of the responsibilities of the COAS regarding administration and organization of the Army, it is appropriate that the incumbent COAS may continue for a period of six months, in order to preserve continuity of the institution.

1. These are the detailed reasons of our short order dated 28.11.2019 whereby the instant petition was disposed of in the following terms:

"The learned Attorney-General has categorically assured the Court that this practice being followed is to be codified under the law and undertakes that the Federal Government shall initiate the process to carry out the necessary legislation in this regard and seeks a period of six months for getting the needful done. Considering that the COAS is responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and is the Chief Executive in General Headquarters, we, while exercising judicial restraint, find it appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard. Therefore, the current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service."

1. It is, however, claried that in case the federal Government remains unable to regulate the tenure and terms of service of a General and as a consequence of the COAS through an appropriate legislation by the Parliament as assured by the Attorney-General, within a period of six months, the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever. This would be inconceivable and amount to a constitutional absurdity. Therefore, in case of such failure of the Federal Government the institutional practice of retirement of a General on completion of the tenure of three years as pleaded by the Attorney-General and borne out from the record, shall stand enforced to regulate the tenure of General Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of General and appointment as COAS, i.e. 29.11.2016. And the President shall, on advice of the Prime Minister, appoint a serving General officer as the new COAS.

2. In the end, we would like to emphasise that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before the Parliament, to fix for all times to come. It is now for the people of Pakistan and their chosen representatives in the Parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper.

(Sd)

(Syed Mansoor Ali Shah)

Judge

1. I agree.

(Sd)

(Mazhar Alam Khan Miankhel)

Judge

P L D 2020 Supreme Court 48

Present: Asif Saeed Khan Khosa, C J, Mazhar Alam Khan Miankhel and

Syed Mansoor Ali Shah, JJ

JURISTS FOUNDATION through Chairman---Petitioner

Versus

FEDERAL GOVERNMENT through Secretary, Ministry of Defence and others---Respondents

Constitutional Petition No.39 of 2019, decided on 28th November, 2019

(Against Extension of Tenure of Chief of the Army Staff).

Constitution of Pakistan---

----Arts. 243(4)(b) & 184(3)---Pakistan Army Act, (XXXIX of 1952), S.8(2)---Pakistan Army Act Rules, 1954, R. 12 Army Regulations (Rules), 1998, Regln. 255---Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term---Constitutionality and legality---Examination of Art.243(4)(b) of the Constitution, the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954 and the Army Regulations (Rules), 1998 showed that none of the said laws contained any provision relating to the tenure of the Chief of the Army Staff (COAS) or of a General and whether the COAS could be reappointed or his term could be extended or his retirement could be limited or suspended under the Constitution or the law---Attorney-General categorically assured the Court that the Federal Government shall initiate the process to carry out the necessary legislation in this regard and sought a period of six months for getting the needful done---Supreme Court while exercising judicial restraint observed that considering that the COAS was responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and was the Chief Executive in General Headquarters, it was appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Art.243 of the Constitution in this regard---Supreme Court directed that the current appointment of incumbent COAS as Chief of the Army Staff shall be subject to the said legislation and shall continue for a period of six months from present date, whereafter the new legislation shall determine his tenure and other terms and conditions of service---Petition was disposed of accordingly.

Petitioner in person.

For Respondents:

Anwar Mansoor Khan, Attorney-General for Pakistan with Sajid Ilyas Bhatti, Addl. Attorney-General Amir-ur-Rehman, Addl. Attorney-General and Ch. Ishtiaq Ahmed, Addl. Attorney-General.

Sohail Mehmood, Dy. Attorney-General.

Mian Asghar Ali, Dy. Attorney-General Assisted by Ms. Faryal Shah Afridi, Advocate.

Syed Iqbal Hashmi, Advocate Supreme Court.

Brig. Falak Naz, Director (Law), Ministry of Defence.

Flt. Lt. Khalid Abbas, Asst. Director (Law), Ministry of Defence.

Brig. Muhammad Khalid Khan, JAG Department, GHQ.

Lt. Col. Rai Tanveer Ahmed Kharral, OIC, JAG Department, GHQ.

Dr. Farogh Nasim, Advocate Supreme Court for Respondent No.4, along with Abid S. Zuberi, Advocate Supreme Court, assisted by Ayan Memon, Shahid, Naseem Gondal and Barrister Neelum Ali Bukhari.

P L D 2020 Supreme Court 52

Present: Asif Saeed Khan Khosa, C J, Mazhar Alam Khan Miankhel and

Syed Mansoor Ali Shah, JJ

JURISTS FOUNDATION through Chairman---Petitioner

Versus

FEDERAL GOVERNMENT through Secretary, Ministry of Defence and others---Respondents

Constitutional Petition No.39 of 2019, decided on 26th November, 2019

(Against Extension of Tenure of Chief of the Army Staff).

(a) Constitution of Pakistan---

----Arts. 243(4)(b) & 184(3)---Army Regulations (Rules), 1998, Regln.255---Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term---Constitutionality and legality---Plea by Attorney General that in terms of Regulation No. 255 of the Army Regulations (Rules), 1998, retirement of an Army officer could temporarily be suspended or limited; that the Federal Government had the requisite authority to re-appoint or extend the services of an incumbent Chief of the Army Staff prior to his retirement if the exigencies of the service so required or the public interest so demanded---Held, that perusal of Regln. No.255, prima facie, showed that the said provision could be invoked after an officer had already retired from service and that was why the said Regulation spoke of suspension of retirement or limiting of retirement---Suspending a retirement or limiting a retirement before the retirement had actually taken effect may amount to putting the cart before the horse---Attorney-General was unable to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his re-appointment to that office after completion of his first term---Since present issue called for a detailed examination of the matter of extension/re-appointment of incumbent Chief of the Army Staff, therefore, he was made a respondent to present case---Supreme Court suspended the operation of the impugned order/notification in respect of extension/re-appointment of incumbent Chief of the Army Staff for another term in the said office---Matter was adjourned till next date of hearing.

(b) Constitution of Pakistan---

----Arts. 243(4)(b) & 184(3)---Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term---Procedure adopted for issuing notification of extension in service---Lapses---Prime Minister had himself passed the order appointing the current Chief of the Army Staff for a second term in that office on 19-08-2019 whereas under Art.243 of the Constitution it was the President who was the appointing authority for such office---When such mistake came to notice straightaway on the same day, i.e. 19.08.2019 a summary was moved from the Prime Minister's office to the President for extension/reappointment of the incumbent Chief of the Army Staff and on that very day, i.e. 19.08.2019 the President approved the summary in that regard and, hence, the advice of the Prime Minister was apparently accepted and acted upon---Even said process was found to be flawed and on that very day it was realized that the Prime Minister or the President could not take action on extension/re-appointment of current Chief of the Army Staff without the approval of the Cabinet and, thus, on the next day, i.e. 20-08-2019 a summary was moved in the relevant regard for approval of the Cabinet and on 21.08.2019 the Cabinet was said to have approved the said proposal through circulation---Opinion of the Cabinet recorded in this regard, showed that there were 25 members of the Cabinet and out of those 25 members only 11 had agreed to the proposal for extension/ reappointment of the current Chief of the Army Staff, which showed that the majority of the Cabinet had not approved the said proposal---Another peculiar aspect was that after the purported approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President respectively---Since present issue called for a detailed examination of the matter of extension/re-appointment of incumbent Chief of the Army Staff, therefore, he was made a respondent to present case---Supreme Court suspended the operation of the impugned order/notification in respect of extension/re-appointment of incumbent Chief of the Army Staff for another term in the said office---Matter was adjourned till next date of hearing.

(c) Constitution of Pakistan---

----Arts. 243(4)(b) & 184(3)---Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term---Purpose of extension/re-appointment---Stated purpose for the proposed reappointment/extension in the term of office of the incumbent Chief of the Army Staff was "regional security environment"---Supreme Court observed that the said words were quite vague and if at all there was any regional security threat then it was the gallant armed forces of the country as an institution which were to meet the said threat and an individual's role in that regard may be minimal; that if the said reason/purpose was held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason---Since present issue called for a detailed examination of the matter of extension/re-appointment of incumbent Chief of the Army Staff, therefore, he was made a respondent to present case---Supreme Court suspended the operation of the impugned order/notification in respect of extension/re-appointment of incumbent Chief of the Army Staff for another term in the said office---Matter was adjourned till next date of hearing.

Nemo for Petitioner.

Anwar Mansoor Khan, Attorney-General for Pakistan and Mian Asghar Ali, Deputy Attorney General for Pakistan for Respondents.

P L D 2020 Supreme Court 57

Present: Asif Saeed Khan Khosa, C.J., Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

QAISER JAVED KHAN---Petitioner

Versus

The STATE through Prosecutor General Punjab, Lahore and another---Respondents

Crimin al Petition No.733 and Criminal Miscellaneous Application No.1019 of 2019, decided on 18th December, 2019.

(On appeal against the judgment of Lahore High Court, Lahore dated 18-4-2019, passed in Criminal Appeal No.213202 of 2018).

(a) Control of Narcotic Substances (Government Analysts) Rules, 2001 ---

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 36---Report of Government Analyst---Essential requirements---Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol---Any test conducted without a protocol lost its reliability and evidentiary value---To serve the purposes of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001, the report of the Government Analyst must contain three elements, i.e the tests applied; the protocols applied to carry out these tests; and, the result of the test(s)---Report of the Government Analyst which did not specify the protocols of the tests applied did not meet the requirements of the law---Such a Report could not be relied upon for the conviction of an accused. [Context of 'protocols' as explained in the judgment reported as (Ikramullah's case 2015 SCMR 1002, Imam Bakhsh's case 2018 SCMR 2039 and Khair-ul-Bashar's case 2019 SCMR 930) further clarified].

2015 SCMR 1002; 2018 SCMR 2039 and 2019 SCMR 930 ref.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 36---Criminal Procedure Code (V of 1898), S. 510, proviso---Report of Government Analyst---Essential requirements---Power of Court to summon Analyst---Scope---To serve the purposes of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001, the report of the Government Analyst must contain three elements, i.e the tests applied; the protocols applied to carry out these tests; and, the result of the test(s)---Once the said three requirements under R. 6 were contained in the Report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under proviso to S. 510, Cr.P.C.---Said provision stated that the Court may, if it considered necessary in the interest of justice, summon and examine the person by whom such report had been made---Trial Court while examining the said report had the power to summon the Government Analyst in case there was any ambiguity in the said Report and seek clarification thereof---Such clarification could only be based on the existing record of the Government Analyst and did not mean to allow the Government Analyst to conduct a fresh test or prepare another Report, for that would amount to giving the prosecution a chance of filling the gaps and lacunas in the report---Trial Court must also be mindful of the legal position that the per se admissibility of the report i.e. without examining the Analyst (expert) did not vouch for its evidentiary value---Courts were free to examine the contents of the report and to assess its evidentiary value (weight), a matter distinct from its admissibility.

2019 SCMR 930 ref.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

M. Jaffar, Addl. P.G. for Respondents.

Date of hearing: 18th December, 2019.

JUDGEMENT

SYED MANSOOR ALI SHAH, J.--

Criminal Miscellaneous Application No. 1019 of 2019

For the reasons given in the application, this application is allowed and delay in the filing of the petition is condoned.

Criminal Petition No. 733 of 2019

1. The petitioner was apprehended in a search operation allegedly selling drugs on a public street and 1150 grams of charas garda was recovered from him. In this background, he was booked in FIR No.452 dated 23.10.2017, registered at Police Station Saddar, Mianwali. After regular trial, he was convicted by the Trial Court under section 9(c) of the Control of Narcotic Substances Act, 1997 ("Act") and sentenced to rigorous imprisonment for 04 years and 06 months along with fine of Rs.20,000/-, and in case of default in payment of fine to undergo simple imprisonment for further 05 months. On appeal, the High Court, upheld the said conviction and sentence vide the impugned judgment dated 18.04.2019.

2. We have heard the learned counsel for the parties and, at the outset, have examined the Report of the Government Analyst of the Punjab Forensic Science Agency dated 15.11.2017 and found it deficient in terms of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules") as interpreted repeatedly by this Court in the cases of Ikramullah.1 Imam Bakhsh2 and Khair-ul-Bashar.3

3. In Ikramullah, this Court while referring to Rule 6 of the Rules observed that the Government Analyst is to refer the necessary protocols, and mention the tests applied and their results, in his report. The Court further observed that the failure in compliance of the said Rule affects the reliability of the report, and that such a deficient report does not qualify to be called a report in the context of section 36 of the Act, so as to be treated as a "conclusive" proof of recovery of narcotic substance from an accused person.

4. In Imam Bakhsh, the question of mandatory or directory nature of Rule 6 was considered in detail. The Court held that its compliance to the extent of mentioning the full protocols of the test applied in the Report, to be mandatory with the observation that its non-compliance can frustrate the purpose and object of the Act, and held that its non-compliance will render the report of the Government Analyst inconclusive and unreliable. The Court elaborated the expression "protocol" to mean an explicit, detailed plan of an experiment, procedure or test. With this elaboration, it was held that the report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests. In Khair-ul-Bashar this interpretation was reinforced.

5. The Report of the Government Analyst in this case specifies only the tests applied and not the protocols thereof. The term "protocol" has not been defined in the Rules. Its dictionary meaning is: "A plan of scientific experiment or other procedure.4" It is also referred to as "the precise method for carrying out or reproducing a given experiment5." These definitions are in line with the elaboration of the term "protocol" given in Imam Bakhsh wherein the Court stated the expression "protocol" to mean an explicit plan of an experiment, procedure or test.lt is clarified that "protocol" is, therefore, a recognized standard method or plan for carrying out the test applied to ascertain the nature of the substance under examination. No test can take place without a protocol. The Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. Therefore, to serve the purposes of the Act and the Rules, the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s). This sequence, for clarity and better understanding can be envisaged as follows:

| | | | | --- | --- | --- | | Test Applied | Protocols (applied to carry out the tests)) | Results of the test(s) |

P L D 2020 Supreme Court 61

Present: Asif Saeed Khan Khosa, C.J., Mushir Alam, Manzoor Ahmad Malik, Sardar Tariq Masood, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel

and Syed Mansoor Ali Shah, JJ

GHULAM HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 95 and 96 of 2019, Civil Appeal No.10-L of 2017 and Criminal Appeal No.63 of 2013, decided on 30th October, 2019.

(Against the judgments dated 5-12-2007, 27-4-2017, 22-11-2016 and 24-9-2012 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.397-J of 2006, 587-J of 2014 and 342-J of 2011 and Capital Sentence References Nos.1-T of 2006 and 40-T of 2014 and Writ Petition No.15608 of 2016).

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

----S. 6---"Terrorism"---Historical account of different acts, events, episodes and phenomena that have from time to time been perceived or understood in different parts of the world to be "terrorism", provided.

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

----S. 6 & Third Sched. Entry No.4---Anti-Terrorism Court, jurisdiction of---Scope---Heinous offences specified under Entry No.4 to Third Sched. of the Anti-Terrorism Act, 1997, that did not constitute terrorism---Such heinous offences did not per se constitute the offence of terrorism but were to be tried by an Anti-Terrorism Court because of their inclusion in the Third Sched.---In such cases an Anti-Terrorism Court could punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences did not constitute terrorism---Supreme Court observed that definition of 'terrorism' contained in S. 6 of the Anti-Terrorism Act, 1997 ('the Act') as it stood at present was too wide and the same included many actions, designs and purposes which had no nexus with the generally recognized concept of what terrorism was; that including some other heinous offences in the Preamble and the Third Sched. to that Act for trial of such offences by an Anti-Terrorism Court when such other offences did not qualify to be included in the definition of "terrorism" put an extra and unnecessary burden on such courts and caused delay in trial of actual cases of terrorism; that the Parliament may consider substituting the present definition of 'terrorism' by a more succinct definition bringing it in line with the international perspectives of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives and that the Parliament may also consider suitably amending the Preamble to the Act and removing all those offences from the Third Sched. to the Act which offences had no nexus with the offence of terrorism.

Farooq Ahmed v. State and another 2020 SCMR 78; Amjad Ali and others v. The State PLD 2017 SC 661 and Muhammad Bilal v. The State and others 2019 SCMR 1362 ref.

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

----Ss. 6 & 7(e) & Third Sched. Entry No.4---Penal Code (XLV of 1860), S. 365-A---Explosive Substances Act (VI of 1908), Ss. 4(b), 5 & 6---Terrorism, kidnapping or abduction for ransom, possessing explosives---Offences mentioned under Entry No. 4 to Third Sched. of the Anti-Terrorism Act, 1997---Conviction for such offences under the Anti-Terrorism Act, 1997---Scope---Offence of abduction or kidnapping for ransom under S.365-A, P.P.C. was included in Entry No. 4 of the Third Sched. to the Anti-Terrorism Act, 1997 and kidnapping for ransom was also one of the actions specified in S.7(e) of the Anti-Terrorism Act, 1997---Abduction or kidnapping for ransom was a heinous offence but the scheme of the Anti-Terrorism Act, 1997 showed that an ordinary case of abduction or kidnapping for ransom under S.365-A, P.P.C. was merely triable by an Anti-Terrorism Court but if kidnapping for ransom was committed with the design or purpose mentioned in cl. (b) or cl. (c) of subsection (1) of S.6 of the Anti-Terrorism Act, 1997 then such offence amounted to terrorism attracting S.7(e) of that Act---In the former case the convicted person was to be convicted and sentenced only for the offence under S. 365-A, P.P.C. whereas in the latter case the convicted person was to be convicted both for the offence under S.365-A, P.P.C. as well as for the offence under S.7(e) of the Anti-Terrorism Act, 1997---Same rule may also be applied to the other offences mentioned in Entry No. 4 of the Third Sched. to the Act pertaining to "Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby", "Firing or use of explosive by any device, including bomb blast in the court premises", "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908"---Such distinction between cases of terrorism and other heinous offences by itself explained and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, did not ipso facto constitute terrorism which was a species apart.

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

----Ss. 6(1) & 6(2)---"Terrorism"---Acts constituting terrorism in terms of S.6 of the Anti-Terrorism Act, 1997 ('the Act')---Scope---'Actus reus' and 'mens rea' for terrorism---Scope---For an action or threat of action to be accepted as terrorism within the meanings of S.6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of S.6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in cl. (b) of subsection (1) of S.6 of Act or the use or threat of such action must be to achieve any of the purposes mentioned in cl. (c) of subsection (1) of S.6 of that Act---Requirements that needed to be satisfied for invoking cl.(c) of subsection (1) of S.6 were that the use or threat of action should be for "the purpose of advancing areligious, sectarian or ethnic cause" or for the purpose of"intimidating and terrorizing the public, social sectors, media persons, business community" or for the purpose of "attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies"---Clause (b) of subsection (1) of S.6 specified the 'design' and cl.(c) of subsection (1) of S.6 earmarked the 'purpose' which should be the motivation for the act and the actus reus had been clearly mentioned in subsection (2) of S.6---Only when the actus reus specified in subsection (2) of S.6 was accompanied by the requisite mens rea provided for in cl.(b) or cl.(c) of subsection (1) of S.6 that an action could be termed as 'terrorism'---Thus, it was not the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualified to be termed as terrorism or not but it was the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not---Any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, did not qualify to be termed as terrorism if it was not committed with the design or purpose specified or mentioned in cls. (b) or cl.(c) of subsection (1) of S.6 of the Act---Action could be termed as terrorism if the use or threat of that action was designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action was designed to create a sense of fear or insecurity in the society or the use or threat was made for the purpose of advancing a religious, sectarian or ethnic cause, etc.---Creating fear or insecurity in the society was not by itself terrorism unless the motive itself was to create fear or insecurity in the society and not when fear or insecurity was just a by product, a fallout or an unintended consequence of a private crime---Mere shock, horror, dread or disgust created or likely to be created in the society did not transform a private crime into "terrorism"---"Terrorism" was a totally different concept which denoted commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which were essentially political, ideological or religious---Violent activity against civilians that had no political, ideological or religious aims was just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to "terrorism".

Muhammad Ajmal v. The State 2000 SCMR 1682; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; Muhammad Amin v. The State 2002 SCMR 1017; Zia Ullah v. Special Judge, Anti-Terrorist Court, Faisalabad and 7 others 2002 SCMR 1225; State through Advocate-General, N.-W.F.P., Peshawar v. Muhammad Shafiq PLD 2003 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; Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323; Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934; Muhammad Farooq v. Ibrar and 5 others PLD 2004 SC 917; Azizullah and another v. The State and another 2005 SCMR 802; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Zahid Imran and others v. The State and others PLD 2006 SC 109; Muhammad Idrees and others v. The State 2008 SCMR 1544; Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517; Shahid Zafar and 3 others v. The State PLD 2014 SC 809; Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 591 and Shahbaz Khan alias Tippu and others v. Special Judge, Anti-Terrorism, Court No.3, Lahore and others PLD 2016 SC 1 distinguished and held not to be followed.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs PLD 2000 SC 111; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Mohabbat Ali and another v. State and another 2007 SCMR 142; Tariq Mahmood v. State 2008 SCMR 1631; Muhammad Yaqoob and others v. The State and others 2009 SCMR 527; Bashir Ahmed v. M. Siddique PLD 2009 SC 11; Ahmad Jan v. Nasrullah and others 2012 SCMR 59; Malik Muhammad Mumtaz Qadri v. The State and others PLD 2016 SC 17; Khuda-e-Noor v. The State PLD 2016 SC 195; Sagheer Ahmed v. The State and others 2016 SCMR 1754; Ch. Shaukat Ali v. Haji Jan Muhammad and others 2016 SCMR 533; Waris Ali and 5 others v. The State 2017 SCMR 1572; Sajid Rasheed Qureshi v. Munawar Ahmad 2017 SCMR 162; Amjad Ali and others v. The State PLD 2017 SC 661; Abdul Nabi v. The State 2017 SCMR 335; Province of Punjab through Secretary Punjab Public Prosecution Department and another v. The State PLD 2018 SC 178 and Dilwar Mehmood alias Dulli and another v. The State 2018 SCMR 593 ref.

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

----S. 6(3)---"Terrorism"---Section 6(3) of the Anti-Terrorism Act, 1997---Scope---Subsection (3) of S.6 of the Act, provided that "The use or threat of use of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is "terrorism", whether or not subsection (1)(c) is satisfied" which meant that if for commission of the actions mentioned in subsection (2) of S.6, a firearm, an explosive substance or any other weapon was actually used or a threat regarding use of the same was extended then all such actions were to constitute the offence of terrorism even if the other requirements of cl.(c) of subsection (1) of S. 6 were not satisfied or fulfilled---Provisions of S.6(3) of the Act were quite problematic as they did not piece well with the remaining provisions of S. 6 as far as the matter of defining "terrorism" was concerned---If provisions of subsection (3) of S.6 of the Act, as they were worded, were to be given effect then the distinction between the peculiar offence of terrorism and most of the run of the mill offences committed in the society in routine would be obliterated---Supreme Court observed that the legislature may like to have another look at the provisions of S.6(3) of the Act and to consider deleting or suitably amending the same so as to bring them in harmony with the remaining provisions of the Act.

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

----S. 6(2)---"Terrorism"---Offence committed due to personal enmity or vendetta---Actions specified in subsection (2) of S.6 of the Anti-Terrorism Act, 1997 did not qualify to be labeled or characterized as terrorism if such actions were taken in furtherance of personal enmity or private vendetta.

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 Ahmad 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.

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.

Ayaz Khan Swati, Additional Advocate-General, Balochistan.

P L D 2020 Supreme Court 132

Presemt: Asif Saeed Khan Khosa, C.J., Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

HUSSAIN SHAH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.7-P of 2017, decided on 20th September, 2019.

(Against the judgment dated 15-5-2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.768 of 2010).

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

----S. 9(c)---Possession of narcotic---Re-appraisal of evidence---Truck being driven by the accused was intercepted by a raiding party and from a secret cavity of the vehicle, charas weighing 12000 kilograms was recovered---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court---Held, that the accused was driving the relevant vehicle when it was intercepted---Report received from the Chemical Examiner had declared that the recovered substance was charas---Prosecution witnesses deposing about the alleged recovery, were public servants who had no ostensible reason to falsely implicate the accused in a case of present nature---Said witnesses had made consistent statements fully incriminating the accused in the alleged offence---Nothing had been brought on record which could possibly be used to doubt the veracity of the said witnesses---Guilt of accused had been established beyond reasonable doubt---Conviction and sentence recorded against the accused and upheld by the courts below was maintained.

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

----S. 9(c)---Possession of narcotic---Re-appraisal of evidence---Trial Court ordering taking of fresh samples from the recovered substance---Non-association of accused---Propriety---Truck being driven by the accused was intercepted by a raiding party and from a secret cavity of the vehicle charas weighing 12000 kilograms contained in 600 bags, each bag containing 20 packets, was recovered---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court---Plea raised by accused that the Trial Court had no jurisdiction to take fresh samples from the recovered substance for examination by the Chemical Examiner---Validity---Record of the case showed that initially 600 samples taken from 600 bags recovered from the relevant vehicle had been sent to the Chemical Examiner for analysis but the Chemical Examiner had returned those samples and had required that a sample had to be taken from each and every packet of the substance recovered and such packets were 12000 in number---In such backdrop the Trial Court had instructed a Magistrate and under the supervision of that Magistrate fresh and separate samples had been secured from all the 12000 packets recovered which samples were then sent to the Chemical Examiner and thereafter a report was submitted in the positive---No provision of law was referred to by the accused requiring that the accused persons had to be associated with the process of taking of fresh samples by the supervising Magistrate---Guilt of accused had been established beyond reasonable doubt---Conviction and sentence recorded against the accused and upheld by the courts below was maintained.

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

----S. 9(c)---Possession of narcotic---Re-appraisal of evidence---Benefit of doubt---Conscious possession of narcotic---Scope---Accused was the cleaner of a truck, being driven by the co-accused, from wherein charas weighing 12000 kilograms was recovered---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court---Held, that although the prosecution alleged that the accused knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the accused having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle---No evidence worth its name had been brought on the record to establish that the accused was conscious about availability of narcotic substance in the secret cavity of the relevant vehicle in which he was traveling along with its driver---When the prosecution failed to establish conscious possession or knowledge of the availability of narcotic then a passenger could not be convicted solely on the basis of his availability inside a vehicle at the relevant time---Conviction and sentence recorded against the accused and upheld by the courts below was set aside and he was acquitted of the charge by extending the benefit of doubt to him.

Altaf Samad, Advocate Supreme Court and Tasleem Hussain, Advocate-on-Record for Appellants.

Muhammad Tariq Kakar, State Counsel.

P L D 2020 Supreme Court 137

Present: Mian Saqib Nisar, C.J. Umar Ata Bandial and Ijaz ul Ahsan, JJ

Sardar YAR MUHAMMAD RIND---Petitioner

Versus

ELECTION TRIBUNAL BALOCHISTAN, QUETTA and others---Respondents

Civil Petition No.2693-2694 of 2018, decided on 5th December, 2018.

(On appeal from the judgment/order dated 3-7-2018 passed by High Court of Balochistan, Quetta in C.Ps. Nos.823-824 of 2018).

(a) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Majlis-e-Shoora (Paliament)---Candidate 'not honest'---Scope and meaning---Admission having evidentiary value---Scope---Educational degree---Nomination papers, rejection of---Returning Officer and Appellate Tribunal (High Court) both found the petitioner-candidate to be ineligible to contest the elections on the basis that in the general elections of 2008, he had claimed to be a holder of degree from a religious institution, however, in the next general elections of 2013, the petitioner disclosed his educational qualification as Intermediate; that the petitioner's failure to disclose his degree from the religious institution was concealment and an admission of a false statement made in his nomination papers in the year 2008; and, that the petitioner was thereby guilty of being not "honest" and disqualified to contest the elections on the criteria laid down in Art.62(1)(f) of the Constitution---Held, that Art.62(1)(f) of the Constitution required that the disqualification of an election candidate must be founded on a declaration by a Court of law that such person was "not honest"---Any judicial declaration must necessarily be based on evidence, oral or documentary---Impugned judgments of the High Court and Appellate Tribunal did not refer to any positive evidence on the record to establish either that the degree from the religious institution claimed by the petitioner in his nomination papers in 2008 was bogus, forged or fake or that the petitioner referred to the same knowingly and deliberately as being equivalent to a graduate or postgraduate degree---Issue that such degree held by the petitioner was not equivalent to a graduate or postgraduate degree had been decided affirmatively by the Appellate Tribunal and the High Court solely on the basis that such fact was undisputed by the petitioner---Such omission did not constitute an admission in order to have evidentiary value---Admission should be unambiguous, unqualified and specific---Lack of honesty of the petitioner appeared to have been presumed by the courts below, whereas in the context of Art.62(1)(f) of the Constitution, the element of dishonesty had to be present in candidate's conduct which could be deduced from his overt acts that reflected deliberate false statement, cheatful involvement in the use of unfair means and dishonesty---Presumption drawn by the courts below was conjectural and could not be made the ground for disqualifying the petitioner forever from contesting for or holding an office in the Constitutional Legislatures of the country---Petitions for leave to appeal were converted into appeals and allowed and impugned judgments of courts below were set-aside.

Muhammad Rizwan Gill v. Nadia Aziz PLD 2010 SC 828; Abdul Ghafoor Lehri v. Returning Officer, PB-29 Naseerabad-II 2013 SCMR 1271 and Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others PLD 2010 SC 817 distinguished.

Amir Bibi v. Muhammad Khurshid 2003 SCMR 1261; Macdonald Layton and Co. Pak Ltd. v. Uzin Export Import Foreign Trade Co. 1996 SCMR 696; Muhammad Siddique v. Faiz Mai PLD 2012 SC 211; Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 and Hassan Nawaz v. Muhammad Ayub PLD 2017 SC 70 ref.

(b) Constitution of Pakistan ---

----Art. 62(1)(f)---Membership of Majlis-e-Shoora (Parliament)---Disqualification under Art.62(1)(f) of the Constitution---Such disqualification entailed a life time bar to contest elections.

Sami Ullah Baloch v. Abdul Karim Nousherwani PLD 2018 SC 405 ref.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitoner (in both cases).

M. Amir Nawaz Rana, Advocate Supreme Court for Respondent No.4. (in both cases).

M. Arshad, D.G. (Law), ECP for ECP (in both cases).

P L D 2020 Supreme Court 142

Present: Gulzar Ahmed and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD ASLAM SIDDIQUI---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

C.M.A. No.776 of 2019 in C.P.R. No.Nil of 09-05-2019 in C.P. No.815-K/2016, decided on 9th May, 2019.

Cantonment Land Administration Rules, 1937 ---

----R. 5---Class "A" Land---Commercial activities---Marquee built on Class "A" Land---Legality---Policy of Ministry of Defence with respect to Class "A-1" Land had been provided in a letter [No.F.2/5/D-12/ML&C/99, Government of Pakistan, Ministry of Defence, Rawalpindi, dated 02-04-2008]---Para No.2 of said letter clearly provided that essential commercial activities to be carried out on A-1 land were specifically confined to meet the requirement and serve the residents of respective garrison---Thus, very policy of the government seemed to be clear that no commercial exploitation of A-1 cantonment land was permissible and if any commercial activity was to be carried out, then the same was to be confined for meeting the requirement and service of the residents of respective garrison and not outsiders---Admittedly the marquee in question was being run as a commercial venture for all general public in direct contradiction of very policy of government in that the marquee was not essentially carrying out commercial activities required to serve the residents of the respective garrison---Further R.5 of the Cantonment Land Administration Rules, 1937, which dealt with Class "A" Land also specifically did not provide for using of A-1 land of the Cantonment Board for any commercial activity for that it was for actual use and occupation of military authorities for the purpose of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers which were the property of government parade grounds, mihtary recreation grounds, golf courses, rifle ranges, grass farms, dairy farms, brick fields, CNG Stations, soldiers and hospital gardens as provided for in paragraph 525 of the Army Regulations and other officials requirements of the military authorities---Said Rules clearly manifested that A-1 cantonment land was only for use and occupation of military and could not be used and exploited for any commercial activities---Review petition was dismissed.

Rasheed A. Rizvi, Senior Advocate Supreme Court and Muhammad Waqar Rana, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

P L D 2020 Supreme Court 146

Present: Mushir Alam, Ijaz ul Ahsan and Yahya Afridi, JJ

Raja KHURRAM ALI KHAN and 2 others---Appellants

Versus

TAYYABA BIBI and another---Respondents

Criminal Appeals Nos.120, 121 and 122 of 2019 and Criminal Misc. Application No.1273 of 2018, decided on 10th January, 2020.

(On appeal against judgment dated 11-6-2018 of the Islamabad High Court, Islamabad passed in Criminal Appeal No.154 of 2018).

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

----S. 411-A(1)---Constitution of Pakistan, Art. 185---Conviction and sentence passed by the Single Bench of the High Court---Appeal before the Division Bench of the High Court, right of---Scope---Only a convict had a right of appeal before the Division Bench of the High Court to challenge the conviction and sentence passed by the Single Bench of the High Court in its original criminal jurisdiction under the sub-section (1) of S.411-A, Cr.P.C., and that too, in three circumstances; firstly, as a matter of right "on a question of law" (under clause a); secondly, with the leave of the Court, on a question of fact or on a mixed question of law and fact (under clause b); and thirdly, with the leave of the Court, where the law had not provided any fixed quantum of sentence (under clause c)---Said right of appeal of the convict before the Division Bench of the High Court under subsection (1) of S.411-A, Cr.P.C. was subject to the condition that he had no remedy to challenge the decision passed by the Single Bench of the High Court, before the Supreme Court under Art.185 of the Constitution, 1973.

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

----S. 411-A(2)---Provincial Government---Appeal before the Division Bench of the High, right of---Provincial Government had a right of appeal under subsection (2) of S.411-A, Cr.P.C. to file an appeal before the Division Bench of the High Court, against an order of acquittal of an accused passed by the Single Bench of the High Court in exercise of original criminal jurisdiction.

(c) Appeal---

----Substantive right---Right of appeal was a substantive right, which could only be granted by an express provision of an enactment, and could not be inferred or implied therefrom.

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

----Ss. 411-A, 423, 435, 439 & 561-A---Sentence passed by a Single Bench of the High Court in its original criminal jurisdiction---Enhancement of sentence by Division Bench of the High Court---Permissibility---Legislature had not provided any right to the State or the complainant to seek the enhancement of the sentence passed by the Single Bench of the High Court under any provision of the Cr.P.C.---Single Bench of the High Court, while exercising its original criminal jurisdiction, was not a Court inferior or subordinate to the High Court, thus, the Division Bench of the High Court under its appellate, revisional or inherent jurisdiction provided under the Cr.P.C. could not enhance a sentence passed by a Single Bench in its original criminal jurisdiction.

Malik Firoz Khan Noon v. The State PLD 1958 SC 333; Mir Alam Khan v. The State 1980 PCr.LJ 1452; Superintendent and Remembrancer of Legal Affairs, West Bengal v. Harold Joseph Osmond AIR 1949 Calcutta 301; U.J.S. Chopra v. State of Bombay 1955 Cr.LJ 1410 and State v. Haridas Mundra and another AIR 1970 Cal. 485 ref.

(e) Constitution of Pakistan---

----Art.199(5)---Constitutional jurisdiction of the High Court---Scope---High Court, while exercising its jurisdiction under Art.199 of the Constitution was expressly barred under Cl.(5) of Art.199 from issuing any writ to or against the High Court.

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

----S. 328-A---Cruelty to child---Reappraisal of evidence---Accused, a judge and his wife were convicted under S.328-A, P.P.C and sentenced to one year simple imprisonment by Single Judge of High Court exercising original criminal jurisdiction---Division Bench of High Court enhanced sentence of accused persons from one year to three years imprisonment---Legality---Division Bench of the High Court lacked jurisdiction to enhance the sentence of the accused persons under any provision of law---Enhancement of sentence awarded to the accused persons for the offence under S.328-A, P.P.C. by the Division Bench of the High Court in its impugned judgment was without lawful jurisdiction and of no legal effect.

(g) Constitution of Pakistan---

----Art. 185(3)---Sentence passed by a Single Bench of the High Court---Enhancement of sentence---Scope---State had the remedy to seek the enhancement of the sentence passed by the Single Bench of the High Court, by filing a petition for leave before the Supreme Court under Cl.(3) of Art.185 of the Constitution.

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

----S. 328-A---Cruelty to child, offence of---Pre-requisites---To constitute the offence of "cruelty to a child" under S.328-A, P.P.C., three essential ingredients were required to be proved by the prosecution; firstly, the act of commission, including assault and/or ill-treatment or the act of omission, including neglect and/or abandonment of the child; secondly, the act of commission or omission must be willful, and thirdly, the said act of commission or omission resulted in actual physical or psychological harm/ injury to the child.

R. v. Sheppard [1981] AC 394 and R. v. A.D.H., 2013 SCC 28 ref.

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

----S. 328-A---Cruelty to child, offence of---'Acts of commission' or 'acts of omission'---Mens rea---Distinction---Criteria to determine the mens rea for the act of commissions or omissions (resulting in cruelty to child) was distinct---Former (acts of commission) were required to be adjudged on the touchstone of objective societal standards, and in doing so, the profile or status of the offender, and the knowledge of the consequence of the said act of the offender would not be crucial in proving mens rea---While the latter (acts of omission) would require a subjective fault criterion, wherein the previous knowledge of the offender,regarding the consequences of his "act of omission" would be relevant and crucial to determining mens rea, and thus, the same would differ from person to person, keeping in view the profile or status of the offender.

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

----S. 201---Causing disappearance of evidence of offence, or giving false information to screen offender---Pre-requisites---To constitute the offence under S.201 P.P.C., three essential ingredients were required to be proved: firstly, the accused must know or should have reason to believe that an offence had taken place; secondly, the accused by his action or in action prevented evidence of commission of the offence to be concealed; and thirdly, the action or inaction of the accused must be with the intention to prevent the actual perpetrator of the offence from being punished or, with the same intention of saving the actual perpetrator from punishment, rendered information regarding the offence knowing or believing the same to be false.

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

----Arts. 3 & 17---Child witness, testimony of---Evidentiary value---Capacity and intelligence of child witness---'Rationality test'---Scope---Essential conditions for a child, or for any person, to appear and testify as a witness, under Art.3 of the Qanun-e-Shahadat Order, 1984 was that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto---Such threshold was referred to as passing the "rationality test", and the practice that had developed with time was for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness---Supreme Court observed that the "rationality test", which was applied by the presiding Judge at the commencement of the examination-in-chief of a child witness, should be made applicable throughout the testimony of the child witness; that if at any stage, the presiding Judge observed any hindrance or reluctance in the narration of events, the evidence should be stopped, and remedial measures should be taken to ease the stress and anxiety the child witness might be under, and if required, the case be adjourned to another date; and, that in case the child witness was still unable to narrate his testimony with ease, then the presiding Judge ought to record his findings on the demeanour of the child witness, conclude his evidence, and relieve him as a witness.

R. v. Marquard [1992] 4 SCR 223 ref.

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

----Art. 71---Child victim, testimony of---Hearsay rule---Exception---In cases where a child witness was also the victim of the crime and was unable to depose in the court room, and his evidence was "necessary" to find the truth, and the same had a ring of "circumstantial trustworthiness" attached therewith, the Courts may consider the out-of-court evidence thereof, as an exception to the "hearsay rule"---Supreme Court observed that great care was to be taken to ensure that child witnesses were able to depose their testimony at ease, by taking measures in the court room to lessen their stress and anxiety of court-room appearances in such a tender age; that such measures included child witness aid in testifying, screens in court rooms, closed courtrooms and counselor aid before and after recording of evidence; that it was expected that respective governments would appropriate legislative and administrative measures for ensuring the much needed protection and facilitation of child witnesses.

Wigmore on Evidence, Vol. 5 (Chadborn rev.1974) and R. v. Khan [1990] 2 S.C.R. 531 ref.

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

----Art. 117---Burden of proof---Scope---Burden on the prosecution to prove the guilt of the accused beyond any doubt under Ar.117 of the Qanun-e-Shahdat, 1984,was referred to as the "legal" burden of proof, which could never be shifted to the accused, unless the legislature by express terms commanded otherwise.

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

----Art. 122---Burden of proving fact especially within knowledge---Scope---Article 122 of the Qanun-e-Shahadat, 1984 came into play only when the prosecution had discharged its "legal" burden to prove the guilt of the accused by producing sufficient evidence, except the facts, which were especially in the knowledge of the accused, leading to the inescapable conclusion that the offence was committed by him --- Thereafter the "evidential" burden was upon the accused to produce enough evidence to create doubt in case of the prosecution.

Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515; Saeed Ahmed v. The State 2015 SCMR 710; Shambu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 and Woolmington v. DPP [1935] AC 462 ref.

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

----Ss. 328-A, 201, 337-A(i) & 337-F(i)---Cruelty to child, causing disappearance of evidence of offence, or giving false information to screen offender, shajjah-i- khafifah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Accused, a judge and his co-accused wife were convicted and sentenced for ill-treating, neglecting and causing injuries to a child, who worked as domestic help at their house---Held, that the child-victim in her examination-in-chief, clearly pointed with clarity, how and when the injuries on her person were inflicted by the co-accused---Said evidence of the victim was supported by the medical evidence---Medical report of victim showed that she had a total of 22 injuries on her person, and that such injures were not self-inflicted---To further support the oral testimony of the victim, four independent and natural witnesses,who were also neighbours of the accused and co-accused, appeared and testified with particulars, the "abandonment"/ "neglect" and "ill-treatment" of the victim---One of the said witnesses also took pictures of the injuries of the victim, and authenticity of such pictures was confirmed by the Forensic Analysis Report of the National Response Centre for Cyber Crime Forensic Laboratory---To further cement the prosecution's case, the utensils, stated by the victim to have been used to cause her injuries, were also recovered during investigation from the place of the crime, which was the residence of the accused and co-accused---Accused lodged a false report about the disappearance of the victim, when the victim was admittedly present in his house on the same day, and her custody was taken from his house on the next day---Accused, who was a judge and a law knowing person, made false information, for screening the real offender, i.e. his wife (the co-accused) from justice---Prosecution was able to discharge its "legal" burden convincingly, leading to the irresistible conclusion that the "neglect", "abandonment", "assault" and "ill-treatment" of the child-victim were at the hands of the accused and co-accused---Conviction of accused under Ss.201 & 328-A, P.P.C was maintained, while conviction of co-accused under Ss.201, 328-A, 337-A(i) & 337-F(i), P.P.C was also maintained---Appeal was disposed of accordingly.

(p) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---In appeals against acquittal, the accused had a double presumption of innocence; the first when he was charged and tried and, the second arising on his acquittal---Dislodging such double presumption should be sparingly exercised by the Appellate Court, and that too, if the conclusion drawn was not based on fair reading of evidence, perverse, arbitrary or wholly unreasonable---Interference by the appellate Court in an acquittal order of the Trial Court merely for the reason that another view of the evidence was possible, would not be legally correct---However, if the very principle of appreciation of evidence was erred, and had caused failure of justice, then the order of acquittal would warrant to be set aside.

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

----S. 328-A---Constitution of Pakistan, Art. 187---Cruelty to child---Appeal before the Supreme Court---Enhancement of sentence---Mandatory notice---Essential mandatory notice for the enhancement of the sentences was not served upon the accused and co-accused by the Supreme Court while hearing the present appeals---In these circumstances, rendering any finding thereon, without serving notice upon the parties, would prejudice them---Ends of justice required the Court to serve the requisite notices upon the parties, in particular, the accused and co-accused, to explain as to why their sentences for commission of the offence punishable under S.328-A, P.P.C. not be enhanced---Supreme Court while exercising its jurisdiction under Art.187 of the Constitution to serve "complete justice", put the accused and co-accused on notice, to explain as to why their sentences of one year simple imprisonment for commission of the offence under S.328-A P.P.C. passed by the Single Bench of the High Court not be enhanced according to law---Appeal was disposed of accordingly.

(r) Constitution of Pakistan---

----Art. 187---Issue and execution of processes of the Supreme Court---Enhancement of sentence of a convict---Scope---In order to render "complete justice", the Supreme Court may under Art.187 of the Constitution, enhance the sentence of a convict, in cases where there had been serious misdirection of appreciation of evidence or blatant miscarriage of justice.

Muhammad Aslam v. State PLD 2006 SC 465 and Muhammad Khalil v. Muhammad Abbas 2000 SCMR 1607 ref.

Raja Rizwan Abbasi, Advocate Supreme Court for Appellants (in Criminal Appeal No.120 of 2019).

Tariq Mehmood Jehangiri, A.G. Islamabad for Appellants (in Criminal Appeal No.121 of 2019).

Raja Muhammad Farooq Advocate Supreme Court for Appellants (in Criminal No.122 of 2019).

Tariq Mehmood Jahangiri, A.G. for the State (in Criminal Appeals Nos. 120 and 122 of 2019).

Nemo for Respondents.

P L D 2020 Supreme Court 193

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Appellants

Versus

SHABBIR AHMED MALIK and others---Respondents

Civil Appeals Nos.621 to 624 of 2019, decided on 8th January, 2020.

(On appeal from the judgment of High Court of Sindh, Sukkar Bench dated 3-6-2016, passed in Const. Ps. Nos. 424, 425, 1626 and 1627 of 2016).

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

---Ss. 25(a) & 33E---Voluntary Return settlement ('VR settlement')---Default in payment under the VR settlement---Whether such default vitiated the VR settlement, resulting in initiation of further proceedings by the National Accountability Bureau ("NAB") against a holder of public office or any other person under the National Accountability Ordinance, 1999 ("Ordinance") or whether NAB could recourse to S.33E of the Ordinance to recover the amount of VR settlement as arrears of land revenue---Held, that default in deposit of the amount under a VR settlement vitiated the settlement resulting in initiation of further proceeding by the NAB against the accused under the Ordinance, and the NAB could not take recourse to S.33E of the Ordinance to recover the amount determined in VR settlement as arrears of land revenue---However, any partial payment under VR settlement would be available for adjustment even after VR stood vitiated and could be adjusted against Plea Bargain ("PB") or the liability determined by the court, as the case may be---Further more absence of time frame under a VR settlement could not be relied upon to make the VR arrangement continue indefinitely.

Voluntary Return ('VR') was an option available to a person under inquiry or even before inquiry but prior to authorization of investigation against him, to come forward to discharge his liability by making a voluntary return of the amount due against him. Voluntary Return settlement, as a concept was structured around and dependent upon the volition of the person who wished to settle. Voluntary Return, therefore, constituted (i) an offer of a holder of public office or any other person to make a voluntary return of the assets acquired or gains made by him in the course, or as a consequence, of any offence under the Ordinance; (ii) acceptance of that offer by the Chairman NAB; (iii) determination of the amount due from such person by the Chairman NAB; and (iv) deposit by such person with the NAB, of the amount so determined. Anything short of this did not constitute a valid VR settlement. Voluntary Return was, therefore, a one off voluntary return facility linked with the liability of the accused as determined by the Chairman NAB. Being a voluntary payment, any failure thereof, simple put an end to the facility of VR. Any short payment or partial payment did not constitute a valid VR settlement and thus did not discharge the person from his liability in respect of the matter or transaction in issue and the proceeding initiated under the Ordinance continued unabated.

In case the NAB granted time to a person to arrange for money so as to discharge his liability under the VR settlement, any such concession extended to the accused had no bearing on the essential constituent of VR, i.e., the deposit of the determined amount. Facility of VR became effective once the entire determined amount was paid or else the facility of VR came to an end. Even if the accused was allowed to pay the amount in installments, VR would only be effective once the determined amount was deposited in full. Voluntary return envisaged a voluntary deposit against the liability and there was no concept of any outstanding amount.

Under VR, there was either a deposit of the determined amount voluntarily or there was no VR. Therefore, the question of the recovery of the outstanding amount under VR did not arise in order to attract Section 33E of the Ordinance. However, any partial payment under VR would be available for adjustment even after VR stood vitiated and could be adjusted against Plea Bargain ("PB") or the liability determined by the court, as the case may be.

Mahesh Kumar v. Chairman NAB PLD 2008 Kar. 38 and Haji Khan Muhammad v. Government of Pakistan 2013 PCr.LJ 1571 distinguished.

Elahi Bux v. State PLD 2015 Sindh 165 and Raheel Sabir Jadoon v. Chairman, NAB PLD 2014 Pesh. 95 ref.

Absence of time frame under a VR settlement could not be relied upon to make the VR arrangement continue indefinitely.

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

----Ss. 25(a), 25(b) & 33E---"Voluntary Return ('VR')"---"Plea Bargain" ('PB")---Distinction---Recovery of amount of fines, etc., as arrears of land revenue---Scope---Voluntary Return ('VR') under cl.(a) to S.25 of the National Accountability Ordinance, 1999 ('the Ordinance') used the phrase "deposit with the NAB", while Plea Bargain ('PB") under cl. (b) to S.25 used the phrase "agrees to return to the NAB"---Both said concepts presented two different transactional arrangements---Former envisaged full deposit and the latter a commitment to pay---Voluntary Return was linked with the condition of full deposit whereas Plea Bargain became operative if the accused "agrees to return" to the National Accountability Bureau (NAB) the amount determined by the Chairman, NAB and the Court approved such agreement---Amount so agreed to be returned under Plea Bargain [section 25(b)] became due under the Ordinance and was thus recoverable as arrears of land revenue under S.33E of the Ordinance, whereas NAB could not take recourse to S.33E to recover the amount determined in a VR settlement as arrears of land revenue.

Imran ul Haq, Addl. P.G. NAB and Ahmed Nawaz Chaudhry, Advocate-on-Record for Appellants.

Aftab Alam Yasir, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1 (in C.As. Nos.621 and 623 of 2019).

Nemo. (in C.As.622 and 624 of 2019).

P L D 2020 Supreme Court 201

Present: Manzoor Ahmad Malik, Saradar Tariq Masood and Syed Mansoor Ali Shah, JJ

ALI AHMAD and another---Appellant/Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.154-L of 2013 and Criminal Petition No.366-L of 2013, decided on 14th March, 2019.

(On appeal from the judgment of Lahore High Court, Lahore dated 26-2-2013, passed in Crl. A. No.1053 of 2007).

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

----Ss. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), S.342---Qanun-e-Shahadat (10 of 1984), Art.121---Qatl-i-amd---Re-appraisal of evidence---Defence plea of sudden and grave provocation---Admission or confession by accused in his statement under S. 342, Cr.P.C, in circumstances where prosecution on basis of its own evidence had failed to prove its case---Whether such statement of accused could be relied upon for convicting the accused---Held, that prosecution on basis of its evidence had failed to prove its case beyond reasonable doubt as presence of eye-witnesses at scene of occurrence was doubtful and contradictions were found between their statements on material aspects---However, the accused had admitted in his statement under S.342, Cr.P.C. that he killed his sister and her paramour (deceased) under grave and sudden provocation when he saw them committing zina---Such statement of the accused made under S.342, Cr.P.C was to be accepted in its entirety without requiring the proof under Art.121 of Qanun-e-Shahadat, 1984---Said statement, when taken as a whole, established sudden and grave provocation, and it was not improbable or unbelievable, nor was it inconsistent with the overall facts and circumstances of the case; therefore, it could safely be relied and acted upon (for convicting the accused)---Case of accused to the extent of deceased paramour fell within the scope of S.302(c), P.P.C, instead of S.302(b), P.P.C and his conviction was modified as such with a sentence of 15 years rigorous imprisonment, whereas his conviction to the extent of murder of his sister had already been set aside in lieu of a compromise with the legal heirs---Order accordingly.

(b) Criminal trial---

----Prosecution---Burden of proof---Scope---Burden, in a criminal case, to prove the guilt of the accused was always on the prosecution---Court, in the first instance, was to discuss and assess the prosecution evidence, in order to arrive at the conclusion as to whether or not the prosecution had succeeded in proving the charge against the accused on the basis of its evidence.

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

----Art. 121---Criminal trial---Defence plea---Shifting of burden from prosecution to the accused---Scope---Burden shifted upon the accused under Art.121 of the Qanun-e-Shahadat, 1984 to prove his defence plea, only when a prima facie case was made out against him by the prosecution on the basis of its evidence---If the prosecution failed to prove its case against the accused, the question of shifting of burden on the accused did not arise.

(d) Criminal trial---

----Defence plea---Examination of such plea by the court---Scope---Burden of proof---Scope---In a case where the accused had not taken any specific plea (e.g. self defence, grave and sudden provocation etc.) or had not produced any evidence in his defence, the court was to decide the question of success or failure of the prosecution in proving the charge against the accused on the basis of the prosecution evidence alone---Where the accused had taken a specific plea or had produced evidence in his defence, then the court was to appraise the prosecution case and the defence version in juxtaposition, in order to arrive at a just conclusion---Even in such situation the burden remained on the prosecution to prove the necessary ingredients of the offence charged against the accused, and it did not shift upon the accused merely by taking a defence plea or producing evidence in his defence.

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

----S. 302---Qatl-i-amd---Defence plea of sudden and grave provocation---Court was not to examine such defence plea in isolation from the prosecution evidence---Approach adopted by court of not appraising the prosecution evidence at all and convicting an accused, under S. 302(b), P.P.C., on the basis of its finding that he had failed to establish his defence plea of grave and sudden provocation was contrary to the law declared by the Supreme Court in the cases of Wali Muhammad v. State 1969 SCMR 612 and Ashiq Hussain v. State 1993 SCMR 417---Accused could not be convicted on the ground that his defence plea appeared unconvincing---Prosecution was duty bound to prove its case against the accused beyond reasonable doubt on the basis of its own evidence and was not absolved of this duty even if the accused had taken a defence plea.

Wali Muhammad v. State 1969 SCMR 612 and Ashiq Hussain v. State 1993 SCMR 417 ref.

Feroze v. State 2008 SCMR 696 distinguished.

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

----S. 302 ---Qatl-i-amd---Defence plea---'Grave and sudden provocation' and 'honour killing'---Distinction---In case of honour killing the act of murder was well thought out, calculated and pre-mediated, while in case of grave and sudden provocation the act was committed on the spur of the moment without any pre-planning or deliberation---Family honour may be at the root of both the acts, still there was a difference between the two.

Muhammad Qasim v. State PLD 2018 SC 840; Muhammad Ameer v. State PLD 2006 SC 283; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 and Naseer Hussain v. Nawaz 1994 SCMR 1504 ref.

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

----S. 302---Qatl-i-amd---Defence plea---'Grave and sudden provocation'---Meaning and scope.

Expression "grave and sudden provocation" was used by the Legislature in Exception-1 to the erstwhile section 300 of P.P.C. as: "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation." It is clearly spelt out from the said provisions that the provocation offered by the act of the victim must be so grave and sudden that it would deprive the offender of the power of self-control. Provocation in law thus consisted mainly of three elements: (i) the act of provocation, (ii) the loss of self-control, and (iii) the retaliation/reaction proportionate to the provocation. The relationship of these elements to each other, particularly in point of time, was of the foremost importance to determine whether there was time for passion to cool and reason to resume.

Ali Muhammad v. Ali Ali Muhammad PLD 1996 SC 274 ref.

Doctrine relating to provocation depended on the fact that it causes, or may cause, a sudden and temporary loss of self-control,whereby malice which was the formation of an intention to kill or to inflict grievous bodily harm, was negatived.The proportionality of the reaction to the provocation was tested on the touchstone of the reaction expected from a reasonable person. What a reasonable man would do in certain circumstances depended upon various factors including the customs, traditions, social and cultural values, and way of life of the society to which he belonged. No abstract standard of reasonableness could be laid down, in this regard.

Holmes v. Director of Public Prosecutions (1946) AC 588 and K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605 ref.

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

----S. 342---Power of Court to examine the accused---Scope and purpose.

Primary purpose of section 342, Cr.P.C. was to enable the accused to know and to explain and respond to the evidence brought against him by the prosecution. It was essential that attention of the accused must be brought to all the vital parts of the evidence brought against him by the prosecution, especially if he was an ignorant person who could not be expected to know or understand what particular parts of the evidence were or were likely to be considered by the Court to be against him. The purpose was to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain.

Tani v. Emperor 20 Cr.LJ 12 (Nag); Md Illias Mistri v. The King (1949) ILR 1 Cal 43; Abdul Wahab v. Crown PLD 1955 FC 88 at p.90; Santan Naskar v. State of West Bengal AIR 2010 SC 3570 ref.

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

----S. 342---Admission or confession by accused in his statement under S.342, Cr.P.C.---Probative value---Admission or confession which was improbable or unbelievable, or was not consistent with the overall facts and circumstances of a case may not have any probative value and thus could not be relied upon by the court for reaching to a conclusion.

Manjeet Singh v. State PLD 2006 SC 30; Ghulam Abuzar v. State 1991 PCr.LJ 697 and Nisar Ahmad v. State 1989 PCr.LJ 1445 ref.

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

----S. 342---Prosecution failing to prove its case---Admission or confession by accused in his statement under S.342, Cr.P.C.---Evidentiary value---Where prosecution had failed to prove its case, the statement of accused under S.342, Cr.P.C., could be taken into consideration by the court (for convicting him) but in its entirety---Reliance could not be placed on only inculpatory part of such statement---Principles.

If the prosecution failed to prove its case against the accused, the court could take into consideration the statement of the accused under section 342, Cr.P.C. whether in favour of or against the accused; but it must take into consideration such statement in its entirety and could not select and place reliance on the inculpatory part of the statement only. However where there was prosecution evidence which disproved the exculpatory part of the statement of the accused under section 342, Cr.P.C., then reliance could be placed on the inculpatory part of the statement by excluding the exculpatory part, but not otherwise. In other words, if the prosecution had proved a case against the accused beyond reasonable doubt, the court may, if it deemed expedient to get further support, take into consideration also the inculpatory part of the statement of the accused under section 342, Cr.P.C., only if the prosecution evidence negated the exculpatory part of the statement and it could be safely severed from the inculpatory part but not otherwise. Even if this exercise was not undertaken the conviction of the accused stood as the prosecution had already proved its case against the accused beyond reasonable doubt, on the basis of its evidence. The inculpatory part of the statement was not being considered to fill up gaps in the case of the prosecution but simply to draw support in a case already established by the prosecution and no more.

Rahim Bakhsh v. Crown PLD 1952 FC 1; Mehrban Shah v. State 1969 SCMR 839; Najib Raza Rehmani v. State PLD 1978 SC 200; Hanumani Govind Nargundi v. State of Madhya Pardesh AIR 1952 SC 343; Faiz v. State 1983 SCMR 76; Waris Khan v. Ishtiaq PLD 1986 SC 335 and Sultan Khan v. Sher Khan PLD 1991 SC 520 ref.

Once the prosecution evidence was disbelieved, rejected or excluded from consideration, the facts explained by the accused in his statement under section 342, Cr.P.C. were to be accepted in their entirety without requiring their proof. The court was then to examine the said facts to give due effect to the statement of the accused, under the law, whether in favour of or against the accused. The object of such examination was to determine whether or not the facts narrated by the accused constituted an offence under the law or fit into any exception of the offence provided under the law.

Jagdeo v. Emperor 38 IC 740; Bhola Nath v. Emperor AIR 1929 Allahabad 1; Gul Mahomed v. Emperor AIR 1945 Sindh 42 and Muhammad Azam v. State 2009 SCMR 1232 ref.

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

----S. 302(c)---Qatl-i-amd---Illicit sex with a female family member---Defence plea of sudden and grave provocation---Scope---Supreme Court observed that our culture and social values reflected in the jurisprudence developed so far was that an act of illicit sex with a female family member of the offender was considered sufficient to cause provocation so grave and sudden that it would deprive the offender of the power of self-control.

Muhammad Qasim v. State PLD 2018 SC 840; Gul Nissa v. Muhammad Yousuf PLD 2006 SC 556; Naseer Hussain v. Nawaz 1994 SCMR 1504 and Noor Muhammad v. State 1993 SCMR 208 ref.

Muhammad Akram Qureshi, Advocate Supreme Court for Appellant.

Ch. Tahir Nasrullah, Advocate Supreme Court for Petitioner and for Respondent No.2 (in Crl.A. No.154 of 2013).

Mazhar Sher Awan, Addl. P.G. for the State.

Supreme Court Research Centre for the Research Assistance.

P L D 2020 Supreme Court 221

Present: Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

Mst. GULNAZ and another---Appellant/Petitioner

Versus

Haji MUHAMMAD RIAZ and others---Respondents

Civil Appeal No.455 of 2012 and Civil Petition No.1173 of 2012, decided on 23rd December, 2019.

(On appeal against the judgment dated 5-3-2012, passed by the Peshawar High Court, Abbottabad Bench in C.Rs. Nos. 131 of 2004 and 35 of 2005).

(a) Judgment ---

----Judgment "varied"---Connotation.

If a judgment was to change or alter or modify the ruling of the court below, it would be said that the judgment had varied the ruling of the lower court. However, where the same was set aside, or upheld, no modification took place and the impugned ruling of the court below was either accepted in toto or reversed absolutely. Where a judgment was partially upheld, and partially reversed, and only that part of the judgment had been challenged which was partially maintained, then the same could not fall under the ambit of "variation", and would have to be considered as a judgment "upheld" to one extent, and a judgment "set aside" to the rest of it.

(b) Constitution of Pakistan---

----Arts. 185(2)(e) & 185(3)---Appellate jurisdiction of the Supreme Court---Appeal before the Supreme Court---Competency---Judgment "varied"---Connotation---Present case involved matter pertaining to property valued at more than Rs.50,000/- in the Trial Court, however, the High Court had "varied or set side the part of judgment, decree or final order of the court immediately below", as required under Art.185(2)(e) of the Constitution---Appellant had only impugned that part of the judgment of the High Court which dismissed the claim of the appellant in the civil revision,therefore, the present appeal under Art.185(2)(e) of the Constitution was not competent and the appellant was required to file a Civil Petition for Leave to Appeal under Art.185(3) of the Constitution, in such eventuality---Portion of the judgment of the High Court which varied the judgment of the lower court was in favour of the appellant and that portion was not challenged by the appellant rather appellant has challenged a portion of the judgment of the High Court as well as the two fora below whereby her claim was concurrently dismissed by all the three fora below, therefore, the appeal filed by the appellant was not competent; she was required to file a Petition for Leave to Appeal.

Haji Sabir Hussain Tanoli, Advocate Supreme Court with Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

M. Ayub, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Raja M. Farooq, Advocate Supreme Court for Respondents Nos. 1 to 3 (in C.A. No.455 of 2012).

Ex-Parte: Respondents Nos.4 to 24, 26 and 27 (in C.A. No.455 of 2012).

Mehmood A. Sheikh, Advocate-on-Record for Respondent No.25 (in C.A. No.455 of 2012).

Nemo for Respondents (in C.P. No.1173 of 2012).

P L D 2020 Supreme Court 227

Present: Umar Ata Bandial, Faisal Arab and Ijaz ul Ahsan, JJ

Messrs HABIB AND COMPANY and others---Petitioners

Versus

MUSLIM COMMERCIAL BANK LIMITED and others---Respondents

Civil Review Petition No.537 of 2019 in Civil Petition No.2013 of 2017, decided on 19th November, 2019.

(Against Order dated 21-6-2019 of the Supreme Court of Pakistan in C.P. No.2013 of 2017).

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

----O. XXI, R. 90, second proviso---Auction proceedings---Objection petition under O. XXI, R. 90, C.P.C---Maintainability---Deposit of 20% of auction price/security---Mandatory requirement---Discretion of court was limited only to the extent of amount of security to be deposited (i.e. not exceeding 20%).

Bare reading of the second proviso to Order XXI, Rule 90, C.P.C. clearly showed that the deposit of a sum of 20% of the auction price was mandatory for the application to be entertained in the first place, i.e. an application would not be maintained unless such a sum was deposited. Closer reading of the said provision also showed that the discretion provided to the court was not with respect to furnishing of the security at all, but rather the amount of the security to be deposited.

Second proviso to Order XXI, Rule 90, C.P.C mandated every application under the said provision was to be accompanied by 20% of the auction price in order to be entertained.

Nice "N" Easy Fashion (Pvt.) Ltd. v. Allied Bank of Pakistan 2014 SCMR 1004 and Zakaria Ghani v. Muhammad Ikhlaq Memon PLD 2016 SC 229 ref.

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

----O. XXI, R. 90, second proviso---Auction proceedings---Objection petition---Maintainability---Objection petition under O. XXI, R. 90, C.P.C filed on 22-09-2003---Deposit of 20% of auction price/security in support of such petition submitted subsequently on 03-03-2004---Held, that objection petition was not maintainable from its inception and any later deposit of money could not be used to argue otherwise.

(c) Supreme Court Rules, 1980---

----O. XXVI, R.1---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review petition before the Supreme Court---Scope---Application for review of an order (before the Supreme Court) would only succeed if new and important evidence, which was not within the knowledge of the applicant after the exercise of due diligence and could not be produced at the time when the order was made, was produced or a mistake or error apparent on the face of the record had been made in the order under review.

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

----O. XXI, R. 90, second proviso---Auction proceedings---Objection petition---Reserve price---Objection regarding reserve price could not be taken by the judgment debtor after the auction had taken place---Duty to raise such an objection at the initial stages was cast on the judgment debtor.

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

----O. XXI, R. 92---Auction proceedings---Sale when to become absolute---Scope---Interest of auction purchaser---Supreme Court observed that the law laid down in the judgment reported as Hudaybia Textile Mills v. Allied Bank of Pakistan Ltd. (PLD 1987 SC 512) in light of O.XXI, R.92 of the C.P.C., was designed to protect the interests of the third-party once a sale had been validly made and to ensure that a valid sale in execution was not made invalid to the prejudice of the auction purchaser because the decree was later reversed.

Hudaybia Textile Mills v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 clarified.

M. Munir Piracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Nemo for Respondents.

P L D 2020 Supreme Court 233

Present: Gulzar Ahmad, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel, Sajjad Ali Shah and Yahya Afridi, JJ

Mir MUHAMMAD KHAN and 2 others---Petitioners

Versus

HAIDER and others---Respondents

Civil Petition No.1084 of 2011 and Civil Appeals Nos. 1711 of 2007 and 353 of 2013, decided on 11th November, 2019.

(On appeal against judgments dated 14-4-2011, 7-9-2007 and 14-12-2012 of the Lahore High Court, in C.Rs. Nos.1040-D of 2009 and 1009 of 2006 and R.S.A. No.174 of 2012 respectively).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13(1)---Civil Procedure Code (V of 1908), O.VI, R. 2---Suit for pre-emption---Plaint---Talb-i-Muwathibat---Date, time and place at which information regarding pre-empted sale was received had to be mentioned in the plaint---Such requirement would apply to all cases on the matter pending before the Courts---View taken by the Supreme Court in Mian Pir Muhammad and another v. Faqir Muhammad and others (PLD 2007 SC 302) approved.

Mentioning of date and place where information regarding the "pre-empted sale" was received by the pre-emptor was necessary in order to prove the making of Talb-i-Muwathibat.

Section 13 of the Punjab Pre-emption Act, 1991 did not mention requirements such as the mentioning of date, time, and place on which the Talb-i-Muwathibat was made in the plaint. However, it was clear that these particulars were the material facts on the basis of which the making of Talb-i-Muwathibat could be proved. Therefore, the date, time and place of making such demand was pivotal and foundational to the exercise of the right of pre-emption.

Order VI, Rule 2 of the C.P.C. obligated the plaintiff to state all material facts in a concise form. It mandated that all parties must state all material facts necessary for the purposes of establishing a cause of action within their pleadings. In the context of the exercise of the right of pre-emption by any party, the date, time, and place of performance of Talb-i-Muwathibat was the most material fact because all subsequent acts towards successfully exercising and enforcing the right of pre-emption had reference to, flowed out of, and the time frame within which such acts were required to be performed was with relevance to, the date of performance of Talb-i-Muwathibat. It, therefore, stood to reason that the material and necessary facts required to prove the making of Talb-i-Muwathibat must be mentioned within the pleadings from the commencement of an action claiming a right of pre-emption so as to set out with clarity the case of the plaintiff, not let the defendant be taken by surprise, and to avoid misuse and abuse of the law by an unscrupulous litigant who may choose the date of his knowledge and performance of Talb-i-Muwathibat to suit his convenience without any regard to the actual facts. Any suit for pre-emption that failed to mention the basic facts required to prove the making of Talb-i-Muwathibat would necessarily fail.

Mian Pir Muhammad and another v. Faqir Muhammad and others PLD 2007 SC 302; Abdul Qayuum v. Muhammad Rafique 2001 SCMR 1651; Abdul Aziz v. Fateh Muhammad 2007 SCMR 336; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911 and Muhammad Anwar v. Safeer Ahmad 2017 SCMR 404 ref.

Requirements to mention particulars of all Talbs, including the time, date and place at which information of the "pre-empted sale" was received by the pre-emptor before making the Talb-i­-Muwathibat, in accordance with the decision in Mian Pir Muhammad and another v. Faqir Muhammad and others (PLD 2007 SC 302) would apply to all cases on the matter pending before the Courts wherein similar question of law was raised.

Mst. Bashira Begum v. Nazar Hussain PLD 2008 SC 559 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice of---Receipt of notice by vendee---Burden of proof upon pre-emptor---Scope---In the present case, address mentioned in the postal receipt was not the same as the one mentioned in the notice---Moreover, nothing on record proved the assertion of the pre-emptor that the notice was ever served on the vendee, who in his written statement before the courts below categorically denied service of the notice in question---Therefore, it fell upon the pre-emptor in the case to prove that the notice had been delivered---By failing to prove the same or even producing the postman who allegedly delivered the notice, the pre-emptor failed to establish the sending or receipt of the notice for the performance of Talb-i-Ishhad---Suit for pre-emption was dismissed.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---'Talb-i-Muwathibat' and 'Talb-i-Ishhad'---Where Talb-i-Muwathibat was not proved to have been made then the performance of Talb-i-Ishhad and all other requirements for a successful demand of pre-emption could not be proven---Similarly, even if Talb-i-Muwathibat had been made in accordance with the law, if any of the requirements for the performance of Talb-i-Ishhad were not fulfilled, the suit for possession through pre-emption was bound to fail.

(d) Constitution of Pakistan---

----Art. 189---Judicial pronouncements by the Supreme Court---Retrospective and prospective effect---General rule and exceptions stated.

General rule in common law was that judicial pronouncements, with respect to most civil cases, applied retrospectively to cases pending before the courts and prospectively to any cases that were filed after the judgment had been rendered. Courts in various common law jurisdictions applied this rule extensively.

Henry Harper v Virginia Department of Taxation (1993) (509 U.S. 86) ref.

While obvious exceptions to the rule must, and did, exist in the context of criminal cases and those cases where the Supreme Court had chosen not to apply its decisions retrospectively. If the Supreme Court did not explicitly mention that a judgment would not apply to cases still awaiting a decision before the courts, e.g. to protect vested rights, etc., the interpretation of the law declared by the Supreme Court would apply to them.

When the Supreme Court interpreted or declared the law, that interpretation only clarified the meaning of the words already used by the legislature or the competent authority drafting the provisions. It stood to reason, therefore, that the same interpretation must be applicable not from the time when the judgment pronouncing such interpretation was rendered but from the time when the law or provision in question was enacted. Therefore, such interpretations must apply to any cases that were brought before the courts under the law in question. It was, of course, within the purview of the Supreme Court to limit this application by prescribing a time from which such interpretations must apply, but this must be done according to the circumstances of specific cases and by balancing the detriments of such application with the existing laws in place.

Malik Asad Ali v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad PLD 1998 SC 161 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioner (in C.P.No.1084 of 2011).

Azhar Maqbool Shah, Advocate Supreme Court for Petitioner (in C.A.No.1711 of 2007).

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Petitioner (in C.A. No.353 of 2013).

Nemo for Respondent (in C.P. No.1084 of 2011).

Nemo for Respondent (in C.A. No.1711 of 2007).

Nemo for Respondent (in C.A. No.353 of 2013).

P L D 2020 Supreme Court 249

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

ADMINISTRATOR MUNICIPAL CORPORATION, PESHAWAR---Appellant

Versus

TAIMOOR HUSSAIN AMIN and others---Respondents

Civil Appeal No.20 of 2014, decided on 11th February, 2020.

(Against the judgment dated 6-5-2013 passed by Peshawar High Court, Peshawar in C.R. No.221 of 2012).

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

----Arts. 117, 118, 119 & 126---Purchase of immoveable property vide sale mutation---Proof and burden of proof---Presumption of owner-ship---Burden of proof lay on the plaintiffs (purported purchasers) and not on the Municipal Corporation, which claimed ownership of subject property---Plaintiffs neither produced evidence of their ownership nor evidence of the ownership of the purported sellers from whom they allegedly bought the property---Evidence of the payment of sale consideration was also not brought on record---Furthermore purported sellers were not arrayed as parties to the suit---Courts below disregarded the presumption of ownership of the Corporation which was and had been receiving rent from the tenants of the shops constructed on the subject property---Suit filed by plaintiffs was dismissed.

Plaintiffs claimed that they had purchased the property from the purported sellers for six million rupees through an attested sale mutation. However, they did not array the purported sellers as parties to the suit. Evidence of the payment of the sale consideration was also not produced. Admittedly, despite their purported purchase of the property its possession remained with the Corporation which continued to receive rent from the shops constructed on the property. The plaintiffs did not offer any explanation why they bought the property when neither its physical nor constructive possession was delivered to them by the purported sellers, nor was the right to collect rent from the tenants of the shops given to them. At the time of the purported sale, subsequently and throughout rent was received by the Corporation and at no stage was it received either by the plaintiffs, the purported sellers or their predecessor-in-interest. The plaintiffs also did not establish the entitlement of purported sellers' predecessor-in-interest to the property. They did not summon any official/officer from the Settlement Department which had purportedly issued the 'RL-II' and letter for subject property in favour of sellers' predecessor-in-interest. Trial Court disregarded all these shortcomings, and placed the burden of proof on the Municipal Corporation and decreed the suit because the Corporation had failed to establish its ownership of the property. However, such failure of the Municipal Corporation did not help the plaintiffs, whose case had to succeed on its own merits, and not on account of any shortcoming in the Municipal Corporation's defence.

Burden of proof lay on the plaintiffs (Articles 117, 118 and 119 of the Qanun-e-Shahadat, 1984) to prove, firstly, that the property was bought by them, secondly, that they had bought it from the purported sellers and, thirdly, that the purported sellers were its owners, however, the plaintiffs did not establish any of this. The plaintiffs simply relied on sale mutation, however, this mutation was denied by the Corporation therefore the plaintiffs, the beneficiary of the purported sale, had to establish the original sale transaction.

Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688; Fida Muhammad v. Murid Sakina 2004 SCMR 1043; Muhammad Hussain v. Wahid Bakhsh 2004 SCMR 1137; Arshad Khan v. Resham Jan 2005 SCMR 1859; Muhammad Afzal v. Matloob Hussain PLD 2006 SC 84 and Abdul Rasheed v. Manzoor Ahmad PLD 2007 SC 287 ref.

Article 126 of the Qanun-e-Shahadat, 1984 provided that, when another "is in possession [of property], the burden of proving that he is not the owner is on the person who affirms that he is not the owner." In the present case, the plaintiffs themselves alleged that the Corporation was in possession and receiving rent from its tenants. The Corporation had constructed shops on the Property and was receiving rent for years from the tenants of the said shops. There was thus sufficient evidence on record to raise the presumption of the Corporation's ownership of the property. The plaintiffs also offered no explanation why they bought the property without receiving its physical or constructive possession nor made any effort to receive rent from the tenants to whom the shops constructed on the property were rented out by the Corporation.

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

----S. 3 & First Sched.---Specific relief not referred to in the suit --- Limitation---Prescribed period of limitation for a particular type of suit could not be avoided by not referring to the specific relief that was sought and if this was done the actual nature of the suit would have to be seen.

(c) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 39 & 41---Public properties, protection of---Stock taking of movable and immovable properties of the local government---Practice of grabbing public property on basis of unsubstantiated claims due to non-adherence with the law---Supreme Court deprecated such practice and observed that the legislative measures taken to protect public properties continued to be disregarded and public properties were being lost; that one obvious cause behind such loss was not disclosing the properties and their loss by not undertaking the requisite stocktaking and submitting reports of public properties as mandated by S. 39 of the Khyber Pakhtunkhwa Local Government Act, 2013---Directions issued by the Supreme Court to ensure protection of public properties stated.

Supreme Court in order to safeguard public properties and the public interest directed that, every village, neighourhood, Tehsil, Town, District and City District Local Government should comply with section 39 of the Khyber Pakhtunkhwa Local Government Act, 2013 ('the Act') and submit the requisite reports, and if there was any loss or waste of local governments' properties then action was to be taken in terms of section 41 of the Act against "every official or servant of a local government, every member of a local council, and every person charged with administration and management of property of a local government"; that this would ensure protection of public properties and provide deterrence against their "negligence or misconduct"and to make them liable for "any loss or waste"; that if the Act was substituted by any other legislation the directions issued herein to protect and preserve public properties shall be deemed to have been issued with regard to similar provisions thereunder; that Provincial Government was to prepare and maintain a complete physical and electronic/digital record of all public properties, which shall include, making requisite entries,if not already made, in the revenue/land record in the name of the concerned local government, and mention its area, abutment, coordinates and any other particulars for their easy identification; that the record with regard to every local government's public properties must be permanently maintained by them and copies thereof kept at a centralized location by the office of the concerned Provincial Secretary in digital/electronic form.

Sabah ud Din Khattak, Advocate Supreme Court, Adam Khan, Advocate-on-Record (absent) and Muhammad Sadiq, Suprintendent for Appellant.

Babar Awan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant (in C.M.A. No.119 of 2015).

Muhammad Junaid Akhtar, Advocate Supreme Court for Respondent No.1.

Laiq Khan Swati, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No.2.

Respondent No.3: Ex parte.

P L D 2020 Supreme Court 261

Present: Qazi Faez Isa and Munib Akhtar, JJ

CHAIRMAN, PAKISTAN TELECOMMUNICATION CORPORATION and others---Appellants

Versus

KONISH ENTERPRIRSE (PVT) LTD. and others---Respondents

Civil Appeal No.547 of 2012, decided on 24th February, 2020.

(On appeal from the order dated 19-3-2012 passed by the Preshawar High Court, Peshawar in R.F.A. No.366 of 2011)

(a) Tort---

----Negligence---Duty of care---Scope---For there to be liability in law a duty of care had to be owed and breached---Establishing the duty of care was essential---Mere fact that a man was injured by another's act gave in itself no cause of action---If the act was deliberate, the party injured would have no claim in law even though the injury was intentional, so long as the other party was merely exercising a legal right; if the act involved lack of due care, again no case of actionable negligence would arise unless the duty to be careful existed.

Grant v. Australian Knitting Mills Ltd. [1936] AC 85, [1935] UKPC 2, AIR 1936 PC 34 ref.

(b) Tort---

----Negligence---Duty of care---Licensor-licensee---Two licensees allowed to enter and be upon the licensor's same piece(s) of land simultaneously in order to work their respective licenses, which each licensee held independently and in its own right, and which respective license was for diverse, distinct and separate acts---Question as to what was the duty (if any) of each licensee towards the other in such a situation answered.

There was a legal obligation owed by each licensee to the other in circumstances where two licensees were allowed to enter and be upon the licensor's same piece(s) of land simultaneously in order to work their respective licenses, which each licensee held independently and in its own right, and which respective license was for diverse, distinct and separate acts. That obligation was a duty to take such reasonable care as ensured that the working by each licensee of its license did not interfere with the working of the other license by its licensee, and also to take such reasonable care as ensured that (keeping in mind the nature of the other license) no damage was caused to the other licensee. Two important points had to be kept in mind; firstly, the liability was contingent upon the licensee (allegedly) at fault being aware of both the existence of the other license and licensee, and the nature thereof. If the licensee (allegedly) at fault was not aware of the other licensee and its license then there would be no liability, even if damage or injury was caused to the latter. However, it was not necessary that there be actual knowledge. If the facts of the case were such so as to show that the licensee could reasonably be regarded as being (or should reasonably have been) aware of the other licensee and the nature of the license worked by it that, in law,would suffice. Further more, the liability would arise when the licensee (allegedly) at fault became aware (or should reasonably have, or be regarded as having, become aware) of the other licensee and its license. Secondly, the liability presently being contemplated was that of one licensee as such towards the other licensee as such. The (general) liability (if any) of each licensee towards other persons/third parties (which could, in this sense, include the other licensee) would remain unaffected.

An important connected question was, what if, on any reasonable basis, one (or for that matter, each) of the licenses could not be worked without incurring liability? Would a duty of care still exist in such circumstances? And if so, how would it operate? Answer was that duty would still exist in such circumstances. The licensee at fault would be one who (actually) worked its license later in time, even though its grant may have been earlier.

Tariq Aziz, Advocate Supreme Court for Appellants.

Ch. Afashiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Sikandar Rasheed, Advocate Supreme Court and Syed Rifaqt Hussain Shah, Advocate-on-Record for Respondent No.2.

P L D 2020 Supreme Court 269

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

FAWAD ISHAQ and others---Petitioners

Versus

Mst. MEHREEN MANSOOR and others---Respondents

Civil Petitions Nos. 154 and 155 of 2019, decided on 7th February, 2020.

(On appeal against the judgment dated 17-12-2018 passed by Peshawar High Court, Peshawar in W.P. No.2037-P of 2017).

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

----S. 5, Sched.---Transfer of Property Act (IV of 1882), S. 41---Dower (mehr), recovery of---Property mentioned in Cl.16 of Nikahnama as dower for wife---Suit for recovery of said property was filed by respondent-lady against her mother-in-law and father-in-law without impleading her husband---Subject property was owned by the mother-in-law---Held, that mother-in-law was not a signatory to the Nikahnama nor had executed any other document agreeing to transfer the subject property---Mother-in-law had not permitted her husband, expressly or impliedly, to transfer the property in terms of S.41 of the Transfer of Property Act, 1882---Respondent made no attempt to ascertain that the father-in-law had the power to transfer the property---Suit filed by respondent was dismissed with the observation that she could still claim from her husband any part of her dower which remained unpaid.

Mother-in-law was not a signatory to the Nikahnama nor had executed any other document agreeing to transfer the subject property, either before or after a house was constructed on it, to her daughter-in-law/respondent. Mother-in-law also did not grant a power of attorney or otherwise authorize her husband to make any commitment on her behalf with regard to the property, let alone to transfer it.

PLD 2010 Lah. 119 distinguished.

Argument that mother-in-law had permitted her husband, expressly or impliedly, to transfer the property in terms of section 41 of the Transfer of Property Act, 1882 was not borne out by the record. To attract section 41 it had to be established that, the mother-in-law had expressly or impliedly held out that her husband was the "ostensible owner" of the property and had authorized him to transfer the property to the respondent. The other requirements of section 41 were that the proposed transferee had taken "reasonable care to ascertain that the transferor had power to make the transfer" and had "acted in good faith". Mother-in-law neither held out that her husband was the ostensible owner of the property nor that she had authorized him to transfer it. Respondent also led no evidence to show that she had attempted to ascertain that the father-in-law had the power to transfer the property. Therefore, respondent could not avail the benefit of section 41 of the Transfer of Property Act, 1882.

Respondent also did not array her husband as a party to the suit even though he was a necessary party thereto. Respondent undoubtedly had a valid claim against her husband with regard to the dower promised by him at the time of marriage, as mentioned in the Nikahnama, and could claim the value of the property from him however she elected not to do so but instead lay claim to the property. Be that as it may, respondent could still claim from her husband any part of her dower which remained unpaid. Suit filed by respondent was dismissed.

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

----Ss. 5 & 7---Property owned by wife --- Husband had no right to his wife's property nor could he 'guarantee' or encumber it without her permission---Woman also did not need permission to dispose of her property or to acquire property---Unless a married woman elected to gift, sell or otherwise dispose of her property neither her husband nor any male relative had any right over it.

(c) Islamic law---

----Property owned by woman---Historical discrimination faced by married women with respect to ownership of property in Europe and United States of America---Distinction between property rights granted to women in Islam and the historical doctrines and laws in Europe and United States of America that deprived a woman of her property in favour of her husband upon marriage stated.

William Blackstone, Commentaries on the Laws of England (Volume 1, Oxford University Press, 1765) pg. 442; Amy Loise Erickson, Women and Property in Eearly Modern England (London and New York: Routledge, 1993; Amy Loise Erickson, Women and Property in Early Modern England (London and New York: Routledge, 1993 pg.24; Section 1(1) of the Married Women's Property Act, 1882; Cole v. Van Riper, 44 III 58 (1867); Cole v. Van Riper, 44 III 58 (1867), pg.63; Elizabeth Cady Stanton, A History of Woman Suffrage (Vol I, Rochester, New York: Fowler and Wells, 1889); Elizabeth Cady Stanton, A History of Woman Suffrage (Vol I, Rochester, New York: Fowler and Wells, 1889) p.70; Elizabeth Cady Stanton, A History of Woman Suffrage (Vol I, Rochester, New York: Fowler and Wells, 1889), pg.70-71; Melissa Homestead, American Women Authors and Literary Property, 1822-1869 (1st edn, New York: Cambridge University Press, 2005) pg. 29; Al-Qur'an, Surah An-Nisa (4) verse 32 and Al-Qur'an, Surah an Nisa (4) verse 29 ref.

(d) Islamic law---

----Inheritance---Property inherited by a woman---What a woman inherited was hers and hers alone; neither her husband, father, brother or son had any entitlement to it.

(e) Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Bridal gifts given to wife at the time of marriage---Such gifts were also the wife's property; these could be added to but not subtracted by the husband.

Al-Qur'an "Surah An-Nisa (4) verses 24 and 25; Surah Maidah (5) verse 5; Surah Mum'tahanah (60) verse 10 ref.

M. Munir Piracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (In C.P. No.154 of 2019).

Sardar Muhammad Aslam, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record (In C.P. No.155 of 2019).

Imtiaz Ali, Advocate Supreme Court and Haji M. Zahir Shah, Advocate-on-Record (absent) for Respondent No.1 (In both petitions).

Amir Javed, Advocate Supreme Court and H.M. Zahir Shah, Advocate-on-Record (absent) for Mansoor Ishaq: (R.No.3 in C.P.No.154/19 and R.No.5 in C.P. No.155/2019)

Nemo for other Respondents.

P L D 2020 Supreme Court 282

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Mazhar Alam Khan Miankhel, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Raja MUHAMMD NADEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 299 of 2020, decided on 7th April, 2020.

(a) Prisons Act (IX of 1894)---

----S. 7---Criminal Procedure Code (V of 1898), S. 561-A---Coronavirus (COVID-19) pandemic---Threat of spread of disease amongst prisoners---High Courts passing orders for the release of certain category of under-trial prisoners/convicts, lodged in different prisons---Legality ---Methods and means to manage a crisis had to be essentially explored within a legal framework of statutory and judicial dispensation---No concept existed of en bloc omnibus release of prisoners on the basis of declaration of health emergency issued by the World Health Organization ('WHO') in a context altogether different---Advisory by the international organizations to its member states was to be routed through Foreign Office; no such advisory calling upon the member states to empty their prisons had been issued---Overcrowded prison, though an inconvenient abode, nonetheless, without an infected inmate was a safe place, instead of releasing them all---[Islamabad] High Court had no juridical basis to undertake an extensive exercise in a criminal miscellaneous application to issue directions impinging upon the whole spectrum of social life---High Court certainly lacked jurisdiction to invoke provisions of S.561-A, Cr.P.C---Abrupt release of hundreds of prisoners was far from being expedient for maintenance of law and order in their neighborhoods---Law must not be a casualty even in most extreme or adversarial situations; it must reign supreme and the Government in the given legal framework must strive hard to combat the pandemic---Court was not to be swayed by popular themes---Impugned orders of the High Courts for releasing/granting bail to prisoners were set-aside with the direction that prisoners released in pursuance to the orders of the High Courts were to be taken into custody except those falling within the categories suggested by the Attorney General with the concurrence of Provincial Advocate Generals.

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

----S. 561-A---Inherent powers of the High Court---Scope---Provisions of the S. 561-A, Cr.P.C could not be invoked to interfere, interrupt or divert procedural courses provided under the law nor it could be applied as a substitute for remedies otherwise available under the statute.

Emperor V. Khawaja Nazeer Ahmed AIR (32) 1945 Privy Council 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Nazir Ahmed and others v. Muhammad Shafi and another PLD 1980 SC 6 and Muhammad Ali v. Additional I.G., Faisalabad PLD 2014 SC 753 ref.

(c) Constitution of Pakistan---

----Art. 199---Suo motu jurisdiction of the High Court---Scope---Coronavirus (COVID-19) pandemic---Threat of spread of disease amongst prisoners---High Court exercising suo motu jurisdiction to order release of certain category of under-trial prisoners/convicts, lodged in different prisons---Legality---High Court had no jurisdiction under the Constitution to take up the issue suo motu---Article 199 of the Constitution envisaged an aggrieved person; but in the present case there was none before the Court---Besides there was also the bar of alternate remedy---Impugned directions/order of the High Court granting bail/releasing prisoners was set-aside.

Dr. Imran Khattak and another v. Mst. Sofia Waqar Khattak, PSO to the Chief Justice and others 2014 SCMR 122 ref.

Syed Nayyab Hassan Gardezi, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Recond along with for Petitioner.

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, Deputy Attorney General, Ms. Shireen M. Mazari, Minister for Human Rights, Dr. Safi Muhammad Mali, D.G. Health Ministry of N.H.S., Saeed Ullah Khan Niazi, Joint Secretary (Admn.), Asif Suhail, Director Legal, Khalid Mehmood, Deputy Secretary, Ministry of Interior and Nisar Ahmed, Section Officer for Federation of Pakistan.

Niaz Ullah Khan Niazi, Advocate General, Amer Ali Ahmed, Chief Commissioner, Hamza Shafqaat, Deputy Commissioner, Waseem Ahmed Khan, Assistant Deputy Commissioner, Waqar ud Din Syed, D.I.G. (Operations) and Azhar Hussain Shah, DSP (Legal) for Islamabad Capital Territory.

Salman Talibudin, Advocate General, Sibtain Mehmood, Addl.A.G., Dr. Fayyaz Ul Hassan Shah, PG, Muhammad Usman Chachar, ACS (Home), Nusrat Mengan, I.G (Prisons) and Zahid Abbasi, Secretary Health for Government of Sindh (via video link).

Shan Gul, Advocate General, Ch. Faisal Fareed, Additional Advocate General, Ahmed Raza Gillani, Additional Prosecutor General, Mirza Shahid Saleem Baig, I.G. (Prisons), Malik Shaukat Feroz, D.I.G. (Prisons), Rawalpindi Region, Rana Zeeshan, Additional Secretary (Prisons), Muhammad Zaman, D.S.P. (Prisons), Saqib Nazir, Superintendent Adyala Jail, Tahir Siddique, Assistant Superintendent Adyala Jail, Amir Bashir, Assistant Superintendent Adyala Jail, Majid Iqbal, Additional Secretary Punjab, Iqbal Hussain, Special Secretary Home Punjab, Adnan Yousaf, Sr. Law Officer and Arif Kamal Noor, Prosecutor General Punjab (via video link from Lahore Branch Registry) for Government of Punjab.

Shumail Butt, Advocate General, (via video link from Peshawar Branch Registry), Khuda Bakhsh, Special Secretary Health, Dr. Shaheen Afridi, Additional Director General, Health, Masood ur Rehman, Inspector General (Prisons) and Ikram Ullah Khan, Home Secretary, (all appeared via video link from Peshawar Branch Registry) for Government of Kkyber Pakhtunkhwa.

Arbab Muhammad Tahir, Advocate General, (via video link from Quetta Branch Registry), Ayaz Khan Swati, Additional Advocate General Punjab, Capt. (Retd.) Zafar Tahir Abbasi, Special Secretary Health, Malik Yousaf, Inspector General (Prisons), Hameed Ullah Pechi, A.I.G. Prisons, Niamat Ullah Khan Battazai, Prosecutor General, Mushtaq Qazi, Additional Prosecutor General, Abdul Lateef Kakar, Additional Prosecutor General, (all appeared via video link from Quetta Branch Registry) and Syed Baqar Shah, State Counsel for Government of Balochistan.

Muhammad Iqbal, Advocate General and Capt. (R) Ali Asghar, Inspector General (Prisons) for Government of Gilgit-Baltistan.

Muhammad Hassan Akbar, Additional Prosecutor General for N.A.B.

Raja Inaam Amin Minhas, Special Prosecutor for A.N.F.

Sh. Zameer Hussain, Advocate Supreme Court, Amicus Curiae.

Syed Qalb-e-Hassan, ASC/President from S.C.B.A.P.

Zulfiqar Abbas Naqvi, ASC/Member and Muhammad Akram Khaksar, V.C. from P.B.C.

Abdul Latif Afridi, Advocate Supreme Court/President from P.H.C.B.A.

Amjad Raza Bhatti, Advocate Supreme Court (in C.M.A. 399/2020).

In person (in C.M.A.406 of 2020).

Talat Mehmood Zaidi, Advocate Supreme Court (in C.M.A. No.414 of 2020).

Hashmat Ali Habib, Advocates Supreme Court (in C.M.A. No.415 of 2020).

Khawaja Haris Ahmed, Senior Advocate Supreme Court (in C.M.A. No.417 of 2020).

Munawar Iqbal Duggal, Advocate Supreme.

P L D 2020 Supreme Court 293

Present: Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

GHULAM FAROOQ CHANNA---Petitioner

Versus

SPECIAL JUDGE ACE (CENRAL-I) KARACHI and another---Respondents

Criminal Petition No.169 of 2020, decided on 3rd March, 2020.

(Against judgment dated 13-2-2020 passed by the High Court of Sindh, Karachi in Criminal Bail Applicatin No.1327 of 2019).

Criminal Procedure Code (V of 1898)-

----S. 498---Cognizable and non-bailable offences---Anticipatory bail, grant of---Scope and principles---Grant of bail to an accused required in a cognizable and non-bailable offence prior to his arrest was an extraordinary judicial intervention in an ongoing or imminent investigative process; it clogged the very mechanics of State authority to investigate and prosecute violations of law designated as crimes---To prevent arrest of an accused where it was so required by law was a measure with far reaching consequences that may include loss or disappearance of evidence---Statute did not contemplate such a remedy and it was judicially brought into being with purposes sacrosanct and noble, essentially to provide refuge to the innocent and the vulnerable from the rigours of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique---Remedy (of anticipatory bail) oriented in equity could not be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence warranting arrest.

Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 21 ref.

Ghulam Sajjad Gopang, Advocate Supreme Court for Petitioner with Petitioner.

Nemo for the State.

P L D 2020 Supreme Court 295

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

IRFAN ALI SHER---Petitioner

Versus

The STATE---Respondent

Jail Petition No.324 of 2019, decided on 17th April, 2020.

(On appeal against the judgment dated 8.4.2019 passed by the Lahore High Court, Lahore, in Criminal A. No.1493 of 2016).

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

----S. 376---Rape---Re-appraisal of evidence---Delay in lodging FIR---Not significant--- In rape cases victims and/or their families may be reluctant to come forward to promptly report the crime because of the trauma that had been suffered and they may have a perception of shame or dishonour in having the victim invasively examined by a doctor--- Delay in reporting a sexual assault to the police was therefore not very material.

Yasmin Butt v. Majid Baig 2008 SCMR 1602; The State v. Abdul Khaliq PLD 2011 SC 554 and Zahid v. State (Jail Petition No. 712 of 2018) ref.

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

----S. 376---Rape---Re-appraisal of evidence---DNA evidence---Sending semen for DNA forensic determination with a view to link it with the perpetrator was not a requirement of law---In any event when the victim in the present case was medically examined, which was two days after the crime was committed, semen was not detected therefore it could not have been taken and sent for a forensic analysis---Lady doctor who had examined the victim and prepared the Medico Legal Examination Certificate ("MLC") recorded that "Hyperemia present and evidence of fresh bleeding", the victim's "hymen is ruptured and fresh" and that "bleeding present"--- Said lady doctor, confirmed the accuracy of the MLC, was cross-examined and stood by the MLC prepared by her---Jail petition was dismissed and leave was refused.

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

----S. 376---Rape---Re-appraisal of evidence---Clothes of victim not obtained by the investigating officer---Negligence of police---Investigation in the present case was conducted not by a lady police officer but by a policeman, which was inappropriate, and which probably also accounted for the clothes of the victim not being handed over to him by the victim or her mother being shy and/or suffering from shame and/or trauma--- In any event, it was the duty of the investigation officer to obtain the clothes from the victim--- Victim could not be made to suffer further on account of negligence by the investigation officer---In any event the investigation officer's failure to take into possession the clothes of the victim was not a material shortcoming when the crime was otherwise established---Jail petition was dismissed and leave was refused.

Ms. Ayesha Tasnim, Advocate Supreme Court for Petitioner.

M. Sarwar Sidhu, Additional P.G. for the State.

P L D 2020 Supreme Court 299

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

AMJAD ALI KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.74-L of 2018, decided on 13th March, 2020.

(On appeal from the judgment of the Lahore High Court, Lahore dated 30.10.2017, passed in Crl. A. No. 146 of 2016 and W.P. No.33366 of 2016).

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

----S. 32(2)---Vehicle used in transportation of narcotics---Confiscation of such vehicle---Scope---Under S.32(2) of the Control of Narcotic Substances Act, 1997 vehicles, vessels and other conveyances were liable to confiscation if they were used in carrying both narcotics or narcotics along with lawful drugs and substances---Vehicles, vessels and other conveyances were liable to confiscation irrespective whether they were used in carrying narcotics alone or joint category of narcotics and lawful drugs and substance.

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

----Ss. 32(2) & 74, proviso---Criminal Procedure Code (V of 1898), S.516-A---Superdari/custody of vehicle used in transportation of narcotic---Scope---Applicant could seek release of a vehicle on superdari, which had been seized under the Control of Narcotic Substances Act 1997 and was a case property in a criminal case; if the applicant could show that he was the lawful owner of the vehicle; and that he was neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused.

Under the proviso to section 74 of Control of Narcotic Substances Act, 1997 ('the 1997 Act'), the provisions of Cr.P.C to the extent of custody and disposal of a conveyance under general law were not applicable under the 1997 Act. Vehicle used in the commission of an offence under the 1997 Act could not be released or given on custody (superdari) to the accused or any of his associate or relative or any private individual till the conclusion of the case.

Joint reading of sections 32 and 74 of the 1997 Act showed that an applicant could seek release of a vehicle on superdari, which had been seized under the 1997 Act and was a case property in a criminal case; if the applicant could show that he was the lawful owner of the vehicle; that he was neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused. While the prosecution had to show/prove that the applicant knew that the offence was being or was to be committed. It was during trial that the prosecution had to prove that the owner knew that the offence was being or was to be committed. Under section 33 if the vehicle was finally held not liable to confiscation it could be released to its owner. As a corollary, where the court could pass a final order, it could also pass an interim order, therefore, a vehicle could also be released as an interim measure or temporarily on superdari under the 1997 Act after the court was prime facie satisfied regarding the ownership of the applicant and the absence of the association of the owner with the accused and the commission of the offence. Applicant while asserting his ownership of the vehicle must specify in his application for superdari how he was deprived of the vehicle, how and when he found out that his vehicle was missing, and the legal proceedings initiated by him thereafter, if any.

Allah Ditta v. The State 2010 SCMR 1181 and Abdul Salam v. The State 2003 SCMR 246 ref.

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

----S. 32(2)---Criminal Procedure Code (V of 1898), S. 516-A---Motor Vehicles Ordinance (XIX of 1965), S. 2(24)---Superdari of vehicle used in transportation of narcotic---Scope---Ownership of vehicle - Proof - Vehicle on 'open transfer letter' - Applicant must be the owner of the vehicle prior to the commission of the offence---Open transfer letter was not a valid document of title and it did not transfer ownership of a vehicle in terms of the Motor Vehicles Ordinance, 1965---Legal title of a vehicle confiscated under the Control of Narcotic Substances Act, 1997 stood frozen till the conclusion of the trial and as a result the owner stood cautioned not to deal or transact with the title of the vehicle till the conclusion of the trial.

In the present case, the applicant/petitioner moved an application for seeking superdari of the vehicle on 20-11-2015, described himself as the owner of the vehicle, but at the time, he only had an open transfer letter. Open transfer letter was not a valid document of title and it did not transfer ownership of a vehicle in terms of the Motor Vehicles Ordinance, 1965. Subsequently, the vehicle was duly registered in the name of the applicant on 21-01-2016, which was too late as at the time of alleged commission of the offence, the seizure of the vehicle and the registration of the criminal case on 20-08-2015 the applicant was not the owner of the vehicle. Applicant must be the owner of the vehicle prior to the commission of the offence.

On 20-08-2015, when the applicant made application for superdari of the vehicle, he was not the owner of the vehicle and, therefore, did not pass the requirement laid down in proviso to section 32 of the Control of Narcotic Substances Act, 1997 ('the 1997 Act'). Further, the applicant did not assert a word, in the application, to show that he was not an associate or relative of the accused or an individual having any nexus with the accused or the offence. His failure to explain how the vehicle, whose ownership he claimed, had gone into the possession and use of the accused was fatal to his prayer for superdari of the same. As the petitioner had failed to establish his ownership of the vehicle, there was no reason to burden the prosecution to show if the applicant was aware of the commission of the offence. Application made for release of the vehicle by the applicant was, therefore, not maintainable, and was wrongly allowed by the trial court.

Vehicle was registered in the name of the applicant by the Motor Registration Authority under the Motor Vehicles Ordinance, 1965, when the vehicle had already been seized by the police and had become case property in a criminal case, hence becoming liable to confiscation under the 1997 Act. As a result the disposal of the vehicle came under the control of the court and the owner stood cautioned not to deal or transact with the title of the vehicle till the conclusion of the trial. In fact there was a freeze on the legal title of the owner of the vehicle till the conclusion of the trial. The rationale behind this being that any transfer or change in the title of the vehicle (case property) would undermine the safe administration of criminal justice system; as any such transfer (registration of the vehicle in the name of a third party) would amount to interference in the powers of the criminal court and in eroding the sanctity and security of the evidence in an ongoing criminal trial. Therefore, transfer of ownership of the vehicle by the Motor Registration Authority on 21-01-2016 was not permissible and was, therefore, without lawful authority.

Supreme Court directed that the Provincial Government, and Chief Commissioner, ICT should consider amendment(s) in the Motor Vehicles Ordinance, 1965 and the Rules thereunder to prevent registration of vehicles involved in the commission of crime; that in addition, the Provincial Governments and ICT may consider that the Motor Registration Authority and the police develop an online verification system to identify vehicles involved in the commission of crime; that the transferor/transferee at the time of registration of the vehicle may be required to obtain a No Objection Certificate from the police or to submit an Affidavit to the effect that the vehicle was not involved in any criminal case.

(d) Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 27 & 32---Transfer of ownership of vehicle in favour of subsequent transferee---Physical verification of vehicle---Requirement of S.27 of the Motor Vehicles Ordinance, 1965 regarding physical verification of the vehicle prior to registration was an essential requirement and was fully applicable to subsequent registrations of vehicles under S.32 of the Ordinance.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Rana Abdul Majeed, Addl. P.G. for the State.

Wajeeh Ullah Kundi, Secy. Excise Punjab, Suhail Shahzad, D.G. Excise, Punjab, Mian Latif ETO, Mianwali, Bilal Azam, Director Excise ICT and Sharif Gul, ETO, ICT for the State/Respondents.

P L D 2020 Supreme Court 310

Present: Gulzar Ahmed, C.J. and Qazi Muhammad Amin Ahmed, JJ

SADDAM HUSSAIN---Petitioner

Versus

The STATE through A.G. Islamabad and others---Respondents

Criminal Petition No.419 of 2020, decided on 12th May, 2020.

(Against the order dated 13-4-2020 passed by the Islamabad High Court Islamabad in Cr. M.No.225/B of 2020).

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

----S. 156---Police Rules, 1934, Chapt. XXV [Rr.25.1 to 25.58]---Investigation of crime---Crime Investigation handbook---Directions issued by the Supreme Court regarding preparation of a new specialized Handbook for investigation of crimes.

Supreme Court directed that investigation of a crime was a specialized subject in which the investigation officers were required to be fully trained and equipped, and in such regard the Police Training Centre should take services of qualified professionals for imparting professional training to the investigation officers. A Handbook of the Crime Investigation, based upon previous experiences, illustrations, practical applications and case-law developed by the superior Courts of the country should be prepared immediately with knowledge of using of investigation kits and preparing a computerized data of the crime. Such Handbook of Investigation should be immediately prepared but not later than 6 months, and it should be made available to each of the investigation officers, who were responsible for investigating the crime. The Handbook on Investigation shall be updated every year and new experiences shall be added along with latest case-law given by the superior Courts. New investigation tools shall be added in every new edition, to be issued every year on 1st of July. A copy of such investigation handbook shall be provided by the concerned Inspector General of Police ('IG Police'), to the Registrar of the Supreme Court for examination of Judges of the Supreme Court in chambers.

(b) Constitution of Pakistan---

----Arts. 9 & 24(1)---Protection of life and property of citizens---Police officials, duty of---Police officials negligent in their duty or involved in criminal activities---Directions issued by the Supreme Court regarding disciplinary actions that were to be taken against such police officials detailed.

It was the constitutional right of the people that their life and properties were saved and protected by the State and such State functionaries included the police officials.

Supreme Court directed that the concerned I.G. Police, shall take all measures to improve the quality of working of police, overall in general and in the matter of investigation in particular, and he shall also ensure that proper law and order situation prevailed in his jurisdiction, and the life and properties of the people were safeguarded and protected, and the criminals were taken to task in accordance with law. No amount of negligence in such regard should be tolerated and if anybody in police department was found neglecting his duties, he should immediately be dealt with and if found guilty, appropriate penalty be imposed upon him. If any police official was found indulging in criminal activities, the criminal case shall also be registered against him, besides, taking departmental action against such police official.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioner.

Niaz Ullah Niazi, A.G. Islamabad, Amir Zulfiqar, I.G. Police Islamabad, Syed Waqar ud Din, D.I.G. Operations, Kamran Adil, A.I.G. Establishment, Tasadduq Hussainh, Inspector/I.O. and Asjad Mehmood, SHO, P.S.Koral for the State.

Raja Muhammad Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

P L D 2020 Supreme Court 313

Present: Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ

FAROOQ AHMAD---Petitioner

Versus

The STATE---Respondent

Jail Petition No.73 of 2016, decided on 12th May, 2020.

(On appeal from the judgment dated 26-10-2015 passed by the Lahore High Court, Multan Bench, Multan in Crl. A. No.732 of 2010 and M.R.No.139 of 2010).

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

----S. 376(1)---Rape of minor---Reappraisal of evidence---Competency of minor victim to testify---Scope---Victim was a minor girl aged between 8 and 9 years---After the trial commenced the victim testified by which time she was a year older, that is between the age of 9 and 10 years---Before recording her testimony the Judge of the Trial Court had asked the victim a number of questions to establish whether she was competent to testify and had recorded that, she was 'quite mature and has answered the questions above satisfactorily, hence she is declared a competent witness'---Thereafter, the victim testified on oath that she had been raped and she was cross-examined at length by the counsel for accused yet no material contradiction emerged nor did she resile from the accusation she had made against the accused---Victim proved to be a reliable witness---Prosecution had established its case against the accused beyond reasonable doubt---Conviction of accused for rape was maintained.

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

----S. 376(1)---Rape of minor---Reappraisal of evidence---Medical evidence---Victim was physically examined by two lady doctors---First doctor noted that the victim's "Perineum, vulva stained with blood', 'deep penetration had been tried', 'Patient was still bleeding", 'Hymen shows fresh tear at 6'clock"---On the basis of such examination of the victim the doctor had rendered her opinion that the probable duration of injuries was within twelve hours---Vaginal swab for chemical examination was also taken to ascertain the presence of semen---In view of the precarious condition of the victim she was again examined by another female doctor who confirmed the earlier findings recorded by the first lady doctor---Specimen removed from the victim's body and from her shalwar (trouser) was sent for chemical examination and the chemical examiner's report confirmed that the same was semen---Potency test was also performed on the accused and the report confirmed that he was potent and capable of sexual intercourse---Prosecution had established its case against the accused beyond reasonable doubt---Conviction of accused for rape was maintained.

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

----S. 376(1)-Rape of minor---Reappraisal of evidence---Medical evidence---DNA testing and matching---Not a requirement of law---Where rape had been established, it was not necessary to conduct a DNA test to determine that the semen retrieved from the victim's body and shalwar was of the accused---DNA testing was not required under such circumstances---Moreover, DNA testing was not a requirement of law---Supreme Court observed that it was not desirable to impose additional conditions to prove a charge of rape, or of attempted rape, and to do so would be a disservice to victims, which may also have the effect of enabling predators and perpetrators; however, there may be cases where an accused's DNA was retrieved for forensic determination to establish his guilt.

Muhammad Javed v. State 2019 SCMR 1920 and Muhammad Aslam v. State 2006 SCMR 348 distinguised.

Shakeel v. State PLD 2010 SC 47; Haji Ahmad v.State 1975 SCMR 69 and Irfan Ali Sher v. State Jail Petiiton No.324 of 2019 decided on 17th April 2020 ref.

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

----S. 376(1)---Criminal Law (Amendment) (Offences Related to Rape) Act (XLIV of 2016), S. 5---Rape of minor---Reappraisal of evidence---Sentence, quantum of---Amendment enhancing quantum of sentence not to have retrospective effect---When the crime was committed the law i.e. S.376(1), P.P.C prescribed that such sentence, 'shall not be less than ten years or more than twenty-five years', but the High Court had sentenced the accused to 'imprisonment for life', which alternate punishment was subsequently enhanced pursuant to the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016---Had the correct law been applied the High Court may have been persuaded to pass a lesser sentence---Appropriate sentence to be imposed upon the accused under S.376(1) P.P.C., had to be determined before said section was amended---Question as to whether the minimum or maximum prescribed sentence, or any sentence in between, was to be imposed was done after considering the facts of the case, including the age of the accused at the time when he committed the crime---Subsequent conduct of the accused may also be relevant for consideration of the Bench hearing the appeal, therefore, the Superintendent of the Jail, where the accused was detained and serving out his sentence, was directed to submit a report within fifteen days with regard to the accused's conduct and the reasons for him having earned the stated remissions---Leave to appeal was granted accordingly.

Muhammad Rizwan Ibrahim Satti, Advocate Supreme Court for Petitioner.

Ahmad Raza Gillani, Additional P.G. Punjab for the State.

P L D 2020 Supreme Court 320

Present: Mqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

FEDERATION OF PAKISTAN through Chairman FBR and others---Appellants

Versus

SALEEM RAZA---Respondent

Civil Apeal No.570 of 2011, decided on 4th February, 2020.

(On appeal against the judgment dated 27-9-2010 of the High Court of Sindh at Karachi passed in C.P. No.D-2486 of 2010).

(a) Interpretation of statutes---

----Fiscal statute---Judicial deference, doctrine of---Scope---Courts were to presume constitutionality of a law enacted by the legislature---Where two diverse views were reasonably possible the one leaning in favour of its constitutionality was to be adopted and applied to save the enactment---More so, when a challenge was made to strike down a provision of a fiscal statute, discretion was to be sparingly exercised by a constitutional Court, and that too when there was glaringly blatant ground for the same---Under the doctrine of judicial deference, developed in common law jurisdictions, constitutional courts should endeavour to preserve fiscal enactments passed by the competent legislature, respecting and recognizing economic policy of the executive---Only when all efforts failed to save the fiscal statute, were the Courts to declare it unconstitutional.

Sui Southern v. Federation of Pakistan 2018 SCMR 802; Elahi Cotton Mills's case PLD 1997 SC 582; East India Tobacco's case AIR 1962 SC 1733; R.K. Carg's case (1981) 4 SCC 675; P. Laxmi Devi's case (2008) 4 SCC 720 and Morey v. Daud 354 US 457 ref.

(b) Customs Act (IV of 1969)---

----S. 79(1), proviso---Constitution of Pakistan Art. 25---Declaration and assessment for home consumption or warehousing---Option for importer of goods to request customs official to permit the examination of the imported goods for correct and complete declaration, assessment and payment of due duties, taxes and other charges---Vide amendment to proviso to S.79(1) of the Customs Act, 1969 such option was limited to importer of used goods only---High Court declared the said amendment as discriminatory under the touchstone of Art.25 of the Constitution---Held, that in the present case the aim of restricting the option to importers of used goods, as compared to other goods, was manifest from the amendment itself---Public policy of ensuring accurate declaration of imported goods for ease of assessment and payment of duties and taxes had always been the paramount theme envisaged in the Customs Act. 1969---However, given the adverse penal consequences for an inaccurate declaration made by an importer, it appeared that the legislature deemed it appropriate to provide a safeguard to the importers of used goods, who often imported in lots, without clear information as to the age and previous use of such goods---Thus making an accurate declaration regarding the same under S.79 of the Act was rather difficult, if not possible---In such circumstances, providing the importer of used goods an option to seek pre-declaration examination of the imported goods to file an accurate declaration for a correct assessment and payment of duties and taxes, appeared to be a valid object to classify separately "used goods" compared to other goods---Such intangible differentia between the two types of goods was not only evident but also reasonable, and that too in the furtherance of the main object of the Act---Appeal was allowed and impugned judgment of High Court was set-aside.

(c) Customs Act (IV of 1969)---

----S. 79(1), proviso---Constitution of Pakistan, Arts. 25, 184(3) & 199 & Pt. II, Chapt. [Arts. 8 to 28]---Fiscal statutes, amendments in---Reasons for amendment---Plea that amendment was made to proviso to S.79(1) of the Customs Act, 1969 without mentioning of reasons for such amendment in the budget instructions issued by the Board of Revenue---Held, that such plea could not be a valid ground for striking down the amendment---Neither the legislature nor the executive was to render separate reasons for introducing amendments in fiscal statutes---As such it was courts that had to appreciate the enactment under challenge and to see whether the same offended the fundamental rights enshrined in the Constitution for the same to be struck down as unconstitutional.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants.

Respondents: Ex parte.

P L D 2020 Supreme Court 324

Present: Mushir Alam and Maqbool Baqar, JJ

JUBILEE GENERAL INSURANCE CO. LTD., KARACHI---Petitioner

Versus

RAVI STEEL COMPANY, LAHORE---Respondent

Civil Petition No.1965 of 2019, decided on 9th October, 2019.

(On appeal from the judgment dated passed on 3-5-2019 by the Lahore High Court Lahore in C.R. No.1339 of 2017).

(a) Insurance Ordinance (XXXIX of 2000)---

----Ss. 75, 76 & 77---"Utmost good faith", principle of---Scope---Insurer not to engage in misleading or deceptive conduct---Construction of ambiguities in favour of policy holder---Common law principle of "utmost good faith" had received statutory recognition, under S.75 of the Insurance Ordinance 2000 ('the Ordinance'); it meant that every person who entered into a contract (of insurance) had a legal obligation to act with utmost good faith towards each other and parties (to insurance) contract were required to deal with each other in an honest and upright manner, disclosing all material facts to each other and not to take unfair advantage over another person or to fulfil a promise to act even when some legal technicality was not fulfilled (section 76)---Additionally, insurer was obligated not to engage in a misleading or deceptive conduct that may put the insured or beneficiary of insurance policy into a disadvantageous position (section 76)---Even ambiguities in insurance policies were construed in favour of the insured (section 77).

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

----S. 11 & O.VI, R. 4, & O.VIII, R. 2---Pleadings and written statement---Particulars to be given where necessary---New facts to be specifically pleaded in written statement---Res judicata, doctrine of---Scope---Both the plaintiff and defendant had to plead all facts that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim on merits as well raising specific defence denouncing claim on the assertions of fraud, limitation, release, payment, performance or facts showing illegality---Failure to raise such plea at the first opportunity (either in plaint or written statement) may be successfully defeated on doctrine of constructive res-judicata, in subsequent proceedings.

Cumulative effect of Order VI, Rule 4, C.P.C. read with Order VIII, Rule 2, C.P.C. and other enabling provisions, by same stroke required that the defendant must raise in written statement and specifically and particularly plead all matters, which showed that the suit was not maintainable or that the transaction was either void or voidable in point in law, and all such grounds of defence, if not raised, would be likely to take opposite party by surprise or would raise issues of facts not arising out of the plaint as for instance fraud, limitation, release, payment, performance or facts showing illegality (Order VIII, Rule 2, C.P.C.), plea of misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary (Order VI, R. 4, C.P.C.). These rules of prudence required both the plaintiff and defendant to plead all facts that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim on merits as well raising specific defence denouncing claim on the assertions of fraud, limitation, release, payment, performance or facts showing illegality. Unless such particulars were specifically pleaded in the plaint or in written statement as a defence other party may it be plaintiff or defendant would have no opportunity to controvert the same, as neither the issue could be framed nor evidence could ordinarily be allowed to be raised or led at trial or attended in further appeals or revisions as the case may be. Failure to raise such plea at the first opportunity (either in plaint or written statement as the case may be) to assert any right or claim any relief where such rights and relief was founded on such assertion or raising such plea as a defence to contest and or controvert any such claim may well amount and be successfully defeated on doctrine of constructive res-judicata, in subsequent proceedings (Explanation IV to section 11 C.P.C.)

Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC 870 ref.

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

----Art. 114---Insurance Ordinance (XXXIX of 2000), S. 118---Limitation Act (IX of 1908), S. 3---Insurance claim---'Equitable estoppel', doctrine of---Scope---Doctrine of "equitable estoppel" having received statutory recognition under Art.114 of the Qanun-e-Shahadat, 1984 was gainfully applied in insurance matter where the insurer used the tool of surveyor, assessors and or investigators to investigate into claim of loss and assessment of damages and induced the insured to believe that the claim would be paid and or settled once the survey, assessment or investigation into loss or damages was completed in due course and then belatedly, refuted the claim putting the insured at disadvantage to bring the claim within limitation---In all fairness, in such circumstances the insurer may be equitably estopped from raising plea of limitation as a defence to the insurance claim in a court of law.

Irwin v. Department of Veteran's Affairs [498 US 89,96 (1990); Spray, Gould and Bowers v. Associated Int'l Ins. Co., [71 Cal. App.4th 1260, 1268 (1999); Hydro-Mill Co. Inc. v. Hayward Tilton and Rolapp Ins. Assioc., Inc. [115 Cal. App. 4th 1145, 1165-66 (2004) and National Insurance Co. Ltd. v. Hindustan Safety Glass Works Ltd. [2017] 5 SCC 776 paragraphs 17 and 18 ref.

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

----S. 11---Multiple remedies/fora available to claimant---Constructive Res judicata, doctrine of---Scope---Where multiple remedies were available against any order, judgement and or decision then it was the prerogative of the suitor to elect and pursue one out of the several hierarchy or channel of remedies---Suiter having availed and exhausted one of the several hierarchy or channel of remedy, doctrine of constructive res-judicata, debared him to adopt one after another hierarchy, course or channel of remedies.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 ref.

Hamid Khan, Senior, Advocate Supreme Court along with Barrister Rana Tariq, Legal Advisor for Petitioner.

Zaheer-ud-Din Babar, Advocate Supreme Court for Respondent.

P L D 2020 Supreme Court 334

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

MUHAMMAD BASHIR---Petitioner

Versus

RUKHSAR and others---Respondents

Criminal Petition No.1246 of 2019, decided on 16th April, 2020.

(On appeal against the judgment dated 22-11-2019 passed by the Peshawar High Court, Peshawar, in Cr. Revision No.213-P of 2019).

(a) Constitution of Pakistan---

----Art.10-A---"Right to fair trial"---Scope and essential ingredients---Constitution mandated a "fair trial and due process"---Person arrested for an offence must be informed of the grounds of his arrest; must be permitted to consult with and be defended by a lawyer; must be provided with the information of the offence he was charged for; must be provided with an opportunity to cross-examine witnesses who deposed against him; must be given an opportunity to explain the circumstances disclosed in evidence against him; and must also be provided an apportunity to produce evidence in his defence---Said ingredients were necessary to ensure the fairness of a trial.

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

----Arts. 132(2) & 133(1)---Constitution of Pakistan, Art.10-A---Right of cross-examination---Scope---Right to cross-examine was the right of the adverse party which right he/she may forego but one which he/she could not be deprived of---Criminal trial of an accused must be coducted with utmost fairness---Fundamental right of fair trial which the Constitution guaranteed was violated if any accused was deprived of the opportunity to cross-examine a witness deposing against him.

Noor Ahmed v. State PLD 1964 SC 120 ref.

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

----Arts. 132(2) & 133(1)---Joint cross-examination of a witness by counsel representing more than one accused---Legality---Conscept of joint cross-examination was one which was not recognized by the law---Courts and counsel should not resort to methodologies which were not sanctioned by the law as in doing so they may inadvertently create unnecessary complications and may undermine the prosecution case and benefit the accused---Supreme Court stated that in cases where there were more than one accused, the presiding officer while recording the cross-examiantion of a witness should mention the name of the accused and/or his lawyer who was cross-examining the witness.

M. Amin Khattak Lachi, Advocate Supreme Court and Muhammad Ajmal Khan for Petitioner.

Advocate-on-Record (Absent)

Aatif Ali Khan, Addl. A.G. and Yousaf S.I. for the State.

P L D 2020 Supreme Court 338

Present: Ijaz ul Ahsan and Amin ud Din Khan, JJ

MUHAMMAD YAQOOB---Appellant

Versus

Mst. SARDARAN BIBI and others---Respondents

Civil Appeal No.68-L of 2018, decided on 13th May, 2020.

(Against judgment dated 18-04-2018 of Lahore High Court, Lahore, passed in Civil Revision No.3833 of 2012).

(a) Mutation---

----Oral sale mutation---Proof---Fraud and misrepresentation---Illiterate ladies deprived of their property by their brother---Written statement filed by the defendant-brother was completely silent with regard to essential details of the oral sale transaction---Further, there was no mention of the value at which the land was allegedly purchased by the defendant---Plaintiffs were illiterate village ladies, who were unaware of the technicalities and worldly affairs---Defendant, real brother of the plaintiffs, was in position of a fiduciary on whose advice they were relying---Confidence and reliance of plaintiffs was betrayed by the defendant, who admitted in his cross-examination that neither the children nor husband of any of his sisters was present when the impugned mutation was sanctioned---Such fact casted serious doubts about the validity of transaction and the sort of advice (if any) that the ladies received and their understanding of what was being transacted---Person who attested the mutation being one of its marginal witnesses expressed his ignorance about whether the sale consideration was paid before the attesting officer or at home---Said witness conceded that it was not paid in his presence and also conceded that possession was not delivered to the defendant in lieu of the transaction rather he was exclusively enjoying possession of the property in question from the day of death of father of the parties---Most material witnesses namely the Revenue Officer and Halqa Patwari,who entered and attested the impugned mutation, were withheld and no effort was made to produce them in Court---Defendant failed to prove the sale which constituted basis of the mutation or even the mutation itself---Appeal by defendant was dismissed.

(b) Pleadings---

----Party was not allowed to improve its case beyond what was originally setup in the pleadings.

(c) Mutation---

----Oral sale mutation---Proof---Illiterate ladies deprived of their property by their brother---Thumb impressions procured through misrepresentation---Plaintiffs were illiterate village ladies and it was their case that their brother i.e. the defendant had procured their thumb impressions to allegedly obtain a loan for purchase of a tractor, and the same impressions were then used for purposes of the impugned mutation---In such circumstances thumb impressions would not ipso facto prove that they had knowingly and voluntarily put their thumb impressions on the documents pursuant to sale of property in favour of the defendant---Further there was nothing on record to show that the ladies had any independent advice available to them at any stage---Defendant failed to prove the sale which constituted basis of the impugned mutation or even the mutation itself---Appeal filed by defendant was dismissed.

(d) Parda-nasheen lady---

----Illiterate village women---Transaction involving property---Illiterate village women were to be treated at par with Parda-Nasheen ladies and where a transaction involved anything against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood the same.

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

----S. 54---Sale of immoveable property---Pre-requisites---In order to enforce a sale of immovable property it was imperative for the vendee to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus ad idem; that it was settled against valid consideration and that it was accompanied by delivery of possession.

(f) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation, attestation of---Sale---Proof---Mere attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the documents if executed for its acknowledgment.

(g) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation entries in Record of Rights---Scope---Mutation was always sanctioned through summary proceedings and to keep the record updated and for collection of revenue such entries were made in the relevant Register under S.42 of the Punjab Land Revenue Act, 1967; it had no presumption of correctness prior to its incorporation in the record of rights---Entries in mutation were admissible in evidence but the same were required to be proved independently by the persons relying upon it through affirmative evidence---Oral transaction reflected therein did not necessarily establish title in favour of the beneficiary---Mutation could not by itself be considered a document of title, and may have been attested as an acknowledgment of a past transaction.

(h) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Entries in revenue record---Fresh cause of action---Scope---Each entry in the revenue record gave a fresh cause of action to an aggrieved person and adverse entries in the revenue record even if allowed to remain unchallenged did not have the effect of extinguishing the rights of a party against whom such entries had been made.

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

----S. 3---Limitation period, expiry of---Fraud or misrepresentation---Any transaction/document which was the result of fraud or misrepresentation could neither be perpetuated nor could it be protected on the ground of expiry of the period of limitation, whenever such transaction was assailed in a Court of law.

Sh. Naveed Shehryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Appellant.

Faisal Zafar, Advocate Supreme Court and Aftab Mustafa, Advocate Supreme Court for Respondents.

P L D 2020 Supreme Court 346

Present: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, Faisal Arab, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

(Mr.) Justice QAZI FAEZ ISA and 14 others---Petitioners

Versus

The PRESIDENT OF PAKISTAN and others---Respondents

Constitution Petitions Nos.17 and 19 of 2019 and C.M.A. No.7417 of 2019 in Constitution Petition No.19 of 2019 and Constitution Petitions Nos. 20-30, 32 and 34 of 2019.

(a) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Quashment of reference---Supreme Court unanimously declared that the reference was of no legal effect whatsoever and stood quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council ("Council") against the petitioner-judge, including the show-cause notice issued to him, stood abated---Constitutional petitions were disposed of.

Per Umar Ata Bandial; Manzoor Ahmad Malik, Faisal Arab, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ agreeing; Maqbool Baqar, Syed Mansoor Ali Shah and Yahya Afridi, JJ not joining the majority as to the directions given to Commissioner, Inland Revenue and Federal Board of Revenue.

(b) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court quashed the reference and declared that the same was of no legal effect whatsoever, and in consequence thereof the proceedings pending in the Supreme Judicial Council ("Council") against the petitioner-judge, including the show-cause notice issued to him, stood abated---Supreme Court (with a majority of 7 to 3) gave directions to the Commissioner, Inland Revenue and Federal Board of Revenue to inquire into and seek explanation from the spouse and children of the petitioner as to the nature and source of the funds whereby the three subject properties in a foreign country were acquired in their names. [Majority view]

Supreme Court unanimously quashed the reference against the petitioner-judge pending before the Supreme Judicial Council and issued the following directions [with a majority of 7 to 3 (Maqbool Baqar, Mansoor Ali Shah and Yahya Afridi, JJ not joining the majority as to the directions below)]: [Majority view]

(i) Within 7 days of present order, the concerned Commissioner of Inland Revenue shall himself (and not some other officer exercising delegated powers) issue appropriate notices under the Income Tax Ordinance, 2001 ("2001 Ordinance") to the spouse and children of the petitioner to offer an explanation regarding the nature and source of the funds (separately for each property) whereby the three properties in a foreign country that were in the names of the spouse and the children were acquired. For purposes of present order the Commissioner Inland Revenue having jurisdiction over the spouse of the petitioner (who must be a Commissioner exercising jurisdiction and performing functions at Islamabad) shall be deemed also to be the Commissioner having jurisdiction over the children. Any notices issued or proceedings taken (or proposed to be issued or taken) under the 2001 Ordinance in relation to the spouse and/or children of the petitioner ('the respondents) in respect, or on account, of the subject foreign properties prior to the date of present Order stood terminated forthwith.

(ii) The notices shall be served at the official residence of the petitioner at Islamabad through courier service and such other means as may be considered appropriate and shall be deemed served on the respondents when received at the said address.

(iii) The respondents shall furnish their replies to the notices along with such material and record as was deemed appropriate. In case any of them was outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non-availability in Pakistan of such person.

(iv) Upon receipt of the replies (and of such additional material/record as may be filed in response to such clarification or explanation, if any, as the Commissioner may, in writing, have sought), the Commissioner shall give an opportunity of hearing to the respondents in person or through an authorized representative/counsel and shall thereupon make an order in accordance with the 2001 Ordinance.

(v) The proceedings shall be concluded before the Commissioner within 60 days of the date of receipt of the notices, and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given as affects or extends the aforesaid periods.

(vi) Within 7 days of the issuance of the order by the Commissioner, the Chairman, Federal Board of Revenue ("FBR") shall submit a report (to be personally signed by him) to the Supreme Judicial Council ('the Council') through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings, appending thereto the entire record of the said proceedings. The Secretary shall forthwith place such report before the Chairman of the Council (i.e., the Chief Justice of Pakistan) who shall, in such manner as was deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the petitioner as the Council may determine. The receipt of the report, the laying of it before the Council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo motu jurisdiction as was conferred by said Article on the Council.

(vii) If, within 100 days from the date of present order, no report was received by the Secretary from the Chairman, FBR, he shall inform the Chairman of the Council accordingly and shall, if so directed by him, write to the Chairman, FBR requiring an explanation as to why the report had not been received. If in reply the report was filed, then the matter shall proceed in terms of the direction in the preceding paragraph (vi). If a reply was received without the report or no reply was received, then the Secretary shall bring such fact to the attention of the Chairman of the Council who may direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the petitioner (or any other person as deemed appropriate) as the Council may determine. The action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo motu jurisdiction as was conferred by that Article on the Council. Without prejudice to the foregoing, if at any stage the report was received from the Chairman, FBR, then the matter shall in any case proceed (or be deemed to proceed, as the case may be) in terms of the preceding paragraph (vi).

(viii) For the removal of any doubts, any of the proceedings under the 2001 Ordinance as herein contemplated on the one hand, and before the Council in terms of preceding paragraphs (vi) and (vii) on the other, were distinct and separate from each other. Accordingly, nothing contained in present Order shall affect or prejudice the right(s) of appeal of any of the respondents under the 2001 Ordinance, if they felt aggrieved by the order made by the Commissioner or (as the case may be) any order made or decision taken at any appellate stage. Any such appeal(s) shall be decided on the merits, in accordance with the 2001 Ordinance. At the same time, the consideration by the Council of any matter placed before it under either preceding para (vi) or (vii) shall not be affected by the filing or pendency of any appeal. But the Council may, if it deemed appropriate, notice such appellate proceedings or orders/decisions and may (for purposes only of the matter before it) make such orders or give such directions in relation thereto as it deemed appropriate.

Per Maqbool Baqar, Syed Mansoor Ali Shah and Yahya Afridi, JJ

(c) Constitution of Pakistan---

----Arts. 4, 184(3) & 209(5)(b)---Reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court quashed the reference and declared that the same was of no legal effect whatsoever, and observed that in constitutional democracy, neither the petitioner-judge, nor any other judge, or any individual or any institution, was above the law; that the doors of the Supreme Judicial Council ('the Council') were always open, either on its own motion or for anyone who had a genuine and a bona fide grievance, amenable to the jurisdiction of the Council against a judge of the Constitutional Court; that a judge like any other citizen enjoyed the inalienable constitutional right to be treated in accordance with law; that said fundamental values were to be protected at all cost in order to uphold the majesty and supremacy of the Constitution and to honour the people who had adopted and given to themselves the Constitution.

Const. P. No.17 of 2019

Munir A. Malik, Senior Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Ch. Atif Rafiq, Advocate Supreme Court, assisted by Barrister Kabir Hashmi and Syed Kazim Hassan, Advocate Supreme Court (through video link from Karachi) for Petitioners.

Const. P. No.19 of 2019

Hamid Khan, Senior Advocate Supreme Court

assisted by:

Naseebullah Tareen, Advocate Supreme Court, Munir Kakar, Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate, Syed Qalib-e-Hassan, Advocate Supreme Court Amanullah Kanarani, Advocate Supreme Court and Rasheed A. Rizvi, Senior Advocate Supreme Court (through video link from Karachi) for Petitioners.

Const. P. No.20 of 2019

Nemo for the Petitioner.

Const. P. No.21 of 2019

Sardar Muhammad Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate on Record for Petitioner(s).

Const. P. No.22 of 2019

Naseebullah Tareen, Advocate Supreme Court for Petitioner(s).

Const. P. No.23 of 2019

Hamid Khan, Senior Advocate Supreme Court assisted by:

Naseebullah Tareen, Advocate Supreme Court, Munir Kakar, Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate and Sh. Ahsan ud Din, Advocate Supreme Court for Petitioner(s).

Const. P. No.24 of 2019

Rashid A. Rizvi, Senior Advocate Supreme Court (through video link from Karachi) and Qasim Mir Jat, Advocate-on-Record for Petitioners(s).

Const. P. No.25 of 2019

Hamid Khan, Senior Advocate Supreme Court assisted by:

Naseebullah Tareen, Advocate Supreme Court, Munir Kakar, Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate and Rashid A. Rizvi, Senior Advocate Supreme Court (through video link from Karachi) for Petitioner(s).

Const. P. No.26 of 2019

Mian Raza Rabbani, Senior Advocate Supreme Court, Saalim Salim Ansari, Advocate Supreme Court (through video link from Karachi) assisted by: Zeeshan Abdullah, Advocate for Petitioner(s).

Const. P. No.27 of 2019

Taufiq Asif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate on Record for Petitioner(s).

Const. P. No.28 of 2019

Rashid A. Rizvi, Senior Advocate Supreme Court (through video link from Karachi) for Petitioner(s).

Const. P. No.29 of 2019

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, assisted by: Barrister Saad M. Buttar and Barrister Jibran Gillani for Petitioner(s).

Const. P. No.30 of 2019

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, assisted by: Barrister Saad M. Buttar and Barrister Jibran Gillani for Petitioner(s).

Const. P. No.32 of 2019

Hamid Khan, Senior Advocate Supreme Court assisted by: Naseebullah Tareen, Advocate Supreme Court, Munir Kakar, Advocate Supreme Court and Ajmal Ghaffar Toor, Advocate for Petitioner(s).

Const. P. No.34 of 2019

Rashid A. Rizvi, Senior Advocate Supreme Court (through video link from Karachi) for Petitioner(s).

Dr. Farogh Naseem, Senior Advocate Supreme Court along with Ch. Ishtiaq Ahmed Khan, Addl. A.G. Sajeel Sheryar Swati, Advocate Supreme Court assisted by: Barrister Maleeka Ali Bukhari, Ch. Hassan Murtza Mann, Advocate and Shahid Naseem Gondal, Advocate for Respondents Nos. 2 and 8).

Sohail Mehmood, D.A.G. for Respondent No.1.

Aamir Rehman, Addl. A.G. for Respondent No.3.

Irfan Qadir, Advocate Supreme Court (through video link from Lahore) for Respondent No.4.

Dr. Khalid Ranjha, Advocate Supreme Court along with Sajeel Sheryar Sawati, Advocate Supreme Court for Respondent No.9.

Khawaja Daud Ahmad, Secretary SJC for Supreme Judicial Council.

P L D 2020 Supreme Court 356

Present: Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

SALEEM KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.251-L of 2020, decided on 20th May, 2020.

Against the order of the Lahore High Court, Lahore dated 24.2.2020 passed in Crl. Misc. No.8158-B of 2020).

(a) Juvenile Justice System Act (XXII of 2018) ---

----Ss. 4(7) & 8---Determination of age by police or court---Scope---Police were to determine the juvenility of the accused and thereafter the case was put up before the Juvenile Court for trial---Determination of age of an accused who appeared or claimed to be a juvenile was, therefore, initially the statutory responsibility of the police---In the absence of any inquiry by the police the determination of age and juvenility of the accused could be determined by the court having taken cognizance of the matter.

(b) Juvenile Justice System Act (XXII of 2018) ---

----Ss. 6(5) & 8---Penal Code (XLV of 1860), Ss. 302 & 394---Qatl-i-amd, voluntarily causing hurt in committing robbery---Release of juvenile on bail---Statutory delay in conclusion of trial---Whether any time spent by court in determining age of accused could be treated as delay caused by accused---Held, that in the present case, the police had not carried out any exercise of determining age of accused and therefore the court on the application of the juvenile-accused issued the required declaration of juvenility---Determination of age by the court was also a statutory obligation, hence the time spent in obtaining the said finding or declaration by the court could not possibly be termed as delay caused in the trial by the accused, so as to deprive him of his right to bail on the ground of statutory delay---Any such determination of age by the court was a statutory requirement and formed part of the trial---Accused being a juvenile offender was entitled to bail on statutory ground, which was granted to him accordingly. [p.361] D & E

Mian Abdul Quddous, Advocate Supreme Court for Petitioner.

Mian Liaqat Ali Malik, Advocate Supreme Court for Respondent No.2.

M. Amjad Rafiq, Addl. PG along with Gulzar Ahmad, SI. for the State.

P L D 2020 Supreme Court 362

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

HIDAYAT ULLAH---Petitioner

Versus

MOHAMMAD YOUNAS and others---Respondents

Civil Petition No. 4635 of 2018, decided on 17th March, 2020.

(On appeal from the judgment/order dated 14.11.2018 of the Peshawar High Court, Peshawar passed in W.P. No. 2688-P of 2018)

Frontier Crimes Regulations (III of 1901)---

----S. 8---Constitution of Pakistan, Art. 247(7) [since repealed]---Former Tribal area---Dispute between tribes over payment of Sersaya---Ouster of jurisdiction of the High Court---Scope---Payment of Sersaya by a coal company stopped to a specific tribe whose members were accused of having committed a murder---Assistant Political Agent referred the matter to the Council of Elders, who affirmed the entitlement of the tribe to the claim payment of Sersaya---Assistant Political Agent passed decree based on recommendations of the Council of Elders---On appeal the Commissioner noted that the murder had taken place in a settled area in respect of which trial before the competent Court was underway and, therefore, there was no need for further trial simultaneously before the Assistant Political Agent, and that consequently the obligation of the coal company to pay Sersaya was intact and enforceable---Appeal and revision filed by the Coal Company before the FATA Appellate Tribunal were also dismissed---High Court in its constitutional jurisdiction set aside all the judgments of the FCR fora below---Constitutionality---Ouster of jurisdiction of the High Court under Art. 199 of the Constitution was specific for the reason that cause of action for the civil relief of such Sersaya as well as the residence of the parties and the locus of the corpus of the dispute, namely, the coal mines were located within a tribal area---Consequently, the High Court had no jurisdiction to entertain the writ petition---Such aspect of the case had not been considered by the impugned judgment at all---Besides the writ petition before the High Court in fact made no specific grievance regarding Sersaya and only generally sought to avoid the same through the prayer clause---Petition for leave to appeal was converted into appeal and allowed, and the impugned judgment of the High Court was set aside.

Dr. Babar Awan, Senior Advocate Supreme Court for Petitioner.

Syed Ishtiaq Haider, Advocate Supreme Court for Respondents Nos. 1-4.

Shumail Butt, AG, Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.

Aamir Rehman, Additional AG for the Federation.

P L D 2020 Supreme Court 366

Present: Faisal Arab, Sajjad Ali Shah and Munib Akhtar, JJ

RAHAT AND COMPANY through Syed Naveed Hussain Shah---Appellant

Versus

TRADING CORPORATION OF PAKISTAN STATUTORY CORPORATION, FINANCE AND TRADE CENTRE through Secretary or Chief Executive Officer---Respondent

Civil Appeal No.91-K of 2017, decided on 8th August, 2019.

(On appeal from the order dated 6-11-2017 passed by the High Court of Sindh, Karachi in High Court Appeal No.137 of 2017).

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

----O.XXIX, R.1---Suit filed by a company/corporation---Competency---Authorization by Board of Directors---Principles---'Rule of indoor management'---Scope---Principles relating to authorization for filing suit laid down in the judgments reported as Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 and Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 were the correct law and were approved by the Supreme Court accordingly, whereas the view taken in the judgment reported as Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62 was disapproved and declared as not good law, which ought not to be followed or applied.

According to the 'rule of indoor management' persons dealing with a company were bound to read the public documents of a company, i.e. its Memorandum and Articles of Association, and to satisfy themselves that the transaction entered into or proposed to be entered into was not inconsistent therewith, but they were not bound to do more, nor were they required to enquire into the regularity of the internal proceedings or what had been called 'the indoor management of the company', for, they were entitled to assume that all other things had been done regularly.

Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari (Turkish Airlines Inc) 2015 CLC 1 ref.

The principles relating to authorization for filing suit laid down in the judgment reported as Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 ("Australasia Bank"), could be regarded as the general rule, applicable where the defendant in the suit (or other legal proceedings) was a third party, to whom or in relation to whom the rule of indoor management would apply. Where the rule of indoor management applied, even production of the board resolution itself was, strictly speaking, not necessary. All that was required was to see whether, as a matter of form, the Articles of Association had been complied with, and that was all, for which purpose it was only an examination of the Articles that was required. Once it was proved that the power of attorney had been executed and the relevant articles under which the Directors could delegate their respective powers to institute and prosecute suits on their behalf had been proved, it was not necessary to prove the resolution by which the directors had resolved to grant such a power of attorney to the attorney.

Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari (Turkish Airlines Inc) 2015 CLC 1; Central Bank of India Ltd. v. Taj ud Din Abdur Rauf and others 1992 SCMR 846; Telecard Ltd. v. Pakistan Telecommunication Authority 2014 CLD 415 and Al-Noor Sugar Mills Ltd. v. Federation of Pakistan and others 2018 SCMR 1792 ref.

Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 approved.

Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62 disapproved and regarded as not good law

Whereas the principles relating to authorization for filing suit laid down in the judgment reported as Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 ("Khan of Mamdot") could be regarded as a special rule, which applied when the defendant was, for one reason or another, an "insider" (as it were). There, it may be necessary (but this depended on the factual situation) to actually examine and consider whether, in fact or in law, the Board resolution was passed or not and if so, in what manner, e.g., at a properly convened Board meeting. But even this clearly had a factual element. It was only once the facts had been ascertained that the legal consequences that followed could be determined and applied.

Pak Turk Enterprises (Pvt.) Ltd. v. Rturk Hava Yollari (Tarkish Aiurlines Inc.) 2015 CLC 1 ref.

Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 approved.

Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62 disapproved and regarded as not good law.

Principles relating to authorization for filing suit laid down in the judgments reported as Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 and Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 were the correct law and were approved by the Supreme Court accordingly. Whereas the view taken in the judgment reported as Abdul Rahim and others v. United Bank Ltd. PLD 1997 Kar. 62 was disapproved and declared as not good law, which ought not to be followed or applied. Supreme Court further held that anything contained in other judgments of the High Courts, that was inconsistent with what had been held and approved in present judgment must also yield to present judgment, and to that extent must be regarded as disapproved and not good law.

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

----O. XIV, R. 5 & O. XXIX, R. 1---Suit filed by a company/ corporation---Competency---Authorization by Board of Directors---Principles---Additional issue, framing of---Defendant filing an application before the court for framing an additional issue regarding whether the suit filed by company/corporation had been competently filed without authorization by its Board of Directors---Held, that if any objection or application of such nature was filed at any stage (i.e., whether in a written statement at the trial stage or in parawise comments or reply filed at the appellate or other similar stage), the court should refrain from straightaway framing an issue or recording an objection in such regard---Experience showed that such objections were, more often than not, frivolous and an abuse of the process of the court, intended only to delay, derail or frustrate consideration of the dispute on the merits---Court should, if at all it considered it necessary, require the Articles of Association to be produced---If an examination of the same, and an application of the doctrine of indoor management as explicated in the judgment reported as Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 satisfied the Court that the suit/appeal etc. had been properly instituted then any objection taken in such regard should be regarded as concluded in favour of the company/corporation---Only if, after such examination and consideration, the court was of the view, for reasons to be recorded, that the matter still remained unresolved that an issue should at all be framed (or the objection otherwise entertained for further consideration at the appellate etc. stage) and evidence led or the record summoned (as the case may be) and the parties heard accordingly.

Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari (Turkish Airlines Inc.) 2015 CLC 1 and Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685 ref.

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

----O. XI, R.14 & O. XXIX, R.1---Suit filed by a company/corporation without competent authority (i.e., of a proper Board resolution)---Ratification of suit---Scope---Since the matter of ratification of an incompetently filed suit did not arise in the present case, therefore, only a tentative view could be expressed on the matter, which was that any such defect could be cured by subsequent ratification.

Presentaciones Musicales SA v. Secunda and another [1994] 2 All ER 737 and United Bank of India v. Naresh Kumar and others AIR 1997 SC 3 ref.

Amir Raza Naqvi, Advocate Supreme Court for Appellant.

Sarfraz Ali Metlo, Advocate Supreme Court and Dr. Raana Khan, Advocate-on-Record for Respondent.

P L D 2020 Supreme Court 386

Present: Umar Ata Bandial, Faisal Arab and Qazi Muhammad Amin Ahmed, JJ

CHAKLALA CANTONMENT BOARD, RAWALPINDI through Executive Officer---Appellants

Versus

AHMAD KAMAL NASIR and others---Respondents

Civil Appeals Nos.136 of 2011, 504 to 506 of 2013 and 28 of 2014, decided on 12th March, 2020.

(Against the judgments dated 30-11-2010, 29-01-2013 and 12.09.2013 of the Lahore High Court, Rawalpindi Bench, Rawalpindi and Peshawar High Court, Abbottabad Bench, Abbottabad passed in W.Ps. Nos.1525/2009, 275/2009, 610/2008, 544/2008 and 163-A/2008).

Cantonments Act (II of 1924) ---

----S. 60---Stamp Act (II of 1899), S. 27-A---Sale of immoveable property located in Cantonment Board---Transfer of immoveable property tax ('TIP Tax'), assessment of---Whether for purposes of 'TIP Tax', the Cantonment Board had authority to determine value of property, without recourse to valuation tables notified by District Collector---Held, that S.60 of the Cantonments Act, 1924 did not provide any authorization allowing Cantonment Board to unilaterally determine the value of the immovable property that was transacted by a sale deed---For such purpose an authorization in terms similar to S.27-A of the Stamp Act, 1899 would be necessary because desired determination involved placing a financial burden on an assessee and affected the quantum of the tax chargeable from him---Cantonment Boards were unable to show the legal mechanism providing the procedure, basis and criteria on which the Cantonment Boards purportedly fixed the market value of the property under sale for the purpose of assessing TIP Tax---Process of valuation of immoveable property undertaken by the Cantonment Board was dependent upon its whim or surmise---More importantly, the Cantonment Board purported to charge TIP Tax on the basis of a value fixed higher than the value of the immovable property under sale that was fixed by the respective District Collectors for the collection of provincial stamp duty, registration fee and Federal Capital Value Tax---Supreme Court observed that without express sanction of the law, the Cantonment Boards, that were statutory bodies, were assuming a sale value of immovable property which was divergent from its common/single sale value accepted by both the Provincial and the Federal authorities in respect of the same transaction; that such lack of coordination between the Cantonment Boards and the Provincial and Federal authorities created public inconvenience apart from demonstrating executive disorder---Appeals filed by Cantonment Boards were dismissed.

Sh. Waqar-ul-Haq, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos.136/2011 and 504 to 506/2013).

Agha Muhammad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. No.28 of 2014).

Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.A. No.136 of 2011).

Nemo for Respondents (in C.As. Nos.504/2013 and 28/2014).

Ex parte: (In C.As. Nos. 505 and 506/2013).

P L D 2020 Supreme Court 390

Presesnt: Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

ANJUMAN-E-KHUDDAM-UL-QUR'AN, FAISALABAD through President Qur'an Academy---Appellant

Versus

Lt. Col (R) NAJAM HAMEED and 3 others---Respondents

Civil Appeal No.154-L of 2018, decided on 14th May, 2020.

(Against the judgment dated 13-9-2018, passed by the Lahore High Court, Lahore, in Civil Revision No.38 of 2017).

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

----S. 7---Fees payable in suits---Deficiency in payment of court-fee---Court, obligation of---Scope---Mere fact that at the trial a defendant did not press the question of deficiency in the court-fee, did not relieve the Court of the obligation of looking into the matter, determining the correct amount of the court-fee and seeing that the deficiency was made up.

Allah Yar v. Muhammad Riaz and others PLD 1981 SC 489 ref.

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

----Art. 17(2)---Waqfnama---Proof---Since the waqfnama was not a document pertaining to financial or future obligations, therefore, to prove said document, the conditions of Art.17 of the Qanun-e-Shahadat, 1984 were not applicable.

(c) Registration Act (XVI of 1908)---

----S. 17---Registered document---Sanctity---Registered document had sanctity attached to it and strong and cogent evidence was required to rebut its genuineness.

(d) Islamic law---

----Waqfnama---Proof---Original/certified copy of the waqfnama not containing Computerized National Identity Card (CNIC) of transferor or transferee---Held, that non-mentioning of CNIC number of transferor or transferee in the original/certified copy of the waqfnama did not make it invalid---As per the prevalent practice, when the original document was produced before the Patwari or the Revenue Officer for attestation of mutation then on the basis of said document, the Patwari or the Revenue Officer endorsed the mutation number upon it so that the said document may not be used again for attestation of any other mutation---In the present case, the son of the waqif lady presented the document for attestation of the mutation, therefore, his CNIC number was available at the front page of the original waqfnama as per the plaintiff---Appeal was allowed.

(e) Registration Act (XVI of 1908)---

----Ss.17, 51 & 66---West Pakistan Registration Rules, 1929, Para.64---Waqfnama---Proof---Original copy of the waqfnama compared with its certified copy---Thumb impression endorsements on reverse side of written pages at different places---Held, that established practice prevailing these days by the officials of the Sub-Registrar, registering document under the Registration Act, 1908 was that instead of copying the document on Behi (Book No.1) they kept the photo-stat copy of the original document---Such photo-stat copy was prepared before affixation of signatures/thumb impressions of parties to the document or the witnesses as well as the endorsements and affixation of stamps and signatures by the Sub-Registrar Office---Thereafter, the thumb impressions were taken upon the original document as well as the photo-stat copies; one photo-stat copy was thereafter placed in series, after jildbandi of a specific volume of the bundle, which was kept with the Sub-Registrar Office in accordance with the Registration Act, 1908 and their certified copies were issued on the application of any of the parties---One copy was sent to the revenue officials for incorporation of the same in the Revenue Records---Due to said reasons, the thumb impressions or signatures on original and two copies of the documents could and must be in different places, as all were taken in original upon original document as well as upon copies by the Sub-Registrar Office.

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

----Ss. 9, 39 & 42---Waqfnama---Suit for cancellation of waqfnama---Propriety and maintainability---Plaintiff filed suit for cancellation of impugned waqfnama by contending that some other lady was produced before the Sub-Registrar instead of his (waqif) mother, on whose behalf the waqfnama was registered---Held, that suit for cancellation of document under S.39 of the Specific Relief Act, 1877 could be filed when an instrument was void or voidable---Waqfnama in the present case was neither void nor voidable---When the plaintiff was claiming that some other lady was produced before the Sub-Registrar instead of his mother, the appropriate remedy before the plaintiff was in the form of a suit for declaration---Suit should have been filed for declaration and when possession admittedly had been transferred to the appellant-religious association, which had also constructed multi-purposes buildings in accordance with the waqfnama, the suit should have been for possession also---Appeal was allowed and suit for cancellation filed by plaintiff was dismissed as being not competent.

Sh. Naveed Shehryar, Advocate Supreme Court for Appellant.

Respondent No.1 (in person).

Nemo for other Respondents.

P L D 2020 Supreme Court 401

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

Mrs. ZAKIA HUSSAIN and another---Appellants

Versus

Syed FAROOQ HUSSAIN---Respondent

Civil Appeal No.1355 of 2006 and Civil Appeal No.1495 of 2006, decided on 18th May, 2020.

(On appeal from the judgment dated 1-8-2006 passed by the High Court of Sindh at Karachi in H.C.A. No.91 of 2006 and H.C.A. No.108 of 2006).

(a) Appeal---

----Appellate Court---Question of law raised for the first time---Scope---Question of law could be raised at any stage of the case but that had to be considered in the light of facts and circumstances of each case---Court had to decide whether such party could be allowed to raise such objection for the first time before the appellate court or whether facts and circumstances of the case did not permit a party to raise such question for the first time.

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

----O. III, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Competent witness---Scope---Attorney deposing in place of party to the suit---Permissibility---Whether a witness not fully conversant with the facts and circumstances of the case would be a competent witness within the meaning of O.III, Rr. 1 & 2, C.P.C.---Held, that case law of the country developed so far regarding the present issue was based on the facts and circumstances of each case---Initially, it was the party itself which should depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information could not be termed as a competent witness within the meaning of O. III, Rr. 1 & 2, C.P.C---Attorney could step in as a witness if he possessed first hand and direct information of the material facts of the case or the party had acted through the attorney from the very inception till the accrual of cause of action---Deposition of such an attorney under the law would be as good as that of the principal itself---Non-appearance of the party as a witness in such a situation would not be fatal---If facts and circumstances of the case reflected that a party intentionally did not appear before the court to depose in person just to avoid the test of cross-examination or with an intention to suppress some material facts from the court, then it would be open for the court to presume adversely against said party as provided in Art.129 (g) of Qanun-e-Shahadat, 1984.

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

----O. XXVI, R. 1---Power of court to issue commission---Scope---Sickness or infirmity of a witness may compel the court to issue commission for recording of evidence of such witness---Witness within the jurisdiction of the Court who was unable to appear for any compelling reasons or a person outside the jurisdiction of the court or person who was going to leave the jurisdiction or a person in the service of State could be examined through a commission---Commission could also be issued to a court to record the evidence of a person residing within its jurisdiction---Local commission could be issued with consent of the parties---If any party had got any objection regarding issuance of commission then such objection was noted and properly considered by the court---Court had to satisfy itself regarding the conditions necessary for issuance of commission and on return of commission with deposition of witnesses, court could order it to be made part of the record of the suit---Court seized of the matter had to take a decision for issuance of commission by keeping in mind the facts and circumstances of the case.

Khawaja Feroz v. Muhammad Dawood PLD 2008 Kar. 239; Badar Rahim v. Hammad Asif Dosslani 2009 CLC 459; Iqbal M. Hamza v. Gillete Pakistan Ltd. 2011 YLR 277; Hafeez Begum v. Zainab Muhammad Ali 2014 MLD 1000 and BBC Pakistan (Pvt.) Ltd. v. Masud Alam 2018 YLR 363 ref.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Incomplete construction---Lack of approval from building authority---Vendor cheating and defrauding vendee---Whether non-payment of balance consideration by the vendee (respondent) justified the vendor (appellant) unilaterally cancelling the agreement to sell---Held, that date on which final payment was to be made the apartment in question was incomplete---Vendor being fully aware of its non-completion and having full knowledge of lack of approval/sanction of construction of third floor (where the apartment was situated) by the building control authority, unilaterally cancelled the sale agreement through a notice sent through fax---Reason for cancellation of sale agreement was non-payment of the balance amount of Rs.6,50,000/- by invoking and taking advantage of a clause of the sale agreement but at the same time the vendor ignored other clauses of the sale agreement which spoke of delivery of vacant and peaceful possession of the premises after informing vendee in writing and execution and registration of sale/sub-lease deed---Record showed that the vendee expressed his willingness to make balance payment subject to delivery of possession of the apartment and execution of sale deed---Vendor provided no document to establish that they had asked the vendee to take possession of the apartment---Sale agreement was silent regarding a specification of date and time of delivery of vacant possession and also the date of execution and registration of sale/sub-lease deed and it only mentioned the date of final payment agreed between the parties---Unless specifically agreed upon between the parties due to some compelling reasons, a person of sound mind could in no way on the basis of a clause accept an incomplete structure without utilities---In such circumstances, the date fixed for performance of contract could not be held to be a date which was essence of contract---Suit apartment was still in an incomplete condition and the vendee on the directions of the Trial Court had deposited the balance amount in the court which was still lying there---Vendee was cheated and defrauded by the vendor who concealed the factum of non-approval/sanction from building control authority for illegal construction of 3rd floor where the suit apartment was situated---Suit had rightly been decreed in favour of vendee---Appeals filed by the vendor were dismissed.

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

----S. 55---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell immoveable property---Time "essence" of the contract---Scope---Mere mention of date in an agreement per se could not be considered to be a date which was essence of contact---Facts and circumstance of each and every case would be the determinative factor to hold as to whether time was essence of contract or not.

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

----Ss. 12 & 22---Specific performance of contract---Discretion of court---Scope---Specific performance of a contract was essentially an equitable and discretionary relief and the court seized of the matter was in a better position to decide and resolve not simply according to the spirit of the law but also in accordance with the principles of substantial justice by keeping in mind peculiar facts and circumstance of each case---Specific performance could not be claimed as a matter of right---Discretion to be exercised by the court required that it should not be arbitrary but should be sound and reasonable guided by judicial principles and capable of correction by a court of appeal---Such an exercise of grant or refusal of relief would depend on the facts and circumstances of each case and also the conduct of the parties.

Malik Muhammad Qayyum, Senior Advocate Supreme Court along with Syed Akbar Hussain for Appellants (in both cases).

Shahab Sarki, Advocate Supreme Court along with Syed Farooq Hussain for Respondents (in both cases).

P L D 2020 Supreme Court 414

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

ADAMJEE INSURANCE COMPANY LTD.---Petitioner

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Petitions Nos. 1483-L to 1495-L of 2018, decided on 2nd July, 2020.

(On appeal from the orders of Lahore High Court, Lahore dated 30-05-2018, passed in W.Ps. Nos. 215957/2018, 215958/2018, 215959/2018, 215960/2018, 215962/2018, 215963/2018, 215966/2018, 215967/2018, 215969/2018, 215971/2018, 215972/2018, 215973/2018 and 215974/2018).

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Scope--- Sub-constitutional legislation could not curtail or abridge the jurisdiction of a constitutional court---Legislature, being the creature of the Constitution could not take away the jurisdiction of a constitutional court conferred by the Constitution---Sub-constitutional legislation could not control the constitutional remedy available under Art.199 of the Constitution---While the constitutional courts may consider the legislative object and purpose of a statute, still they could not shut their doors to an aggrieved person who invoked the constitutional jurisdiction of the court under Art. 199 of the Constitution.

Arshad Mehmood v. Commissioner/Delimitation Authority Gujranwala and others PLD 2014 Lah. 221; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Malik Muhammad Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bahawalpur and others PLD 2005 Lah. 251; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1986 SC 26 ref.

(b) Insurance Ordinance (XXXIX of 2000)---

----S. 124--- Constitution of Pakistan, Art. 199--- Constitutional petition before the High Court against a decision passed by the Insurance Tribunal on a miscellaneous application---Maintainability---Constitutional jurisdiction under Art.199 of the Constitution could be invoked to challenge miscellaneous decisions passed during the course of proceedings before the Insurance Tribunal covered under S.124(1) of the Insurance Ordinance, 2000 (the 'Ordinance')---In the present case, the order of the Insurance Tribunal passed against the insurance-company through which the right to file a written statement had been denied, did not fall within the purview of S.124(2) of the Ordinance and could only be challenged by invoking the constitutional jurisdiction of the High Court under Art.199 of the Constitution---Constitutional court then had to examine whether such a petition met the requirements of Art.199 and required interference in the light of the established jurisprudential principles that guided a constitutional court---Constitutional court may also consider the decision in the overall scheme of the Ordinance under which it arose and give due deference to the legislative object and purpose---Petitions for leave to appeal were converted into appeals and allowed, the order passed by the Tribunal, as well as, the impugned order of the High Court were set-aside and the Supreme Court directed the parties to appear before the Tribunal where the insurance-company would file its written statement and there from the Tribunal shall proceed further and decide the matter strictly in accordance with law.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1986 SC 26 and Hashwani Hotels Limited through Senior Manager v. Sindh Insurance Tribunal, Karachi 2016 CLD 1790 approved.

Farooq Amjad Meer, Advocate Supreme Court for Petitioner (in all cases).

Ms. Tasneem Amin, Advocate-on-Record along with Munir Ahmad Khan Sadhana, AHC (appeared with special persmission of the Court).

P L D 2020 Supreme Court 419

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

JAVED AKHTAR---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 462 of 2016, decided on 4th June, 2020.

(On appeal against the judgment dated 23.06.2016 passed by the Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.01-J/2013 and Murder Reference No. 01/2013).

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah---Re-appraisal of evidence---Three injured persons testified against the accused and all of them consistently maintained that they were fired on by the accused and that the accused had also fired on the deceased and killed him---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 324---Attempt to commit qatl-i-amd---Re-appraisal of evidence---Firearm injury---Blackening of wound---Doctor giving his opinion regarding the distance from which a fire from a shotgun would leave blackening of wound---Held, that a medical doctor could, of course, state whether there was blackening on a wound but may not be qualified to determine the distance from which the fire was made, which came within the expertise of a firearm forensic expert, who may consider a number of factors, including the type of firearm and cartridge that had been used---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah---Re-appraisal of evidence---Crime empties---Plea of accused that prosecution's case was that accused made four fire shots with his shotgun, which did not tally with the number of spent cartridges (three) recovered from the crime scene---Held, that a single barrel shotgun was used by the accused and it was of the kind that did not eject fired and spent cartridges---Since the crime weapon was a single barrel shotgun it meant that after the petitioner fired once he would have to reload it to fire again and to repeat this action---In such circumstances last fired cartridge would be left in the barrel and not ejected and left at the crime scene for subsequent retrieval---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah---Re-appraisal of evidence---Motive---Domestic dispute---High Court reduced sentence of death to imprisonment for life on the basis that motive set forth by the prosecution, that there had been an altercation amongst the members of the family, was not established, because there was no independent witness to testify to this---Held, that said reason was not a sufficient reason to discard the motive, as it was rare that a domestic dispute would be witnessed by outsiders---To say that because there was no outsider to testify, therefore, the motive was not established was not the correct approach---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused

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

----Ss. 302(b)& 302(c)---Qatl-i-amd---Re-appraisal of evidence---Grave and sudden provocation [Exception 1 to the erstwhile S.300, P.P.C.]---If for the sake of argument it was accepted that the accused had been deprived of the power of self-control by grave and sudden provocation, then by going to fetch his shotgun he broke or dissipated the purported loss of the power of self-control---Moreover, loss of self-control may at best account for the first fire made by the accused, but, then the accused opened the shotgun, removed the spent cartridge, took out a loaded cartridge, inserted it in the barrel, aimed and fired, and repeated this action thrice---To attract Exception 1 to the erstwhile S.300, P.P.C. there must also be some evidence of what had happened that caused sudden provocation---In the present case, there was none---In any event there was nothing on record of the present case to suggest that the accused had been suddenly provoked, therefore, Exception 1 of the erstwhile S.300, P.P.C. was not attracted to the facts of the present case---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused.

Ali Muhammad v. The State PLD 1996 SC 274 ref.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Re-appraisal of evidence---Causing death 'without premeditation in a sudden fight in the heat of passion and without the offender having taken undue advantage or acted in a cruel or unusual manner [Exception 4 to the erstwhile S.300, P.P.C.]---In the present case, there was no evidence of a sudden fight, let alone in the heat of passion---Accused armed himself with a shotgun against unarmed persons, which in itself constituted undue advantage and excluded his case from the purview of the [Exception 4 to the erstwhile S.300, P.P.C.]---Accused also acted in the most cruel manner which was yet another factor that made him ineligible for the benefit of Exception 4---After the altercation accused went to fetch a shotgun, loaded it and fired it; he then reloaded and re-fired it thrice more, which demonstrated extreme cruelty and brutality---No factual basis was found to bring the case of accused under S.302(c), P.P.C.---Prosecution had established its case against the accused beyond reasonable doubt and the convictions of the accused were justified---Petition for leave to appeal was dismissed and leave was refused

Muhammad Asif v. Muhammad Akhtar 2016 SCMR 2035 ref.

M. Rizwan Ibrahim Satti, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor General, Punjab for the State.

P L D 2020 Supreme Court 427

Present: Mushir Alam, Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

ALI GOHAR and others---Petitioners

Versus

PERVAIZ AHMED and others---Respondents

Criminal Petition No. 230 of 2019 and Criminal Miscellaneous Application No. 301 of 2019, decided on 30th June, 2020.

(On appeal against the judgment dated 21.02.2019 passed by the High Court of Sindh, Bench at Sukkur in Criminal Miscellaneous Application No. D-998 of 2018)

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

----S. 561-A---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope---Such jurisdiction could not be invoked as a substitute to any other remedy provided under the Cr.P.C.---Inherent jurisdiction of the High Court under S.561-A, Cr.P.C. was curative in nature and would only be available, if no other remedy provided under Cr.P.C. was attracted in a given case.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 ref.

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

----S.435---Revisional jurisdiction of High Court---Scope---In order to invoke the revisional jurisdiction of the High Court under section 435, Cr.P.C., two conditions precedent constituting jurisdictional facts would require to be fulfilled: first, it should relate to "proceedings"; and second, the said "proceedings" should be before an "inferior criminal court".

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

----Ss. 435 & 439---Revisional jurisdiction of the High Court---"Any proceedings before any inferior criminal court"---Term 'any proceedings' used in S.435, Cr.P.C.---Scope---Said term had to be offered a liberal interpretation, and would thus include any steps taken by the (inferior) Court under the law.

The State v. Naeemullah Khan 2001 SCMR 1461 ref.

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

----Ss. 435 & 439---Anti-Terrorism Act (XXVII of 1997), S. 13(1)---Revisional jurisdiction of the High Court invoked against an order of Anti-Terrorism Court ("ATC Court")---Pre-requisites---Determinative factors for the exercise of revisional jurisdiction of High Court against an order of ATC Court would be, whether the order had been passed by ATC Court in "any proceedings" before it; whether no appeal had been provided for the same under the Anti-Terrorism Act, 1997; and whether the revisional jurisdiction had expressly not been barred for that matter under the Anti-Terrorism Act, 1997.

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

----Ss.435, 439 & 561-A---Anti-Terrorism Act (XXVII of 1997), S. 23---Constitution of Pakistan, Art. 199---Order passed by Anti-Terrorism Court ("ATC Court") under S.23 of Anti-Terrorism Act, 1997, transferring a case from ATC Court to ordinary criminal court---Order of transfer passed by ATC Court at pre-trial stage but after the submission of challan, summoning of all the accused and delivering them copies of documents prior to the framing of charge---Question as to what type of jurisdiction of High Court would be available to challenge such transfer order of ATC Court---Held, that ATC Court was a judicially "inferior criminal court" to the High Court and the order of transfer of the case was passed during the "proceedings" of the case before the ATC Court---Accordingly, the two condition precedents for invoking the revisional jurisdiction of the High Court under S.435, Cr.P.C. was satisfied, and thus the grievance of the complainant (against order of ATC Court) was maintainable under the revisional jurisdiction of the High Court under S.435, Cr.P.C.---In such circumstances challenge of the complainant against the transfer order of the ATC Court was not maintainable before the High Court under its inherent jurisdiction of S.561-A, Cr.P.C., or its constitutional jurisdiction under Art. 199 of the Constitution, as complainant had an alternative remedy available in form of criminal revisional jurisdiction (of the High Court) under S.435, Cr.P.C.

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

----Ss. 13(2) & 23---Power of Anti-Terrorism Court ("ATC Court") under S.23 of Anti-Terrorism Act, 1997, to transfer a case from ATC Court to ordinary criminal court---Scope---Challan and the material placed therewith by the prosecution would suffice for the ATC Court to decide whether to proceed with the case or to transfer the same under S.23 of the Anti-Terrorism Act, 1997 (the Act')---Both, the Administrative Judge and any other ATC Court to whom the case was assigned by the Administrative Judge, after taking "cognizance of the case", had the authority to transfer the case under S.23 of the Act to an ordinary criminal court for trial under Cr.P.C.---Only restriction on the authority of the Administrative Judge to transfer the case to an ordinary criminal court was that it must have taken cognizance of the case---No express time limit was provided for the exercise of such authority by ATC Court after it had taken cognizance of the case---ATC Court may after taking cognizance, transfer the case to an ordinary criminal court and such authority to transfer could be exercised during the entire proceeding of the trial till the judgment was announced---Express limitation of time (till framing of the charge) provided under subsection (2) of S.13 of the Act related only to the initial assignment of the case by the Administrative Judge to another ATC Court and not the authority of transfer of the case to an ordinary criminal court under S.23 of the Act---In cases, where the Administrative Judge had assigned the case for trial to ATC Court, the assignee judge of the ATC Court, like the Administrative judge, subject to the express limitations provided under the Act, was empowered to take all the steps and pass all orders relating to transfer of case to an ordinary criminal court during entire proceedings of the trial.

Shahbaz Khan alias Tappu and others v. Special Judge Anti-Terrorism Court No. 3, Lahore and others PLD 2016 SC 1; Nasir Abdul Qadir and others v. The State 2003 SCMR 472 and Allah Din v. The State 1994 SCMR 717 ref.

(g) Words and phrases---

----'Cognizance of a case'---Meaning.

Lexis Nexis, Australian Legal Dictionary, 2nd Edition; Black's Law Dictionary, 8th Edition; Osborn's Concise Law Dictionary, 7th Edition; Chambers English Dictionary; The Oxford Universal Dictionary Illustrated; Mitra's Legal and Commercial Dictionary; Wazir v. The State PLD 1962 (W.P.) Lah. 405; Alam Din v. The State PLD 1973 Lah. 304 and Haq Nawaz and others v. The State 2000 SCMR 785 ref.

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

----Ss. 13(2) & 23---Power of Anti-Terrorism Court ("ATC Court") under S.23 of Anti-Terrorism Act, 1997, to transfer a case from ATC Court to ordinary criminal court---Scope---Authority of the ATC Court to transfer the case only exercisable after it had taken cognizance of the case---"Cognizance of the case"---Meaning and scope---ATC Court would be said to have taken "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it took judicial notice thereon by the conscious application of mind and took positive steps to indicate that the trial of the case was to follow---Such steps need not necessarily be recorded as judicial orders; what was essential was that the orders so passed or steps taken reflected that ATC Court was to proceed with the trial.

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

----S. 6---"Act of terrorism"---Scope---No matter how grave, shocking, brutal, gruesome or horrifying the offence, it would not fall within the scope of terrorism, if it was not committed with the design or purpose specified or mentioned in cl. (b) or (c) of subsection (1) of S.6 of the Anti-Terrorism Act, 1997 ('the Act')---Even if an offence fell squarely within the scope specified in subsection (2) of S.6 of the Act, it would not constitute the offence of "terrorism", if the same was in furtherance of a private dispute or vendetta.

Ghulam Hussain v. The State PLD 2020 SC 61 ref.

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

----Ss. 6 & 23---Penal Code (XLV of 1860), S. 302(b)---Triple murder over a private dispute relating to chiefdom of a tribe---"Act of terrorism"---Scope---Present case related to rivalry over the chiefdom of a tribe, and thus was essentially a private dispute between two families within a tribe---Admittedly the accused side and complainant party were closely related to each other through marriage---No doubt the facts recorded in FIR depicted a shocking, brutal, and gruesome crime leading to a triple murder case, but the very design and purpose leading to the crime being a private dispute relating to tribal ascendancy would result in keeping the same outside the scope of the term "terrorism" within the contemplation of the Anti-Terrorism Act, 1997---Anti-Terrorism Court had rightly transferred the case to an ordinary criminal court---Petition for leave to appeal was converted into an appeal and allowed accordingly.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Petitioners.

Assisted by:

M. Naeem-ur-Rehman Bhutta, Advocate, Suzain Khattak, Advocate, Syed Mehmood Gillani, Advocate, Ghulam Murtaza, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Faisal Siddiqui, Advocate Supreme Court for Respondent No. 1

Assisted by:

Ms. Sheza Ahmed, Advocate and Haider Imtiaz, Advocate for Respondent No.1.

Syed Iqbal Hussain Gillani, Advocate Supreme Court for Respondents Nos. 2 and 3.

Dr. Faiz Shah, Prosecutor-General, Sindh, Zafar Ahmed Khan, Additional Prosecutor-General, Sindh and Ms. Tanseer Yaqoob, Additional Prosecutor-General, Sindh for the State.

P L D 2020 Supreme Court 456

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

Khawaja SALMAN RAFIQUE and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Civil Petitions Nos. 2243-L and 2986-L of 2019, decided on 17th March, 2020.

(Against the Order dated 18.6.2019 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 9726 and 9729 of 2019).

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

----Ss. 9 & 26---Criminal Procedure Code (V of 1898), Ss. 164(1-A) & 265-J---Corruption and corrupt practices---Bail, grant of---Approver, evidence of---Corroboration---Elected members of National Assembly and Provincial Assembly ('accused' and 'co-accused' respectively)---Accused and co-accused were alleged to be the beneficiaries of a private limited company ('the company') which launched a private housing scheme---Held, that Magistrate recorded the approver's statement without any notice to the accused and co-accused, thus depriving them of their right to cross examine the witness, which was a flagrant violation of S.164(1-A), Cr.P.C.---Approver was also not informed by the Magistrate that upon conclusion of his statement, his custody shall not be remitted back to the prosecution---Statement of approver, thus, also failed to meet the criteria prescribed by the provisions of S.265-J, Cr.P.C., for it to be admitted as evidence---Said statement otherwise found no corroboration by any means---Besides perusal of the statement of approver, showed that it hardly contained anything which lent credence to the prosecution case or furthered their endeavour to lay blame for any alleged or perceived infraction by the company on the accused and co-accused---Approver's claim of shareholding of accused and co-accused in the company and their control over it was wholly contrary to the record---Accused and co-accused were granted bail.

Statement under section 26 of the National Accountability Ordinance, 1999 ('the Ordinance') was recorded by the approver before a Magistrate, wherein the approver did not inculpate the accused and co-accused in the alleged or perceived offence, as a result of which the pardon tendered to him by the Chairman, National Accountability Bureau ('NAB') was withdrawn. Subsequently the accused once again made an application offering to record his statement as an approver, but the prosecution only acted on it on the day the physical remand of the approver was expiring. Application submitted by the prosecution before the Magistrate for recording (second) statement of approver made no mention of approver's earlier statement under section 26 of the Ordinance, the grant of pardon and its subsequent withdrawal. On the same day prosecution also sought 15 days' physical remand of the approver, which remand was granted by the Court the same day. Magistrate proceeded to record the (second) statement the same day, without any notice to the accused and co-accused, thus depriving them of their right to cross examine the witness, which was a flagrant violation of the essential requirement of the provision of subsection (1-A) of Section 164 Cr. P.C. Approver was also not informed by the Magistrate that upon conclusion of his statement, his custody shall not be remitted back to the prosecution. Statement of approver, thus, also failed to meet the criteria prescribed by the provisions of Section 265-J, Cr.P.C., for it to be admitted as evidence, even if it had fulfilled the other requirements of admissibility. Additionally, keeping in view that the statement of approver otherwise found no corroboration by any means whatsoever, such statement had absolutely no bearing on the case.

National Accountability Bureau v. Hudaibya Paper Mills PLD 2018 SC 296; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Abdul Sattar v. The State PLD 1976 SC 404 and Federation of Pakistan v. Muhammad Shafi Muhammadi 1994 SCMR 932 ref.

It was through the second attempt only, that the prosecution was able to procure the purported statement of approver, having failed to secure a statement inculpating the accused and co-accused in the alleged/perceived offences, and/or even attributing to them any shareholding in the company, and/or establishing their control over its affairs. Even more alarming was the fact that the Judicial Magistrate after recording statement of approver, instead of sending him to judicial custody had delivered his physical custody to the prosecution, which was against all norms of justice, fair play and propriety. It appears that the prosecution sought approver's physical remand in addition to his transitory remand, for a period longer than fifteen days with a two-pronged strategy; on the one hand it was able to exert pressure on the approver when he recorded his statement, and in the event he would have failed to inculpate the accused and co-accused, the prosecution could have continued to hold him and, thus, coerce him into submitting to their will and command by recording any statement they desired. However, a perusal of the statement of approver, would show that all the efforts made by the prosecution in procuring the same had gone in vain, since it hardly contained anything which lent credence to the prosecution case or furthered their endeavour to lay blame for any alleged or perceived infraction by the company on the accused and co-accused. Said statement was completely bereft of necessary particulars and much of its contents were absolutely irrelevant. Approver's claim of shareholding of accused and co-accused in the company and their control over it was wholly contrary to the record. No details, particulars, document and/or material, either official, financial, personal or relating to any business deal, transaction, undertaking, or arrangement, or any kind of correspondence in support of such claim, had even been referred to in the approver's statement. Additionally, the prosecution had not been able to refer to or rely upon anything to substantiate the statement, or the allegations contained therein, nor had it mentioned of any other witness who supported approver's purported stance. No question was put to the accused and co-accused with respect to their alleged shareholding in or control of the company through the call up notices (by NAB). However, even if the relevant contents of the purported statements were presumed to be true and correct, the same also did not, by themselves, constitute any offence or wrong doing on the part of the accused and co-accused, attracting the provisions of the Ordinance. Accused and co-accused were granted bail.

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

----S. 9---Constitution of Pakistan, Arts. 9 & 14(1)---Corruption and corrupt practices---Bail, grant of---Elected members of National Assembly and Provincial Assembly ('accused' and 'co-accused' respectively)---Accused and co-accused were alleged to be the beneficiaries of a private limited company ('the company'), which launched a private housing scheme---Questions were as to whether approval from Lahore Development Authority (LDA) was obtained; whether size of area approved for scheme was more than actual land held and whether accused and co-accused had unjustly enriched themselves---Held, that housing scheme in question was approved by the Tehsil Municipal Administration (TMA) in 2005---Prosecution and/or the Lahore Development Authority (LDA) had thus so far not mentioned/disclosed, since when, or under what law, notification, or scheme, to what extent, and in what manner, the area in which the housing scheme was situated, fell within the jurisdiction of the LDA---No allegation was found on record to the effect that any buyer/ purchaser in the housing scheme was deprived of his accrued/vested rights, on account of the alleged lack of permission and/or approval---Out of 8,000 purchasers, NAB received complaints only from sixty eight (68) persons, sixty two (62) of which had admittedly been settled---Furthermore National Accountability Bureau (NAB) miserably failed to establish any control of the accused and co-accused over the management of the company in the manner so that they may be held liable for its acts, deeds and conduct---National Accountability Bureau (NAB) had not even claimed that any of the complainants/claimants alleged any role or concern of the accused and co-accused in the alleged non-delivery of possession of their claimed plots and/or non-refund of their money paid for the said plots---No documents were referred to establish the allegation that accused and co-accused got approval for housing scheme from the TMA for an area of 7002 kanals, when they only held 1085 kanals of land at that time, and that the approval, to the extent of the remaining land was based on forged documents---Record did not show whether TMA or any other department, took cognizance of the alleged fraud, or whether any of the company's buyers/customers were deprived of their purchase, or of any of their rights in relation thereto, on account of alleged fraud---No witnesses were mentioned for said allegation, nor was any question put to the accused and co-accused regarding it---Regarding the allegation of housing scheme built on State/Shaamalat lands, neither any notification nor any map or documents establishing the size thereof as claimed (39 kanals) existed in the area---Accused and co-accused did exchange land belonging to them with the company, however, it was situated in the same mauza as were the exchanged plots of the housing scheme; secondly, the accused and co-accused were also paying to the company charges for the development of the land they exchanged which was converted into plots---Despite having all the required information and details, NAB failed to place before the court any material to show that the exchange was unfair and/or that the accused and co-accused had through the said transaction illegally enriched themselves at the cost of the company---Accused and co-accused received certain commissions, professional fees and consultancy charges from the company and a building firm and for such purposes they provided to NAB details of the agreements, their bank accounts, the source of the deposits held therein, and also the income tax returns along with the wealth tax statement---However, NAB did not raise any objection regarding such submitted material and information nor did they point out any discrepancy or inadequacy in the various responses, information, and documents submitted by the accused and co-accused---Even otherwise, such transactions/business relationship between the company, the building firm and the accused and co-accused, and the various payments received by them, were matters purely between private concerns and individuals---Neither had it been alleged that any loss had been suffered by any Government, nor had it been pleaded that any member of the public had in any manner suffered on account of it or it was because of such payments that the purported claimants/ complainants were allegedly deprived of possession of their promised plots---Case record did not show as to what in fact brought the NAB into action in the present case; whether it were some complaints from 'members of public at large' regarding non-delivery of plots, or was it some investigation, conducted against the accused persons by NAB of its own accord---Conduct of NAB throughout the present case was a clear manifestation of their utter disregard for law, fair play, equity and propriety---Accused and co-accused were granted bail.

Reference filed by National Accountability Bureau (NAB) against the accused and co-accused contained the allegations that although Lahore Development Authority (LDA), had through its letters, informed its director Town Planning, the Provincial Collector Revenue department, and the various utility companies/agencies, that the sponsors of the housing scheme had launched the said scheme within the controlled area of LDA, without prior permission from the competent authority, and were carrying out construction and development work, and sale/purchase of plots therein, without the requisite approvals and also asked its directors to take legal action against such development and requested the Collector Revenue not to issue Fard-e-Malkiyat and register or attest any document pertaining to the scheme; that LDA also requested the utility providers to stop/discontinue such provisions, but the accused persons continued with the development of the scheme and booking/selling of plots therein; that while the approval for housing scheme was obtained by the accused from Tehsil Municipal Administration (TMA) in 2005 for an area of 7002 Kanals, they only held 1085 Kanals of land at that time, and that the approval, to the extent of the remaining land was based on forged documents.

Record showed that scheme, as noted in the Reference itself, was approved by the TMA back in January, 2005 and as mentioned by the approver in his statement (relied upon by the prosecution for roping in the accused and co-accused in the present case,) was launched the same year, i.e. the year 2005. The prosecution and/or the LDA had thus so far not mentioned/disclosed, since when, or under what law, notification, or scheme, to what extent, and in what manner, the area in which the housing scheme was situated, fell within the jurisdiction of the LDA. It was also not submitted as to why and to what extent did the scheme require an approval from the LDA to begin with. It was not even claimed that the LDA ever sought any such submission or regularization from the company. It had also not been submitted as to what could be the consequences of non-compliance with the provisions, if any, in that regard, and whether such non-compliance triggered any penal action, and if so, under what circumstances. Court had also not been apprised regarding the nature of these penal consequences to initiate such action, and whether any warnings were issued by the LDA or any other relevant department before proceeding in that regard. It was also not clear if the public at large were cautioned regarding the violation of any law, rule or regulation by the company in relation to the housing scheme. Little was offered by the prosecution in the way of details about the extent of the scheme's development and as to how many plots/properties had been sold by the time the housing scheme allegedly fell within the jurisdiction, control and competence of LDA. National Accountability Bureau (NAB) had not even claimed putting any question to the accused and co-accused, regarding the permission, either through their call up notices or otherwise, nor had they implicated any public functionary in this regard. There was absolutely no allegation that any buyer/purchaser in the housing scheme was deprived of his accrued/vested rights, on account of the alleged lack of permission and/or approval. It had been admitted that out of 8,000 purchasers, NAB received complaints only from 68 persons, though the accused and co-accused had been operating the housing scheme since last 16 years. Out of sixty eight (68), sixty-two (62) complaints had admittedly been settled, and affidavits of the complainants in this regard duly verified by the NAB had been placed before the court. Question was as to how in such backdrop could the alleged development work and sale then fall within the ambit of section 9 of the National Accountability Ordinance, 1999 ('the Ordinance'). In any event, since the prosecution had thus far not been able to connect the accused and co-accused with the company in the manner so that they may be held liable for its acts, deeds and conduct, the present allegations in so far as the accused and co-accused were concerned, were wholly irrelevant and inconsequential.

Second allegation against accused and co-accused was that approval for housing scheme was obtained from Tehsil Municipal Administration (TMA) for an area of 7002 kanals, when they only held 1085 kanals of land at that time, and that the approval, to the extent of the remaining land was based on forged documents. However, no documents were referred to in such regard, nor were any particulars mentioned. It was also not claimed that the TMA or any other department, took cognizance of the alleged fraud, or whether any action was ever initiated against anyone including the functionaries of the TMA, who could have been responsible for the same. It was also not alleged that any portion of the land comprising the housing scheme, except the purported Shaamalat lands, or those which allegedly belonged to two alleged victims, did not belong to the company at the time of development and sale of the plots/properties, and/or that any of the company's buyers/customers were deprived of their purchase, or of any of their rights in relation thereto, on account of alleged fraud. With regard to the present allegation too, no witnesses were mentioned, nor was any question put to the accused and co-accused. No public functionary had been implicated in relation to the instant allegation either.

One of the alleged victims, whose land was taken over by the housing scheme, admitted that his dispute with the company was purely of a civil nature, arising out of a business/commercial undertaking and a joint venture, mainly involving and pertaining to settlement of accounts. Said alleged victim in his suit against the company acknowledged that it was under and in terms of a collaboration agreement that a subsidiary housing block / scheme was developed under the umbrella of the company. However, issues in relation to the operation, execution and accounts pertaining to the project arose between the parties from time to time, resulting in litigation, which had been settled amicably and, therefore, he wanted permission from court to withdraw the suit. Allegation made by the second victim regarding illegal occupation of his land by the company was sent to arbitration with mutual consent of both parties. Award was submitted before Civil Judge, who after considering the objections, filed by the alleged victim, and hearing the parties, made the Award a Rule of the Court. The said Award/Rule had however been challenged by the alleged victim before the High Court, which was still pending. Both said dispute between the two individuals/alleged victims and the company, which had been portrayed as illegal occupation of their lands by the company were purely of a civil and commercial nature. These disputes were pending before the civil court also and could not have justifiably been made part of the Reference.

As regards the State/Shaamalat lands, neither any notification nor any map or documents establishing the size thereof as claimed (39 kanals) existed in the area, over which the housing scheme had been developed. In any event, there was absolutely no allegation of any violation of the permission granted by the TMA in relation to the scheme. It was also not clarified as to how much of the 39 kanals of land comprised Shaamalat and how much of it was of other nature/category.

Reference filed by NAB against accused and co-accused also set out two different allegations regarding land transactions between them and the company; one specified exchange of certain lands and the other alleged that the accused and co-accused of wrongfully acquired 20 plots of land from the company without any payment, thereby, unjustly enriching themselves. In the first place the accused and co-accused had parted with a substantially large piece of land, most of which was situated in the same mauza as were the exchanged plots; secondly, in addition to the said land, the accused and co-accused were also paying to the company charges for the development of the land converted into plots. In any event despite having all the required information and details, NAB had failed to place before the court any material to show, or to otherwise persuade the court to believe that the exchange was unfair and/or that the accused and co-accused had through the said transaction illegally enriched themselves at the cost of the company. In any view of the matter, since the transaction was between private individuals / entities, who were free agents, and had no bearing on any public or governmental interest, no exception to the same could have possibly been taken by NAB.

As regards the allegation against accused and co-accused of receiving amounts of approximately Rs. 6.2 million and Rs.12 million from the company, they had furnished to NAB the relevant information and details, wherein the amount of commission received by the accused and co-accused from the company was mentioned for the services rendered by them for purchase of lands by the company from its various owners. Accused and co-accused had also furnished to the NAB complete details of their bank accounts, the source of the deposits held therein, and also the income tax returns along with the wealth tax statement, not only for the relevant years, but for the other periods as sought by the NAB. The accused also duly filled and furnished to the NAB the assets declaration proforma as required by them. However, the NAB neither through any of notices and/or at the time of the argument, raised any objection regarding the accused's responses, and/or the material and information submitted by the latter, nor did they point out any discrepancy, inconsistency, inaccuracy, lacuna or inadequacy in the various responses, information, and documents submitted by the accused.

Accused and co-accused through their own business concerns/ proprietorships received professional fee and consultancy charges from a building firm, which NAB alleged was a proxy of the company and was being used as a mechanism and a ploy, to camouflage the money trail by layering the receipts. Accused and co-accused through their various replies had furnished to the NAB all the information, details and documents required by them through their various call up notices in such regard. They thus provided to the NAB the respective agreements between their business concerns/proprietorships, and the building firm, which contained the relevant details and the terms and conditions of the business engagements between those concerns and the building firm. The accused and co-accused had also furnished to the NAB the details of various amounts received by them from the building firm by way of commission and consultancy fee for the relevant years, and the amounts of tax paid thereon. As evident from the record, when asked the accused and co-accused also disclosed the total number of housing units constructed by the building firm in the housing scheme, and as to how many of them were marketed/sold by them, and in respect of how many such units they provided consultancy. The accused and co-accused also provided particulars and details, such as the designated numbers of those units, their respective categories, the buyer names, the amounts of commission and/or consultancy fee received by them, the dates of such payment cheques, the name of the banks on which such cheques were drawn, numbers of units sold each year, number of units in respect whereof consultancy was provided each year, and the nature of the consultancy services provided. Price of the units sold were received directly in the bank accounts of the building firm only. Neither the investigation report nor the Reference specified any discrepancy or inadequacy in the responses received from the accused and co-accused, nor was any lacuna pointed out in the transactions in question. Even otherwise, the transactions/business relationship between the company, the building firm and the accused and co-accused, and the various payments received by them through their concerns, were matters purely between private concerns and individuals. Neither had it been alleged that any loss had been suffered by any Government, nor had it been pleaded that any member of the public had in any manner suffered on account of above and/or it was because of such payments that the purported claimants/complainants were allegedly deprived of possession of their promised plots.

It was not clear as to what in fact brought the NAB into action in the present case. Whether it were some complaints from 'members of public at large' regarding non-delivery of plots, or was it some investigation, conducted against the accused persons, revealing that the company had denied possession of plots to its customers (in which latter case again it was not known as to what occasioned such investigation) that triggered NAB against the accused, co-accused and other persons accused in the case. Furthermore, there was a serious inconsistency between what was said about the complaints received from the public in the Reference and that stated in the investigation report, according to which report the complaints did not simply allege denial of possession and/or non-refund of the amounts but, that "the accused persons illegally and arbitrarily cancelled the plots of public and changed their location from front block to tail blocks and misappropriated the same". Neither were any copies of the many purported claims/complaints, placed on record, nor were any details thereof submitted before the court. It was also not claimed that any of the complainants filed any complaint/claim before any appropriate relevant authority earlier or filed any suit/ proceedings, challenging the alleged cancellation and/or non-delivery of possession, and/or change of location and misappropriation. No correspondence by any of the purported complainant/claimant had been referred to. National Accountability Bureau (NAB) had, therefore, not been able to demonstrate and explain the real nature of the disputes or the issues that arose between the company and the purported claimants, and had failed to explain, as to whether the conduct of the management of the company in the matter would attract the provisions of the Ordinance, to enable the NAB to even initiate an enquiry in such regard.

National Accountability Bureau (NAB) miserably failed to establish any control of the accused and co-accused over the management of the company despite all their endeavours, so far, and they had not even claimed that any of the complainants/claimants alleged any role or concern of the accused and co-accused in the alleged non-delivery of possession of their claimed plots and/or non-refund of their money paid for the said plots. It was intriguing as to how the names of the accused and co-accused cropped up in the present case.

Present case was a classic example of trampling fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution. Conduct of NAB throughout the present case was a clear manifestation of their utter disregard for law, fair play, equity and propriety. Prima facie there seemed no reasonable ground to believe that the accused and co-accused were or had been involved in the commission of any offence triable under the Ordinance, so that they could have been labelled or treated as "accused" within the meaning of section 5(a) of the Ordinance. National Accountability Bureau had not been able to connect the accused and co-accused either as members, partners or directors of the company and/or even, for that they promoted, established or operated the same. Accused and co-accused were granted bail in circumstances.

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

----Ss. 9, 18(e) & 24---Corruption and corrupt practices---National Accountability Bureau---Victimization of political opponents---Arrest and lengthy incarceration without sufficient cause---Observations about the working of the National Accountability Bureau recorded by the Supreme Court.

The National Accountability Ordinance, 1999 ('the Ordinance') from its very inception became increasingly controversial, its image had come under cloud and there was a wide spread perception of it being employed as a tool for oppression and victimization of political opponents by those in power. It was frequently alleged that the National Accountability Bureau ('the Bureau') was being flagrantly used for political engineering. Discriminatory approach of the Bureau was also affecting its image and had shaken the faith of the people in its credibility and impartiality. The Bureau seemed reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side were being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandated investigations to be concluded expeditiously and trial to be concluded within 30 days. Nonetheless, investigation was often not concluded for months and cases remained pending for years. It was because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases was abysmally low. Such state of affairs was certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways.

In exercising its power and authority, the Bureau should not lose sight of the well-entrenched legal principle that no power conferred upon executive or public authority was unfettered. Every executive act had to be founded in law and had to be exercised as prescribed thereby, particularly, where the exercise of such power, tended to intrude into the constitutionally guaranteed rights. This was even more pertinent when such action violated the liberty of a person, or was likely to hurt his honour, and dignity. The Bureau should remain mindful of the fact that the power to arrest, as conferred by section 18(e) read with section 24 of the Ordinance, was always subject to review by the constitutional courts on the ground of fairness, proportionality, reasonableness, and necessity.

Ismaeel v. The State 2010 SCMR 27 ref.

(d) Constitution of Pakistan---

----Arts. 9 & 14(1)---Right to liberty and dignity---Scope---Pre-trial arrest/detention---Adverse consequences and justification---Arrest of any person was a grave matter---Capricious exercise of the power to arrest had deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity---One of the grave consequences of pre-arrest confinement, was the humiliation and disgrace resulting from such arrest, for not only the accused but also his family and persons attached to him---Arrest caused irreparable harm to a person's reputation and standing in society, often subjecting him to hate, vitriol, and infamy---Arrest of a person had to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence/crime complained of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available---Power of arrest should not be deployed as a tool of oppression and harassment---Sufficient incriminating material must be available to justify deprivation of a person's liberty---Arbitrary exercise of power to arrest was abuse of authority---In cases where the question of liberty and dignity of an individual was involved, strict scrutiny of the prosecution's case was required by the courts---Any deprivation of liberty had to be adequately justified on the touchstone of the principle of proportionality, unreasonableness and necessity.

Muhammad Bashir v. Station House Officer, Okara PLD 2007 SC 539; Mst. Sughran v. The State PLD 2018 SC 595; Liversidge v. Anderson (1941) 3 All E.R 338, Lord Atkin; Arnesh Kumar v. State of Bihar and another AIR 2014 SC 2756 at 2758; Moti Ram and others v. State of Madhya Pradesh AIR 1978 SC 1594; Siddharam Satlingappa Mhetre v. State of Maharashtra and others AIR 2011 SC 312 at 330; Zaigham Ashraf v. The State 2016 SCMR 18; Tariq Bashir v. The State PLD 1995 SC 34 and R. v. Oakes' (1986) 1 SCR 103 ref.

(e) Bail---

----Object and purpose---While dealing with the question of whether or not bail was to be granted to an accused, it had to be kept in mind that the object of bail was to secure the attendance of the accused at the trial---Such object was neither punitive nor preventive---Imprisonment of a person and deprivation of his liberty, could not be described other than, being a punishment, unless no less restrictive alternative was available to ensure that the accused would stand his trial when called upon to do so---Courts while dealing with the grant of bail and the justifiable exercise of power of arrest had to maintain a balance between two fundamental but conflicting demands of personal liberty of the accused on one hand and the investigational right of the police on the other hand.

Sanja Chandra v. Central Bureau of Investigation AIR 2012 SC 830 at 837-838 and Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281 at 287 ref.

(f) Constitution of Pakistan---

----Arts. 184, 185 & 199 & Chap. 1 Pt. II [Arts. 8 to 28]---Executive actions---Judicial review by Constitutional Courts (High Courts and the Supreme Court)---Scope---Constitutional courts were the guardian of the Constitution, and thus required to ensure that the executive refrained from violating the constitutional mandate, and to stop such violation when it occurred---Court had to review the executive actions and the conduct of the public authorities on the touchstone of fairness, reasonableness and proportionality---Courts should not hesitate in performing their constitutional duty objectively, particularly, when it came to the matter of rights that had been guaranteed by the Constitution.

Ashtar Ausaf Ali, Advocate Supreme Court, M. Azam Nazir Taar, Advocate Supreme Court and Muhammad Amjad Pervaiz, Advocate Supreme Court, assisted by Muhammad Adil Chattha for Petitioners.

Jehanzeb Khan Bharwana, Additional P.G., Naeem Tariq, Special Prosecutor (NAB) and Zawar Manzoor Waraich, Deputy Director, (NAB) for Respondents.

P L D 2020 Supreme Court 508

Present: Mushir Alam and Qazi Faez Isa, JJ

Mst. BEENA---Petitioner

Versus

RAJA MUHAMMAD and others---Respondents

Civil Petition No. 4129 of 2019 and C.M.A. No.10406 of 2019, decided on 13th July, 2020.

(On appeal against the judgment dated 16.09.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No.1903-P of 2019).

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

----S. 25---Contract Act (IX of 1872), Ss. 23 & 25---Custody of minor---Disabled mother with no substantial source of income---Hizanat, right of---Scope---Agreement for khula' between husband and wife whereby the latter gave up custody of their minor son---Repugnancy of such agreement to Inunctions of Islam---Mother in whom right of hizanat vested could not be compelled to surrender it nor could such surrender constitute consideration for an agreement of khula'---Holy Quran, which enabled khula', did not contemplate surrendering a child's custody to secure khula' nor that it could constitute valid consideration for it---To insert such a condition in an agreement of khula' was contrary to the law, public policy, and the Injunctions of Islam---Such a stipulation would be void under S.25 of the Contract Act, 1872 because it was without consideration---Any agreement the object or consideration of which was against public policy was void, as stipulated in S.23 of the Contract Act, 1872.

Family Judge came to a legally and factually correct decision that the child's welfare lay in the mother having his physical custody; that the mother's disability was not a factor that could deprive her of custody; and even if the mother was financially incapable to provide for the child, it was not her responsibility to do so but that of the father to maintain the child. Judgment of the Family Judge was upheld by the Appellate Court, however, the two concurrent judgments were set aside by the High Court by relying on the agreement between the husband and wife, and the clause therein stipulating that the mother could not claim the custody of her son. High Court held that the mother's physical condition meant that she was not able to look after her child and further held that she was not financially independent. All three said reasons which prevailed with the High Court were extraneous to the law and Shariah, pertaining to the personal law of Muslims.

Mother in whom hizanat vested could not be compelled to surrender it nor could such surrender constitute consideration for an agreement of khula. Custody of a child or rights to his/her custody could not be surrendered to obtain khula nor could the husband demand such surrender. Holy Quran, which enabled khula, did not contemplate surrendering a child's custody to secure khula nor that it could constitute valid consideration for it. To insert such a condition in an agreement of khula was contrary to the law and the Injunctions of Islam.

PLD 2006 SC 533 and Surah Al-Baqarah (2) verse 229 and Surah An-Nissa (4) verse 35 ref.

In the agreement under consideration the wife in order to obtain khula not only surrendered her dower (haq mehr) but also agreed to forego the custody of her son. The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody was not lawful consideration; it was contrary to the Islamic principles governing hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which was against public policy was void, as stipulated in section 23 of the Contract Act, 1872. The welfare of a minor could not be subsumed by the interest of his father, and if this was done it would be against public policy, and such clause or condition would be void. Such a stipulation would also be void under section 25 of the Contract Act because it was without consideration.

Impugned judgment of the High Court was set-aside and consequently, the father was directed to hand over the physical custody of the minor to the mother.

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

----S. 25---Custody of minor---Welfare of child---Scope---Disabled mother with no substantial source of income---In determining the welfare of the child and his custody neither the mother's physical condition nor her income were determinative factors.

(c) Constitution of Pakistan---

---Arts. 9, 14 & 25---Persons with disabilities or persons with different abilities---Use of pejorative words such as 'crippled' or 'disabled' in judgments---Such words seriously offended the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Arts. 9, 14 & 25 of the Constitution.

PLD 2018 Lah. 300 ref.

Ms. Jamila Jahanoor Aslam, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court along with Respondent No.1. in person.

Child, Muhammad Rayan, produced pursuant to Court order.

P L D 2020 Supreme Court 518

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER OF INLAND REVENUE, LEGAL DIVISION, LAHORE and others---Petitioners

Versus

Messrs RAFEH LIMITED---Respondent

Civil Petitions Nos. 310-L to 314-L of 2017, 741-L, 742-L, 752-L, 782-L to 784-L of 2019, 979-L of 2019, 2557-L of 2018, 3119-L of 2017, 3747-L of 2019 and 3749-L of 2019, decided on 15th July, 2020.

(On appeals from the orders of Lahore High Court, Lahore dated 14.12.2016, passed in PTR Nos.414 to 418 of 2010, dated 19.09.2017 in PTR No.174 of 2009, dated 31.10.2016 in PTR No. 147/2007, dated 23.11.2016 in PTR No.311/2008, dated 06.12.2016 in PTR Nos. 450 and 451 of 2012, dated 23.11.2016 in PTR No. 425 of 2012, dated 23.11.2016 in I.T.As. Nos. 01, 02, 03 of 2001, dated 12.09.2018 in PTR No.282/2004, dated 12.06.2018 in PTR No.281 of 2004, dated 12.09.2018 in PTR No. 194 of 2007).

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

----S. 133(1)---Tax Reference/Application filed before the High Court under S.133(1) of the Income Tax Ordinance, 2001---Nature and scope---Application under section 133(1) of the Income Tax Ordinance, 2001, also referred to as a "Tax Reference", was in effect an appeal and it must be construed as such---Misimpression and confusion that a Tax Reference invoked advisory jurisdiction of the High Court and therefore the High Court was bound to answer the question of law brought before it was a misconception and should be dispelled.

Messrs Squibb Pakistan Pvt. Ltd. and another v. Commissioner of Income Tax and another 2017 SCMR 1006 ref.

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

----S. 133(1)---Limitation Act (IX of 1908), First Sched. Art. 168---Tax Reference/Application filed before the High Court under S.133(1) of the Income Tax Ordinance, 2001 ('the Ordinance')---Dismissed for non-prosecution---Application for restoration of the Tax Reference/ Application, limitation for---Since Reference/Application under S.133(1) of the Ordinance was in effect an appeal, Art. 168 of the First Schedule of the Limitation Act, 1908 was fully applicable and provided 30 days as the period of limitation for readmission or restoration of an appeal dismissed for want of prosecution.

Messrs Squibb Pakistan Pvt. Ltd. and another v. Commissioner of Income Tax and another 2017 SCMR 1006 ref.

Sajid Ijaz Hotian, Advocate Supreme Court for Petitioners (in C.Ps. Nos.310-L to 314-L of 2017).

Imtiaz A. Shaukat, Advocate-on-Record and Ibrar Ahmad, Advocate Supreme Court for Petitioners (in C.P. No.3119-L of 2017).

Imtiaz A. Shaukat, Advocate-on-Record and Mian Yousaf Umar, Advocate Supreme Court for Petitioners (in C.Ps. Nos.2557-L of 2018, 9797-L of 2019, 741, 742, 752, 782 to 784-L of 2019).

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court for Petitioner (in C.Ps. Nos. 3747 and 3749-L of 2019).

Amir Umer Khan, Advocate Supreme Court for Respondents (in C.Ps. Nos.741, 742-L, 782 and 783-L of 2019).

M. Iqbal Hashmi, Advocate Supreme Court (in C.P. No.3749-L of 2019 and 782 to 784-L of 2019).

P L D 2020 Supreme Court 523

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

RAZA and another---Petitioners

Versus

The STATE and 2 others---Respondents

Criminal Petitions Nos. 1124-L and 1120-L of 2015, decided on 25th June, 2020.\

(Against the judgment of the Lahore High Court, Lahore dated 14.09.2015 passed in Murder Reference No. 276 of 2011 and Criminal Appeal No. 966 of 2011).

Per Syed Mansoor Ali Shah, J; Manzoor Ahmad Malik, J. agreeing; Sayyed Mazahar Ali Akbar Naqvi, J. reaching the same conclusion as the majority view but with different reasoning. [Majority view]

(a) Criminal trial---

----Appreciation of evidence---Scope---In a criminal trial the proper course for the court was to first discuss and assess the prosecution evidence in order to arrive at the conclusion as to whether or not the prosecution had succeeded in proving the charge against the accused on the basis of the evidence---In case where the accused had taken a specific plea the court was to appreciate the prosecution evidence and the defence version in juxtaposition in order to arrive at a just conclusion.

Ali Ahmad v. State PLD 2020 SC 201 ref.

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

----S. 161---Examination of accused by police---Scope---Statement of the accused after his arrest or during investigation was covered by S.161, Cr.P.C.---Where the accused gave version of the same occurrence which was different from the one recorded in FIR, such version was also recorded under S.161, Cr.P.C.

Expression "any person" used in section 161, Cr.P.C. had to be understood in its context. It required a police officer making an investigation to examine "any person" supposed to be acquainted with the facts and circumstances of the case. Said expression was extensive and, in its plain and ordinary meaning, included all persons who were supposed to be acquainted with the facts and circumstances of the case, and not only the witnesses but also those who were alleged to have committed the offence under investigation in a case. A person who was alleged to have committed the offence, was as much supposed to be acquainted with the facts and circumstances of the case as an alleged eye-witness was.

Pakala Narayana Swami v. Emperor AIR 1939 PC 47; Nandini Satpathy v. P.L. Dani AIR 1972 SC 1025; Ratanlal and Dhirajlal. Code of Criminal Procedure, p. 612. 20th Edition. Lexis Nexis; Deoman Upadhyaya v. State AIR 1960 All 1; Ghulam Hussain v. State PLD 1974 Kar. 91 and Sughran Bibi v. State PLD 2018 SC 595 ref.

In most cases a version of the same occurrence different from the one recorded in FIR was given by the accused. Such version of an accused was to be, and is, recorded under section 161, Cr.P.C. Statement of the accused after his arrest or during investigation was covered by section 161, Cr.P.C.

Sughran Bibi v. State PLD 2018 SC 595 ref.

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

----Ss. 161 & 162---Qanun-e-Shahadat (10 of 1984), Art. 38---First statement of accused made before police under S.161, Cr.P.C---Relevancy and admissibility in evidence---Scope---Statement (first version) made by an accused before a police officer was relevant and admissible (in evidence) and not barred under Art.38 of the Qanun-e-Shahadat, 1984 or S.162, Cr.P.C., if used by the accused in his own favour.

Article 38 of Qanun-e-Shahadat, 1984 prohibited the admissibility of a confession made to a police officer if proved against the accused but did not bar the use of it by the accused in his own favour. The Legislature could not be attributed by implication the intent to deprive an accused from his right to make use of any of his statements, if they were relevant and admissible under any provision of the Qanun-e-Shahadat, 1984. Article 38 had been enacted for the benefit of the accused, to eradicate the apprehension that police may misuse their extensive powers if confessions made to them were made admissible in evidence, against the accused. A provision enacted for the benefit of the accused could not be construed to his detriment.

Imperatix v. Pitamber (1877) 2 Bom. 61; Karan Singh v. Emperor AIR 1928 All 25; Hasil v. Emperor AIR (29) 1942 Lahore 37; Lal Khan v. Emperor AIR 1948 Lah. 43; Ghulam Abbas v. State PLD 1968 Lah. 101 and Muhammad Yaqub v. State PLD 1969 Lah. 548 ref.

Like Article 38 of the Qanun-e-Shahadat, 1984, section 162 Cr.P.C was also for the protection of the accused and benefitted the accused. A confessional statement of the accused before a police officer, setting out his first version and used by the accused in his own favour was not barred by the provision of section 162, Cr.P.C. Confessional statement recorded of the accused in the police diary was not hit by section 162, Cr.P.C, if used by the accused in his favour.

Biram Sardar v. Emperor AIR 1941 Bom. 146; Ghulam Hussain v. State PLD 1974 Kar. 91 and Hasil v. Emperor AIR (29) 1942 Lahore 37 ref.

(d) Criminal trial---

---"Confession" and "admission"---Distinction.

Confession was as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confession was defined as a statement made by an accused which "either admit in terms the offence, or at any rate substantially all the facts which constitute the offence." A confession was thus a species of admission, and could briefly be stated to be an admission of the guilt by the accused. There was a distinction between admissions and confessions. Confessions were a species of which admission was the genus. All admissions were not confessions, but all confessions were admissions. If the statement by itself was sufficient to prove the guilt of the maker, it was a confession. If, on the other hand, the statement fell short of it, it amounted to an admission. No statement, which contained self-exculpatory matter, could amount to a confession, if the exculpatory statement was of some fact which, if true, would negate the guilt. A confession was thus an admission by an accused in a criminal case and if he did not incriminate himself, the statement could not be said to be a confession.

Sir J F Stephen, Digest of Evidence , Vol. I (3rd Edition); Pakala Narayana Swami v. Emperor AIR 1939 PC 47; Laiq Shah v. State 1990 MLD 581; Sahoo v. Uttar Pradesh AIR 1966 SC 40; Woodroffe and Amir Ali, Law of Evidence, p.1179, vol-1, 20th Edition; Ram Singh v. State AIR 1959 All 518 and Sobar Singh v. State AIR 1966 Pat. 488 ref.

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

----Arts. 37 & 41---Voluntary confession of the accused---Scope---Such confession was a relevant fact under the Qanun-e-Shahadat, 1984.

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

----Art. 27---Facts showing existence of state of mind, or of body, or bodily feeling---Scope and admissibility in evidence.

Article 27 of the Qanun-e-Shahadat, 1984 dealt with such external or collateral facts which showed the existence of any state of mind. Evidence of such external or collateral facts was admitted to prove a person's state of mind, and not to prove the occurrence itself. Thus, the scope of Article 27 was that there must be a cluster of facts outside and around the fact in issue or the occurrence from which inference could be drawn to show and support the state of mind in question; such surrounding facts became relevant under Article 27. Such construction was supported by Explanation 1 to Article 27, which provided that relevant facts must show that the state of mind existed not generally but in reference to the particular matter in question. Both previous and subsequent events may be relevant under Article 27 as showing the state of mind.

Hussain v. Mansoor Ali PLD 1977 Kar. 320; AIR 1947 PC 135; [1922] 2 KB 555 and (1936) 25 Cr. App R 150 ref.

Liaqat Ali v. State 1998 PCr.LJ 216 not approved.

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

----Ss. 161, 162, 340(2) & 342---First statement or confession of accused made before police under S.161, Cr.P.C---Evidentiary value.

Confessional statement of the accused before a police officer at the time of his arrest showed his own version put forward at the earliest possible opportunity and was referred to as the "first version" or the "first plea." First version was a statement made before a police officer which was not otherwise admissible under section 162, Cr.P.C., except in the case of a confessional statement to be used by the accused in his favour. First version of the accused by itself had no special evidentiary value or weight. Once it was found to be relevant and admissible it was to be examined in the light of the overall evidence of the case i.e., the statement of the accused recorded under section 342, Cr.P.C., his statement, if any, under section 340(2), Cr.P.C. along with the defence evidence, if any, and the overall evidence of the prosecution. The attribution of high probative value to the first version of the accused, in some cases, pretending it as a principle of law had no basis in criminal jurisprudence. The probative value of such version of the accused, if found relevant and admissible under the law, was to be determined like any other piece of evidence in the peculiar facts and circumstances of each case as it did not stand on any special footing.

(h) Criminal trial---

----Defence plea---Reasonable possibility of defence plea being true---Benefit of same had to go to the accused.

If after examination of the whole evidence, the Court was of the opinion that there was reasonable possibility that the defence put forward by the accused might be true, then the whole of the prosecution case was viewed in context of this reasonable possibility, entitling the accused to the benefit of the doubt. It would be enough for the accused if, in the final analysis, the defence plea was substantiated to the extent of creating reasonable doubt in the credibility of the prosecution case. Thus, reasonable possibility of the defence plea of being true could benefit the accused.

LR 1935 AC 462; Safdar Ali v. Crown PLD 1953 FC 93; Shamir v. State PLD 1958 SC 242; Mir Ahmed v. State PLD 1962 SC 489; Rahmat v. State 1969 PCr.LJ 1067; Waris v. State PLD 1981 SC 127; Nadeem v. State 1985 SCMR 510; Saifullah v. State 1994 SCMR 1462; State v. Misbahuddin 2003 SCMR 150; Waqar Nazir v. State 2007 SCMR 661; Inayat Ali v. Shahzada 2008 SCMR 1565; Sabir Ali v. State 2011 SCMR 629; Ashiq Hussain v. State 1993 SCMR 417 and Abdul Haque v. State PLD 1996 SC 1 ref.

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

----S. 342---Power of court to examine the accused---Statement of accused under S.342, Cr.P.C.---Scope---Such statement did not strictly constitute evidence but may provide valuable material to the courts for appraising the prosecution evidence in arriving at its findings.

Statement of the accused under section 342, Cr.P.C. was not evidence, it is only the stand or version of the accused by way of an explanation when incriminating material against him was brought to his notice. The statement was not made on oath, and could not be tested by cross-examination, and was made under the protection of immunity, of the maker of the statement from punishment for making false statement. Such statement could not be placed on the same footing as statements made by witness in court on oath, which were tested by cross-examination. Such statement thus did not strictly constitute evidence, but in view of the presumption of innocence in favour of the accused, the statement may provide valuable material to the courts for appraising the prosecution evidence in arriving at its findings. The version given in such statement if found by the court to be reasonable and in accord with the probabilities of the established facts and circumstances, the same may be accepted by the court even without requiring defence evidence, unless the version was falsified by the prosecution evidence.

Devandar Kumar Singla v. Baldev Krishan Singla AIR 2004 SC 3084; Hate Singh Bhagat Singh v. Madhya Bharat AIR 1953 SC 468 and K K Dutta, Treatise on Criminal Law. Pp. 380-389. Eastern Book Company. ref.

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

----Ss. 302(b) & 302(c)---Qanun-e-Shahadat (10 of 1984), Art. 27---Qatl-i-amd---Re-appraisal of evidence---Sentence, reduction in---Grave and sudden provocation---First plea that accused took after his arrest and commencement of investigation was that deceased had made an attempt to commit rape with the sister of accused; that when mother of accused went to reprimand the deceased, he started abusing his mother and also grappled with her; that resultantly the accused flared up and acting under grave and sudden provocation made a single fire shot on the deceased---[Per Mansoor Ali Shah, J (Majority view)]: Article 27 of the Qanun-e-Shahadat, 1984 provided that if a state of mind was a fact in issue or a relevant fact then facts that established the state of mind were also relevant---Such surrounding facts were obviously other than the facts in issue, therefore, Art. 27 had little relevance to the present case---Two eye-witnesses were the brother and wife of the deceased, respectively, but harboured no prior enmity to falsely implicate the accused, hence their testimony could not be discarded merely because of their relationship with the deceased, especially when their presence at the scene of the crime was not unnatural or unusual---Ocular account was fully supported by medical evidence, which confirmed the firearm injuries on the body of the deceased---However, recovery of the carbine was ineffective due to the inconclusive Forensic Science Laboratory Report and, therefore, did not support the prosecution case---Regarding motive both the eye-witnesses had given an inconsistent and contradictory account of the motive behind the incident---Defence plea of grave and sudden provocation found support from the statement of investigating officer made in his cross-examination---Finding of the High Court that the occurrence was without premeditation and pre-planning was in line with the first version of the accused---Confessional statement of the accused made to the investigating officer was relevant and admissible to be used in his favour; said statement was not inherently improbable or unbelievable, nor was it inconsistent with the overall facts and circumstances of the case---First version of the accused did not appear to be a concocted one or an afterthought, as it had been his consistent stance since his arrest in the case till recording of his statement under S.342, Cr.P.C.---Benefit of the possibility of the existence of another version emerging out of the statement of the accused under S.342, Cr.P.C. and his first version before the police officer, if extended to him, brought his case under S. 302(c), P.P.C. instead of S.302(b), P.P.C. and in the circumstances of the case the accused was entitled to such benefit---Conviction and sentence of the accused recorded by the trial court and maintained/modified by the High Court under S. 302(b), P.P.C. were set aside, and instead he was convicted under S.302(c), P.P.C. and sentenced to rigorous imprisonment for 10 years---[Per Mazahar Ali Akbar Naqvi, J [Minority view]: First plea of grave and sudden provocation taken by the accused remained consistent throughout during the course of investigation as well as the trial---During investigation, the first plea raised by the accused was found correct by the investigating officer---Such first plea of accused was admissible in evidence under Art.27 of the Qanun-e-Shahadat, 1984---Record clearly spelt out that occurrence had taken place due to the act of the deceased, which enraged the mental faculty of the accused and under the impulses of the same the present occurrence had taken place---Benefit of the same was available to the accused, for which many circumstances were not required rather a glimpse of the same was always deemed sufficient---Sentence inflicted upon the accused by Courts below under S.302(b), P.P.C. was not made out, therefore, the same was converted from imprisonment for life under S.302(b), P.P.C. to imprisonment for 10 years under S.302(c), P.P.C.]---Petition for leave to appeal was converted into appeal and partially allowed.

Per Syed Mansoor Ali Shah, J [Majority view]

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Sentence, reduction in---Mitigating factors---Motive, absence of---Generally absence of motive was a mitigating factor that had a bearing on the quantum of punishment---Absence of motive, therefore, became relevant if there was possibility of further reduction in the quantum of punishment---In a case where the accused in his first version (before the police) had raised a plea of grave and sudden provocation, motive assumed crucial importance; it was not only explanatory of the conduct of persons concerned in the incident in the given situation, but also helped in the proper appreciation of evidence in the case, in the light of motivation of their conduct.

Per Sayyed Mazahar Ali Akbar Naqvi, J. [Minority view]

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

----Arts. 27 & 28---Facts showing existence of state of mind, or of body, or bodily feeling---First plea of accused---Admissibility in evidence---First plea of the accused was admissible in evidence under Art.27 of the Qanun-e-Shahadat, 1984 ("Order of 1984")---Article 27 of Order of 1984 was a general principle enabling the Investigating Officer to record the same whereas Art. 28 was merely an exception---As a general rule evidence not forming part of the transaction was not admissible whereas Arts. 27 & 28 were exceptions to the said general principle by laying down a rule qua admissibility of those facts which might not be tendered in evidence to prove it but were relevant to prove the status of mind of the person committing it---Guilt, intent, knowledge, negligence, malice etc., and intentions qua these conditions would be admissible as it was provided under Art. 27 of the Order of 1984---Article 27 of the Order of 1984 had extended the scope to meet the question qua the existence of a person's state of mind or bodily feeling and all these facts and their existence in the state of affairs became relevant. [Minority view]

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

----Art. 27---Penal Code (XLV of 1860), S. 302(b)---Act of deceased enraging the mental faculty of the accused, with the latter committing murder of deceased under the same impulse---Benefit of the same (impulse) was available to the accused, for which many circumstances were not required rather a glimpse of the same was always deemed sufficient. [Minority view]

Ch. Walayat Ali, Advocate Supreme Court for Petitioner (in Criminal Petition No. 1124-L of 2015).

Nemo for Petitioner (in Criminal Petition No. 1120-L of 2015).

Jaffar, Additional Prosecutor General for the State.

P L D 2020 Supreme Court 551

Present: Umar Ata Bandial and Qazi Muhammad Amin Ahmed, JJ

MINISTRY OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS, ISLAMABAD and another---Appellants

Versus

C.M. PAK (PVT.) LTD., ISLAMABAD and another---Respondents

Civil Appeals Nos. 977 and 978 of 2018 and C.M.A. No. 3658 of 2019 in Civil Appeal 978 of 2018, decided on 22nd April, 2020.

(Against judgment dated 26.02.2018 passed by the Islamabad High Court Islamabad in F.A.O. No.42 of 2016).

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

----Ss. 8(2)(c) & 54(3)---Constitution of Pakistan, Art. 232---Power of Federal Government to issue policy directives---Suspension/disruption of cellular services---Matters of national security---Distinction between Ss.8(2)(c) & 54(3) of the Pakistan Telecommunication (Re-organization) Act, 1996 stated.

Sections 8(2)(c) & 54(3) of the Pakistan Telecommunication (Re-organization) Act, 1996 ('the Act') catered to different circumstances. Section 54(3) conferred powers on the Federal Government to modify or suspend all or any orders or licences in a situation where an Emergency was imposed by the President under Article 232 of the Constitution. On the other hand, section 8(2)(c) empowered Pakistan Telecommunication Authority (PTA) to take steps pertaining to matters of national security, diplomatic protocols and State functions. The purpose of the two sections was distinct. Section 54(3) was reactive and defensive in nature, coming into the field when on account of grave circumstances in the country or its provinces a Proclamation of Emergency was issued by the President potentially involving suspension of Fundamental Rights and the Provincial Government(s). Conversely, section 8(2)(c) contemplated pre-emptive action as it allowed for the disruption of services before any perceived threat in a specified area materialised. Further, under section 54(3) cellular services may according to the terms of the Emergency be disrupted for a lengthy period of time over an extensive area. In contrast, disruption of services under section 8(2)(c) was likely to be event specific and localised, in effect applying only for a temporary period of time across a limited area. Both sections operated in separate spheres and situations with no conflict between them nor any primacy being given to one over the other. Section 54(3) did not control the exercise of power under section 8(2)(c) of the Act.

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

----Ss. 8(2)(c) & 54(3)---General Clauses Act (X of 1897), S. 24A---Suspension of cellular services---Policy directive published by the Ministry of Information Technology (I.T. and Telecom Division) under S.8(2)(c) of the Pakistan Telecommunication (Re-organization) Act, 1996 ('the impugned policy directive')---Vires of---Pursuant to the impugned policy directive Pakistan Telecommunication Authority (PTA) from time to time issued directions whereby cellular services provided by telecom licensees were ordered to be suspended in specified areas for limited time on grounds of national security or public safety---High Court struck down the impugned policy directive as ultra vires for failing to meet the criteria and conditions laid down in S. 54(2) and (3) of the Pakistan Telecommunication (Re-organization) Act, 1996 ('the Act')---Held, that impugned policy directive dated 26-12-2009 set out the purpose, causes and parameters of suspensory action by PTA; it gave law enforcement authorities the power to forward written requests to PTA specifying the cellular services to be closed, the time and duration of closure and the specific area where such closure was to be implemented in case of significant threat of "hostilities against Pakistan by a foreign power" or "internal aggression by terrorists/ groups"---Nothing in the impugned policy directive contravened any substantive provision of S.54 of the Act, instead, it complemented and strengthened the purpose of the Act by attending to national security situations that fell outside the ambit of S.54(3)---To curtail escalation of damage/violence there was a legitimate need to suspend cellular services during events like Ashoora in Moharram, Pakistan Day Parade, protests by religious groups etc.---Protective measures were taken on the request of law enforcement authorities in view of past experience of terrorist activities at similar events---If such events caused the issuance of the impugned directions then the same would be in the public interest, reasonable, fair, consistent with the object of the law and therefore valid---Accordingly, the exercise of power by PTA under the impugned policy directive ought to be evaluated in the light of the threat that was anticipated---Power of PTA under the impugned policy directive did not conflict with S. 54(3) of the Act which operated in a different field; in fact, it was regulated by S. 8(2)(c) of the Act read with S. 24A(1) of the General Clauses Act, 1897---Besides it was not within the province of a Superior Court to strike down or interfere with decisions taken by Federal Government bodies pursuant to the impugned policy directive---Consequently, the impugned judgment of High Court was set aside with the observations that if the respondent telecom licensee had any grievance regarding the manner in which the power under S.8(2)(c) of the Act was exercised by PTA it should have taken up the matter in the first instance with the Federal Government, therefore, its recourse to a Court of law straightaway was pre-mature and vexatious---Appeals were allowed accordingly.

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

----S. 24A---Exercise of power by an authority under an enactment---Scope and criteria---Reasonableness and fairness were criteria that bore nexus with the factual matrix of a grievance and with the object of the law.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630 ref.

Sajid Ilyas Bhatti, Addl. A.G.P. and M. Ayub, Ministry of I.T. for Appellants (in C.A. 977 of 2018).

Munawar Iqbal Duggal, Advocate Supreme Court, Sajjad Latif, D.G. (Law) PTA, M. Khurram Siddiqui, Director Law, PTA M. Kashif, A.D. PTA for Appellant (in C.A. 978 of 2018).

Mian Shafaqat Jan, Advocate Supreme Court, M. Sharif Janjuah, Advocate-on-Record for Respondents (in all cases).

Rashid Hanif, Advocate Supreme Court for Respondents (in C.M.A. 3658 of 2019).

P L D 2020 Supreme Court 559

Present: Maqbool Baqar, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

CRIMINAL SUO MOTU REVIEW PETITION NO.84 OF 2018 IN CRIMINAL APPEAL NO. 378 OF 2001 AND CRIMINAL PETITION NO. 947 OF 2018

SIKANDAR HAYAT and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Suo Motu Review Petition No.84 of 2018 in Criminal Appeal No. 378 of 2001 and Criminal Petition No. 947 of 2018, decided on 28th July, 2020.

(On appeal from the judgment dated 13.06.2002 passed by this Court in Criminal Appeal No.378 of 2001.)

(On appeal against the order dated 05.09.2018 of Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Revision No.118 of 2015.)

Per Yahya Afridi, J; Maqbool Baqar, J agreeing; Qazi Muhammad Amin Ahmed, J dissenting. [Majority view]

(a) Constitution of Pakistan--

---Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 2---Suo motu review jurisdiction of the Supreme Court---Limitation---Rule 2 of O. XXVI of the Supreme Court Rules, 1980 mandated that the application for review was to be filed (by an aggrieved party) within thirty days from the date of the judgment or order sought to be reviewed---However, the legislature prescribed no time period for the Supreme Court to review its judgment or order---Supreme Court had not provided for itself any time period to review its judgment or order, but any aggrieved party seeking the review of judgment or order of the Supreme Court was mandated to apply within 30 days from the decision of the Supreme Court it sought to review---Parliament and the Supreme Court appeared to be in consonance in leaving the authority of the Supreme Court to review its judgments and orders to be governed by the merits of each case and not being bound by any period of limitation---Thus, any judgment or order, which warranted revisiting and correction could be reopened without being hindered by any time limit.

(b) Constitution of Pakistan--

----Arts. 185(3) & 188---Supreme Court Rules, 1980, O.XXVI, R. 1 & O. XXIII, R. 2---Penal Code (XLV of 1860), S. 302(b)---Prisoners on death row or sentenced to lengthy prison terms ---Petition for leave to appeal or review petition filed before the Supreme Court belatedly---Condonation of delay---Held, that there was judicial consensus to condone the delay in entertaining petitions filed by condemned prisoners, especially, when they faced capital sentence or a long imprisonment sentence or for being in jail and having no access to legal assistance or safe administration of justice for the reappraisal of evidence---Delay of 5844 days in filing review petition was condoned in the present case---Suo motu review petition was allowed.

Muhammad Din and others v. The State PLD 1977 SC 52; Riaz Masih v. The State 1983 SCMR 423; Mst. Asia Bibi v. The State PLD 2019 SC 64; Sadiq v. The State PLD 1967 SC 356; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Muhammad Dawood v. The State 1986 SCMR 536; Muhammad Bakhsh alias Muhammad v. The State 1985 SCMR 72; Muhammad Nawaz v. The State PLD 2002 SC 287 and Bashir Ahmed alias Mannu v. The State 1996 SCMR 308 ref.

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

----S. 302(b)---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating circumstances---Expectancy of life, rule of---Scope--- Right of expectancy of life, was a right of a convict sentenced to death, who while consciously pursuing his judicial remedies provided under the law had remained incarcerated for a period equal or more than that prescribed for life sentence--- Courts considered such delay in the final judicial determination of a convict's fate to be one of the mitigating circumstances for the commuting sentence of death to life imprisonment---Such application of discretion by the appropriate court was regarded as the rule of expectancy of life---Courts were not to blindly apply the rule of expectation of life on every such claim made by a condemned convict, but were to consider each case according to its peculiar facts and circumstances--- Courts were to adjudge such claim, if found to be genuine, not to be the sole ground but as one of the mitigating circumstances for commuting a capital sentence to a lesser punishment--- Surely, a positive application of the rule of expectancy of life of every claim so made by a condemned prisoner would defeat the powers of an appellate court to convert an order of acquittal to a capital sentence or for that matter, of a revisional court in enhancing the lesser sentence to that of death---Such (positive) uniform application of the rule of expectancy of life, would negate statutory appellate or revisional powers vested in a court under the law, and thus could not be accepted with approval.

Hassan and others v. The State and others PLD 2013 SC 793 and Dilawar Hussain v. The State 2013 SCMR 1582 ref.

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

----S. 302(b)---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating circumstances---Inordinate delay in execution of death sentence--- Expectancy of life, rule of---Scope---Rule of expectancy of life as applied in common law jurisdictions (outside Pakistan) stated.

Hassan and others v. The State and others PLD 2013 SC 793 and Riley and others v. Attorney General of Jamaica and another [1982] 3 All ER 469 ref.

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

---S. 302(b)---Qatl-i-amd---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating circumstances---Expectancy of life, rule of---Judicial history and trend of rule of expectancy of life as applied in Pakistan traced.

Intizam Hussain v. The Crown PLD 1951 FC 142; Ghulam Hassan v. Zainullah and The State PLD 1961 SC 230; Fazal Khan v. The State PLD 1964 SC 54; Muhammad Ramzan v. The State PLD 1966 SC 129; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Hassan and others v. The State and others PLD 2013 SC 793; Siddique v. The State 1970 SCMR 288; Samano v. The State 1973 SCMR 162; Muhammad Hassan v. The State 1973 SCMR 344 and Dilawar Hussain v. The State 2013 SCMR 1582 ref.

(f) Constitution of Pakistan --

---Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction vested in the Supreme Court under Art. 188 of the Constitution read with O.XXVI of the Supreme Court Rules, 1980 could be invoked when there was an error apparent on the face of the record, or for ends of justice or to prevent abuse of the process of the Court--- Such jurisdiction was not open to allowing re-hearing or re-arguing the merits of a criminal case which had finally been concluded.

Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Ghulam Sarwar and another v. The State 1979 SCMR 43; Sultan Khan v. Taj Din PLD 1963 SC 97; Engineer Naraindas v. Federation of Pakistan 2002 SCMR 83; Naseer Ahmed v. The State 2006 SCMR 942 and Khan v. The State 2008 SCMR 880 ref.

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

----S. 302(b) ---Juvenile Justice System Ordinance (XXII of 2000) S. 7 [since repealed]--- Qatl-i-amd, common intention---Re-appraisal of evidence---Sentence, reduction in---Death sentence reduced to life imprisonment---Mitigating circumstances---Prisoners on death row for more than 25 years--- Expectancy of life, rule of---Scope---[Per Yahya Afridi, J. [Majority view]: Parties had no previous enmity, and the incident took place suddenly without any premeditation at their common workplace---Four persons including the accused persons were tried for the crime, and two of them with a similar role had been acquitted without any challenge by the prosecution or the complainant party---Most importantly, the right of expectancy of life had genuinely accrued to the accused persons having admittedly being incarcerated in the death cell for a period more than twenty-five years, while they were seeking justice from the judicial courts of the country---Although claim of juvenility raised by accused persons had been rejected by the trial Court and High Court below, but had such claim been out rightly false, it would not have taken three rounds to the trial court based on two remand orders by the High Court---In fact, the crucial ossification test to determine the age of the accused persons could not carried out but for their advanced age---However, on the general medical examination of the accused persons, the doctor found them to be in their early youth, if not being juvenile at the time of the commission of the offence---Without conducting the ossification test, the possibility of determining the actual age of the accused persons at the time of the crime would remain undetermined--- In such circumstances, despite the rejection of claim of juvenility, the same could not be outrightly declared as totally fraudulent aimed to delay and abuse the due process of the law---Sentences of death awarded to accused persons were reduced to imprisonment for life in circumstances]---[Per Qazi Muhammad Amin Ahmed, J. [Minority view]: Pleas raised by accused persons for review of the judgment under review could not be entertained as they essentially required attending to the arguments reconstructed again so as to appraise afresh entire evidence to explore the possibility to substitute findings recorded and conclusion arrived at in the judgment under review---Therefore, it did not lie within competence of the Supreme Court hearing a review petition to re-examine or revisit conscious and considered analysis undertaken in the judgment under review so as to take retrospectively a different view by taking into account consequences of acquittal of co-accused or on the manner in which the occurrence took place with a view to reassess the quantum of sentence---Such a course could not be adopted without tossing the finality of the Supreme Court into peril---Regarding the plea of juvenility, the idea never crossed accused persons' mind till dismissal of their appeal in the Supreme Court---Silence of accused persons at all forums, compounded by reasonably accurate scientific analysis with the additional premium of two years, safely brought their case out of remit of juvenility without risk of error---Deceased, who was in his prime youth, was brutally stabbed to death by the accused persons over a trivial issue to the horror of onlookers---After dismissal of their mercy petition by the President the accused persons craftily managed time to escape gallows through raising a false plea of juvenility, pursued through abuse of process of law and as such the ill-gotten span of time could not be summed up to extend premium of life onto them under the doctrine of expectancy of life, particularly after dismissal of their plea of juvenility by the Supreme Court---Frivolous, motivated and oblique pursuit to defeat the ends of justice could not be equated with bona fide recourse to law nor the time manipulated thereby validly pressed into service to claim any concession].

Dilawar Hussain v. The State 2013 SCMR 1582 ref.

(h) Administration of justice---

----No party should suffer for the act of court.

Per Qazi Muhammad Amin Ahmed, J (dissenting): [Minority view]

(i) Constitution of Pakistan--

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Review jurisdiction of the Supreme Court---Scope---Supreme Court being the last resort to temporal justice, constitutionally inhered jurisdiction to review its judgment or order, subject to the law and practice of the Court---Supreme Court could undertake such exercise either on a motion made by an aggrieved person or on its own so as to rectify an error apparent on the record with a view to do "complete justice"---Every judgment pronounced by the Supreme Court had to be essentially presumed to have been rendered after solemn, conscious and deliberate consideration on all points, factual as well as legal, arising out of the case and unless there was an error apparent on the record or material irregularity substantially impinging upon the outcome of the case, meriting a contra adjudication, an error simpliciter would not sustain the attempt to review the judgment under review---Similarly mere preponderance of the view canvassed being more reasonable did not allow the possibility to review the judgment under review---Supreme Court would certainly not permit a party to re-argue its case nor would allow appellate scrutiny of the decision of its own peers in the garb of review proceedings---Unless it was unambiguously demonstrated that a judgment or order sought to be reviewed was patently against the law or the Constitution, it could not be reversed or modified on compassion, mercy or generosity, even if it entailed hardship for a party. [Minority view]

Lieutenant Col. Nawabzada Muhammad Ameer Khan v. The Controller of the Estate Duty PLD 1962 SC 335; Venkata Narasimah Appa Row v. The Court of Wards (1886) II A C 660 and Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and others (AIR) 1941 FC 1 ref.

(j) Constitution of Pakistan--

---Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Judgments on criminal side---Review jurisdiction of the Supreme Court---Principles.

Principles expounded by the Supreme Court on the subject of review of criminal judgments could be summed up as follows:-

(i) That in order that an error may be received as a ground for review, it was necessary that it must be one which was apparent on the face of the record, however, if the judgment under review, or a finding contained therein, though suffered from an erroneous assumption of facts, was sustainable on the other grounds available on the record then though the error may be apparent on the face of the record yet it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but it must also have a material bearing on the fate of the case;

(ii) The error must be so manifest and evident that without requiring elaborate discussions, it evinced consequences that no Court would countenance them to remain on the record;

(iii) That review proceeding was neither in the nature of a re-hearing of the whole case nor was it an appeal against the judgment under review; and

(iv) That in criminal matters the Supreme Court would not interfere in review with the quantum of sentence, if a legal sentence had been imposed, or upheld, after due consideration of all the relevant circumstances. [Minority view]

Ayyaz Baig alias Bau Chuhanwala v. The State 2002 SCMR 380; Yaqoob Khan and others v. The State PLD 1996 SC 97; Siraj Din v. Nazar Hussain and others 1979 SCMR 364; Kala Khan and others v. Misri Khan and others 1979 SCMR 347; Ghulam Sarwar and others v. The State 1979 SCMR 43 and Irshad v. The State 1979 SCMR 406 ref.

(k) Constitution of Pakistan--

---Arts. 185(3) & 188---Supreme Court Rules, 1980, O.XXVI, R. 1 & O. XXIII, R. 2---Penal Code (XLV of 1860), S. 302(b)---Prisoners on death row or sentenced to lengthy prison terms ---Petition for leave to appeal or review petition filed before the Supreme Court belatedly---Condonation of delay---Supreme Court was generous in condoning delay to the convicts having regard to the corporal consequences of their sentences---Such generosity, however, was mostly extended in appeals; condonation of delay for review was a different regime. [Minority view]

Ch. Muhammad Zahoor Nasir, Advocate Supreme Court for Petitioners (in Crl. S.M.R.P.No.84 of 2018).

Sanaullah Zahid, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner (in Crl. P.No.947 of 2018).

Naveed Hayat Malik, Advocate Supreme Court for the Complainant.

Mirza Muhammad Usman, DPG for the State.

P L D 2020 Supreme Court 586

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

WAFAQI MOHTASIB SECRETARIAT, ISLAMABAD and others---Petitioners

Versus

SNGPL, LAHORE and others---Respondents

Civil Petition No. 205-L of 2017, decided on 11th August, 2020.

(On appeal from the order of Lahore High Court, Lahore dated 13.12.2016, passed in W.P. No.36461 of 2016)

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

----Art. 9---Federal Ombudsmen Institutional Reforms Act (XIV of 2013), S. 10---Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2003, Regln. 2(m)---Wafaqi Mohtasib (Ombudsman) and Wafaqi Mohtasib's Secretariat---Legal status and powers---Wafaqi Mohtasib's Secretariat was not a legal entity, and did not enjoy any legal status or the power to sue or be sued under the law---Furthermore the Ombudsman, being a creature of the statute, could not challenge the powers vested in him by the legislature, however, the parties to the proceedings may bring such a challenge---Ombudsman by law and by design was not empowered to defend its decisions before a higher forum by becoming a party to the proceedings---Ombudsman had no locus standi to challenge an order passed by the constitutional court that interpreted its jurisdiction or powers under the law.

Wafaqi Mohtasib's Secretariat gave its findings in the present matter and recommended respondent (Sui Northern Gas Pipeline Ltd.) to reconsider the matter by adopting proper procedure and take disciplinary action against its delinquent officers, etc. Respondent challenged said Recommendations of the Ombudsman before the High Court and vide the impugned order the High Court held that the disputes pertaining to detection bills on allegations of meter tampering fell within the exclusive jurisdiction of the Oil and Gas Regulatory Authority ("OGRA") and Ombudsman had no jurisdiction over such like matters.

Wafaqi Mohtasib's Secretariat/petitioner (not the Ombudsman) filed present petition for leave to appeal before the Supreme Court with the prayer that order of the High Court be set aside. The alleged grievance of the petitioner, arose from the curtailment of the jurisdiction and powers of the Ombudsman in matters pertaining to gas detection bills and meter tampering. Primary questions in the present case were whether Wafaqi Mohtasib's Secretariat (or for that matter even the Ombudsman) could maintain the present petition for leave to appeal by challenging the order of the High Court whereby the jurisdiction and powers of the Ombudsman under the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983 ("Order I of 1983") read with the Federal Ombudsman Institutional Reforms Act, 2013 ("Act") had been interpreted and determined; as to how was the Wafaqi Mohtasib's Secretariat or the Wafaqi Mohtasib (Ombudsman) aggrieved by the impugned order; and more importantly, could the Ombudsman and his Secretariat be aggrieved of an order which interpreted and determined the jurisdiction and powers of the Wafaqi Mohtasib under the Order of 1983 and the Act.

Perusal of Order of 1983 revealed that Wafaqi Mohtasib's Secretariat was not a legal entity, infact it was not a defined term under said Order, and did not enjoy any legal status or the power to sue or be sued under the law. Wafaqi Mohtasib's Secretariat was at best an administrative term and referred to the establishment of the offices of the Ombudsman under Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2003. The filing of the present petition by the Wafaqi Mohtasib's Secretariat was, therefore, hopelessly misconceived as it had no locus standi to maintain the instant petition.

Assuming, for the sake of argument, that the present petition was filed by the Ombudsman. Still the question arose, whether the Ombudsman was an aggrieved person in the present matter. The answer to such question required an understanding of the distinction between the two roles enjoyed by the Ombudsman under Order I of 1983. One was personal, that related to the terms and conditions of service of the Ombudsman; while the other was the neutral quasi-judicial institutional role (or statutory) of the Ombudsman to "redress and rectify" mal-administration. In the first case the Ombudsman could be (personally) aggrieved regarding any order that affected his terms and conditions of service under Order of 1983, as that would be affecting his rights to service under the law. However, in the second case, the Ombudsman, could not be said to be aggrieved, if the powers to redress mal-administration vested in him under the law were modified (enhanced or curtailed) by the Parliament or through interpretation of the constitutional court. Challenging the powers would be challenging the law and intent of the Parliament. Ombudsman, being a creature of the statute, could not challenge the powers vested in him by the legislature, however, the parties to the proceedings may bring such a challenge. The powers enjoyed by the Ombudsman could not be confused with his rights under the law.

A neutral quasi-judicial adjudicatory forum created under a statute could not become a party to the proceedings brought before it. Such a forum was simply to redress mal-administration by exercising its powers under the law. The Ombudsman by law and by design was not empowered to defend its decisions before a higher forum by becoming a party to the proceedings. This would totally tarnish its neutrality.

Even the Ombudsman had no locus standi to challenge an order passed by the constitutional court that interpreted its jurisdiction or powers under the law. Therefore, the present petition filed by the Wafaqi Mohtasib's Secretariat was hopelessly misconceived, not maintainable and passed for frivolous litigation resulting in wasting the time of the court. Petition for leave to appeal was dismissed with costs of Rs.100,000/- [p. 591] E & F

Hafiz Ahsaan Ahmad Khokhar, Advocate Supreme Court, Imtiaz A. Shaukat, Advocate-on-Record and M. Usman Arif, D.A.G. for Petitioners.

Umar Sharif, Advocate Supreme Court for Respondent No.1.

P L D 2020 Supreme Court 591

Present: Umar Ata Bandial, Faisal Arab and Mazhar Alam Khan Miankhel, JJ

ALLAH DINO KHAN BHAYO---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

C.R.P. No. 218 of 2013 in C.P. No.1033 of 2013, decided on 4th February, 2020.

(On review of this Court's order dated 9.7.2013 passed in C.P. No.1033 of 2013).

(a) Constitution of Pakistan---

----Arts. 10A & 62(1)(f)---Elections for National/Provincial Assembly---Disqualification under Art. 62(1)(f) of the Constitution---Scope and pre-requisites---Declaration made by court of law---Disqualification under Art. 62(1)(f) of the Constitution could only be imposed by or under a declaration made by a court of law---By such prescription Art. 62(1)(f) created a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he was disqualified under one or more of the grounds listed in the said Constitutional provision---Judicial declaration disqualifying a candidate under Art. 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence---Even an Election Tribunal could only disqualify a candidate when its declaration was issued on the basis of evidence before it---Such a requirement was implicit in Art. 10A of the Constitution which made both due process and fair trial a fundamental right in lawful judicial proceedings---Determination of a dispute relating to a right or liability, the recording of evidence including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment were essential attributes of a court of law.

Sami Ullah Baloch and others v. Abdul Karim Noursherwani and others PLD 2018 SC 405; Sardar Yar Muhammad Rind v. Election Tribunal Balochistan, Quetta and others PLD 2020 SC 137; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif PLD 2017 SC 265; Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 ref.

(b) Constitution of Pakistan---

----Art. 62(1)(f) [as amended by the Constitution (Eighteenth Amendment) Act, 2010]---Civil Procedure Code (V of 1908), S. 11---Review of Supreme Court judgment---Elections for seat of Provincial Assembly---Nomination papers, scrutiny of---Finding by the Returning Officer during scrutiny of nomination papers given in the year 2007---Whether such finding qualified as a declaration given by a court of law in the year 2013 within the terms of Art. 62(1)(f) of the Constitution (as amended by the 18th Amendment to the Constitution)---Held, that amended provision of Art.62(1)(f) of the Constitution was effective prospectively and governed all disqualification claims that arose after its promulgation in the year 2010---In the present case, disqualification of the petitioner under Art. 62(1)(f) was sought in the general election held in 2013 when a declaration by a court of law was necessary to attract the disqualification, whereas the finding given by the Returning Officer was rendered in 2007 prior to the amendment in Art. 62(1)(f)---Such a finding was not a verdict given after a trial by a court of law---Forum of the Returning Officer lacked the attributes of a court of law therefore the electoral disqualification imposed on the petitioner in 2007 under Art. 62(1)(f) of the Constitution ceased to be effective after the 18th Amendment---Observation in the judgment under review that the petitioner was disqualified under Art. 62(1)(f) of the Constitution was recalled---Review petition was allowed.

Summary finding given by the Returning Officer against the review petitioner in the year 2007 did not comply with the requirement laid out in Article 62(1)(f) of the Constitution, as amended in the year 2010 by the Constitution (Eighteenth Amendment) Act, 2010, namely a declaration by a court of law. This was because a Returning Officer did not record evidence in his proceedings which were summary in nature. His finding, unless set aside, was therefore valid only for the corresponding election. In such circumstances, the doctrine of res judicata would also be inapplicable to the finding of the Returning Officer because although the said finding remained unchallenged, the same was given without the recording of evidence including the right of cross-examination. His finding thus lacked the attributes of a declaration given by a court of law. Both these conditions: one that evidence was recorded before a court of law and two, that a finding given by such court was based on the evidence on record, were essential for a finding with binding effect to be governed by res-judicata.

Roshan Ali Buriro v. Syed Murad Ali Shah 2019 SCMR 1939 and Muhammad Saleem Ullah v. Additional District Judge, Gujranwala PLD 2005 SC 511 ref.

The amended provision of Article 62(1)(f) of the Constitution was effective prospectively from the date of its enforcement. This provision governed all disqualification claims that arose after its promulgation in the year 2010. In the present case, disqualification of the petitioner was sought in the general election held in 2013, when a declaration by a court of law was necessary to attract the Constitutional disqualification. On the other hand, the finding given by the Returning Officer in the present case was rendered in 2007 prior to the amendment in Article 62(1)(f) of the Constitution. Such a finding was not a verdict given after a trial by a court of law; namely, for the purposes of present case, an Election Tribunal or a Court of plenary jurisdiction. Since the forum of the Returning Officer lacked the attributes of a court of law therefore the electoral disqualification imposed on the review petitioner under Article 62(1)(f) of the Constitution ceased to be effective after the 18th Amendment.

However, a finding of dishonesty remained an ignoble impediment against the election of the petitioner. Therefore, it must be overcome by the petitioner if at any stage in the future he wished to contest elections. An allegation of dishonesty based on the certificate of a university rather than the finding of the Returning Officer in the year 2007, may still be invoked against the petitioner. This would involve the allegation that the petitioner committed forgery in the year 2007 by falsely claiming his educational qualification to be equivalent to a graduation degree. As such allegation remained unchallenged and unrebutted by the petitioner till date, any aggrieved party could in future object before the competent forum that dishonesty of the petitioner was apparent from the University's finding to the effect that he relied on a fake equivalence certificate for his sanad (degree certificate) issued by a religious institution.

Review petition was allowed and the observation in the judgment under review that the petitioner was disqualified under Article 62(1)(f) of the Constitution was recalled.

Wasim Sajjad, Senior Advocate Supreme Court for Petitioner.

Ch. Aamir Rehman, Additional Attorney General for Federation of Pakistan.

M. Arshad, D.G. Law for E.C.P.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Respondent No.5.

P L D 2020 Supreme Court 599

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Malik UBAIDULLAH---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No. 140-L of 2015, decided on 14th July, 2020.

(a) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Preamble---UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006,Art. 27---Concept of Disability and the importance of role of employment in the lives of persons with disabilities as compared to persons without disabilities stated.

Silvers, Anita. 2010. 'An Essay on Modeling: The Social Model of Disability.' In Philosophical Reflections on Disability, Philosophy and Medicine, 104, edited by Christopher D. Ralston, and Justin Ho. Berlin: Springer; Oliver, Mike. 1983. Social Work with Disabled People. Basingstoke: Macmillan and 1990. The Politics of Disablement: A Sociological Approach. London: Macmillan; Finkelstein, Victor. 1980. Attitudes and Disabled People. New York: World Rehabilitation Fund; Oliver, M., and C. Barnes, 1998. Disabled people and socially. From exclusion to inclusion - London LPC Group; Kamal Lamichhane. Disability, Education and Employment in Developing Countries- From charity to investment. Cambridge University Press. 2005; Moving from the margin - Mainstreaming persons with disabilities in Pakistan. British Council and The Economist Intelligence Unit- 2014; O'Day, B., and M. Killeen. 2002. 'Does U.S. Federal Policy Support Employment and Recovery for People with Psychiatric Disabilities?' Behavioral Sciences and the Law 20: 559-83; Linn, M. W., R. Sandifer, and S. Stein. 1985. 'Effects of Unemployment on Mental and Physical Health.' American Journal of Public Health 75 (5): 502-06; Ewa Giermanowska, Mariola Raclaw, Dorota Szawarska - Employing People with Disabilities, Palgrave, Macmillan, 2020; Kamal Lamichhane. Disability, Education and Employment in Developing Countries- From charity to investment. Cambridge University Press. 2005; Tushti Chopra, 'Expanding the Horizons of Disability Law in India: A Study from a Human Rights Perspective' (2013) 41 J.L. Med. and Ethics 807 and Cotter, Anne M. 2007. This Ability: An International Legal Analysis of Disability Discrimination. Aldershot, Hampshire: Ashgate ref.

(b) Constitution of Pakistan---

----Arts. 9, 14(1) & 25(1)---Persons with disabilities---Fundamental rights under the Constitution---Scope---Constitution, as a whole, did not distinguish between a person with or without disabilities; it recognized inherent dignity of a human being; equal and inalienable rights of all the people as the foundation of freedom, justice and peace---Every person was entitled to all the rights and freedoms set forth therein, without distinction of any kind, therefore, it applied equally to persons with disabilities, guaranteeing them full enjoyment of their fundamental rights without discrimination---Triangular construct of the right to life, dignity and equality under the Constitution provided a robust platform for mainstreaming persons with disabilities.

Junaid Mahmood v. Government of Punjab PLD 2017 Lah. 1 ref.

(c) Constitution of Pakistan---

----Art. 14(1)---Right to human dignity---Scope and purpose---Purpose of the constitutional right to human dignity was to realize the constitutional value of human dignity; to realize a person's humanity; his free will; the freedom to shape his life and fulfill himself; a person's freedom to write his life story---Such vibrancy and vitality was the hallmark of a living constitution in a democracy.

Aharon Barack- Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge 2015 p.144; Pakistan Tobacco Co. Ltd. and others v. Government of N. W.F.P. through Secretary Law and others PLD 2002 SC 460 and Reference No.01/2012 (Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 PLD 2013 SC 279 ref.

(d) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 10---Constitution of Pakistan, Arts. 9, 14(1) & 18---Employment of persons with disabilities---Disability quota---Allocation of 2% disability quota against sanctioned posts---Scope and meaning---Disability Quota was to be calculated on the basis of the total sanctioned posts of the establishment---In every tier of the establishment, the total Disability Quota was to be further apportioned and allocated amongst different categories of posts in the establishment---Determination of different categories was on the basis of their distinct qualifications, selection criteria and separate merit list---In case the sanctioned strength of a post was less than 50, it would be for the establishment to allocate seat(s) from the overall Disability Quota against such a post---If a particular post was not fit for a person with disabilities, the establishment may shift the Disability Quota and adjust it against another post in the establishment so that the overall Disability Quota was maintained at all times.

Section 10 of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 provided that not less than 2% of the total number of persons employed by an establishment at any time shall be persons with disabilities (PWDs). The total number of persons employed meant the total sanctioned posts of the establishment, i.e., an Organization, Authority, Department or Ministry. Two percent (2%) of the total sanctioned posts or workforce of the establishment became the Disability Quota for the establishment. Every establishment had a variety of posts with different qualifications; job descriptions and skill sets. Appointments to these posts were based on different selection criteria and separate merit lists. The mechanism for appointment against 2% Disability Quota was also to work side by side with the general recruitment process for every category of posts. Therefore, the total Disability Quota for the establishment was further apportioned and allocated against the sanctioned strength of various category of posts which had a separate selection criteria.

Phrase "disabled persons" is not approved should be persons with disabilities. Barrister Asfandyar Khan Tareen and others v. Government of the Punjab and others PLD 2018 Lah. 300 and Sajjad Ali v. Vice-Chancellor through Registrar University of Malakand at Chakdara, Dir Lower and others 2020 PLC (C.S.) 235 ref.

There may arise a situation where the posts in a particular category were less than 50, in that case it would be upto the establishment to allocate Disability Quota to respective categories of posts even though they were less than 50 posts in a particular category in order to maintain the overall Disability Quota of the establishment. It may also be the case that a particular category of posts in an establishment may not be fit for a person with disability, in that case the establishment may shift the Disability Quota to posts which are fit for PWDs. The prime objective was to maintain a 2% Disability Quota within the establishment and it was for the establishment to allocate the posts against respective categories in case they were less than 50 in a particular category or not suited to PWDs.

Allocation of 2% Disability Quota on the basis of the advertised posts as compared to the sanctioned posts was adverse to the interest of the PWDs for the reasons that 2% Disability Quota could only be actualized if there was a minimum of 50 posts advertised to secure one post for the PWDs. If the advertisement was for less than 50 posts (due to the vacancies arising at that particular time), Disability Quota on the basis of the advertised posts could not be worked out, depriving the PWDs of their prospect of employment. This could go on for a longtime as posts were advertised as per vacancies which varied from time to time, therefore, if Disability Quota were to be based on the advertised posts, the fate of the PWDs would continue to hang in the balance and remain uncertain unless the posts advertised happened to be above 50. It was, therefore, in the interest of the PWDs that the Disability Quota for the establishment was first worked out on the basis of the total sanctioned posts and then apportioned against the total sanctioned strength of different categories of posts. Thereafter, the posts could be successively filled as and when the vacancies arose through advertisement, keeping the total Disability Quota in mind rather than the number of posts advertised.

Filling the Disability Quota on the basis of advertised posts was, therefore, detrimental to the interest and welfare of the persons with disabilities; was against the letter of the law and offended their fundamental right to life and livelihood and their right to dignity

The advertisement for any category of post must clearly provide the total Disability Quota for that category of posts and the number of seats vacant under the said Disability Quota at the time of the advertisement. [p. 611] M

(e) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Preamble---Constitution of Pakistan, Art. 14(1)---Words "disabled," "physically handicapped" and "mentally retarded"---Such words deeply bruised and offended human dignity of persons with different abilities---Supreme Court directed that the Federal Government and the Provincial Governments were to discontinue the use of such words in official correspondence, directives, notifications and circulars and shift to "persons with disabilities" or "persons with different abilities"; that the view taken by the (Lahore) High Court in the judgment Barrister Asfandyar Khan Tareen and others v. Govt. of the Punjab and others (PLD 2018 Lahore 300) was approved and must be given effect to.

PLD 2018 Lah. 300 approved.

(f) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S. 10---Constitution of Pakistan, Arts. 9, 14(1), 18 & 25(1)---UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006, Art. 2---Employment of persons with disabilities---Disability quota of 2% against sanctioned posts---Persons with disabilities must be provided with the infrastructure, access, support, and facilities at their workplaces---Appropriate modification and adjustments, including assistive technology, where needed, were to be provided to ensure that persons with disabilities could enjoy on an equal basis with others all human rights and fundamental freedoms.

Appointing persons with disabilities under Disability Quota of 2% was half the story. The other half and perhaps the more important half was to provide the infrastructure, access, support, and facilities, so that persons with disabilities, once appointed to a post, could perform their job without feeling physically or emotionally incapacitated in any manner. The biggest barriers to the employment of persons with disabilities was the accessibility and their social acceptability at the workplace. The Government and the concerned establishment was bound to make provisions for it, for otherwise, the Disability Quota and the purpose of the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, would stand frustrated and serve no useful purpose. This support and facilitation for persons with disabilities had been recognized as 'Reasonable Accommodation' under the Convention on the Rights of Persons with Disabilities (CRPD) that Pakistan had ratified in 2011. It means necessary and appropriate modification and adjustments where needed in a particular case to ensure persons with disabilities the enjoyment on an equal basis with others of all human rights and fundamental freedoms.

Reasonable accommodation could be through assistive technology, which was an umbrella term that included assistive, adaptive, and rehabilitative devices for people with disabilities. Assistive technology promoted greater independence by enabling persons with disabilities to perform tasks that they were formerly unable to accomplish, or had great difficulty accomplishing, by providing enhancements to, or changing methods of interacting with, the technology needed to accomplish such tasks.

Dr. K. Thiyagu, Assistive Technology and Inclusive Education, Laxmi Book Publications, 2014 ref.

Ishtiaq A. Ch., Advocate High Court appeared with permission of the Court along with petitioner for Petitioner.

S.N. Khawar, Addl. A.G. and Asif Mahmood Cheema, Addl. A.G. along with Tariq Habib, DEO/D.R. for Respondents.

P L D 2020 Supreme Court 613

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD JAMIL and others---Petitioners

Versus

Mst. SAJIDA BIBI and others---Respondents

Civil Petition No. 4690 of 2018, decided on 12th August, 2020.

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

----S. 6(5)(a)---Second marriage contracted by husband---Dower, payment of---Scope---Entire amount of dower fixed at the time of marriage whether prompt or deferred was immediately payable on account of second marriage---Where a man entered into a second marriage without seeking prior permission either from the existing wife or the Arbitration Council, the dower even if it was termed as deferred or prompt became payable without any delay.

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

----S. 6---Polygamy---Permission in writing from Arbitration Council for contracting second marriage---Provisions of section 6 of the Muslim Family Laws Ordinance, 1961 were in consonance with the Injunctions of Islam---Said provisions had not placed any restriction to contract second marriage, rather it only related to seeking permission before entering into second marriage in order to regulate the structure of society as a whole---Any deviation from the provisions of S. 6 of Muslim Family Law Ordinance, 1961, might ensue number of issues which would frustrate the fabric of relationship within a society.

Raja Ghazanfar Ali Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

P L D 2020 Supreme Court 617

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

FAROOQ HUSSAIN and others---Petitioners

Versus

Sheikh AFTAB AHMAD and others---Respondents

C.R.Ps. Nos. 104-L, 114-L in C.Ps. 258-L, 257-L of 2019, decided on 18th August, 2020.

(Against the order of the Supreme Court of Pakistan dated 01.08.2019, passed in C.Ps. Nos.257-L and 258-L/2019).

(a) Constitution of Pakistan---

----Arts. 10-A, 184, 185 & 188---Judgments/orders challenged before the Supreme Court---Judgment given by the Supreme Court---Scope and contents---If the Supreme Court, having examined the judgment challenged before it, was satisfied with its reasoning and conclusions and was of the view that it did not call for any interference, the Supreme Court could simply endorse the impugned judgment and adopt the reasoning of the court below---In such cases re-tracing the same path travelled by the court below appeared to be an unnecessary exercise and a waste of public time---Finding no reversible error in the judgment, a concise, simple order could suffice, however if the Court was to reverse or modify the judgment of the court below, the reasons for the reversal or modification must be set forth---Such approach was by no means a short-cut which was offensive to fair trial under Art. 10-A of the Constitution.

One of the grounds for review in the present case was that the order under review was without any reason. The order under review passed by the Supreme Court read:- "We have heard the learned counsel for the petitioners at some length and have gone through the impugned judgment of the High Court, the record of the case and the law on the subject. We have not been able to take any exception to the reasoning of the impugned judgment and are of the view that it does not warrant any interference. Leave is, therefore, declined and these petitions are dismissed."

If the Supreme Court, having examined the judgment challenged before it, was satisfied with its reasoning and conclusions and was of the view that it did not call for any interference, the Supreme Court could simply endorse the impugned judgment and adopt the reasoning of the court below. In such a case, re-tracing the same path travelled by the court below appeared to be an unnecessary exercise and a waste of public time - time which could be allocated to other cases where the decisions of the courts below had been overturned or modified. Finding no reversible error in the judgment, a concise, simple order could suffice. On the other hand, if the Court was to reverse or modify the judgment of the court below, the reasons for the reversal or modification must be set forth.

Such approach adopted by the court, was by no means a short-cut which was offensive to fair trial under Article 10-A of the Constitution nor did it in any manner undermine due process and fair-play. It was simply a creative way forward that spared the Court from writing opinions where a mere adoption of a well-reasoned judgment of the court below through a short order served the purpose adequately.

(b) Administration of justice---

----Case management and time management by courts---Nothing was cast in stone---Old practices evolved with changing times---Burgeoning population and the corresponding rapid increase in litigation required imaginative solutions (from the courts)---Courts all over the world had moved on to efficient time and case management techniques.

Dr. Abdul Basit, Advocate Supreme Court for Petitioners (in both cases).

Mian Muhammad Hussain Chotya, Advocate Supreme Court for Respondents (in both cases).

P L D 2020 Supreme Court 620

Present: Qazi Faez Isa and Sardar Tariq Masood, JJ

MUHAMMAD ABBAS---Petitioner

Versus

The STATE---Respondent

Jail Petition No.499 of 2015, decided on 24th August, 2020.

(On appeal against the judgment dated 8.09.2015 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 300-J/ 2013 and Murder Reference No. 138/2011)

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Time of arrival of police at the crime scene---Plea that there was contradiction between eye-witnesses with respect to the time at which police arrived at the crime scene---Held, that such contradiction was neither significant nor material---Crime took place in the dead of night and if there was a discrepancy as to the time when the police arrived, it was understandable as witnesses were not expected to keep an eye on the watch when faced with the shock of a killing they had witnessed---Conviction and sentence of accused under S.302(b), P.P.C was maintained---Petition for leave to appeal was dismissed and leave was refused.

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

----Ss. 302(b) & 302(c)---Murder of wife---Re-appraisal of evidence---Whether there was grave and sudden provocation---Plea of accused-husband that his deceased-wife was a woman of bad character---Held, that there was nothing on record to substantiate such plea---Accused also did not lead evidence to establish this nor repeated this allegation by opting to testify on oath under S.340(2), Cr.P.C., undoubtedly, to avoid being cross-examined---Moreover, if the statement of accused under S.342, Cr.P.C. (which was not on oath and regarding which the accused could not be cross-examined) was accepted in its entirety then too it did not make out a case of grave and sudden provocation---What the statement of accused under S.342, Cr.P.C. disclosed was that he was familiar with the deceased's character, yet he elected to marry her but realized that she had not reformed---On the fateful day the accused had merely seen his wife in the company of a man, without observing indecent or even improper behaviour on either of their parts, thus there was no fact to amount to grave and sudden provocation---If what was alleged by the accused was accepted to be true then too it would not bring his case within the ambit of S.302(c), P.P.C. before the proviso was added to it---Conviction and sentence of accused under S.302(b), P.P.C. was maintained---[Muhammad Qasim v. State (PLD 2018 SC 840) not to be categorized as having decided a question of law or based upon or enunciating a principle of law]---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Qasim v. State PLD 2018 SC 840 not to be categorized as having decided a question of law or based upon or enunciating a principle of law.

PLD 2020 SC 201 distinguished.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Grave and sudden provocation [Exception 1 to the erstwhile S.300, P.P.C.]---Scope---Cases under S.302(c), P.P.C. were those which were covered by the five listed Exceptions to the erstwhile S.300, P.P.C.---Exception 1 to the erstwhile section 300 stipulated that, 'culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation…'---However, grave and sudden provocation was not to be considered subjectively, that is by accepting what was the state of mind of the offender, but was a question of fact to be determined by objective criteria as the Explanation to Exception 1, stipulated, 'Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact'.

PLD 1996 SC 274 ref.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Re-appraisal of evidence---Whether there was grave and sudden provocation---Husband confessing to murdering his wife in the name of honour---Confession of accused, reliance upon---Principle that 'where there was other evidence, a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence' ('the principle')---In the present case the conviction of the accused was not based on his statement (confession) alone---Two eyewitnesses had seen him commit the murder, both of whom were subjected to cross-examination but maintained what they had seen and mostly remained consistent with one another---Eyewitnesses' testimony that the accused had fired on the deceased with a pistol, was further supported by the postmortem report---During the postmortem, a fetus about 12 to 14 weeks' was also discovered by the doctor, who was not cross-examined by the accused, despite having been provided an opportunity to do so---Accused had also not disowned the paternity of the fetus in his S.342, Cr.P.C statement---Present case came within 'the principle' and as such the accused's attempt to provide a justification for the killing of his wife was inconsequential---Conviction and sentence of accused under S.302(b), P.P.C was maintained---Petition for leave to appeal was dismissed and leave was refused.

1983 SCMR 76 ref.

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

----Ss. 302(a), 302(b) & 302(c)---Qatl-i-amd in the name of honour/ ghairat---Holy Qur'an and law of Pakistan did not permit killing on the ground of ghairat (ghairatun in Arabic), nor prescribed a lesser punishment for such killings---Such crimes attracted clause (a) or clause (b) of S.302, P.P.C., for which the punishment was either death or imprisonment for life---For deterring such killings the term 'ghairat' was not to be used to describe them.

The word 'ghairat' nor the Arabic 'ghairatun' was used in the Holy Qur'an. The Holy Qur'an also did not permit killing on the ground of adultery, let alone on the ground of ghairat (ghairatun in Arabic), nor prescribed a lesser punishment for such killings. The law of Pakistan also did not permit this.

By stating that murder was committed on the pretext of ghairat (honour) the murderer hoped to provide some justification for the crime. It may also elevate the murderer's social status with those not familiar with what Almighty Allah Commands in the Holy Qur'an. There was no honour in such killings. Parliament was rightly concerned with the prevalence of such killings and enacted legislation to dissuade, if not stop such crimes. It did so by ensuring that offenders did not avail of the benefit of section 302(c), P.P.C., for which the maximum punishment was twenty-five years imprisonment but which did not prescribe a minimum punishment. Parliament specifically stipulated that such crimes attracted clause (a) or clause (b) of section 302, P.P.C., for which the punishment was either death or imprisonment for life.

The woman or the girl who was killed in the name or pretext of honour had no chance to redeem her honour. She was deprived of both her life and reputation. Killing was never honourable, and a murder should not be categorized as such. It would help deter such killings if the term 'ghairat' was not used to describe them. Respect and language played an important role to bring about a positive change in society and using terminology such as ghairat or honour (for murder) was not helpful.

Tariq Mehmood Butt, Advocate Supreme Court for Petitioner.

Mirza Muhammad Usman, DPG for the State.

P L D 2020 Supreme Court 635

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

Khawaja ANWER MAJID---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and another---Respondents

Civil Petition No. 2129 of 2020, decided on 2nd September, 2020.

(Against the order dated 02.06.2020 passed by the Islamabad High Court Islamabad in W.P. No. 1052 of 2020).

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

----S. 3---Money laundering through fake bank accounts---Bail, grant of---Medical grounds---Deteriorating cardiac health---Request for medical treatment outside Pakistan, denial of---Given advance age of petitioner (78 years) his cardiac health condition was a risk, nonetheless, his request for travelling abroad for his medical treatment could not be entertained---As a sick and infirm person, the accused was entitled to concessions that the law provided to all; these did not include offshore treatments---With scores of accused persons awaiting conclusions of their long drawn trials in over-crowded prisons, letting the few privileged to jump the queue in order to swap rigors of incarceration with comforts that few could afford would be a travesty---Request of accused for treatment abroad was declined, however, since his condition had alarmingly deteriorated and it was unanimously held by a good number of cardiac physicians of repute that he immediately required surgery for aortic valve transplant, a hugely risk intensive procedure that needed to be undertaken under most conducive environment, therefore, it would be appropriate to permit accused to undertake the procedure free from custodial stresses---Accused had been behind bars for a period exceeding two years; his continuous incarceration coupled with fragile health conditions and proposed surgery squarely made his case one of hardship and on that ground alone he was to be released on bail---Accused was granted bail in circumstances with the directions that he shall furnish a bank guarantee either personally or through a surety in the sum of Rs.100 million from a scheduled bank with the Registrar of the Supreme Court besides surrendering his travelling documents; that his name shall be placed on Exit Control List and he shall not be allowed to depart from the jurisdiction of the Accountability Court; that he shall join investigation as and when required by the NAB and also ensure his representation before the Accountability Court, either personally or through video link, whichever was found convenient under the circumstances; that in the event of physical incapacity of accused, his request for dispensation and representation through a counsel shall be considered most thoughtfully, and that in the event of non-compliance with the said directions, the NAB may approach the Supreme Court for the recall of concession of bail---Petition for leave to appeal was converted into appeal and allowed.

Muneer A. Malik, Senior Advocate Supreme Court, M. Kassim Mirjat, Advocate-on-Record and Salahuddin, Advocate Supreme Court for Petitioner.

Hasan Akbar, Additional Prosecutor General NAB, Imran-ul-Haq, Deputy Prosecutor General NAB and M. Qasim, Assistant Director, NAB for Respondents.

P L D 2020 Supreme Court 641

Present: Mushir Alam, Faisal Arab and Syed Mansoor Ali Shah, JJ

Messrs KHURSHID SOAP AND CHEMICAL INDUSTRIES (PVT.) LTD. through Sheikh Muhammad Ilyas and others---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Petroleum and Natural Resources and others---Respondents

CIVIL APPEALS NOS.1113 TO 1155 OF 2017 AND CIVIL PETITIONS NOS.3124, 387-P, 389-P, 392-P, 393-P, 394-P, 399-P, 400-P, 3027, 3028, 3029, 3030, 3138, 3241, 3259, 3260, 3327 AND 3411 OF 2017 AND 3385 OF 2018

(On appeal against the judgments dated 31.05.2017, 28.5.2019, 9.8.2017, 18.8.2017, 21.8.2017, 11.6.2015 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 2178-P/2015 and 2729 to 2731, 3056, 3057, 3058, 3081, 3082, 3109, 3110, 3111, 3112, 3113, 3118, 3137, 3157, 3216, 3268, 3297, 3413, 3489, 3890 of 2014, 542, 858, 885, 2160 to 2166, 2179 to 2182, 2164 to 2166, 2179 to 2198, 2210 to 2233, 2254, 2263 to 2265, 2287 to 2290, 2305, 2307, 2308, 2329, 2373, 2466 to 2468, 2533, 2556, 2558, 2575, 2576, 2589 to 2591, 2593, 2606, 2607, 2608, 2723, 2820, 2852, 2870, 3133, 3163, 3496, 3881, 3915, 3974, 4074, 4522 of 2015, 19, 165, 1415, 1757, 3569, 3849 of 2016, 1601, 1650, 1849, 3270-P, 33104-P, 3302-P, 2843-P of 2017, 2293-P, 778-A, 2232-P to 2234-P, 2427-P to 2429-P, 2472-P, 2938-P, 2939-P, 2940-P, 4300-P of 2016, 589-P, 2408-P of 2017 and 3085-P of 2014).

AND

CIVIL MISCELLANEOUS APPLICATIONS NOS. 20, 86, 812, 813, 814, 815, 1022, 2014 OF 2020 AND 8277, 8278, 8279, 3076, 9149, 9186, 9301, 9305, 9521, 9746, 9844, 10608 OF 2019, 8497 OF 2018, 5307 AND 9153 OF 2017.

(Applications for Impleadment)

AND

CIVIL MISCELLANEOUS APPLICATIONS NOS. 5295, 5511, 5635, 5637, 5639, 5641, 5643, 5645, 5647, 5649, 5651, 5678 TO 5686, 5689 TO 5696, 5699, 5701, 5703, 5705, 5707, 5709, 5711, 5713 AND 5715 TO 5721 OF 2017.

(Applications for Stay)

Per Faisal Arab, J; Mushir Alam, J agreeing; [Majority view]

(a) Res judicata, principle of---

----Scope---Principle of res judicata was a principle of peace---Once a controversy with regard to a right in property or a right to office was adjudicated upon and attained finality through a judicial pronouncement of a competent Court of law, it no more remained open to challenge in any subsequent judicial proceedings between the same parties on the same subject matter---Said principle was intended not to afford a litigant more than one opportunity for resolution of a judicial dispute and thus eliminated the chances of repetitious and successive litigation against a party on the same issue---Maxim "that there should be an end to litigation" was germane to such matters.

(b) Res judicata, principle of---

----Applicability and scope---Vires of a statute---Conflicting judgments of two High Courts---In case of conflicting decisions on the vires of a legislative enactment of two High Courts, when decision of one remained unchallenged in the hierarchy as no appeal was preferred and the other was challenged before the Supreme Court, then the verdict of the High Court that went unchallenged, which was in conflict with the final decision of the Supreme Court had to be treated as outmoded and no longer executable---Such a situation warranted departure from the doctrine of res judicata.

Any relief which a litigant sought in a judicial proceeding with regard to any power or a right or an obligation connected with some property or an office which power or right or obligation was not dependent upon the legitimacy of a legislative enactment and stood or fell on its own strength then in such cases when the decision rendered by a court of competent jurisdiction attained finality, there was no difficulty in applying the principle of res judicata to such a decision. However, it would be difficult to apply such a principle in matters where a power or a right or an obligation solely depended upon the very legitimacy of the enactment that had come under challenge in a Court of law on the touchstone of the Constitution. In such a situation the existence of such power or right or obligation would solely depend on the final adjudication as to the legal validity of the enactment itself. This could be understood from a situation where a controversy as regards constitutional validity of an enactment had come under challenge before two High Courts, one declaring the enactment ultra vires the Constitution and the other intra vires. If the principle of res judicata was applied to the decision of the High Court that declared the law ultra vires as the same was not challenged any further by the Government then two conflicting declarations would stand side by side on the legitimacy of a legislative enactment, one party treating the law valid and the other invalid. This would lead to treating an Act of the parliament valid for some and invalid for others though both the set of persons were similarly placed. If the decision rendered by the High Court that declared the law intra vires the Constitution was only challenged before the Supreme Court and after examining the merits of the case the enactment was declared by the Supreme Court to be intra vires the Constitution, then in such peculiar situation when the Supreme Court finally validated the legislative enactment then the same had to be applied uniformly to every person falling within its ambit. Such final judicial determination on the legitimacy of a legislative enactment had to be treated as a judgment in rem regardless of the fact that the judgment of the High Court that invalidated the very same enactment was not challenged before the Supreme Court. Such a situation warranted departure from the doctrine of res judicata. Omission of a public functionary to file appeal could not put fetters on the universal application of a legislative enactment declared by the Supreme Court to be constitutionally valid as it would amount to repealing the statute for some and treating it valid for others.

Hence where there were conflicting decisions on the vires of a legislative enactment of two High Courts, and decision of one remained unchallenged in the hierarchy as no appeal was preferred and the other was challenged before the Supreme Court, then the verdict of the High Court that went unchallenged, which was in conflict with the final decision of the Supreme Court had to be treated as outmoded and no longer executable.

United States v. Stone and Downer Co. [274 U.S. 225 (1927)] ref.

Pir Bukhsh and others v. Chairman Allotment Committee PLD 1987 SC 145 distinguished.

The final determination of the Supreme Court on the legitimacy of a law had to apply even to those who had succeeded in obtaining a judgment from a Court lower in the hierarchy that the law was ultra vires the Constitution, they too would be bound by the judgment of the Supreme Court, if it had through a judicial pronouncement declared a legislative enactment to be valid.

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

----S. 3---Matter instituted after period of limitation---Connected case filed within limitation period---Matter filed after the period of limitation could also be decided on merits with a connected case that was filed within time.

Mehran Zaibun Nisa and others v. Land Commissioner, Multan and others PLD 1975 SC 397 and Province of Punjab v. Muhammad Tayyab 1989 SCMR 1621 ref.

(d) Constitution of Pakistan---

----Arts. 73, 77 & Fourth Sched. Pt. II, Entries Nos. 47 to 53---Taxes and fees, levy of---Prerogative of the Legislature---Under the Constitution it was the prerogative of the legislature to raise revenue for the government on matters that fell within its legislative competence---Legislature enjoyed the privilege to identify the base of the levy i.e. those upon whom the incidence of the levy would fall and also determine the quantum to be charged from them, which could either be at a fixed rate or ad valorem---Under the Constitution the legislature could levy taxes as well as fees.

(e) Fee---

----Fee imposing legislative enactments, types of---'Fee-simplicitor' and 'Cess-fee'---Distinction---Basic difference between an enactment where fee simplicitor was imposed and where Cess-fee was imposed was that in the former a service or a privilege was made available to the payer directly on the strict principle of quid pro quo whereas in the latter case, the declared purpose came with a promise to bring some benefit or advantage in future which was basically meant for its payers---In order to remain as a fee-levying enactment, the purpose for which the Cess was to be charged should be well spelled out and defined in the enactments as narrowly as possible lest it may convert it into a tax-levying enactment---Proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization was reconcilable with the purposes stated in the enactment.

There were two kinds of fee-imposing legislative enactments. One was based purely on the principle of quid pro quo i.e. a charge was payable for rendering a specific service or extending a specific privilege which the payers could avail subject to the conditions that may be attached to it. In other words, it could be called as 'fee-simplicitor'. In such an enactment there was direct and immediate correlation in absolute terms between the service that was rendered and the fee that was charged for it. The other kind of a fee-levying legislation was where 'Cess' was imposed as a compulsory exaction in the same manner where taxes were imposed with the distinction that it was imposed for achieving a specific purpose promised in the enactment itself which when realized would bring some advantage or benefit for the payers in future. Such benefit or privilege once made available on the ground may be availed by others as well but that would not change the status of such fee-levying enactment. It would remain a specie of fee-levying enactment in contradistinction to tax-levying enactment in which no specific purpose or specific service needed to be disclosed by the legislature in order to justify its imposition. Cess-fee could be described as 'purpose specific'. In such a form of levy, the specified purpose was pre-committed to the payers before the revenue was collected under the legislation. For example, Cess was imposed to meet the extraordinary costs involved in providing infrastructure such as construction of dams or for importing oil or gas from abroad through pipelines or to build farm to mill roads in order to facilitate marketing of the agricultural produce or for conducting research and development in some specialized field. In such a form of levy the rule of quid pro quo did not exist in the same sense as it existed in a case where an existing service was rendered or a privilege was extended directly to the payer for a fee. What needed to be taken into consideration was whether the enactment had promised some benefit or advantage for the payers to be made available in future by utilizing the revenue, making it more akin to a fee then a pure revenue raising measure like taxes in general were imposed with no precondition attached for their spending.

Hinger-Rampur Coal Co. Ltd. and others v. The State of Orissa AIR 1961 SC 459; Sona Chandi Oal Committee v. State of Maharashtra AIR 2005 SC 635; State of West Bengal v. Kesoram Industries Limited AIR 2005 SC 1646 and Messrs Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation and another AIR 1985 SC 790 ref.

When Cess as a fee was levied to meet an earmarked financial exigency spelt out in an enactment, it preserved the levy for such purpose only even with the change in the government setup. It could not be levied as a general revenue collecting tool and the government would not be justified to collect it if the funds were diverted to some other expenditure. So it was like a 'promised spending' to be applied to the specific purpose described in the enactment. Hence, in order to remain as a fee-levying enactment, the purpose for which the Cess was to be charged should be well spelled out and defined in the enactments as narrowly as possible lest it may convert it into a tax-levying enactment. The proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization was reconcilable with the purposes stated in the enactment. A correlation between the revenue collected and the expenditure incurred for the promised specific purpose should always be maintained. In such manner the earmarked levy also provided information on the amount collected and spent. This also inculcated confidence in the payers as it contained the promise that the revenue would be utilized for the specific purpose only for which it was collected and they would have a claim to transparency and accountability of the utilization of the revenue so collected. When the revenue could only be utilized for the purpose promised in the fee-levying enactment then in that sense the levy could also be regarded as a temporary levy. Once the purpose for which it was imposed stood served, the justification for its imposition also came to an end. The collection of Cess therefore should be based on some calculation keeping in view the funding requirements and as and when the purpose was achieved, the government lost its right to collect Cess regardless of the fact that the enactment continued to remain in force.

(f) Legislation---

----Legislature, powers of---Re-enacting a law on the same subject with retrospective effect---Scope---Legislature had the right to re-enact a law on the same subject, which on account of legal infirmities in its enactment process had been declared invalid by a Court of law, by removing the causes that led to its invalidity---Legislature was also competent to make the re-enacted law applicable retrospectively in order to bind even the past transactions that had been declared invalid.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCMR 1905; Mamukanjan Cotton Factory v. Punjab Province PLD 1975 SC 50; FECTO Belarus Tractor Ltd v. Government of Pakistan through Finance Economic Affairs PLD 2005 SC 605; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Contempt Proceedings against Chief Secretary, Sindh 2014 PLC (C.S.) 82 ref.

(g) Interpretation of statutes---

----Constitutionality of a statute---Courts should lean towards the constitutionality of a legislative enactment instead of destroying it, keeping in view the rules of constitutional interpretations.

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

(h) Constitution of Pakistan---

----Fourth Sched.---Entries in Legislative Lists----Liberal interpretation---Entries to the Legislative Lists were not the source of legislative power but were merely topics of fields of legislation and allocation of the subjects to the lists was not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue---Such entries must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense---If a legislation purporting to be under a particular legislative entry was assailed for lack of legislative competence, the State could always show that the law was supportable under any other entry within its legislative competence.

Ujagar Prints v. Union of India and others AIR 1989 SC 516 and Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 ref.

Per Faisal Arab, J; Mushir Alam, J. agreeing; Syed Mansoor Ali Shah, J. dissenting.

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

----Ss. 3 & 4---Constitution of Pakistan, Arts. 18, 24(1), 25, 70 & Fourth Sched., Pt. I, Entry Nos. 27, 51 & 54---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess('GIDC cess')---Gas Infrastructure Development Cess Act, 2015 ('GIDC Act, 2015), vires of---[Per Faisal Arab, J [Majority view]: Entries 27, 51 & 54 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution enabled the legislature to legislate GIDC Act, 2015---Fee imposed under the GIDC Act, 2015 was clearly intended to facilitate import into Pakistan of natural gas on the basis of trade agreements executed with foreign countries which acts clearly fell within the ambit of Entry No. 27---Whole purpose of enacting GIDC Act, 2015 was to facilitate import of natural gas / LNG into the country from nearby countries in order to meet the ever expanding energy needs of the country and the cheapest way to import it was through overland transnational pipelines---As the GIDC Act, 2015 contained a well-defined object meant for making future availability of natural gas more convenient and without interruption that would mainly benefit the industrial and commercial consumers, therefore, in pith and substance the GIDC Act, 2015 was a fee-imposing enactment---Object which the Parliament had promised in the GIDC Act, 2015 was clearly 'purpose based' which was distinctly defined and carried with it an element of quid pro quo, making it a fee-imposing enactment instead of a tax-imposing enactment---Whatever Cess had been collected to date had been accounted for by the Federal Government in its annual accounts recording it under separate code numbers and was thus identifiable separately from the other revenues of the Federal Government---Provisions of S.8 of the GIDC Act 2015, which gave retrospective effect to the charge and recovery of GIDC cess levied from the year 2011 were also valid being within the legislative competence of the Parliament---Levy imposed under Gas Infrastructure Development Cess Act, 2015 was in accordance with the provisions of the Constitution---Per Syed Mansoor Ali Shah, J., dissenting. [Minority view]: Gas consumers had been paying GIDC cess for almost a decade, however, there had been no work on the ground for the projects for which the cess was being collected---Admittedly not a single Annual Report, as required under S.4(2) of the GIDC Act, 2015, was tabled before the Houses of the Parliament except the one placed before the Parliament after the filing of present cases---Government had hoodwinked the Parliamentary oversight, paying little heed to the energy crisis in the country; the interest of the gas consumers who had been regularly paying GIDC cess and the welfare of the general public---Any fiscal legislation that imposed a Fee, must clearly spell out the nature of service to be rendered and the reasonable timeline for the delivery of such service---Legislation (including subordinate legislation) must provide a complete mechanism including the consequences of stoppage of collection of Fee or extension of time or refund of Fee in case the project was delayed or could not be executed in the proposed timeline, respectively---Legislation must safeguard and protect the reciprocity behind a Fee (unlike a tax) by providing corresponding obligations and duties on the parties to the levy---Present GIDC Act, 2015 did not meet such fundamental requirements of a Fee levying legislation, resulting in imposing an unconstitutional levy in the garb of a Fee---Such unlawful exaction (levy) offended the rights to property, trade and non-discrimination of the industrial gas consumers---GIDC cess imposed under the GIDC Act, 2015 was declared to be unconstitutional and illegal in its present form]---Appeals, petitions and applications were disposed of accordingly with relevant directions.

Per Faisal Arab, J. [Majority view]: Legislature introduced the bill of Gas Infrastructure Development Cess Act, 2015 ('GIDC Act, 2015) under Article 70 of the Constitution which was passed by both the houses of the Parliament as a fee-levying enactment. National Assembly was fully competent to impose tax on natural gas through a Money Bill on the strength of Entry No.51 of Part I of the Federal Legislative List contained in the Fourth Schedule [pp. 677, 687] L & EE

The provision of the Constitution that enabled the legislature to legislate GIDC Act, 2015 was Entry No.54 of Part I of the Federal Legislative List. Said entry stated 'Fees in respect of any of the matters in this Part, but not including fees taken in any court.' Furthermore Entry No.27 of Part I of the Federal Legislative List provided 'Import and export across customs frontiers as defined by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan'. Said entry, inter alia, covered legislation that related to subjects of import into Pakistan and trade with foreign countries and the mode through which natural gas could be cheaply and efficiently imported from nearby countries through overland pipeline where it was more than sufficient for their needs. This was exactly the purpose and object of the GIDC Act, 2015 as reflected by its section 4 which provided that the revenue that was to be generated from the GIDC cess shall be utilized for facilitating import of natural gas into Pakistan through two separate transnational pipelines and for ancillary projects. For such purpose trade agreements had also been executed with two countries (Iran and Turkmenistan) separately. In addition to this section 4 of the GIDC Act, 2015 also provided that the GIDC cess was required for the purposes of LNG which under a trade agreement with Qatar was being imported on ships and after its discharge at the port of Karachi and gasification, was planned to be transported upcountry through a pipeline project named 'North South pipeline'. From this it had become evident that the whole purpose of enacting GIDC Act, 2015 was to facilitate import of natural gas, a very important source of energy from the nearby countries under trade agreements executed with them. The fee imposed under the GIDC Act, 2015 was clearly intended to facilitate import into Pakistan of natural gas on the basis of trade agreements executed with foreign countries which acts clearly fell within the ambit of Entry No. 27 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution.

Whole purpose of enacting GIDC Act, 2015 was to facilitate import into the country of a very important source of energy i.e. natural gas / LNG from nearby countries in order to meet the ever expanding energy needs of the country as our own resources of energy were fast depleting and the cheapest way to import it was through overland transnational pipelines. The supply of imported LNG to various parts of the country after its import on ships through trans-provincial pipeline was also a project of the Federal Government. The incidence of the cost involved in doing so fell on the industrial and commercial consumers whose consumption accounted for more than three-fourth of the total supply of natural gas. The industrial and commercial consumers of natural gas in the country, from whom GIDC cess was being collected, consumed about 76% of the total supply of natural gas. They would be mainly benefited once the promised projects were completed. It did not matter if domestic consumers of natural gas would also be benefitted.

As the GIDC Act, 2015 contained a well-defined object meant for making future availability of natural gas more convenient and without interruption that would mainly benefit the industrial and commercial consumers, therefore, in pith and substance the GIDC Act, 2015 was a fee-imposing enactment and use of terms like 'levied' or 'charged' would not change the object with which it was legislated.

The object which the Parliament had promised in the GIDC Act, 2015 was clearly 'purpose based' which was distinctly defined and carried with it an element of quid pro quo, making it a fee-imposing enactment instead of a pure revenue raising measure like taxes in general were imposed with no precondition attached for their spending. After seeing the purpose of the enactment and the fact that its revenue was duly accounted for and had also not been diverted to any other use, the imposition of GIDC cess under GIDC Act, 2015 was not a tax-imposing enactment.

Whatever GIDC cess had been collected right from the day when the erstwhile Gas Infrastructure Development Cess Act, 2011 (since declared unconstitutional), came into force had been accounted for by the Federal Government in its annual accounts recording it under separate code numbers and was thus identifiable separately from the other revenues of the Federal Government. This would facilitate in seeking information on the amount collected as against the amount that was going to be spent for the purposes promised in the GIDC Act, 2015. Thus a correlation between the revenue collected and the expenditure which was going to be incurred for the promised specific purpose could be maintained. It mattered not if the revenue so collected formed part of the Federal Consolidated Fund as it was the mandate of Article 78 of the Constitution itself that all revenues of the Federal Government had to made part of Federal Consolidated Fund.

The provisions of Section 8 of the GIDC Act, 2015, which gave retrospective effect to the charge and recovery of GIDC cess levied from the year 2011 were also valid being within the legislative competence of the Parliament.

Mamukanjan Cotton Factory v. Punjab Province PLD 1975 SC 50 ref.

Levy imposed under Gas Infrastructure Development Cess Act, 2015 was in accordance with the provisions of the Constitution.

Supreme Court disposed of the appeals, petitions and applications with the following directions:

(i) From the date of present judgment, the Federal Government was restrained from charging GIDC cess, which power of the Federal Government shall remain suspended until the Cess-revenue collected and that which was accrued so far but not yet collected was expended on the projects listed in section 4 of the GIDC Act, 2015;

(ii) In the remaining period of the financial year 2020-21 while considering fixation of sale price of Compressed Natural Gas (CNG), the Oil and Gas Regulatory Authority (OGRA) shall not take into consideration the element of GIDC cess under GIDC Act, 2015 as one of the costs of sale of GNG;

(iii) As all industrial and commercial entities which consumed gas for their business activities passed on the burden to their customers / clients therefore all arrears of 'GIDC cess' that had become due upto 31-07-2020 and had not been recovered so far shall be recovered by the companies responsible under the GIDC Act, 2015 from their consumers. However, as a concession, the same be recovered in twenty-four equal monthly instalments starting from 01-08-2020 without the component of late payment surcharge. The late payment surcharge shall only become payable for the delays that may occur in the payment of any of the twenty-four instalments; and

(iv) The Federal government shall take all steps to commence work on the laying of the North-South pipeline within six months and on TAPI pipeline as soon as its laying in Afghanistan reached the stage where the work of laying pipeline on Pakistan soil could conveniently start and on IP pipeline as soon as the sanctions on Iran were no more an impediment in its laying. In case no work was carried out on North-South pipeline within the prescribed time and for laying any of the two other major pipelines (IP and TAPI) though the political conditions became conducive, the purpose of levying GIDC cess shall be deemed to have been frustrated and the GIDC Act, 2015 would become permanently in-operational and considered dead for all intents and purposes.

Per Syed Mansoor Ali Shah, J. dissenting [Minority view]:

Utilization of GIDC cess as per the earlier and the recent GIDC Act, 2015 was for setting up infrastructure development of Iran Pakistan Pipeline Project (IP), Turkmenistan-Afghanistan-Pakistan-India (TAPI) Pipeline Project, LNG or other ancillary projects. These projects were financed through the imposition of GIDC (Fee), used as a tool of public finance. The gas consumers had been paying GIDC cess for almost a decade, and a total of Rs 295.40 billion had been collected to-date, however, there had been no work on the ground and these gas projects had no physical existence, whatsoever, in Pakistan. No development phase expenditure had taken place and project development cost funded by GIDC cess was nil. Even though, there was nothing on the ground, these projects were announced in the year 2011 and GIDC cess was since then being collected.

The GIDC Act, 2015 in its wisdom, considering the long-term nature of the infrastructure development gas pipeline projects required the Federal Government to inform both the Houses of the Parliament regarding the utilization of GIDC cess by tabling an Annual Report under Section 4(2) of the Act. Admittedly not a single Annual Report was tabled before the Houses of the Parliament except the one placed before the Parliament after the filing of present cases. The Government had unabashedly and successively hoodwinked the Parliamentary oversight, paying little heed to the energy crisis in the country; the interest of the gas consumers who had been regularly paying GIDC cess and the welfare of the general public. More disturbingly, the Parliament itself, inspite of acute energy crisis in the country never took the Federal Government to task and allowed a decade to pass by. The Executive and the Legislature both had failed the industrial gas consumers and public expectations besides wasting valuable time and opportunity to utilize and divert the money collected to some other projects to alleviate the gas shortage in the country. Had the Executive apprised the Parliament under the GIDC Act, 2015 legislative intervention may have followed, saving everyone the long drawn litigation and better financial management and use of Rs.295 Billion, which was sitting unused with the Federal Government.

For the Fee to have a constitutional existence, the service to be rendered in return or the quid pro quo must be certain, clear, unambiguous and within a definite time. It was by all means a legitimate expectation of the payer of Fee to know when will the service be delivered. Any law that levied a Fee must first unambiguously and clearly spell out the nature of the service to be rendered in return (quid pro quo) and then provide for a reasonable and definite timeline for the delivery of such service. Legislature must also consider the entire mechanism at work behind such relationship of reciprocity e.g., the obligations of the provider of Fee, the consequences of delay and failure to render service including refund. The GIDC Act, 2015 was silent on all these counts and therefore passed for colourable legislation as it actually imposed a levy unknown to the Constitution in the garb of a Fee. The GIDC Act, 2015 did not provide a level playing field for the parties and was devoid of the basic fairness, protection and due process that was required to be meted out to a payer who was the source of the public finance required for funding the long-term gas projects. Such a law offended and renders constitutional protections of right to property, business and non-discrimination, absolutely hollow and meaningless. The GIDC Act, 2015 imposed an unconstitutional levy in the garb of a Fee.

As a consequence, the amount of GIDC cess collected over the years should be returned and refunded to the payers in full, unless in some cases, it was impractical to so do. The Federal Government shall constitute a Committee to work out a mechanism for refund of GIDC cess so that payers of the said cess were fully restituted; be it the gas consumers under the GIDC Act, 2015 or the final consumers. Even if the gas consumers had passed on the Fee to its customers, technology may be available to credit such customers, so that there was no unjust enrichment on the part of the State. The amount of GIDC that cannot be refunded after exploring all other avenues, shall remain earmarked and be utilized only for the infrastructure development of the gas sector. [Minority view]

Per Faisal Arab, J [Majority view]

(j) Interpretation of statutes---

----Fiscal statute---Fee imposing enactment---Use of terms 'levy' or 'charge'---When terms like 'levy' or 'charge' were used in any revenue raising enactment, it did not mean that it could not be a fee imposing enactment---Terms 'levied' or 'charged' meant 'to impose by legal authority'---Whether tax was being imposed or a fee, it entirely depended upon the object of the legislation and had nothing to do with the use of such terms---Mere use of terms like 'levied' or 'charged' could not be made basis to describe a law as tax imposing enactment.

(k) Interpretation of statutes---

----Commencement date---Enforcement---When an Act of Parliament provided that it will come into force at once then every provision of it became enforceable from the day the Act received the assent of the President unless any provision of the Act itself suggested that it would come into force only when some authority nominated in such behalf so decided or on the happening of an event---Where the legislature intended to leave a matter for the Federal Government to decide before it was given effect to then it specifically stated so in the law itself.

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

----S. 3(1)---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess ('GIDC cess')---Whether excluding domestic users from the ambit of the cess/levy was discriminatory---Held, that GIDC cess which the industrial and commercial concerns paid became part of the cost of the goods which they sold or the cost of the services they rendered and thus was ultimately borne by the buyers of their goods and services---Domestic consumers were indirectly burdened with the incidence of GIDC cess in a way that whatever product or service they bought/availed from an industrial or commercial enterprise, the element of cost of cess having already been factored in the price of their purchases, it ultimately passed on to them---Every industrial and commercial entity using natural gas for its business activity was entitled to claim the burden of GIDC cess as their business expense, being part of the cost of their goods sold or services rendered, and get it adjusted against their business profits---GIDC cess had been levied only on those consumers of natural gas who on account of their industrial or commercial dealings passed on its burden to their customers/clients; this was not the case with the domestic consumers of gas as the question of passing on the burden in their case obviously did not arise---Domestic consumers of natural gas being treated as a distinct class of consumers from industrial and commercial consumers, no discrimination in favour of domestic consumers emerged on account of their exclusion from the levy of GIDC cess.

(m) Constitution of Pakistan---

----Fourth Sched. Pt. I, Entry No. 51---Expression 'Taxes on mineral oil, natural gas and minerals for the use in generation of nuclear energy'---Interpretation---'Mineral oil' and 'natural gas' though being sources of energy were distinct from the source that generated nuclear energy, thus, 'mineral oil' and 'natural gas' appearing in Entry No. 51 of Part I of the Federal Legislative List were to be read disjunctively from 'nuclear energy'.

Regarding generation of nuclear energy, the scientific reality was that it originated from splitting of atoms of the uranium which generated heat. This process of splitting the atoms of uranium was called fission. The heat so generated helped in producing steam which was then used to operate turbines to generate electricity. As nuclear energy was produced only through the process of fission, fuels such as mineral oil or natural gas could not be used for such purpose. There were several other primary sources of generating energy such as fossil fuels like coal, petroleum, natural gas and sources like hydroelectric, solar and wind. None could be used as nuclear fuel to generate nuclear energy except uranium and its by-product plutonium. When such was the scientific reality then mineral oil and natural gas appearing in Entry No.51 of Part I of the Federal Legislative List on which the process of fission could not apply to generate nuclear energy were to be read disjunctively, as both were sources of energy other than nuclear energy.

Per Syed Mansoor Ali Shah, J. dissenting [Minority view]

(n) Tax---

----'Fee' and 'tax'---Salient features of a 'tax' and 'Fee' and distinction between the two concepts stated. [Minority view]

Normatively, theoretically and legislatively three prominent tasks had been entrusted to taxation, namely; revenue augmentation, redistribution of wealth in society and regulatory function to ensure expected economic behaviour. Fee, on the other hand, had a narrower scope and was premised on a corresponding service in return or quid pro quo. Whereas tax was devoid of quid pro quo, it was a sine qua non for Fee.

Haji Dossa Limited, Karachi v. Province of Punjab through Collector, Sahiwal and others 1973 SCMR 2; Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad through Secretary and others v. East Pakistan Chrome Tannery Pvt. Through G.M. Finance Lahore and others PLD 2017 SC 28; Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388; Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR 162; Hirjina Salt Chemicals (PAK.) Ltd. v. Union Council, Gharo and others 1982 SCMR 522; Noon Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Azad Government of the State of Jammu and Kashmir through Chief Secretary, Azad Kashmir Government, Civil Secretariat, Muzaffarabad v. Haji Mir Muhammad Naseer and others 1999 PLC (C.S.) 1173; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; The Hingir-Rampur Coal Co. v. The State of Orissa 1961 SCR (2) 537; Sreenivasa General Traders v. State of Andhra Pradesh AIR 1983 SC 1246; Upaj Mandi Samiti v. Orient Paper and Industries 1995 RRR (1) 327; Bangalore Development Authority v. Air Craft Employee Society 2012 (1) JLJR 503; H.H. Sudhundra Thirtha Swamiar and others v. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another AIR 1963 SC 966; Southern Pharmaceuticals and Chemicals, Trichur and others v. State of Kerala and others AIR 1981 SC 1863; The Chief Commissioner, Delhi and another v. The Delhi Cloth and General Mills Co. Ltd. and others AIR 1978 SC 1181; Calcutta Municipal Corporation and others v. Shrey Mercantile Pvt. Ltd. and others AIR 2005 SC 1879; Bhagwan Dass Sood v. State of Himachal Pradesh and others AIR 1997 SC 1549; Kewal Krishan Puri and another v. State of Punjab and others AIR 1980 SC 1008; Agriculture Market Committee, Rajam and others v. Rajam Jute and Oil Millers Association, Rajam AIR 2003 SC 1742; The City Corporation of Calicut v. Thachambalath Sadasivan and others AIR 1985 SC 756; Kishan Lal Lakhmi Chand v. State of Haryana 1993 Supp (4) SCC 461; The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282; The State of West Bengal and another v. Kesoram Industries Ltd. and others AIR 2005 SC 1646; Municipal Corporation of Delhi and others v. Mohd. Yasin AIR 1983 SC 617 and Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation and another AIR 1985 SC 790 ref.

A tax was a compulsory contribution to the government, imposed in the common interest of all, for the purpose of defraying the expenses incurred in carrying out the public functions or imposed for the purpose of regulation, without reference to the special benefits conferred on the one making the payment. As a corollary, tax being instrumental in revenue augmentation, its quantum need not commensurate with costs incurred by such public authority. Further, tax was devoid of any quid pro quo. Even where any benefit seemed to flow, in case of tax, it was merely incidental and not primary. In other words, there existed no connection, whether direct and immediate or broad and casual between the contributor of tax and benefits.

Martin T Crowe, The Moral Obligation of Paying Just Taxes 12 (Catholic University of American Press, Washington D.C., 1944) ref.

In a glaring contrast, Fee, was generally defined to be a charge for a special service rendered to individuals by some governmental agency. Ordinarily, Fees were uniform and no account was taken of the varying abilities of different recipients to pay. A Fee may either be regulatory or compensatory. Where a Fee was commensurate with the cost of rendering the service, though not in exact arithmetical equivalence, it was a compensatory Fee. On the other hand a Fee charged to regulate or control, was validly classifiable as regulatory Fee, provided it was not excessive or not dominantly intending to raise revenues for the public authority. Whilst both tax and Fee were compulsory exactions of money by public authority, their real distinction comprised in primarily what was known as quid pro quo test and proportionality of amount test.

Accordingly, a levy to be identified as Fee must have an element of quid pro quo between the payer and the public authority that imposed it. This quid pro quo or service rendered in return envisaged an intimate and immediate relationship between rendition of service and the payer, who was direct beneficiary of such service, on a one-on-one basis. This proximity between the beneficiaries and services could also be categorized for simplicity as "proximate quid pro quo". So the classical approach of Fee comprised the following: a proximate quid pro quo i.e., rendition of certain services to the payers by government agency which amounted to special benefit/advantage to the payer; proportionality i.e., the amount imposed ought to commensurate with cost of services to be rendered; specific fund that ensured dedicated spending from an earmarked fund for specific purpose of that service, Merger of proceeds with general revenue to be spent for general purposes was not acceptable; and primary objective that was to enquire whether the primary purpose of imposing levy was rendition of services and it was not merely incidental to augmentation of revenue. If latter predominated, it acted as negative restriction and the levy would be tax.

With passing of time as economies grew, Fee was imposed to render services to a large class of people or specified sector or area as a whole. In such cases, the relationship between the beneficiary and the services rendered became more generic, broad and remote. This was because such a service was to reach a general class of people or a specified sector or a designated area and not to an individual per se and therefore the service may also extend to free riders who were not the payers of Fee, hence the bond of proximity stood diluted. This shift has also been termed as "remote quid pro quo" which is used to describe the situation where services targeted beneficiaries which was a generic class comprising of a certain free riders but inclusive of payers. The shift from proximate to remote quid pro quo overtime did not mean that the service to be rendered to the payers of Fee would be any different or in any manner less. The scope and depth of service to be rendered depended on the nature of the service.

Merely because collections for services rendered or grant of a privilege or license were taken to the consolidated fund of the state and not separately appropriated towards the expenditure for rendering the service was not by itself decisive.

The modern approach to Fee therefore consisted of three-point check: Primary object test- whether the plenary objective of the levy was rendition of service to specified class and this service was something other than something merely incidental; Remote quid pro quotest- whether the payer received a general benefit from the authority imposing levy; Proportionality test- whether there existed a broad and generic co-relationship between services rendered and the amount of Fee charged. [Minority view]

(o) Fee---

----'Quid pro quo in future'---'Service to be rendered'---'Time dimension' of service to be rendered---Scope---Simultaneity or contemporaneity of payment and benefit was not the most vital or crucial test to determine whether a levy was a Fee or not, especially in long-term projects---While "service to be rendered" or quid pro quo in future was permissible it was equally important that the prospects of such a future service were certain, as if tied in time, with the payment of Fee---For the Fee to have a constitutional existence, the service to be rendered in return or the quid pro quo must be certain, clear, unambiguous and within a definite time---Payment of Fee by the payer could not be towards a service that floated in a timeless zone; was open-ended and uncertain---Failure in providing future service within reasonable timeline, deprived the Fee of its essential character, and gave it the complexion of a tax.

It was not a requirement that all the required services against a Fee must be in place before a Fee could be levied. Merely because the benefits to be received were postponed, it could not be said that there was no 'quid pro quo'. It was true that ordinarily a return 'in praesenti' was generally the case when Fee was levied but simultaneity or contemporaneity of payment and benefit was not the most vital or crucial test to determine whether a levy was a Fee or not, especially in long-term projects. In fact, it may often happen that the rendering of a service or the conferment of a benefit may only follow after the consolidation of a fund from the Fee levied. Hospitals, for instance, could not be built in a day nor medical facilities or gas supply provided right from the day of the commencement of the scheme. It was only after infrastructure development was available that one may reasonably expect a compensating return. How soon a return may be expected or ought to be given must necessarily depend on the nature of the services required to be rendered and benefits required to be conferred. So while "service to be rendered" or quid pro quo in future was permissible it was equally important that the prospects of such a future service were certain, as if tied in time, with the payment of Fee.

Agriculture Market Committee, Rajam and others v. Rajam Jute and Oil Millers Association, Rajam AIR 2003 SC 1742 and Messrs Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation and another AIR 1985 SC 790 ref.

Fee was a constitutional levy against a service rendered, which could not be structured on assumptions, suppositions, expectations and verbal commitments of the Executive but required a clear, crisp and certain statutory timeline. For the Fee to have a constitutional existence, the service to be rendered in return or the quid pro quo must be certain, clear, unambiguous and within a definite time. While there was an obligation of the payer to deposit Fee on time which was subject to a surcharge for late payment, there must also be a corresponding obligation on the State or the authority responsible to provide the service in return, to do the same within a definite timeline. Without this corresponding obligation, the legislation failed to recognize the core ingredient of a Fee - the quid pro quo. It was by all means a legitimate expectation of the payer of Fee to know when would the service be delivered. The payment of Fee by the payer could not be towards a service that floated in a timeless zone; was open-ended and uncertain. Any service to be rendered in such like cases became a disservice. The relationship in a Fee must exist till the end. Failure in providing future service within reasonable timeline, deprived the Fee of its essential character, sheds its complexion as a Fee and gave that of a Tax. As such failure and the uncertainty of time diminished the requisite degree of correlation between the payment of Fee and provision of service in return. This indefiniteness negated the concept of Fee and partakes the character of a Tax. Therefore, service against a Fee was not simply a theoretical recognition of the service to be rendered but must also have certainty in its applied form i.e., the timeline for the actual delivery. If the constituent of time was missing the service became practically non-existent and the levy no more retained the character of Fee and became a tax rendering the levy (of fee) unconstitutional. [Minority view]

(p) Constitution of Pakistan---

----Arts. 50 & 91(6)---Parliament, functions of---Executive answerable to the Parliament---Scope---Parliament was a multi-functional institution performing variety of roles---Some of the cardinal roles and functions of the Parliament were: Legislation, Oversight of the Government actions and Financial Accountability of the Government and the public sector---Parliament made laws, authorized the Government to spend public money, scrutinized the Government activities and was a forum for debate on national issues---Worst thing that the Government in a parliamentary system could do was to deny information to the Parliament---Executive was answerable to the Parliament---Article 91(6) of the Constitution declared it in unequivocal terms that the Cabinet, together with the Ministers of the State, shall be collectively responsible to the Senate and the National Assembly---One of the functions of the Parliament was to exercise political and financial control over the Executive---To call for information was perhaps the greatest power of Parliament---Even otherwise, it was the duty of the Government itself to feed Parliament with information, which was full, truthful, precise and supplied in time---Ministers made statements on the floor of the House, and laid reports and papers on the Table of the House---All these constituted a wealth of information, which became immediately public and could be issued to raise discussion in the House.

Subhash C Kashyap, Parliamentary Procedure, Universal 2006 pp. 19, 23 and 25 ref.

(q) Interpretation of statutes---

----Fiscal statute---Fee---Principles of interpretation of a fiscal statute applied equally to a Fee as they did to a tax - both being compulsory exactions of money by the State.

(r) Interpretation of statutes---

----Fiscal statute---In interpreting a taxing statute, equitable considerations were entirely out of place---Nor could taxing statute be interpreted on any presumptions or assumptions---Court must look squarely at the words of the statute and interpret them---Court could not imply anything that was not expressed, it could not import provisions in the statutes so as to supply an assumed deficiency---Taxing statues, if it professed to impose a charge, its intention must be expressed in clear, unequivocal and unambiguous language---Hunting into the intention to find a charge was impermissible---No equitable construction of a charging section was to be applied---Charging section was to be construed strictly regardless of its consequences that may appear to the judicial mind to be---Function of the court was not to hunt out ambiguities by strained and unnatural meaning.

Cape Brandy Syndicate v. IRC [1921] 1KB 64; Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal), LTU, Islamabad and others 2017 SCMR 1136; Commissioner of Income Tax and another v. Baluchistan Concrete and Block Works Ltd. and others 2017 SCMR 1; Chairman, Federal Board of Revenue, Islamabad v. Al-Technique Corporation of Pakistan Ltd. and others PLD 2017 SC 99; Commissioner of Income Tax Legal Division, Lahore and others v. Khurshid Ahmad and others PLD 2016 SC 545; Zila Council Jehlum through District Coordination Officer v. Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Bechu Company v. Assistant Commissioner 2003 STC (132) 68 (also See N.S. Bindra's - Interpretation of Statutes. p.863 (12th Edition) and Film Exhibiter's Guild v. State of Andhra Pardesh AIR 1987 AP 110 ref.

(s) Interpretation of statutes---

----Fiscal statute---Fee---Fiscal legislation required that any law that levied a Fee must first unambiguously and clearly spell out the nature of the service to be rendered in return (quid pro quo) and then provide for a reasonable and definite timeline for the delivery of such service---Legislature must also consider the entire mechanism at work behind such relationship of reciprocity -e.g., the obligations of the provider of Fee, the consequences of delay and failure to render service including refund. [Minority view]

(t) Interpretation of Constitution---

----Progressive interpretation---'Living tree', doctrine of---Scope---Constitution was organic and a living testament of the aspirations of the people it governed---"Living tree" doctrine allowed the Constitution to change and evolve over time while still acknowledging its original intentions---Said doctrine achieved a balance between two seemingly contradictory goals: predictability and flexibility---To be effective, the Constitution must consist of a predictable set of rules---On the other hand, flexible interpretation accommodated the realities of changing modern life---If the Constitution could not be interpreted in such way, it would be frozen in time and become more obsolete than useful---Contemporary interpreters must focus on what the originators intended the Constitution to accomplish rather than what the text actually stated before allowing the Constitution to evolve or remain unchanged---Progressive interpretation was (important) to preserve the vitality of the Constitution---Courts have repeatedly underlined that the Constitution was a living document and encouraged its progressive interpretation.

Living Tree Doctrine, Centre for Constitutional Studies. Also see: Edwards v. Canada (Attorney General) 1930 AC 124 and Reference Re Same Sex Marriage 2004 SCC 79 (CanLII) [Same-Sex] ref.

(u) Precedent---

----'Distinguishing' a precedent---Scope---If a new case was dissimilar to an earlier case in ways that seemed important, the court would 'distinguish" it and reach a result different from what the precedent would otherwise suggest or even dictate---In common parlance, either the precedent or the pending case may be said to be "distinguished" from the other---In such way the former decision might be said to be "rerationalized"---Precedent, whether persuasive or binding, need not be applied or followed if it could be distinguished; that is, there was a material distinction between the facts of the precedent case and the case in question---Technique of distinguishing a past case was a powerful engine of legal change---Crucial question was, whether there were any material differences between the facts of the case at bar and the facts of the prior cases to warrant the rule being different---In principle, the distinguishing of an apparent decision presented no problem for the doctrine of precedent.

Bryan A Garner. The Law of Judicial Precedent, 2016 p.97; Joseph Raz, The Authority of Law 186 (1979); Theodore, The Rule of Precedent, op cit. p. 99; Raz, The Authority of Law, p. 185 and Muhammad Munir, Precedent in Pakistan Law, Oxford, 2014. P.219 ref.

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

----S. 3 & Second Sched.---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess ('GIDC cess')---Different rates of GIDC cess fixed for different industries under Second Schedule to the Gas Infrastructure Development Cess Act, 2015 ('GIDC Act, 2015')---Discriminatory---Held, that purpose of the GIDC Act, 2015 was to raise public finance for the infrastructure development of the gas projects mentioned in the Act through levy of Fee on different categories of industrial gas consumers---No intelligible differentia was found amongst the different gas consumers mentioned in the Second Schedule for the purposes of the GIDC Act, 2015---One justification for charging different rates from amongst the industrial gas consumers could have been their overall consumption of natural gas, however the data provided to the court showed that differentiation of rates was not based on the consumption pattern of the gas consumers---Rates of GIDC cess fixed for different gas consumers were, therefore, ex-facie discriminatory and could not be allowed to stand. [Minority view]

Makhdoom Ali Khan, Senior Advocate Supreme Court, Saad Hashmi, Advocate for Appellants (in C.As. Nos. 1150 to 1155 of 2017).

Rashid Anwar, Advocate Supreme Court (via video link @ Karachi) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos. 1115 to 1123 of 2017).

Isaac Ali Qazi, Advocate Supreme Court (via video link @ Peshawar) and M.S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos. 1124 to 1127, 1133, 1134 of 2017, C.Ps. Nos. 3027 to 3030 and 3411 of 2017).

Anwar Kamal, Senior Advocate Supreme Court and Br. Ahmed Pervaiz for Appellants (in C.M.A. No. 86 of 2020).

Kh. Muhammad Saeed, Advocate Supreme Court for Appellants (in C.A. No. 1114 of 2017).

Syed Haziq Ali Shah, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos. 1128 to 1131, 1135 to 1140 of 2017, C.Ps. Nos. 3124, 3259 and 3260 of 2017).

Sardar Muhammad Ghazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.A. No. 1132 of 2017, C.M.As. Nos. 8277, 8278 and 9521 of 2019).

Ms. Navin Merchant, Advocate Supreme Court for Appellants (in C.M.A. No. 9746 of 2019).

Abid S. Zuberi, Advocate Supreme Court for Appellants (in C.M.A. No. 9153 of 2019)

Qazi Ghulam Dastgir, Advocate Supreme Court for Appellants (in C.As. Nos. 1113, 1141 to 1149 of 2017, 3076 of 2019).

Salman Akram Raja, Advocate Supreme Court (via video link @ Lahore) and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.P. No. 3138 of 2017 and C.M.As. Nos. 9186, 9301 of 2019).

Ijaz Ahmed Zahid, Advocate Supreme Court and Habib Bhatti, Advocate Supreme Court for Appellants (in C.M.A. No. 1022 of 2020).

Abdul Munim Khan, Advocate Supreme Court and Tasleem Hussain, Advocate-on-Record (via video link @ Peshawar) for Appellants (in C.Ps. Nos. 387-P, 389-P, 3327 of 2017).

Tasleem Hussain, Advocate Supreme Court/Advocate-on-Record (via video link @ Peshawar) for Appellants (in C.Ps. Nos. 392-P to 394-P, 399-P, 400-P and 3241 of 2017).

Muneer A. Malik, Sr. Advocate Supreme Court, Ch. Atif Rafique, Advocate Supreme Court (via video link @ Karachi) Kassim Mirjat, Advocate-on-Record and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.M.As. Nos. 8497 of 2018 and 9149 of 2019).

Syed Iqbal Hashmi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.M.A. No. 9746 of 2019).

Waqar Ahmed Rana, Advocate Supreme Court for SNGPL (in all Appeals/ Petitions).

Br. Mian Belal, Advocate Supreme Court and Br. Muhammad Adil Fayyaz for SNGPL (in C.M.As. Nos. 812-815 of 2020).

Anwar Mansoor Khan, Attorney General, Ch. Aamir Rehman, Addl. AGP, Sohail Mehmood, D.A.G. and Sajjid Ilyas Bhatti, Addl. AG for the Federation.

Niaz Ullah Niazi, Advocate General for ICT.

M. Ayaz Swati, Addl. A.G. and M. Farid Dogar, A.A.G. for Government of Balochistan.

Ch. Faisal Farid, Addl. A.G. for the Government of Punjab.

Shumail Butt, A.G. for Government of Khyber Pakhtunkhwa.

Sardar Azmat Shafi, Accountant General of Pakistan in person.

Rizwan ul Haq, Sr. Executive Director (Litigation) (OGRA), Mrs. Taybbah Ahsan, JED, Finance (OGRA) Ms. Samia Khalid, Advocate Supreme Court (OGRA), Aatif Sajjad, Executive Director Finance (OGRA) Sajid Zahid Rauf, JED Gas (OGRA), Syed Faisal Ishtiaq, Law Officer (OGRA), Dr. Abdul Basit Qureshi, Registrar, OGRA, Atif Hussain, JED Finance OGRA and Asif, JED (Gas) OGRA for OGRA.

Anwar, Sr. JS Finance Division, Tanvir Butt, Sr. JS (Budget) Finance Division, Sajjad Azhar, Deputy Secretary Budget Resources and Javed Iqbal Khan, JS, B-II Finance Division for Finance Division, Government of Pakistan.

Mobeen Solat, MD, ISGCL for ISGCL.

Abdul Maqsood Malik, EDG, Dir. Petroleum for Ministry of Petroleum.

P L D 2020 Supreme Court 718

Present: Umar Ata Bandial, Ijaz ul Ahsan and Munib Akhtar, JJ

Mir MUJIB-UR-REHMAN MUHAMMAD HASSANI---Appellant

Versus

RETURNING OFFICER, PB-41 WASHUK and others---Respondents

Civil Appeal No .171 of 2019, decided on 11th December, 2019.

(On appeal against judgment dated 18.12.2018 of the High Court of Balochistan in Election Petition No. 53 of 2018)

Per Ijaz ul Ahsan, J.; Umar Ata Bandial, J. agreeing; Munib Akhtar, J. disagreeing with "respect to the interpretation placed on section 95(5) of the Elections Act, 2017"

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

----Ss. 10 & 11 & O. II, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 114---Remedy---Doctrine of election (of remedy)---Scope---Doctrine of election (of remedy) existed to ensure that once a litigant had made the choice of pursuing a certain course of action available to him or had abandoned a certain plea/action, then he was not allowed to reopen the same matter only because he had received unfavourable results as a result of his first choice.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited PLD 2018 SC 828 ref.

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

----S. 95(5)---General Elections---Recount of votes/ballot papers before commencement of consolidation proceedings---Powers and discretion of Returning Officer under S.99(5) of the Elections Act, 2017---Scope and pre-requisites.

Per Ijaz ul Ahsan, J. [Majority view]: Plain reading of section 99(5) of the Elections Act, 2017 made it clear that the Returning Officer was empowered to recount the ballot papers of "one or more polling stations" only before consolidation proceedings had commenced. Furthermore, it was also clear that such a recount could only be triggered on the written request of a contesting candidate (or his election agent) in an election where the margin of victory was less than five percent of the total votes polled or ten thousand votes, whichever was less. However, once the words "or the Returning Officer considers such request as not unreasonable" appearing at the end of section 99(5) were read along with the remaining conditions of the provision, it became clear that such an application for a recount must be considered reasonable by the Returning Officer in addition to meeting the other pre-conditions imposed by the provision.

In order for the Returning Officer to order a recount under section 95(5) of the Elections Act, 2017 (i) a written application must be made by a contesting candidate or his election agent before the commencement of consolidation proceedings, (ii) the application must be in relation to an election where the margin of victory was less than five percent of the total votes polled in the constituency or ten thousand votes, whichever was less, and (iii) the Returning Officer must consider such a request to be reasonable (or not unreasonable as the law states). Once all these conditions had been met, only then would a Returning Officer order a recount in "one or more polling stations".

Under section 95(5) of the Act the legislature had sought to limit the situations in which applications for a recount before the Returning Officer could be made in the first place. The intention behind this quite clearly was to limit the number of frivolous applications for a recount made by losing candidates in constituencies around the country and to ensure that recounts were entertained by Returning Officers only in those constituencies where the margin of victory was small enough to justify a recount, and an objective and tentative assessment was made by the Returning Officers on the basis of material placed before them to the effect that prima facie there were grounds justifying a recount and the request for such recount was not wholly unreasonable.

The law did not provide a criterion based upon which a Returning Officer may decide whether a particular application (for recount) was not unreasonable. The exercise of recounting ballot papers for any number of polling stations was a tedious and time/ resource-consuming task and it could not be taken up indiscriminately, carelessly, without due application of mind and a tentative assessment of the material available on record, and in cases where only vague and general allegations and insinuations had been made. Such exercise, which could potentially take months to complete, could arguably lead to the constituency remaining unrepresented for long periods of time, defeating the very purpose of the law and the concept of democratic representation. To this end, even if a request had been made by a contesting candidate in an election where the threshold set by section 95(5) was met, but the request itself did not specify any cogent reasons for the request along with identifying specific polling stations where the recount was being requested and giving credible materials/information, it would stand to reason that the Returning Officer should have the option/discretion to reject such a request. If this was not the case, one would have the absurd situation where at the request of an aggrieved candidate recounting took place even at polling stations where the candidate in question had won or that without any allegation of rigging, corrupt and unlawful practices, and particulars based on which malpractices and rigging was being alleged, a candidate could still claim a recount by way of a record change and a fishing expedition simply showing that the margin of victory was less than five percent of the total votes polled in the constituency or ten thousand votes, whichever was less. If that were so, the phrase "or the Returning Officer considers such request as not unreasonable" used in section 99(5) would become redundant.

Returning Officer must exercise his discretion and ascertain the reasonableness of the request and decide whether recounting was to take place in "one or more" polling stations, or not at all. A reasonable request, therefore, must at least contain a narrative of the events that gave rise to the request in the first place, the details along with credible material/information regarding events that may have caused the contesting candidate to demand the recount together with the names and details of any individuals alleged to be involved, and the specific polling stations at which the recount was being requested.

Per Munib Akhtar, J. [Minority view]: Section 99(5) of the Elections Act, 2017 provided that "Before commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made by a contesting candidate or his election agent and the margin of victory is less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or the Returning Officer considers such request as not unreasonable". Word 'or' appearing in said provision was to be given its natural meaning and read disjunctively. In other words, the subsection contemplated two separate and distinct conditions, and a recount was permissible if either one of them was met.

The first and second conditions were qualitatively distinct, inasmuch as the first contained no element of discretion with the Returning Officer, while the second one did (though in rather limited circumstances). The first condition became applicable simply on an affirmative answer to an arithmetical question: was the margin of victory the lesser of (i) ten thousand votes or (ii) less than five percent of the total votes polled in the constituency? The first number was of course an absolute: 10,000 votes. The second was a matter of calculation, of adding up the total votes cast and calculating five percent thereof. That too yielded a specific number. The margin of victory (which was itself a specific number) was then to be compared with these two numbers. If it was less than either one of them the first condition was fulfilled. Thus, there was no discretion at all with the Returning Officer. Insofar as the second condition was concerned, there was an element of discretion: the Returning Officer must be satisfied that the request was not unreasonable. Only then was the condition applicable. To yoke these conditions together was to misread, and hence misapply, the legislative intent.

Under section 99(5) of the Act the applicant must obviously, if he sought recourse to the second condition, set out the reasons for seeking a recount. An application in terms of the second condition without any reasons would be liable to dismissed out of hand. However, if reasons were given then the onus laid on the Returning Officer (or the other contesting candidates) to first show that the request was unreasonable. It was here that the Returning Officer had discretion. If he concluded that the request was unreasonable, then the onus would shift on the applicant to show that this was not so. And if, in law, the applicant was correct, then the Returning Officer would have no further discretion.

In section 99(5) of the Act by altogether removing the Returning Officer's discretion in a situation where the first condition applied, and restricting it to within a narrow ambit in relation to the second, the policy of the law appeared to be to allow recounts to take place at the earliest stage. This was so to limit, if not altogether foreclose, such challenges at a later stage, whether by way of an election petition in terms of the relevant election law or constitutional petitions in the High Courts or even the Supreme Court. The democratic principle was of course that once the people had spoken all other voices must fall silent. However, elections were, more often than not, strongly contested. Sometimes, after the heat and especially in the immediate aftermath of the contest, a losing candidate was unable to acknowledge that he had indeed lost, should respect the verdict of the people and wait for the next election cycle. By allowing for recounts in terms contained in section 95(5), the policy of the Elections Act, 2017 appeared to be to allow for the "cooling off" to take place at an early stage. If as a consequence a little more time was required or taken to officially finalize matters, the law clearly regarded that as time well spent.

Per Ijaz ul Ahsan, J [Majority view]:

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

----S. 144---Election petition, contents of---Scope---Elections for seat of Provincial Assembly---Allegations of corrupt or illegal practices---Section 144 of the Elections Act, 2017 provided for the contents of an election petition, the documents that must be attached with it, and the relief that could be claimed by a candidate/petitioner---Candidate/ petitioner was required to provide the full particulars of any corrupt or illegal practices alleged by him to have taken place, the names and other details of the individuals he believed to be responsible for such practices, and the date and place of the commission of such practices or acts together with documentary evidence in support of such allegations---In the present case the appellant (election petitioner) had failed to provide such details---While the record showed that the appellant did annex sixteen affidavits-in-evidence in support of his application, perusal of these affidavits ex facie showed that they were all identical and a duplicate of allegations made and details provided by the appellant in every one of them. As a result, the appellant's election petition was rendered entirely deficient by virtue of section144 of the Elections Act, 2017---Appeal was dismissed with costs.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Kamran Murtaza, Sr. Advocate Supreme Court and Syed Rifaqat Shah, Advocate-on-Record for Respondent No.2.

M. Amjad, A.D. (for the Election Commission of Pakistan).

P L D 2020 Supreme Court 736

Before Gulzar Ahmed, C.J., Ijaz ul Ahsan and Amin-ud-Din Khan, JJ

ASAD ALI and 9 others---Appellants

Versus

The BANK OF PUNJAB and others---Respondents

Civil Appeals Nos. 335-L to 344-L of 2011, decided on 9th September, 2020.

(Against a consolidated judgment dated 1.6.2010 of Lahore High Court, Lahore passed in Writ Petition No. 4736 of 2010, etc.).

(a) Limitation---

----Principles---Limitation was not a mere technicality---Once limitation expired, a right accrued in favour of the other side by operation of law which could not lightly be taken away.

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

----Ss. 3 & 5---Appeal, filing of---Objections raised by Judicial Office ('office') of the High Court---Where appeal filed within time but office returning the same by raising some objections and giving a specified time to the appellant to remove such objections and re-file the same---Whether such appeal would become barred by time if the objections were not removed within the time specified by the office and the appeal was not re-filed within the period of limitation---Held, that if objections raised by the office were not removed during the period allowed by the office and meanwhile the limitation period expired, the appeal/petition would become barred by time.

If objections raised by the office (of the Court) were not removed within the time specified by the office and in the meanwhile limitation for filing the appeal expired, the appeal would be rendered time-barred.

Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224; Ghulam Hussain v. Bahadar PLD 1954 Lah. 361; Naheed Ahmad v. Asif Riaz PLD 1996 Lah. 702; Ghulam Hussain v. Bahadar PLD 1954 Lah. 361; Ellahi Bakhsh and 8 others v. Ahmad Bakhsh and 2 others 1999 YLR 777; Ghulam Dastgir Khan Lak v. Hayat 2000 CLC 781; Muhammad Idrees v. Abdul Rehman 2001 YLR 2294; Mazhar Iqbal v. Muhammad 2001 YLR 819; Protein and Fats International (Pvt.) Ltd. v. Capital Assets Leasing Corporation Limited 2005 CLD 857 and Controller Land Acquisition v. Fazal-ur-Rehman 2009 SCMR 767 ref.

Mst. Sabiran Bi v. Ahmad Khan 2000 SCMR 847 and Farman Ali v. Muhammad Ishaq PLD 2013 SC 392 distinguished.

In cases in which certain objections were raised by the office which rendered the institution of the case in itself invalid or incompetent should be held to be time-barred unless the objections or deficiencies pointed out by the office were met within the time specified by the office in such regard which in turn should be within the limitation period prescribed by the law.

If what was filed within the limitation period could not be said to be a valid appeal, in the presence of deficiencies/objections pointed out by the office, it should be held to be hit by limitation if the objections/deficiencies were remedied beyond the period of limitation.

(c) Appeal---

----Filing of---Deficiency---Appeal not signed by counsel or not accompanying a duly signed Power of Attorney---Such appeal could not be considered as an appeal. [p. 746] F

Sakhi Muhammad v. Taj Begum 1985 CLC 734; Ramzan v. Sohrab Khan PLD 1990 Lah. 314 and Chhita v. Mt. Jaffo AIR 1931 All. 767 ref.

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

----Ss. 3 & 5---Civil Procedure Code (V of 1908), O. XLI, Rr. 1 & 3---Appeal, filing of---Deficiency---Appeal filed not bearing the signatures of the Counsel and also not having attached to it a duly signed power of attorney---Objections raised by the office (of the Court)---If said defects were made good by the appellant after the expiry of the limitation period as a result of objections raised by the office, the appeal would be time-barred.

Divisional Personal Officer, P.R. v. Chairman 1987 CLC 1397; Official Receiver, Aligarh v. Hira Lal AIR 1935 All. 727 and Sheikh Palat v. Sarwan Sahu AIR 1920 Pat. 581 ref.

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

----Ss.3 & 5---Court-fees Act (VII of 1870), Chap. II (Ss.3 to 5)---High Court (Lahore) Rules and Orders, Vol. 5, Chap. I, Judicial Business, Pt. A (a), Rr. 1(a)(iii) & (v) & 9(i)(d) & (e)---Appeal, filing of---Deficiency---Office objection that court fee and revenue stamps were deficient---If deficiency was pointed out by the office in respect of court fee and time was granted for making good the deficiency but the party failed to make good the deficiency within the time specified by the office, question of limitation might then arise and discretion to extend further time would be refused if the conduct of the appellant was considered to be contumacious and the appeal would be rejected.

Shahna Khan v. Aulia Khan PLD 1984 SC 157; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Ghulam Hussain v. Mukarab Khan 1974 SCMR 364 and Sabiran Bi v. Ahmad Khan 2000 SCMR 847 ref.

(f) Vested right---

---Vested right could only be taken away through express legislation and certainly not by implication.

Syed Salman Haider Jaffri, Advocate Supreme Court for Appellants.

Sardar Ahmed Jamal Sukhera, Advocate Supreme Court for Respondents.

P L D 2020 Supreme Court 749

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

MANZOOR HUSSAIN (deceased) through L.Rs.---Appellants

Versus

MISRI KHAN---Respondent

Civil Appeal No. 1698 of 2014, decided on 24th September, 2020.

(On appeal from the judgment dated 14-10-2014 of the Lahore High Court, Rawalpindi Bench passed in C.R. No.134 of 2008).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice for---Proof---Since the purchaser had denied the receipt of the Talb-i-Ishhad notice it was necessary for the pre-emptor/plaintiff to establish its delivery to the purchaser or receipt of it by the purchaser---Acknowledgement receipt was stated to have been signed when the envelope said to contain the Talb-i-Ishhad notice was purportedly received by the purchaser, however, since the purchaser had not admitted receipt of the said notice, the acknowledgement receipt could not be stated to be an admitted document and did not constitute an admitted fact, therefore, delivery to and/or receipt by the purchaser of the notice had to be established---Purchaser was not confronted with the acknowledgement receipt to establish that he had received the said notice---Even if it was accepted that the pre-emptor's counsel had received back the acknowledgement receipt, it would still not establish that the addressee (the purchaser ) had received it---Postman was also not produced to establish the delivery of Talb-i-Ishhad notice, which was a necessity to establish delivery of such notice---Nothing was available on record to establish that Talb-i-Ishhad notice was delivered to or received by the purchaser, who had denied receiving it, and having failed to establish the delivery/receipt of the said notice the pre-emption suit could not succeed---Appeal filed by pre-emptor was dismissed.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Arts. 111, 112 & 113---Suit for pre-emption---Talb-i-Ishhad, notice for---Proof---Copies of the acknowledgement receipt, aks shajarah kishtwar, registered post receipt, mutation and jamabandi produced and exhibited by the pre-emptor's counsel, but without him testifying---Supreme Court deprecated practice of copies of documents, having no concern with counsel, tendered in evidence through a simple statement of counsel but without administering an oath to him and without him testifying---Supreme Court observed that ordinarily, documents were produced through a witness who testified on oath and who may be cross-examined by the other side, however, there were exceptions with regard to facts which need not be proved; that these were those which the Court would take judicial notice of under Art. 111 of the Qanun-e-Shahadat, 1984 and were mentioned in Art. 112, and facts which were admitted (Art. 113 of Qanun-e-Shahadat, 1984); that Qanun-e-Shahadat, 1984 explicitly set out the documents which must be produced in original, which in the present case would be the registered post receipt and acknowledgment receipt, and the photo copies, that was secondary evidence, could only be produced as permitted; that as regards extracts of official records, i.e., the aks shajarah kishtwar, mutation and jamabandi, certified copies thereof had to be tendered in evidence; that in not observing the rules of evidence unnecessary complications for litigants were created, which may result in avoidable adverse orders or in the case being remanded on such score, which would be avoided by abiding by the Qanun-e-Shahadat, 1984---Appeal filed by pre-emptor was dismissed.

Ghulam Asghar Khokhar, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record for Appellant.

Muhammad Amir Butt, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

P L D 2020 Supreme Court (AJ&K) 1

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

MUMTAZ HUSSAIN and 3 others---Appllants

Versus

PUBLIC SERVICE COMMISSIONER OF AZAD JAMMU AND KAHSMIR through Chairman and 8 others---Respondents

Civil Appeal No.307 of 2018, decided on 5th March, 2019.

(On appeal from the judgment of the High Court dated 12-6-2018 in Writ Petition No.1477 of 2017).

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

----S. 44---Writ petition, withdrawal of---Application for amendment of writ petition was moved which was accepted---Petitioners submitted amended writ petition wherein additions were made beyond the permission granted---Petitioners move application for withdrawal of writ petition with permission to file fresh one which was allowed---Supreme Court remanded the matter with direction to decide application for withdrawal of writ petition after seeking objections and providing fair opportunity of hearing through speaking order---High Court dismissed application for amendment as well as writ petition---Validity---Held, High Court could either pass order of dismissal of writ petition for violation of Court order, deeming the contents of amended memo of writ petiton as non-existent being out of scope of permission granted, or direct the petitioners to file memo of amended writ petition in accordance with permission granted by the Court---Petitioners should have been provided opportunity to file amended writ petition according to permission granted by the Court instead of withdrawal of the same---Petitioners were directed to file amended writ petition according to the permission granted by High Court within a period of one week---Supreme Court directed the High Court to proceed further with the matter according to law---Appeal was accepted, in circumstances.

Tahir Aziz Khan, Advocate for Appellants.

Sardar Karam Dad Khan, Advocate General for Respondents Nos.1-5.

Sardar M. R. Khan, Advocate for Respondents Nos. 8-9.