PLD 2021 Judgments

P L D 2021 Federal Shariat Court 1

Before Muhammad Noor Meskanzai, C.J., Shaukat Ali Rakhshani and Dr. Syed Muhammad Anwer, JJ

Messrs NAJAAT WELFARE FOUNDATION through General Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 4 others---Respondents

Shariat Petition No. 02/I of 2014, decided on 3rd February, 2021.

(a) Constitution of Pakistan---

----Arts. 203-B(c) & 203-D(1)---Principles of Muhammaden Law (authored by Dinshah Fardunji Mullah) ['the subject book']---Whether subject book had the force of law in terms of Art. 203-B(c) of the Constitution, and hence the Federal Shariat Court had jurisdiction to declare certain Paragraphs of the same as repugnant to the Injunctions of Islam---Held, that the perception that the continuous, unaltered, uninterrupted, uniform and constant practice of the book 'Principles of Muhammaden Law' by D.F. Mullah ['the subject book'] had attributed it a force of law, bringing it within the ambit of law as provided under Art. 203-B(c) of the Constitution, was wrong---Subject book was just a reference or a text book like other books of the same category but not a statutory book---Detailed reasons stated.

The book 'Principles of Muhammaden Law' (authored by Dinshah Fardunji Mullah) ["the subject book"] was only a reference book, which did not have the force of law and hence did not come under the ambit of law as provided under Article 203-B(c) of the Constitution for the following reasons:

(i) The author D.F. Mullah edited many editions of his book during his lifetime by incorporating the developments made by the judicial pronouncements, various legislative measures and by relying on secondary sources. Relying on secondary sources by D.F. Mulla was itself a question mark on the validity of the opinion contained in his book and on the understanding of Islamic Law by him. Like any other reference book its updating and rectifications was a fundamental requirement. If one compares the first edition of the book released in 1905 with the updated editions being published now, many changes can be found by way of amendments in the numbered paragraphs, addition of new paragraphs, deletion of some old paragraphs and even alteration of wording within the paragraphs. This demonstrates that the subject book kept on changing according to the changing requirements. Hence the understanding about the consistency and the continuity of said book is incorrect.

(ii) There are some paragraphs in the subject book of which are based on the rulings or judgments of some Indian High Courts, which were though judicial precedents but in no way can be called as principles of Muslim Personal Law. Similarly some of the paragraphs of the subject book are opinions of English authors. Certain paragraphs in the book are based on customary laws prevalent in some territories of India predominantly Muslim population of a specific area of India. Such customary practices cannot be generalized as an Islamic principle for Muslims generally and more specifically they have no relation whatsoever with the Muslim population of Pakistan. Furthermore, at some instances in the subject book, it appears the book is a mere legal cross reference book when it refers to some other enactments. At times the subject book contains suggestions for the Court and the manner to decide an issue which in no way can be binding upon any court of the country.

Paragraphs 172, 204, 225, 322, 333(3), 334 and 336(v)(ii) of 'Principles of Muhammaden Law' by D.F. Mullah

(iii) The very title of the subject book "Mohammedan Law" contains the term "Mohammedan" which is widely considered archaic and even offensive. The expressions 'Mahomedan' and 'Mahomedanism' are not correct and, in a sense, are even objectionable. The proper expressions are Islamic Law and Muslim Law. Modern Muslims dislike the terms Mohammedan and Mohammedanism, which seem to them to carry the implication of worship of Mohammed (pbuh). Although the subject book is itself a result of hard work but mere use of a 'misnomer' for referring it in its title made the whole effort controversial amongst the population for which it is compiled by its compiler. With such felonious feeling associated with the title of any scholarly work made it difficult to place it at any higher place (similar to a law).

(iv) The appreciation and use of the subject book in the legal fraternity since 1905 to 1947 is different from its use after the independence of Pakistan. After independence, the superior Courts of Pakistan started viewing this book differently and all the other books of this category i.e which are the part of Anglo - Mohammadan legal literature. Though the work done by D.F.Mulla being a non-Muslim is remarkable and quite comprehensive, at least to the extent of topics of Islamic Law which are included in this book in certain way; but the very understanding of the basis of Islamic Jurisprudence is somewhat lacking.

(v) The term "Source of Islamic Law" is a comprehensive term. The first source or legislative code of Islam is the the Holy Qur'an. Its teachings shall ever remain the fountain of all guidance for all times, ages and people. On points and matters where there is a direct mandate of the Holy Qur'an, the same are to be decided and handled in accordance therewith. The Sunnah (i. e. the Hadis, the precepts, actions and sayings of the Holy Prophet (pbuh) are the second source of Islamic Law. The third and fourth source of Islamic law are 'Ijma'a' and 'Ijtehad' respectively. There are other sources too like 'Istihsan', 'Istislah', 'Maslaih-al-Mursalah', 'Istidlal', 'Illat', 'Urf' and 'Taqlid'. These are all methods through which the law from the Holy Qur'an and the Sunnah is deduced, but the fundamental and primary sources at all times remain the Holy Qur'an and the Sunnah.

PLD 1980 SC 160 ref.

(vi) Subject book and all the other books which are part of legal literature generally called as "Anglo Muhammadan Law" contain an inherent problem of understanding of Islamic Jurisprudence in a traditional sense. All their authors were English trained lawyers and they were instrumental in solidifying the colonial rule over the Muslim subjects trying to produce a genre of so called Muslim personal law in English language in somewhat 'codified' manner that helped to placate the Muslim population against the British rulers. They helped to make an aura and impression of congeniality amongst the Muslim subjects towards the rulers. In some cases, they did the translation of the old source material in English too; but they all remained limited and restricted towards adopting the Fatawa or the opinions of the ulema of Hanafi school of thought.This was because of the obvious historic and political reasons specific both of that era and area. Sub-continent was ruled by the Mughals and HanafiFiqh was the official Mashab of the Mughals.

(vii) The authors of Anglo Muhammadan legal literature including D.F. Mulla while attempting to introduce the Hanafi fiqh in so-called "codified form" could not properly appreciate the actual and authentic status of any Fiqh in Islam. They could not understand that any attempt to transform the juristic opinions in some sort of codified form was equal to locking the Fiqh in a specific time frame which is not at all the purpose of Fiqh rather the realty is other way around that Fiqh is a continuously evolving subject, the core purpose of which is to regulate the lives of Muslims in the light of Quran and Sunnah of the Prophet (pbuh) in every point in time and across all the world. The superior judiciary of Pakistan through its judgments on the issues involving Muslim Personal law has evolved a new genre of Islamic jurisprudence of Muslim Personal Law. In the last seven decades the superior Courts have evolved a class of juristic opinions in Muslim Personal law; which are a kind of their own and can be used by other Islamic jurisdictions as precedents. This vibrant thinking was not easily possible if the judiciary remained restricted and confined to the so-called Mohammedan Law.

PLD 1967 SC 97 ref.

(viii) There is an abundance of precedents of Superior Courts to demonstrate the phenomenon that the judiciary (in Pakistan) progressively analyzed and examined the opinions contained in the subject book and some other books of the same category and gave better and practical decisions which are more conforming to the principles of Islamic Injunctions as envisaged in Quran and Sunnah for the betterment of the whole community. The Superior Courts are clearly of the view that the opinions contained in text books of so-called Muhammadan Law, are neither final nor binding upon the Superior Courts. In a number of judgments it is clearly mentioned that the subject book is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. Furthermore in many judgments the Superior Courts have differed from the so-called text books of Muhammadan Law including the subject book. This trend was initiated soon after independence of Pakistan and became a norm by the Superior Courts to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. Courts have also clearly pointed out that one of the core reasons why in many cases the text books (like the subject book) do not give a comprehensive and clear answer to any proposition of Muslim Personal Law was that they suffer from over simplification.

PLD 1965 W.P. Lah. 695; 2014 SCMR 343; PLD 2016 Lah. 865; 2000 SCMR 838; 1989 CLC 604; 2000 MLD 1967; 2002 YLR 2548; PLD 2002 Lah. 283; 2004 SCMR 1839; 2009 SCMR 1458; 2016 YLR 440; PLD 2015 Lah. 405; 2006 YLR 33; 2000 CLC 1384; PLD 1990 SC 1; PLD 2001 SC 18; PLD 2016 Lah. 865; 2011 MLD 1012; PLD 2012 Lah. 154 and PLD 2013 Lah. 464 ref.

(ix) The attempt of indexing and numbering the Islamic juristic opinions of the past in an over simplistic language and at times avoiding the use of standard Arabic terminology with an attempt to change them with their English equivalents often gives rise to confusion in the minds of readers. Opinions in the subject book are mentioned in over simplified English language and paragraphs of the book are numerically marked. The very style of composition of the subject book often creates a confusion amongst its reader that it is a statute book. Perhaps this is the reason why it is believed that the subject book comes within the purview of custom and usage, which is absolutely wrong and incorrect.The para-graphs in the subject book which were numbered by the author must not be mistakenly taken as sections of a statute.

Federal Shariat Court observed that the book Principles of Muhammaden Law (authored by Dinshah Fardunji Mullah) ['the subject book'] was just a text book as stated by the author himself or it can be considered as a reference book but in no way it is a statute; that neither should the subject book be discarded merely on the basis that it is written by an English trained, non-Muslim, author from British India, nor should it be treated as equivalent to a statute of law on Muslim Personal Law, and that the use of the phrase "Mohammedan Law" as a synonym of "Muslim Personal Law" may be avoided as has been done at many instances by the Superior Courts in their judgments.

(b) Constitution of Pakistan---

---Art. 203-D(1)---Federal Shariat Court, jurisdiction of---Scope---Islamic law on Inheritance---Whether Federal Shariat Court had the jurisdiction to issue directions to the Legislature to make laws on inheritance---Held, that it was not within the jurisdiction of the Federal Shariat Court to issue any such direction within the meaning of 203-D of the Constitution; it was purely the prerogative of the Parliament to legislate on any and all the issues---Furthermore to have legislation on any issue related to Muslim Personal law may have its advantages, but it also had many disadvantages.

PLD 1980 SC 160 ref.

Zafarullah Khan for Petitioner.

Ch. Ishtiaq Mehrban, Deputy Attorney General for Pakistan for the Federation.

Imrana Baloch on behalf of Ch. Faisal Farid, Additional Advocate General, Punjab for Government of Punjab.

Ahsan Hameed Dogar on behalf of Advocate General, Sindh for Government of Sindh.

Barrister Babar Imran, Assistant Advocate General, K.P.K. for Government of K.P.K.

Dr. Hafiz Muhammad Tufail, Juris-Consult.

P L D 2021 Federal Shariat Court 28

Before Muhammad Noor Meskanzai, C.J., Shaukat Ali Rakhshani and Dr. Syed Muhammad Anwer, JJ

IRUM MALIK---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad ---Respondent

Shariat Petition No. 11-I of 2020, decided on 24th December, 2020.

(a) Islamic jurisprudence---

----Usul-al-Fiqh---Scope---Number of Islamic Jurists over last fifteen centuries have developed principles of interpretation of dictates of Allah as prescribed in the Holy Quran---Whole subject has been developed for such purpose which is known as Principles of Islamic Jurisprudence or Usul al Fiqh ( )---Plenty of literature is available of Usul-al-Fiqh explaining rules for interpretation of verses of the Quran in a systematic, disciplined and uniformed way---Some of the prominent works are: Usul-i-Shashi, al Wajeez, Jamia ul Usul, etc.---Usuliyeen categorized words of the Quran in many categories according to their use, meaning, context and legal impact etc.

(b) Islamic jurisprudence---

----Sirka (Theft)---Necessary ingredient to constitute theft is that thing which is stolen has to be in safe custody---Safe custody is called "Hirz" , a place which is considered by owner of thing as safe and it depends upon custom and usages.

Fath al-Qadir Vol. 5; Musua Fiqihiya; al Mughni Vol. 7 and Bidaya al-Mujtahid rel.

(c) Islamic jurisprudence---

----Theft liable to Hadd---Principle---Necessary ingredient of Hirz to constitute theft liable to Hadd such ingredients wanes mainly under following situations:

i. Firstly; if the act is committed by any of those persons who are given access explicitly to the Hirz where the thing is kept by the owner of thing as in cases of master and servant, or host and guest etc. In presence of such association if someone takes something without the permission of its owner it may constitute a crime like, cheating, embezzlement or fraud etc.; but it does not constitute the crime of theft liable to Hadd.

ii. Secondly, in addition to husband and wife the Muslim Jurists includes all the relatives mentioned in verses 22-23 of Surah al-Nisa as Mehrams and in verse 61 of Surah al-Noor in which Allah has mentioned a list of relatives in houses of whom one is allowed to enter and eat there. The list of relatives that are allowed to have implied permission of access to the Hirz of a person are mentioned in the Ayat 61 of Surah al-Noor.

iii. Thirdly, when the stolen thing is either lying unguarded at a public place or is publicly accessible like hanging fruits of a garden. In all of these situations if someone takes something without the permission of its owner it may constitute a crime like, cheating, embezzlement or fraud etc.; but it does not constitute the crime of theft liable to Hadd.

Verses 22-23 of Surah al-Nisa and Verse 61 of Surah al-Noor rel.

(d) Islamic jurisprudence---

----Theft of trivial things---Scope---In case of stealing trivial things, value of which is less than Nisab, Hadd of theft is not implemented---Such thief does not go scot free and he may or may not be subject to Tazir depending upon situation of the case.

Sunan Abu Dawud, Kitab al-Hudood rel.

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

----Ss. 9 & 10---Constitution of Pakistan, Art. 203-D---Theft---Punishment of imposing Hadd---Petitioner assailed provisions of Ss. 9 & 10 of Offences Against Property (Enforcement of Hadood) Ordinance, 1979 on the plea that only punishment of theft prescribed in Islam is amputation of hand---Validity---Concept of Nisab is relevant to property which is jointly owned by a person who commits theft and the person from whose custody property is stolen---If someone steals a thing from his partner or from his creditor then his hand cannot be cut as punishment of Hadd---In such cases accused may be punished for commission of some other crime but not theft liable to Hadd---Such two concepts of Islamic Law are translated into Ss.10(e) & 10(f) of Offences Against Property (Enforcement of Hadood) Ordinance, 1979---Federal Shariat Court thoroughly examined each and every subsection of Ss.9 & 10 of Offences Against Property (Enforcement of Hadood) Ordinance, 1979 on touchstone of Islamic Injunctions and there was no provision which was un-Islamic---Petition was dismissed, in circumstances.

Verse 38 of Surah al-Maidah; (59-7); Aal-e-Imran; PLD 1983 FSC 255; Sunnan-Dar-Qutni. Vol. 4 No. 3392; Sunnan-Dar-Qutni Vol.4 No. 3393; al-Tashri' al-Jinai' al-Islami Vol.1 p. 652; Hidayah; Bidayah wa Sinayah Vol.7; Fath al-Qadir vol.5; Kanz al-Daqaiq Musua Fiqihiya; al Mughni Vol. 7; Bidaya al-Mujtahid; Sunan an-Nisai; verses 22-23 of Surah al-Nisa; verse 61 of Surah al-Noor; al-Ahkam al-sultania p.268; Abi Yala al-ahkam alsultaniya, Kashaf al Qina Vol. 6 p.114; Sahih al-Bukhari , Hadith No.7180; Sunan Ibn Majah, Kitab al-Tijarah Hadith 156 : Vol. 3, Book 12, Hadith No.2292; Kashaf al-Qina Vol. 6 p.114; Jamai Ahadith al Shia' vol.30, p.942 No. 46861; Ibn I Qudaima al Mughni, p.284; Muwatta Malik Book 41, Hadith No. 1537; Musannaf Ibi Abi Shaiba Vol.5 page 477, Hadith No. 28114; Sunan Abu Dawud, Kitab al-Hudood; Muskat Vol.3 Hadith No.742; al-Baqarah 173 and al-Nehal rel.

(f) Islamic jurisprudence---

----Ikrah---Meaning---Term 'Ikrah' means coercion or duress it is a general exception regarding applicability of rules and law under Islamic Jurisprudence.

(g) Islamic jurisprudence---

----Iztrar---Meaning---Term 'Iztrar' means considerable urgency constraint---Iztrar is also a general exception to applicability of rules and law.

Petitioner (in person).

P L D 2021 Federal Shariat Court 50

Before Muhammad Noor Meskanzai, C.J., Shaukat Ali Rakshani and Dr. Syed Muhammad Anwer, JJ

HAMMAD HUSSAIN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice---Respondent

Shariat Petitions Nos. 8/I and 9/I of 2020, decided on 4th November, 2020.

(a) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court, jurisdiction of---Scope---Mandate as per Art. 203-D of the Constitution is to answer questions as to whether a particular law or provisions of law is or is not repugnant to injunctions of the Holy Quran and Sunnah of Holy Prophet (peace and blessing of Allah be upon him).

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

----Ss.7 & 25---Constitution of Pakistan, Art.203-D---Shariat petition---Custody of minor---Natural guardian---Rights---Petitioner contended that provisions of Ss.7 & 25 of Guardians and Wards Act, 1890, were anti-people, inhuman and un-Islamic as the same were to deprive natural guardian---Validity---Held, neither any law was enacted under S.25 of Guardians and Wards Act, 1890, nor it had prescribed any rule, rather it regulated situation where a ward was to leave or was removed from custody of a guardian of his person and natural/certified guardian moved Court for return of the ward---Title of guardianship did not entitle the guardian for return of custody of minor, unless he/she would establish that return of ward was in the interest of minor---Principle that father was natural guardian and lap of mother was cradle of God, was subservient and subordinate to welfare of minor as contemplated by S.25 of Guardians and Wards Act, 1890, which was also in accordance with Islamic Jurisprudence---Shariat petition was dismissed in circumstances.

Ambreen Tariq Awan, Advocate v. Federal Government of Pakistan through Secretary Ministry of Law and Justice, Islamabad PLJ 2013 MLD 1885 and Rahimullah Choudhury v. Mrs. Syeda Helali Begum and others 1974 SCMR 305 ref.

Petitioners in person.

P L D 2021 High Court (AJK) 1

Before Sadaqat Hussain Raja, J

FAYYAZ AHMED JANJUA, ADVOCATE, SUPREME COURT OF AJ&K and 2 others---Petitioners

Versus

LEGISLATIVE ASSEMBLY OF AZAD JAMMU AND KASHMIR through Speaker Legislative Assembly and 3 others---Respondents

Writ Petition No. 580 of 2018, decided on 5th November, 2020.

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

----Art. 44---Writ petition---Maintainability---Locus standi---Aggrieved person---Public interest litigation---Scope---Question of locus standi or aggrieved person implied in Art.44(2)(c) of Azad Jammu and Kashmir Interim Constitution Act, 1974 was sine qua non for invocation of extraordinary writ jurisdiction of High Court but in appropriate cases, when writ petition was filed in larger interest of society / public by a lawyer or state subject, in which violation of Fundamental Rights was pointed out, then question of locus standi was to be construed liberally, subject to law.

Azad Government and 3 others v. Genuine Rights Commission AJK and 7 others 1999 MLD 268; Raja Waseem Younis v. The Chairman, Azad Jammu and Kashmir Council (Prime Minister of Pakistan) through Secretary and 6 others 2020 CLC 210 and Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through Joint Secretary Council Secretariat Sector F-5/2 Islamabad and others PLD 2013 HC (AJ&K) 34 rel.

(b) Words and phrases---

----"Control", meaning of---"Control" meant to check, restrain, govern, have under command and authority; and a position of authority in direction and management---"Control" to exercising of restraint or directing influence over something, to regulate, restrain, dominate, curb or to hold from action, to overpower, counteract or govern.

Ballentine's Law Dictionary, 3rd Edition and Black's Law Dictionary, 5th Edition rel.

(c) Words and phrases---

----"Supervise", meaning of---"Supervise" meant to have general oversight and keep under inspection.

Ballentine's Law Dictionary, 3rd Edition and Black's Law Dictionary, 5th Edition rel.

(d) Words and phrases---

----"Superintendence", meaning of---"Superintendence" meant oversight, inspection and supervision; and was care and oversight for purpose of direction and with authority to act---Word superintendence implied exercise of some authority or control over person or thing subjected to oversight.

Ballentine's Law Dictionary, 3rd Edition and Black's Law Dictionary, 5th Edition rel.

(e) Words and phrases---

----"Supervisor", meaning of---"Supervisor" meant any individual having an authority, in interest of an employer to hire transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or having responsibility to direct them or to adjust their grievances or effectively to recommend such action if in connection with foregoing exercise---Such authority was not of a merely routine or clerical nature but required use of independent judgment.

Black's Law Dictionary, 5th Edition rel.

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

----Arts. 46 & 44---Azad Jammu and Kashmir State Judicial (Policy Making) Committee Act (XXXVIII of 2017), Ss. 3 & 4---High Court to superintend and control all courts subordinate to it---Nature---Supervisory jurisdiction of High Court over subordinate judiciary under Art.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Scope---Petitioners impugned establishment of State Judicial (Policy Making) Committee under Azad Jammu and Kashmir State Judicial (Policy Making) Committee Act, 2017 inter alia on ground that said committee was given statutory power to exercise supervisory control over subordinate judiciary which was in violation of Constitutional provisions, as such control only vested in High Court---Validity---Supervision and control over subordinate judiciary vested with High Court under Art.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974, and same was exclusive in nature, comprehensive in extent and effective in operation---Such supervisory control comprehended administrative powers as to working of subordinate courts and all matters relating to performance standards, including disciplinary jurisdiction over subordinate judicial officers---Any provision in a statute or rule or notification empowering any executive functionary to have administrative supervision and control over subordinate judiciary will be violative of Art.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Under S.4 of Azad Jammu and Kashmir State Judicial (Policy Making) Committee Act, 2017 such powers of superintendence and control which had been vested in High Court, had been transferred to said committee, which was contrary to Art.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974----Functions entrusted to impugned Committee were Constitutional functions of High Court and said subordinate Legislation had therefore practically amended Azad Jammu and Kashmir Interim Constitution Act, 1974 which was not permissible---High Court held that Azad Jammu and Kashmir State Judicial (Policy Making) Committee Act, 2017 was ultra vires the Azad Jammu and Kashmir Interim Constitution Act, 1974 and same was set aside with observation that actions taken in furtherance of provisions of said Act were to stand protected and validated---Writ petition was allowed, accordingly.

Ghulam Mustafa Mughal, Advocate Supreme Court Muzaffarabad and others v. Azad Government and others PLJ 1998 AJ&K 140; Azad Government v. Muhammad Younas Tahir 1994 CLC 2339 and M. Yousaf Haroon v. Competent Authority and 4 others 2014 SCR 1180 rel.

Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat through Joint Secretary Council Secretariat Sector F-5/2 Islamabad and others PLD 2013 HC (AJ&K) 34; 2003 PLC (C.S.) 664; 2014 SCR 1180; PLJ 2015 SC AJ&K 233; Azad Government and 3 others v. Genuine Rights Commission AJK and 7 others 1999 MLD 268; AIR 1951 Hyderabad 11; 2013 SCR 929 and PLD 1971 Kar. 118 ref.

Fayyaz Ahmed Janjua (Petitioner No.1) for Petitioners Nos. 2 to 3.

Raja Akhlaq Hussain Kiani, A.A.G. for Respondents.

P L D 2021 High Court (AJK) 19

Before Sadaqat Hussain Raja, C J

TAYYAB ABBASI---Petitioner

Versus

AZAD JAMMU AND KASHMIR ELECTION COMMISSION, MUZAFFARABAD

and 6 others---Respondents

Writ Petition No. 2189 of 2021, decided on 28th June, 2021.

(a) Azad Jammu and Kashmir Political Parties Act (I of 1987)---

----S. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art.44---Writ petition---Dissolution of political parties---Scope---Petitioner prayed for the respondent political parties to be declared foreign affiliated/aided parties and as such liable to be dissolved---Validity---Right of State subjects as detailed in Art. 4(7) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, could be controlled by an Act as is provided in the right itself, but there was no law in force in Azad Jammu and Kashmir that a political party in Azad Jammu and Kashmir could not be affiliated with a political party in Pakistan or a political party of Pakistan could not set up a branch in Azad Jammu and Kashmir---Only restrictions imposed by law were those which were contained in the Azad Jammu and Kashmir Political Parties Act, 1987, which regulated the formation and functioning of the political parties---Power of dissolution of a political party was vested in the Government---No such power was granted to the High Court---Writ petition was dismissed.

PLD 2012 Lah. 52; PLD 2009 SC 28 and 2007 SCMR 1318 ref.

Sardar Muhammad Sayyab Khalid v. Mohtarama Benazir Bhutto and 39 others (Writ Petition No.64 of 98, decided on 16.01.1999) and 1999 YLR 2499 rel.

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

----Art. 44---Writ petition---Jurisdiction---Scope---Court can only pass an order which is authorized by law---While deciding the writ petition, High Court can issue a direction or declaration, if it is shown that a law has been violated.

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

----Art. 44---Writ petition---Jurisdiction---Scope---Phraseology of Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 indicates that writ jurisdiction is exercisable if a grievance is based on violation of a law---Under Art. 44, if an act is without lawful authority, a writ can be issued to direct the respondent to do that which he is required by law to do or to forbid him from doing an act which he is not allowed by law to do---Requirement is clear that a grievance raised in a writ petition must be based on law---Writ lies if law has been violated or in case of a writ of prohibition, when it is apprehended that it will be violated by a Government functionary.

PLD 1998 SC (AJ&K) 7 ref.

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

----Art. 44---Writ petition---Scope---Writ jurisdiction can be exercised only, where there is violation of law or principle of law.

Perveen Azam and others v. SSP District Mirpur and 4 others 2015 SCR 837 rel.

Abdul Qadir for Petitioner.

Raja Ikhlaq Hussain Kiani, A.A.G. for Respondent No.1.

Tahir Aziz Khan, Legal Advisor for the Department.

Ch. Shoukat Aziz for Respondent No.5.

P L D 2021 Islamabad 1

Before Athar Minallah, C.J.

SHAHID AKBAR ABBASI, ADVOCATE---Petitioner

Versus

The CHIEF COMMISSIONER, ISLAMABAD and 6 others---Respondents

Writ Petition No. 1969 of 2020, decided on 22nd July, 2020.

(a) Constitution of Pakistan---

----Arts. 19 & 19-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Freedom of expression and free speech---Scope---Crimes against journalists----Abduction of a journalist by personnel in police uniform---'Enforced disappearance'---Present incident, which was caught on CCTV cameras, involved abduction of a journalist in broad day light in the Federal capital city---Admittedly, some of the abductors were wearing police uniforms and some of the vehicles used by them during the commission of the crime had an official appearance---Prima facie, because of the characteristics of the incident, it had to be treated as a case of enforced disappearance, unless otherwise established during the investigations---Perception of involvement of the State and its functionaries in crimes committed against a journalist extended to the infringement of the fundamental rights of the public at large guaranteed under Arts. 19 & 19-A of the Constitution---Present case was a test case for the Federal Government and the public functionaries to dispel the impression that the State or its agents were involved or complacent in a grave crime---Deputy Inspector General of Police made appearance and informed the court the abductee had since returned home; that investigations were in progress following the registration of a criminal case; that, inter alia, the offence under S. 7 of the Anti-Terrorism Act, 1997 had been included in the First Information Report (FIR), and that no stone would be left unturned in order to apprehend and prosecute the abductors---High Court recorded observations regarding importance of free speech and journalists in a democratic society and disposed of the Constitutional petition with the expectation that investigation in the present case would be conducted in the most transparent and diligent manner and that the perpetrators would be dealt with in a manner so that no journalist in the country feared to be harmed for exposing the truth.

Concerning aspect of the present case was the fact that the alleged abductors had no fear and were able to abduct a journalist with impunity in broad-daylight. This spoke volumes for the state of law in the capital city. It was beyond comprehension that criminals could have dared to commit such a heinous crime in a city which was supposed to be sensitive and had the highest security alert in the country. It was the impunity and fearlessness caught on the CCTV footage which raised serious questions.

Impunity for crimes against journalists were taken seriously globally because of its fall out on the society and the fundamental rights of the general public. Abduction or enforced disappearance of any citizen was one of the gravest offences and thus could not be tolerated in a society that professed to be committed to upholding the rule of law. But even a perception of involvement of the State and its functionaries in crimes committed against a journalist extended the infringement to the fundamental rights of the public at large guaranteed under Articles 19 and 19-A of the Constitution. Any such perception, though it may ultimately be established to be wrong, obviously sent a message to others that the target or purpose of the crime was to suppress free speech and threaten others from following suit. Such fear or threat had devastating consequences for the society, its citizens and the democratic polity. Nothing impeded the freedom of expression and free speech more than the fear or perception that the State and its functionaries, instead of protecting the fundamental rights guaranteed under Articles 19 and 19-A, were involved or complacent in the impunity for crimes against its citizens, particularly those who were engaged in the profession of journalism. Removing such a perception became a duty of the State.

No society could develop, prosper and progress by suppressing freedom of expression and free speech by ignoring impunity for crimes against the journalists.

Present case was a challenge for the Federal Government and the public office holders of the Federal Capital Territory. They had to demonstrably show that there was a political will to put an end to impunity for crimes against citizens and to protect journalists from harm for exercising the right of free speech. It was their duty to demonstrate that the State had no tolerance for crimes which may be perceived as a threat to freedom of expression. Registration of criminal cases and giving public statements was not enough. The status of rule of law ought to be such that no one had the courage to commit a crime with such impunity as was demonstrated in the present case.

High Court observed that it had no doubt that the Federal Government had the political will to ensure that those who had attempted to terrorize the journalists as a class and the public at large were not only apprehended but made an example, so that no one would dare to commit a crime with such impunity. Constitutional petition was disposed of with the expectation that investigation in the present case would be conducted in the most transparent and diligent manner and that the perpetrators would be dealt with in a manner so that no journalist in the country feared to be harmed for exposing the truth.

(b) Constitution of Pakistan---

----Art. 19---Freedom of speech---Scope and significance---Free press, importance of---Free speech was not confined to speaking but extended to listening to and respecting opinions of others---Suppression of free speech led to regressive societies, encouraging extremism and eroding rule of law, which inevitably resulted in chaos and anarchy----Free press had the role of a watchdog and impeding its ability to disseminate information and hold the State and its institutions accountable denied to the people the enjoyment of their rights---National security could only be strengthened and enhanced by keeping people informed and encouraging them to exercise the right to express freely, subject to reasonable restrictions---Truth, and knowing the truth was a panacea for poverty, erosion of rule of law, regression and chaos---Free speech was crucial for bringing about change, progress and prosperity.

Jehangir Khan Jadoon for Petitioner with Petitioner in person.

Waqar Uddin Syed, DIG (Operations), ICT Police.

Omer Khan, Superintendent of Police (City), ICT Police.

Azhar Shah, D.S.P. (Legal), ICT Police.

P L D 2021 Islamabad 6

Before Athar Minallah, C.J.

ISLAMABAD WILDLIFE MANAGEMENT BOARD through Chairman---Petitioner

Versus

METROPOLITAN CORPORATION, ISLAMABAD through Mayor and 4 others---Respondents

Writ Petition No. 1155 of 2019, decided on 21st May, 2020.

(a) Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979)---

----S. 4---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Rules, 1983, R. 3(i)---Management of Zoo---Responsibility---In Islamabad Capital Territory, management of Zoo is within the domain of the Board of Management constituted under Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, and such is one of its crucial functions---Zoo, its management and all other matters relating thereto fall within the jurisdiction and competence of Board of Management constituted under Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979.

(b) Interpretation of statutes---

----Beneficial statute must not be construed too restrictively, rather should be given the widest possible interpretation.

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

----S. 3---Penal Code (XLV of 1860), Ss. 428 & 429---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) S.4---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Rules, 1983, R. 3(i)---Cruelty to animals---Animals in captivity--- Management of Zoo---Petitioners were aggrieved of maltreatment of authorities with animals kept in captivity in Zoo at Islamabad---Validity---Animals in Zoo had been subjected to unnecessary pain and suffering---Conditions in Zoo, described in various reports had spoken volumes for distress, pain and sufferings of all animals--- Authorities responsible exposed themselves to be proceeded against under Prevention of Cruelty to Animals Act, 1890---Animals in Zoo were public property and offences under Ss.428 & 429, P.P.C. could be invoked if the ingredients stood fulfilled---Zoo at Islamabad did not have facilities or resources to meet behavioral, social and physiological needs of the animals kept in captivity under inappropriate and illegal conditions---Animals held in captivity in the Zoo were kept in conditions that tantamount to subjecting them to unnecessary pain and sufferings, violating provisions of Prevention of Cruelty to Animals Act, 1890 and Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979---There were neither adequate facilities nor resources to provide living conditions that would meet the behavioral, social and physiological needs of animals---High Court directed the Board constituted under Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, to relocate all animals to their respective sanctuaries---High Court further directed the Board to take over management of the Zoo---High Court directed Islamabad Metropolitan Corporation and Chief Commissioner to assist the Board till all animals were relocated--- High Court restrained the Board from keeping any new animal in the Zoo till a reputable international agency/ organization, specializing in matters relating to zoological gardens would certify that facilities and resources were available to provide for behavioral, social and physiological needs of each species of animals---Federal Government was also directed to consider advising respective Provincial Governments to include in curriculum of Islamic Studies, the teachings of Islam regarding importance of taking care of animals, their welfare and well-being as highlighted in Ahadiths and the Quran---High Court directed the media to consider educating and informing general public regarding manner in which creation of Allah i.e. animal species had to be treated---Constitutional petition was allowed accordingly.

Messers Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999; N. R. Nair and others v. Union of India and others AIR 2000 Kerala 340; Animal Welfare Board of India v. A. Nagaraja and others (2014) 7 SCC 547; Dr Manilal v. Valliyate, The Constituted Attorney of People for Ethical Treatment of Animals v. The State of Maharashtra through Chief Wildlife Warden and others Writ Petition No.2662 of 2013; Nithin Singvi v. Union of India through Secretary Ministry of Environment and Forests and others Writ Petition No.06 of 2016; National Society for the Prevention of Cruelty to Animals v. Minister of Justice and Constitutional Development and another [2016] ZACC 46; Muhammad Arif v. S.H.O. City Police, Depalpur and 5 others PLD 1994 Lah. 521; Ghulam Asghar Gadehi and others v. Senior Superintendent of Police Dadu and 4 others PLD 2018 Sindh 169; Province of Sindh and others v. Lal Khan Chandio and others PLD 2016 SC 48; Government of Punjab and others v. Aamir Zahoor ul Haq and others PLD 2016 SC 421; Surrah An-Nahl 16:5; An-Nahl 16:7; Surrah An-Nahl 16:8; Surrah Al Haj 22:36; Surrah Al-Anam 6:38; Surrah An-Noor 24:41; Surrah Ar-Rahman 55:8-10 and Ms Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

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

----S. 3---Penal Code (XLV of 1860), Ss. 428 & 429---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979), S.4---Constitution of Pakistan, Arts. 9---Right to life---Animals, rights of---Wildlife is the most essential foundation of healthy ecosystems---Threat of climate change and its ensuring devastating consequences for human race can only be avoided if environmental degradation and damage to ecosystems and biodiversity can be stopped---Protection and preservation of wildlife species is a precondition for meeting challenges that stem from damage to ecosystems and degradation of environment---Welfare, well-being and survival of animal species is foundational principle for survival of human race on this planet--- Without wildlife species there will be no human on this planet---Neglect of welfare and well-being of animal species, or any treatment of an animal that subjects it to unnecessary pain or suffering, has implications for right of life of humans guaranteed under Art. 9 of the Constitution--- Relationship of treatment of animals and right to life of humans make it an obligation of the State and its authorities to jealously guard against cruel and illegal treatment of animals---Protecting, preserving and conserving animals species and preventing them from harm is a Constitutional obligation of the State and its authorities.

(e) Words and phrases---

----"Legal right"---Meaning---Legal right means "a right related to or recognized by law".

Eleventh Edition rel.

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

----S. 3---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) S.4--- Constitution of Pakistan, Art. 9---Animals' natural rights---Scope---Animals' natural rights of not to be treated in a manner that subjects them to unnecessary pain and suffering have been recognized in Prevention of Cruelty to Animals Act, 1890---Constitutional and statutory obligation of the State and its functionaries to ensure that such rights are not infringed---Such is a natural right of every animal to be respected because it is a living being, possessing precious gift of 'life'---Humans cannot arrogate to themselves a right or prerogative of enslaving or subjugating an animal because the latter has been born free for some specific purposes---Natural right of an animal not to be tortured or unnecessarily killed because gift of life it possesses is precious and its disrespect undermines the respect of the Creator---Right to life of humans is dependent on the welfare, well-being, preservation and conservation of all animals species---Any treatment in violation of the provisions of Prevention of Cruelty to Animals Act, 1890, or subjecting an animal to unnecessary pain or suffering, is an infringement of the right to life guaranteed under Art. 9 of the Constitution---Destruction and loss of habitat also violates fundamental right to life of a human---State is responsible to ensure that no animal is treated in violation of the provisions of Prevention of Cruelty to Animals Act, 1890 and Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979---High Court is vested with jurisdiction to issue a writ of prohibition or mandamus, as the case may be in order to refrain an authority from doing anything not permitted by law or to compel them to do anything not permitted by law or to compel them to do anything the law requires them to do.

Owais Awan, Muhammad Rustam Malik and Muhammad Waqas Malik for Petitioner.

Syed Muhammad Tayyab, Deputy Attorney General, Kashif Ali Malik, Adil Aziz Qazi, Haseeb Hassan and Malik Abdur Rehman for Respondents.

Sh. Ansar Aziz, Mayor, Metropolitan Corporation, Islamabad.

Ms. Naheed S. Durrani, Secretary Ministry of Climate Change.

Sulyman Shah, Joint Secretary (Admin), Ministry of Climate Change.

Syed Ali Raza Zadi, Dy. Director (Law), Ministry of Climate Change.

Anisur Rehman, Chairman, Islamabad Wildlife Management Board.

Rana Tahir Mehmood, Director Environment, MCI.

Bilal Khilji, Dy. Director Zoo.

Ali Asghar, Dy. Director (Law), MCI.

P L D 2021 Islamabad 42

Before Athar Minallah, C.J.

Rana MUHAMMAD ARSHAD---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and 4 others---Respondents

Writ Petition No. 2939 of 2020, decided on 3rd November, 2020.

Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S.5---Prevention of Electronic Crimes Act (XL of 2016), Preamble---Constitution of Pakistan, Arts.19 & 19-A---Freedom of information and press---Protection to journalists---Petitioner was a journalist who assailed undated notice of summoning him by Federal Investigation Agency without disclosing any reason/allegation---Contention of petitioner was that the Agency had recklessly exercised its power in an attempt to deter him from performing his functions as journalist without fear or favour---Validity---Such apprehension or fear in the mind of a person who was engaged in occupation reporting and dissemination of information to public not only undermined independence of the occupation but was intolerable in a society governed under a Constitution---Freedom of speech and expression was the most cherished human right and fortified other Constitutionally guaranteed rights---Threat whether real or perceived, of direct or indirect censorship because of functions performed by an independent journalist amounted to breach of Constitutionally guaranteed rights under Arts. 19 & 19-A of the Constitution---Duty of State to protect independence of individual journalist and that of the occupation was a Constitutional obligation because it was an integral part of Arts.19 & 19-A of the Constitution---High Court directed Director General Federal Investigation Agency to formulate guidelines for investigating officers, having regard to principles highlighted in judgments of Supreme Court---High Court expected that the Agency would consider prescribing special guidelines regarding proceedings against persons engaged in profession of journalism on account of profound effect on the freedom of press and independence of a journalist when coercive powers were abused giving rise to a perception of retaliation to professional functions performed and the Agency could consult key stake holders---Federal Government i.e. Prime Minister and members of Federal Cabinet were elected representatives of the people and High Court did not have any reason to doubt their will and commitment to jealously guard against any attempt to undermine freedom of press and Constitutionally guaranteed rights of people whom they represent, it was their Constitutional duty to dispel any perception of inhibiting, limiting or restricting freedom of press through abuse of coercive powers by State functionaries and as democratically elected representatives of people they would take prompt and effective action to prevent abuse of coercive powers under Prevention of Electronic Crimes Act, 2016, in general and against independent and responsible journalists in particular---High Court advised Federal Government to consider proposing legislation similar to that of 'Protection of Journalist Act 2014' which was tabled before lower House of Majlis-e-Shoora (Parliament), having object of providing an effective forum for redressing complaint of journalists, which related to freedom of press---High Court also advised Federal Government to also consider meaningful consultation with all key stakeholders i.e. All Pakistan Newspapers Association, the Federal Union of Journalists, the Council of Pakistan Newspapers Editors etc. regarding dispelling perception of apprehensions and intimidation of independent journalists and abuse of coercive powers by public functionaries, particularly in relation to exercising powers under Prevention of Electronic Crimes Act, 2016---Constitutional petition was allowed accordingly.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; Adeel ur Rehman and others v. Federation of Pakistan and others 2005 SCMR 1 and Syed Mansoor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

Muhammad Sajid Khan Tanoli, M. Aftab Alam, Usman Warraich, Khateeb Hussain, Faheem Ahmed, M. Haider Imtiaz and Babar Hayat Samor for Petitioner.

Syed Muhammad Tayyab, Dy. Attorney General for Respondents.

Qaiser Masood, Additional Director, FIA.

Sh. Amer Sohail Anjum, A.D. (Legal), FIA.

P L D 2021 Islamabad 87

Before Mohsin Akhtar Kayani, J

Mirza NADEEM HAFEEZ and others---Petitioners

Versus

K.M.A. IMPORT AND EXPORT COMPANY through Director Procurement and 5 others---Respondents

Writ Petition No. 692 of 2019, decided on 18th November, 2020.

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

----S. 154---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Criminal proceedings---Cognizance of offences---Quashing of FIR on ground of lack of territorial jurisdiction---Scope---Concept of cognizance had to be considered in terms of S.154, Cr.P.C. at first instance and primary requirement of same was that a criminal matter could only be agitated within jurisdiction of a particular police station where offence was committed and such analogy had to be kept in mind while filing criminal complaint and content of such complaint should disclose territorial jurisdiction where prima face offence was committed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Criminal complaints---Quashing of FIR---Scope---Criteria for quashing any FIR or criminal proceedings was that same could be quashed only if from bare reading of a complaint, no offence was made out; or where case was of no evidence; or very registration of case was proved to be made with mala fide on face of the record; or where case was of purely civil nature and criminal proceedings were not warranted; or where matter was based on jurisdictional defect.

Rashid Ahmed Gardee v. The State 1983 PCr.LJ 2222; Trust Investment Bank Limited through Authorized Officer v. Government of Sindh through Secretary Home and 3 others 2016 MLD 278 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Raja Muhammad Farooq and Maher Abdul Majid for Petitioners.

Usman Jillani for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

P L D 2021 Islamabad 55

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

PAKISTAN SUGAR MILLS ASSOCIATION (PSMA), ISLAMABAD through Secretary General and authorized Attorney and 10 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and 9 others---Respondents

I.C.A. No.156 of 2020, decided on 18th August, 2020.

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

----S. 3(1)---Inquiry Commission---Object, purpose and scope---Intention of Legislature is to enable Federal Government to appoint any inquiry Commission for the purpose of making an inquiry into any definite matter of public importance which includes a matter of general interest or direct or vital concern to the public.

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

----Ss. 3(1) & 3(2)---Inquiry Commission, Constitution of---Gazette notification of Constitution of Commission---Whether mandatory or directory requirement---To publish such notification in official gazette cannot be ignored or treated to be directory simply on the ground that Pakistan Commissions of Inquiry Act, 2017 does not provide consequences for non-compliance with such requirement.

Sahib Textiles (Pvt.) Ltd. v. Federation of Pakistan 2004 PTD 1; Nazir Ahmed v. King-Emperor AIR 1936 PC 253; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Assistant Collector of Customs v. Khyber Electric Lamps 2001 SCMR 838; Khalid Saeed v. Shamim Rizvan 2003 SCMR 1505 and Hamayun Sarfraz Khan v. Noor Muhammad 2007 SCMR 307 rel.

(c) Interpretation of statutes---

----Redundancy, principle of---Applicability---Redundancy or superfluity must not be attributed to Legislature---No part or word in a statute is to be treated as surplusage---Court cannot recast or reframe legislation as it has no power to legislate---Court cannot add words to a statute or read words into it which are not there---Court cannot ignore words in a statute by attributing redundancy to them---Where words of statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words---Departure from literal rule by making structural changes or substituting words in a clear statutory provision under the guise of interpretation, it may pose a great risk as the changes may not be what the Legislature intended or desired---Legislative wisdom cannot be replaced by a judge's views.

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

----S. 3---Rules of Business, 1973, R. 18(1) & Sched.-II, para 2, item No.81---Inquiry Commission, constituting of---Moving of summary---Scope---Cabinet Division has to deal with all matters concerning and related to Pakistan Commissions of Inquiry Act, 2017---Summary for constituting an Inquiry Commission has to be moved for Cabinet by Cabinet Division; after Cabinet Division decides to constitute an Inquiry Commission, notification in such regard has to be issued by Cabinet Division.

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

----S. 3---Rules of Business, 1973, R. 18(1) & Sched.-II, para 2, item No.81---Inquiry Commission, constituting of---Quashing of Inquiry---Observations in report---Scope---Due to increase in sugar price in country an Inquiry Commission was constituted by Federal Government to probe into the scam---Appellants were Sugar Mills Association and mill owners who assailed constitution of the Commission and its report---Single Judge of High Court declined to interfere in the matter---Validity---Inquiry Commission was constituted pursuant to the notifications issued by Federal Government, worked for the mandated period of forty days and had submitted a detailed report to Federal Government---All appellants or at least the Association interacted and deliberated with Inquiry Commission during its proceedings---None of the appellants raised any objection regarding any procedural irregularity or illegality in the process culminating in the constitution of Inquiry Commission until much after it had submitted its report---Inquiry Commission's report was considered by Cabinet in its special meeting and directions had been given on the basis of recommendations in that report---Division Bench of High Court declined to exercise its discretion to undo entire process from the stage of moving summary and to bring it to absolute naught---Report of Inquiry Commission in which observations adverse to appellants were made, were not conclusive or sacrosanct---Such report could not be used as an instrument of condemnation against whom allegations were made therein---All those against whom allegations were made in the report would presumed to be innocent unless such allegations were substantiated in proceedings before relevant regulatory / statutory or anti-corruption bodies---Division Bench of High Court declined to quash inquiry report on the ground that opportunity of hearing in the nature as a judicial or quasi-judicial authority would provide, was not provided to the appellant---Intra Court Appeal was dismissed in circumstances.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; PLD 2017 SC 265; Nadeem Ahmed v. Federation of Pakistan 2013 SCMR 1062; Kalimullah v. Government of West Pakistan PLD 1961 Lah. 321; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Karachi Metropolitan Corporation v. S.N.H. Industries (Pvt.) Ltd. 1997 SCMR 1228; Dilshad v. Senior Superintendent of Police PLD 2007 Kar. 330; Government of Sindh v. Khan Ginners (Pvt.) Ltd. PLD 2011 SC 347; Trustees of the Port of Karachi v. N.K. Enterprises PLD 2013 Sindh 264; Pakistan Beverage Limited v. Deputy Director (Food) 1984 CLC 2687; Sugar Mills v. Government of Punjab 2001 YLR 2275; Muhammad Osman Ghani v. M. Ahmed PLD 1967 Dacca 786; Mian Akbar Hussain v. Punjab Government PLD 1954 Lah. 188; Muhammad Ishaq v. Chief Administrator Auqaf, Punjab PLD 1977 SC 639; Government of the Punjab, Food Department v. United Sugar Mills Ltd. 2008 SCMR 448; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Tehsil Municipal Administration v. Noman Azam 2009 SCMR 1070; Deputy Controller of Customs (Valuation) v. Abdul Shakoor Ismail Khaloodi 2016 SCMR 1664; Mahendra Lal v. State of U.P. AIR 1963 SC 1019; Collector of Central Excise v. New Tobacco Co. AIR 1998 SC 668; Messrs Garware Nylons Ltd. v. Collector of Customs and Central Excise, Pune AIR 1999 SC 844; Union of India v. Messrs Ganesh Das Bhojraj AIR 2000 SC 1102; Rajendra Agriculture University v. Ashok Kumar Prasad AIR 2010 SC 259; Manzur-ul-Haq v. Controlling Authority, Local Councils, Montgomery PLD 1963 SC 652; Muhammad Siddique v. Market Committee, Tandlianwala 1983 SCMR 785; Pakistan through Secretary, Ministry of Defence v. Muhammad Ahsan 1991 SCMR 2180; Sagheer Ahmed v. Province of Punjab PLD 2004 SC 261; Commissioner of Income Tax v. Messrs Media Network PLD 2006 SC 787 = 2006 PTD 2502; Bahadur Khan v. Federation of Pakistan 2017 SCMR 2066; Printek (Pvt.) Ltd. v. Shahid Nadeem Malik 2011 YLR 2941; National Bank of Pakistan v. Eftikhar Rasool Anjum 2017 PLC (C.S.) 453; Muhammad Shahid v. Federation of Pakistan PLD 2018 Isl. 258; Mohammad Ismail Mills Ltd. v. Federation of Pakistan PLD 2020 Sindh 85; Khurshid Bibi v. Ch. M. Nazir Cheema PLD 2009 Lah. 415; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Senator Taj Haider v. Government of Pakistan 2018 CLC 1910; Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah 343; Amin Jan v. Director-General, T&T PLD 1985 Lah. 81 and State of Madhya Pardesh v. Ajay Singh AIR 1993 SC 852 ref.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ, issuance of---Principles---High Court does not issue a writ if equitable considerations do not permit it---Jurisdiction of High Court under Art. 199 of the Constitution is extraordinary, discretionary and equitable in nature and is to be exercised in the larger interest of justice---While exercising Constitutional jurisdiction, facts and circumstances of case should be seen in their entirety to find out if there is miscarriage of justice---Such jurisdiction can be exercised ex debito justitiae i.e. to meet the ends of justice---While exercising Constitutional jurisdiction, High Court not only acts as a Court of law but also as a Court of equity; it is duty of High Court to ensure that it exercises jurisdiction to advance ends of justice and uproot injustice---High Court in exercise of such jurisdiction, intervenes where justice, equity and good conscience require intervention.

Multan Electric Power Co. Ltd. v. Muhammad Ashiq PLD 2006 SC 328 and Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education 1999 YLR 1019 rel.

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

----S. 3---Inquiry Commission---Adding of member---Scope---Federal Government is not empowered under the provisions of Pakistan Commissions of Inquiry Act, 2017, to add members to an already constituted inquiry Commission until the point when its working has reached a certain stage.

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

----S. 3---Inquiry Commission---Jurisdiction---Inquiry Commission has its own sphere and cannot impede other forms of action or modes of redress---In such proceedings there is no prosecution, no framing of formal charge, no accused before Inquiry Commission and there is no exercise of any supervisory jurisdiction by Federal Government.

Makhdoom Ali Khan, Salman Akram Raja and Saad M. Hashmi for Appellants.

Rai Azhar Iqbal Kharal for Applicant (in C.M. No.1785 of 2020).

Khalid Javed Khan, Attorney-General for Pakistan, Tariq Mehmood Khokhar, Additional Attorney-General, Khawaja Imtiaz Ahmed, Deputy Attorney-General, Arshid Mehmood Kiani, Deputy Attorney-General, Saqlain Haider Awan, Assistant Attorney-General and Muhammad Nadeem Khan Khakwani, Assistant Attorney-General for Respondents.

P L D 2021 Islamabad 102

Before Athar Minallah, C.J.

ISLAMABAD WILDLIFE MANAGEMENT BOARD---Applicant

Versus

METROPOLITAN CORPORATION, ISLAMABAD and others---Respondents

Civil Miscellaneous No. 3976 of 2020 in Writ Petition No. 1155 of 2019, decided on 14th December, 2020.

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

----S. 3---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) S.4---Constitution of Pakistan, Art.9---Right to life---Animal rights---Issue raised by applicants was with regard to relocation of two Himalayan brown bears to an appropriate sanctuary---Validity---Natural habitat of two incarcerated brown bears were high altitude plateau of Deosai National Park in Himalayas---Such was inhumane to have deprived brown bears of living in their natural habitat merely for entertainment of human species---Two bears had been caged in zoo for more than a decade---No matter how well equipped a zoo was but it was no less than a concentration camp for living beings---Both the bears were sent by the Creator to live free in their natural habitats, who were born free and taking them out of their natural habitat and caging them was in violation of natural rights bestowed upon them by the Creator---Bears were imprisoned without having committed a crime---By depriving the two bears of their natural habitat, the human species interfered with the balance created by the Creator---Bears were subjected to unimaginable pain and suffering and there was no justification for such cruel treatment other than to entertain the human species---Both the bears had suffered enough and they lacked ability to let the human species know what they must have gone through---Abnormal behaviour of bears while imprisoned was sufficient to speak volumes for the unimaginable pain and suffering---Application was allowed accordingly.

Islamabad Wildlife Management Board through its Chairman v. Metropolitan Corporation Islamabad through its Mayor and 4 others Writ Petition No.1155 of 2019 ref.

Owais Awan for Applicant.

Syed Muhammad Tayyab, Dy. Attorney General.

Sardar Ejaz Ishaq Khan for respondents.

Daniyal Hassan for IMWB.

Malik Naseem Abbas Nasir for Respondent/Bio Research Council.

MNA Rehan for Respondent.

Barrister Omer Malik for Respondent.

Ms. Naheed S. Durrani, Secretary, Ministry of Climate Change.

Ms. Rina Saeed Khan, Chairperson, Isb. Wildlife Management Board.

Zahid Baig Mirza, Member, IWMB.

M. Sulyman Khan, Joint Secretary, Ministry of Climate Change.

Dr. Mazhar Hayat, Dy. Secretary, Ministry of Climate Change.

Dr. Amir Khalil, Director Four Paws International.

Syed Mujtaba Hussain, Member, IWMB.

Dr. Mazhar Hayat, Dy. Secretary, Ministry of Climate Change.

P L D 2021 Islamabad 105

Before Athar Minallah, C.J.

UROOJ TABANI---Petitioner

Versus

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

Writ Petition No. 3105 of 2019, decided on 1st January, 2021.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 18, 10 & 23---National Database and Registration Authority (National Identity Card) Rules, 2002, R. 13---National Identity Card---Power of National Database and Registration Authority (NADRA) to cancel, impound or confiscate cards---Paternity recorded in NADRA---Presumption as to paternity incorporated in NADRA records---Jurisdiction of NADRA to adjudicate upon family disputes, including disputed paternity----Scope---Petitioner impugned actions of National Database and Registration Authority ("NADRA") whereby her Computerized National Identity Card ("CNIC") was impounded, and her paternity (father's name) was changed, and she was excluded from family tree of her father---Contention of respondent NADRA, inter alia, was that CNIC was obtained by unfair means and father had contested paternity and in support thereof had presented a decree in suit for jactitation of marriage---Validity----No provision existed in National Database and Registration Authority Ordinance, 2000 empowering NADRA to adjudicate on disputes and contentious questions which required recording of evidence and in such matters, declaration from competent court had to be obtained and executed as per law---Authority was not empowered to decide questions as to determination of paternity and once a CNIC had been issued, then incorporated particulars could only be modified/altered in accordance with manner prescribed by R. 13 of National Database and Registration Authority (National Identity Card) Rules, 2002---Paternity, once incorporated in CNIC, could not be disputed unless person challenging same had obtained declaration from competent court---National Database and Registration Authority in the present case, relied on a decree in a suit for jactitation of marriage, and petitioner was not a party to such proceedings and said decree had no relevance whatsoever to question of paternity and NADRA was bereft of jurisdiction to entertain and adjudicate on such family disputes---Impugned orders and proceedings of NADRA were declared void and illegal and NADRA was directed to restore CNIC of petitioner with observation that any change to paternity shall be subject to declaration by competent civil court---Constitutional petition was allowed, accordingly.

(b) Marriage---

----Jactitation of marriage, concept of---Jactitation of marriage was false and actionable boasting or claiming that one was married to another---Jactitation of marriage was a cause of action which arose when person falsely alleged that he or she was married to another person and remedy sought in such suit was perpetual injunction against person claiming marriage, to cease making such allegations.

Black's Law Dictionary, Eighth Edition; Matloob Hussain v. Mst. Shahida and 2 others PLD 2006 SC 489; Irshad Ahmad v. Muhammad Sharif and another PLD 2006 Lah. 260 and Rabia Akhter and another v. Muhammad Ayub and 2 others 2013 MLD 16 rel.

(c) Constitution of Pakistan---

----Arts. 9 & 14---Fundamental Right to security of person, inviolability of dignity of man and privacy---Right to knowledge of paternity---Presumption as to paternity---Adjudication of denials of paternity---Scope---Paternity was state of being a father or fatherhood and was not necessarily linked to valid marriage because a child could be born even out of wedlock---Identity of an individual depended on accurate determination of parentage and knowing one's biological father's identity had nexus with emotional and psychological needs of person---Denial of such knowledge can have profound consequences in context of quality of life and such denial was breach of Fundamental Right guaranteed under Art. 9 of Constitution---Knowledge of paternity was crucial and related to self-esteem, identity, respect and privacy and was integral part of Fundamental Right to inviolability of dignity of a person under Art. 14 of the Constitution---Child or person could not be condemned unheard in a challenge to paternity of such person, and question of paternity could not be determined or adjudicated by a Family Court or Guardian Judge and could only be adjudicated upon by a civil court---Law leaned in favour of presumption of paternity rather than illegitimacy unless proved by strong evidence.

Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327; Kishwar Parveen and others v. District Judge, Gujrat and others PLD 2016 Lah. 536; Iftikhar Hussain and another v. Muhammad Aslam and others 1991 MLD 1500; Mst. Aziz Begum v. Faiz Muhammad PLD 1965 Lah. 399; Zala Din and another v. Muslim Shah PLD 1968 Pesh. 87 and Muhammad Nazir and others v. Ali Muhammad through Legal Heirs and others 2003 SCMR 1183 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy---Judicial review of administrative actions---Scope---Availability of right to appeal/alternate remedy, where an order was passed wholly without authority and jurisdiction, in a perfunctory manner and in breach of principles of due process and procedural fairness, could not be bar to exercise of Constitutional jurisdiction under Art. 199 of Constitution.

Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246; Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmed and Company (Pvt.) Limited, Islamabad 1999 SCMR 138 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Power of High Court to impose exemplary costs on a party---Scope---High Court, under Art. 199 of the Constitution, had power and jurisdiction to order payment of exemplary costs, where it was satisfied that per facts and circumstances of a case, a party was entitled to payment of such exemplary costs by another party.

Major (Retd.) Ahmed Nadeem Sadal and 3 others v. Federation of Pakistan through Secretary Sports, Islamabad and 3 others 2015 CLC 34 rel.

Muhammad Umair Baloch, Chaudhry Babar Manzoor and Saif Ur Rehman Shah Bukhari for Petitioners.

Syed Muhammad Tayyab, Dy. Attorney General, M. Saif Ullah Gondal, Asstt. Attorney General for Respondents.

Obaid ur Rehman, Law Officer, NADRA, Umer Ali Khan, Law Officer, NADRA and Khalid Ishaque, Law Officer, NADRA.

Shah Khawar, Advocate Supreme Court, Barrister Qasim Nawaz Abbasi for Respondent No.3.

Col. (R) Tahir Maqsood, Director General (Ops), NADRA.

P L D 2021 Islamabad 120

Before Tariq Mehmood Jahangiri, J

NASEEM BIBI---Petitioner

Versus

GULL FARAZ and another---Respondents

Criminal Miscellaneous No. 90-B of 2021, decided on 18th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---No motive---Pregnancy of accused---Effect---Prosecution case was that the accused (mother) used to torture her minor son occasionally, consequent to severe physical torture, he died---No motive was available with the prosecution against the accused regarding commission of the offence with intention of causing death---Police also had not collected any evidence---Accused lady was eight months pregnant---Accused was released on bail on the sole ground of pregnancy.

2012 PCr.LJ 841; Mst. Naila Younas v. The State 2020 MLD 1036; Gul Hassan v. The State 2020 YLR 1919; Muhammad Iqbal v. The State and another 2020 PCr.LJ Note 34; Mazal Khan v. The State 2020 MLD 755; Sham and 2 others v. The State 2019 YLR Note 82 and Amir Hamza v. The State and others 2019 YLR Note 57 ref.

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

----S. 497---Bail---Heinous nature of offence---Scope---Mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment---No legal or moral compulsion exists to keep a person in jail---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail but no satisfactory reparation can be offered to the accused for his unjustified incarceration, if he is acquitted ultimately.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

(c) Administration of justice---

----Principles of justice enunciated by the Muslim Jurists/Imams/Qazis are more illuminating and full of wisdom than principles enunciated by the Western Jurists and scholars---For the true and safe administration of justice in civil and criminal cases, the Courts in Pakistan must seek guidance from the decisions given and the principles of dispensation of justice enunciated by our Holy Prophet Hazrat Muhammad (PBUH), the four caliphs (Razi Allah Ta'ala un Hum), Imams and eminent Qazis---Such decisions and principles should be given overriding effect over the Western principles of justice.

Mst. Nusrat v. The State 1996 SCMR 973 ref.

Sahibzada Saad ul Amin for Petitioner.

Ikramullah for the Complainant.

Majid Rasheed Khan, State Counsel.

P L D 2021 Islamabad 123

Before Aamer Farooq and Ghulam Azam Qambrani, JJ

FARRUKH NAWAZ BHATTI---Petitioner

Versus

PRIME MINISTER OF PAKISTAN, ISLAMABAD and 18 others---Respondents

Writ Petitions Nos. 01 and 1870 of 2020, decided on 7th December, 2020.

(a) Rules of Business, 1973---

----Rr.4 (6) & 17---Advisor and Special Assistant to Prime Minister---Status---On special requests, persons can be called in by Committee of Cabinet but no person can be Chairman or a Member of such Committee, who is not a Member of the Cabinet---Conferment of status of Federal Minister to an Advisor is only for the purpose of perks and privileges and such conferment does not make a person/advisor as a Federal Minister---Appointment of Special Assistant to Prime Minister is not in violation of any provision of the Constitution---Special Assistant to Prime Minister is not a Minister of State or a Federal Minister but only enjoys status for the purposes of perks and privileges---Special Assistant cannot address the Parliament nor has any executive authority vested in him---Special Assistant is not a Member of the Cabinet and cannot take part in proceedings of the same.

(b) Constitution of Pakistan---

----Art. 260---Rules of Business, 1973, R.17---Advisor to Prime Minister---Scope---Petitioners assailed status of respondents as Advisors to Prime Minister and their working in relation to the Cabinet---Validity---Advisor to Prime Minister was a constitutional post, there could be maximum of five advisors to Prime Minister---Conferring status of Federal Minister on Advisors to Prime Minister was only for the purpose of perks and privileges and did not make the Advisor a Federal Minister as such---Advisor to Prime Minister was not a Member of the Cabinet and could not participate in proceedings---Advisor was not a Member of the Cabinet nor could chair Committee of Cabinet---Advisor to Prime Minister could address the Parliament but could not participate in voting process---Constitutional petition was disposed of accordingly.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance and others PLD 2016 SC 808; Fareed Ahmad A. Dayo v. Chief Minister, Sindh through Principal Secretary and 5 others PLD 2017 Sindh 214; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others 2007 SCMR 330; Ch. Zahoor Ellahi's case PLD 1973 SC 383; Syed Pervaiz Zahoor v. The Prime Minister of Pakistan and others Writ Petition No.2304 of 2020; Malik Munsif Awan Advocate v. Federation of Pakistan and others Writ Petition No.2058 of 2020; Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Muhammad Adil Chatta and another v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others Constitution Petition No.63 of 2018 and Ahmad Yousaf Ali Rizvi and others v. Munawar Ali Butt and others PLD 2000 Kar. 333 ref.

Petitioners by

Dr. G. M. Chaudhry (in Writ Petition No.01 of 2020).

Barrister Mohsin Nawaz Ranjha, Barrister Omer Azad Malik, Usman Ahmad Ranjha, Khalid Mehmood Ranjha and Asim Awan for Petitioners (in Writ Petition No.1870 of 2020).

Respondents by

Tariq Mehmood Khokhar, Additional Attorney-General, Raja Khalid Mehmood Khan, Deputy Attorney-General, Khawaja Imtiaz Ahmed, Deputy Attorney-General, Saqlain Haider Awan, Assistant Attorney-General, Muhammad Nadeem Khan Khakwani, Assistant Attorney-General and Waleed Bin Usman for Respondent No.4 (in Writ Petition No.01 of 2020).

Raja Faisal Younas for Respondent No.6 (in Writ Petition No.01 of 2020).

Shahid Mehmood Khokhar for Respondent No.8 (in Writ Petition No.01 of 2020).

Faisal Islam for Respondent No.14 (in Writ Petition No.01 of 2020).

Rana Zain Tahir, Special Prosecutor, National Accountability Bureau/Respondent No.19 (in Writ Petition No.01 of 2020).

P L D 2021 Islamabad 144

Before Mohsin Akhtar Kayani, J

METROPOLITAN CORPORATION, ISLAMABAD through Mayor---Petitioner

Versus

CHAIRMAN C.D.A. (CAPITAL DEVELOPMENT AUTHORITY), ISLAMABAD and another---Respondents

Writ Petition No. 4298 of 2019, decided on 23rd December, 2020.

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

----Ss. 15 & 15-A---Islamabad Capital Territory Local Government Act (X of 2015), Ss. 88 & 89---Constitution of Pakistan, Arts. 140-A & 199---Constitutional petition---Property tax collection---Exercise of powers---Scope---Local Government disputed authority of Capital Development Authority with regard to collection of property tax in Islamabad Capital Territory---Validity---High Court observed that Capital Development Authority had become a white elephant, who was not able to cater growing needs of Islamabad Capital Territory---Authority had destroyed beauty of Islamabad city in a systematic manner with corruption, ill-planning, poor performance, inefficient officials and ad hoc appointments on the command of political elites---Federal Government was under Constitutional obligation to establish a local government system to devolve political, administrative and financial responsibility and authority to elected representatives of local government under law in terms of Art. 140-A of the Constitution---In case Federal Government was not complying with such mandate, it amounted denial of fundamental rights to the residents of Islamabad Capital Territory---Municipal functions were still catered through Capital Development Authority when Islamabad Capital Territory Local Government Act, 2015 had already been implemented, and such act amounted to negation of scheme settled in the Constitution---Any action by Capital Development Authority which exclusively fell within the jurisdiction of Islamabad Capital Territory Local Government Act, 2015 was illegal and amounted to transgression and abuse of powers---High Court declared notification dated 17-12-2018 as illegal and void as no tax proposals were issued nor even any objection were invited in terms of S. 88(4) of Islamabad Capital Territory Local Government Act, 2015, neither public hearings were given before imposition of levy of property tax in Islamabad---High Court declared demand as illegal as Capital Development Authority had no jurisdiction or authority to impose property tax or recover proper tax in any manner as it was the sole prerogative of Metropolitan Corporation of Islamabad under Islamabad Capital Territory Local Government Act, 2015---High Court directed that tax proposal were to be prepared by Metropolitan Corporation of Islamabadand objections were to be invited from public through publication of notice in newspapers, whereafter a notification in terms of S. 88 of Islamabad Capital Territory Local Government Act, 2015 was issued in accordance with law---High Court directed that tax/funds collected by Capital Development Authority under property tax from any of the allottee within Islamabad Capital Territory were stood transferred to Metropolitan Corporation of Islamabad and Capital Development Authority had no authority to use property tax in any manner nor they were permitted to disburse the same to any other entity or government in any manner---Constitutional petition was allowed accordingly.

Metropolitan Corporation Islamabad v. Chairman CDA, Islamabad and another Writ Petition No. 4298 of 2019; Mrs. Bilquis Anwar Khan and 39 others v. Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 3 others 2001 SCMR 809; Shafqat Ali v. Capital Development Authority, Islamabad and others I.C.As. Nos. 83, 84 of 2017, 20 and 21 of 2018 and Mehar Pervaiz Akhtar v. Director General Excise and Taxation, Lahore and others PLD 2017 Lah. 790 ref.

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

----S. 15-A---Islamabad Capital Territory Local Government Act (X of 2015), Ss. 88 & 89---Constitution of Pakistan, Art. 10-A---Levy of property tax---Assessment---Principle---If citizens are not associated in assessment proceedings for charging tax amounts, it would be considered as denial of their rights in terms of Art. 10-A of the Constitution, based upon principle of due process and transparency---Tax provisions have to be applied in strict manner as procedure provides under law.

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

----S. 20-A---Notification, non-publication in gazette---Effect---If gazette notification is not issued, entire superstructure raised upon such notification crumbles down---Without publishing notification in official gazette, same has to be termed as non-existent and superstructure built upon the same falls automatically---Notification published in any official gazette is a public document and carries certain presumptions of its legality and authority and its enforcement as well---Such attributes cannot be attached to an order or direction which issued, notified or published without publication in official gazette.

Messrs Friends Technical Engineering Association, Muzaffarabad/Rawalpindi and others v. Barrister Syed Iftikhar Ali Gillani, Member AJ&K Legislative Assembly, Azad Jammu and Kashmir, Muzaffarabad and others 2018 CLC 54 and Karachi Metropolitan Corporation, Karachi v. Messrs S.H.H. Industries (Pvt.) Limited, Karachi and 2 others 1997 SCMR 1228 rel.

(d) Administration of justice---

----When law prescribes a method for doing a thing in a particular manner then such provision of law should be followed---Doing of a thing in a manner other than provided manner would not be permitted under law.

Mir Lashkari Raisani v. Qasim Khan Soori and others 2020 YLR 2031; Dr. Karim Shah v. Chairman, Search and Nomination Council/Health Minister, Government of Khyber Pakhtunkhwa, Peshawar and others 2020 PLC (C.S.) 413; Muhammad Rafiq v. Muhammad Ali and another 2018 YLR 253; Farzand Ali v. Muhammad Ishaq 2018 YLR 1313; Muhammad Sajjad Khan v. Abdul Qadoos Khan and 3 others 2018 YLR 1985; Alamdar Hussain v. National Accountability Bureau through Chairman and others PLD 2017 Lah. 479 and Munda Eleven Cricket Club v. Federation of Pakistan and 4 others PLD 2017 Lah. 802 rel.

(e) Constitution of Pakistan---

----Arts. 4 & 25---Reasonable classification---Intelligible differentia---Applicability---Equal protection of law as envisaged under Arts. 4 & 25 of the Constitution has to be given effect---All similarly placed and situated person are to be treated alike---Reasonable classification is permitted subject to law on the basis of intelligible differentia which distinguishes person or things that are grouped together from those who have been left out.

Moazzam Habib and others v. Federation of Pakistan and others 2018 YLR 222 and Tahir Humayun and others v. High Court of Balochistan through Registrar and others PLD 2016 Bal. 56 rel.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court can exercise its Constitutional jurisdiction in terms of Art.199 of the Constitution to examine any act, notification, Act of Parliament for delegated legislation including notification, which violated any provision of the Constitution including fundamental rights and the same can be struck down as no unfettered powers / discretion are available to authorities, which can be applied in discriminatory manner.

Educational Services (Pvt.) Limited and 4 others v. Federation of Pakistan and another PLD 2016 Isl. 141 rel.

(g) Interpretation of statutes---

----Overlapping jurisdiction in two statutes on the subject---Principle---When two statutes have overlapping jurisdiction on any subject, interpretation has to be made to harmonize those laws and their Constitutionality has to be maintained unless law latter in time repeals the earlier one.

Tanveer Hussain v. Divisional Superintendent, Pakistan Railways PLD 2006 SC 249 and Collector of Customs v. Marosh 2020 SCMR 579 rel.

Adil Aziz Qazi, Muhammad Ahmad Tariq Fani, Ahmed Hassan Rana, Nabeel Rehman, Ahmad Shahzad Awan, Kalsoom Rafique, Raheema Khan, Muhammad Saeed Raja, Sardar Murtaza Arif Khan, Raja Shaheryar Khan, Khurram M. Hashmi, Rifaqat Islam Awan, Zulfiqar Ali Abbasi, Shahid Munir and Muhammad Jamshaid Hussain Shah and Yawar Hussain Rana, SO (MCI), Ministry of Interior for Petitioners.

Hafiz Arfat Ahmad Ch. , Kashifa Niaz Awan, Tariq Zaman, Haseeb Hassan, Tariq Zaman Ch., Rehan Seerat, Ch. Kamil Hayat, Malik Javed Iqbal Wains, Ch. Muhammad Asif Khan for CDA along with Muhammad Tariq Latif, Director (Revenue), CDA for Respondents.

Ayaz Shauakt, D.A.G. and Raja Muhammad Aftab Ahmad, A.A.G. for Respondents.

P L D 2021 Islamabad 169

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

Ms. SHAHNAZ BUTT---Petitioner

Versus

ISLAMABAD BAR ASSOCIATION through President, and 3 others---Respondents

Writ Petition No. 2906 of 2018, decided on 16th February, 2021.

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

----Rr. 134, 152 & 172---Duty of enrolled advocate---Professional honour---Code of conduct---Honour of profession is advanced when an advocate renders professional services or give advice undertaking exact compliance with the strictest principles of moral law---Integral part of prescribed code of conduct is that an advocate himself has to observe and advices his client to obey and respect statute law---Advocate has his/her highest honour in a deserved reputation for fidelity to private trust and to public duty as an honest man and or a patriotic and loyal citizen---Status of enrolled advocate in a society is extraordinary and unique---Advocates are foot soldiers of no one except the Constitution and law, they have distinction of being members of the most noble amongst the professions---Advocates are guardians of the Constitution and law and their professional obligation requires each member of legal fraternity to serve the society---Legal profession is not a business but service to the society and the nation---Every enrolled advocate is to act in the best interest of society having regard to strict compliance with enforced laws.

Salamat Ali alias Chamma v. The State and another 2014 SCMR 747; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif PLD 2009 SC 284; Liaqatullah Khan v. The State and 6 others PLD 2015 Pesh. 115 and Ch. Imran Raza Chadhar v. The State PLD 2016 Lah. 497 rel.

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

----R. 175-A---Professional misconduct---Regulatory bodies, duty of---Scope---Non-observance or violation of professional conduct and etiquettes are deemed to be professional misconduct under R.175-A of Pakistan Legal Practitioners and Bar Councils Rules, 1976, exposing him to disciplinary proceedings---Respective statutory Bar Councils are competent forums to regulate conduct of enrolled advocates and hold them accountable for violations of canons of conduct and etiquettes---Enrolled advocates cannot indulge in deception or betrayal of public---If giving advice to a client in any manner, in violation of law is misconduct then it is a graver misconduct for an enrolled advocate to take law into his or her own hands---Such enrolled advocate besides committing misconduct, is no more eligible to be certified as 'fit and proper' by High Court to be considered for pleading or appearing before Supreme Court---Enrolled advocate who has taken law into his or her own hands also cannot be certified as having 'character and conduct' worthy of being considered for being enrolled as advocate of High Court.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Unregulated and illegal construction---Effect---Unregulated and illegal construction has profound consequences in the context of irreversible damage to environment---Enforcing existing enforced laws and regulatory framework in Islamabad Capital Territory has become inevitable because right to life guaranteed under Art.9 of the Constitution is being flagrantly violated.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Suo Motu Case No.25 of 2009 2011 SCMR 1743; General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development Punjab, Lahore 1994 SCMR 2061 and Ali Sarwar and others v. Syed Shujat Ali Naqvi and others PLD 2011 SC 519 rel.

(d) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 134, 152, 172 & 175-A---Capital Development Authority Ordinance (XXIII of 1960), S.12---Illegal possession---Amenity and public utility plots---Restoring status of plots---Petitioner alleged that allotments made to advocates by Islamabad District Bar in playground or elsewhere were without lawful authority and jurisdiction and sought restoring the status of amenity plots---Validity---Allotments made to advocates by Islamabad District Bar in playground or elsewhere without lawful authority and jurisdiction---Office bearers of District Bar were exposed who were involved in such illegal acts to disciplinary proceedings for misconduct---Enrolled advocates who accepted such illegal allotments had also no lawful justification to construct chambers on State land---High Court declared purported allotments made by Islamabad District Bar in playground as illegal, void and without jurisdiction and authority---Encroachments on any State land and any construction thereon in violation of Capital Development Authority Ordinance, 1960, and rules or regulations made thereunder were illegal, void and liable to be removed---Any advocate who took law into his or her own hands or had violated law in any manner whatsoever was not eligible to be certified by High Court as 'fit and proper' to plead and appear before Supreme Court---Any enrolled advocate who volunteered to take law in his/her own hands could not be certified as having 'character and conduct' for the purposes of being enrolled as an advocate of High Court---High Court directed members of Bar to clear illegal construction and restore playground for public use as small fraction of total number of members of Islamabad District Bar were beneficiaries of illegal construction of chambers---High Court further directed Federal Government and Capital Development Authority to restore the playground for use of public in case the same was not restored within specified time---High Court also directed Federal Government to enquire into inaction of public functionaries and to proceed against those officials who were responsible for depriving general public from exercising constitutionally guaranteed rights---Constitutional petition was allowed accordingly.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division PLD 2012 SC 132; Muhammad Ikhlaq Memon v. Capital Development Authority through Chairman 2015 SCMR 294; (Suo Motu Case No. 13 of 2009) PLD 2011 SC 619; (Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010) PLD 2010 SC 759; Capital Development Authority through Chairman and others v. Dr Abdul Qadeer Khan and others 1999 SCMR 2636; Saad Mazhar and others v. CDA and others 2005 SCMR 1973 and Moulvi Iqbal Haider v. CDA, and others PLD 2006 SC 394 rel.

Petitioner by

Petitioner in person.

Respondents by

20.06.2019:

Raja Inaam Amin Minhas, President IHCBA.

Raja Tahir Mehmood, Vice President IDBA.

Raja Yasir Shakeel Jnajua, General Secretary

IDBA.

Syed Muhammad Tayyab, Deputy Attorney General.

Amir Latif Gill for CDA.

02.10.2019:

Raja Inaam Amin Minhas, President IHCBA.

Muhammad Umair Baloch, Secretary IHCBA.

Muhammad Asif Gujjar, Library Secretary, IHCBA.

Raja Yasir Shakeel Janjua, General Secretary

IDBA.

Amir Latif Gill for CDA.

02.03.2020:

Muhammad Zafar Khokhar, President IBA.

Sohail Akbar Chaudhary, General Secretary IHCBA.

Nazeer Ahmed Tabassum, Executive Member

IBA.

Amir Latif Gill for CDA.

Ch. Muhammad Tahir Mehmood, A.A.G.

15.02.2021:

Syed Muhammad Tayyab, D.A.G.

Rana Waqas Anwar, Addl. Deputy Commissioner.

Naveed, Member Estate CDA.

Ayaz, Member Engineering CDA.

Ali Asghar, Director Development CDA.

P L D 2021 Islamabad 187

Before Miangul Hassan Aurangzeb, J

Mst. SAMINA NAZ and others---Petitioners

Versus

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

Writ Petition No. 3597 of 2019, decided on 31st March, 2021.

(a) Pakistan Citizenship Act (II of 1951)---

----Ss. 14 & 14-A---Pakistan Citizenship Rules, 1952, R.19-B---Regaining citizenship of Pakistan after renouncing the same---Conditions for regaining citizenship of Pakistan---Scope---Contention of the petitioner (originally a Pakistani female citizen, who renounced her Pakistani citizenship after her marriage with an Indian national) was that she being a female was entitled to regain Pakistani citizenship for herself and her children---Respondents (Ministry of Interior and Directorate General Immigration and Passports) contended that petitioner would first have to surrender her Indian citizenship as well as certain documents including the certificate of her renunciation of Pakistani citizenship---Validity---Though S.14(1) of Pakistan Citizenship Act, 1951 ('the Act 1951') stipulated that if any person was a citizen of Pakistan under the provisions of the Act 1951, and was, at the same time, a citizen or national of any other country, he shall cease to be a citizen of Pakistan, unless he made a declaration according to the laws of that other country renouncing his status as status or national thereof, however, S.14(4) of the Act 1951 provided that nothing in S.14(1) of the Act 1951 shall apply to a female citizen of Pakistan who was married to a person who was not a citizen of Pakistan---Though petitioner's marriage, in view of said provisions, to an Indian national would ipso facto not result in her ceasing to be a citizen of Pakistan, however, in the present case the petitioner had not only already renounced her Pakistani citizenship but she had also been granted Indian citizenship by the competent authority in India--- Grant of Pakistani citizenship to petitioner and her children without the surrender of certain/required documents would enable her to remain Pakistani as well as Indian citizenship---After the renunciation of petitioner' Pakistani citizenship, there was no warrant in the law permitting the retention of dual nationality by her---Conditions imposed by the respondents for granting Pakistani citizenship to the petitioner were not arbitrary, unjust or illegal---Constitutional petition was dismissed, in circumstances.

Mrs. Javed Butt v. A.D.J. (East) Karachi 1998 MLD 4719 ref.

(b) Pakistan Citizenship Act (II of 1951)---

----Ss. 5, 14 & 14-A---Pakistan Citizenship Rules, 1952, R. 19-B---Citizenship by descent---Scope---Petitioner was originally a Pakistani female citizen, who had renounced her Pakistani citizenship after her marriage with an Indian national---Contention of the petitioner-mother was that respondents (Ministry of Interior and Directorate General Immigration and Passports) should grant nationality to her three children so that they should not be treated as foreign students while taking admission at a Pakistani university---Respondents contended that petitioner would first have to surrender her Indian citizenship and certain documents including the certificate of her renunciation of Pakistani citizenship---Held, that the petitioner's certificate of renunciation of Pakistani citizenship envisaged that her minor children residing outside Pakistan shall also cease to be citizens of Pakistan from the date of registration of the said certificate, however, their citizenship could/would be resumed by making declaration to said effect under R.19-B of the Pakistan Citizenship Rules, 1952 ('the Rules 1952') within one year of attaining the age of twenty-one(21) years--- Section 5 of the Pakistan Citizenship Act, 1951 stipulated that a person born after the commencement of the Act of 1951 shall be a citizen of Pakistan by descent if his parent was a citizen of Pakistan at the time of his birth---Record revealed that at the time of birth of both sons of the petitioner , she was a Pakistani citizen having not renounced her citizenship by then, whereas her daughter was born after the renunciation, therefore the daughter remained an Indian citizen at all material times---Grant of Pakistani citizenship to petitioner and her children without the surrender of certain/required documents would enable her to remain Pakistani as well as Indian citizen---After the renunciation of petitioner' Pakistani citizenship, there was no warrant in the law permitting the retention of dual nationality by her---Conditions imposed by the respondents for grating Pakistani citizenship to the petitioner were not arbitrary, unjust or illegal---Constitutional petition was dismissed, in circumstances .

(c) Pakistan Citizenship Act (II of 1951)---

----Ss.5, 14, 14-A, 15 & 20 ---Pakistan Citizenship Rules,1952, R. 20---Regaining Citizenship of Pakistan after renouncing the same---Scope---Commonwealth citizenship--- Petitioner who was originally a Pakistani female citizen, renounced her Pakistani citizenship after her marriage with an Indian national; she and her children, while residing in Pakistan, sought to regain the Pakistani citizenship for her and her children claiming themselves Commonwealth citizens---Held, that S.15 of the Pakistan Citizenship Act, 1951 ('the Act 1951') provided that every person becoming a citizen of Pakistan under the Act, 1951 shall have the status of a Commonwealth citizen---Petitioner was a Commonwealth citizen until the renunciation of her Pakistani citizenship, however, after having Indian citizenship she and her children were Commonwealth citizens---Under R. 20 of Pakistan Citizenship Rules, 1952 ('the Rules 1952') commonwealth citizen (or British protected person) could apply for Pakistani citizenship---Section 20 of the Act 1951, however, provided that the Federal Government may upon such terms and conditions as it may by general or special order specify, register a Commonwealth citizen/British protected person as a citizen of Pakistan---Federal Government, through Notification (S.R.O. 369(K) dated 19-04-1960), had prescribed the certain conditions but the same did not envisage a situation where Commonwealth citizens residing in Pakistan (like the petitioners) could apply for Pakistani citizenship---Constitutional petition was dismissed .

Moazzam Habib for Petitioners.

Arshid Mehmood Kiani, Deputy Attorney-General for Respondents.

Malik Shifa Ullah, Assistant Director (Litigation), Directorate General, Immigration and Passports.

Amjad Hameed Ghauri for Respondent No.7.

Ms. Huma Noreen Hassan for Respondent No.8.

Shumayl Aziz, Amicus Curiae.

P L D 2021 Islamabad 194

Before Athar Minallah, C.J.

Syed YOUSAF RAZA GILANI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Islamabad and 5 others---Respondents

Writ Petition No. 1131 of 2021, heard on 24th March, 2021.

(a) Constitution of Pakistan---

----Arts. 50 & 69---Parliament (Majlis-e-Shoora)---Status---Role of Court---Scope---Majlis-e-Shoora (Parliament) is the supreme legislative organ of the State and represents the people of Pakistan---Maintaining dignity, respect and independence of Majlis-e-Shoora (Parliament) is of paramount importance and is a Constitutional duty of other branches of the State---Majlis-e-Shoora (Parliament) is the highest forum for resolving national issues and political disputes---Parliamentary privileges, powers and immunities have been expressly incorporated in the Constitution---Language used by framers of the Constitution is unambiguous and effective in order to prevent a Court from encroaching upon independence of Majlis-e-Shoora (Parliament)---Such is based on the principle of Constitutional separation between three branches of the State i.e. the Judiciary, the Legislature and the Executive---Privileges and powers embedded in the Constitution are aimed at protecting integrity of parliamentary proceedings so that Majlis-e-Shoora (Parliament) is enabled to perform its functions with appropriate degree of independence---Houses of Majlis-e-Shoora (Parliament) are empowered to regulate their respective proceeding and the Constitution clearly prevents Courts from inquiring into its validity---Any attempt by a Court to interfere in proceedings of the Houses by calling into question its validity is likely to undermine dignity, prestige and independence of the Majlis-e-Shoora (Parliament) on one hand while on the other hand, it exposes the apex Constitutional legislative forum to undesirable and unwarranted criticism---Any encroachment by judicial branch in the realm of validity of proceedings of Majlis-e-Shoora (Parliament) inevitably has consequences, which adversely affects public interest---Such erodes the sanctity of the supreme legislative Constitutional forum besides weakening sovereignty, independence and prestige of the Majlis-e-Shoora (Parliament)---Such intrusions by Courts profoundly affects confidence of people in the Majlis-e-Shoora (Parliament)---Simultaneously such has consequences for the Judicial branch of the State as well because it essentially exposes Courts to deal with matters having political content---In a politically polarized environment, intervention by Courts and that too in disregard to Constitutional privileges, powers and immunities of the Majlis-e-Shoora (Parliament) is likely to have profound ramifications in the context of confidence of people relating to impartiality of judicial branch---Judicial branch is not only to perform its functions impartially but has to be seen as such by stakeholders i.e. the people of Pakistan---It is for such reason that Court have to exercise greater restraint in disputes which could be resolved by Majlis-e-Shoora (Parliament) itself---Effective, independent and functional Majlis-e-Shoora(Parliament) is the sole panacea for ensuring wellbeing and prosperity of nation---Security and integrity of State also depends on institutional strength and sovereignty of the Majlis-e-Shoora (Parliament).

(b) Constitution of Pakistan---

----Arts.59 & 69---Constitution of Pakistan, Art.199---Constitutional petition---Election of Senate---Courts, jurisdiction of---Petitioner was candidate of the seat of Chairman Senate and had assailed before High Court the election process held in Senate---Validity---Proceedings of Upper House of Majlis-e-Shoora (Parliament) were immune from interference by High Court under Art. 69 of the Constitution---Process of election to the office of Chairman of Senate of Pakistan was not administrative in nature and was a formal transaction of business of Upper House and was its internal proceedings---Entire process was wholly outside the corrective jurisdiction of High Court---High Court in exercise of its extraordinary jurisdiction under Art. 199 of the Constitution declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Asif Ali Zardari v. Federation of Pakistan and others PLD 1999 Kar. 54; Muhammad Azhar Siddique and others v. Federation of Pakistan and others PLD 2012 SC 774; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Pakistan v. (1) Ahmad Saeed Kirmani, (2) Ch. Fazal Elahi, (3) Secretary, West Pakistan Legislative Assembly, (4) Mumtaz Hassan Qizalbash PLD 1958 SC (Pak) 397 and Badru Haque Khan v. (1) The Election Tribunal, Dacca, (2) The Chief Election Commissioner and (3) Jamalus Sattar Rahman PLD 1963 SC 704 rel.

Farooq H. Naek, Sr. Advocate Supreme Court, Javed Iqbal Wains, Raja Shakeel Abbasi and Barrister Usman Waleed for Petitioner.

Nemo for Respondents.

P L D 2021 Islamabad 203

Before Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ

The REGISTRAR, ISLAMABAD HIGH COURT, ISLAMABAD---Petitioner

Versus

NASEER AHMED KAYANI, ADVOCATE and 20 others---Respondents

Complaint No. 1 of 2021, decided on 7th June, 2021.

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

----Ss. 41 & 54---Legal Practitioners and Bar Councils Rules, 1976, Chaps. X & XII---Islamabad Legal Practitioners and Bar Council Rules, 2017, Chap. VII---Constitution of Pakistan, Art. 10-A---Misconduct by lawyers---Storming building of the High Court and pelting stones---Breaking into the Chief Justice's chamber and holding the Judges captive---High Court after highlighting the significance of the legal profession and the high moral and professional conduct expected of lawyers directed the Registrar to send the complaints against the accused lawyers to their respective Bar Councils.

Due to the nature of the legal profession and its illustrious history and significance in keeping social order and maintaining rule of law in any civilized society, legal fraternity was considered as intelligencia, hence high moral and professional conduct was expected of it. Lawyers were expected to stand apart in their conduct from others.

Messrs Abid S. Zuberi and others v. Messrs Khawaja Shams-ul-Islam and another PLD 2016 Sindh 618 ref.

Regulators of the legal profession i.e. the Bar Councils had to play an active role in maintaining positive image of the Advocates. The failure to self-evaluate and hold peers accountable would result in not only lowering of standards of the profession but also undermining the confidence of the public in already dwindling perceptions regarding the legal community.

Present occurrence of alleged misconduct involved a large number of advocates of the Supreme Court as well as High Court, which was unprecedented, hence an appropriate action was required on part of the regulator against those who were responsible for the same. Thus it was appropriate that cases of accused lawyers be referred to their respective Bar Councils for initiation of proceedings against them.

High Court recalled its order of suspension of licenses of accused lawyers and directed that the Registrar shall send complaints to Pakistan Bar Council with respect to those accused advocates, who were enrolled with Pakistan Bar Council and with respect to others to Islamabad Bar Council or other provincial Bar Councils, with which, the accused advocates were enrolled; that the Registrar shall also send along with the complaints all the incriminating material that was available with the Court; that the Bar Councils shall act in accordance with law by providing opportunity of hearing to the accused advocates as envisaged in section 41 Legal Practitioners and Bar Councils Act, 1973 and keeping in view the mandate of fair trial as enshrined in Article 10-A of the Constitution.

Majid Rashid Khan, State Counsel for Petitioner.

Zahid Mahmood Raja, Muhammad Shoaib Shaheen, Hafiz Liaqat Kamboh, Mushtaq Hussain, Raja Shafqat Abbasi, Muhammad Waqas Malik, Naveed Malik, Rao Abdur Raheem, Chaudhry Yasir Shakeel, Asif Tamboli, A. Ammar Sehri, Saif-ud-Din Shah Bukhari, Sher Afzal Khan and Ch. Umar Sharif Bajwa for Respondents.

Ms. Shaista Tabassum, Advocate/Respondent No.7 in person.

Khalid Mahmood Khan, Advocate/Respondent No.4 in person.

P L D 2021 Islamabad 221

Before Athar Minallah, C.J.

ISLAMABAD ELECTRIC SUPPLY COMPANY LIMITED through Additional Director General Legal---Petitioner

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY and others---Respondents

Writ Petition No. 1592 of 2020, decided on 8th July, 2021.

(a) Words and phrases---

----Exclusive right---Defined.

11th Edition of the Black's Law Dictionary rel.

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

----S. 21 [as amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XII of 2018)]---Omitting of provisions---Applicability---Legislature did not intend that the omission would operate prospectively while rights which had already accrued under licence granted under S.21 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, were expressly saved.

(c) Interpretation of statutes---

----Retrospective effect---Principle---Majlis-e-Shoora (Parliament) has plenary powers to legislate either retrospectively or prospectively provided the subject upon which legislation has been made is within its competence---Legislation which affects rights created under any existing law is presumed to operate prospectively---Rights accrued under an enacted law cannot be construed to have been taken away or impaired through subsequent legislation---Legislature is competent to legislate retrospectively, even when it affects or impairs substantive rights or creates obligations but such a consequence cannot be inferred unless Legislative intent has been made obvious through express language or necessary intendment---Question of retrospectivity has to be obvious from the language and reading of provisions as a whole---Every word used by Legislature indicates its intent---High Court to discover intent of Legislature rather than to legislate or read into the statues something not provided therein.

Amin Ullah v. Pannu Ram PLD 1967 SC 289; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Manzoor Ali and 39 others v. United Bank Ltd through President 2005 SCMR 1785; Governor, N.W.F.P. v. Gul Naras Khan 1987 SCMR 1709; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864; The Chief Land Commissioner, Sind and another v. Ghulam Hyder Shah and others 1988 SCMR 715; Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others 2012 SCMR 965; The Collector, Customs and Central Excise, Peshawar and others v. Messrs Rais Ltd. through Muhammad Hashim 1996 SCMR 83; Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others 2002 SCMR 1023; Molasses Trading and Export (Pvt.) Ltd. v. FOP and others 1993 SCMR 1905; The Income Tax Officer (Investigation) Circle, Dacca and another v. Sulaiman Bhai Jiwa PLD 1970 SC 80 and Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 rel.

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

----Ss. 21 & 22 [as amended by Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act (XII of 2018)]---Constitution of Pakistan, Art. 199---Constitutional petition---Retrospective effect---Applicability---Exclusivity of rights---Petitioners were Electricity Supply Companies who were aggrieved of review determination made by National Electric Power Regulatory Authority (NEPRA)---Validity---Amendment made in Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, were prospective and did not affect or impair exclusive rights possessed by petitioner companies under their respective licences granted under S.21 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Exclusivity of right was for such period as had been specified under their respective licences---National Electric Power Regulatory Authority was not empowered to grant permission under S.22 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 after the provision had ceased to remain effective due to lapse of specified period---Amended S.22 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, could not be construed to have taken away or impaired the 'exclusive right' which was possessed or acquired by petitioner companies when their respective licences were granted---Petitioner companies continued to enjoy exclusive right, which could not be taken away or impaired without their express consent---Terms and conditions, particularly Art. 7 of their respective licences were subservient to the statutory provisions and were to be read and construed as such and was to be interpreted in such terms---High Court directed NEPRA to decide review petitions filed by petitioners afresh after affording them opportunity of hearing---Constitutional petition was allowed accordingly.

Adil Umar Bandial for Petitioner.

Salman Akram Raja, Muhammad Umer Akram Chaudhry, Syed Shahab Qutab, Barrister Asghar Khan, Barrister Ahsan Jamal Pirzada, Malik Ghulam Sabir, Faisal Atta, Afra Ikram, Mehrunnissa Sajjad, Abuzar Salman Khan Niazi, Aneesa Agha, Mariam Noor, Fatima Amjad, Aisha Naveed and Ymna Baloch for Respondents.

Syed Muhammad Tayyab, D.A.G.

M. Saifullah Gondal, A.A.G.

Irfan Ul Haq, Legal Advisor NEPRA.

P L D 2021 Islamabad 236

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

Ms. SARA BIBI---Appellant

Versus

MUHAMMAD SALEEM and others---Respondents

R.F.A. No.78 of 2013, decided on 19th September, 2018.

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

----Ss. 12 & 22---Suit for specific performance of agreement to sell---Pre-conditions---Words "readiness" and "willingness"---Connotation---Respondent-plaintiff sought specific performance of oral agreement to sell and appellant-defendant resisted the same on the plea that balance consideration amount was not paid within time specified in agreement therefore, the same was forfeited---Suit was decreed by Trial Court in favour of respondent-plaintiff---Validity---Respondent-plaintiff in his suit was to demonstrate that he was ready, willing and able to perform his part of contract throughout the proceedings till the date of decree---If prior to that, plaintiff negative his readiness, willingness or ability to perform his part of contract by his conduct, he could not claim specific performance of the contract---"Readiness" denotes capacity of a purchaser to purchase land while word "willingness" denotes his conduct---Plaintiff seeking benefit of specific performance of a contract had to manifest that his conduct was without a blemish throughout, entitling him to specific relief---Factum of readiness, willingness and ability to perform his part of contract was to be adjudged with reference to the conduct of party and attending circumstances---At no stage, prior to institution of suit for specific performance respondent-plaintiff issued notice to appellant-defendant demanding transfer of suit properties upon payment of balance sale consideration---Such fact was admitted by respondent-plaintiff, who also did not file any application for deposit of remaining sale consideration before Trial Court---Trial Court erred in decreeing suit of respondent-plaintiff for specific performance of agreement---Petitions seeking respondent-plaintiff's eviction from portions of suit properties in his occupation were dismissed by the Court of Rent Controller but such by itself would not make respondent-plaintiff undisputed lawful owner of suit properties---Court of Rent Controller did not have jurisdiction to determine disputes as to title of demised premises---Trial Court should have exercised discretion not to decree suit for specific performance of agreement filed by respondent-plaintiff---High Court directed appellant-defendant to return earnest money to respondent-plaintiff with simple interest at the rate of 8% per annum and dismissed suit for specific performance of agreement to sell---Appeal was allowed accordingly.

Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Adil Tiwana and others v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmed 2017 SCMR 1696 ref.

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

----Ss.12 & 22---Suit for specific performance---Jurisdiction to decree the suit---Discretion, exercise of---Equitable considerations---Applicability---Jurisdiction to decree specific performance is discretionary---Even if it is lawful to decree specific performance, Court need not do so, if on exercising discretion in the manner indicated in S.22 of Specific Relief Act, 1877, Court comes to the conclusion that discretion is to be exercised not to decree specific performance---Equitable considerations are the most relevant in realm of exercise of discretion---Exercise of discretion cannot be arbitrary but sound and reasonable, guided by judicial principles and in consonance with principles of justice, equity and good conscience---Court has to consider all facts and circumstances of the case in order to exercise discretion to decree or not to decree specific performance and in that process cannot take into account conduct of parties---Court in granting specific performance, acts in equity therefore, it becomes necessary that high standard of equitable conduct must be displayed by plaintiff---To adjudge whether plaintiff is ready and willing to perform his part of contract, the Court must take into consideration the conduct of plaintiff prior and subsequent to filing of suit along with other attending circumstances.

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

----S. 52---Pendente lite, principle of---Applicability---Primary object of principle of lis pendens is to maintain status quo and protect a litigant, who emerges successful against alienation of suit property by his opponents during pendency of suit in which any right to such property is in question---Principle of lis pendens does not prohibit transfer of suit property pendente lite but transferee acquires rights subject to judgment / decree passed by a Court in pending suit.

Muhammad Sharif v. Mst. Fateh 2004 SCMR 813; Ibrahim v. Muhammad Hayat 2004 CLC 421 and Evacuee Trust Property Board v. Liaqat Ali 2003 CLC 972 rel.

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

----S. 27 (b)---Transfer of Property Act (IV of 1882), S. 52---Pendente lite, principle of---Plea of bona fide purchaser for valuable consideration without knowledge---Scope---Plea of bona fide purchaser of suit property for value without notice does not in any manner offset or dilute principle of lis pendens---Plea of bona fide purchaser without notice is not open to transferee pendente lite---Doctrine of lis pendens renders a transfer made during pendency of suit subservient to rights of plaintiff seeking specific performance of a prior contract entered into by vendor in his favour, even though subsequent transferee had obtained transfer without notice of prior contract.

Industrial Development Bank of Pakistan v. Saadi Asmatullah 1999 SCMR 2874; Ram Peary v. Gauri AIR 1978 All. 318 and Basappa v. Bhimangowda AIR 1928 Bom. 65 rel.

Shakir Javed, Advocate for Appellant (in R.F.A.No.78/2013 and for Respondent No.2 in R.F.A.No.26/2016).

Mir Bashir Ansari and Muhammad Atif Khokhar for Respondent No.1 (in R.F.As. Nos.78/2013 and 26/2016), Tahir Mehmood Abbasi for Respondents Nos. 2 to 5 (in R.F.A.No.78/2013 and for Appellants in R.F.A.No.26/2016).

P L D 2021 Islamabad 255

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

NAVEED HAYAT MALIK and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 129-B of 2021, decided on 4th March, 2021.

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

----Ss. 2, 6(1) & 6(2)---Penal Code (XLV of 1860), S.21---"Public servant"---Scope---Judge is included in Anti-Terrorism Act, 1997, as "public servant"---Coercing or intimidating a Judge from performing duties tantamount to an "act of terrorism" under Ss.6(1) & 6(2) of Anti-Terrorism Act, 1997.

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

----S. 21-D(4)---Bail, grant of---Parameters---Nature and seriousness of offence with which a person is charged, the character, antecedents, associations and community ties of person; time which the person has already spent in custody and time which he is likely to spend in custody if he is not admitted to bail; and strength of evidence of his having committed offence are parameters under S.21-D(4) of Anti-Terrorism Act, 1997, for grant of bail.

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

----S.497---Anti-Terrorism Act (XXVII of 1997), Ss.6(a)(b), 7 & 21-D---Terrorism---Bail, grant of---Discretion, exercise of---Petitioner was arrested for assaulting Chief Justice of Islamabad High Court, detaining him in his chamber and obstructing him from performing his functions---Validity---Petitioner was in judicial custody and investigation to his extent stood concluded---Petitioner was senior member of bar and he was a candidate for election as President, Islamabad High Court Bar Association---Nothing was to be recovered from petitioner and his continuous incarceration would not serve any purpose---Bail was a discretionary matter and such discretion was to be exercised with caution and in accordance with law---Bail was allowed, in circumstances.

Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Manzoor and 4 others v. The State PLD 1972 SC 81; Amjad Mustafa Malik v. D.G. NAB and others (W.P. No.769-2019); Ghulam Hussain and others v. The State and others' PLD 2020 SC 61; Muhammad Shareef v. The State and others 2001 YLR 900; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and Gen. (R) Pervez Musharraf v. The State and another PLD 2013 Isl. 66 rel.

Sardar Muhammad Latif Khosa, Sardar Shahbaz Ali Khan Khosa, Raja Rizwan Abbasi, Muhammad Shoaib Shaheen, Syed Khawar Ameer Bukhari, Sohail Akbar Chaudhry, Ch. Muhammad Haseeb, Fareed Hussain Kaif, Raja Muhammad Saad, Talha Ahmad, Zulfiqar Ali Abbasi, Raja Aleem Khan Abbasi, Syed Qamar Hussain Sabzwari, Qazi Adil Aziz, Javed Iqbal Wains, Sh. Ahsan ud Din, Hafiz Muhammad Asif Hamdani, Javed Salim Sorish and Syed Shajjar Abbas Hamdani for Petitioners.

Ms. Khadija Ali and Majid Rashid, State Counsel.

Khalid Mehmood Awan, SDPO.

P L D 2021 Islamabad 266

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

AMJAD MUSTAFA MALIK---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and 4 others---Respondents

Writ Petition No. 769 of 2019, heard on 18th December, 2019.

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

----S. 24---Arrest---Object---Power to arrest has been expressly restricted to and can only be used 'for the purposes of an inquiry or investigation'---Object of arrest is to enable investigating officer to conduct an inquiry or investigation effectively and efficiently and to conclude it expeditiously.

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

----S. 24---Power of arrest---Nature---Arrest of accused is not mandatory rather it has left to discretion of authorized person to exercise this power as and when necessary for achieving the intended object.

(c) Criminal trial---

----White collar crime---Criminals, nature of---Perpetrators of white collar crime mostly are professionals or experts and know how to cover up the crime by shrewdly erasing its traces.

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

----S. 24---Power to arrest, exercise of---Pre-conditions---Power to arrest is to be exercised fairly, justly, equitably and without discrimination---Sufficient incriminating material to justify arresting an accused is a must---Incriminating material must be of the nature which, prima facie, indicates involvement of accused in commission of offences under National Accountability Ordinance, 1999---Material brought on record should prima facie, show existence of criminal intent or motive, mens rea, element of conscious knowledge and participation with the object to obtaining illegal gain or benefit---In absence of such elements, arrest of accused would amount to be an abuse of power to arrest vested under National Accountability Ordinance, 1999.

National Accountability Bureau through Chairman v. Murad Arshad and others PLD 2019 SC 250 rel.

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

---S. 9(a)(vi)---Misuse of authority---Necessary ingredient---Mere allegations of misuse of authority does not justify depriving an accused of liberty because an irregularity or wrong decision sans criminal intent, mens rea and illegal gain or benefit does not attract offences under National Accountability Ordinance, 1999.

(f) Constitution of Pakistan---

----Art. 10-A---Due process of law and right to fair trial---Scope---For determination of rights and obligation in any criminal charge, an accused is entitled to a fair trial and due process---Importance of fair trial cannot be overstated---Such right is a guarantee to prevent injustices and for such reason this right has been declared as 'golden thread' of criminal justice system---Provision of Art. 10-A of the Constitution ensures victims as well as accused confidence in criminal justice system---Independence and impartiality of legal process is foundation of fair trial---Treating a person as guilty before charges are proved in a fair trial is a negation of independence and impartiality of legal process---Such is the reason that presumption of innocence is crucial and its recognition is a foundational principle of right to fair trial.

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

----S. 14---Innocence, presumption of---Scope---Presumption of innocence of accused remains unaffected till he or she as the case may be, has been handed down conviction by a Court after conclusion of trial.

Pir Mazhar ul Haq and others v. The State through Chief Ehtesab Commission, Islamabad PLD 2005 SC 63; Syed Qasim Shah v. The State 2009 SCMR 790; Muhammad Siddiqul Farooq v. The State 2010 SCMR 198; Hashim Babar v. The State 2010 SCMR 1697; Khalid Aziz v. The State 2011 SCMR 136 and Ghani ur Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 rel.

(h) Constitution of Pakistan---

----Art. 14---International Covenant on Civil and Political Rights---Dignity of man---Scope---Constitution has declared dignity to be inviolable and recognizes it a right in itself---Inherent dignity which stems from humanity is the foundation for necessity to protect all other rights regardless of sex, status in society, race, religious beliefs or other conditions---Article 14 guarantees to every human right to enjoy autonomy, respect, self-determination and liberty so long it does not come in conflict with rights of others---Inviolability of dignity, even of a convicted person is breached when the latter is subjected to intolerable condition of detention in a State prison---Slavery, bonded labour, exploitation of an employee or labourer, or humiliation in any other form are examples of violation of human dignity---Parading suspects or convicted criminals publically in handcuffs amounts to a breach of their dignity---Imposing illegal, unreasonable and unnecessary limits and restraints on autonomy, self-determination and freedom of human are inconsistent with the rights guaranteed under Art.14 of the Constitution.

Al. Isra; 70; Juris Foundation through Chairman v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2020 SC 1; Mst. Laila Qayyum v. Fawad Qayum PLD 2019 SC 449; President Balochistan High Court Bar Association v. Federation of Pakistan and others 2012 SCMR 1958; Government of N.W.F.P v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104 and Suo Motu Constitution Petition No.9 of 1991 (1994 SCMR 1028) rel.

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

----S. 24---Constitution of Pakistan, Art. 14---Arrest---Dignity of a person---Effect---Arresting a person in an alleged white collar crime by exercising executive power in a mechanical and arbitrary manner, or unnecessarily, has serious consequences---Such arrest can cause irreparable damage to reputation of a person---Social stigma attached with arrest for an offence under National Accountability Ordinance, 1999, can have devastating implication and massive human impact, not only for that person but the latter's family members as well.

(j) Constitution of Pakistan---

----Art. 9---Right to liberty---Scope---Such right is subject to law and is not an absolute right but is a guarantee against illegal or arbitrary deprivation of liberty---Provision of Art. 9 of the Constitution is a shield against abuse of the executive power to arrest which is vested in State authorities---Such is only lawful to deprive a person from enjoying right to liberty if it can demonstrably be shown that exercise of power to arrest was authorized by law and was actually exercised in order to achieve the object for which it was provided by legislature.

Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Watan Party v. Federation of Pakistan PLD 2011 SC 997; Commissioner of Income Tax v. Eli Lilly Pakistan 2009 SCMR 1279; Ismail v. The State 2010 SCMR 27; Liversidge v. Anderson [1941] 3 All ER 338; Christie v. Leachinsky [1947] 1 All E.R 567 and Ghani and others v. Jones [1969] 3 All E.R 1700 rel.

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

----S. 24---Selective arrests---Impact---Across the board accountability, achieving of---Pre-condition---Across the board accountability can only be achieved, if there is no perception that accused persons are treated differently---Bureau must be able to demonstrably justify why some accused are arrested while others are treated differently.

(l) Administration of justice---

----Principle of proportionality---Scope---Principle of proportionality is that an action must not be more than what is necessary in given facts and circumstances---Cracking a nut or killing an ant with a sledgehammer is an appropriate illustration which highlight the essence of Principle of proportionality---Act or action that is extreme, excessive or is more than what is necessary for achieving an intended purpose or goal, would be negation of the principle of proportionality.

Proportionality, Constitutional Rights and their limitations; A and other v. Secretary of State for the Home Department (2005) 3 All ER 169; R. v. Oakes [(1986) 1 SCR 103; Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189; Messrs MFMY Industries Limited and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; D.G. Khan Cement Company Ltd. through Chief Financial Officer v. Federation of Pakistan through Secretary, Ministry of Law and 03 others PLD 2013 Lah. 693; Holgate-Mohammad v. Duke [1984] 1 ALL ER 1054; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1947] 2 All E.R 680; Hyder Ali Bhimji v. VIth Additional District Judge Karachi (South) and another 2012 SCMR 254 and Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 rel.

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

----Ss. 18 (e) & 24---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Judicial review---Applicability---Roving inquiries---Petitioners were accused facing investigation under National Accountability Ordinance, 1999 on the allegation of causing loss to national exchequer by misusing their authority to allow Cellular Company to use 4 G/LTE technology on its acquired existing spectrum---Validity--- Executive power to order arrest of an accused under S.18(e) read with S.24 of National Accountability Ordinance, 1999, was subject to judicial review under Art. 199 of the Constitution on the grounds of proportionality, unreasonableness and necessity---Executive power to arrest a person under National Accountability Ordinance, 1999, could not be exercised unnecessarily or for conducting roving inquires---If accused persons were cooperating in inquiry or investigation and appropriate measures had been taken to ensure attendance of accused persons then in such eventuality restrictions on Constitutional rights would be an abuse of Executive power---Authorities failed to justify ordering arrest of petitioners and pursuant thereto restricting their fundamental rights guaranteed by the Constitution---Exercise of Executive power to order arrest of petitioners was arbitrary, in violation of principles and law settled by Superior Courts---Arrest warrants issued against petitioners were not justified on the touchstone of principle of proportionality and necessity---Such act of authorities had raised questions regarding professional expertise, proper training and qualification to deal with complex cases relating to white collar crime---High Court in exercise of Constitutional jurisdiction admitted petitioners to bail---Pre-arrest bail was confirmed, in circumstances.

Muhammad Bashir v. Station House Officer, Okara PLD 2007 SC 539; Mst. Sughran v. The State PLD 2018 SC 595; Manzoor and 4 others v. The State PLD 1972 SC 81; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Rafiq Haji Usman v. Chairman NAB and others 2015 SCMR 1575; The State v. Anwar Saifullah Khan PLD 2016 SC 276; Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 and Chairman National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif and 2 others PLD 2019 SC 445 ref.

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 and Abdul Majeed Khan v. Tawseen Abdul Haleem PLD 2012 SC 80 rel.

Asad Manzoor Butt, Abid Jalil and Nauman Zafar for Petitioners.

Sardar Muzaffar A. Khan, Addl. Dy. Prosecutor General, Barrister Rizwan Ahmed, Special Prosecutor, Ch. Muhammad Tahir Mehmood, Asstt. Attorney General, Kh. Muhammad Farooq Mehta, Sr Advocate Supreme Court, Muhammad Umar Vardag, Muhammad Ayub, Section Officer, Ministry of Information, Ch. Adil Javed, Assistant Director, PTA, M. Naeem Ashraf, Law Officer, PTA and Malik Zubair, Dy. Director/I.O. NAB with record for Respondents.

P L D 2021 Islamabad 305

Before Athar Minallah, C.J.

Hafiz HAMDULLAH SABOOR---Petitioner

Versus

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

Writ Petition No. 3748 of 2019, decided on 19th May, 2021.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 16 & 18---Pakistan Citizenship Act (II of 1951), S. 4---Constitutional petition---Right to nationality---Paramount public importance---Arbitrary/reckless action by National Database and Registration Authority (Authority)---Computerised National Identity Cards (CNICs) of the petitioners were blocked/suspended/withdrawn on reports of the intelligence agencies that petitioners were not citizens of Pakistan---No allegation against the petitioners that they acquired citizenship of another sovereign state; that the competent authority had revoked/withdrawn/cancelled their citizenship; or that petitioners had given false information regarding birth in Pakistan when applied for the CNICs---Admittedly petitioners were born in Pakistan---Suspension/ cancellation of duly issued CNIC would have profound and grave consequences because it virtually brought the life of an affected person to a halt and denied the exercise of fundamental rights guaranteed under the Constitution---State could not adopt policies which would have the effect of even inadvertently rendering a person stateless---Petitioner and his father lived in Pakistan all their lives/owned properties/petitioner had held various public offices as an elected representative/petitioner's son was a commissioned officer in Armed Forces---Arbitrary/reckless action by the Authority of purportedly depriving a registered citizen of his citizenship and in excess of its jurisdiction under the National Database and Registration Authority Ordinance, 2000 (the Ordinance)---Citizenship by birth would automatically make a person a citizen who would not have to fulfill any prerequisites to become a citizen unlike other categories such as citizenship by naturalization or by immigration---Constitutional duty of public functionaries was to act strictly in accordance with the mandate of law---No innocent/eligible citizen could be allowed to suffer the devastating consequences of statelessness on account of reckless actions of public functionaries---Constitutional petitions were allowed---Authority was directed to restore the CNICs of the petitioners forthwith.

Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; The Muree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf), Karachi, PLD 1992 SC 847 and Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 ref.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 4---Pakistan Citizenship Rules, 1952, R.8---Citizenship by birth---Exclusive nature of---Section 4 of the Pakistan Citizen Act, 1951 explicitly declared that every person born in Pakistan after commencement of the Pakistan Citizenship Act, 1951 would be a citizen by birth---Two exceptions were mentioned in cls. (a) and (b) of S.4 of the Act---Scope of the exceptions was limited/restricted to only two clearly described eventualities---Birth would create a right to become a citizen of Pakistan by operation of law---Legislature had used the expression 'shall' and thus birth in Pakistan was the sole ground to become a citizen---Status of such a person as a citizen was not subject to discretionary powers of State as in the case of other categories citizenship by migration, naturalization etc. R. 8 of the Pakistan Citizens Rules, 1952 would become relevant/attracted in cases where a person 'claimed' to be a citizen by birth and sought to obtain a certificate from the competent authority as an acknowledgment---No such process was required to be adopted by citizens by birth.

(c) Pakistan Citizenship Act (II of 1951)---

----S. 4---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Citizenship by birth---Onus to disprove---Onus was on the State to establish that, despite having been born in Pakistan, the person would not come within the mandate of section 4 of the Pakistan Citizenship Act, 1951.

(d) International Law---

----Universal Declaration of Human Rights (1949), Art. 15---Right to nationality---Person once registered as a citizen cannot be deprived of citizenship otherwise than as is provided under the law---Article 15 of the 1948 Universal Declaration of Human Rights declares that everyone has the right of nationality.

(e) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of speech/right to information---Appearing on Television, restraining from---On the basis of the order passed by the National Database and Registration Authority (Authority), Pakistan Electronic Media Regulatory Authority (PEMRA) restrained TV Channels from "inviting and projecting the petitioner in their programmes/talk shows, news, etc"---Petitioner challenged the orders passed by the Authority and PEMRA and all subsequent actions or proceedings---Such restraining was an obvious misuse of authority vested under the Pakistan Electronic Media Regulatory Authority Ordinance, 2000 and was in derogation of the rights guaranteed under Arts. 19 & 19-A of the Constitution---Impugned order by PEMRA was declared to be illegal/without authority and jurisdiction.

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

----Art. 192---Computerized National Identity Cart (CNIC)---Contents of---Presumption of truth---Scope---Registration and issuance of a CNIC was a certification/acknowledgment that the person was eligible citizen of Pakistan---CNIC was a testament on behalf of the State that its holder was a citizen and thus a presumption of truth is attached with the card and the particulars recorded therein.

Adil Aziz Qazi, Kamran Murtaza, Arif Majeed, Noman Malik, Naveed Rajpoot, Malik Mushtaq Ghanjera, Muhammad Mubashir Bhatti, Rizwan Ejaz, Aftab Rashid, Raja Qaisar Ali and Sajidur Rehman Mashwani for Petitioners.

Syed Muhammad Tayyab, Dy. Attorney General, Obaid Ur Rehman, Law Officer, NADRA., Khalid Ishaque, Law Officer, NADRA, Syed Junaid Jaffar, Law Officer for NADRA, Jalal Haider for PEMRA, Ms. Laraib Kanwal, PEMRA., Usama Akbar for PEMRA, Zeeshan Ul Haq, Dy. Director (Ops.), NADRA and Mohsin Hameed Dogar, DGM/Legal, PEMRA for Respondents.

P L D 2021 Islamabad 323

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

ASIM AHMED AFZAL---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB, Islamabad and others---Respondents

Writ Petitions Nos. 637 and 1878 of 2019, decided on 3rd June, 2021.

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

----Ss. 9 & 18---Corruption and corrupt practices---Offence of money laundering---Cognizance of offence---Scope---Petitioners were aggrieved of call-up notices received by them pursuant to the inquiry initiated by National Accountability Bureau (NAB) against them under S.9(a)(iv) (xii) of National Accountability Ordinance, 1999, on a request made by a foreign government---Stance of parties was that the request was made on the basis of United Nations Convention against Corruption; however, petitioners asserted that the agreement/treaty could not form basis of the request as the same was never incorporated into municipal law and was not enforceable---Validity---International agreement/ treaty, unless made part of municipal law, was not enforceable by the courts of law and did not give rise to rights and obligations qua the citizens of Pakistan, however, non-incorporation of agreement/treaty into municipal law did not extinguish the obligations of Pakistan as one of the signatories---NAB could initiate an inquiry either on its own or on a complaint received from any person in the light of S.18(b) of National Accountability Ordinance, 1999---Challenge to the inquiry proceedings, on account of non-incorporation of agreement into municipal law of Pakistan, was not made out, inasmuch as letters from foreign government could be treated as a complaint or even information for commencing inquiry by NAB on its own---Constitutional petitions were disposed of accordingly.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Societe Generale DE Survellance S.A. v. Pakistan through Secretary, Ministry of Finance Revenue Division, Islamabad 2002 SCMR 1694 and Komal Qamar v. Federation of Pakistan and others (Writ Petition No.3574 of 2020) rel.

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

----S. 9---Anti-Money Laundering Act (VII of 2010), Ss. 3, 2(j) & 24---Offence of money laundering---Investigating Agency---Appointment of investigating officers and their powers---Corruption and corrupt practices---Jurisdiction of National Accountability Bureau (NAB)---Scope---Petitioners were aggrieved of call-up notices received by them pursuant to the inquiry initiated against them by NAB under S.9(a)(iv) (xii) of National Accountability Ordinance, 1999, on a request made by the a foreign government---Validity---Basis for the issuance of call-up notices was illegal transfer of funds derived from the alleged fraud---Not only the provisions of National Accountability Ordinance, 1999, were attracted but Anti-Money Laundering Act, 2010, as well---Bare perusal of S. 3 of Anti-Money Laundering Act, 2010, showed that if any person acquired, converted, possessed, used or transferred property knowing or having reasons to believe that such property was the proceeds of crime, the same amounted to offence of Money Laundering---Argument of counsel for petitioners that relevant provisions of law for which the petitioners could be enquired or investigated, if at all, were the provisions of Anti-Money Laundering Act, 2010 and not the National Accountability Ordinance, 1999 and that NAB had no authority/jurisdiction to investigate for any offence under Anti-Money Laundering Act, 2010, was misconceived inasmuch as under S.24 of the Anti-Money Laundering Act, 2010, investigating or prosecuting agencies could nominate such persons as they deemed fit to be the investigating officers---'Investigating Agency' was defined in S.2(j) of Anti-Money Laundering Act, 2010 which included the NAB; likewise, 'Investigating Officer' meant an officer nominated or appointed under S. 24 of Anti-Money Laundering Act, 2010---National Accountability Bureau (NAB) was one of the Investigating Agencies for investigating an offence under S.3 of Anti-Money Laundering Act, 2010---Relief to the extent of declaring the inquiry without lawful authority was refused and the constitutional petitions were disposed of accordingly.

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

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Call-up notice---Scope and essentials---Petitioners were aggrieved of call-up notices received by them pursuant to the inquiry initiated against them by NAB under S.9(a)(iv) (xii) of National Accountability Ordinance, 1999 on a request made by the a foreign government---Validity---Principles for the information, which were required to be incorporated in a call-up notice by NAB, were (a) if notice was issued to a person who was a suspect in inquiry or investigation, the nature of allegations against him; (b) the name and identity of complainant; if NAB had initiated inquiry/investigation, then it should be stated so in notice; (c) documents, if any, sought from person called as suspect or witness; (d) if person was called as a witness, it should be so stated in call up notice; (e) if custodian of any material document or record was called for examination of the same, the call up notice should state so and the details of documents and record; (f) date, time and place, where person called was to appear; (g) and any other relevant information---Call-up notices, on examination, showed that they did not fulfil the criteria highlighted, hence were not in accordance with law---Constitutional petitions were partly allowed.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903 and Mst. Rukhsana Bangash v. Chairman, National Accountability Bureau, Islamabad and others (Writ Petition No. 2994-2020) ref.

Omer Farouk Adam (in W.P. No.637 of 2019) and Imran Shafique (in W.P. No.1878 of 2019) for Petitioners.

Jahanzeb Khan Bharwana, Additional Prosecutor General, Barrister Rizwan Ahmad, Special Prosecutor, Syed Jalal Hussain, Special Prosecutor, Rana Zain Tahir, Special Prosecutor, National Accountability Bureau with M. Uzair Rehman, A.D./IO, NAB and Tariq Mahmood Khokhar, Additional Attorney General for Pakistan for Respondents.

P L D 2021 Islamabad 333

Before Babar Sattar, J

WAQAS AND BROTHERS ENTERPRISES (PRIVATE LIMITED) through C.E.O.---Appellant

Versus

Messrs DHL EXPRESS through C.E.O./M.D. and another---Respondents

Criminal Appeal No. 211 of 2020, decided on 7th May, 2021.

(a) Interpretation of statutes---

----Words, in a statute---Meaning of---Scope---When words used in statute provide clear meaning it is not for Court to read into them what is not provided, including Presiding Officer's academic understanding of any concept employed in the statute.

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

----S. 2 (c)(ii)---Consumer of service---Word 'any' used in S.2(c)(ii)---Scope---Beneficiary of a service falls within the definition of consumer under S.2(c)(ii) of Islamabad Consumers Protection Act, 1995---Word 'any' used in S.2(c)(ii) of Islamabad Consumers Protection Act, 1995, speaks of a beneficiary of services and consequently even if there are multiple beneficiaries of services provided, they need not be end users or end beneficiaries of such services to fall within the definition of consumer.

Black's Law Dictionary; State of Karnataka v. Raghurama Shetty AIR 1981 SC 1206; Inder Singh v. Kartar Singh AIR 1979 SC 1721; Muhammad Farooq Khan v. Excel-Labs, through Central Executive Officer and another PLD 2015 Isl. 81 and Nargis Sultana Chohan v. Presiding Officer and others 2015 PCr.LJ 941 rel.

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

----S. 2 (c)(ii)---"Consumer"---Beneficiary of service---Effect---Such beneficiary must not be the person who hires services in question or pays for them.

(d) Constitution of Pakistan---

----Art. 10-A---Fair trial---Court, role of---Principles underlying Cr.P.C. and C.P.C. are not in conflict with one another---Both require that a party bringing a grievance to Court should be afforded an opportunity to make out a case---Party against whom case is being made should be afforded an opportunity to defend himself by confronting evidence adduced by complainant and be given option to adduce evidence in his defence---After hearing parties and considering evidence, Court is to pass judgment in its capacity as neutral arbiter of law---In special laws that deal with civil rights of parties, even when provisions of C.P.C. are not attracted, Court can derive guidance from principles underlying C.P.C.

Ashfaq Ahmed Khan v. PTCL and others PLD 2016 Isl. 112 rel.

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

----Ss. 2(c)(ii) (f), 8 & 10---Civil Procedure Code (V of 1908), O.VII, R.11---Unfair trade practice---Appreciation of evidence---Consumer of service---Provisions of Civil Procedure Code, 1908---Applicability---Complainant was aggrieved of order passed by Trial Court rejecting his complaint in exercise of powers under O.VII, R.11, C.P.C.---Validity---Provisions of Civil Procedure Code, 1908, were not applicable to proceedings under Islamabad Consumers Protection Act, 1995---Trial Court could not have entertained application under O.VII, R.11, C.P.C. to determine whether or not the complaint was barred by law in view of law and jurisprudence developed in relation to O.VII, R.11, C.P.C.---Such was not a simple question of misstating a provision of law but that of misconceiving penal nature of Islamabad Consumers Protection Act, 1995 and broader approach to procedure that must be employed by Trial Court in its capacity as Authority to adjudicate a complaint while upholding under Art.10-A of the Constitution, the rights of complainant---High Court set aside order of rejecting the complaint and matter was remanded to Trial Court for decision afresh in accordance with provisions of Islamabad Consumers Protection Act, 1995---Appeal was allowed accordingly.

Muhammad Farooq Khan v. Excel-Labs, through Central Executive Officer and another PLD 2015 Isl. 81; Allied Bank Ltd. Faisalabad v. Khalid Mehmood 2013 CLD 1133 and Muhammad Farrukh Saif v. The State and 2 others PLD 2018 Lah. 50 ref.

Bolan Beverages (Pvt.) Ltd. Limited v. Pepsi Co. Inc and 4 others PLD 2004 SC 860; Zia Ullah Malik v. Naeem Baig PLD 2013 Lah. 69; Talat Inayatullah Khan v. Dr. Anis Ahmed Sheikh PLD 2015 Sindh 134; Muhammad Ameer Qazi v. Muhammad Asif Ali PLD 2015 Lah. 235; Chairman Pakistan Railway v. Shah Jehan Shah PLD 2016 SC 534; Shifa International Hospital Ltd. v. Mst. Hajira Bibi and others PLD 2018 Isl. 372; Kartaz Lal Pirwani v. Muhammad Waqar Azeem and 3 others 2018 YLR 2219; Messrs Walia Steel Industries PLC v. Messrs Saga Shipping and Trading Corporation Ltd and others PLD 2019 Sindh 22; Messrs Ash Associates, Islam Colony, Sialkot Road, Gujranwala v. The Chief Executive Officer, Punjab Rural Support Program and 2 others 2019 CLC 1303 and The General Manager Gulberg Office of TCS and another v. Syed Naeem ud Din PLD 2020 Lah. 757 distinguished.

Federal Board of Intermediate and Secondary Education v. Azam Ali Khan 2017 YLR 906; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Town Municipal Administration v. Rifat Hussain 2003 CLC 1370 rel.

Asad Ullah Khan for Appellant.

Barrister Umar Zia-ud-Din and Ms. Ammarah Mahmood for Respondents.

P L D 2021 Islamabad 350

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

MUHAMMAD MASOOD CHISHTI---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 4 others---Respondents

Writ Petition No. 1133 of 2020, decided on 12th January, 2021.

(a) Words and phrases---

----"Corruption and corrupt practices"---Connotation---Expression 'corruption and corrupt practices' is distinct from 'negligence' or even 'recklessness'---Mere illegality, negligence or recklessness do not constitute corruption sans a guilty mind.

Advanced Law Lexicon, 3rd Edition (Vol.1, Reprint 2009); Black's Law Dictionary 11th Edition; The Chambers Dictionary 10th Edition and Burton's Legal Thesaurus 5th Edition rel.

(b) Interpretation of statutes---

----Statute creating offence---Offence can only be created by Legislature through clear and unambiguous language---Statute which creates an offence leading to conviction and sentence is required to be strictly construed---When language of statute is plain and simple then Court has to give effect to the words used in the statute---In case of ambiguity or when two reasonable interpretations emerged then preference has to be given to such interpretation which leans in favour of protecting liberty of a person---Statute which creates a crime and offence, is presumed to include requirement of existence of both mens rea as well as actus reus.

(c) Maxim---

----Actus non facit reum nisi mens sit rea---Meaning---Any act does not make anyone guilty unless there is a criminal intent or a guilty mind.

(d) Jurisprudence---

----Crime---Proof--- Criminality of an act depends on intention of its doer and becomes offence when done with a guilty mind.

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

----S. 9(a)(vi)---Misuse of authority---Pre-condition---Gaining any benefit or favour, either by public office holder vested with authority or for any other, is a pre-condition for constituting an offence under S.9(a)(vi) of National Accountability Ordinance, 1999.

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

----S. 9(a)(vi)---Phrase 'failure to exercise authority'---Scope---Intent of failure to exercise authority must be facilitating grant or rendition of any undue benefit or favour which could have prevented, if authority was exercised.

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

----S. 9(a)(xii)---Corruption and corrupt practices---Attempt or abetment---Pre-condition---Only if ingredients of offences described in one of the clauses in S.9(a) of National Accountability Ordinance, 1999, are fulfilled, only then S.9(a)(xii) of National Accountability Ordinance, 1999, is attracted.

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

----S.10(b), Sched., item (5)---Offence of causing loss---Pre-condition---Such can only become offence under National Accountability Ordinance, 1999, if it is caused due to deceit, fraud or dishonestly---Merely causing loss, regardless of its quantum does not constitute a criminal offence.

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

----Ss. 9(a) & 18---Expression "corruption and corrupt practice"---Reference---Necessary ingredients---Expression "essentially" has a nexus with dishonesty, fraud, conduct involving graft or bribery, deception, depravity etc.---"Corruption and corrupt practice" involves intent or conscious knowledge of wrongdoing and goes beyond conduct or action sans a guilty mind---Actus reus by itself does not constitute offence nor loss caused pursuant thereto unless it is accompanied by men srea---In the context of offences under National Accountability Ordinance, 1999, existence of both actus reus and mensrea should, prima facie, float on the surface of Reference filed by National Accountability Bureau.

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

----S. 18(g)---Expressions, 'shall appraise the material and evidence', 'if decides that it would be proper and just to proceed further' and 'there is sufficient material to justify filing of reference'---Scope---Both the expressions used in S.18(g) of National Accountability Ordinance, 1999, impose a high standard of statutory duty which is required to be discharged before referring the matter to a Court---Such becomes an onerous duty of Chairman, National Accountability Bureau (NAB) or authorized officer to clearly show through substance of offence contained in Reference, that statutory pre-conditions have been fulfilled after proper application of mind.

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

----Ss. 9(a) & 18(g)---Filing of Reference---Duty of Chairman---Application of mind---Ingredients of offences---Prima facie case---Application of mind and prima facie existence of ingredients of an offence described in one of the clauses of S.9(a) of National Accountability Ordinance, 1999, are crucial pre-conditions for filing of a Reference or exercise of discretion by Court while taking or refusing to take cognizance---If substance of offence contained in Reference does not justify its filing nor cognizance is taken by Court on the basis thereof then proceedings in such eventuality would be contrary to unambiguous intent of legislature---Such safeguards have been prescribed so that no one is arbitrarily deprived of enjoying right of liberty.

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

----S. 9 (a) (vi)---Criminal Procedure Code (V of 1898), S. 265-K---Misuse of authority---Appeal against acquittal---Appreciation of evidence---Illegal pecuniary advantage, absence of---Difference of opinion among officials----Contractual liabilities---Benefit of doubt---In the present case, three accused persons were charged for misusing their authority resulting in loss to national exchequer---Trial Court in exercise of jurisdiction under S.265-K, Cr.P.C. acquitted two accused persons but application of one was dismissed---Validity---National Accountability Bureau (NAB) was confused as to whether it was a case of misuse of authority or failure to exercise it---Alleged loss was not attributed to deceit or fraud; it was not a case which should have been referred to the Court---Court had also not exercised its discretion in accordance with law while deciding to take cognizance---Delay of more than two years was due to difference of opinions between two relevant ministries of Federal Government---No one was ready to take responsibility of a concluded contract---Presumption of 'double innocence' was attached to order of acquittal of accused persons---Presumption of 'double innocence' could be rebutted if it could be shown that order was passed as a result of misreading or non-reading of evidence or it was patently illegal---Appellate Court was not to interfere with acquittal merely because on reappraisal of evidence a different conclusion or opinion could be formed---Finding of acquittal could only be reversed, upset or disturbed in exceptional circumstances such as when the same were perverse, shocking, alarming, suffering from error of jurisdiction or misreading or non-reading of evidence---Division Bench of High Court declined to interfere order of acquittal of two accused while the third was also acquitted of the charge---Appeal was dismissed accordingly.

Mansur ul Haque v. Government of Pakistan PLD 2008 SC 166; The State v. M. Idrees Ghauri and others 2008 SCMR 1118; Anwarul Haq Qureshi v. National Accountability Bureau and another 2008 SCMR 1135; Wahid Bakhsh Baloch v. The State 2014 SCMR 985; Messrs Fauji Cement Company Limited v. Government of Pakistan through Secretary Customs, Board of Revenue, Islamabad and others 2014 SCMR 994; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Muzammil Niazi and others v. The State PLD 2003 Kar. 526; Muhammad Iqbal v. The State and others 2017 PCr.LJ 674; Mukhteyar Alam v. The State through Additional Advocate-General and 4 others 2017 PCr.LJ 684; Dr Mujahid Kamran v. Chairman National Accountability Bureau (NAB) and others 2019 PCr.LJ 34; Aamir Shamas v. The State and another 2019 PCr.LJ 41; National Insurance Co. Ltd.'s case 2014 SCMR 585; Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau and another 2011 MLD 313; The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544; Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372; Pakistan, through the Secretary Ministry of Finance and others v. Hardcastle Waud (Pakistan) Ltd., Karachi PLD 1967 SC 1; Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others PLD 2003 SC 46; Waqar Ali and others v. The State through Prosecutor/ Advocate-General Peshawar and others PLD 2011 SC 181; Muhammad Noor and others v. The State 2010 SCMR 927; Nasir Abbas v. The State and another 2011 SCMR 1966; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276; Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178 and Ghulam Hussain and others v. The State and others PLD 2020 SC 61 ref.

Muhammad Zaman v. The State and others 2014 SCMR 749; Muhammad Rafique v. Muhabbat Khan and others 2008 SCMR 715; Jehangir v. Amin Ullah and others 2010 SCMR 491; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----S. 6---National Accountability Bureau (NAB)---Duty, exercise of---Onerous duty of the NAB to exercise its powers vested under National Accountability Ordinance, 1999, in such a manner that the corrupt fears being held accountable while the honest are not only treated with respect but they are assured that their dignity, honor and self-esteem is not prejudiced or harmed in any manner---Obligation of the NAB to demonstrably show through its conduct and proceedings that it appreciates and acknowledges distinction between misuse of authority and corruption and corrupt practices---Onus is on NAB to dispel any perception of fear amongst bureaucracy and to assure that bona fide decision making process would not expose any bureaucrat to stigma or humiliation of proceedings under National Accountability Ordinance, 1999.

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

Muhammad Amjad Pervaiz, Tariq Mehmood Jehangiri, Muhammad Ramzan Chaudhry,Chaudhry Haseeb Ahmed, Muhammad Ahsan Bhoon and Azam Nazir Tarar for Petitioner.

Jehanzeb Khan Bharwana, Addl. Prosecutor General, Imran ul Haq Khan, Deputy Prosecutor General, Barrister Rizwan Ahmed, Special Prosecutor, Syed Jalal Hussain , Special Prosecutor, Yasir Saleem Rana, Special Prosecutor and Ms. Asma Chaudhry, Deputy Director/Investigating Officer for Respondents/NAB.

P L D 2021 Islamabad 378

Before Mohsin Akhtar Kayani, J

Messrs SUI SOUTHERN GAS COMPANY LIMITED through Attorney---Petitioner

Versus

OIL AND GAS REGULATORY AUTHORITY through Chairperson and 2 others---Respondents

Writ Petition No. 67 of 2019, decided on 23rd December, 2020.

(a) Interpretation of statutes---

----Harmonization---Applicability---Wisdom behind legislation of any law is to deal with specific situation---Where there are two special laws in field, the principle of interpretation comes into play---To cater such type of proposition where two overlapping jurisdictions are involved under two different statutes, it is the rule that incorporated law in existence vis-à-vis the new law on the subject has to be given a harmonious and consistent meaning---Though primary rule is that statute which is complete in nature is to be construed according to its own terms and not with reference to another statute to whittle down beneficial provision of the former---Rights which were already given by one statute cannot be taken away by another statute---Statute later in time prevails.

Abdul Razzak Khokhar v. Province of Punjab 1990 SCMR 183 and Matloob Hassan v. Broke Bond Pakistan Limited, Lahore 1992 SCMR 227 rel.

(b) Interpretation of statutes---

----Purposive interpretation---Scope---Interpretation which advances purpose of an Act is to be preferred rather than the interpretation which defeats its object.

Federation of Pakistan v. Messrs Noori Trading Corporation (Pvt.) Ltd. 1992 SCMR 710; PLD 1998 Lah. 92; Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh 2018 SCMR 1885 and Dr. Tariq Iqbal v. Government of KP 2019 SCMR 859 rel.

(c) Interpretation of statutes---

----Beneficial construction---Scope---Courts are not prevented from adopting beneficial construction as against lateral one, particularly when such beneficial construction advances intention and object of legislation and also to facilitate administration of justice.

Kadir Bux v. Province of Sindh 1982 SCMR 582 rel.

(d) Interpretation of statutes---

----Cognizance existing in two statutes---Determination---Where cognizance exists in two statutes, repugnancy test is to be adopted i.e. when the two provisions of law are irreconcilable and cannot co-exist.

Cantonment Board v. District Sanitary and Food Inspector, Peshawar 1993 SCMR 941 rel.

(e) Election, doctrine of---

----Applicability---Aggrieved person has a choice to elect one of the many remedies concurrently invoked against one and the same issue, as multiple and simultaneous proceedings may be hit by principle of res subjudice---Where one of the proceedings is taken to its logical conclusion then other pending proceedings for similar relief may be hit by principle of res judicata---Giving choice to elect a remedy from amongst several co-existent and / or concurrent remedies does not frustrate or deny right of a person to choose any remedy, which best suits under the given circumstances---To prevent recourse to multiple or successive redressal of singular wrong or impugned action before competent forum / original appellate jurisdiction, such rule of prudence has been evolved by Courts of law to curb multiplicity of proceedings---As long as party does not avail of the remedy before Court of competent jurisdiction, all such remedies are open to be invoked---Once election is made then the party generally cannot be allowed to hope over and shop for one after another co-existent remedy---After exhausting remedies from the Court of law against impugned order or action, a person cannot be allowed to go on expedition to venture another remedy for the same malady which though available was not invoked---Permitting such course would be nothing but abuse of process of law and amount to encourage multiplicity of proceedings and the same cannot be approved.

Mst. (Fehmida Begum v. Muhammad Khalid and others 1992 SCMR 1908 and Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 rel.

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

----Ss. 3, 14, 15, 16, 17, 18, 19 & 21---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss.6, 11 & 12---Oil and Gas Regulatory Authority Complaint Resolution Procedure (for Natural Gas, LPG, CNG and Refined Oil Products) Regulations, 2003, Regln.3---Constitution of Pakistan, Art. 199---Constitutional petition---Dispute resolution---Forum---Electing of forum---Effect---Petitioner was natural gas distribution company and aggrieved of cognizance taken by Oil and Gas Regulatory Authority in the matter of gas theft and allied issues---Validity---Any offence relating to tempering under Gas (Theft Control and Recovery) Act, 2016 is exclusively triable by gas utility Court and Oil and Gas Regulatory Authority has no jurisdiction in such regard---Dispute regarding billing and metering, which is also subject matter of Oil and Gas Regulatory Authority Ordinance, 2002 under Regln. 3 of Oil and Gas Regulatory Authority Complaint Resolution Procedure (for Natural Gas, LPG, CNG and refined oil products) Regulations 2003, is also available in terms of S.6(1) of Gas (Theft Control and Recovery) Act, 2016---If a consumer approaches Oil and Gas Regulatory Authority at first instance in terms of S.11 of Oil and Gas Regulatory Authority Act, 2002 read with Oil and Gas Regulatory Authority Complaint Resolution Procedure (for Natural Gas, LPG, CNG and refined oil products) Regulations 2003, any final decision passed in appeal by Oil and Gas Regulatory Authority under S.12 of Oil and Gas Regulatory Authority Act, 2002, can be further agitated by consumer or gas utility company before Gas Utility Court in terms of section 6 of Gas (Theft Control and Recovery) Act, 2016 as its independent remedy---Findings of Oil and Gas Regulatory Authority are considered as a decision as to whether same was passed in accordance with law or otherwise and findings of Gas Utility Court in shape of decree would be considered as a declaration for upholding decision of Oil and Gas Regulatory Authority or otherwise---Final verdict of Gas Utility Court in such regard under Gas (Theft Control and Recovery) Act, 2016 prevailed---Where a consumer or licensee company had approached Gas Utility Court under Gas (Theft Control and Recovery) Act, 2016 at first instance before raising of dispute before Oil and Gas Regulatory Authority, the jurisdiction of Oil and Gas Regulatory Authority could not be exercised by virtue of doctrine of election of remedies, though Oil and Gas Regulatory Authority had an authority to consider such aspect independently as a regulator---Final verdict of Gas Utility Court prevailed in such regard and parallel proceedings were not permissible over and above the proceedings of Gas Utility Court---Constitutional petition was disposed of accordingly.

SNGPL v. Director (Legal) President Secretariat (Public), Islamabad PLD 2018 Isl. 51; FGEHF v. Malik Ghulam Mustafa PLD 2019 Isl. 1; A. Rehman Malik v. State PLD 2010 Lah. 353; Muslim Commercial Bank Ltd. v. Federation of Pakistan PLD 2019 Sindh 624; Tanveer Hussain v. Divisional Superintendent, Pakistan Railways PLD 2006 SC 249; Syed Mushahid Shah v. FIA 2017 SCMR 1218; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Engineer Iqbal Zafar Jhagra v. Federation of Pakistan PLD 2013 SC 224; Federation of Pakistan v. Saeed Ahmed Khan 2016 PLC (C.S.) 48; Federation of Pakistan v. Saeed Ahmad Khan 2015 CLC 1797; Muhammad Nawaz v. Principal Secretary to Prime Minister of Pakistan PLD 2017 Isl. 207; OGRA v. SSGCL 2018 SCMR 1012; Al-Muiz-1 CNG v. Federation of Pakistan 2019 CLC 851; SNGPL v. OGRA PLD 2020 Lah. 367; Bhimra Textile Mills (Pvt.) Ltd. v. OGRA 2019 CLC 1247; Muhammad Azam Khan Niazi v. General Manager, SNGPL, Islamabad 2019 CLC 1998; SNGPL v. OGRA 2016 CLC 562; Anjum Niaz Ch. v. Managing Director, SNGPL 2011 MLD 1402; SNGPL v. Muhammad Riaz Bhatti 2017 CLC 745; SNGPL v. Nasir Mehmood Khan 2017 CLC 411; Rana Textile Ltd. v. SNGPL 2016 YLR 1; SNGPL v. Wafaqi Mohtasib 2015 MLD 1029; Samina Anwaar Ullah Khan v. General Manager, SNGPL PLD 2012 Lah. 554; Mehran Filling Station v. OGRA 2015 MLD 1514; Mst. Ghazala Hassan v. City District Government, Karachi 2009 CLD 710; Hascol Petroleum Ltd. v. Federation of Pakistan 2015 YLR 600; SNGPL v. Arbab Najeebullah PLD 2015 Bal. 110; The State v. Syed Baqir Ali Naqvi 2014 SCMR 671 and Mir Rehman Khan v. Sardar Asad Ullah Khan PLD 1983 Quetta 52 ref.

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

----S. 3---Regulated activity---Gas Utility Court---Jurisdiction---Gas utility company is not entitled to raise a dispute of regulated activity under Gas (Theft Control and Recovery) Act, 2016, before Gas Utility Court as it exclusively falls within the domain of Oil and Gas Regulatory Authority.

(h) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 25, 26 & 29---Regulated activity---Offence, commission of---Prosecution---On the basis of any report or on complaint, if Oil and Gas Regulatory Authority comes to a conclusion that any offence in terms of S.25 of Oil and Gas Regulatory Authority Ordinance, 2002, has been committed by any undertaking, company, licensee, person regarding regulated activity, causing damage to any facility, plant, equipment, material or a property or stealing of petroleum, the Oil and Gas Regulatory Authority can prosecute such person under the provisions of Ss. 25 & 26 of Oil and Gas Regulatory Authority Ordinance, 2002---No Court can take cognizance under S.29 of Oil and Gas Regulatory Authority Ordinance, 2002, of such offences.

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

----Ss. 3, 14, 15, 16, 17, 18, 19 & 21---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss. 6, 11 & 12---Oil and Gas Regulatory Authority Complaint Resolution Procedure (for Natural Gas, LPG, CNG and Refined Oil Products) Regulations, 2003, Regln. 3---Commission of offence---Gas Utility Court---Jurisdiction---Res judicata, principle of---Applicability---Any complaint regarding offence defined in Ss. 14 to 19 of Gas (Theft Control and Recovery) Act, 2016 are exclusively triable by Gas Utility Court---All punishments/ penalties are considered to be in addition to similar type of prosecution under other laws in terms of S. 20 of Gas (Theft Control and Recovery) Act, 2016---Once an order, judgment or decree has been passed under Gas (Theft Control and Recovery) Act, 2016, it creates a bar to review such order in any manner by Oil and Gas Regulatory Authority under Oil and Gas Regulatory Authority Ordinance, 2002 on the principle of res judicata---No consumer, gas utility company or Oil and Gas Regulatory Authority can re-agitate, re-consider or re-examine such decision under Regln. 4(d) of Oil and Gas Regulatory Authority Complaint Resolution Procedure (for Nature Gas, LPG, CNG and Refined Oil Products) Regulations, 2003.

Asim Iqbal for Petitioner.

Dr. Yasser Aman Khan for Respondents Nos.1 and 2.

Barrister Muhammad Mumtaz Ali, A.A.G. for Respondent No.3.

P L D 2021 Islamabad 405

Before Babar Sattar, J

ABDUL KHAMEED---Appellant

Versus

MUHAMMAD SHABBIR and another---Respondents

R.S.A. No. 11 of 2017, heard on 22nd February, 2021.

(a) Constitution of Pakistan---

----Arts. 9 & 14---Malicious prosecution---Security of person---Dignity of man---Subjecting a person to malicious prosecution could interfere with the right to liberty guaranteed under Art. 9, the right to dignity under Art. 14 and the right to be treated in accordance with law guaranteed under Art. 4 of the Constitution. Such prosecution would inflict financial hardship, litigation cost, mental anguish as well as loss of reputation on the person who was on its receiving ends having been falsely implicated in a matter.

(b) Constitution of Pakistan---

----Arts. 14 & 25---Malicious Prosecution---Damages, recovery of---Injury, estimation of---First Information Report was registered by the appellant against the respondents---Allegation that respondents were involved in theft of the gate of appellants---Even female relatives of the respondents were named in FIR---Respondents were arrested and remained behind bars for 22 days---First Information Report was subsequently discharged---Trial Court granted amount of Rs.500,000/- as damages---Appellate Court reduced the amount to Rs. 200,000/- on the basis that the recovery of Rs.5 lacs as compensation to illiterate villager was excessive---Held, that value of a citizen's liberty, dignity and reputation did not rest on whether such person was the resident of a village or an urban area---Reasoning of Appellate Court was invidious, smacked of discrimination of the sort abhorred by the Constitution, protection against which had been guaranteed by Art. 25 of the Constitution---Concurrent Courts agreed that respondents were subjected to malicious prosecution---Order reducing damages was set aside---General cost had been awarded to the respondents as Rs.200,000/- in view of the conduct of the appellant.

(c) Malicious prosecution---

----Damages, recovery of---Persons accountable---Scope---Plaintiffs in a suit for malicious prosecution could not recover damages on the basis of humiliation suffered at the hands of police/prison authorities or inmates, but he had a right to be compensated by the person who was the immediate cause of loss and hardship out of false accusation which resulted in incarceration and suffering.

(d) Malicious prosecution---

----Damages, quantum of---Estimating injury, elements of---Scope---No objective standards for estimating injuries could be found but an inference could be drawn that person subjected to malicious prosecution had suffered loss of time, litigation expenses, mental suffering due to penal charges/arrest/putting behind bars, loss of his right to liberty/dignity, and consequent reputational harm.

(e) Malicious prosecution---

----Principles regarding initiation/procedure of claim against malicious prosecution---Enumerated.

Following are the principles regarding initiation/procedure of claim against malicious prosecution:

(a) a plaintiff has been prosecuted by the defendant despite the absence of reasonable and probable cause for such prosecution;

(b) the defendant acted maliciously and not to further the ends of justice;

(c) the prosecution ended in favour of the plaintiff; and

(d) it caused damage to the plaintiff.

(2). It is not sufficient to establish malice alone, but malice must be accompanied by the absence of reasonable and probable cause to trigger the process of law.

(3). Even when the prosecution is not entirely mala fide at the time of its initiation, its continuation after a disclosure that facts upon which it was based are not true may give rise a claim for damages for malicious prosecution.

(4). The last element in a claim for malicious prosecution i.e. damages suffered, need not be specifically proved or quantified in the event that the claim includes damages for loss of liberty, dignity, reputation and mental anguish and can be awarded by the court in its discretion in view of the circumstances of the case, starting from a reasonable baseline given that rights to liberty and dignity are inalienable rights and can only be interfered with in accordance with law.

(5). The courts are under an obligation to ensure that lack of social or economic equality in the society does not culminate into legal inequality. Granting of damages for malicious prosecution is a means to hold to account a person who abuses the process of law against another and to offer recompense to the person on the receiving end of such abuse. Even though restitution is not possible in a claim involving loss of liberty and dignity, the court must aim to award damages that are reasonably proportionate to the harm inflicted.

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

----S. 151---Malicious Prosecution---Damages, quantum of---Reasonable and proportionate damages---Civil Court, power of---Discretionary jurisdiction---Scope---Where no damages were quantified by the plaintiff a court had discretionary jurisdiction to grant damages for loss of liberty/dignity/mental anguish that was reasonably proportionate to what the plaintiff could be presumed to have suffered.

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

----S. 100---Courts of second appeal, power of---Malicious Prosecution---Damages, quantum of--- Re-quantifying damages--- Scope--- Court (of second appeal) was not vested with jurisdiction to re-quantify damages on its own accord in exercise of powers under S.100 of C.P.C.

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

----Ss. 35 & 35B---Frivolous litigation---Estimating cost---Elements to be considered by Court---Cost incurred by public exchequer---Scope---Due to frivolous litigation all components of criminal justice system were clogged and consumed i.e. investigation, prosecution, courts and prisons---Such litigations impede access to justice for everyone bydelaying adjudication of genuine grievances and depleting public resources---Cost incurred by the public exchequer due to frivolous litigation could not be objectively estimated by a court, but such cost was certainly a consideration to be borne in mind by the court while awarding costs under Ss. 35 & 35B of the Act.

Raja Basharat Hussain Abbasi for Appellant.

Syed Muhammad Ali Bokhari for Respondents.

P L D 2021 Islamabad 422

Before Aamer Farooq, J

TEHREEM AAMIR---Petitioner

Versus

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

Writ Petition No. 945 of 2018, decided on 29th April, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower---"Conditional dower"---Scope---Plaintiff, along with other reliefs, filed a suit for recovery of dower amount as expenses for performing Ziarat of sites in Iraq, Iran and Syria and performance of Hajj---Judge Family Court turned down the claim on the ground that promise to take the spouse for Ziarat was not dower and that such claim was actionable before the court of plenary jurisdiction---Appeal was also dismissed---Validity---Dower need not be in the form of tangible goods but also could be in the form of services---Factum of taking of spouse for Ziarat and Hajj fell within the concept of 'dower' per se, however, it could be seen from nikahnama that a rider was added that if husband had ability for the same---Dower could not be a conditional promise or consideration; it had to be absolute, even though it might be deferred or Mu'wajjal---Conditional aspect of the promise had taken the clause out of the ambit of 'dower'---Courts below had rightly held that it was an actionable claim---Even if it was regarded as dower, even then, the plaintiff had not led any evidence as to the means of defendant, in support of her claim---No jurisdictional or legal defect was found in respect of findings rendered by the courts below---Constitutional petition was dismissed.

Surah Al-Baqra (Ayat 2:237); Surah An-Nisa (Ayat 4:19); Surah An-Nisa (Ayat 4:24); Surah An-Nisa (Ayat 4:4); Surah Al-Ma'idah (Ayat 5:5); Sahih al-Bukhari Volume-I, Pages 727, 1149 and 95, Chapters 50 and 135; Saadia Usman and another v. Muhammad Usman Iqbal Jadoon and another 2009 SCMR 1458; Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Abdul Rafay Butt v. Additional District Judge and others PLD 2015 Lah. 258; Mst. Samina Ali v. Station House Officer PLD 1995 Lah. 629; 'Mst. Shaista Shahzad and another v. Additional District Judge and others PLD 2012 Lah. 245; Mannan Feroz v. Shomaila 2015 YLR 1235; Mohd. Ahmed Khan v. Shah Bano Begum and others AIR 1985 SC 945; Muhammad Tariq v. Mst. Shaheen and 2 others PLD 2006 Pesh. 189; 'Abdul Rashid and Another v. Mst. Shaheen Bibi and 2 others PLD 1980 Pesh. 37; Mst. Shazia and another v. Muhammad Nasir and 2 others 2014 YLR 1563; Sohail v. Mst. Nazia Amin and 3 others 2015 CLC 1374; Surah Al-Baqra (Ayat 238); Surah Al-Baqra (Ayat 239); Surah An-Nisa (Ayat 3); Surah An-Nisa (Ayat 5); Surah An-Nisa (Ayat 18); Surah An-Nisa (Ayat 20); Surah An-Nisa (Ayat 25); Surah Al-Maidah (Ayat 4); Principles of Muhammadan Law by D.F. Mullah; Haji Ajab Gul and 3 others v. Rahim Gul and 28 others 1991 SCMR 2500 and Abdul Rashid and another v. Mst. Shaheen Bibi and 2 others PLD 1980 Pesh. 37 rel.

Malik Muhammad Zubair and Muhammad Akram for Petitioner.

Raja Muhammad Akbar for Respondents.

Muhammad Ali Raza, Raja Khalid Mahmood Khan and Kashif Ali Malik, Amici Curiae.

P L D 2021 Islamabad 431

Before Babar Sattar, J

MUBEEN AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 631-B of 2021, decided on 30th July, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 377-A---Sexual abuse---Bail, refusal of---Child victim---Scope---Allegation against accused was that he attempted to commit an offence and not that he committed an unnatural act with the seven years old son of the complainant---Victim in the case had recorded his statement with the police and had stated that he was subjected to repeated instances of sexual abuse by the accused and it was out of fear of his parents as well as out of fear of the accused that he had not previously disclosed the abuse he had suffered---It was only after his mother herself witnessed that his trouser was pulled down in the shop of the accused and that he revealed the whole story to his mother and subsequently to his father---Sufficient material was available on record connecting the accused with the offence---Seven years old child could not be expected to vigorously protest unwanted actions of a sexual predator (due to fear or shock) that would result into a physical struggle resulting in marks of violence in each such case---Argument of the accused that medical report was reflecting no bruises on the body of the child was evidence of lack of an offence under S.377-A, P.P.C., having been committed was without force---Petition for grant of bail was dismissed, in circumstances.

Arbab Ali v. Khamiso and others 1985 SCMR 195; Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Waseem Bashir v. The State 2016 PCr.LJ 454; Ghulam Hussain v. The State 2020 YLR 1959 and Sakhi Rehmat v. The State 2021 MLD 75 ref.

Suleman v. The State 2008 YLR 2722 distinguished.

Mazhar Ali v. The State and another 2019 PCr.LJ 899 not fol.

State v. Abdul Khaliq PLD 2011 SC 554 and Raja Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146 rel.

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

----Ss. 337-A & 377-B---Sexual abuse---Scope---Object of introducing S.377-A, P.P.C. is to protect children, who being a vulnerable segment of the society are unable to guard against and comprehend the consequences of actions of others and even the consequences of their own actions---It is for this purpose that through promulgation of S. 377-A, P.P.C., the State has assumed the obligation to protect children from any form of sexual abuse---Section 377-A, P.P.C., does not require the consummation of sexual intercourse of any sort---Mere persuasion, inducement or encitement to engage a minor less than eighteen years of age in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or stimulation of such conduct constitutes the offence of sexual abuse---Thus, mere fondling a child, which would inflict no marks of violence or hurt on the body of such child, would constitute sexual abuse---Manner in which ingredients of the offence have been defined in S. 377-A, P.P.C., and the punishment prescribed in S. 377-B, P.P.C. make the legislative intent unequivocal.

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

----S. 497---Bail---Scope---Where the offence falls outside the non-prohibitory clause of S.497(1), of Cr.P.C., bail is to be granted as a matter of course and rejection of the same is an exception---Where, however, an offence falls within the prohibitory clause, bail can only be granted if the Court comes to the conclusion that there is no reasonable ground for believing that the accused has committed a non-bailable offence or where an accused makes out a case of further inquiry into his guilt or in case the accused is under the age of 16 years or is sick or infirm.

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

----S. 497---Constitution of Pakistan, Arts. 4 & 9---Bail---Rights of individuals to be dealt in accordance with law---Security of person---Scope---An individual has the right to liberty, to be presumed innocent until proven guilty and not to be subjected to pre-trial punishment---Society, on the other, has a collective interest in maintaining safety, affording citizens protection against crime and violence and to ensure that no one is allowed to obstruct justice---These can seem contradictory rights---Bail is denied in cases where the accused is a flight risk or is likely to engage in obstruction of justice if released on bail or is accused of an offence of such nature that his release creates a risk that he may engage in a repetition of the offence charged or that his conduct is such that releasing him into the society would subject other individuals within the society to the possibility of harm.

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

----S. 377-A---Criminal Procedure Code (V of 1898), S. 154---Sexual abuse---Child victim---Registration of FIR---Delayed FIR---Scope---Criminal justice system in relation to S. 377-A, P.P.C., must make allowance for the child victim's inability to comprehend the inappropriateness of sexual abuse that he/she suffers and the fear factor that may lead to non-disclosure of the abuse suffered or delayed disclosure of such abuse or self-blame due to the fear of being disbelieved by parents or family members or out of fear of being hurt by molester---When it comes to children as victims of sexual abuse, the ordinary rules regarding the need for the victim of an offence reporting a crime to the police without delay cannot be applied in a straitjacket manner.

M. Inam Mughal for Petitioner.

Yasir Ali Raja for the Complainant.

Shazeb Nawaz Khan, State Counsel.

P L D 2021 Sindh 1

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUHAMMAD AHMED SIDDIQUI and another---Appellants

Versus

ABDUL ABID, ADVOCATE and another---Respondents

1st Appeals Nos. 76 and 77 of 2018, decided on 30th July, 2020.

(a) Jurisdiction---

----Assumption of jurisdiction---Scope---Neither a court could assume jurisdiction not conferred by law, nor such jurisdiction could be assumed or entertained by consent of parties, but doctrine of assuming jurisdiction by courts was strictly based on the law conferring a particular jurisdiction---Expression "jurisdiction" referred to legal authority to administer justice in accordance with methods and avenues provided subject to limitation imposed by law and whenever jurisdiction was conferred to any court of law, the same was subject to a number of prerequisites, and such prerequisites should be complied with.

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

----O. XXXVII, Rr.1, 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---"Iqrarnama"---Scope---Suit for recovery---Summary Procedure on Negotiable Instrument---Jurisdiction conferred by O.XXXVII, C.P.C.---Adjudication by Trial Court on summary suit under O.XXXVIII, C.P.C.---Scope---Claims of damages on account of causing loss of health, loss of valuable time, mental torture, agony and financial loss could not be decided in summary suit under O.XXXVII, C.P.C.---"Iqrarnama" could neither be construed or be decipherable as a "promissory note" as it was not covered in sphere of any other "negotiable instrument"---After institution of a summary suit under O. XXXVII, C.P.C. based on an "iqrarnama" , then Trial Court first ought to decide question of jurisdiction and return such plaint with direction to institute such suit before court of ordinary jurisdiction, rather than admitting such suit under O. XXXVII, C.P.C.

Mohammad Moazam Khan v. Mohammad Iqbal and another 2019 CLD 1241; Sheikh Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 and Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Sons PLD 1957 (W.P) Kar. 445 rel.

(c) Maxim---

----"Actus curiae neminem gravabit" meaning that an act of the court should prejudice no man was applicable in every proceeding which was founded upon justice or good sense and obligated a safe and sound guidebook for administration of law and justice.

(d) Damages---

----"Mental shock, agony and torture"---Burden of proof---Scope---Mental shock, agony and torture implied a state of mind which could only be proved by a positive assertion of one who experienced the same.

1996 CLC 627 rel.

(e) Administration of justice---

----Adjudication---Principles---Coram non judice---Scope---Obligatory duty of a Judge/Court was to apply correct law to a lis and it was not upon litigant to point out which law that was appliable---Primary duty of Court was to do justice and to apply correct law to facts of a case and same was exclusively the duty of the Judge/Court---To perpetuate an error was no virtue but to correct the same was compulsion of judicial conscience and legal maxim "coram non judice" indicated a proceeding which was outside authority of a Judge or without legal jurisdiction.

Muhammad Yousuf and others v. Trustees of the Port of Karachi and others 2020 YLR 578 rel.

Muhammad Shahid Shah for the Appellants (in Ist.A. No.76 of 2018 and for Respondents Nos.1 and 2 in Ist.A. No.77 of 2018).

Abdul Abid, Appellant in person (in Ist.A. No.77 of 2018 and Respondent No.1 in Ist.A. No.76 of 2018).

P L D 2021 Sindh 13

Before Muhammad Shafi Siddiqui, J

The PROVINCE OF SINDH through Secretary, Education and Literacy Department, Karachi---Petitioner

Versus

The ISLAMIC EDUCATION TRUST through Official Assignee, Karachi and others---Respondents

C. Ps. Nos. S-598 and 999 of 2013, decided on 9th November, 2017.\

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

----Ss. 15 & 3---Privately Managed Schools and Colleges (Taking Over) Regulation [MLR No.118 of 1972], Regln. 4---Eviction petition---Scope---Petitioner assailed several orders passed by Rent Controller and Additional District Judge---Validity---Held; ejectment application was filed in accordance with law and the applicability of S. 3 of Sindh Rented Premises Ordinance, 1979, was resisted by the Rent Controller as well as by the Appellate Court on the strength of the fact that MLR 118 of 1972 was only in respect of running the management of schools and colleges and the title of property was not altered---Relationship of landlord and tenant could not be deemed to be non-existent or ceased to be in existence by virtue of MLR 118 of 1972---Impugned orders were not found to be either void or without jurisdiction---Constitutional petitions were dismissed.

Director of Schools v. Zaheeruddin 1996 SCMR 1767; Government of Punjab v. Anjamun-i-Tarraqi-i-Talim PLD 2011 Lah. 258; Syed Muhammad Alam v. Syed Mehdi Hussain PLD 1970 Lah. 6; Islamia Law College v. Islamic Education Trust C.P.L.A. No.869-K of 2001; Government of Punjab v. Board of Foreign Missions PLD 1988 SC 382 Sister Marry John v. Government of Punjab 1999 SCMR 2235 and Province of Punjab v. Muhammad Ilyas 2000 SCMR 893 ref.

Government of Sindh v. Delhi Anglo Arabic College 2009 SCMR 315 and Government of Sindh v. Khalil-ur-Rehman Civil Appeal No.1544 of 2000 rel.

Ziauddin Junejo, A.A.G. along with Ghulam Mustafa Mahesar, A.A.G. and Aale Maqbool Rizvi, A.A.G. for Petitioners (in both the Petitions).

Mureed Ali Shah for Respondent No.1 (in both Petitions).

Nemo for Respondent No.2 (in C.P. No. 598 of 2013 and Respondents Nos. 2 to 11 in Petition No. 999 of 2013).

P L D 2021 Sindh 21

Before Aqeel Ahmed Abbasi and Rashida Asad, JJ

AHMED KULI KHAN KHATTAK and another---Appellants

Versus

CREEK MARINA (SINGAPORE) PVT. LTD. through Chief Executive Officer and 6 others---Respondents

High Court Appeal No. 119 of 2012, decided on 20th October, 2020.

Specific Relief Act (I of 1877)---

----Ss. 12, 9 & 54---Civil Procedure Court (V of 1908), S. 148 & O.XXXIX, Rr. 1 & 2---Suit for specific performance of contract---Sale Purchase Agreement ("SPA") for purchase of shareholding of company---Temporary injunction, grant of---Furnishing of Bank Guarantee as condition for grant of temporary injunction---Enlargement / extension of time for furnishing such Bank Guarantee---Scope----Plaintiff sought specific performance of contract, which was an 'SPA', on ground that defendant had illegally issued termination letter for same, and that plaintiff was ready and willing to perform plaintiff's side of the contractual obligations at all times---Trial Court granted plaintiff's application for injunctive relief under O.XXXIX, Rr. 1 & 2, C.P.C. with condition that plaintiff submit Bank Guarantee equal to sales consideration---Plaintiff vide application under S. 148, C.P.C. sought extension of time for furnishing of such Bank Guarantee which was rejected by Single Judge of High Court---Validity---Plaintiff seeking equitable remedy of specific performance must always be willing and ready to perform plaintiff's part of the contract, presuming that such plaintiff had ability to furnish finances required to perform said contract---Plea taken by plaintiff that amount of finance required was substantial and plaintiff needed more time to comply with same was not tenable and failure to comply with said condition with exposed lack of bona fide of plaintiff's claim that plaintiff was ready and willing to perform its contractual obligations---No illegality therefore existed in impugned order of Single Judge of High Court---High Court appeal was dismissed, in circumstances.

Khawaja Shamsul Islam for Appellants.

Arshad M. Tayebaly Respondents Nos. 1 to 5.

Nemo for Respondents Nos. 6 and 7.

P L D 2021 Sindh 25

Before Muhammad Saleem Jessar, J

AWAIS and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-73 of 2019, decided on 26th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd and common intention---Compounding of offences---Compromise between Muslims and non-Muslims---Scope---Accused filed an application under S.345(5), Cr.P.C. for seeking leave to enter into compromise with the legal heirs of the deceased---Prosecutor General raised an objection that the legal heirs of the deceased were non-Muslims whereas the accused persons were Muslims, therefore, no compromise could be effected between them---Held; under the scheme of Criminal Procedure Code, 1898 there was no restriction or category provided for any competence or otherwise of a person entering into a compromise---Offence was compoundable, besides legal heirs had waived the right of their "Qisas and Diyat", hence, there was no impediment, which could restrain or restrict the parties for entering into compromise---Accused persons were acquitted of the charge in terms of compromise---Appeal, along with listed applications, was disposed of accordingly.

Abdul Majeed v. The State 2001 PCr.LJ 318 rel.

Ashique Ali Jatoi for Appellants.

P L D 2021 Sindh 28

Before Arshad Hussain Khan, J

MAHMOODA TAPAL and another---Plaintiffs

Versus

STANDARD CHARTERED BANK (PAKISTAN) LIMITED and 5 others---Defendants

Suit No. 1492 of 2011, decided on 6th March, 2019.

(a) Contract---

----Principles---Validity of a contract---Coercion/undue influence/ duress---Document could not constitute a valid "contract" if same appeared to have been obtained under undue influence and a valid contract also required consent of parties which must be free, mutual and communicated to each other---Consent was not free when obtained through duress and undue influence---Transactions between parties enjoying unequal bargaining position had to be viewed with suspicion and undue influence could also be inferred from such circumstances---Undue influence may be inferred when benefit was such as the taker had no right to demand either in law or equity and when grantor had no rational motive to give same.

Hamida Begum v. Murad Begum PLD 1975 SC 624 rel.

(b) Contract---

----Bailment, law of---Concept of law of bailments---Deposit for safe custody---Bank lockers---Duty of care of Bank---Liability of Bank for destruction/theft of property entrusted for safe custody---Scope---Deposit for safe custody was a branch of law of bailments and bailment was delivery of movable property by one person (the bailor to another, the bailee) on condition that it shall, in due course, be redelivered to bailor on his/her order----Person who hired a locker retained some control over it by having one key with himself but if said locker could be operated without any key then at once any impediment in the way of control and possession of the Bank to whom the locker belonged and in those strong-room it was to be found, would be removed and it could be said that such Bank was in position of a bailee---When Bank was bailee, then care which Bank was obliged to take was such care as an ordinarily efficient and prudent person could take in similar circumstances---Bank would not be liable if property held in safe custody was destroyed by fire or otherwise, lost or stolen unless there was negligence on the part of Bank, and degree of negligence required to establish liability would depend on the relevant circumstances of a case.

(c) Suit for damages---

----Suit for loss suffered due to loss/theft of valuables of plaintiff from safe deposit locker at defendant Bank---Deposit for safe custody---Bank lockers---Duty of care of Bank---Duty of care of Bank to ensure safety and well being of valuables kept in safe deposit lockers---Negligence on part of Bank---Scope---Contention of plaintiffs, inter alia, was that such valuables were stolen/lost due to omission, commission, complicity and/or negligence of defendant Bank and they were accordingly entitled to decree for compensation to amount of valuation of lost items and for damages on account of trauma and mental agony---Validity---Bank owed a duty of protection and safety in respect of such lockers however, determination of questions as to whether same had been breached or not; whether any negligence could be attributed towards defendant Bank, and further whether locker-holder(s) suffered any loss due to missing contents of locker, would only be possible after discussion of the evidence led by the parties---In order to substantiate claim, plaintiffs had to firstly show that such valuables mentioned in plaint were in fact held in the locker---Plaintiffs had to prove by independent evidence regarding quantity, quality and value of the property claimed and in present case, no proof was presented to show that such valuables were kept in said locker and no expert witness had been produced to show that jewellery/valuables mentioned in the list provided in plaint were actually worth to amount claimed---Question of breach of duty on part of the defendant Bank would arise only after the plaintiffs successfully established their claim of missing valuables from subject locker, which was not done in the present case---Suit was dismissed, in circumstances.

Mst. Sobia Bano v. EFU Life Assurance Ltd. through Chairman and another 2018 CLD 1313; State Life Insurance Corporation of Pakistan through Chairman and another v. Muzafar Ali 2018 CLD 1300; Muhammad Luqman v. Bashir Ahmed PLD 1994 Kar. 492; Muhammad Ashraf v. Shah Noor Khan and another 1996 MLD 1819; Mst. Safia v. Mst. Bibi and 14 others 2005 MLD 646; Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954; Mst. Alam Bibi v. Akbar Ali and others 2001 MLD 2007; Muhammad Ibrahim through legal heirs and others v. Mst. Basri through legal heirs and others 1998 SCMR 96; Mst. Mohsina Saeed Tauni v. Muhammad Asif and others PLD 2005 Kar. 585; Maqbool Ahmed v. Pakistan Agricultural and others 2006 SCMR 470; M.C.B. Bank Ltd. through Authorized Representative v. State Bank of Pakistan through Governor and 2 others 2010 CLD 338 and Mst. Mumtaz Begum and others v. Abdur Rashid and others 1988 CLC 2023 ref.

(d) Suit for damages---

----"Mental agony, mental torture and trauma"---Burden of proof---Scope---Question of mental agony was required to be established through cogent and reliable evidence and mere feeling of resentment in one's mind was not sufficient to establish mental agony---For person claiming mental torture/agony or damage/injury, initial burden would lie upon such person to lead evidence on same---General damages for mental torture, agony, defamation and financial loss, were to be assessed following "rule of thumb" and said exercise fell in the discretionary jurisdiction of court, which had to decide same per facts and circumstances of each case.

Government of Khyber Pakhtunkhwa and others v. Syed Jaffar Shah 2016 MLD 223 and Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009 rel.

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

----Art. 72---Document, proof of---Scope---Document(s) placed on record or exhibited without objection of opposite party, if not duly proved, could not be considered as admissible piece(s) of evidence.

Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160 rel.

(f) Administration of justice---

----Party approaching a court for seeking some relief had to stand on its own legs for such purpose and no benefit of any weakness in the case of the party opposite could be extended to such a party.

Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 2030 rel.

Zahid F. Ebrahim for Plaintiffs.

Hassan Arif for Respondents Nos. 1 and 6.

P L D 2021 Sindh 57

Before Adnan Iqbal Chaudhry, J

SADAN GENERAL TRADING LLC through Local agent KZK Industrial and Commercial Co.---Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN through Chairman and another---Defendants

Suit No. 1740 of 2014, decided on 25th June, 2020.

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

----Ss. 73 & 74---Loss and compensation---Proof---Even if a claimant is unable to prove actual loss / damage under S.73 of Contract Act, 1872, that by itself is not enough to oust compensation under S.74 of Contract Act, 1872.

Sibte Raza v. Habib Bank PLD 1971 SC 743 ; Stockloser v. Johnson (1954) 1 AER 630 and Trustees of the Port of the Karachi v. Ghulamali Habib Rawjee PLD 1961 Kar. 623 rel.

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

----Ss. 14(2), 30 & 33---Contract Act (IX of 1872), Ss. 73 & 74---Objection to award of contract---Loss and compensation, determination of---Performance guarantee---Encashment---Plaintiff company was awarded contract for supply of sugar and for the purpose it submitted performance guarantee to the Trading Corporation of Pakistan---Failure to supply sugar in due course of time---Corporation cancelled the contract and forfeited performance guarantee---Arbitrator rejected the claim of loss suffered by Corporation but awarded compensation to the extent of half of the performance guarantee---Validity---For the purposes of determining reasonable compensation under S.74 of Contract Act, 1872, assessment by Court, whether the party relying on forfeiture clause had suffered loss or not was the only one of the ways to see whether forfeiture was unconscionable or highly penal in nature---Ultimate analysis remained one of unconscionability and the extent of penalty---As to what was unconscionability and what was reasonable compensation, that was a question of fact and the Court or arbitrator had to determine in peculiar facts and circumstances of each case---For what could be seemed reasonable to the Court in one set of circumstances could not be seemed reasonable in another---Compensation could follow under S. 74 of Contract Act, 1872, even if no loss was proved---Even finding of breach of contract was not sufficient to entitle Trade Corporation of Pakistan to forfeit the entire amount---Objections to the award filed by both the parties were dismissed---Award was made rule of the Court.

Province of West Pakistan v. Mistri Patel & Co. PLD 1969 SC 80; Sibte Raza v. Habib Bank PLD 1971 SC 743; Space Telecom (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101; Khanzada Muhammad Abdul Haq Khan Khattak v. WAPDA 1991 SCMR 1436 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 rel.

Ms. Sana Akram Minhas for Plaintiff.

Irftifa-ur-Rehman for Defendant No.1.

Hussain Bohra, Assistant Attorney General for Pakistan for Defendant No.2.

P L D 2021 Sindh 67

Before Nazar Akbar, J

Messrs MEHRAN OILS (PVT.) LIMITED---Appellant

Versus

OIL AND GAS REGULATORY AUTHORITY, ISLAMABAD---Respondent

M.A. No. 31 of 2019, decided on 18th May, 2020.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S.12(2)---Appeal---Regulating activity---Scope---When decision is 'concerning a regulating activity' which adversely affects licensee, the aggrieved licensee can approach High Court as no other adequate remedy is provided in Oil and Gas Regulatory Authority Ordinance, 2002 to deal with such decision of Authority.

(b) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 12(2) & 45---Pakistan Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016, R. 12(1)(c), Schedule-V, Part-A---Appeal---Existing blending plant---Phrase 'notwithstanding anything contained in the Ordinance'---Scope---Appellant was running lube and oil blending plant prior to promulgation of Oil and Gas Regulatory Authority Ordinance, 2002---Appellant assailed letter issued by Oil and Gas Regulatory Authority imposing additional conditions on its licence---Validity---Use of phrase 'notwithstanding anything contained in the Ordinance' and its repetition in relevant Rule of Pakistan Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016, indicated that decision and direction contained in letters in question were not applicable to appellant who fell within the category of existing operations/existing blending plants which were in field before commencement of Oil and Gas Regulatory Authority Ordinance, 2002---Non-obstante clause was repeated by Pakistan Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016,making the Authority while making Rules in exercise of powers conferred on the Authority wherever it referred to the existing lubricant blending plant, which amounted to acknowledgement of the Authority that Oil and Gas Regulatory Authority Ordinance, 2002 and Pakistan Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016, would not affect or apply on existing Lube Oil blending plant---High Court refrained the Authority from applying additional condition on the licensees to whom licences were granted under R.13 of Pakistan Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016, including appellant as they were already carrying out regulated activities of running lube oil blending plants immediately before commencement of Pakistan Oil and Gas Regulatory Authority Ordinance, 2002, and requirement of Part-A of Schedule-V of R. 12 (1)(c) of Oil and Gas (Refining, Blending, Transporting, Storage and Marketing) Rules, 2016,were not enforceable against them---Appeal was allowed in circumstances.

Shahenshah Hussain for Appellant.

Asim Iqbal for Respondent.

Ishrat Zahid Alvi, Assistant Attorney General.

P L D 2021 Sindh 76

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

PAKISTAN STATE OIL COMPANY LIMITED---Appellant

Versus

Messrs JAWED PERVAIZ ENTERPRISES---Respondents

High Court Appeal No. 24 of 2018, decided on 30th September, 2020.

"Standard Operating Procedures" (SOP)---

----Connotation---Dispute between parties was with regard to theft/ pilferage of furnace oil carried by transporter and supplied to oil company---Claim of oil company was to the extent of shortage made in 25 trips but the Arbitrator reduced the quantum to 10 trips---Single Judge of High Court made award rule of the Court with the modification that the loss was reduced to the extent of last trip when theft was detected---Validity---Standard Operating Procedures are adopted by companies to set routine procedures that prescribe accepted principles or practices for completing any activity or functions helpful for better running of the company internally and externally both---Certain standard procedures are being adopted by companies for their internal and external better functioning---Standard Operating Procedures are in fact routine procedures developed by certain companies either in written or in verbal form or are therefore, customary procedures and carry the same force as that of directives and instructions---Violation of SOPs can result in imposition of fine and penalty or other administrative measures as the case may be---Standard Operating Procedures though are internal arrangements of a company but these SOPs could be applied to contractors, clients/customers of the company, who to a certain extent are obliged to abide by these SOPs of companies, subject to the conditions that SOPs should not be violative of fundamental principles of law---Standard Operating Procedures are being adopted almost in every company and are considered to be integral part for an effective/quality system to be adopted and followed and to facilitate consistency in smooth running of a company which may include instructions/directions/worksheets/derivatives and other methods for adoption and application of such SOPs---Standard Operating Procedures describe either regular or routine working procedures conducted and followed within an organization and procedures to be adopted while dealing with person, institutions etc. to avoid any future eventuality, if any---Some SOPs are designed in such a way to maintain quality control and quality assurance of a company and some SOPs are designed in such a way to ensure compliance with the government regulations etc.---Standard Operating Procedures would fail if not followed--- Usually SOPs are designed in a concise step by step format but such is not a decisive factor to be considered while drafting SOPs of a company---Relevant SOP of oil company mentioned that recovery would be made to the extent of value of product embezzled or product pilfered on each trip through fraudulent device or manipulation in calibration---Transporter was liable for penalty to the extent of embezzled quantity found short/pilfered on the trip manipulated or calibrated and not beyond that--- Division Bench of High Court maintained the judgment and decree passed by Single Judge of High Court---Intra court appeal was dismissed, in circumstances.

Wadero Muhammad Tayyab v. Akbar Hussain and another 1989 MLD 3952; Muhammad Akhtar v. Mst. Manna and others 2001 SCMR 1700; Saibesh Chandra Sarkar v. Bijoychand Mohatop Bahadur AIR 1922 Calcutta 4; Khimji v. Nathibai AIR 1925 Sindh 42; Devani v. Wells 2019 SCMR 711; Churchill Falls (Labrador) Corporation v. Hydro Quebec 2019 SCMR 454 and Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98 distinguished.

Messrs Mechanised Contractors of Pakistan Limited v. Airport Development Authority, Karachi 2000 CLC 1239; A. Qutubuddin Khan v. Chec Millwala Dredging Co. Pvt.) Limited 2014 SCMR 1268; Allah Din and Company v. Trading Corporation of Pakistan and others 2006 SCMR 615 and House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 ref.

Rafiq Ahmed Kalwar for Appellant.

Yousuf Moulvi for Respondent.

P L D 2021 Sindh 88

Before Muhammad Faisal Kamal Alam, J

FEROZE SAJAN and 3 others---Plaintiffs

Versus

FARZANA SAJAN---Defendant

Suit No. 1498 of 2015, decided on 20th April, 2020.

Trusts Act (II of 1882)---

----Ss. 81 & 82---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, injunction and recovery of money---Breach of trust---Beneficial interests, transfer of---Benami account---Proof---Plaintiff and defendant were husband and wife inter se and the relation ended in separation---Plaintiff claimed to have opened three Bank accounts in the name of defendant (wife) who at the time of leaving his house also took along with her Defence Saving Certificates---Plaintiff sought recovery of money of Defence Saving Certificates---Validity---Defence Saving Certificates were purchased from the income of plaintiff (husband) and defendant (wife) was not joint owner as claimed by her---Defendant was in fact a trustee and plaintiff had proved his case including the motive that in order to meet any eventuality, mishap or exigency, the Defence Saving Certificates were purchased in joint name of plaintiff (husband) and defendant (wife), whereas sister of plaintiff was mentioned as nominee---Defendant (wife) was not authorized to dispose of/sell (encash) the Certificates even before date of maturity, causing losses to plaintiff---Encashing the Defence Saving Certificates along with accruals and transferring entire sale proceeds into her independent Bank account and not in joint Bank accounts maintained by her and plaintiff were sufficient to hold that she was not the joint owner but a trustee and was guilty of breach of trust---Motive for purchasing the Certificates in joint name of plaintiff and defendant with sister of plaintiff as nominee was established---Provisions of Ss. 81 & 82 of Trusts Act, 1882, as judicially interpreted were applicable---High Court directed the defendant (wife) to return amount of Defence Saving Certificates at their face value together with interest---High Court also directed the defendant to return loss amount caused by pre-mature encashing of the Certificates---Suit was decreed accordingly.

Ismail Dada Adam Soomar v. Shorat Banoo PLD 1960 (W.P.) Kar. 852 and Major (Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515 rel.

Mohammed Bibi and 2 others v. Abdul Ghani and 2 others PLD 1975 Kar. 979; Messrs Shalimar Ltd., Karachi v. Raisuddin Siddiqui and 3 others 1979 CLC 338; Aftab Nasir v. Mst. Fazal Bibi and others PLD 1965 (W.P.) Lah. 550; Mian Imtiaz Ahmad Khan v. Islamic Republic of Pakistan PLD 1983 FSC 28; Mrs. Aiyasha Koreshi and another v. Hishmatullah, Koreshi and another PLD 1972 Kar. 653; Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569; Manzoor Butt through L.Rs. and 2 others v. Mahmud Sufi and 7 others 2016 CLC 569 and Muhammad Hayat Khan v. The State and another 2014 YLR 385 distinguished.

S. Abid Hussain Sherazi for Plaintiffs.

Javed Akbar Bhatti for Defendant.

P L D 2021 Sindh 103

Before Nadeem Akhtar and Adnan ul Karim Memon, JJ

NADEEM ZUBERI---Petitioner

Versus

CIVIL AVIATION AUTHORITY through Director General---Respondent

Constitutional Petition No. D-139 of 2017, decided on 14th October, 2020.

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

----S. 151 & O. XXIII, R. 1---Inherent powers of High Court---Withdrawal of suit or abandonment of part of claim---Restoration petition---Scope---Petitioner sought recalling of order whereby his application seeking unconditional withdrawal of constitutional petition was allowed---Contention of petitioner was that respondent had assured him that his post-retirement benefits would be disbursed in his favour immediately upon withdrawal of the petition whereas respondent denied the alleged settlement---Validity---Petitioner had categorically stated in his application that the prayer was premised on the fact that the respondent had assured that all retirement benefits shall be disbursed upon withdrawal of the proceedings---Such application was supported by his personal affidavit duly sworn on oath---Respondent had not filed any counter affidavit or objections to the application, thus, the reason stated by the petitioner in his application remained un-rebutted---Stance taken by petitioner appeared to be correct as no prudent person, at the end of his professional career, would think of withdrawing a case for abandoning the claim vigorously pursued by him for his post-retirement benefits---Court, under its inherent powers, could allow restoration of the petition so that the petitioner could be granted a fair opportunity of decision of case on merits---Application was allowed, in circumstances and the petition was restored to its original position

(b) Administration of justice---

----Matters should be decided on merits rather than depriving a party on technical grounds.

(c) Administration of justice---

----Court is to ensure dispensation of justice by setting the controversy before it at rest.

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

----S. 151 & O. XXIII, R. 1---Inherent powers of High Court---Withdrawal of suit or abandonment of part of claim---Restoration petition---Scope---Court, under its inherent powers, can allow restoration so that the petitioner may get a fair opportunity of decision of his case on merits.

(e) Administration of justice---

----Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for---Court was to proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same.

H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 ref.

(f) Administration of justice---

----Proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights.

Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

(g) Administration of justice---

----Technicalities have to be avoided unless it be essential to comply with them on grounds of public policy.

Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

(h) Administration of justice---

----Ideal system was one that gave to every person what was theirs'.

Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

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

----S. 151---Inherent powers of High Court---Scope---Inherent powers of the Courts as affirmed by S.151, C.P.C are undoubtedly wide and varied and are meant to advance the cause of justice and to redress a wrong; to secure the ends of justice and to prevent abuse of the process of the Court---Such power was to be exercised unhesitatingly so long as same did not conflict with or was contrary to any provision of law.

Cotton Export Corporation of Pakistan (Pvt.) Ltd., Karachi v. Messrs Awami Cotton Ginners and 7 others PLD 1995 Kar. 282 ref.

Muhammad Ali Lakhani for the Petitioner.

P L D 2021 Sindh 108

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Syed ASADUL HAQ---Appellant

Versus

Messrs BALOCHISTAN GLASS LIMITED---Respondent

High Court Appeal No. 241 of 2010, decided on 30th September, 2020.

Contract Act (IX of 1872)---

----S. 28---Agreements in restraint of legal proceedings void---Principles---Nature and concept of voidability of agreements in restraint of legal proceedings, and exceptions thereto---Scope---When parties mutually agree that although an action arising out of a contract, could be brought before courts in multiple jurisdictions but a particular court which had otherwise jurisdiction to try such cause, was mentioned in such contract for purpose of adjudicating disputes, then such clause of agreement was not adversely affected by S.28 of Contact Act, 1872 as same could not be construed a restraint to legal proceedings---Such established legal principle may not be applicable in every case where there existed distinctive features which made said case(s) fall in exception to said legal principle.

Sabaldas Janjimal and others v. Sobhokhan and others AIR (35) 1948 Sindh 91; Chaudhry Mehtab Ahmad and another v. Mir Shakeel-ur-Rehman and 4 others 2004 MLD 662; Messers Kadir Motors (Regd.) Rawalpindi v. Messers National Motors Ltd Karachi 1992 SCMR 1174; State Life Insurance Corporation of Pakistan v. Rana Mohammed Saleem 1987 SCMR 393 and Saleem Mehtab v. Messers Refhan Best Food Limited Company 2010 MLD 1015 ref.

Chaudhry Abdul Rasheed for Appellant.

Masood Khan Ghory for Respondent.

P L D 2021 Sindh 113

Before Muhammad Ali Mazhar and Agha Faisal, JJ

COSMIC RESOURCES (PVT.) LIMITED through Director---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Port and Shipping, Islamabad and 5 others---Respondents

Constitutional Petition No. 5954 of 2016, decided on 5th December, 2019.

Deep Sea Fishing Licensing Policy, 2018---

----Pleadings, non-amendment of---Effect---Petitioner company was aggrieved of refusal of authorities to grant stern trawler licences for Deep See Fishing---Validity---Petitioner intended to obtain fishing licences pursuant to a policy of year 1995, which was no longer in field---Petitioner claimed to be aggrieved by omission of a category in subsequent policy of year 2018---Such assertion was not included in petition nor any permission of Court was ever solicited to amend the petition suitably---Once 2018 Policy was notified reservations of petitioner with respect to dismissal of its applications pursuant to 1995 Policy became redundant---Reservations with regard to 2018 Policy were alien to pleadings and no efforts was ever made by petitioner to amend memorandum of petition suitably---Petitioner failed to demonstrate any discrimination, lack of jurisdiction and/or partiality on behalf of authorities---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority and others 2018 SCMR 414 and Shahid Pervez v. Ejaz Ahmed 2017 SCMR 206 ref.

M. Asad Iqbal and Usman Tufail Shaikh for Petitioner.

Ishrat Zahid Alvi, Assistant Attorney General, Jawad Dero, Additional Advocate General and S. M. Zafar Imam, Deputy Director, Marine Fisheries Department for Respondents.

P L D 2021 Sindh 118

Before Zulfiqar Ali Sangi, J

Mst. IQRA FAISAL and 5 others---Applicants

Versus

ZUBAIR KHAN and 7 others---Respondents

Criminal Miscellaneous Application No. S-311 of 2020, decided on 29th October, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 174 & 176---Exhumation---Locus standi---Petitioners were legal heirs of deceased and were aggrieved of order passed by two Courts below directing exhumation/disinterment of the deceased to determine cause of death---Plea raised by petitioners was that the application was moved by a stranger who did not have any locus standi to seek exhumation---Validity---For making an application under S.176(2), Cr.P.C., nothing was necessary except satisfaction of the Magistrate only to the extent that exhumation was expedient for knowing cause of death---Such order was always meant to remove clouds therefore, discretion was to be exercised as such even if a single reasonable circumstance/suspicion so justified because 'cause of death' would do nothing but was to determine whether to set criminal machinery into motion or otherwise---Exercise of exhumation could not be denied merely on account of request made by any stranger, if otherwise circumstances so justified---For bringing law into motion, requirement of move by blood relation was never insisted upon---High Court declined to interfere in concurrent orders passed by two Courts below as there was no illegality or infirmity therein---Petition was dismissed, in circumstances.

Muhammad Akram v. Additional Sessions Judge, Depalpur and 3 others 2014 PCr.LJ 1030; Yar Muhammad v. The State 2017 PCr.LJ 694; Ghulam Mustafa v. The State and 5 others 2015 YLR 2230; Haji Abdul Hameed v. Raza Muhammad and another PLD 2014 Bal. 50; Begum Mai v. Additional Sessions Judge and others PLD 2020 Lah. 394; Mansab Ali v. Asghar Ali Faheem Bhatti, Additional Sessions Judge, Nankana Sahib and 3 others PLD 2007 Lah. 176; Muhammad Saleem v. State 2014 PCr.LJ 219 and Ghazala Begum v. District Magistrate 1996 PCr.LJ 389 ref.

Asif Ali, Abdul Razak Soomro and Athar Abbas Solangi for Applicants.

Barrister Arsalan Raja for Respondent No.1.

Anum Mehsud (In person).

Liaquat Ali Shar, Additional Advocate General and Aitbar Ali Bullo, D.P.G. for Official Respondents.

P L D 2021 Sindh 130

Before Adnan Iqbal Chaudhry, J

Syed ZAIN UL ABIDEEN---Plaintiff

Versus

FEDERAL BOARD OF REVENUE, ISLAMABAD through Chairman and 4 others---Defendants

Suit No. 42 of 2020, decided on 16th April, 2020.

(a) Benami Transactions (Prohibition) Act (V of 2017)---

----S. 43---Civil Court, ouster of jurisdiction---Principle---Civil Court can exercise its jurisdiction only if the action assailed suffers from jurisdictional defect---Any suit filed before Civil Court has to be confined to challenge on jurisdictional grounds only.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444; Bahadur v. Umar Hayat PLD 1993 Lah. 390 and Begum Syeda Azra Masood v. Begum Noshaba Moeen 2007 SCMR 914 rel.

(b) Benami Transactions (Prohibition) Act (V of 2017)---

----S.59---Citing of wrong provision of law---Effect---Such error does not constitute an act without jurisdiction and is protected by S.59 of Benami Transactions (Prohibition) Act, 2017.

(c) Benami Transactions (Prohibition) Act (V of 2017)---

----Ss. 16, 22, 24 & 43---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and injunction---Benami transaction---Rejection of plaint---Bar of jurisdiction---Mala fides-in-fact and law---Distinction---Plaintiff assailed proceedings initiated by authorities and his bank accounts were attached on the allegations that those were Benami---Contention of plaintiff was that earlier no show cause notice was issued and to make up the deficiency the same was made up afterwards---Validity---Alleging show cause notice made up afterwards was an allegation of mala fides-in-fact on initiating officer as the same was distinct from mala fide-in-law and such was not the case of plaintiff to begin with---Apart from such vague allegation of mala fides, plaint did not specifically allege that actions of initiating officer were colored or motivated for extraneous reasons or that he was biased against plaintiff---Before allegation of mala fides could be allowed to be proved, mala fides were to be pleaded with particularity and till such time, a presumption of correctness was attached to official acts---Initiating officer was empowered under S.22(5) of Benami Transactions (Prohibition) Act, 2017, to attach related property, therefore, plaintiff could not claim to have been prejudiced---Plaintiff failed to raise any ground that could constitute exception to interfere in exercise of jurisdiction by special fora prescribed under Benami Transactions (Prohibition) Act, 2017---Under implied bar to jurisdiction of High Court that arose by reason of existence of special fora to determine matters arising under Benami Transactions (Prohibition) Act, 2017---Plaint was rejected in circumstances.

Tabassum Shahzad v. I.S.I. 2011 SCMR 1886 rel.

Taimur Ali Mirza for Plaintiff.

Hussain Bohra, Assistant Attorney General for Defendant No.1.

Muhammad Aqeel Qureshi for Defendant No. 2.

Nemo for Defendants Nos. 3-5.

P L D 2021 Sindh 139

Before Muhammad Ali Mazhar and Agha Faisal, JJ

FAIQUE ALI JAGIRANI and another---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary New Secretariat, Karachi and 5 others---Respondents

C.P. D-2442 of 2018, decided on 16th March, 2020.

(a) Sindh Revenue Board Act (XI of 2010)---

----S. 3(1)---Sindh Revenue Board---Engagement of private counsel---Permissibility---Contention of the petitioner was that Sindh Revenue Board was a department of the Provincial Government, which was not entitled to retain the services of private legal counsel and instead was required by law to be represented by the office of the Advocate General---Petitioner invoked constitutional jurisdiction of the High Court seeking a declaration to the effect that vakalatnamas issued by the Board to private legal counsel were void and fees paid to the said advocates, be recovered---Held, that Sindh Revenue Board was, admittedly, not a ministry or a division of the Provincial Government and the petitioner had himself filed copies of the relevant documents in said regard---Sindh Revenue Board, being a Board as well as an Administrative Department, previously had a distinctive identity, however, its status of Administrative Department was de-notified and was placed under the administrative control of the Chief Minister's Secretariat through the office of Chief Secretary of the Provine---Litigation pertaining to the Revenue Division also had a distinctive status---Petitioner was singularly unable to distinguish the pari materia application of the exception to provincial revenue matters---Documents, relied upon by the petitioner himself, manifested that Sindh Revenue Board was not a division of the Provincial Government---Petitioner had not even arrayed as parties the private legal counsel, whose vakalatnamas he had sought to be declared void and from whom fees were to be recovered---No case had been made out by the petitioner to demonstrate any restraint upon the Sindh Revenue Board to engage the services of private legal counsel in the public interest---Constitutional petition was dismissed, in circumstances.

Naheed Azhar v. Province of Sindh and others 2016 PLS (C.S.) 879 and Rasheed Ahmed v. Federation of Pakistan PLD 2017 SC 121 ref.

(b) Constitution of Pakistan---

----Art. 199---Public interest litigation---Matter of public importance---Scope---Matters of public importance were restricted to issues that affected and had repercussions upon the public at large---Public interest litigation could not be resorted to in order to settle individual or private grievances---Court had to guard against frivolous petitions as it was a matter of common observation that in the garb of public interest litigation matters were brought before the Court which were neither of public interest litigation nor related to enforcement of a fundamental right or public duty---Public interest litigation was a weapon which had to be used with great care and circumspection---Judiciary had to be extremely mindful and had to determine whether behind the veil of public interest a private malice, vested interest and/or publicity-seeking was not lurking---High Court observed that some persons with vested interest were indulged in the pastime of meddling with judicial process either by force of habit or from improper motives; and that such persons were often actuated by a desire to win notoriety or popularity.

PLD 2019 SC 645; TCS (Private) Limited and others v. Federation of Pakistan and others PLD 2019 Sindh 69 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan 2012 SCMR 455 ref.

Petitioner in person.

Barrister Jawad Dero, Additional Advocate General Sindh for Respondents.

Malik Naeem Iqbal and Khurram Memon for Defendants Nos. 4 to 6.

P L D 2021 Sindh 145

Before Muhammad Saleem Jessar, J

Mst. AMEER JEHAN alias BISMA NOUREEN---Applicant

Versus

The STATE and others---Respondents

Criminal Miscellaneous Applications Nos. 255 and 53 of 2018, decided on 3rd February, 2020.

(a) Administration of justice---

----Action and omission by judicial officer---Scope---Every action and omission was protected only if same was in good faith as well within belief of having competence, even by mistake of fact.

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

----Ss. 561-A& 77---Applicant submitted that the Judicial Magistrates/ proposed accused had wrongly framed charge against her in terms of the offence mentioned in FIR and by doing so Presiding Officer/ Judicial Officer had committed offence---Scope---Section 77 of the Cr.P.C. described that all acts of a judge, when acting judicially in exercise of any power given to him by the law, were no offence---From plain reading of the S.77, Cr.P.C., it appeared that all judicial acts, if were performed in exercise of power, would not be offences even if the judge mistakenly believed to have power to act so---Said protection/ exception was only provided to a judicial act and not to an individual personal act or omission---Record showed that applicant was an accused under Ss.186/353/506/504/337-A(i)/337-F(i)/337-L(2), P.P.C.---Case after thorough investigation was challaned by the police which was pending for trial before the court of Judicial Magistrate---Applicant did not challenge the pendency of criminal case against her but challenged framing of charge against her as an 'offence'---Applicant filed application under S.22-A(6)(i) of Cr.P.C. to get an FIR against the Judge for act of framing charge---Applicant was, prima facie, required to show that "act of framing of charge" was not within his/her power provided by law and that it was mala fide (absence of good faith/bona fide)---One, sent up to face a criminal trial, could not restrain the procedural law to take its course which left a court with no option but to make the accused (sent up person) explained of the allegations against him---Court was left with no option but to frame the charge which would stand evident from direct referral to S.242 of the Cr.P.C.---Such act (framing of charge) was always towards compliance of a mandatory provision of law, hence the complained judge had authority to frame the charge against the applicant who, otherwise, did not challenge pendency of criminal case against her---Such legal position was sufficient to outrightly reject the allegation---Order passed by the Judicial Officer(s) was required to be challenged before proper forum by filing appropriate application, etc.---No one could claim or malign the position of the Judicial Officers with regard to their judicial acts unless the legal bar, provided by S.77 of the Code, was established to be not existing---Applicant had not been able to show that while proceedings with the case and framing charge against her, the Judicial Magistrate/proposed accused acted with malice and that his actions were mala fide in nature---Rather, the same seemed to be bona fide and having been taken in good faith, while performing judicial function---Criminal Miscellaneous Application was dismissed accordingly.

Government of Sindh v. Saiful Haq Hashmi 1993 SCMR 956 and Shabbir Hussain v. Registrar, Lahore High Court PLD 2004 SC 191 rel.

Applicant in person.

Hussain Bux Baloch, Addl. Prosecutor General, Sindh for the State/Respondents.

P L D 2021 Sindh 152

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

JUNAID ASAD KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Accountability Appeal No. 22 of 2017, decided on 7th October, 2020.

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

----S. 31-D--- Wilful default--- Investigation--- Procedure---Reference by Governor State Bank of Pakistan is a very strong indication that a case of wilful default has been made out against defaulters but it is not definitive---National Accountability Bureau under National Accountability Ordinance, 1999, inquires and investigates to see if a case of wilful default has been made out and if so only then a reference on account of wilful default under National Accountability Ordinance, 1999, is filed.

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

----Ss. 5(r) & 31-D---Default, 'simple' and 'wilful'---Distinction---Jurisdiction of National Accountability Bureau (NAB)---Scope---When some commercial or business factors are beyond the control of borrower, then such is a case of "simple default" rather than "wilful default"---"Simple default" is not to be proceeded by NAB under National Accountability Ordinance, 1999, but instead through usual Banking Court for recovery---Default can be deemed to be "wilful" i.e. deliberate if borrower uses loan for some other purpose rather than his business for which loan has been taken or not using loan properly or judiciously and business collapses due to lack of investment, wastage of loan or poor business management etc, then such is "wilful default" under National Accountability Ordinance, 1999.

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

----Ss. 5(r) & 31-D---Wilful default---Appreciation of evidence---Defence evidence, non-giving of---Failure to give reasons to repay loan---Reduction in sentence---Accused persons were convicted by Trial Court for committing offence of wilful default and sentenced to imprisonment for ten years along with fine---Validity---Evidence of investigating officer and other evidence on record including oral and documentary evidence, matter was thoroughly and independently investigated by National Accountability Bureau (NAB) and was found to be a case of wilful default which justifiably led NAB filing a reference under National Accountability Ordinance, 1999, before concerned Trial Court---All prosecution witnesses gave consistent, non-contradictory evidence, at trial, which was reliable, trustworthy and confidence inspiring---None of the evidence of prosecution was dented during cross examination---Evidence of prosecution witnesses was corroborated by documents exhibited at trial---Accused persons did not put forward any plausible reason as to why they failed to repay loan and did not even join investigation of NAB to justify their position despite they were sent call up notices---Accused persons did not give evidence on oath at trial in order to justify their position---High Court declined to interfere in conviction awarded by Trial Court but reduced sentence of imprisonment from ten years to five years without altering amount of fine imposed---Appeal was dismissed accordingly.

The State through Chairman NAB and others v. Muhammad Asif Saigol and others PLD 2016 SC 62; Alamdar Hussain v. National Accountability Bureau through Chairman and others PLD 2017 Lah. 479; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Mian Munir Ahmed v. State 2004 PCr.LJ 2012 ref.

Muhammed Juman v. State 2018 SCMR 318 rel.

Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218 and Intikhab A. Syed v. Chairman NAB 2019 MLD 127 distinguished.

Mehmood A. Qureshi and Khaleeq Ahmed for Appellants.

Ms. Naheed A. Shahid for Bank Islami Pakistan on Court Notice.

R.D. Kalhoro, Special Prosecutor NAB for Respondent/State (NAB).

P L D 2021 Sindh 173

Before Muhammad Saleem Jessar, J

Hafiz FAYYAZ SAMOO and another---Applicants

Versus

SPECIAL COURT, SINDH PUBLIC PROPERTY REMOVAL OF ENCROACHMENT, KARACHI and 2 others---Respondents

Criminal Miscellaneous Application No. S-39 of 2020, decided on 7th February, 2020.

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

----Ss. 561-A, 499 & 501---Inherent powers of High Court---Bail bond of accused and sureties---Power of Court to demand sufficient security if already deposited was insufficient---Reduction of surety amount---Scope---Applicants sought reduction of surety amount from Rs.10,00,000/- to Rs.1,00,000/- each---Applicants were earlier granted ad-interim bail subject to furnishing surety in sum of Rs.1,00,000/- but while allowing the pre-arrest bail application, the surety amount was enhanced---Held; surety amount of Rs.1,00,000/- was sufficient and did not require enhancement, more particularly when the accused had voluntarily surrendered themselves before the Court concerned; when the offence was not carrying capital punishment, justifying imposition of huge surety amount---Court in view of S.501, Cr.P.C., was competent to demand sufficient surety even after acceptance of earlier ordered surety which, however, was subject to reasonable justification or changed circumstances---Impugned order nowhere showed as to how did the earlier accepted surety amount became 'insufficient'---In absence of such reasons, enhancement of surety amount was not justified---Application was allowed.

Abdul Jabbar v. The State 1998 PCr.LJ 1465 rel.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Bailable offence---Scope---Bail in a bailable offence is the right of accused.

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

----S. 497---Bail---Further inquiry---Scope---Bail in a case falling within the meaning of further inquiry, is the right of accused.

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

----Ss. 497 & 499---Bail---Object---Release of accused on bail is not meant to give favour to accused but to make him face the trial which, otherwise, is the sole object of every charge/allegation that it should meet its legal fate which is subject to trial and not by keeping the accused behind the bars.

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

----Ss. 497 & 499---Bail---Bond of accused and sureties---Quantum of surety amount, determination of---Scope---Section 499, Cr.P.C. requires nothing more than 'satisfaction of police officer or Court' for quantum of surety amount---Such satisfaction must always be reasonable one because demand of improbable or huge amount may result in frustrating the purpose and object of a release order because failure of surety in producing the accused or payment of fine (surety) amount never operates as a bar upon the Courts to compel the attendance of accused by adopting permissible coercive measures.

Saeed Ahmed Magsi for Applicants along with Applicants.

P L D 2021 Sindh 178

Before Mohammad Karim Khan Agha and Amjad Ali Sahito, JJ

Mst. AZIZA NAEEM---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Home Department, Karachi and 2 others---Respondents

Constitutional Petition No. 3275 of 2020, decided on 21st December, 2020.

(a) Constitution of Pakistan---

----Art. 10(3)---Preventive detention---Scope---One of the key attributes of Constitution is that it seeks to protect and safeguard rights of individuals from misuse or abuse of executive powers and does so by enshrining a number of fundamental rights which are found in First Chapter of the Constitution---Constitution also aims to strike a fair, legal and legitimate balance in preventive detention in appropriate cases in the interest of State based on sound reasons and prevent such detention from being misused for ulterior purposes by the Executive.

(b) Constitution of Pakistan---

----Arts. 10(4) & 199---Preventive detention---Judicial review---Scope---Review Board---Subjective analysis of intelligence material---Executive, jurisdiction of---Scope---Review Board under Art.10(4) of the Constitution consist of High Court Judges whose role along with others is to evaluate intelligence material---If in subjective analysis of intelligence material Courts play no role in such respect, the same would in effect oust Court's jurisdiction of judicial review which would mean that there would be no check and balance on the Executive which may pass Preventive Detention Orders malafidely and/or in a whimsical and arbitrary manner without application of mind and detained person would have no judicial recourse for redressal of his grievance---Such proposition is not acceptable keeping in view Art. 199 of the Constitution, where one of the main purposes of the Constitution is to protect its citizens against misuse and or abuse of Executive Authority---Pakistan under the Constitution is based on trichotomy of powers where checks and balances operate on each organ of State.

(c) Constitution of Pakistan---

----Arts. 10, 10-A, 4, 9, 14, 15, 25 & 199---Anti-Terrorism Act (XXVII of 1997), Ss.11-EE & 11EEE---Preventive detention---Term 'enemy alien'---Applicability---Successive Preventive Detention Orders (PDOs)---Good governance---Petitioner was convicted under Anti-Terrorism Act, 1997, who had completed his sentence but he was not released due to successive PDOs passed by authorities---Plea raised by authorities was that petitioner was 'enemy alien'---Validity---In only third and final PDO it was stated that petitioner was detained as 'enemy alien' under Art. 10(9) of the Constitution which was an after-thought by Provincial Government in order to thwart petitioner's ability to review his detention under third PDO under Art. 10(4) of the Constitution, otherwise such wording would have appeared in first PDO or at least the second PDO---Third PDO was drafted in hurry and was self-contradictory designed to keep petitioner behind bars for ever at all costs---On one hand provision of Art. 10 of the Constitution had given petitioner a right to make representation vis a vis his detention under Art. 10(5) of the Constitution and then in effect had taken away such right by declaring him as 'enemy alien' under Art. 10(9) of the Constitution---Such was how criminal justice system worked and enabled public to have faith in the same---Issuing continuous and successive PDOs on unjustified grounds just to keep a person in jail, despite his acquittal by Courts only served to undermine and lessen confidence in criminal justice system in the eyes of public and led to perception that it was not based on the principles of equality and fair play and that the rule of law which so cherished was being compromised by the Executive authorities---Provincial Government acted malafidely in mechanical manner in issuing three PDOs one after the other with sole intention of keeping petitioner in jail after his acquittal---Authorities had deliberately and illegally deprived petitioner of his right to liberty without any legally justifiable reason---High Court struck down third PDO as the same was issued malafidely by Provincial Government and was violative of Arts. 4, 9, 10, 10-A, 14, 15 & 25 of the Constitution and were issued without lawful authority---Petitioner was found not to be 'enemy alien' so as to fall within the ambit of Art. 10(9) of the Constitution---Detention of petitioner under Art. 10(9) of the Constitution was illegal and without lawful authority---Petition was allowed, in circumstances.

Federation of Pakistan v. Mr.Amatul Jalil Khawaja PLD 2003 SC 442; Arab Akbar Dil v. Government of Sindh PLD 2005 Kar. 538; Ghulam Qasim v. Government of Punjab 2020 MLD 166; Muhammad Irshad v. Government of the Punjab 2020 PCr.LJ 206; Allah Nawaz v. Government of Khyber Pakhtunkhwa 2019 MLD 1016; Safeer Shah v. The State 2016 MLD 986; Baram Khan v. Government of Balochistan PLD 2019 Bal. 120; Aurangzeb Khan v. Government of Khyber Pakhtunkhwa 2016 MLD 330; Waqas Hussain v. Government of Khyber Pakhtunkhwa 2016 PCr.LJ 972; Syed Mubbashar Raza v. Government of Punjab PLD 2015 Lah. 20; Muhammad Nadeem v. Government of Punjab PLD 2010 Lah. 371; Muhammad Din v. District Magistrate 1992 MLD 107; Rehmatullah alias Rehmatoli v. Government of Khyber Pakhtunkhwa PLD 2018 Pesh. 17; Mst. Sana Jamil v. Government of Punjab 2016 PCr.LJ 424; Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat 1999 PCr.LJ 1558; Moulvi Farid Ahmad v. Government of Pakistan PLD 19651 (W.P.) Lah. 135; State of Maharashtra v. Bhaurao Punjabrao Gawande AIR 2008 SC 1705; Liversidge v. Anderson and another (All England Law Reports Annotated-338); Miraj Muhammad Khan v. Government of West Pakistan and Superintendent of Jail, Karachi PLD 1966 (W.P.) Kar. 282; Syeda Shamim Akhtar v. Government of Pakistan and 3 others 1996 PCr.LJ 326; Aamna Bibi v. Government of Balochistan 2003 YLR 1460; Saadullah v. Secretary, Home Department and another PLD 1986 Quetta 270; Syed Muhammad Ali v. Government of Balochistan 1999 PCr.LJ 1490; Malik Mushtaq Anwar v. District Magistrate, Lahore 1979 PCr.LJ 658; Part Cargo v Steamship "Zamora" (Privy Council Appeal No.109 of 1915); R. v. Secretary of State for the Home Department, ex parte Hosenball (All England Law Reports-452); Secretary of State for the Home Department v. Rehman (2001 UKHL-47); Karpal Singh v. Minster for Home Affairs and others (1989 LRC (Coast) Malaysia 648); Teo Soh Lung v. Minister for Home Affairs and others ((1990) LRC (const) Singapore 490); Chan Hiang Leng Colin and others v. Minister for Information and the Arts ((1997) 1 LRC 107 Singapore); Wang and others v. Chief of Staff, Supreme Headquarters, Lagos and others ((1986) LRC (Const) Nigeria 320); H. Shah v. State of W.B. AIR 1974 SC 2154; Mohd. Subrati v. State of W.B. AIR 1973 SC 207; Reference No.01 of 1965 decided on 8th February 1965; PLD 1966 (W.P.) Karachi 160; Bull v. Minister of Home Affairs (1987) LRC (Const) Zimbabwe 547; excerpt from The Judiciary and Emergency Powers Australia, Second Edition, Cambridge University Press; Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 373; Mir Abdul Baqi Baluch v. Government of Pakistan and others PLD 1968 SC 313 and Heinonline-54 Stan.L.Rev.953 2001-2002 by David Cole ref.

(d) Interpretation of statutes---

----Court, jurisdiction of---Principle---Within the trichotomy of powers it is the role of the Legislature to make laws and role of the Judiciary to interpret those laws, if such interpretation is necessary---If a statute has expressly provided for something without any ambiguity then there is no question of Courts' interpreting the same---When Legislative intent is clear, Act/Ordinance must be given effect to unless it is deemed to be contrary to the Constitution.

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

(e) Constitution of Pakistan---

----Art. 10(9)---Term 'enemy alien'---Connotation---Enemy alien is a class of persons (a) who were not national in the State in which they were residing and (b) their State of Origin was at war with the State where they were residing---Such includes persons who may have been nationals of the State but had their origins in the State with which the State they were currently residing in was at war.

Abbot. L. Dict; Corpus Juris Secondum; Durga Das Basu's Commentary on the Constitution of India 9th Edn.; Wikepedia; Canada 1914 to 1920 Canadian War Museum (online source); Black's Law Dictionary (6th Ed.); Collins English on line dictionary; On Line Dictionary.com; Free Dictionary on line; Rondom House Unabridged Dictionary; http:/www.whatdoesthatmean.com/ dictionary/ E/ enemy-alien.htmI#ixzz6f2p1ZnUM; Enemy aliens; Encylopedia Britannica and Treatment of the Japanese-American Internment during World War II in State U.S. History Standards". Oddvar Holmefjord Heen 2014 (on line source) rel.

(f) Constitution of Pakistan---

----Art. 10(9)---Constitution of Pakistan, 1956, Art.7(3)---Constitution of Pakistan, 1962, Art.8(2)---Term 'enemy alien'---Scope---Any person may be considered as an 'enemy alien', if he was a non-Pakistani citizen living in Pakistan when Pakistan was in a declared war with another State and that person was from that other State which Pakistan was at war with and could be considered as a spy or saboteur who was assisting the enemy State in its conflict against Pakistan.

Shaikh Javed Mir for Petitioner.

Salman Talibuddin, Advocate General Sindh, Kashif Paracha, Addl. Attorney General and Abrar Ali Khichi, Addl. Prosecutor General for Respondents/State.

Dr. Usman Chachar, ACS, Home Department on Court Notice.

P L D 2021 Sindh 237

Before Salahuddin Panhwar, J

MUHAMMAD AZAM KHAN---Petitioner

Versus

Dr. IQBAL HAMEED and 2 others---Respondents

Constitution Petition No. S-2609 and C.M.A. No. 10538 of 2018, decided on 13th August, 2020.

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

----S. 15---Civil Procedure Code (V of 1908), S. 11---Eviction of tenant---Res judicata, principle of---Scope---New cause of action---Personal bona fide need of landlord---Petitioner/tenant contended that as eviction applications earlier filed by respondent's parents were dismissed so respondent/landlord could not move the eviction application under the principle of res judicata---Held, that the plea of res judicata would only be applicable in the rent jurisdiction if it was with reference to same cause of action---Cause of action, in rent jurisdiction, was subject to circumstances because the same, in fact, controlled the need of a man---Landlord, due to his circumstances, might not be in need of doing any business but changed circumstances could compel him to do a business; or even to part with failed business and to start a new one---Selection of business by the landlord, thus, was his sole prerogative, so also the choice of rented shop if he had more than one ---Failure of a landlord in earlier eviction proceedings would not be sufficient to bring the plea of res judicata if he, otherwise, proved his personal bona fide need with reference to changed circumstances i.e. new cause of action---Proceedings, in the present case, initiated by the respondent, was with reference to an independent and fresh cause of action---High Court directed the petitioner to vacate the demised shop within six months, however, in case respondent would fail to establish his business within four months, rented shop would be returned to the petitioner---Constitutional petition was disposed of accordingly.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 ref.

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

----S. 15---Eviction of tenant---Personal bona fide need of landlord---Co-owner (landlord) in the rented premises, right of---Scope---Earlier proceedings, regarding demised shop, were initiated by the respondent's father who was dead, thereby making his legal heirs, including the respondent, as one of the co-owners/co-sharers---All said legal heirs had given no objection to the respondent---Legally every co-owner had a right, in the rent jurisdiction, to agitate the plea of personal bona fide need irrespective of fact that tenancy was created by other co-sharer---Every co-sharer had his/her own circumstances and would have a right to establish the plea of personal bona fide need in respect of such premises---High Court directed the petitioner/tenant to vacate the demised shop within six months, however, in case respondent would fail to establish his business within four months, rented shop would be returned to the petitioner---Constitutional petition was disposed of accordingly.

Imran Qadir v. Roqiya Sultana and 7 others 2017 CLC Note 80 ref.

Syed Fazal-ur-Rehman for Petitioner.

Mehboob Aftab Khan for Respondent No.1.

P L D 2021 Sindh 241

Before Nadeem Akhtar and Mrs. Kausar Sultana Hussain, JJ

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD. through Chairman---Appellant

Versus

JAN MOHAMMAD and others---Respondents

High Court Appeal No. 108 of 2011, decided on 20th June, 2020.

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

----S.152---Correction of error---Object, scope and purpose---Scope of S.152, C.P.C. is very limited as only clerical or arithmetical mistakes in judgments decrees or orders, or errors arising therein from any accidental slip or omission, may be corrected by Court either on its own motion or on application by any of the parties---Instead of challenging a judgment, decree or order by availing remedy provided by law within prescribed period of limitation, parties should be allowed at any stage, at their own will and convenience, to invoke S.152, C.P.C. to reopen a matter that had attained finality.

Haji Ishtiaq Ahmed and 2 others v. Bakhhaya and 7 others 1976 SCMR 420; Baqar v. Muhammad Rafique and others 2003 SCMR 1401 and Koka Adinarayana Rao Naidu v. Koka Kothandaramayya Naidu and others AIR 1940 Madras 538 rel.

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

----Ss. 28-A [as omitted by Land Acquisition (Sindh Amendment) Act, 2009 (XVI of 2010)] & 34---Civil Procedure Code (V of 1908), S. 152---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court Appeal---Correction of judgment and decree---Error, nature of---Accidental slip and error---Dispute was with regard to exercise of jurisdiction under S.52, C.P.C. for enhancing compensation awarded by Referee Court regarding land acquired---Validity---Respondents-land owners did not allege that there was any arithmetical mistake in judgment---Sole ground of respondents-land owners was that due to an 'accidental slip and error' in judgment, benefits of Ss.28-A & 34 of Land Acquisition Act, 1894, were not extended to them---Non-grant of benefits under Ss.28-A & 34 of Land Acquisition Act, 1894, to respondents-land owners in judgment by Judge in Chambers of High Court did not fall within the scope of accidental slip and or omission contemplated in S.152, C.P.C. nor could the same be deemed as such under any circumstances---Scope and or nature of relief once granted in any judgment, decree or order could not be enlarged reduced, reversed, reviewed, changed, modified or altered subsequently by Court under S.152, C.P.C. nor could any such relief be granted by Court under S.152 C.P.C. that was not prayed for---Provisions of S.28-A of Land Acquisition Act, 1894, was repealed / omitted with retrospective effect vide Land Acquisition (Sindh Amendment) Act, 2009---Claim of respondents-land owners under Ss.28-A & 34 of Land Acquisition Act, 1894, was not maintainable before Judge in Chambers of High Court in their disposed reference---Respondents-land owners could avail their remedy before Executing Court in which case Executing Court would examine and decide their claim strictly in accordance with law---Division Bench of High Court set aside order passed by Judge in Chambers of High Court in exercise of jurisdiction under S. 152, C.P.C.---Intra Court Appeal was allowed accordingly.

Ch. Ahmed Nawaz v. Province of Punjab through Land Acquisition Collector, Jhelum and others 2015 SCMR 823; Sarup Singh v. Union of India AIR 2011 SC 514; Messrs Rabia Rana and Company through Managing Partner v. Province of Sindh through Chief Secretary and 4 others 2016 YLR 2286; Ghulam Muhammad v. Government of West Pakistan, PLD 1967 SC 191; Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361; Dilawar Hussain and 6 others v. Province of Sindh through Secretary, Revenue Department, Karachi and 2 others PLD 2003 Kar. 174 and Dilawar Hussain and others v. Province of Sindh and others PLD 2016 SC 514 ref.

Abdul Razzaq for Appellant.

Adnan Memon for Respondents Nos. 1-430.

Ziauddin Junejo, A.A.G. Sindh for Respondent No.431.

P L D 2021 Sindh 256

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

PEOPLES UNIVERSITY OF MEDICAL AND HEALTH SCIENCES FOR WOMEN through Registrar and 4 others---Petitioners

Versus

PAKISTAN MINISTRY OF HEALTH SERVICES, REGULATION AND COORDINATION through Secretary 13 and others---Respondents

Constitutional Petitions Nos. D-4953, D-5036, D-5158 and D-5237 of 2020, decided on 11th December, 2020.

(a) Interpretation of statutes---

----"Reading Down", doctrine of---Scope---While Reading Down of a statute two principles have to be kept in view: First that the object of Reading Down is primarily to save statute and in doing so paramount question is whether in the event of Reading Down, can the statute remain functional: Second, would the Legislature enacted the law, if that issue had been brought to its notice which was being agitated before Court---Doctrine of Reading Down is an internal aid to construe the word or phrase in a statute to give reasonable meaning but not to detract, distort or emasculate the language so as to give supposed purpose to avoid unconstitutionality---Object of Reading Down is to keep operation of statute within the purpose of the Act and Constitutionally valid.

Province of Sindh and others v. M.Q.M. and others PLD 2014 SC 531; Delhi Transport Corporation v. D.T.C. Mazdoor Congress (equivalent citations: AIR 1991 SC 101; 1990 Supp 1 SCR 142; Federal Steam Navigation Co. v. Department of Trade and Industry,[1] (as also extracted by Cross-Statutory Interpretation, Butterworths' Edition, 1976 at page 43 in preposition 3; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6; Judgment of Court of Appeals of England and Wales 1948 1 KB 223, 234 and Independent Newspapers Corporation (Pvt.) Ltd.'s case 1993 SCMR 1533 rel.

(b) Pakistan Medical Commission Act (XXXIII of 2020)---

----S. 50(2) & proviso---General Clauses Act (X of 1897), S. 6---"Repeal and savings"---Applicability---Articulation of proviso to S.50(2) of Pakistan Medical Commission Act, 2020 is not so to have overridden or outweighed the section enacted for---Whole section pertains to repeal and savings, the proviso enacted does not obliterate or destroy enacted section but it is manifesting from the intention of Legislature that it has been added as normal function of a proviso to except something out of the enactment within the purview of the enactment and appended to give an indication as to its true meaning and qualify its generality and exclude some possible misinterpretation.

(c) Interpretation of statutes---

----Directory/mandatory nature of enactment---Distinction---Court was to try to get real intention of Legislature by carefully attending to whole scope of the statute to be construed---Statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that in default of following them the acts would be null and void---If Act is directory, its disobedience does not entail any invalidity, if the act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.

(Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010) PLD 2010 SC 759 rel.

(d) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss. 4, 8 (2)(f), 18 & 50---Pakistan Medical Colleges Admission Regulations 2020-2021, Regln. 16 & proviso---Constitution of Pakistan, Art.199---Constitutional petition---Vires of provisions of Ss.4 & 18 of Pakistan Medical Commission Act, 2020---Admission to medical/dental college established by Government---Composition of Council---Expression 'Federalism'---Question was with regard to constituting Medical and Dental Council and procedure of admission to medical / dental colleges---Validity---Expression 'Federalism' represented and epitomized a mixed or compound mode of government that had combined a 'Federal Government with Provincial Government in a single political system'---Such was parity between the two levels of government established---Term 'Federalism' and 'confederalism' both have a root in Latin word 'foedus, meaning treaty, pact or covenant---Admission under S.18(3) of Pakistan Medical Commission Act, 2020, to medical or dental programs conducted by public colleges was to be regulated as per policy of Provincial Governments strictly on merit and admission to a private college was to be in accordance with the criteria and requirements stipulated by private colleges at least one year in advance of admissions including any additional entrance test as could be conducted by a private college subject to any conditions imposed by relevant university to which such college was affiliated; in juxtaposition to proviso to Regln. 16 of Pakistan Medical Colleges Admission Regulations 2020-2021,for the purposes of admission to private medical or dental colleges no restriction as to domicile of student existed---If any restriction was imposed by Provincial Government in exercise of any executive power otherwise vesting in that Provincial Government, such power would be accounted for in admission undertaken by the Commission subject to fulfillment of merit---Provisions of Ss.4 & 18 of Pakistan Medical Commission Act, 2020, were intra vires the Constitution---Pakistan Medical Colleges Admission Regulations 2020-2021 made by Medical and Dental Council under S.8(2)(f) of Pakistan Medical Commission Act, 2020, were framed with lawful authority---All previous Regulations were repealed in terms of S.50 of Pakistan Medical Commission Act, 2020---Concepts/schemes of holding MDCAT by Admitting University ceased to exist as provided under S.18 of Pakistan Medical Commission Act, 2020---Constitutional petition was allowed accordingly.

Saira Rubab Nasir v. President of Pakistan PLD 2020 Isl. 130; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) and others 2014 SCMR 949; Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132; Mir Shabbir Ali Khan Bijarini and others v. Federation of Pakistan and others PLD 2018 Sindh 603; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; M.Q.M. and others v. Province of Sindh and others 2014 CLC 335; Government of Sindh and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1; Messrs Saba v. The Province of Sindh and others 2020 PLC (C.S.) 113; Lahore Development Authority and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Ibrar Hussain and other v. Government of N.WF.P. and others 2001 SCMR 914; Tasnim Jalal and others v. Deputy Director, A.N.F. and others 2010 SCMR 72 and PLD 2010 SC 759 ref.

Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489 rel.

Sarmad Hani with Saadi Sardar for Petitioners (in C. Ps. Nos.D-4953 and 5158 of 2020).

M. Jibran Nasir for Petitioners (in C.P.No.D-5036 of 2020).

Ms. Umaimah Mansoor and Zeeshan Bashir Khan for Petitioners (in C.P. No.D-5237 of 2020).

Zeeshan Abdullah for P.M.C. (in all petitions) with Malik Altaf Hussain.

Munir Ahmed Rajpar for N.T.S.

Kashif Sarwar Paracha, Acting Additional Attorney General.

Hussain Bohra, Assistant Attorney General and Khilji Bilal, Assistant Attorney General.

Hakim Ali Shaikh, Addl. A.G. Sindh.

Sheheryar Mehar, Assistant Advocate General Sindh.

Gulshan Ali Memon, V.C. Peoples University of Medical and Health Sciences present.

Behzad Amir Memon, Deputy Director, Ministry of National Health Services, Regulation and Coordination.

Sikandar Ali Memon, Chief Technical Officer, Health Department, Government of Sindh.

Kazim H. Jatoi, Secretary Health, Government of Sindh.

P L D 2021 Sindh 286

Before Syed Hasan Azhar Rizvi, J

SHABBIR AHMED ARIF and another---Plaintiffs

Versus

RIZWAN RIAZ and 2 others---Defendants

Suit No. 323 and C.M.As. Nos. 4950, 7940 and 10890 of 2020, decided on 19th March, 2021.

Civil Procedure Code (V of 1908)---

----O.XIV, R. II & XXIII, R.1(4)---Sindh Chief Court Rules (OS), R. 22(7)---Withdrawal of suit without condition---Principle---Short case---Amongst the two plaintiffs, one of them filed application seeking unconditional withdrawal of suit by treating it as a short case---Validity---Court had no jurisdiction under O.XXIII, R.1(4), C.P.C. to permit one of several plaintiffs to withdraw suit without consent of others---Consent of other plaintiff was not brought on record---Issuance of cheques and execution of settlement agreement between parties were admitted---Plaintiff-applicant was principle debtor whereas other plaintiff was his father who stood surety---Plaintiffs failed to pay outstanding amount in terms of settlement agreement as plaintiffs themselves approached Court and obtained restraining orders but they failed to furnish surety to the satisfaction of Court---Interim order passed by Court earlier was recalled, thereafter plaintiff-applicant filed application under S.22(7) of Sindh Chief Court Rules (OS) read with O.XIV, R.11, C.P.C.---High Court declined to declare the proceedings as 'short case' and plaintiff-applicant was not allowed to withdraw the suit unconditionally---Application was dismissed, in circumstances.

Pakistan Defence Officers, Housing Authority v. Muhammad Afsar and others PLD 2015 Sindh 239 ref.

Javaid Iqbal Abbasi and Company v. Province of Punjab and others 1996 SCMR 1433; Amjad Rashid Khan Malik v. Mrs. Shahida Naeem Malik and others 1992 SCMR 485; Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 and Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 SCMR 619 rel.

Muhammad Ali Lakhani for Plaintiffs.

Sarmad Hani for Defendant No.2.

P L D 2021 Sindh 298

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

UMER DIN MEHAR and others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petitions Nos. D-721 of 2010, D-1260, D-1368 of 2012, D-1508, D-1826, D-2859, D-2981 of 2015, D-950, D-2581, D-3387, D-3498, D-3551, D-3600 of 2016, D-990, D-2060, D-2075, D-2125, D-2177, D-2304, D-2399, D-2644, D-2747, D-3063, D-3280, D-3453, D-3535, D-3794, D-349, D-2339, D-674, D-897, D-942, D-961, D-969, D-1027, D-1121, D-1134, D-1397, D-1557, D-1596, D-1943, D-1946, D-2310, D-2374, D-2551, D-2558, D-2708, D-3009, D-3057, D-3269, D-3556, D-3578, D-3616, D-3707, D-3768 of 2017, D-298, D-1112, D-1708, D-2016, D-2075, D-2216, D-2232, D-2276, D-2339, D-2340, D-2552, D-2619, D-2770, D-2814, D-2868, D-2961, D-2979, D-2993, D-2999, D-3100, D-3127, D-3147, D-3150, D-3175, D-3205, D-2317, D-3241, D-159, D-449, D-795, D-950, D-1122, D-1173, D-1376, D-1767, D-1768, D-2009, D-2031, D-2068, D-2078, D-2085, D-2183, D-2186, D-2360, D-2362, D-2542, D-2566, D-2583, D-2708, D-2739, D-2765, D-2780, D-2863, D-2922, D-2962, D-3005, D-3097, D-3109, D-3177, D-3247, D-3337 of 2018, D-87, D-126, D-643, D-1133, D-1134, D-1410, D-1497, D-1537, D-1561, D-1589, D-1619, D-1623, D-1635, D-1680, D-1749, D-1771, D-1893, D-1814, D-1906, D-1925, D-1965, D-2040, D-2058, D-2079, D-2199, D-2217, D-2299, D-2339, D-2551, D-2598, D-135, D-250, D-505, D-528, D-572, D-681, D-1141, D-1404, D-1500, D-1540, D-1627, D-1638, D-1774, D-1822, D-1873, D-1923, D-2071, D-2171 and D-2193 of 2019, decided on 10th December, 2019.

Sindh Irrigation Act (VII of 1879)---

----Ss.16 & 21---Constitution of Pakistan, Art. 199---Water Sharing Policy---Irrigation water, equitable distribution---Petitioners were aggrieved of not receiving their share of water---Held, that Irrigation Department and all its officials were under statutory obligation not only to perform their duty in conformity with policy of equitable distribution of water but also to keep close and constant vigilance and supervision to ensure uninterrupted supply of water to lands as per prescribed share lists and also to take action against illegal connections---Complete mechanism was proved in Sindh Irrigation Act, 1879, for equitable distribution of water amongst Khatedar and remedies for redressal of other water related grievances---High Court declined to undertake such exercise under Art.199 of the Constitution, as it was for the officials of Irrigation Department to take prompt action to redress genuine grievances of Khatedar--- High Court directed the authorities to ensure supply of water to every Khatedar per his share prescribed in share list---High Court further directed to take action forthwith according to law against such Khatedar who had violated law by tampering with sanctioned modules or by changing watercourse or by creating obstruction in water supply of other Khatedar---Constitutional petition was dismissed accordingly.

Action Against Giving of Direct outlets from Naseer Branch Rohri Canal by Chief Minister Sindh 2014 SCMR 353 ref.

Muhammad Arshad S. Pathan, Ashfaque Nabi Qazi, Sajid Gorar, Bilawal Bajeer, Nouman Sahito, Syed Waseem Shah, Abdul Rahim Gaju, Imdad Ali Memon, Gulab Khan Qaim Khani, Mir Shakir Ali Talpur, Dileep Kumar, Noor Ahmed Memon, Faqir Rehmatullah Hisbani, Muhammad Yousuf Leghari, Pervaiz Tagar, Bhagwan Das Bheel, Junaid Ahmed Soomro, Nisar Ahmed Durrani, Ghulam Nabi Meo, Ayatullah Khuwaja, Ashok Kumar, Qadir Bux Ghirano, Kashif Hussain Agha, Shabir Hussain Memon, Kashif Ali Lakho, Mrs. Razia Ali Ahmed Zaman Patoli, Ishrat Ali Lohar, Bilawal Bajeer, Sher Muhammad Leghari, Muhammad Hayat Khan, Manzoor Ahmed Panhwar, Irfan Ahmed Qureshi, Wali Muhammad Khoso, Muhammad Ali Rind, Abdul Khalique Leghari, Abdul Ghafoor, Muhammad Idrees Naqshbandi, Jagdesh R. Mullani, Muhammad Hashim Leghari, Kashif Ali Lakho, Rao Faisal, Om Parkash, Shakir Nawaz Shar, Nazeer Ahmed Bhatti, Muhammad Aslam Sipio, Aqeel Ahmed Siddiqui, Haji Khan Hingorjo, Badal Gahoti, Atif Imran Khuwaja, Faisal Nadeem Abro and Ali Abbas for Petitioners.

Muhammad Hayat Mughal for Respondent No. 3 (in C. P. No.D-2060 of 2017).

Ayatullah Khuwaja for Respondents Nos.9 and 10 (in C.P. No.D-2060 of 2017).

Allah Bachayo Soomro, Addl. Advocate General, Sindh along with Abbas Ali Panhwar AXEN Nabisa Sub-Division @ Kunri, Muhammad Aslam Kaim Khani Assistant Engineer Sub-Division Samaro, Nawaz Hussain XEN Ghunri Canal Division, Akhtar Hussain Khas Kheli AXEN Irrigation Sub-Division Digri, AXEN Bakhoro Sub-Division, Sain Dino Memon Assistant Executive Engineer Hala Dub-Division Hala, Qadir Bux Mangrio Assistant Canal, Abdul Hameed Rajpar AXEN Nawabshah Sub-Division, Farhan Hussain Wagan o/b of AXEN Wassat, Imtiaz Abro Assistant Engineer Matli Sub-Division Phuleli Canal Division, Zulfiqar Ali Khoso, Assistant Engineer Shahpur Chakar, Shahabuddin Bhatti Assistant Executive Engineer Sub-Division Daur, Motio Khan AXEN Qazi Ahmed, Badardin Assistant Engineer Khadar, XEN Shahbaz AXEN Division Sehwan Bhan Sub-Division, Zulfiqar Ali Lashari Assistant Engineer Khairpur, Junaid Hidayat Jokhio AXEN Chang Sub-Division, Shamshad Ahmed SDO Maru Sub-Division Hala, Zahid Hussain Memon Assistant Executive Engineer Sub-Division Thar Division Mirpurkhas, Azharuddin Bhatti AXEN Naukot Division Mirpurkhas, SDO Sirajuddin Sub-Division Hala, Abdul Rashid Khoso, Assistant Engineer Sub-Division Tando Adam-II Hala Division, Muhammad Luqman AXEN Tando Muhammad Khan Sub-Division Rohri Canal, Kapil Dev Assistant Engineer Sindhri Division and Nasrullah Mukhtiarkar Hala, ASI Muhammad Hasil Rajpar PS Abadgah, ASI Abdul Hamid PS Magli, ASI Abdullah PS Shahpur Chakar, SIP Liaquat Ali SHO PS Talar District Badin, Ins. Afzal Magsi o/b of SSP Tando Allahyar, SIP Nooruddin Mallah SHO PS Sultanabad, SIP Zaheer Solangi o/b of SHO PS Saeedabad, Ins. Ghulam Mustafa o/b of SSP Umerkot and ASI Muhammad Moosa PS Tando Ghulam Ali District Badin,Muhammad Nadeem Siddiqui Deputy Director o/b of Director General Farm Water, Zahid Hussain Memon Asst. Executive Engineer Sub-Division Thar Division Mirpurkhas, Zulfiqar Ali Lashari Asst. Executive Engineer Khipro, AXEN Kunri Sub-Division Nalisan, Ahmed Khan Memon Addl. Director, Jahanzeb Saeed AXEN Tando Allahyar, Jawaid Hidayat Jokhio AXEN Chang Sub-Division, Muhammad Saleh Junejo AXEN Gaja Sub-Division Tando Muhammad Khan, Muhammad Bachal Memon, Canal Asst. Gaja Sub-Division, Tando Muhammad Khan, Executive Engineer Canal Sub-Division Badin, Azharuddin Bhutto AXEN Noukot Sub-Division, Syed Mutahir Ali Shah AXEN Irrigation Mirpurkhas, AXEN Bakhoro Sub-Division, Asst. Executive Engineer Kot Ghulam Muhammad, Asst. Executive Engineer Hala Sub-Division, Sirajuddin Memon SDO Irrigation Shahdadpur Hala Sub-Division, Shamshad Channa SDO Irrigation, Zulfiqar Ali Khoso AXEN Nawab Shah-I Sub-Division, Moula Bux Leghari AXEN Irrigation Sub-Division Thar, Abdul Hameed Rajpar AXEN Nawab Shah-I, Noushad Khan Junior Clerk Sub-Division Golarchi, Abdul Rashid Khoso Asst. Engineer Tando Adam-II, Fayaz Ali Qambrani S.D.O Sub-Division Shahdadpur and Muhammad Aslam Rajput AXEN Bukerani Sub-Division, ASI Rustam Ali Police Station Airport, Ins. Gul Sher Otho PS Chambar, ASI Ghulam Shabbir Police Station S.H.D, ASI Dhanji Police Station Jhudo, Mirpurkhas, ASI Muhammad Bux Police Station Tando Ghulam Ali Police Station Badin, Ins. Salehram Meghwar SHO Bodar Form o/b of SSP Umerkot, ASI Javed Hussain Soomro PS Sanghar, SIP Muhammad Iqbal o/b of SHO Police Station Jhol, SIP Muhammad Tufail Jat Police Station Khipro, Syed Irfan Ali Shah DSP Chambar District. Tando Allahyar, Ins. Ghulam Mustafa Shah SHO PS Pithoro, Muhammad Azeem Leghari PS Jhudo, SIP Iftikhar Ali Shah PS Jam Nawaz District Sanghar for Respondents.

P L D 2021 Sindh 306

Before Adnan Iqbal Chaudhry, J

ABDULLAH RAFI---Plaintiff

Versus

DIRECTOR, PROPERTY AND ENTERTAINMENT TAX, EXCISE AND TAXATION DEPARTMENT, KARACHI and 3 others---Defendants

Civil Suit No. 618 of 2012, decided on 12th February, 2021.

West Pakistan Entertainments Duty Act (X of 1958)---

----Ss.2 (f)(iii), 3, 5 & 6---Entertainment duty---Scope---Show cause notice---Charges for utilities services---Plaintiff was running an entertainment park with mechanical rides and games---Plaintiff assailed show cause notice issued by authorities on the plea that amount collected under heading of services and utility charges was not liable to entertainment duty---Validity---Term 'payment of admission' as provided under S.2(f)(iii) of West Pakistan Entertainments Duty Act, 1958, included any payment for any purpose, whatsoever, connected with an entertainment which a person was required to make as a condition of attending or continuing to attend the entertainment, which could be in addition to the entry ticket---Plaintiff could not charge additional amount as 'utility charges' to constitute a 'payment for admission' when such amount was charged from all those visiting the park alike---Argument that 'utility charges' for public facilities within the amusement park were separate and not subjected to levy was negated by S.3(2) of West Pakistan Entertainments Duty Act, 1958, as payment for admission to entertainment was made by means of a lump sum paid for any 'privilege, right, facility or thing combined with the right of admission---Entertainment duty was to be paid on amount of lump sum unless the government opined otherwise---Suit was dismissed, in circumstances.Government of West Pakistan v. Messrs Jabees Ltd. PLD 1991 SC 870 rel.

Zulfiqar Ali Langah for Plaintiff.

K.A. Vaswani, Assistant Advocate General Sindh along with Aftab Ahmed Sahto, AETO, Excise and Taxation Department, Sindh for Defendants Nos. 1-2.

Nemo for Defendants Nos. 3-4.

P L D 2021 Sindh 312

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

IRSHAD AHMED SIDDIQUI and others---Petitioners

Versus

KARACHI MUNICIPAL CORPORATION (K.D.A. Wing), KARACHI and others---Respondents

Constitutional Petitions Nos. D-663, D-907, D-908 and D-982 of 2007, decided on 22nd June, 2020.

(a) Interpretation of statutes---

----Retrospective effect---Principle---Statute/provision of statute is not to be applied retrospectively in absence of express enactment or necessary intendment, especially where statute/provision of statute affected the vested rights, past and closed transaction or facts or events that have already occurred.

Nagina Silk Mill Layallpur v. Income Tax Officer, A-Ward Layallpur and others PLD 1963 SC 322; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514 and The Chief Land Commissioner Sindh and others v. Ghulam Haider Shah and others 1988 SCMR 715 rel.

(b) Karachi Building and Town Planning Regulations, 2002---

----Reglns. 5-2.23 & 18-4.1---Karachi Development Authority Order (V of 1957), Art.52-A [as inserted by Karachi Development Authority (Sindh Amendment) Act (XXIII of1994)]---Constitution of Pakistan, Art.199---Constitutional petition---Retrospective effect of amendment---Scope---Conversion of amenity plot into residential---Registered deed, cancellation of---Procedure---Petitioners were aggrieved of action of Karachi Development Authority (KDA) which intended to demolish the construction raised by petitioners on the land in question---Plea raised by petitioners was that the land in question was reserved for amusement park but subsequently in year 1973 its status was converted to residential---Validity---Amendment of Art. 52 of KDA Order, 1957, could not be applied where conversion of amenity plot/land in question took place prior to introduction of that amendment---Provisions of Karachi Building and Town Planning Regulations, 2002, were promulgated much after conversion of the land in question---When the land in question was converted from amusement park to housing scheme there was no prohibition under the law---Land in question was converted into housing scheme after approval of competent authorities who were fully empowered to do so---Karachi Development Authority/ Karachi Metropolitan Corporation or any other authority did not challenge sub-lease deeds in favour of petitioners at any forum and the same were intact---On the basis of said sub-lease, petitioners had acquired rights in the land in question, which could not be denied or stretched at the whim and wish of any department---Sub-lease deeds in favour of petitioners were registered documents and the same could be cancelled by declaration of Court of competent jurisdiction and not unilaterally by the authorities by the condemning the petitioners unheard---All actions regarding housing scheme were with the approval of concerned authorities and were also endorsed by earlier decision of High Court with the directions to the authorities not to initiate any demolition action and further not to take any coercive action against petitioners---Constitutional petitions were allowed accordingly.

Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and 4 others 1999 SCMR 2883; Mrs. Farah Hamayun Shehzad Baloch v. Federation of Pakistan through Secretary Ministry of Defence and 3 others 2014 CLC 1158; Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279 and Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 ref.

Mrs. Zaibun Nisa through Attorney v. Karachi Development Authority and 5 others PLD 1998 Kar. 348 and Messrs Ahmed Clinic v. Government of Sindh and others 2003 CLC 1196 rel.

Muhammad Ali Jan for Petitioners (in C.P. No. D-663 of 2007).

Akhtar Hussain and Muhammad Masood Ghani for Petitioners (in C.Ps. Nos.D-907 and 908 of 2007).

Afsar Ali Abidi, Kunwar Majid Ali Khan and Awais Sarki for Petitioners (in C.P. No. D-982 of 2007).

Sameer Ghazanfar and Hassan Abidbi for K.M.C. along with Muhammad Ismail Khan Incharge Deputy Director (Urban Design-I), Master Plan Department, SBCA for Respondents..

Kafeel Ahmed Abbasi, Deputy Advocate General for Respondents.

Jawad Dero, Additional Advocate General, Sindh for Respondents.

Saifuddin for PECHS.

P L D 2021 Sindh 328

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

ANJUM BADAR---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others---Respondents

Constitutional Petitions Nos. D-6241, D-828, D-5115 of 2016, D-2683, D-4516, D-6229 of 2017, D-2732, D-4271, D-5995, D-9016 of 2018, D-4107, D-7376 of 2019, D-1572, D-4292, D-4902 of 2020, decided on 8th April, 2021.

(a) Sindh (Regularization of Ad hoc and Contract Employees) Act (XXV of 2013)---

----S. 3---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 10---Sindh Public Service Commission (Functions) Rules, 1990, R. 3---Contractual employees seeking regularization in service---Petitioners sought regularization of their contractual appointments in BPS-17 under S.3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013---Validity---Rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and R.3(1)(i) of the Sindh Public Service Commission (Functions) Rules, 1990, mandated that initial appointments to the posts in BS-16 to BS-22 were to be made by the Commission on the basis of examination or test to be conducted by it, if the posts fell within its purview---Petitioners had to go through the mandatory competitive process of selection that was required for the appointment of a civil servant---Argument of petitioners that it would be discriminatory if they were not regularized after serving for a considerable period or they would not be able to get another job if they were relieved at this stage, had no force---Petitioners had voluntarily applied for appointment on contract and after fully understanding the implications and consequences of a contractual appointment had voluntarily accepted the same---Petitioners' regularization would in fact be discriminatory against the serving civil servants if contractual employees were granted the status of a civil servant without having gone through the mandatory competitive process prescribed for the selection and appointment of a civil servant---Constitutional petitions were dismissed, in circumstances.

Administrator Lucky Marwat v. Izzat Khan 2000 SCMR 777; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Government of KPK v. Adnanullah, 2016 SCMR 1375; Government of N.W.F.P. (Now KPK) through its Chief Secretary v. Kaleem Shah 2011 SCMR 1004; Ghulam Mustafa v. Omaid Ali 1984 SCMR 1126; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; Chairman, Minimum Wage Board, Peshawar v. Fayyaz Khan Khattak 1999 SCMR 1004; Muhammad Akhtar Shirani v. Punjab Textbook Board 2004 SCMR 1077; Federation of Pakistan v. Gohar Riaz 2004 SCMR 1662; Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Government of N.W.F.P. through Secretary, Education Department, Peshawar v. Qasim Shah 2009 SCMR 382; Sumara Umar Awan v. Chancellor Gomal University, D.I. Khan 2014 PLC (CS) 526; Rafaqat Ali v. Executive District Officer (Health) 2011 PLC (C.S.) 1615; Shabana Akhtar v. District Coordination Officer, Bhakkar 2012 PLC (C.S.) 366; Shahid Habib v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 1426 and Suo Motu Action Regarding Eligibility of Chairman And Members of Sindh Public Service Commission and others 2017 SCMR 637 ref.

Dr. Iqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S.) 1153 not fol.

C.P. No.D-5397 of 2019 per incuriam.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Shahid Pervaiz v. Ejaz Ahmed and others 2017 SCMR 206 and Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others 2018 SCMR 1218 rel.

(b) Constitution of Pakistan---

----Art. 199---Contractual employment---Regularization of service---Writ of mandamus---Scope---Writ of mandamus could not be claimed as a matter of right and, for issuance of direction in the nature of mandamus, there must be a legal right existing in favour of the person seeking a writ of mandamus and a corresponding legal duty imposed upon the public officer or authority against whom the writ is sought---Petitioners, who were contractual employees, did not have any vested right to seek appointment on regular basis; and, they had also not acquired any legal right from the appointment made by the Provincial Government and accepted by them admittedly on contract---No corresponding legal duty was cast on the Government to appoint them on regular basis, and thus, writ of mandamus, for by the petitioners, could not be granted---Constitutional petitions were dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art. 199---Master-servant relationship---Constitutional petition filed by contractual employees seeking regularization of their services---Maintainability---Contract employee, whose terms and conditions of service are governed by the principle of 'master and servant', does not acquire any vested right for regular appointment, or to claim regularization, or to approach High Court in its constitutional jurisdiction to seek redressal of his grievance relating to regularization; in fact he is debarred from approaching High Court in its constitutional jurisdiction and the only remedy available to him is to file a suit for damages alleging breach of contract or failure on the part of the employer to extend the contract---After accepting the terms and conditions for contractual appointment, the contract employee has no locus standi to file a constitutional petition seeking writs of prohibition and/or mandamus against the authorities from terminating his service and/or to retain him on his existing post on regular basis---Contract employee, whose period of contract expires by efflux of time, carry no vested right to remain in employment of the employer and the courts cannot compel the employer to reinstate him or to extend his contract; and, no rights would accrue to a de facto holder of a post whose right to hold the said post is not established subsequently.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Government of Balochistan, Department of Health, through Secretary Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Dr. Mubashar Ahmed v. PTCL, through Chairman, Islamabad, and another 2007 PLC (C.S.) 737; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Abid Iqbal Hafiz v. Secretary, Public Prosecution Department, Government of Punjab, Lahore and others PLD 2010 SC 841; Suo Motu Case No.15 of 2010 (In re; Sou Motu action regarding regularization of contract employees of Zakat Department and appointment of Chairman of Central Zakat Council) 2013 SCMR 304; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Province of Punjab through Secretary Agriculture Department Lahore and others v. Muhammad Arif and others 2020 SCMR 507; Naureen Naz Butt v. Pakistan International Airlines 2020 SCMR 1625; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068 and judgment dated 18.02.2021 Civil Appeals Nos. 936 and 937 of 2020 ref.

(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 10---Sindh Civil Servants Act (XIV of 1973), S.5---Sindh Public Service Commission (Functions) Rules, 1990, R. 3---Constitution of Pakistan, Arts. 240 & 242---Appointments to service of Pakistan and conditions of service---Initial appointments---Public Service Commission, function of---Scope---Provincial Government and/or the competent authority cannot bypass the mandatory requirement of filling the post of BS-17 through the Public Service Commission after advertisement and substitute a parallel mechanism to appoint a person in BS-16 to BS-22 against the language of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which have been framed under the dictates of the Sindh Civil Servants Act, 1973, as mandated under Art. 240 of the Constitution---Article 242 of the Constitution provides the mechanism for appointment of a civil servant through the Commission---Said Article, which is a safety valve to ensure the transparent process of induction in the civil service, provides appointment by the Commission with the sole object that meritorious candidates join civil service---Provincial Government through executive or legislative instruments cannot withdraw any post from the purview of the Commission in negation to the command of Art. 242 of the Constitution; and, the Provincial Government had to make all the appointments in BS-16 to BS-22 through the Commission.

(e) Sindh (Regularization of Ad hoc and Contract Employees) Act (XXV of 2013)---

----S. 3---Constitution of Pakistan, Arts. 240 & 242---Appointments to service of Pakistan and conditions of service---Regularization of services of contractual employees---Public Service Commission, function of---Scope---Section 3 of the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013, to the extent of regularization/ appointment in BS-16, 17 and 18 without the mandatory competitive process of selection by the Public Service Commission, being ultra vires the Constitution, cannot be applied or enforced.

(f) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Supreme Court is the Court of last resort and the law declared or principles enunciated by it are binding on all the subordinate Courts and authorities in Pakistan; and, all the Courts and public institutions are bound to follow the principles laid down by the Supreme Court.

(g) Vires of statute---

----If the statute, or any part thereof, under which relief is sought is ultra vires the Constitution or is against the law laid down by the Supreme Court, the High Court, while declining the relief, would be fully justified and competent to look into the vires of such statute and to declare it ultra vires---High Court would be failing in its constitutional duty if it keeps its eyes shut by allowing such statute to remain in the field.

(h) Vires of statute---

----Only such law is valid and effective which is made in accordance with law and not which violates the law or which will have the effect of frustrating the law---Piece of legislation which is against the command of the Constitution and or the law laid down or direction given by the Supreme Court cannot be applied or enforced.

Shahid Pervaiz v. Ejaz Ahmed and others 2017 SCMR 206 and Muhammad Azam Khan and 10 others v. Government of NWFP through Chief Secretary, NWFP, Peshawar and 4 others 1998 SCMR 204 rel.

M. M. Aqil Awan, Abdul Salam Memon, Malik Naeem Iqbal, Muhammad Arshad Khan Tanoli, Ali Asadullah Bullo, Faizan Hussain Memon, Danish Rashid and Altaf Ahmed Sahar for Petitioners.

Salman Talibuddin, Advocate General Sindh and Ali Safdar Depar, Assistant Advocate General Sindh for Respondents.

P L D 2021 Sindh 347

Before Arshad Hussain Khan, J

MUHAMMAD ARSHAD MALIK---Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINE CORPORATION through Managing Director, Karachi and 2 others---Defendants

Suit No. 950 of 2008, decided on 4th May, 2020.

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

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O. XXIII, R.1---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration, mandatory and permanent injunction---Abandonment of claim---Estoppel---Scope---Plaintiff filed suit for declaration, mandatory and permanent injunction seeking regularization of his services---Validity---Plaintiff had initially, in the year 2001, approached the High Court (Lahore) for regularization of his contractual service in the employer Corporation, however, subsequently he had abandoned his claim---Plaintiff was estopped from agitating his same claim in the present case---Principle of acquiescence and waiver was attracted---Plaintiff had consciously given up his right to seek permanent absorption and/or seeking any benefit of permanent employment in the Corporation on the basis of his past contractual service while accepting new contract---Suit was dismissed, in circumstances.

Nabeela Ashfaq v. Federation of Pakistan through Secretary Defence and 3 others 2020 PLC (C.S.) 24; Shahbaz Khan v. Additional District Judge, Ferozwala and others 2017 SCMR 2005; Saima Fareed and 4 others v. Divisional Director Schools Elementary/Secondary (Female Muzaffarabad) and 24 others 2018 PLC (C.S.) 338; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Mst. Rani v. Pakistan International Airline Corporation and another 2017 PLC (C.S.) Note 11, p.11; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Attiya Sehrai v. Pakistan International Airlines Corporation through its President (Civil Petition No.1159 of 2018) and Mst. Rani v. Pakistan International Airline Corporation and another (High Court Appeal No.42 of 2016). ref.

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

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---Order XXIII, C.P.C. provides that a party, in case of withdrawal of suit or abandonment of part of a claim without the permission, shall be precluded from instituting any fresh suit/lis in respect of subject matter or such part of the claim.

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

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---Rule 1(1) of O.XXIII, C.P.C. entitles the plaintiff to withdraw his suit or abandon his claim or a part thereof, against all or any one of the defendants at any stage of the proceedings and this is his absolute privilege and prerogative---Where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action in respect of the subject matter and against the same defendants---Such bar is absolute and conclusive.

Muhammad Yar (deceased) through L.Rs. and others' case 2013 SCMR 464 and Shahbaz Khan v. Additional District Judge, Ferozewalla and others 2017 SCMR 2005 ref.

Azhar Hayat v. Karachi Port Trust through Chairman and others 2016 SCMR 1916 rel.

(d) Words and phrases---

----"Waiver" and "Acquiescence" explained.

"Waiver" or "acquiescence" may be described as intentional relinquishment of a known right or such conduct as would warrant an inference of relinquishment of such right; implying consent to dispense with or forgo something to which a person is entitled, however to constitute waiver there must be some conscious giving up of a right and a person cannot be held bound unless he is aware of what exactly he was waving and what right he was giving up with knowledge of all the facts.

Messrs Classic Marble and another v. Karachi Electric Supply Corporation Limited 2006 CLC 702 ref.

(e) "Waiver", doctrine of---

----Where a person in spite of having full knowledge of violation of any of his rights of personal nature remains silent and does not take any measure for safeguarding it then he would be deemed to have impliedly waived it.

Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 ref.

Muhammad Ali Lakhani for Plaintiff.

Ms. Farkhunda Shaheen for Defendants.

P L D 2021 Sindh 373

Before Adnan Iqbal Chaudhry, J

Messrs CHHIPA CORPORATION through Partner---Plaintiff

Versus

SUI SOUTHERN GAS COMPANY LIMITED through Chief Executive and 2 others---Defendants

Suit No. 2206 of 2017, decided on 17th March, 2021.

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

----O.VII, R. 11 & O. II, R. 2---Rejection of plaint---Same cause of action---Second suit during pendency of first suit---Scope---Defendant-Sui Southern Gas Company ('the Gas Company') sought rejection of plaint of second suit on the grounds that said suit was barred by O. II, R.2 of Civil Procedure Code, 1908, that previous suit filed by plaintiff (corporation/consumer of the Gas Company) against the Gas Company on the same cause of action was already pending---Plaintiff contended that absence of the Commissioner Inland Revenue from the first suit would rule out O. II, R. 2 of Civil Procedure Code, 1908---Held, that while Gas Company was defendant in both suits, the Commissioner Inland Revenue was subordinate to Federal Board of Revenue (FBR)---Since FBR was a defendant in first suit whereas in the second suit, the Commissioner Inland Revenue was added as a defendant by the Court on its own motion, the parties in both were same for all intents and purposes---Plaint of the subsequent suit was rejected.

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

----O.VII, R. 11 & O. II, R. 2---Rejection of plaint---Second suit during pendency of first suit---Same cause of action---Test---Defendant-Sui Southern Gas Company ('the Gas Company') sought rejection of plaint of second suit on the grounds that said suit was barred by O. II, R. 2 of Civil Procedure Code, 1908, that previous suit filed by plaintiff (corporation/consumer of the Gas Company) against the Gas Company on the same cause of action (demand of payment of arrears of sales tax by the defendant) was already pending---Held, that intent behind O.II, R. 2 of C.P.C, 1908 was to control splitting-up of claims and to restrict multiplicity of suits---To determine whether cause of action of two suits was the same, a (rough) test was to see whether the same evidence would sustain both suits---Applying the said test, it was apparent that if the second suit was to proceed, the evidence required to determine whether the arrears of sales tax claimed were lawful, would be the same evidence as in the first suit, therefore, the second suit was not founded on a cause of action separate from the first suit---Plaint of second suit was rejected under O. VII, R. 11, C.P.C., 1908, in circumstances.

Mian Muhammad Iqbal v. Mir Mukhtar Hussain 1996 SCMR 1047 and Abdul Hakim v. Saadullah Khan PLD 1970 SC 63 ref.

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

----O. II, R. 2, Explanation Clause & O. VII, R.11---Sales Tax General Order No. 16/2007 issued under Sales Tax Act (VII of 1990) S.4(d) [omitted by the Finance Act, 2019]---Second suit during pendency of first suit---Fresh cause of action---Scope---Rejection of plaint---Defendant-Sui Southern Gas Company ('the Gas Company') sought rejection of plaint of second suit on the grounds that said suit was barred by O. II, R. 2 of Civil Procedure Code, 1908 contending that previous suit filed by plaintiff (corporation/consumer of the Gas Company) against the Gas Company on the same cause of action (demand of payment of arrears of sales tax by the defendant) was already pending---Plaintiff contended that arrears on sales tax were charged while withdrawing zero-rated facility by the defendant, who stopped billing the plaintiff for said arrears, so a new bill after three years gave rise to a fresh cause of action---Held, that plea of the plaintiff was a misconception and was addressed by the explanation clause to O. II, R. 2, C.P.C., that an obligation and collateral security for its performance and successive claims arising under the same obligation shall be deemed to constitute but one cause of action---Since it was not the plaintiff's case that the arrears first raised by the gas bill three years ago were paid, or that the matter had otherwise been resolved, the second suit against raising of a fresh bill for the same arrears or against a reiteration of the same demand, was only a successive claim arising under the same obligation which would not constitute a fresh cause of action for a second suit when the first suit for the same was pending---Second suit was not on a fresh cause of action, rather it had been brought against a successive claim under the same obligation which was the subject matter of the first suit pending between the same parties---Second suit did not escape the bar contained in O. II, R. 2, C.P.C.---Plaint of second suit was rejected under O.VII, R.11, C.P.C., in circumstances.

Abdul Maroof Khan Afridi v. Karachi Development Authority 1990 MLD 2252 and Ghulam Shabbir v. Inspector General of Police, Punjab 2007 PLC (C.S.) 883 ref.

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

----O.VII, R. 11, O. II, R. 2, Explanation clause & O. XXXIX, Rr. 1 & 2---Second suit during pendency of first suit---Rejection of plaint---Fresh cause of action---Scope---Defendant-Sui Southern Gas Company (' the Gas Company') sought rejection of plaint on the ground that subsequent suit was barred by O.II, R. 2, C.P.C. as previous suit filed by plaintiff (consumer/corporation) against the Gas Company on the same cause of action was already pending---Contention of the plaintiff was that there was threat of disconnection of gas supply which was a fresh cause of action---Validity---Contention of the plaintiff was of no force when the threat was already alleged and pleaded by the plaintiff in the plaint of first suit---Threat of disconnection emanated from the arrears of sales tax on gas supply which was subject matter of the first suit---In view of explanation clause of O.II, R. 2 of C.P.C, that would not give cause for a second suit when the first was pending---Plaint of second suit was rejected under O. VII, R. 11, C.P.C, in circumstances.

Mushtaque Hussain Qazi for Plaintiff.

Asim Iqbal and Farmanullah Khan for Defendants Nos. 1 and 2.

Nemo for Defendant No. 3.

Anwar Kamal, Assistant Attorney General for Pakistan (on Court notice).

P L D 2021 Sindh 381

Before Adnan-ul-Karim Memon, J

MUHAMMAD SALEEM---Applicant

Versus

HARESH KUMAR and 14 others---Respondents

Civil Revision Application No. 217 of 2018, decided on 5th October, 2020.

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

----O. XVII, R.3---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance of contract and injunction---Failure to produce evidence---Trial Court dismissed the suit of the plaintiff for want of evidence which judgment/decree was maintained by the Appellate Court---Record revealed that the petitioner/plaintiff was afforded several opportunities by the Trial Court to lead the evidence for about three years after framing of issues---Appellate Court also maintained the order of the Trial Court holding that about eight (08) opportunities were given to the petitioner but not on even a single date he appeared before the Trial Court till the Trial Court invoked the provisions of O.XVII, R.3 of the Civil Procedure Code, 1908---Where last opportunity to produce evidence was granted and the party had been warned of the consequences, the Court must enforce its order unfailingly without exception---Such order would not only put the system back on track and re-affirm the majesty of law but would also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong proceedings without any valid or legitimate reason---No illegality or infirmity having been noticed in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipeline Limited and another 2020 SCMR 300 ref.

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

----O. XVII, R. 3---Failure to produce evidence---Right of evidence to be closed by the Trial Court---Scope---Held that O. XVII, R. 3 of the C.P.C, 1908 applied when time had been granted to a party to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for the progress of suit and would not apply unless default had been committed by such party in doing the act for which the time was granted.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 and Rana Tanveer Khan v. Naseer-Ud-Din and others 2015 SCMR 1401 ref.

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

----O. XVII, R.3---Failure to produce evidence---Right of evidence to be closed by the Trial Court---Conditions---Held , that for the application of O. XVII, R. 3 of C.P.C, 1908 in order to close the right of a party to produce evidence, conditions were to be met that: at the request of a party to the suit to adduce evidence, time must have been granted with a specific warning that the said opportunity would be the last and failure to adduce evidence would lead to the closure of right to produce evidence; and the same party, on the date which was fixed as the last opportunity, failed to produce its evidence.

Shakeel Ahmed Shaikh for Applicant.

Arbab Ali Hakro for Respondents Nos. 1 to 3, 7 to 10.

Jai Dev Sharma for Respondents Nos. 4, 5 and 6.

P L D 2021 Sindh 388

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

LAL BUX---Petitioner

Versus

IIND ADDITIONAL DISTRICT JUDGE, HYDERABAD and others---Respondents

Constitutional Petition No. D-116 of 2014, decided on 20th August, 2020.

(a) Sindh Land Revenue Act (XVII of 1967)---

----Ss. 135 & 172---Civil Procedure Code (V of 1908), S. 9 & O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42, 39, 54 & 55---Application for partition---Rejection of plaint---Jurisdiction of Civil Court---Exclusion of jurisdiction of Civil Court in matters within the jurisdiction of Revenue Officers---Scope---Petitioner assailed rejection of his plaint in a suit for declaration, partition, cancellation of registered deed, mandatory and permanent injunction against his father being co-sharer---Contention of respondent was that jurisdiction of Civil Court was barred in the matters of partition of agricultural land in view of Ss.135 & 172 of Sindh Land Revenue Act, 1967 and S.9 of C.P.C.---Validity---Civil Court had been granted general jurisdiction to try all the suits of civil nature in respect of the enforcement of civil rights unless their jurisdiction was expressly or impliedly barred---Impugned order suffered from material illegalities, irregularities and was made in excess or failure to exercise jurisdiction, as such, the same was set aside and the case was remanded to the Trial Court for decision of suit on merits.

Muhammad Ibrahim and others v. Muhammad Ismail and others 2005 SCMR 1335 and Qamar Sultan and others v. Mst. Bibi Sufaidan and others 2012 SCMR 695 distinguished.

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

----O. VII, R. 11---Rejection of plaint---Scope---Plaint, in order to be rejected, must be shown to be barred under some law on the basis of averments made in the plaint; court at that stage would be neither entitled to look into the pleas raised by defendant nor could examine the merits of allegations made in the plaint---Every allegation made in the plaint had to be accepted as correct while rejecting the plaint under O.VII, R.11, C.P.C.; fact that plaintiff might not ultimately succeed in establishing the allegations in the plaint could not be a ground for rejecting the plaint under O.VII, R.11, C.P.C.

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

----S. 9---Courts to try all civil suits unless barred---Maxim: Ubi Jus Ibi Remedium---Scope---Ubi Jus Ibi Remedium (where there is right, there is remedy) is a fundamental principle of law that any person having right has a corresponding remedy to institute suits in the court of law unless the jurisdiction of the court is barred by virtue of the provisions of S.9 of the Code of Civil Procedure.

(d) Words and phrases---

----"Jurisdiction"---Scope---Term jurisdiction refers to the legal authority to administer justice in accordance with the means provided by law and subject to the limitations imposed by law.

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

----S. 9---Courts to try all civil suits unless barred---Scope---Where the jurisdiction of the Civil Court is barred and conferred upon special tribunals, the civil courts being courts of ultimate jurisdiction will have jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal and even mala fide.

Irfan A. Qureshi for Petitioner.

Jagdish R. Mullani for Respondent No.6.

Allah Bachayo Soomro, Additional A.G., Province of Sindh.

P L D 2021 Sindh 394

Before Adnan Iqbal Chaudhry, J

UNITED BANK LIMITED---Applicant

Versus

SHOAIB AHMED and 5 others---Respondents

Civil Revision No. 4 of 2005, decided on 9th August, 2019.

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

----O. XLI, R. 31---Framing points for determination---Scope---Appellate Court did not formally list points for determination in the judgment while concurring with the findings of the Trial Court---Question was, whether or not, O.XLI, R.31 of C.P.C., 1908, mandated that the Appellate should formally list points for determination in all cases, and whether its failure to do so rendered the judgment defective---Petitioner(plaintiff-bank) contended that the case called for remand as the Appellate Court had failed to frame points for determination---Held, that where the Appellate Court did not reverse the findings of the Trial Court, a decision on each issue might not be distinctly recorded as long as the provision of O. XLI, R. 31 of C.P.C was complied with in substance---Sufficient compliance with the said provision would be made if the evidence was essentially discussed and findings recorded, even if some issues were discussed and were decided together---Real question for deciding an appeal should be whether a party had been prejudiced and/or there had been gross miscarriage of justice---Plea of the petitioner calling for a remand merely for the reason that the Appellate Court did not formally list points of determination carried no weight when Appellate Court, in the present case, had infact reappraised the evidence, applied its own mind and given reasons for its decision before concurring with the Trial Court---Revision petition was dismissed, in circumstances.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868; Roshi v. Fateh 1982 SCMR 542 and Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 ref.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 distinguished.

(b) Registration Act (XVI of 1908)---

----Ss. 17(1), proviso & 49---Transfer of Property Act (IV of 1882), S.107---Specific Relief Act (I of 1877), Ss. 42 & 54---Registered document---Sanctity---Compulsorily registration, exemption from---Scope---Petitioner (plaintiff/bank) sought declaration that the documents (registered sale-deeds) relied upon by the (private) respondents/ defendants, to claim an adverse title to the suit-land, were bogus; and that petitioner's reliance upon Indenture of Lease was exempt from compulsorily registration---Held, that to claim title/right the petitioner had produced/exhibited in its evidence an Allotment Order issued by respondent (Administrator of the concerned Municipal Corporation) allotting the suit-land to the bank (petitioner); a Certificate of Possession; and an unregistered Indenture of Lease executed by the Municipal Corporation---On the other hand, for their claim title, the respondents had produced four registered sale-deeds, executed from time to time in favour of the respondents---Indenture of lease relied upon by the petitioner was an unregistered document which was required to be registered compulsorily under S.17(1) of the Registration Act, 1908 read with S.107 of the Transfer of Property Act, 1882---Petitioner had failed to refer to any notification issued by the Provincial Government under the proviso to S.17(1) of the Registration Act, 1908 to claim such exemption---Said Lease, having been executed for a period exceeding five (05) years, the same would not fall within the proviso to S.17(1) of the Registration Act, 1908---In view of S.49 of the Registration Act, 1908, the lease-in-question did not operate to create or assign any right, title or interest in the suit-land---Revision was dismissed.

(c) Registration Act (XVI of 1908)---

----Ss. 17(1) & 49---Transfer of Property Act (IV of 1882), S. 107---Specific Relief Act (I of 1877), Ss. 42 & 54---Document---Sanctity---Compulsorily registration---Scope---Plaintiff-bank filed suit for declaration and permanent injunction with consequential relief to retain the possession of immoveable/suit property allegedly leased/ allotted by the defendant (Administrator Municipal Corporation), for the construction of a sports complex---Held, that the petitioner-bank claimed title/right to certain part of subject property, whereas the (private) respondents claimed title/right to another part of the subject property---To claim their title/right the petitioner had produced/ exhibited in its evidence an Allotment Order issued by respondent (Administrator of the concerned Municipal Corporation) allotting the suit-land to the bank (petitioner); a Certificate of Possession; and an unregistered Indenture of Lease executed by the Municipal Corporation---Though said Indenture of Lease was unregistered, however, that alone was not a ground to non-suit the petitioner---Petitioner could still fall-back on said exhibited documents (Allotment Order and the Certificate of Possession) for claiming a 'right' in the suit-land---Perusal of the record revealed that there were two disputed survey numbers common to both sides and it was the area in said survey numbers which was over-lapped by the land allotted to the petitioner-bank---Certain land, out of said survey number was not disputed by the petitioner-bank and was also supported by respondent/Administrator---Therefore, without prejudice to the land in other Survey Numbers, the dispute between the parties was essentially on boundaries of their respective lands as respondents took no issue to any other land being claimed by the petitioner-bank except for certain area claimed by respondents---While evidence of the petitioner-bank had not shed any light on the boundaries/demarcation of the suit-land, the respondents had produced/exhibited documents (Certificate of Possession and letter to the petitioner of the year 1998/bank from respondent/Administrator) showing that certain area claimed by respondents was demarcated and handed over by the concerned Superintendent Survey to the respondents and was reported to a Civil Court (in a previous suit pending at relevant time) as well as to the petitioner-bank---Although the petitioner asserted unawareness regarding said documents (and especially that they had never received the said letter), nevertheless the same were produced/exhibited by the respondents and no objection was raised/rebutted to the production of the said documents by the petitioner-bank---Respondents had no evidence/conveyance to show ownership of additional area other than cumulative area mentioned in the sale deeds produced by the respondents; High Court set aside the findings in the impugned judgment that the respondents were owners of land over and above mentioned in said sale-deeds, however, the same did not turn the case in favour of the petitioner-bank---Revision was dismissed.

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

----S. 42---Suit for declaration---Phrase "Right to any property" used in S.42 of the Specific Relief Act, 1877---Scope---Said phrase was not confined to 'title' to property.

Abdul Razzak Khamosh v. Abbas Ali PLD 2004 Kar. 269 ref.

Imdad Ali Mashori for Applicant.

Shakeel Ahmed Abro for Respondents Nos. 1-6.

Naimatullah Bhurgri and Ali Akber Kalhoro, State Counsel for Respondents Nos.7-9.

P L D 2021 Sindh 405

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

SAIFULLAH ABRO---Petitioner

Versus

SENATE APPELLATE TRIBUNAL, KARACHI and 2 others---Respondents

Constitution Petitions Nos. D-1407 and D-1408 of 2021, decided on 1st March, 2021.

Elections Act (XXXIII of 2017)---

----Ss. 62, 112 & 113 (3)---Senate election---Objection to candidature---Jurisdiction of Returning Officer and Election Tribunal---Scope---Petitioner was a candidate for Senate election---Returning Officer accepted nomination papers of petitioner but Election Tribunal rejected the same---Validity---Any voter of a constituency could file objections under S.62 of Elections Act, 2017, to candidature of a candidate of that constituency who was nominated or whose name was included in party list submitted by a political party for election to an Assembly before Returning Officer within the period specified by Election Commission for scrutiny of nomination papers of a candidate contesting election to Assembly---In Senate elections list of specified persons was given in S.112 (1) of Elections Act, 2017, who could raise objections for Senate election---Respondent could not file objection and Returning Officer had rightly denied the same---Power conferred upon Election Appellate Tribunal was exercisable on its motion based on material brought to its knowledge from any source---Requirement of S.113(3) Elections Act, 2017, in which issuance of show cause notice was mandatory to reject nomination papers by Election Appellate Tribunal on its own motion---High Court set aside order passed by Election Appellate Tribunal, as no show cause notice was issued to petitioner---High Court restored order passed by Returning Officer as the respondent did not have locus standi to file objection before Returning Officer---Constitutional petition was allowed, in circumstances.

Nawab-ud-Din Saingal v. Additional District Judge and others 2015 YLR 1674; Samuel Xaviour and another v. Provincial Election Commissioner (Sindh) and 34 others 2008 YLR 1958; Haji Khuda Bux Nizamani v. Election Tribunal and others 2003 MLD 607; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas PLD 2014 SC 471; Commissioner Inland Revenue (Zone-I) LTU, Karachi v. Messers Linde Pak Ltd. Karachi 2020 SCMR 333; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Sheikh Rafique Ahmed v. Zia Shahid and another 1999 SCMR 573; Dr. Aon Muhammad Khan v. Lt. Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Sh. Ihsanul Haq Piracha v. Mr. Wasim Sajjad and others PLD 1986 SC 200; Malik Nawab Sher v. Ch. Muneer Ahmed and others 2013 SCMR 1035; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Nawabzada Mir Balach Khan Marri through Attorney v. Mir Mohabat Khan Marri PLD 2003 Quetta 42; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 313; Raja Pervaiz Ashraf v. Election Tribunal and others PLD 2013 Lah. 552; Moulana Agha Muhammad v. Returning Officer, NA-261 Pishin Cum Ziarat and others 2013 SCMR 1158; Raja Muhammad Safdar v. District Returning Officer, Rawalpindi and 2 others 2006 CLC 87; Asif Jatoi v. Election Commission of Pakistan and others 2004 YLR 2192; Ch. Muhammad Ayoob and another v. District Judge, Sanghar and others 2003 MLD 1956; Motal Bai v. Abdul Aziz and others PLD 1968 Kar. 635; Messers M. Rafique & Co., Gujranwala v. Badaruddin 1980 CLC 1300; Haji Bashir Ahmad and 9 others v. Federal Land Commission, Islamabad and 3 others PLD 1985 Kar. 83; Mian Parvaiz Rafi v. Abdul Aziz 2014 YLR 1726; Muhammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmad Tarar 2016 SCMR 1;Abdul Ghafoor Lehri v. Returning Officer, PB-29 Naseerabad-II and others 2013 SCMR 1271; Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482; Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70; Moazam Ali Khan Abbasi v. Federation of Pakistan through Secretary Election Commission of Pakistan and 6 others 2000 CLC 1938; Speaker, National Assembly of Pakistan, Islamabad and others v. Habib Akram and others PLD 2018 SC 678; Suo Motu Case No.11 of 2011 PLD 2014 SC 389; Muhammad Shakeel v. The State and others PLD 2014 SC 458; Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan and 6 others PLD 2018 Lah. 318 and Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 ref.

Makhdoom Ali Khan for Petitioner (in C.P. No. D-1407 of 2021), assisted by Fahad Khan, Ghulam Hussain Shah, Sami ur Rehman Khan and Malik Samil Khan.

Haider Waheed for Petitioner (in C.P. No.D-1408 of 2021), assisted by Ahmed Masood and Aamir Khosa.

Muhammad Haseeb Jamali for Respondent No. 2 (in C. P. No.D-1407) of 2021, assisted by Muhammad Najeeb Jamali and Hidayatullah Mangriyo.

Qadir Khan Mandokhail undertakes to file Vakalatnama for Respondent No.2 (in C.P. No.D-1408 of 2021) in the office.

Hussain Bohra, Assistant Attorney General along with Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

P L D 2021 Sindh 418

Before Mohammad Karim Khan Agha and Omar Sial, JJ

MIRPURKHAS SUGAR MILLS LIMITED through Wasif Khalid and 19 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and 9 others---Respondents

Constitutional Petition No. D-3004 of 2020, decided on 17th August, 2020.

(a) Constitution of Pakistan---

----Arts. 4, 10-A, 14 & 25---Rule of law, fair trial, dignity of man and discrimination---Good governance---Dealing with crime---Principle---Any form of corruption, tax evasion, money laundering, illegal cartelization needs to be stamped out with an iron hand---Such must be done in accordance with law and by following due process as mandated by Art. 10-A of the Constitution so that every suspect has a fair opportunity to clear his name and position---Only through the Executive following the law, acting in accordance with law and treating every one equally before law and jealously guarding suspects, due process rights and dignity as mandated by Arts. 4, 25, 10-A & 14 of the Constitution, is the rule of law and good governance, which enhances faith of people in democratic system to grow.

(b) Pakistan Commission of Inquiry Act (IX of 2017)---

----Ss. 3 & 10---Constitution of Pakistan, Arts. 10-A, 14 & 199---Constitutional petition---Inquiry Commission---Constitution and its powers---Gazette notification, requirement of---Audi alteram partem, principle of---Due process of law---Dignity of man---Petitioners-sugar mills were aggrieved of proceedings by Inquiry Commission constituted by Federal Government to determine causes for shortage of sugar in the market---Validity---If a Commission was constituted under Ss. 3 & 10 of Pakistan Commission of Inquiry Act, 2017, by Federal Government then it was mandatory for that Commission to be notified in official gazette---Constitution of the Commission was not published in official Gazette until the Commission had submitted its report---Petitioners had no notice that Commission had come into existence and had no opportunity to challenge its creation if they so desired until after the Commission had submitted its report---It was incumbent for the Commission to give each and every petitioner and sugar miller the opportunity of being heard including petitioner before making damaging comments, observations, findings, recommendations against petitioners and other sugar mill owners in its report---None of the officers of petitioners were given opportunity to be heard by the Commission or confronted with any document or given any chance to put forward their position through documents or otherwise in respect to the Commission in order to disprove any allegation made against them or the industry---Petitioners were condemned unheard by adverse comments which were made against the entire sugar industry---Such act was contrary to principle of audi alteram partem, which was a due process right guaranteed under Art. 10-A of the Constitution---Such disparaging comments made against petitioners and Sugar industry in the Report in question without giving them right to be heard, had not only damaged reputation of petitioners but also violated their Constitutional right to dignity as provided in Art. 14 of the Constitution---High Court quashed the notification constituting Inquiry Commission, its Report and all act done by the Commission as the same were without lawful authority and of no legal effect---High Court directed that Chairman, National Accountability Bureau (NAB) shall open an independent inquiry to be carried out in accordance with National Accountability Ordinance, 1999, to determine whether any acts of corruption were committed by any of the petitioners, without reference to the Report of the Commission; that Chairman, Federal Board of Revenue shall open independent inquiries to be carried out in accordance with relevant taxation laws to determine whether any illegality under relevant taxation legislation was committed by any of the petitioners, without reference to the Report of the Commission; that Federal Investigation Agency shall open independent inquiries to be carried out in accordance with Anti-Money Laundering Act, 2010 to determine whether any acts of money laundering falling within its purview had been committed by any of the petitioners, without reference to the Report of the Commission---Constitutional petition was disposed of accordingly.

Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Khushdil Khan Malik v. Secretary, Ministry of Defence Rawalpindi Cantt PLD 2017 SC 173; PTCL v. Federation of Pakistan 2016 PTD 1484; Indus Motors v. Pakistan (Suit No.2249 of 2016); Central Insurance Co. v. The Central Board of Revenue 1993 SCMR 1232; Mayzone Pak. International v. Additional Secretary, Government of Pakistan 2002 CLC 388; Collector of Customs v. Askari Cement Ltd. 2016 PTD 1886; Mirpurkhas Sugar Mills Ltd. v. Federation of Pakistan through Secretary, Ministry of Science and Technology, Government of Pakistan 2013 MLD 433; Shahtaj Sugar Mills Ltd. v. Province of Punjab 1998 SCMR 2492; Federation of Pakistan through Secretary, Ministry of Foreign Affairs and 5 others v. Jamaluddin and others 1996 SCMR 727; Barrister Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Rizwan Ashraf v. Federation of Pakistan 2020 PLC (C.S.) 605; Senator Taj Haider v. Government of Pakistan 2018 CLC 1910; Ahmad Nawaz Shah v. Chairman, C.B.R. 2002 SCMR 560; Khalid Sardar v. Secretary, Ministry of Finance, GoP 2015 PLC (C.S.) 466; Federation of Pakistan v. Muhammad Akram 1995 SCMR 1647; Federal Public Service Commission v. Altaf Hussain 2015 PLC (C.S.) 1130; Pirzada Jamaluddin A. Siddiqui 2012 PLC (C.S.) 996; Syed Hussain Haider v. Government of the Punjab 2019 PLC (C.S.) 1; Begum Agha Abdul Karim Shorish Kashmiri and others v. Senior Superintendent of Police, Lahore and others 1973 PCr.LJ 482; Tariq Aziz-ud-Din and others's case 2010 SCMR 1301; Amin Jan v. Director General T&T and others PLD 1985 Lah. 81; Bank of Punjab v. Federation of Pakistan 2000 PTD 2159; Play Pictures v. Central Board of Revenue 2000 CLC 1403; Crescent Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 3466; Asia Ghee Mills (Pvt.) Ltd. v. Assistant Collector (Audit) 2008 PTD 1993; A. Ghani Sayeed v. Natiorial Bank of Pakistan 1989 PLC (C.S.) 249; Ghulam Abbas v. Zohra Bibi PLD 1972 SC 337; Nishat Mills Limited v. Superintendent of Central Excise PLD 1989 SC 222; Chief Commissioner, Karachi v. Jamil Ahmad PLD 1961 SC 145; Manzur-ul-Haq v. Controlling Authority PLD 1963 SC 652; Muhammad Siddique v. The Market Committee, Tandlianwala 1983 SCMR 785; Pakistan v. Ch. Muhammad Ahsan 1991 SCMR 2180; Saghir Ahmed v. Province of Punjab PLD 2004 SC 261; Reference No.1 of 188 PLD 1989 SC 75; Commissioner of Income Tax v. Media Network PLD 2006 SC 787 = 2006 PTD 2502; Muhammad Shahid v. Federation of Pakistan PLD 2018 Isl. 258; Tasleem Akhtar v. Pakistan 2010 PLC (C.S.) 795; Warid Telecom (Private) Limited v. Federation of Pakistan 2015 SCMR 338; Sui Southern Gas Company Ltd. v. Federation of Pakistan 2018 SCMR 802; Saleemul Haq v. Pakistan PLD 1990 Kar. 439; Allen Beery & Co. v. Vivian Bose AIR 1960 Punjab 86; Messers Kalimullah & Co. v. The Government of West Pakistan and another PLD 1961 (W.P.) Lah. 321; Pakistan Beverage Ltd. v. Deputy Director (Food) and another 1984 CLC 2687; Sugar Mills v. Government of Punjab and others 2001 YLR 2275; Dilshad and 2 others v. Senior Superintendent of Police and 2 others PLD 2007 Kar. 330; The State of Maharashtra v. Shri R.A. Chandawarkar and others 1999 (5) BomCR 519; 1999 BomCR Cri, (1999) 3 BOMLR 394; 1999 Cri.LJ 4449; 1999 (2) MhLJ 650); The State of Maharashtra v. Laxmichand Nagaji Jain and others (Criminal Appeal No.1036 of 2002), Judgment on the application of Privacy, International) (Appellant) v. Investigatory Powers Tribunal and others (Respondents (Easter Term 2019 UKSC 22; National Institutional Facilitation Technologies (Pvt.) Ltd. v. Federal Board of Revenue and others (W.P. No.3995 of 2019); Messers Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Syed Mir Muhammad v. N.W.F.P. Government through Chief Secretary PLD 1981 SC 176; A. Ghani Sayeed v. National Bank of Pakistan 1989 PLC (C.S.) 249; Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337; Reference No.1 of 1988 President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan PLD 1989 SC 75; Messrs Nishat Mills Limited v. Superintendent of Central Excise Circle II and 3 others PLD 1989 SC 222; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504; Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180; Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066; Haji Muhammad Ismail Mills Limited v. Federation of Pakistan through Secretary Finance and 2 others PLD 2020 Sindh 85; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265; Slackness in the Progress of pending enquiries relating to fake Bank Accounts, etc: In the matter of Human Rights Case No.39216-G of 2018 decided on 7th January, 2019; 2019 SCMR 332; Khalid Qureshi and 5 others v. United Bank Limited, I.I. Chundrigar Road, Karachi 2001 SCMR 103; ABP Private Limited and another v. Union of India and others (2014) 3 Supreme Court Cases 327; Messrs Allen Bery and Co. Private Ltd. and another v. Vivian Bose and others AIR 1960 Punjab 86 (V 47 C 341 (At Delhi), Tasleem Akhter v. Pakistan through Secretary Revenue, Islamabad and 3 others 2010 PLC (C.S.) 795; Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358; Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650; Justice Khurshid Anwar Binder and others v. Federation of Pakistan PLD 2010 SC 483; Canara Bank v. V.K. Awasthy (2005) 6 Supreme Court Cases 321); Saleemul Haq and another v. Pakistan through Secretary, Ministry of Interior Islamabad and 2 others PLD 1990 Kar. 439; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Ganesh Santa Ram Sirur v. State Bank of India AIR 2005 SC 314; Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338; Asif Ali Zardari v. State PLD 2001 SC 568; Mitchell v. Georges 2015 SCMR 1020; Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650 and Pakistan Sugar Mills Association v. Federation of Pakistan in W.P. No.1544 of 2020 ref.

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

----S. 3(2)---Inquiry Commission---Constitution and composition of Commission by Federal Government---Approval of Cabinet, absence of---Official of State Bank of Pakistan was appointed as a member of Commission without Cabinet approval and contrary to the summary---Membership of the Commission was to be in accordance with approved summary---Notification of the Commission and its composition could not be changed without proper approval---Member from State Bank of Pakistan lacked required experience to be a member of the Commission and could not be regarded as a member of the Commission but rather as a stranger---Contribution which such member made to Report was to be ignored in circumstances---Constitutional petition was disposed of.

(d) Pakistan Commission of Inquiry Act (IX of 2017)---

----Ss. 3 & 10---Inquiry Commission---Bias, proof of---Scope---Federal Government first constituted Committee to inquire into the reasons of shortage of sugar in the market---After the Committee submitted its Report, the Federal Government constituted Commission for the same purpose---Convener of Inquiry Committee was made Chairman of Inquiry Commission who submitted its Inquiry Report to Federal Government---Validity---Three out of six members of the Commission through the Committee Report had already made up their minds that petitioners and other sugar mill owners committed illegalities---Three members of Inquiry Committee were also members of Inquiry Commission and had a real likelihood of bias against petitioners and other sugar mill owners---Half of the members of the Commission were biased and two out of remaining four members of the Commission were strangers to the Commission who were illegally appointed---Only 2 members out of 7 members of the Commission could be safely relied upon as unbiased and legally appointed---Constitutional petition was disposed of.

(e) Constitution of Pakistan---

----Art. 5---Obedience to Constitution and law---Applicability---Every citizen is obliged under Art. 5 of the Constitution to abide by the Constitution and law no matter what their status is in life whether they are poor or rich, Prime Minister or members of Federal Cabinet.

(f) Pakistan Commission of Inquiry Act (IX of 2017)---

----Ss. 3 & 10---Constitution of Pakistan, Arts. 4 & 10-A---Inquiry Commission---Advisor to Prime Minister, interference of---Rule of law---Fair trial---Federal Government constituted an Inquiry Commission and Advisor to Prime Minister wrote letters to the Commission issuing certain directions with regard to the matter subject of Inquiry---Effect---Sending of letters by the Advisor or the Executive Authority to statutory authorities in essence directing them to proceed against certain individuals or bodies based on an enclosed report of the Commission stating that such person and bodies had already been found culpable and provided the Commission Report to such body and expected to report back to Federal Government within a given time period or what steps it had taken against the individuals or bodies was not inline or in accordance with the scheme of law as envisaged by relevant statute or the Constitution---Executive had no legal authority to send such letters which violated due process rights of petitioners under Art. 10-A of the Constitution---To allow such actions would not only defeat intent and spirit of each piece of legislation but would also create dangerous precedent, whereby Governments could use their Executive authority to attempt to victimize, witch hunt or otherwise attack their political opponents through such statutory bodies which would be contrary to the rule of law and good governance, especially in respect of fiscal and accountability legislation which could be used to pressurize and arm twist political opponents---Such bodies were governed by their own statutes and the Executive had no power to interfere with such bodies which must carry out their work independently in accordance with their statutes as passed by the Legislature---Even junior officers in a statute could not be directed to do certain things by their superiors unless it was in accordance with powers conferred on them by the concerned statute---All times officers acting under a statutory authority were limited to the authority given to them under such statute.

Commissioner of Inland Revenue v. Allah Din Steel and Rolling Mills 2018 PTD 1444; Wateen Telecom Ltd. v. Sindh 2019 PTD 1030; Khawaja Salman Rafique and another v. NAB dated 17.03.2020 in Civil Petitions Nos. 2243L and 2986L and District Bar Association's case PLD 2015 SC 401 rel.

Makhdoom Ali Khan, Abdul Sattar Pirzada, Ghulam Hussain Shah, Samiur Rehman, Komal Anwar and Fahad Khan for Petitioners.

Kashif Sarwar Paracha, Additional Attorney General for Pakistan and Mukesh Kumar Khatri, Assistant Attorney General for Pakistan for Respondents.

P L D 2021 Sindh 470

Before Zafar Ahmed Rajput, J

ARSHAD MEHMOOD RAJA and others---Decree Holders

Versus

MUHAMMAD SAEED KHAN and 3 others---Judgment Debtors

Execution Application No. 41 of 2013, decided on 20th May, 2021.

Succession Act (XXXIX of 1925)---

----S.214---Civil Procedure Code (V of 1908), S. 47---Execution of decree---Death of decree holder---Representative title, proof of---Applicant sought release of share of his deceased son from decretal amount passed in favour of his son---Validity---Restriction was imposed on power of Court to proceed upon an application of a person claiming on succession to be entitled to execute against a debtor, a decree, or order for payment of debt, except on production by such person a certificate of succession granted under Part X of Succession Act, 1925 and having the debt specified therein---Before a Court could pass any order for execution of a decree on application of a person claiming to be entitled to execute decree against a debtor on the basis of succession, such person must produce before the Court a succession certificate issued in his favour in accordance with provision of Succession Act, 1925, specifying debt therein---After the death of decree holder, his legal heir was required to produce requisite certificate in compliance of S.214 of Succession Act, 1925, as the share amount so deposited with Court official in execution proceedings, had come within the definition of debt/obligation---Application was dismissed, in circumstances.

Mst. Khatija Begum and others v. Haji Gulzar Ahmed PLD 1969 Kar. 141; Muhammad Bashir v. M. A. Footwear 1985 CLC 460; Muhammad Yousuf v. Abdur Rahim ILR 26 Cal. 839; Kshetia Mohan v. Azibullah Mea AIR 1920 Cal. 586; Akula Mabukhan v. Rajamma AIR 1963 Andh. Pra. 69; Ragabir Narain Singh v. Raj Rajeshwati Prasad Singh AIR 1957 Pat. 435; Balmukhand v. Gobind Ram AIR 1936 Pesh. 17; Abdul Majid v. Shamsherali AIR 1940 Bom. 285; Tejraj Rajoal v. Rampyari AIR 1938 Nag. 528; Ranji Ladha v. Horisanji Versaiji AIR 1955 Kutch 6; Sankaram Nari v. Madhari Amee AIR 1979 Ker. 231; Ganeshmal v. Anand Kanwar AIR 1968 Raj. 273; Thoma Chacko v. Koshi Varghese AIR 1956 Trav.-Cochin. 183; Jogendra Kishore v. Gajendra Kumar PLD 1960 Dacca 617 and Ahmad-ul-Haq Siddiqui v. Bashir Ahmed 1987 CLC 2536 ref.

Ansar Mukhtar for legal heirs of deceased decree holder No.2.

Muhammad Abu Bakar Khalil, holding brief for Raja Qasit Nawaz Khan, for judgment debtor No.2.

P L D 2021 Sindh 476

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

SHUMAILA SALMAN SHAH and 4 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Minister, Ministry of Federal Education and

Professional Training and 2 others---Respondents

Constitutional Petitions Nos. D-2526 and 2623 of 2021, decided on 23rd April, 2021.

(a) Constitution of Pakistan---

----Arts. 199, 4, 8, 9 & 25---Educational Institution---Constitutional petition---Policy decision---Vested right---Proof---Petitioners assailed decision of National Command and Operation Centre (NCOC) with regard to examinations for "A" and "AS" Levels and "O" Level---Validity---Holding physical examination for "A" and "AS" Levels and "O" Levels according to notified schedules did not infringe or intrude any fundamental rights of petitioners---Petitioners could not claim any vested right to evaluate or appraise their credentials and competence by dint of 'school assessed grades' and not by means of physical examination---Such policy decision did not infringe or contravene fundamental rights of petitioners as enshrined under Arts. 4, 8, 9 & 25 of the Constitution---Federal Government had revisited its policy decision and examinations were postponed---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Judicial review---Policy decision---Scope---High Court cannot act out or represent as appellate authority with the aim of scrutinizing rightness, fittingness and aptness of a policy, nor act as advisor to the Executives on matter of policy which they are entitled to formulate---Extensiveness of judicial review of a policy is to test out whether it violates fundamental rights or citizens or is at variance to the provisions of the Constitution or opposed to any statutory provision or demonstrably arbitrary or discriminately---High 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---Such can be sought on the ground 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, which is known as acting ultra vires---Decision may be challenged as unreasonable, if it is so unreasonable that no reasonable authority could ever had come to it or a failure to observe statutory procedures---Dominance of judicial review of executive and legislative action must be kept within the precincts of Constitutional structure so that there may not be any incidence to give thought to misgivings concerning role of judiciary in outstepping its bounds by uncalled for judicial activism.

Muhammad Jibran Nasir for Petitioners (in C.P. No. D-2526 of 2021).

Abdul Ghaffar Ahmed for Petitioner (in C.P. No.D-2623 of 2021) along with Mazhar Ali Shaikh and Samil Malik Khan.

Jawad Sarwana for Cambridge Assessment InternationalEducation/Respondent No.2 (in C.P.No.D-2526 of 2021 and Respondent No.3 in C.P. No.D-2623 of 2021).

Asim Mansoor Khan for Intervener (C.M.A. No.11730 of 2021 in C.P. No.D-2526 of 2021) along with Zeeshan Bashir Khan, Farmanullah, Amir Haider and Asim Iqbal, Intervener.

Kashif Sarwar Paracha, Acting Additional Attorney General of Pakistan.

Hussain Bohra, Assistant Attorney General.

Jawad Dero, Addl. A.G. Sindh.

Dr. Ghulam Ali Mallah, CEO/Secretary, Inter Board Committee of Chairmen (IBCC), Ministry of Federal Education and Professional Training, Government of Pakistan, Islamabad.

P L D 2021 Sindh 489

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

TABROS PHARMA (PRIVATE) LIMITED through Duly authorized representative---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health Services, Regulation and Coordination, Islamabad and 3 others---Respondents

C. Ps. Nos. D-2717 and D-2718 of 2020, decided on 19th August, 2020.

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

----Ss. 7 & 12---Drug Pricing Policy, 2018, cl. 9(5)--- Drug pricing---Hardship case---Statutory period---Petitioners were manufacturers of different medicines and were aggrieved of inaction of Drug Regulatory Authority of Pakistan (DRAP) in fixing Maximum Retail Price (MRP) of their products in question---Validity---If hardship applications were not attended to by DRAP in a timely manner or if after due consideration of an application by DRAP, Federal Government did not act within the envisaged timeframe so as to notify prices as per referral made, then applicant could increase its MRP up to the level recommended by DPC of DRAP---Such option could only be exercised once in three years---Specified time frame had lapsed so as to trigger inbuilt mechanism for increase in price by petitioners---High Court directed the authorities to make final decision in relation to MRP of the products in question within a period of 30 days---High Court restrained the authorities from taking any coercive action against petitioners during the pendency of proceedings---Constitutional petition was allowed accordingly.

Civil Petition No. 1223 of 2020 rel.

Abdul Sattar Pirzada along with Mamoon N. Chaudhry for the Petitioners.

Kafeel Abbasi, DAG, for the Federation, along with Syed Hakim Masood, FID DRAP.

P L D 2021 Sindh 492

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

ABBU HASHIM and another---Petitioners

Versus

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

C. P. No. D-1761 of 2020, decided on 19th April, 2021.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Constitution of Pakistan, Art. 10A---Fair trial---Cancellation, impounding or confiscation of Computerised National Identity Card (CNIC)---National Database and Registration Authority (NADRA) issued show cause notices to the petitioners and called them to submit certain documents including title documents of some land prior to 1978, on the ground that the petitioners obtained CNICs on wrong information---Validity---Held, it was not the region or raison d'être under the law that in each and every case S. 18 of the Ordinance should be invoked or resort to by the Authority for questioning the authenticity and genuineness of manual NIC or the earlier CNIC issued by the same department to the person who applied for the renewal of his CNIC---No powers were integrated to block the CNIC of any person unless it was finally determined or adjudicated that the card issued to any such person should be cancelled, impounded or confiscated---Petitioners produced the copy of domicile, passports but despite that NADRA casted doubt on his citizenship status without disclosing anything in the show cause notice as to what were the reasons which led them to believe false declaration or misrepresentation on part of the petitioners---Domicile, earlier passports even the Nikahnama of the petitioners were rejected solely for the reason that these documents were issued after 1978 but there was no rationale or commonsensical logic as to why 1978 cutoff date had been laid down in the Ministry of Interior letter---Proper course was to verify the said documents from the authorities who issued the same rather than asking the petitioners to prove their identity and citizenship in Pakistan after such a long time---High Court declared the blocking of CNICs to be unlawful and directed the NADRA to renew the same within fifteen days---Constitutional petition was disposed of accordingly.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Words and phrases---Phrase "reason to believe"---Scope---Phrase "reason to believe" was not to be based on figment of imagination nor on vague allegation but substantial and definite information.

(c) National Database and Registration Authority Ordinance (VIII of 2000)---

----Preamble---Citizenship Act (II of 1951), Preamble---Citizenship Act, 1951 as well as the National Database and Registration Authority Ordinance, 2000 both were special laws relating to the special subjects---Citizenship Act, 1951 pertained to the grant of citizenship of Pakistan, whereas the Ordinance related to the registration of persons and issuing of national identity cards according to their domain and mandate.

(d) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 47---Jurisdiction of National Database and Registration Authority (NADRA)---Blocking of Computerised National Identity Card (CNIC)---Validity---Blocking of CNIC was alien to the Ordinance as no specific provisions were provided therein.

(e) Citizenship Act (II of 1951)---

----S.17---Domicile---Permanent resident---Scope---Issuance of domicile certificate under Pakistan Citizenship Act, 1951 would make it evident that a particular person was a domicile of Pakistan---Expression "domicile" would reflect a person's status as a citizen of a particular State or country, whereas expression "permanent residence" might be a pure question of fact as to his residence in a particular area

(f) Citizenship Act (II of 1951)---

----S. 16---Deprivation of citizenship---Citizenship of any person could not be confiscated and for that a particular provision had already been provided under the law to deal the matter of confiscation for deprivation of citizenship under S.16 of the Citizenship Act, 1951.

(g) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 10---Qanun-e-Shahadat (10 of 1984), Art. 92---National Identity Card; authenticity and validity of---Presumption of genuineness---Indoor management, doctrine of---Past National Identity Card (NICs) and Computerised National Identity Card (CNICs) were also issued by the same department under the law, so no adverse presumption could be inferred that under the doctrine of indoor management the department at that relevant time failed to apply requisite law and mind and without due diligence cards were issued to the petitioners and if so, what action had been taken against such delinquent officers at large scale for future deterrence---Under the Ordinance much sanctity had been given to the cards earlier issued to the citizens before the promulgation of the Ordinance and the cards issued under National Registration Act, 1973.

(h) Interpretation of statutes---

----Special laws---Applicability---One special law could not override the provisions of another special law when particularly both were governing two different aspects.

(i) Interpretation of statutes---

----"Removal of difficulties clause"---Scope---Delegated legislation---Parent law---Scope---Rules and Regulations if framed could not travel beyond the scope of parent Act and such type of addition under the law could not be achieved under the garb or semblance of removal of difficulties clause.

(j) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashment of the show-cause notice---Judicial Review---Constitutional jurisdiction, invoking of---Scope---Lack of jurisdiction, barred by law, abuse of process of the Court, and coram non judice elaborated.

Dr. Seema Irfan and others v. Federation of Pakistan and others PLD 2019 Sindh 516 ref.

(k) Constitution of Pakistan---

----Art. 199---Judicial Review-Abuse of process---Scope---Abuse of process was a tort comprised of two elements: Firstly an ulterior purpose and Secondly a wilful act in the use of process not proper in the regular conduct of the proceeding---Abuse of process was the malicious misuse or misapplication of process in order to accomplish an ulterior purpose, however, the critical aspect of such tort remained the improper use of the process after it had been issued.

DeNardo v. Maassen, 200 P. 3d 305 (Supreme Court of Alaska, 2009); McCornell v. City of Jackson, 489 F. Supp. 2d 605(United States District Court, Mississippi, 2006); Montemayor v. Ortiz, 208 SW 3d 627 (Court of Appeals of Texas at Corpus Christi-Edinburg, 2006); Reis v. Walker, 491 F. 3d 868 (United States Court of Appeals, 2007); Sipsas v. Vaz, 50 AD 3d 878 (Appellate Division of the Supreme Court of the State of New York, 2008) ref.

Salahuddin Ahmed, Muhammad Rizwan and Saifullah Abbasi, for Petitioners.

Ch. Muhammad Farooq and Ms. Samina Maqsood for NADRA.

Kafeel Ahmed Abbasi, D.A.G. for Respondents.

Hussain Bohra, Assistant Attorney General for Respondents.

P L D 2021 Sindh 510

Before Zafar Ahmed Rajput, J

MUHAMMAD IMRAN KHAN and 4 others---Plaintiffs

Versus

Haji MUHAMMAD AKHTAR and others---Defendants

Suit No. 1884 of 2015, decided on 22nd February, 2021.

(a) Words and phrases---

----"Adverse party"---Connotation.

Black's Law Dictionary, Sixth Edition at page 53 rel.

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

----Art. 132---Civil Procedure Code (V of 1908), O. XVIII, R. 3---Suit for cancellation of document, declaration and injunction---Cross-examination---Parties of same side---Applicant-defendant was not permitted by local commissioner to cross examine co-defendant on the plea that both were not adverse parties---Validity---No evidence should be received against one who had no opportunity of testing it by cross examination, as it would be unjust and unsafe not to allow a defendant to cross-examine a co-defendant, whose evidence was adverse to him or who had given evidence against him---If there was no conflict of interest, such opportunity was not to be given---Condition precedent for giving opportunity to a defendant to cross examine a co-defendant was either from pleadings of parties or in the evidence---Conflict of interest existed between the two defendants---Co-defendant for applicant-defendant was 'adverse party' entitling him to cross-examine co-defendant---High Court directed Local Commissioner to record cross examination of co-defendant by applicant-defendant---Application was allowed, in circumstances.

Sarkar on Evidence, Fifteenth Edition at pages 2182 and 2183 and "Phipson on Evidence", Tenth Edition, para. 1538. rel.

Sub-Attorney Abdul Khalique for Plaintiffs.

Mirza Sarfaraz Ahmed and Nawab Din for Defendant No.1.

Muhammad Anwar Shahid for Defendant No.3.

Iqbal Khurram for Defendant No.9.

Dilawar Hussain Advocate, Commissioner for recording evidence of parties, present in person.

P L D 2021 Sindh 515

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

Syed GHULAM MOHIUDDIN and another---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others---Respondents

C. P. No. D-4371 of 2020, decided on 29th June, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Judicial review---Government policy---Ultra vires---Scope---Compass and magnitude of judicial review of government policy is that neither High Court can act out or represent as appellate authority with aim of scrutinizing rightness, fittingness and aptness of a policy---High Court also do not act as advisor to the Executives on matter of policy which they are entitled to formulate---Extensiveness of judicial review of a policy is to test out whether it violates fundamental rights of citizens or is at variance to the provisions of the Constitution or opposed to any statutory provision or demonstrably arbitrary or discriminately---Such can be sought on the 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, which is known as acting ultra vires---Decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures---Dominance of judicial review of the Executive and Legislative action must be kept within the precincts of Constitutional structure so that there may not be any incidence to give thought to misgivings concerning role of judiciary in out stepping its bounds by uncalled for judicial activism.

Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 rel.

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

----S. 21---Sindh Public Procurement Rules, 2010, Rr.2(q), 4 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Public procurement---Exemption---Government to Government (G2G) contracts---Petitioners were aggrieved of awarding of contract for supply of motor vehicles registration numbers with Radio Frequency Identification (RFID) technology---Validity---Petitioners failed to substantiate any mala fide intention or ulterior motives on the part of Sindh Government that exemption was granted to provide any preferential treatment or favoritism---Petitioners also could not establish that while granting exemption to enter into a contract on fulfillment and ensuring certain conditions, Sindh Government was somewhat engaged or committed any corrupt and fraudulent practices as defined under R. 2(q) of Sindh Public Procurement Rules, 2010---Under G2G contracts, monitoring task or audit exercise to ensure transparency and fairness or repressing any corrupt and fraudulent practices was more easygoing and comfortable from both the sides with sheer commitment to religiously fulfill their contractual obligations due to restraint of double check command in the affairs on Government to government level---Respondent Authority was an autonomous body but it was under the administrative control of Federal Government---Such was a government to government contract and according to decision taken in minutes of meeting, Sindh cabinet considered proposal of Excise, Taxation and Narcotics Control Department for introducing new number plates and according to the decision, case of new number plates was to be negotiated---Features of tracker integrated in RFID must be vetted by well reputed tracking service providers so that tracker features of new number plates could be more effective---High Court observed that all law enforcement agencies must be consulted for improvised and standard number plates and all legal and administrative aspects of G2G must be followed in letter and spirit---Exemption was granted by Cabinet under S.21 of Sindh Public Procurement Act, 2009 which could not be declared illegal or contrary to powers conferred by the statute---Constitutional petition was dismissed, in circumstances.

Raja Mujahid Muzaffar and others v. Federation of Pakistan 2012 SCMR 1651; A.R. Khan & Sons v. Federation of Pakistan 2010 CLD 1648; Mrs. Humera Imran v. Government of Pakistan, Ministry of Defence and Production through Secretary and 3 others PLD 2019 Sindh 467; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 and Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 ref.

Osman A. Hadi for Petitioners along with Sarosh Jamil.

Saad Rasool and Sarfraz Ali Metlo for Respondent No.3

Jawad Dero, Addl. A.G. for Respondents.

Nasser Effendi, Director Excise and Taxation.

Adil Umer, AETO.

P L D 2021 Sindh 530

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

The STATE through Assistant Director (ANF)---Applicant

Versus

III-ADDITIONAL SESSIONS JUDGE/ MCTC-II, SUKKUR and another---Respondents

Criminal Revision Application No. D-15 of 2020, decided on 12th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 177---Ordinary place of inquiry and trial---Expression 'be inquired in and tried by'---Scope---Prosecution assailed order passed by trial court whereby the case, on the point of jurisdiction raised by accused, was transferred to another district---Held; if a person committed a crime at place X and was arrested by the police station in place Y, the FIR was also lodged at place Y, he would still be tried by the Court having local jurisdiction over place X as the wording of the legislature while handing down S.177, Cr.P.C., was very clear---No exceptions were provided to the above that would be applicable in the present case---Use of the expression "be inquired in and tried by" further provided no exceptions to the case---Had the legislature planned to provide any exceptions or not made the section mandatory, the word "may" would have been used, which was not the case---Crime was committed in district 'K', wherefrom the accused was arrested as well---Regardless of the place where the FIR was lodged, it would not have any consequence upon the Court where the case would be tried or have any other effect---Decision taken by Trial Court in transferring the case and record to the Court having proper jurisdiction was appropriate and did not suffer from any infirmity, therefore, did not call for interference---Revision application was dismissed.

Mohsin Ali Khan, Special Prosecutor A.N.F. for Applicant.

Respondents in person.

P L D 2021 Sindh 533

Before Naimatullah Phulpoto and Mrs. Kausar Sultana Hussain, JJ

NAEEM AKHTAR--- Appellant

Versus

The STATE---Respondent

Criminal Appeal No D-220 and Confirmation Case No. 52 of 2019, decided on 18th May, 2021.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 231----Qatl-i-amd, common intention---Appreciation of evidence---Re-summoning of witness on alteration of charge---Scope---Accused were charged for committing murder of the uncle of the complainant by firing---Record reflected that the charge was framed against the accused under S.319 read with S.34, P.P.C.---Prosecution examined all the prosecution witnesses and prosecution side was closed---On the next day, amended charge was framed by the Trial Court and S.302, P.P.C. was added---Prosecutor, thereafter, submitted application for adopting the same evidence, which was recorded before framing of the amended charge---Counsel for the accused as well as complainant also recorded no objection hence, Trial Court proceeded to record the statement of the accused under S.342, Cr.P.C.---Procedure adopted by the Trial Court was illegal and unwarranted for the reasons that in the amended charge S.302, P.P.C. was added---Trial Court was legally bound to recall the witnesses for their evidence by providing opportunity to the defence for cross-examination, but it was not done---Trial Court had adopted illegal procedure by allowing the prosecution to rely upon the same evidence, which was recorded before amended charge---Section 302, P.P.C. was added in the amended charge---Trial Court was duty bound to re-call witnesses already examined for re-examination and cross-examination afresh---Slipshod method adopted by Trial Court in no way could be appreciated---Procedure adopted by Trial Court led to a miscarriage of justice---Appeal, in circumstances, was allowed by setting aside convictions and sentences recorded by the Trial Court and case was remanded to the Trial Court for decision afresh.

1987 PCr.LJ 403 rel.

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

----S. 231----Re-summoning of witness on alteration of charge---Scope---Section 231, Cr.P.C. was mandatory in nature, therefore, whenever a charge was amended, the court was bound to allow the prosecution and the accused to re-call and re-examine the witnesses, already examined---Filing of statement by the prosecutor and accused that they would not examine the witnesses already examined would not fulfil the requirements of S.231, Cr.P.C.

Aijaz Shaikh for Appellant.

Sameeullah Rind for the Complainant.

Shevak Rathor, D.P.G. for the State.

P L D 2020 Sindh 539

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

INAYAT N. DIN and 4 others---Petitioners

Versus

SALMAN TALIBUDDIN, ADVOCATE GENERAL, SINDH and 3 others---Respondents

Constitutional Petition No. D-4738 of 2021, decided on 15th September, 2021.

Constitution of Pakistan---

----Arts. 20 & 140---Civil Procedure Code (V of 1908), S. 92---Church of Pakistan---Diocese of Karachi---Matters concerning election of Bishop; management of communal assets and properties of Church of Pakistan; vacation of official residence of Bishop, and audit of accounts of Karachi Diocese and its allied institutions---Allegations of partisanship and misuse of office made against the Provincial Advocate General in cases involving Church of Pakistan---Held, that multifarious litigations involving the Church of Pakistan, the Bishop, the Elections of the Karachi Diocese and application and or effect of the Constitution of the Church of Pakistan, etc were already either subjudice before the High Court in the shape of suits pending on the Original Side or Appeals ensuing from other suits that already stood decreed, in which orders either with regard to Elections for the seat of Bishop of Karachi Diocese or properties relating to the Karachi Diocese and its allied institution or the affairs of the Church of Pakistan were also operating---However, nothing concrete had been brought forward through present Constitutional petition to support the contention that the Provincial Advocate General was acting contrary to his constitutional obligations as envisaged under Art. 140 of the Constitution and the backdrop of pending litigation also did not bring anything glaring to the fore in that regard---Mere assertions to that effect did not suffice---No plausible argument was advanced by the petitioners as to how their rights under Art. 20 of the Constitution to profess, practice and propagate their religion and establish, maintain and manage its institutions stood violated in the given circumstances of the case---Furthermore in some of the pending Suits/Appeals, the present petitioners were also parties, hence, they may raise any point of relevance from present proceedings in such pending cases---Constitutional petition being bereft of any force was dismissed.

P L D 2021 Lahore 1

Before Jawad Hassan, J

AL-BAKIO INTERNATIONAL through Authorized Officer and 8 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice and 8 others---Respondents

Writ Petition No. 49211 of 2020, heard on 22nd October, 2020.

(a) Constitution of Pakistan---

----Arts.18, 25A, 37(b), 199 & Fourth Sched. Part II, Entry 13---Constitutional jurisdiction of High Court---Scope---Federal Legislative List---Interprovincial matters and coordination---Cooperative and consultative federalism---Constitutional mandate for consultative role of Federal Government and Legislative and Policy competence of Federal Government with regard to inter-provincial coordination---Primary and Secondary Education---Curriculum and syllabus---Single National Curriculum---Fundamental Right of freedom of trade, business or profession---Scope---Petitioners, who were publishers and developers of textbooks, impugned steps taken by Federal Government in implementation of a Single National Curriculum ("SNC") to replace textbooks used in Province for primary and secondary schools, with those sought to be developed by Federal Government under said SNC for use in all Provinces, on the ground, inter alia, that same was against spirit of Constitutional mandate for devolution as issue of curriculum and development of textbooks was a Provincial subject and that impugned actions offended their Fundamental right of business under Art. 18 of the Constitution---Validity----Inter-provincial matters and coordination was within Legislative and Policy competence of Federal Government under Entry 13 of Part II of Fourth Sched. to the Constitution ("Federal Legislative List")---Cooperative and consultative federalism could be a way forward with regard to issues such as education which fell within exclusive domain of Provincial Legislative competence and if all Provinces desired bring uniformity in curriculum, then such an idea could only be made to work through well-articulated and comprehensive inter-provincial coordination and objective consultation which could be performed by Federal Government under Federal Legislative List---Petitioners had assailed letters of correspondence between Federal and Provincial Government Departments which were consultative in nature and no action detrimental to their interest had been taken and therefore present Constitutional petition was pre-emptive against probable action based on presumptive calculations of its outcome and High Court under its Constitutional jurisdiction could not act upon mere apprehension---High Court directed Provincial Schools Education Department to convene meeting with petitioners to hear grievances on their legitimate concerns in light of decision(s) of Provincial Cabinet and observed that initiative of conformity of curriculum throughout the country by Federal Government in capacity of coordination of interprovincial matters must be materialized with utmost inclusiveness and input from all Federating Units to upgrade standard and quality of education---Constitutional petition was disposed of, accordingly.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Syed Riaz Ali Zaidi v. Government of Punjab through Chief Secretary, Lahore and 3 others PLD 2015 Lah. 463; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Punjab and others v. Aamir Zahoor-ul-Haq and others PLD 2016 SC 421; Judicial Activism Panel v. Government of the Punjab and others 2020 MLD 178 and Prof. Jawaid Mohsin Malik and 7 others v. Federation of Pakistan through Secretary Ministry of Federal Education and Professional Training, Islamabad and 4 others PLD 2018 Isl. 274 ref.

Iram Shahzadi v. Principal School of Nursing Mayo Hospital, Lahore and others 2017 PLC (C.S.) 943; Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; National Steel Rolling Mills and others v. Province of West Pakistan 1968 SCMR 317(2); Messrs Nawaz Enterprises through Sole Proprietor and another v. Habib Bank Ltd. and 5 others 2007 CLD 952; Liaqat Ali v. City Nazim and others 2003 MLD 1635; Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shehla Zia v. WAPDA PLD 1994 SC 693; Ahmad Abdullah v. Government of Punjab and others PLD 2003 Lah. 752; Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116; Suo Motu, Case No.13 of 2009 PLD 2011 SC 619; and 2014 SCMR 396 rel.

(b) Constitution of Pakistan---

----Fourth Sched., Part II, Entry 13---Federal Legislative List---Interprovincial matters and coordination---Word "coordination/co-ordination", meaning and scope---"Coordination/co-ordination" may be defined as harmonization with view to forge uniform pattern for concerted action according to a certain design, scheme or plan of development and would include power to do all things which were necessary to prevent what would make "coordination" either impossible or difficult.

Advanced Law Lexicon 4th Edition, Volume 1 p. 1070 rel.

Tahir Nasrullah Warraich, Advocate Supreme Court, Barrister Haroon Dugal, Advocate Supreme Court, Syed Muhammad Shah, Muhammad Fahad Iftikhar, Rashid Mushtaq, Hassan Iqbal and Ms. Subhe Nasib for Petitioners.

Ch. Ishtiaq Ahmad Khan, Additional Attorney General, Asad Ali Bajwa, Deputy Attorney General and Ms. Sadia Malik, Assistant Attorney General for Pakistan with Muhammad Rafique Tahir, Joint Educational Advisor and Sohail Bin Aziz, Assistant Educational Advisor for Respondents.

Barrister Umair Khan Niazi, Additional Advocate-General with Dr. Faisal Zahoor, Special Secretary (Planning) School Education Department, Fareed Ahmad, Additional Secretary (ER) School Education Department and Ms. Asia Butt, Law Officer, School Education Department.

Barrister Hassan Khalid Ranjha, Assistant Advocate-General with Dr. Farooq Manzoor, Managing Director PCTB, Muhammad Aslam Sipra, Deputy Secretary, Aamir Riaz, Director Curriculum, Liaqat Ali Channar, Law Officer PCTB .

Obaid Ullah and Mir Haroon Rashid for Respondents Nos.7, 8 and 9.

P L D 2021 Lahore 15

Before Ayesha A. Malik, J

SILK BANK LIMITED through Team Leader Legal---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LIMITED through Authorized Attorney and 9 others---Respondents

Writ Petition No. 27720 of 2019, heard on 13th October, 2020.

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

----Ss. 4, 2(o), 5 & Preamble---Jurisdiction of Gas Utility Court---Contractual disputes between Sui Northern Gas Pipelines Limited ("SNGPL") and third-parties---Encashment of Bank guarantee/ performance guarantee---Nature of jurisdiction of Gas Utility Court---Scope---Question before High Court was whether under Gas (Theft Control and Recovery) Act, 2016 (SNGPL) could file a suit for recovery of amount due under contract of guarantee and could seek encashment of such Bank / Performance Guarantee---Held, that jurisdiction of the Gas Utility Court related to disputes of consumers, gas producers or offender(s) under Gas (Theft Control and Recovery) Act, 2016---Term "sums due" or "recoverable from any person" used in S.2(o) of the Gas (Theft Control and Recovery) Act, 2016 were to be seen in context of disputes pertaining to offences under said Act, or in terms of sums due or recoverable with respect to purchase or consumption of gas and incidental charges thereto, including with respect to transmission and distribution of gas through pipelines---High Court observed that Preamble of the Gas (Theft Control and Recovery) Act, 2016 and its provisions made clear that same sought to vest jurisdiction in Gas Utility Court to recover amounts due to Gas Utility Company for the consumption of gas and to prevent misuse of supply of gas and any offences related to the supply, transmission and distribution of gas---Gas (Theft Control and Recovery) Act, 2016 did not give jurisdiction to the Gas Utility Court with respect to contractual disputes between SNGPL and any party and in the present case, specifically with regard to encashment of the Bank Guarantee issued to SNGPL---Constitutional petition was allowed, accordingly.

Arshad Javaid Ghuman v. Additional District and Sessions Judge, Lahore and others PLD 2019 Lah. 376 rel.

(b) Interpretation of statutes---

----Construction of provisions of a statute---Principle of "ejusdem generis"---Scope---Per principle of interpretation "ejusdem generis", words should be interpreted in same context with reference to the things provided for before such provision in the same statute, and general words should not be given widest meaning but should be applied in the context of specific things provided for in the statutory definition of the same.

Imran Aziz Khan for Petitioner.

Umer Sharif for Respondent No.1.

P L D 2021 Lahore 21

Before Tariq Saleem Sheikh, J

MUHAMMAD KHALID---Petitioner

Versus

MAGISTRATE 1ST CLASS and 2 others---Respondents

Writ Petition No. 13208 of 2019, decided on 9th October, 2019.

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

----Ss. 8 & 2(b)---Validity of Nikkah/marriage where girl had obtained puberty---Scope---Petitioner, who stated that she had contracted marriage on her own free-will, impugned order of Magistrate whereby it was ordered that she either remain in custody of Dar-ul-Aman or be allowed only to be handed in custody of her natural guardian and should not be allowed to go with her alleged husband---Validity---Medical Board constituted by Court had in its report stated that petitioner was 14/15 years of age and had obtained puberty---Girl who had attained puberty may contract marriage with a man of her choice and was not necessary for such girl to obtain consent of her Wali/ Guardian, and in such a case, contention that such marriage/Nikkah should not be recognized under Child Marriage Restraint Act, 1929 had no force---Constitutional petition was allowed, accordingly.

Muhammad Iqbal v. The State PLD 1983 FSC 9; Zarjuma alias Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others PLD 2009 Lah. 546; Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437; Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323; Zarina Khatoon v. District Magistrate, (South), Karachi and 5 others PLD 1978 Kar. 374; Mst. Rani v. Roshan Masih and another 1986 PCr.LJ 1404 and Allah Bakhsh v. Safdar and others 2006 YLR 2936 rel.

Malik Muhammad Latif Khokhar assisted by Muhammad Akmal Khan Sial for Petitioner.

Malik Shaukat Mehmood Marha, Assistant Advocate General with Muhammad Asif, Law Officer, Nishtar Hospital Multan.

P L D 2021 Lahore 24

Before Jawad Hassan, J

IRAM SHAHZADI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others---Respondents

Writ Petition No. 38872 of 2020, decided on 27th November, 2020.

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

----S. 10(vi)---Constitution of Pakistan, Art. 199---Provincial Ombudsperson for the Protection against Harassment of Women at the Workplace ('the Ombudsperson'), order of---Constitutional petition before the High Court seeking implementation of order passed by the Ombudsperson---Maintainability---Power to execute its orders had been given to the Ombudsperson under Ss.8(5) & 10(vi) of the Protection Against Harassment of Women at the Workplace Act, 2010 ('the Act')---Section 10(vi) of the Act specifically provided the procedure to punish any person who committed non-implementation/contempt of the orders passed by the Ombudsperson---In the present case, since alternate remedy was available to the petitioner before the Ombudsperson, therefore, the Constitutional petition before the High Court was dismissed as being not maintainable.

Asif Saleem v. Chairman Bog University of Lahore and others PLD 2019 Lah. 407 ref.

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

----S. 10(vi)---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), Ss. 3(i) & 3(ii)--- Constitution of Pakistan, Art. 199---Provincial Ombudsperson for the Protection Against Harassment of Women at the Workplace ('the Ombudsperson'), jurisdiction of---Scope---Contractual employee of Punjab Land Records Authority ('the Authority') suspended under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('the PEEDA Act 2006)---Ombudsperson ordering the Authority to withdraw the suspension order---Legality---Such order passed by the Ombudsperson was not under her jurisdiction because the suspension order passed under the PEEDA Act, 2006 had its own mechanism and procedure provided under the said Act---Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope--- Alternate efficacious remedy, availability of---Where such remedy was available to the petitioner, jurisdiction of the High Court under Art. 199 of the Constitution could not be invoked.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 ref.

Muhammad Amir Niaz Bhandara Advocate Supreme Court for Petitioner.

Ms. Sadia Malik, Assistant Attorney General, Shan Gull, Additional Advocate General, Barrister Umair Khan Niazi, Additional Advocate-General and Barrister Hassan Khalid Ranjha, Assistant Advocate-General with Ghulam Mursaleen, Deputy Director Prosecution, Anti-Corruption Department, Muhammad Ashraf, Deputy Director, Anti-Corruption Department, Sajjad Ahmad Khan, Additional Director General, PLRA and Muhammad Aamir Yaqoob, Deputy Director Legal PLRA for Respondents.

Mustafa Ramday, Saad Sibghatullah and Zoe Khan for Respondent No.4 .

Ch. Sultan Mahmood and Shamran Mushtaq Chaudhry for Respondent No.7.

P L D 2021 Lahore 33

Before Shahid Waheed, J

MUHAMMAD RIAZ---Petitioner

Versus

GOVERNMENT OF PUNJAB through Collector and others---Respondents

Civil Revision No. 4782 of 2015, heard on 22nd October, 2020.

(a) Jurisprudence---

----Legal system---Meaning of legal system is derived from values in a given society.

(b) Constitution of Pakistan---

----Arts.2-A, 3, 9, 25(3), 31, 34, 35, 37 & 38---Right of wife in Islam---Responsibilities of husband---Scope---Within Islamic traditions, the first and most important right that a wife has over her husband is to be treated with respect and kindness---When a woman gets married, she has financial rights over her husband---Husband must provide her with all necessities for her to live a comfortable life---Incumbent upon husband to offer provisions of house, food, clothing, healthcare and other tools required for her subjective standard of living---Given values and keeping with Arts. 2-A, 3, 9, 25 (3), 31, 34, 35, 37 & 38 of the Constitution, the Legislatures have made special provisions to help woman in distress and for her protection against moral and material abandonment---Object of all laws is that ill-used wives and discarded divorcees should not be driven to material and moral dereliction to seek sanctuary in the streets---Islamic ethos and general sociological background for resolution of all such disputes, must be appreciated.

(c) Islamic law---

----Gift by husband to wife---Gift, revocation of---Collusion---Proof---Onus to prove---Special costs, imposition of---Parties were husband and wife inter se, and suit was filed by husband to revoke gift of land made in favour of his wife---Plea raised by plaintiff was that gift mutation in favour of wife was outcome of collusion of defendants and that plaintiff was not aware of the gift at the time of affixing his thumb impression---Both the Courts below concurrently dismissed suit and appeal filed by plaintiff---Validity---Type of allegations made by plaintiff upon its proof, acted as a catalyst bringing beneficiary under burden to establish validity of transaction---Allegation of collusion was made by plaintiff, who as per Art. 117 of Qanun-e-Shahadat, 1984, had burden to prove the same---Court could not proceed on the basis of weaknesses of defendants until such burden was discharged---By falsely accusing his wife, husband not only tarnished her chastity but also made a despicable attempt to seize her property---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---High Court imposed heavy costs upon husband under S.35-A, C.P.C. which would to some extent serve as "balm to relieve the wife from pain of wound inflicted by her husband"---Revision was dismissed in circumstances.

M. Krishnaswami Naidu v. Secretary of State represented by Collector of Tanjore and others AIR (30) 1943 Madras 15; Muhammad Aslam v. Muhammad Tufail and 2 others 1995 CLC 1061; Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Tahira Bibi v. Muhammad Khan and others PLD 2018 Lah. 803; Amina Bibi v. Khatija Bibi (1864) 1 Bom. H.C. 157; Ma Mi v. Kallandel Ammal AIR 1927 PC 22; Emnabai v. Hajirabai (1889) 13 Bom 352; Abdul Rehman Nachiyal v. Muhammad Nurdin Maracayer 23 IC 547; Bee Jan Bee v. Fatima Beebee 8 IC 431; Neaz Begum v. Manzur Ahmad 11 IC 534; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 and Al-Muslim Shaih, Cairo, Kitab al-Hibat, P.64 rel.

(d) Punjab Land Revenue Act (XVII of 1967)---

----S. 52---Entries in revenue record---Presumption---When entries of mutation get incorporated in Jamabandi (annual record) then it is presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

Bhagwan Das v. Mangal Sain AIR 1929 Lah. 93; Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Ahmad Ali and others v. Muhammad Iqbal and another 1986 SCMR 244; Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner and another 1989 SCMR 1610; The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725; Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCMR 1699; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571 and Mt. Wallan v. Fazla and others AIR 1939 PC 114 rel.

(e) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation of gift---Gift of property by husband to wife---Wife, possession of---Constructive possession, principle of---Applicability---Once mutation of names is proved, the natural presumption arising from relation of husband and wife existing between them is that husband's subsequent acts with reference to property have been done on his wife's behalf and not on his own---Such principle indicatestheory of constructive possession is well applicable to gifts between husband and wife.

(f) Islamic law---

----Gift---Revocation---Effect---Gift made by husband in favour of his wife is to made more congeniality---Islamic Law, in such like events, does not give husband any right to revoke the gift.

Abdul Majid Khan and another v. Mst. Anwar Begum PLD 1989 SC 362 and Hamilton's Hedaya by Grady at page 486 rel.

Mian Muhammad Ismail Thaheem for Petitioner.

Muhammad Arif Raja, Additional Advocate General, Punjab for Respondents Nos. 1 to 3.

Rana Mazhar Iqbal for Respondents Nos. 4 and 5.

P L D 2021 Lahore 42

Before Abid Aziz Sheikh and Shahid Jamil Khan, JJ

CHAIRMAN, FEDERAL LAND COMMISSION---Appellant

Versus

Mst. SANAM IQBAL and others---Respondents

Intra Court Appeal No. 18 of 2002, heard on 16th September, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Show cause notice, assailing of---Principle---Show cause notice can be challenged in Constitutional jurisdiction in case of lack of jurisdiction---Action through show cause notice found to be without jurisdiction, patently illegal or with mala fide intent has to be nipped in the bud.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Al Ahram Builders (Pvt.) Ltd. v. Income Tax Tribunal 1993 SCMR 29; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1971 SC 279; Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others PLD 2020 Lah. 632; Dr. Fatima Arshad v. Government of the Punjab and others 2020 PLC (C.S.) 688; Messrs Pakistan Oilfields Limited through General Manager v. Federation of Pakistan through Ministry of Finance and 4 others 2020 PTD 110 and Messers J.K. Brothers Pakistan (Pvt.) Ltd. through Director v. The Additional Commissioner Inland Revenue and another 2016 PTD 461 rel.

(b) Appeal---

----Court---Jurisdiction---Appellate Court exercises same power which vests in the Court, order of which is challenged in appeal.

Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 and North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 rel.

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

----S.7 (5)---Holdings, determination of---Declaration not made by land owner---Land owner was aggrieved of notices issued by Land Commissioner for holding excess land---On the contrary tenants sought allotment of excess land in their favour---Single Judge of High Court set aside notices issued to land owner and petitions filed by tenants were dismissed---Validity---In absence of any declaration by land owner and determination under S.7(5) of Land Reforms Act, 1977, land did not vest in Federal Government---Provisions of Land Reforms Act, 1977 were not effective from 23-3-1990 to vest surplus land with Federal Government, therefore, law ceased to have effect and could not be invoked to issue notices in question by authorities---Single Judge of High Court had rightly dismissed Constitutional petitions filed by tenants as they could claim entitlement to surplus land as deserving tenants, if procedure/proceedings under S.7(5) of Law Reforms Act, 1977 were completed before 23-3-1990; even then they were required to be assessed or declared as deserving tenants under the provision of law---Division Bench of High Court declined to interfere in the judgment passed by Single Judge of High Court---Intra Court appeal was dismissed, in circumstances.

Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf, Punjab and others PLD 1998 SC 132 and Khan Muhammad and 6 others v. Federal Land Commission through Senior Member, Islamabad and 6 others 2008 CLC 467 ref.

S.A. Mahmood Khan Saddozai and Rubina Mahmood Khan Saddozai for Appellant.

Nemo for Respondents.

P L D 2021 Lahore 52

Before Shahid Waheed, J

MUHAMMAD BAKHSH---Petitioner

Versus

FAIZ MUHAMMAD and others---Respondents

Civil Revision No. 2422 of 2010, heard on 5th October, 2020.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 5---Demand of pre-emption, mandatory nature of---Talb-i-Muwathibt and Talb-i-Ishhad, strict proof of performance---Foundational facts on which plaint in a suit for pre-emption was to be based---Right of pre-emption as strictissimi juris---Deficiencies in proof of making of Talbs to be fatal for suit for pre-emption---Scope---Expression "cause of action" for purposes of suit for possession under Punjab Pre-emption Act, 1991 meant essential facts constituting right upon making of demands of pre-emption by pre-emptor in prescribed manner and its refusal by vendee---Said expression referred to facts upon which pre-emptor asked Court to arrive at a conclusion in his/her favour---Vital for plaintiff to prove the making of Talbs (demands of pre-emption) in accordance with law so as to establish that he had got cause to institute suit and to claim decree for possession of suit land through pre-emption---Right of pre-emption being strictissimi juris required strict proof of making of Talbs and any contradiction between contents of plaints and statement of witnesses eclipsed right of pre-emption---Where there existed contradiction between date of knowledge of sale of land mentioned in plaint and that mentioned by witnesses, then it had to be concluded that Talb-i-Muwathibat was not made in prescribed manner---Where plaintiff did not make immediate declaration to exercise his/her right to pre-emption upon getting information of sale of land but instead deferred it till next day, then same was fatal to claim of making of Talb-i-Muwathibat---Onus was on plaintiff to prove that statutory formalities regarding making of Talb-i-Ishhad were strictly observed and plaintiff had to produce evidence, including postman, to prove personal service of notice upon vendee (or vendee's refusal to accept same) however, where such requirement was not fulfilled, then conclusion to be drawn was that foundational facts stated in plaint were false---Law did not grant any power to any Court to condone any deficiency or deviation in matter of demands of pre-emption or to show any laxity in said matter---Making of demands of pre-emption in prescribed manner gave occasion for, and formed foundational facts constituting a cause of action in a particular pre-emption suit, which had no relation whatever to any defence that may be set up by a vendee and therefore mere conceding statement of defendant would not validate such deficiencies.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Muhammad Hayat v. Muhammad Jaffar 2009 CLC 259; Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309; Khan Afsar v. Afsar Khan and others 2015 SCMR 311; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 227; Din Muhammad v. Abrar Hussain and another PLD 2009 SC 930 and Ghulam Sarwar v. Rukhsana Kausar and others PLJ 2012 Lahore 442 rel.

(b) Maxim---

----"Nullus commodum capere potest de injuria sua propria": A party could not be permitted to take advantage of his/her wrong or manipulation.

Ghulam Hussain Malik for Petitioner.

Muhammad Hanif Niazi for Respondent No.1.

Muhammad Shakil Ghauri for Respondent No.2.

P L D 2021 Lahore 61

Before Asim Hafeez, J

MUHAMMAD MUNAWAR SAEED---Appellant

Versus

DISTRICT JUDGE/PRESIDING OFFICER, DISTRICT CONSUMER COURT, MULTAN and 2 others---Respondents

F.A.O. No. 204 of 2011, heard on 4th June, 2020.

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

----Ss. 13 & 33---Consumer protection---Faulty service---Proof---Appellants complained against respondent Airline for providing faulty service as they could not board the plane due to security check process---Validity---Tickets issued were processed for scheduled flight and accordingly boarding passes were issued---Appellants proceeded to departure lounge and waited for boarding announcement---Appellants were unable to board aircraft due to the fact that their passports were physically taken and retained by Airport Security staff (at foreign Airport) for security verification purposes---During such process of security, the flight departed---Airline staff at airport did not deny boarding to appellants nor cancelled their confirmed tickets or allowed boarding to other passengers, instead of appellants---Airline was not at fault in performance of services requested and correspondingly contracted---Blame at the best was attributed to the Airport Security staff at foreign airport---High Court declined to interfere in the matter as Consumer Court lacked jurisdiction in the matter---Appeal was dismissed, in circumstances.

Mst. Gulnaz and another v. Haji Muhammad Riaz and others PLD 2020 SC 221 rel.

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

----S. 27---Jurisdiction of Consumer Court---Scope---Extent and scope of causes of action cannot be confined to a particular place/location where alleged breach occurs---Act of faulty or defective service occurred or committed may extend to such other places/locations, where a part of cause of action has also arisen---Cause of action wholly or in part, may arise at any such place / location where an enforceable contract of provision of services was entered into, executed, acted upon, performed partially or otherwise or breach thereof committed etc.---Cause of action may also accrue on the basis of any other tangible event/action, forming part of a component of a cause of action, which is determinable in view of the facts of each case.

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

----S. 107 & O.XLI, R.33---Appellate Court, powers of---Scope---Appellate Court is vested with jurisdiction to pass any order, which could have been passed by Trial Court.

North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 rel.

Fakhar Raza Ajmal Mulana for Appellants.

Mian Abbas Ahmad and Muhammad Khalid Mahmood Ayaz for Respondents.

P L D 2021 Lahore 69

Before Tariq Saleem Sheikh, J

Mst. SHAHNAZ BEGUM and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 16208 of 2019, heard on 2nd December, 2020.

Succession Act (XXXIX of 1925)---

----Ss. 375, 371, 372 & 373---Nature of proceedings under Succession Act, 1925---Determination as to status of legal heirs---Grant of succession certificate---Requisition of security from grantee of certificate---Petitioners impugned order of Sessions Court whereby respondents were held to be the second widow and son of deceased, and therefore entitled as legal heirs in addition to petitioners, and succession certificate was granted to respondents---Validity---Controversy between parties as to whether respondents were legal heirs of deceased could only be decided in a civil suit and not under summary proceedings under Succession Act, 1925---High Court held that findings in impugned order that respondents were son and widow of deceased were to be set aside, and they were directed to immediately file civil suit in such regard---High Court further observed that peculiar circumstances of present case necessitated that discretion under S.375(1) of Succession Act, 1925 be exercised, and directed that succession certificate be issued to respondents claiming to be son and widow of deceased, subject to their furnishing a security bond equal to the amount they may be entitled to receive if they establish themselves to be real heirs of deceased---Constitutional petition was disposed of, accordingly.

Banarsi Dass v. Mrs. Teeku Dutta and another (2005) 4 SCC 4491; Mst. Samina Sikandar v. Public-at-large PLD 2011 Lah. 192; Shyam Sundari Devi and others v. Sarti Devi and others AIR 1962 Pat. 220; Ganga Prasad v. Mt. Saeedan and others AIR 1952 All. 801; Fateh Muhammad v. Mst. Arshad Afza 1999 MLD 1481; Muhammad Hayat and others v. Muhammad Said PLD 1950 Lah. 352; Sufia Khanam and others v. Abdul Huq Khan and others PLD 1968 Dacca 952; In re: Mst. Zubaida Khatoon PLD 1973 Note 129; Allah Nawaz Khan and 2 others v. Farida Fatima Khanum and 11 others 1999 MLD 2738; Rukhsana Kausar and another v. Additional District and Sessions Judge, Khanewal and 11 others 2000 CLC 585; Sofia Ashfaq v. Haseeb Ashfaq Bhatti and others PLD 2019 Isl. 238; Mst.Jameela Akhtar v. Public-at-large and others 2002 SCMR 1544; Aziz Ahmed v. Hakimzadi and 7 others 2013 CLC 406; V.K. Kamalam v. Panchali Amma and others AIR 1988 Kerala 265; Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965; Muhammad Javed Akhtar v. Public-in-large 1987 CLC 262; Liaqat Zaman Khan and others v. Mst. Tazeem Akhtar and others 2017 YLR 150 and Usman Sarwar (minor) and others v. Ghulam Fatimah and others 1990 CLC 756 rel.

Mehar Ghulam Shabbir Aheer for Petitioners.

Syed Azhar Abbas Hyder Bukhari for Respondents Nos. 4 and 5.

P L D 2021 Lahore 77

Before Sadiq Mahmud Khurram, J

Syed AMJAD HUSSAIN SHAH---Petitioner

Versus

ALI AKASH alias ASIMA BIBI and 5 others---Respondents

Writ Petition No. 1421 of 2020, decided on 14th September, 2020.

(a) Constitution of Pakistan---

----Art. 9---Right to liberty---Principle---Protection of life and liberty of citizens have been granted under Art. 9 of the Constitution---Right to liberty is placed on a higher pedestal which is to be respected by all and sundry.

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

----S. 491---Habeas corpus---Dar-ul-Aman, placing a woman in---Nikkahnama, validity of---Dispute was with regard to marriage of detenue---It was alleged that husband of detenue was in fact a female---Validity---When a woman makes a prayer for security to her life, she can be lodged at 'Dar-ul-Aman' but still that woman has right to make a prayer at any stage to the Superintendent of 'Dar-ul-Aman' or to competent Court on whose order she is sent to 'Dar-ul-Aman' to release her and restore her right of liberty---Such woman, in circumstances, cannot be further kept in 'Dar-ul-Aman' under the law of land---Detenue was a sui juris and she could not be detained by any person against her wishes---No law existed that a female on mere ground of her sex must invariably be treated as a person under some sort of disability---Detenue was sui juris and was set at liberty and permitted to live her life as she was pleased within the dictates of law and faith---Marriage and gender of husband of detenue could not be resolved in such proceedings---Petitioner could agitate the same before proper forum either before Family Court or if there was any criminal case registered according to version of petitioner, then in criminal Court proceedings---Constitutional petition was disposed of accordingly.

Ali Muhammad v. The State and others 2013 SCMR 1484; Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR 577 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

Raja Haseeb Sultan and Raja Amjad Mahmood for Petitioner.

Nemo for Respondent No.1

Asad Jamal for Respondent No.6.

Mujeebur Rehman Kiyani, Additional Advocate General.

P L D 2021 Lahore 86

Before Ayesha A. Malik, J

DISTRICT MANAGER, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, LAHORE---Petitioner

Versus

EXCISE AND TAXATION OFFICER, ZONE NO. 10, LAHORE and 4 others---Respondents

Writ Petition No. 15567 of 2015, heard on 19th October, 2020.

Punjab Urban Immovable Property Tax Act (V of 1958)---

----Ss. 3, 2(e) & 16---Levy of property tax---Leased Land---Lessee in perpetuity, attributes of---Petitioner Pakistan International Airlines ("PIA") impugned demand raised by respondents for payment of property tax in respect of a superstructure raised on land leased by petitioner from Provincial Government---Contention of petitioner, inter alia, was that liability of property tax fell on owner of property, and not lessee---Contention of respondents, inter alia, was petitioner PIA was a lessee in perpetuity and therefore it was liable to pay property tax---Validity---Petitioner would be considered lessee in perpetuity when lease agreement was not for a fixed term or where there did not exist any clause for renewal or termination of lease agreement---In present case, lease agreement was for a fixed term, and said agreement provided that lease agreement could be terminated on account of any breach of agreement or if said property was used for a purpose different than one specified in said agreement, and therefore petitioner could not be termed to be a lessee in perpetuity---High Court observed that under such circumstances, property tax could only be recovered from owner of building, and no tax could be levied under Punjab Urban Immovable Property Tax Act, 1968 on building raised by petitioner on land leased from Provincial Government---Constitutional petition was allowed, accordingly.

Government of Sindh through Secretary and Director General, Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380 rel.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Messrs Lahore Electric Supply Co. Ltd. v. Province of Punjab 2014 CLC 590;Platinum Commercial Bank Ltd. v. Government of Sindh through the Secretary, Secretariat, Karachi and another 2003 MLD 279 and Pakistan Cricket Board v. Executive District Officer (Revenue), Lahore and 2 others Writ Petition No. 10380 of 2006 ref.

Umer Sharif for Petitioner.

Akhtar Javed, Additional, Advocate-General, Punjab along with Tanveer Hussain, Inspector in the office of Respondent No.1.

P L D 2021 Lahore 90

Before Jawad Hassan, J

NOOR-UN-NISA and others---Petitioners

Versus

UNITED BANK LIMITED through Authorized Officers and 2 others---Respondents

Writ Petition No. 169196 of 2018, heard on 15th October, 2020.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 22---Eviction petition---Leave to contest---Concurrent findings---Scope---Petitioners assailed the rejection of their application for leave to defend the ejectment petition; the order of acceptance of ejectment petition and the judgment of appellate court dismissing the appeal---Contention of petitioners was that the property was allotted to their predecessor by the Settlement Authorities whereas respondent's claim was that the property was in ownership of a Bank whose assets and liabilities were devolved upon and taken over by it under Banks (Nationalization) Act, 1974---Validity---Supreme Court had settled the controversy between the parties regarding ownership of the property and had declared the respondent to be landlord of petitioners---Respondent had filed ejectment petition under Ss. 15 & 19 of Punjab Rented Premises Act, 2009, which was duly contested by the petitioners by filing application for leave to defend under S. 22, Punjab Rented Premises Act, 2009---Special Judge (Rent) had refused to grant leave to contest by ordering the petitioners to handover vacant possession of property to the respondent---Appeal filed by petitioners under S.28, was heard and dismissed---Under the rule of law, the access to justice was provided to the parties---Findings of both the courts were in consonance with law---Constitutional petition was dismissed.

Fazal Raziz v. Haji Sher Zaman and 2 others 2016 MLD 121; Amin and others v. Hafiz Ghulam Muhammd and others PLD 2006 SC 549; Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520; Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178 and Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 ref.

United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380; Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832; 2007 SCMR 1446; 2017 YLR 1691; PLD 2016 Isl. 1 and President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings---Effect---Constitutional jurisdiction is exercised with great care and caution where there are concurrent findings of courts below as the same cannot be used as a substitute for appeal---Evidence duly appreciated by the courts below cannot be re-appreciated on the ground that different opinion can also be formed in Constitutional jurisdiction---Appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of Constitutional jurisdiction---Party approaching the High Court under Art. 199 of the Constitution, has to demonstrate that there is some gross misreading or non-reading of evidence or any jurisdictional defect floating on the surface of the record.

Sajida Anwar v. Additional District Judge and others 2018 YLR 1713; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488 and Shamshad Begum v. Mst. Huma Begum and others 2008 SCMR 79 ref.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

(c) Maxim---

----Res judicata pro veritate occipitur: Decision which is once rendered by a competent court on a matter in issue between the parties after a full enquiry should not be permitted to be agitated over and again.

(d) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Obiter dicta---Scope---Decisions of Supreme Court are binding on all the courts subordinate to it when they decide the question of law and enunciate the principles of law---Even the obiter dicta of the Supreme Court is of greater value.

Shahid Pervaiz v. Ijaz Ahmad and others 2017 SCMR 206 rel.

Mian Javed Iqbal Arain for Petitioners

Rai Shahid Saleem Khan, Sh. Sajid Mahmood, Ali Awais, Moeen Ahmad, Adnan Afzal, Legal Head UBL for Respondents.

Muhammad Kashif Pasha and Hamid-ul-Rehman Nasir, Research Officers of Lahore High Court Research Center, Research Assistance.

Date of hearing: 15th October, 2020.

"Life, liberty, property, and the equal protection of the law, grouped together in the Constitution, are so related that the deprivation of any of those separate and independent rights may lessen or extinguish the value of the other three"

Smith v. Texas, 233 U.S. 630, 636 (1914)

P L D 2021 Lahore 105

Before Muhammad Qasim Khan, C.J.

Mst. ASMAT PARVEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 42705-B of 2020, decided on 15th October, 2020.

(a) Police Rules, 1934---

----R. 22.4 (as amended)---Roznamcha waqiati---Maintenance of hard copy---Scope---Wisdom underlying the maintaining of manual roznamcha is to rule out the possibility of any fabrication which can easily be incorporated in the soft copy, hence, in all eventualities soft copy can never be a substitute of manual register maintained in terms of previous practice in vogue---Careful perusal of the amendment made in R. 22.4 divulges that maintaining of manual roznamcha has not been prohibited rather it delineates that in addition to hard copy, soft copy (electronic copy) of the registers shall be prepared---High Court issued direction to Inspector General of police to immediately issue directions to the police hierarchy throughout the Province to keep maintaining manual roznamcha waqiati as per previous practice---Electronic copy of the same as introduced through amendment would continue simultaneously.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotics---Bail, grant of---Scope---Accused was alleged to have been found in possession of narcotics---Contention of accused was that two different FIRs were registered at the same police station within a span of ten minutes---First FIR was against her husband with regard to recovery of narcotic substance in front of his house while the other FIR was registered against the accused narrating the story that the charas was recovered from her and venue of recovery was mentioned as backside of the same house---Possibility of maneuvering false case implicating the accused in the case at the hands of complainant/local police could not be ruled out---Accused was a woman folk who was stated to be previous non-convict and behind the bars since the date of her arrest---Investigation being complete, person of the accused was no more required for further investigation---Sufficient grounds existed to interfere into the matter to grant relief of bail under S.51 subsection (2) of the Control of Narcotic Substances Act, 1997---Petition for grant of bail was allowed, in circumstances.

Muhammad Ehsan Gondal for Petitioner.

P L D 2021 Lahore 108

Before Ayesha A. Malik, J

The BANK OF KHYBER through Authorized Attorneys---Petitioner

Versus

MUNICIPAL CORPORATION GUJRAT through Mayor Nasir Mehmood and 2 others---Respondents

Writ Petition No. 129536 of 2018 along with connected petitions, heard on 17th November, 2020.

(a) Punjab Local Government Act (XIII of 2019)---

----S. 156---Punjab Local Government Act (XVIII of 2013), Ss. 115 & 87---Companies Act (XIX of 2017) S.22---Local Government Taxes, Fees, Rates and Tolls---Authority of a local government to levy taxes etc.---Statutory requirement of publication of name by a company by way of conspicuous display outside every place of business of such company---Levy of local government taxes/fee(s) on such display/ signage---Scope---Question before High Court was whether Provincial Local Government could levy fee on petitioner Banking Companies for display of signboards at their places of business, when such display was made in compliance of requirement of S.22 of Companies Act, 2017 read with applicable State Bank of Pakistan Circulars---Held, that petitioner Banks and other corporate entities were required under Federal Law to affix their signboards on their premises, regardless of whether such premises were in their ownership or rented, and thus they should be exempt from any fee to such extent, as Provincial Law could not override provisions of Federal Law---High Court held that any fee that was charged by Provincial Local Government under S.156 of Punjab Local Government Act, 2019 would be cognizant of provisions of Federal Statutes requiring Banks and corporate entities to install signboards outside their premises as per the Companies Act, 2017 and State Bank of Pakistan Circulars---Constitutional petitions were allowed, accordingly.

Bank Alfalah Limited v. Messrs Callmate Telips Telecom Ltd. and 5 others 2016 CLD 1202 ref.

Soneri Bank Limited v. Province of Punjab and others PLJ 2020 Lah. 239 rel.

(b) Cantonments Act (II of 1924)---

----Ss. 200 & 282---Cantonment Board, powers of---Power of Cantonment Board to make bye-laws---Levy of advertisement fee by Cantonment Board in respect of display/signage outside business premises---Scope---Petitioners impugned bye-laws issued by Cantonment Board regarding pasting of billboards and advertisements and levy of advertisement fee on petitioners' display outside their premises, on ground that under Cantonments Act, 1924, no such power was available to Cantonment Board---Validity---Power to make byelaws under S.282 of Cantonments Act, 1924 was subject to provisions of said Act, and such power was dependent upon statutory power given to Cantonment Board---Section 200 of Cantonments Act, 1924 authorized Cantonment Board to levy fee in a limited manner, and Cantonment Board could not enlarge scope of said section to include fee on advertisements---Cantonment Board therefore had no authority to levy fee in relation to boards installed by petitioners at their offices/premises---Constitutional petition was allowed, accordingly.

Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385; Allied Bank Limited v. Province of Punjab and others (I.C.A. No.62 of 2015); Habib Bank Limited Islamabad v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad and others (Civil Appeal No.796 of 2015) and Messrs Haidri Beverages (Pvt.) Ltd. v. City District Government, Rawalpindi through D.C.O. and others (I.C.A. No.50 of 2015) rel.

(c) Companies Act (XIX of 2017)---

----S.22---Statutory requirement of publication of name by a company by way of conspicuous display outside every place of business of a company/corporate entity---Levy of Local Government, Housing Authorities, Parks and Horticulture Authority, National Highway Authority charges/fee(s) on such display/signage---Scope---Banks and corporate entities were entitled to install signboard/signage in compliance with Companies Act, 2017 and State Bank of Pakistan Policy without charge of fee subject to any rules or regulations on size and shape; provided same did not contain any advertisement material.

Advocates for Petitioners

Malik Muhammad Umar Awan,Raza Imtiaz Siddiqui, Jamshed Alam, Qadeer Kalyar, Syed Ali Zafar, Mubashir Aslam Zar, Muhammad Asif Ismail, Mansoor Usman Awan, Ms. Shazeen Abdullah, Mohsin Mumtaz, Ali Sibtain Fazli, Hasham Ahmad Khan, Abad ur Rehman and Esa Jalil, Mustafa Ramday, Khalid Ishaq; Syeda Fatima Tanveer, Ashar Elahi, Adnan Kazmi, Chaudhary Muhammad Arshad, Usman Nawaz, Zafar Iqbal Kalanauri, Waseem Ahmad Malik, Muhammad Asif Butt, Sheikh Anwaar ul Haq, Hafiz Muhammad Kalim Ullah, Faizan Munir Joyia, Ahmad Kamal Khan, Salman Akram Raja, Malik Ahsan, Ms. Atira Akram, Arslan Riaz, Zeeshan Nadeem, Adil Aftab Kashmiri, Bilal Kashmiri, Kashif Hussain, Shahzad Ahmad Cheema, Asif ur Rehman, Abdul Hameed Chohan, Chaudhary Sohail Khurshid, A.W. Butt, Imran Mushtaq, Abid Hussain, Dr. Zia Ullah Ranjha, Chaudhary Muhammad Shakeel, Afrasiab Mohal, Muhammad Adeel Chaudhary Muhammad Azam Zia, Yasir Islam Chaudhary, Imran Aziz Khan, Ch. Abdul Rab, Umer Abdullah, Kashif Ali Chaudhary, Ms. Shazia Ashraf Khan, Faisal Hanif, Faizan ul Haq Dar, Syed Sajid Ali Bukhari, Abdul Latif, Tahir Farooq, Arslan Munir Joiya, Waqar A. Khan, Imran Mustafa, Hafiz Mudassar Hassan Kamran and Mian Asghar Ali.

Advocates for Respondents

Federation of Pakistan

Ms. Ambreen Moeen, Deputy Attorney General for Pakistan along with Azmat Hayat Khan Lodhi, Assistant Attorney General for Pakistan.

Province of Punjab

Waqar Saeed Khan, Assistant Advocate General, Punjab.

Local Government and Community Development Department (Municipal Corporations)

Khalid Jamil, Muhammad Rafique Chaudhry, Sardar Naeem Akbar Khan, Chaudhary Asif Shahzad Sahi, Barrister Chaudhary Saeed H. Nangra, Zafar Iqbal Bhatti and Ms. Samra Malik.

Cantonment Boards

Barrister Muhammad Umer Riaz, Haroon Rashid, Waqas Umer Sial, Barrister Bushra Saqib, Sardar Balakh Sher Khan Khosa, Naveed Akhtar Chaudhary, Rana Nasr Ullah Khan, Muhammad Imran Haider Bhatti, Muhammad Ali Sherazi, Mian Haseeb ul Hassan, Salman Ahmad, Mrs. Samia Khalid, Zarak Zaman Khan, Sheikh Nadeem Arshad, Muhammad Anwar Chaudhary, Chaudhary Muhammad Atiq, Chaudhary Muhammad Umar, Mufi Ahtesham Uddin Haider, Malik Khurram Shahzad, Zulqarnain Hammad and Muhammad Arif Thothaal.

Parks and Horticulture Authority

Waqar A. Sheikh, Ms. Humaira Afzal, Faisal G. Miran, Abdur Rauf Sindhu, Rana Muhammad Afzal Razzaq Khan, Sardar M.S. Tahir, Mian Abdul Qadoos, Rao Aurangzeb Rashid and Muhammad Rafiq Shah.

National Highway Authority

Malik Muhammad Jhenagir Aslam.

Defence Housing Authority

Altaf ur Rehman Khan and Ishfaq Amir Hussain, Mubeen Uddin Qazi, Advocate for private Respondent No.5 (in W.P. No.222831 of 2018).

Muhammad Khalid Chaudhary, Advocate for private Respondent No.9 (in W.P. No. 203795 of 2018).

P L D 2021 Lahore 130

Before Ch. Muhammad Iqbal, J

MOHYUDDIN MOHAMMAD KHAN through General Attorney---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER/MEMBER (JUDICIAL-V), BOARD OF REVENUE PUNJAB, LAHORE and 10 others---Respondents

Writ Petition Nos. 11-R, 2-R, 125-R, 150-R of 2009, 115-R, 121-R, 126-R, 127-R, 128-R, 129-R, 130-R, 131-R, 132-R of 2010, 66-R of 2011, 35-R and 87-R of 2013, decided on 29th October, 2020.

(a) Power of Attorney---

----"Principal", death of---Effect---Petition was filed on behalf of sole petitioner after his death on the basis of defunct power of attorney---Institution of suit by/against only one dead petitioner/ defendant as a whole was nullity in the eye of law---Such lis was not further proceedable as such flaw was incurable in nature.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Muhammad Yar (deceased) through LRs and others v. Muhammad Amin (deceased) through LRs and others 2013 SCMR 464; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives v. Zari Taraqiati Bank Limited through Branch Manager PLD 2007 Lah. 180 rel.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3---Fraudulent allotment, cancellation of---Effect---Petitioners claimed to be owners of land in question on the basis of allotment made on 25-2-2006 in favour of their predecessor-in-interest---Settlement Authorities cancelled allotment of land in question and passed order to resume State land---Validity---Neither any provision was available for allotment of evacuee land against unsatisfied pending units nor Notified Officer was conferred with any jurisdiction to allot or transfer land or grant alternate land after repeal of Evacuee Laws in 1975---Order dated 25-2-2006 was without authority, illegal and void and passed in violation of order passed by Supreme Court---Board of Revenue while dismissing petition of Mukhbari against predecessor-in-interest of petitioners wrongly presumed that order passed by Settlement Authorities was the 'original allotment order'---High Court declined to interfere in the order passed by Settlement Authorities as alleged allotment made in favour of predecessor-in-interest of petitioner was rightly cancelled as the same was based on fraud and forgery and rightly resumed land in favour of State---Petitioners failed to point out any perversity, illegality or any jurisdictional defect in order passed by Settlement Authorities resuming State land---Constitutional petition was dismissed in circumstances.

Ghulam Muhammad and another v. Irshad Ahmed and another PLD 1982 SC 282; Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan and others PLD 2011 SC 961; Qaid Jauhar and another v. Mst. Hajiani Hajra Bai and another 2002 CLC 551 and Lakhra Power Generation Company Limited (LPGCL) v. Karadeniz Powership Kaya Bey through Master of The Vessel and 4 others 2014 CLD 337 ref.

Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another PLD 2015 SC 166; Bashir Ahmad and others v. Punjab University Academic Staff Association and others 1991 SCMR 377; Mirza Zafar Ali and others v. Lahore Cantonment Cooperative Housing Society Limited 2005 SCMR 985 Member, Board of Revenue, Punjab, Lahore v. Rafaqat Ali 1998 SCMR 2596; Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others 1997 SCMR 1635; Ali Muhammad through LRs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097; Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097; Syed Ansar Raza Zaidi and others v. Chief Settlement Commissioner and others 2007 SCMR 910 and Tufail Muhammad through LRs v. Messrs Siddique Textile Mills Ltd. and others 2009 SCMR 1091; Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner (Lands), Lahore Division and another 2002 YLR 3268 and Rasheed Ahmad and 2 others v. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala and others 2007 CLC 1801 rel.

(c) Fraud---

----Benefit, right or title---Status---Fraud vitiates the most solemn proceedings and any structure so raised on the basis of such fraudulent transaction stood automatically dismantled---Any benefit, right or title obtained by committing fraud wears no sanctity in the eyes of law and ill-gotten gain cannot be perpetuated.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097 and Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 rel.

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

----Ss. 10, 11 & 41---Ostensible owner, purchase from---Principle of Caveat Emptor---Applicability---Purchaser is saddled with extraordinary responsibility of taking care and caution and to deeply scrutinize genuineness or originality or legality of title of vendor before purchasing land under the principle of Caveat Emptor subject to incidence of Ss.10 & 11 of Transfer of Property Act, 1882---Any infirmity or deficiency in title found later always travels with land and purchaser is precluded to subsequently raise plea of protection available under S.41 of Transfer of Property Act, 1882, rather he has to face rigors of his own committed negligence for non-conducting a bona fide and reasonable investigation into title of vendor under the principle of Caveat emptor.

Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Bashir Ahmad and others v. Additional Commissioner with Powers of Settlement Commissioner (L) and others 1983 SCMR 1199; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 and Abdul Hamid v. M.B.R. and others 1994 CLC 1160 rel.

Asad Ullah Khan along with Yaseen Muhammad Khan Aqeel, one of the legal heirs as well as Special Attorney of legal heirs of the Petitioner.

Muhammad Shahzad Shaukat for Petitioner (in W.P.No.115-R of 2010).

Ijaz Ahmad Khan for Petitioners (in W.Ps. Nos.125-R of 2009, 126-R, 127-R, 128-R, 129-R, 130-R, 131-R, 132-R of 2010 and 87-R of 2013).

Hamid Ali Mirza for Petitioner (in W.P. No.121-R of 2010).

Ch. Bashir Hussain Khalid for Petitioners (in W.P.No.2-R of 2009).

Malik Noor Muhammad Awan and Arshad Malik Awan for Petitioners (in W.P. No.66-R of 2011).

Kh. Tahir Ahmad for Petitioner (in W.P. No.35-R of 2013).

Iqbal Ahmad Khan for Petitioner (in Writ Petition No.150-R of 2009).

Mushtaq Ahmad Chaudhary for Respondent No.6(i) (in W.P. No.11-R of 2009).

Rao Farooq Akhtar for Applicant in Application under Order I, Rule 10 of C.P.C. (in W.P. No.11-R of 2009).

Osama Hanif, Advocate/Legal Advisor on behalf of Settlement Department (in W.P. No.150-R of 2009).

Mian Swad Hanif, Advocate/Legal Advisor on behalf of S&R (BOR)/Settlement Department, Punjab, Lahore.

Waseem Iqbal Butt, Assistant Advocate General, Punjab.

P L D 2021 Lahore 156

Before Masud Abid Naqvi and Jawad Hassan, JJ

MUHAMMAD YOUSAF---Appellant

Versus

SECRETARY FINANCE and others---Respondents

Intra Court Appeal No. 530 of 2014, heard on 15th October, 2020.

(a) Constitution of Pakistan---

----Art. 240 & Fourth Sched.---Punjab Civil Servants Act (VIII of 1974), S. 23---Civil Servants Act (LXXI of 1973), S. 25---Provincial legislative autonomy---Scope---Policy notification of Federal Government---Question as to whether it was obligatory upon the Provincial Government while adopting a policy notification of the Federal Government regarding a matter, which was within the competence and domain of the Province after Eighteenth Constitutional Amendment, to follow and give effect to the same from the very date as given by Federal Government---Held, that it was within the exclusive domain of a Provincial Government to adopt a policy/notification of the Federal Government, which fell within the Province's legislative competence and it could make its applicability within the province from such date, which it found appropriate---Mere adopting of such notification of the Federal government did not make the same ipso facto applicable in entirety (in the Province) unless directed so by the Provincial Government as it is within the Province's competence to limit or extend such applicability and it was not obligated to adopt a policy on the same date as made applicable by the Federal Government.

Appellant retired from the service of Provincial Government on 09.08.2013, where after he was granted his pensionary benefits. Later on, the Federal Government amended Revised Leave Rules, 1980 by enhancing the period for leave preparatory to retirement from 180 days to 365 days with effect from 01-07-2012. The Provincial Secretary Finance Department also adopted aforesaid notification on 09-09-2013 by giving it effect from 01-09-2013. The grievance of the appellant was that since the Provincial Government had adopted the notification of Federal Government regarding enhancement of leave preparatory to retirement period therefore, the Provincial Government had to give effect to the said notification from the same date as made by the Federal Government had done i.e. 01-07-2012 and not from 01-09-2013. The appellant challenged notification dated 01-09-2013 (the "Notification") issued by the Provincial Government in the writ petition which was dismissed. Main issue in the present case was whether it was obligatory upon the Provincial Government that while adopting the Notification of Federal Government on 09-09-2013, it should have given it effect from 01.01.2012, the date when the Federal Government had given it effect and no choice was available with the Provincial Government to effectuate the same with effect from 01-09-2013.

In relation to service matters, the employees of Federal Government were regulated under the Civil Servants Act, 1973 while the employees of Provincial Government were regulated under the Punjab Civil Servants Act, 1974. Appellant performed his duties and retired from the service in connection with the affairs of a Province and his services were regulated under the Punjab Civil Servants Act, 1974. Argument of the appellant to implement the Notification of the Federal Government in the province was not tenable because Provincial law had its own mechanism, rules and regulations and the amendments therein were to be made by the provinces through the Provincial Assembly. Under the Punjab Government Rules of Business, 2011, the Services and General Administration Department of the Government of the Punjab had the mandate to administer Punjab Civil Servants Act, 1974 and make rules therein hence, Notification in question was rightly passed by the Provincial Assembly. Furthermore, after 18th Amendment to the Constitution, in set up of service matters, the Constitution had drawn a line between the services of Pakistan with the Federation and Provinces, hence they were distinguished from each other in respect of making laws.

Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489; Government of Sindh and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

After abolishment of concurrent list in Fourth Schedule to the Constitution, Provincial Assembly became absolute once the domain of a legislation fell within its competence. In service matters, each province had separate laws because under Article 240 of the Constitution, each province had legislation similar to that of the Federal Government's Civil Servants Act, 1973. Words used under Article 240 of the Constitution were very clear on the appointment and conditions to service of Pakistan and in connection with affairs of provinces the same were to be determined by the Provinces under an Act of the Provincial Assembly. Muzaffar Khan and others v. Government of Pakistan and others 2013 SCMR 304 ref.

The (Federal) Ministry of Finance and Revenue (Finance Division) functioning under the Rules of Business, 1973, by exercising powers conferred under section 25 of the Civil Servants Act, 1973, amended its Revised Leave Rules, 1980 on 29-08-2012. The effect and benefit of such amendment was applicable only to civil servants functioning under the Federal Government. On the other hand, the Finance Department, Government of Punjab, which functioned under the Punjab Government Rules of Business, 2011 exercised the powers conferred under section 23 of the Punjab Civil Servants Act, 1974, and amended the Revised Leave Rules, 1981 and by adopting the same relief, as given by the Federal Government, extended the same benefit to its employees.

After omission of the Concurrent List from the Fourth Schedule of the Constitution post Eighteenth Constitutional Amendment, now Provinces had exclusive domain and legislative competence to legislate and regulate upon all those matters, which were earlier part of that list. It was therefore within the exclusive domain of Provincial Government to adopt a policy/Notification of the Federal Government, which falls within its legislative competence and it could make its applicability within the province from such date, which it found appropriate. Mere adopting of such Notification of the Federal Government did not make the same ipso facto applicable in entirety (in the Province) unless directed so by the Provincial Government as it is within its competence to limit or extend such applicability and it was not obligated to adopt a policy on the same date as made applicable by the Federal Government.

Matter of service of persons serving at posts in connection with the affairs of the Province including their terms and conditions, including pensionary matters, fell within the embrace of authority of the Province because under the concept of Provincial Autonomy, the Province was free from outside control and interference and also was well within its rights to follow and pursue any scheme/Notification or any policy from any date, as it deemed appropriate. Appeal filed by appellant was dismissed.

(b) Words and phrases---

----'Autonomous' and 'autonomy'---Definition.

Black's Law Dictionary 11th Edition and Advanced Law Lexicon 4th Edition ref.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---

----Art. 9---Constitution of Pakistan, Art. 175---Findings of Mohtasib/ Ombudsman---Scope and nature---Such findings were of recommendatory nature and not a judgment/decision---Performance of quasi-judicial functions by (the Mohtasib/Ombudsman) itself did not convert an authority into a Court---In order to constitute a Court in stricto sensu, it should have power to give a decision or a definite judgment, which had finality and authoritativeness---Office of Wafaqi Mohtasib was neither a Court nor a judicial Tribunal within the scope of Art. 175 of the Constitution.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 and Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637 ref.

Mian Abdul Qudoos, Advocate Supreme Court for Appellant.

Barrister Hassan Khalid Ranjha, Assistant Advocate General along with Shahbaz Ahmad Sheikh, Law Officer for Respondents.

P L D 2021 Lahore 168

Before Shahid Waheed, Atir Mahmood and Ch. Muhammad Iqbal, JJ

MUHAMMAD SAIF ULLAH---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITIES and others---Respondents

Review Application No. 2005 of 2019, decided on 17th November, 2020.

(a) Interpretation of statutes---

----Procedural and substantive law---Determination of nature of a statute---Test applied to determine whether a statute is "procedural law" or "substantive law"---Scope---Real nature of any statute could not be determined by its nomenclature and description, but a glance at such statute's actual contents was essential---While distinction between substantive law and procedural law was clearly drawn in theory, there were many rules of procedure which, in practical operation, were wholly or substantially equivalent to rules of substantive law---Law of procedure may be defined as that branch of the law which governed process of litigation and all that was the residue was substantive law and related not to process of litigation but to its purpose and subject matter.

The Anatomy of Science (1926) P. 178; Salmond on Jurisprudence by P. J. Fitzgerald, 12th Edition, Section 128; Nabi Ahmed and another v. Home Secretary, Government of the West Pakistan, Lahore and 4 others PLD 1969 SC 599; S. M. Junaid v. President of Pakistan PLD 1981 SC 12; Aftabuddin Qureshi and another v. Mst. Rachel Joseph and another PLD 2001 SC 482 and Muhammad Asghar v. Hussain Ahmad and others PLD 2014 SC 89 rel.

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

----Preamble & S. 1---Nature and scope of the Civil Procedure Code, 1908---Every important rule of both procedure and substantive law were intertwined in the C.P.C. so as to make same as much as possible a comprehensive compendium to cover complete system of the Courts of Civil Judicature.

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

----S. 115---Revision---Nature of jurisdiction under S.115, C.P.C.---Right to seek revision by filing application under S.115 of C.P.C. of a case decided in which no appeal lay, on ground of irregular or improper exercise or non-exercise of jurisdiction, was a substantive right conferred by the C.P.C.

The Relation of Dress to Art in Pall Mall Gaz. (28 Feb. 1885); Muhammad Riasat, SET (Science) and others v. The Secretary of Education, N.W.F.P., Peshawar and 2 others 1997 SCMR 1626; Azmatullah through LRs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137 rel.

(d) Interpretation of statutes---

----Statutory amendment/repeal---Effect of amendment/repeal of statutes---Maxim "nova constitutio futuris formam imponere debet non praeteritis"----Construction of amendatory or repealing statutes---Scope----Where a section of a statute was amended, then original provision ceased to exist and said new section superseded it and became part of law just as if amendment had always been there and in such a situation, rules of interpretation applicable to repeal may also apply to amendment---No difference existed between a case where Legislature declared a particular section as amended in a particular way and a case where Legislature declared that a section stood repealed and its place would be taken by a new section, if said new section was same as amended section---General rule as to the effect of repeal of a statute followed from legal maxim "nova constitutio futuris formam imponere debet non praeteritis" which meant that new law ought to regulate what is to follow, not the past.

People v. Supervisors of Montgomery (67 N.Y.109); The Construction of Statute by Earl T. Crawford, Saint Louis Thomas Law Book Company (1940); Chapter XII; Understanding Statutes by S. M. Zafar, Second Edition, Chapter-VI and Saeed Ahmad v. The State PLD 1964 SC 266 rel.

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

----Ss. 115 & 104---Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018), S. 19---Revisional jurisdiction of High Court under S.115, C.P.C.---Nature---Effect of amendment in S.115, C.P.C.---Applicability of bar to revision against order passed under S.104, C.P.C. vide S.115(5), C.P.C., applicability of---Right to remedy of revision accrued on commencement of suit/proceedings---Scope---Question before High Court was whether S.115(5), C.P.C. which was inserted by Code of Civil Procedure (Punjab Amendment) Act, 2018 and which barred revision under S.115, C.P.C. on orders passed by District Court in an appeal filed under 104, C.P.C.; would apply on cases which had already commenced in Trial Court/Original Court before such enactment/insertion came into force---Held, that legal pursuit of a remedy, appeal or second appeal or revision were steps in a series of proceedings all connected by intrinsic unity and were to be regarded as one legal proceeding---Right of appeal or revision or second appeal was not a mere matter of procedure but a substantive right, and institution of a suit carried with it implication that all such rights then in force, were preserved to parties thereto till rest of career of such suit---Right of appeal or revision was vested right and such right accrued to litigant and existed as on and from date the lis commenced and although same may be actually exercised when adverse judgment was pronounced, however such right was to be governed by law prevailing as on date of institution of suit or proceeding and not by law that prevailed at date of decision or at date of filing of such appeal/ revision---Said vested right of appeal or revision or second appeal could be taken away only by a subsequent enactment, if it so provided expressly or by necessary intendment and not otherwise---High Court held that right of revision vested in parties at such date when litigation commenced and such right was to be governed by law as it prevailed on said date which was that date the parties acquired right to seek remedy of revision under S.115, C.P.C., if unsuccessful in appeal under S.104, C.P.C.---Review was allowed, accordingly.

School Board Election for the Parish of Pulborough, Bourke and others v. Nutt (1894) 1 QB 725; Colonial Sugar Refining Company Limited v. Irving 1905 AC 369; Muhammad Ishaq v. The State PLD 1956 SC 256; Garikapati Veeraya v. N. Subbiah Coudhry and others PLD 1957 SC (Ind.) 448; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 681; Muhammad Alam and 3 others v. The State PLD 1967 SC 259; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Nabi Ahmed and another v. Home Secretary, Government of the West Pakistan, Lahore and 4 others PLD 1969 SC 599; Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376 and West Pakistan Industrial Development Corporation v. Rashid Ahmad and another 1988 SCMR 526 rel.

Rana Rashid Akram Khan and Sh. Usman Karim-Ud-Din for Petitioner.

Ali Mehdi Bukhari for Respondents/LDA.

Uzair Karamat Bhandari, Amicus Curiae.

Khalid Ishaq, Amicus Curiae

P L D 2021 Lahore 186

Before Jawad Hassan, J

BAHOO DYING INDUSTRIES (PRIVATE) LIMITED---Appellant

Versus

SUI NORTHERN GAS PIPELINES LIMITED and others---Respondents

F.A.O. No. 111235 of 2017, heard on 9th November, 2020.

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

----S. 4---Civil Procedure Code (V of 1908), O. VII, R. 10---Exclusive jurisdiction of Gas Utility Court---Return of plaint---Scope---Appellant challenged the order of Gas Utility Court whereby plaint in the appellant's suit was returned with observation that the property was not situated within its territorial jurisdiction---Validity---Facts which had nexus with the lis had all arisen in district 'L', which was within the territorial jurisdiction of the Gas Utility Court---Appellant was situated within the precincts of district 'L' which fact was established from its official address, duly mentioned on the tariff bill issued by respondent---For all intents and purposes, the appellant i.e. "consumer" of the Gas Company was situated within the precincts of district 'L'---Appeal was allowed, impugned order was set aside and the matter was remanded to the Gas Utility Court at district 'L' to decide the same on merits.

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

---S. 4---Exclusive jurisdiction of Gas Utility Court---Scope---Section 4 of the Gas (Theft Control and Recovery) Act, 2016 provides that a court having jurisdiction under said Act shall be a Gas Utility Court having jurisdiction in the place in which the Gas Utility Company, consumer, gas producer or offender, as case may be, is situated---Jurisdiction of Court can be determined on the basis of four elements i.e. Gas Utility Company, consumer, gas producer or offender---Court within whose jurisdiction any one of the four elements exist has jurisdiction to deal with the matter.

(c) Maxim---

----"Ubi jus ibi remedium"---Explained.

The maxim "ubi jus ibi remedium" is a fundamental principle of law and of natural justice, which provides that every person, who has a right, must also have a remedy and for enforcing remedy against violation of such right there must be a proper form to ensure enforcement of these rights. Forum for adjudication may be a general legal forum established under a general law or may be a special forum constituted/declared and functioning under a special law, which means that such legal forum has jurisdiction to adjudicate upon the matter.

(d) Jurisdiction---

----Term "jurisdiction" means the authority of person/authority/legal forum to decide a matter, which means power of the Court to hear, determine and adjudicate upon a controversy by exercising its legal judicial power and authority.

Black's Law Dictionary rel.

(e) Jurisdiction---

----Concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court---Jurisdiction of a legal forum/Court includes its (i) territorial jurisdiction; (ii) pecuniary jurisdiction; and (iii) subject matter jurisdiction---Jurisdiction is always conferred upon the Courts by a law and it cannot be decided by the parties inter se---Territorial jurisdiction refers to a Court's power over actions and parties within the bounds of a particular territory---If a Court does not have a territorial jurisdiction over the events or persons within it then the Court cannot give a binding decision regarding the rights of the parties.

Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs PLD 2017 SC 51 rel.

(f) Jurisdiction---

----Question of jurisdiction is a mixed question of law and fact and it must not be decided lightly unless strong and convincing grounds are available on the face of the plaint coupled with attached documentary evidence so as to pass a definitive verdict thereon.

Bank of Credits and Commerce and others v. Asrar Hassan and others 2007 SCMR 852 rel.

(g) Jurisdiction---

----Territorial jurisdiction---Scope---Territorial jurisdiction means a specific area over which a Court can exercise its authority.

Black's Law Dictionary rel.

(h) Jurisdiction---

----Territorial jurisdiction---Determination---Scope---Only those facts which have a bearing upon the lis or the dispute involved in the case give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned---All other facts which have no nexus or relevance with the lis are to be ignored for the purpose of determination of territorial jurisdiction.

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

----O. VII, R. 10---Return of plaint---Determination of jurisdiction---Scope---Whenever a challenge is made to the jurisdiction of the Court, such Court is obliged to decide the matter of its jurisdiction first by taking into account all the relevant facts---However, the Courts have inherent jurisdiction to decide the question of their own jurisdiction with respect to a specific matter and jurisdiction of a Court is initially determined by the pleadings of the parties---If the Court reaches upon the conclusion that it does not have the jurisdiction to decide the lis before it, the Court should return the plaint under O. VII, R. 10, C.P.C., because decision will have a binding force only when the same is passed by a Court of competent jurisdiction.

Taisei Corporation v. A.M. Construction Company (Pvt.) Ltd. PLD 2012 Lah. 455 rel.

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

----Ss. 16 to 20---Territorial jurisdiction---Scope---Limits of territorial jurisdiction of a Court are provided in Ss.16 to 20 of C.P.C.---Question of territorial jurisdiction is initially determined merely by contents of the plaints, the documents attached therewith, on the basis of other relevant material and the cause of action existing at the time of institution of a suit---Only the facts have nexus or relevance with the issues raised in the litigation which vest the court with the territorial jurisdiction---Section 20 of C.P.C. lays down general rule regarding the legal fora for institution of suits relating to personal actions---It confers territorial jurisdiction upon a court to decide all the cases in which the defendant resides, carries on business or personally works for gain or in which the cause of action arises wholly or partly within the local limits of such Court---So, said provision brings forth choice for the appellant and a right to select a forum out of the alternatives provided under the said provision---For determining the territorial jurisdiction of the Court wherein a suit is to be filed, clause (c) of the S.20, C.P.C. postulates that a suit can also be filed in a Court within the local limits of whose jurisdiction the cause of action wholly or in part arose---Even fraction of a cause of action is a part of the cause of action and, therefore, even if a fraction of the cause of action accrues within the local limits of the jurisdiction of a court, that Court has jurisdiction to entertain the suit---Clause (c) of S.20 of C.P.C. is based on broad principle to avoid multiplicity of proceedings and inconvenience to the parties.

Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 rel.

(k) Notification---

----Administrative notification cannot take away the rights conferred upon a person by codified law---Notification cannot take precedence over the codified law and in case of any conflict between administrative notification and a law, latter will prevail and such notification which is in conflict with or in derogation of the substantive provisions of the law or statute is not sustainable.

Ali Masood Hayat, Advocate Supreme Court for Appellant.

Umer Sharif, Advocate Supreme Court for Respondents.

Muhammad Kashif Pasha and Hamid-ul-Rehman Nasir, Civil Judges/Research Officers, Lahore High Court Research Center for Research Assistance.

P L D 2021 Lahore 200

Before Tariq Saleem Sheikh, J

GHULAM SHABBIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 497 of 2011, heard on 14th December, 2020.

(a) Constitution of Pakistan---

----Art. 13(a)---Protection against double punishment---Whether enhancement of sentence of convict who had already undergone the sentence during the pendency of appeal/revision, was hit by the principle of "Double Jeoperdy" enshrined in Art. 13 of the Constitution---Principles recorded.

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

----S. 376---Criminal Procedure Code (V of 1898), S. 423---Constitution of Pakistan, Art. 13---Offence of rape---Enhancement of sentence of convict---Scope---Petitioner/complainant sought enhancement of sentence of respondent, who had been convicted under S. 376, P.P.C. and had served entire sentence of ten years and had been released from jail---Contention of respondent convict, inter alia, was that since sentence had been served, the same could not now be enhanced---Validity---Argument that under Art. 13 of the Constitution, sentence of convict which had been served, could not be enhanced, was fallacious---Sentence of a convict could be enhanced where such sentence was not justified by law; or where a person was sentenced on wrong factual basis; or where matters were improperly taken into consideration; or where fresh matters were to be taken into account; or where sentence was manifestly excessive or wrong in principle---Such principles were guidelines and application of same would depend on each case---For deciding quantum of sentence, courts must act judiciously and take into account all relevant considerations---In the present case, courts below exercised discretion properly, and therefore quantum of sentence could not be interfered with---Revision was dismissed, in circumstances.

Amir Khan and others v. The State and others 2002 SCMR 403; Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810; Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 and Syed Karam Hussain Shah and others v. The State and others 2019 MLD 1445 ref.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Ali and others 2000 SCMR 1166; Bahadur Ali and others v. The State and others 2002 SCMR 93; Amir Khan and others v. The State and others 2002 SCMR 403; Mehrban Khan v. Ghulam Murtaza and others 2006 SCMR 1091; Haji Tahir Hussain v. Saqlain and others 2008 SCMR 817; Aziz Muhammad v. Qamar Iqbal and others 2003 SCMR 579; Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810; Abdul Malik and others v. The State and others PLD 2006 SC 365; Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502; Hassan and others v. The State and others PLD 2013 SC 793; Abdul Malik and others v. The State and others PLD 2006 SC 365 and R. v. Newsome and Browne 1970 (2) QB 711 rel.

Ch. Faqir Muhammad for Petitioner.

Ansar Yasin, Deputy Prosecutor General for the State.

Prince Rehan Iftikhar Sheikh for Respondent No.2.

P L D 2021 Lahore 211

Before Jawad Hassan, J

MUHAMMAD KHALID JAVED and others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No. 48219 of 2019, heard on 23rd November, 2020.

(a) Lahore Development Authority Act (XXX of 1975)---

----Ss. 39 & 40---Ejectment of unauthorized occupants---Removal of building, etc. erected or used in contravention of the Act---Right to fair trial---Laches---Scope---Petitioners assailed action of Development Authority (Authority) whereby boundary wall of their house was demolished and a road was constructed on their property---Authority did not dispute ownership of the petitioners, however, claimed that they had taken action under S.39(3) of the Lahore Development Authority Act, 1975 (the Act)---Validity---Section 39 of the Act, as a whole, empowered the Director General LDA to eject unauthorized occupants but the powers were dependent upon mandatory condition of issuance of prior notice and providing an opportunity of hearing to the aggrieved party---Section 39(3) of the Act was confined to taking action and not demolishing the property---Authority could not be termed as unauthorized occupants of the property---Authority had not raised the issue of construction of boundary wall during the last more than thirty four years and were now estopped from doing so being hit by laches and acquiescence---Authority's action hampered the petitioner's fundamental right of due process of law which was protected under Art. 10-A of the Constitution in which right of fair trial and due process was granted to all citizens---Constitutional petition was allowed and the action of Authority was declared to have been done in disregard and without proper procedure provided under the law.

Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Ch. Mehraj Din v. Lahore Development Authority 1981 SCMR 862; Shifa Laboratories (Pvt.) Ltd. through Chief Executive v. Lahore Development Authority, through Director-General, LDA and 3 others 2004 MLD 1377; Haji Muhammad Ashraf v. The District Magistrate Quetta and 3 others 2000 SCMR 238; Muhammad Maqsood Sabir Ansari v. District Returing Officer, Kasur and others PLD 2009 SC 28; Fida Hussain and others v. Mst. Saiqa and others 2011 SCMR 1990 and Javed Ahmad Riaz v. Government of Punjab and others 2018 PLC (C.S.) Note 25 ref.

Lord Denning in Southam v. Smout [1964] 1 QB 308 at 320 and Muhammad Aslam v. Member (Colonies) Board of Revenue Punjab Lahore and others 2019 CLC 1141 rel.

(b) Lahore Development Authority Act (XXX of 1975)---

----Ss. 39 & 40---Constitution of Pakistan, Arts. 23, 24, 10A, 14 & 199---Constitutional petition---Boundry wall of petitioner's house was demolished by the Lahore Development Authority (Authority)---Protection of property rights---Right to fair trial---Inviolability of dignity of man---Maintainability---Pendency of civil suit---Scope---Petitioners assailed action of Lahore Development Authority (Authority) whereby boundary wall of their house was demolished and a road was constructed on their property---Authority objected to the maintainability of the constitutional petition on the ground that civil suit was pending between the parties---Validity---Lis before the civil court was regarding title, declaration and mandatory injunction whereas the constitutional petition was filed against the illegal action of the Authority, which not only violated petitioners' Fundamental Right to privacy of home guaranteed under Art. 14 of the Constitution but at the same time infringed their Fundamental Right of holding property under Art. 23 of the Constitution as well as undermined protection of their property rights as guaranteed under Art. 24 of the Constitution---Actions of the Authority had seriously jeopardized the constitutional protection of due process of law provided under Art. 10-A of the Constitution, therefore, actions of the Authority breached the Fundamental Rights of the petitioners provided and protected under the Constitution---Article 199 of the Constitution mandated that the High Court on the application of any aggrieved person could make an order or give such directions for the enforcement of any of the Fundamental Rights---Objection on the maintainability of the petition did not hold water---Constitutional petition was allowed.

Mst. Asiya Ashraf Ch. v. Government of Punjab and others 2020 CLC 503; Syed Dost Ali v. Federation of Pakistan through Secretary Defence and 2 others 2016 CLC 367; Muhammad Raza and others v. Jammu and Kashmir Co-operative Housing Socieity, and others PLD 2013 Isl. 49 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 rel.

(c) Lahore Development Authority Act (XXX of 1975)---

----S. 39---Ejectment of unauthorized occupants---Opportunity of hearing---Scope---Section 39(1) of the Lahore Development Authority Act, 1975 (the Act) empowers the Director General of Authority or any person authorized by him, to summarily eject any person while S.39(2) of the Act further empowers the Director General or any person authorized by him to proceed on his own motion or by an application of the owner to summarily eject any person in unauthorized occupation of any land or plot in a Housing Scheme developed and controlled by the Authority whereas S.39(3) of the Act empowers the Director General or any person authorized by him if he does not desire to summarily eject unauthorized occupant and wishes to proceed against such person on commission of an offence under S.35(2) of the Act---Although S.39, as a whole, empowers the Director General of the Authority to eject unauthorized occupants but these powers are dependent upon mandatory condition precedent of issuance of prior notice and providing an opportunity of hearing to the aggrieved party.

(d) Lahore Development Authority Act (XXX of 1975)---

----S. 39(3)---Ejectment of unauthorized occupants---Opportunity of hearing---Scope---Perusal of subsection (3) of S.39 of the Lahore Development Authority Act, 1975, reveals that it is also subject to provision of giving hearing to the parties because it starts with the words "Subject to opportunity of hearing" which is only confined to take action and not to demolish the property, any building, structure or work. [p. 220] D & E

(e) Constitution of Pakistan---

----Arts. 199 & 4---Constitutional petition---Rights of individuals to be dealt in accordance with law---Maintainability---Judicial review---Scope---Article 4 of the Constitution mandates that it is an inalienable right of every person to enjoy the protection of law and to be treated in accordance with law and has every right to knock the door of the High Court if his inalienable right is denied to him---Every executive organ is obliged to perform his duties and to exercise only those powers which law has conferred upon it otherwise same will be subject to the judicial review of superior courts.

(f) Administration of justice---

----Where law provides a mechanism for doing an act, taking an action or initiating certain measures then the same must be complied with as and when the law provided.

(g) Administration of justice---

----Where things are to be done in a particular manner, the same are to be done in that manner and if anything is done contrary or in deviation to that, the same shall be deemed to have not been done at all.

(h) Administration of justice---

----If base/foundation of any order or action is illegal then whole superstructure built thereupon cannot be sustained---When the law specifies a particular manner and procedure then it is obligatory for the functionary of the State to adhere to the same and comply with it in all respects and any negligence, failure or omission to do so invalidate the proceedings on account of which whole superstructure raised on such defective foundation automatically crumbles down.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; National Institutional Facilitation Technologies (Pvt.) Limited through duly Authorized Officer v. The Federal Board of Revenue through Chairman and 7 others PLD 2020 Isl. 378; Asad Jamal Daudpoto v. Assistant Commissioner Ratodero and 4 others 2020 CLC 1945; Ahmed and others v. Nazir Ahmed and others 2019 CLC 1841; BNP Pvt. Ltd. and others v. Capital Development Authority PLD 2017 Isl. 81; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD 1693; Ali Bahadur v. Municipal Committee, Arifwala and 7 others 1999 MLD 142 and Ghulam Hussain v. Settlement Commissioner, Multan and others 1983 CLC 2972 rel.

Barrister Ahmad Pervaiz, Advocate Supreme Court assisted by Barrister Scheherezade Shaharyar and Shahjahan Khan for Petitioners.

Barrister Umair Khan Niazi, Additional Advocate General for Respondents.

Sahibzada Muzaffar Ali, Senior Legal Advisor for the LDA assisted by Shayan Abbas Shah, Advocate along with Sibtain Raza, DEM-I, LDA.

Date of hearing: 23rd November, 2020.

"'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law."

P L D 2021 Lahore 226

Before Shahid Karim and Muhammad Sajid Mehmood Sethi, JJ

AL-ARABIA SUGAR MILLS LIMITED through Duly Authorized Official and 3 others---Petitioners

Versus

FEDERAL INVESTIGATION AGENCY, GOVERNMENT OF PAKISTAN through Director General and 3 others---Respondents

Writ Petition No. 40585 of 2020, decided on 3rd November, 2020.

(a) Constitution of Pakistan---

----Arts. 90(1), 142 (b) & 199---Investigation, prosecution and judicial review---Legislator, Executive and Judiciary---Powers---Any intervention by High Court has to balance against Executive power of Federal Government to execute laws which include power to prosecute---Executive branch of government is its leadership branch---Executive power of Federal Government extends to matters with respect to which Parliament has power to make laws---Federal Government, under Art.90(1) of the Constitution, consists of Prime Minister and Federal Ministers---Power to prosecute is the power to execute and enforce laws and is a part of executive powers of the State---Constitution does not prescribe any particular prosecutorial regime and the Executive power to prosecute depends entirely on laws enacted by the Legislature---Legislature is empowered under Art. 142(b) of the Constitution to enact criminal law and to make law for criminal procedure---Proper legislature creates offences, provides procedure for their investigation, trial etc. and creates offices through which criminal prosecutions are to be conducted---If exercise of power to prosecute involves violation of the Constitution or a statute, Courts intervene.

Brig. Rtd. Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142; Duport Steels Ltd. v. Sirs (1980) 1 All ER 529; Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313; Norwest Holst Ltd. v. Department of Trade and others (1978) 3 All ER 280; The Application of Corner House Research and others v. Director of the Serious Fraud Office [2008] UKHL 60; Yick Wo v. Hopkin (1886) 118 US 356; US v Armstrong (1996) 517 US 456; US v. Nixon (1974) 418 US 683; Berger v. US 295 US at 88 and Miranda v. Arizona 384 US 436 rel.

(b) Interpretation of statutes---

----Preamble---Object, purpose and scope---Preamble is a key to open minds of makers of Act and mischief which they intended to redress.

Asif Saigol and 2 others v. Federation of Pakistan and 2 others PLD 2002 Lah. 416; D.G FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Stowell v. Lord Zouch (1962) Plowed 353 and Workers Welfare Funds v East Pakistan Chrome Tannery (Pvt.) Ltd. PLD 2017 SC 28 rel.

(c) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----Ss. 3 & 4---Federal Investigation Agency (Inquiries and Investigations) Rules, 2002,R.3---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of inquiry---Letter issued by Federal Government---Superintendence by Federal Government---Officials from another agency---Petitioners were aggrieved of initiation of criminal inquiry by Federal Investigation Agency on the basis of letter issued by Advisor to Prime Minister relying upon Report of Inquiry Commission constituted to determine reasons for shortage of sugar in market---Petitioners also assailed letter issued by Federal Investigation Agency to Securities and Exchange Commission of Pakistan to nominate their two officers to become part of investigation team of the offences in which inquiry was being conducted---Validity---Letter in question, at the worst could be treated as written information by Federal Government to the Agency to confer upon it power to initiate inquiry---Letter made reference to report of the Commission and conveyed a decision of Cabinet and Prime Minister to the effect that Commission's report warranted further action to be taken amongst others by the Agency---Nothing was wrong with such act on the part of the Advisor who was merely acting pursuant to the decision of Cabinet---Federal Government could not only write to the Agency regarding commission of an offence or in respect of investigations or inquiries but could also review fairness of actions taken by the Agency in inquiries and investigations conducted by it---Federal Government had an overreaching role over Federal Investigation Agency and was empowered to exercise powers comprised in compendious term of 'superintendence'---Federal Government was not however empowered to regulate inquiries and investigations which were being carried out by the Agency in such a way so as to reach unlawful results or to influence the officer who was investigating the offences to reach a result which was not countenanced by law---Federal Government could not undertake cloak of superintendence exercise its powers for some extraneous or improper considerations such as pursuant for some racial bias, political vendetta or corrupt motive---"Superintendence" and any act taken must be taken in good faith and for the purpose of fulfilling Federal Government's objective of enforcement of rule of law and that the law was faithfully executed---There was no provision in Federal Investigation Agency Act, 1974 which could empower Director General Federal Investigation Agency to solicit services of officers from another agency---Such course of action was ultra vires and had no basis in law---High Court struck down the act of Director General Federal Investigation Agency writing to Securities and Exchange Commission of Pakistan for nomination of two officers and nomination of such officers by the Securities and Exchange Commission of Pakistan was also struck down---High Court declined to interfere in the inquiry as Federal Investigation Agency had lawfully and competently taken cognizance of the matters---Constitutional petition was dismissed accordingly.

Uncertain Justice; Adamjee Insurance Co. Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Shehnaz Begum v. The Hon'ble Judge of the High Court of Sindh and Baluchistan PLD 1971 SC 677; Morrison v. Olson 487 US 654 (1988); Administrative Law and Regulatory Policy (Seventh edition); The President in Administrative Law, 75 Geo. Wash. L. RW. 696, 702-704 (2007) and C.Ps. Nos.17 and 19 of 2019 ref.

(d) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S.3---Federal Investigation Agency---Purpose---Purpose of Federal Investigation Agency constituted by S.3 of Federal Investigation Agency Act, 1974, is to inquire into and to investigate all offences specified in schedule---Two different streams of administrative powers have been conferred on Federal Investigation Agency, one relating to inquiry and other investigation of offences.

(e) Words and phrases---

----"Superintend"---Connotation---Term 'superintend' and its derivative mean an act of oversight and presume an authority to direct to exist---"Superintend" also includes directing of activities or a course of action.

Phrases, Permanent Edition (vol.40C) and Merriam-Webster's Collegiate Dictionary (Eleventh Edition) rel.

(f) Administration of justice---

----Investigation---Principle---If a prima facie offence is made out, an investigation may ensue.

(g) Discretion---

----Public policy---Effect---Authorities entrusted with statutory discretions are entitled to take into consideration public policy and in this regard policy of government may be a relevant factor.

De Smith's Judicial Review (7th Edition) rel.

(h) Administration of justice---

----Reasons, giving of by public authority, in a matter---Scope---Duty to give reasons must be performed in such a way that it sufficiently shows that public authority has directed its mind to the issue and its failure to do so is a breach of procedural fairness---One ground on which fairness may require that reasons be provided is that reasons enable a person aggrieved by a decision to know not only whether he may appeal.

R. Civil Service Appeal Board Ex p. Cummins ham [1991] 4 All ER 310 and Doody [1994] 1 AC 531 rel.

(i) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S.41-B---Independence of Securities and Exchange Commission of Pakistan (SECP)---Reference to investigating agency---Decision, quashing of---Petitioners were aggrieved of decision made by Securities and Exchange Commission of Pakistan made on the basis of letter issued by Advisor to Prime Minister who had relied upon Report of Inquiry Commission constituted to determine reasons for shortage of sugar in market---Securities and Exchange Commission of Pakistan decided to send reference under S. 41-B of Securities and Exchange Commission of Pakistan Act, 1997, to Federal Investigation Agency---Validity---In the armory of powers possessed by Securities and Exchange Commission of Pakistan, provision of S.41-B of Securities and Exchange Commission of Pakistan Act, 1997, was the most potent weapon, which related to investigation of regulated activity and acts under administered legislation by very powerful investigating agencies like National Accountability Bureau and Federal Investigation Agency---Reference could not be made lightly by Securities and Exchange Commission of Pakistan as a matter of routine and without proper application of mind---Such decision could strike at the very economic and financial lifeline of a county and could spiral into unpalatable results, especially to be faced by Federal Government---Decision by Securities and Exchange Commission of Pakistan should have been made independent of Inquiry Commission Report and while considering such aspects of individual corporate entities whose case was placed by the Commission----Omnibus and wholesale order could not have been passed by Securities and Exchange Commission of Pakistan as was done in its decision in question and individual cases should have been sifted and analyzed to see whether each case merited a reference or not---Decision by Securities and Exchange Commission of Pakistan should have been made on a balance of probabilities by invoking its powers of inquiry and by referring the matter to its officer to compile a report in respect of allegations---Individual companies had a right to adequate disclosure of allegations before a decision was taken and to enable them to make a meaningful and focused representation---Decision in question was lacking in duty of adequate disclosure by SECP---High Court set aside decision in question as Securities and Exchange Commission of Pakistan acted under dictation and failed to carry out a fact-specific balancing exercise before making the Reference---Commission failed to act fairly and its decision was aberrant---Constitutional petition was allowed accordingly.

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; 1992 LQR 626 and Presidential Administration 114 Harv. L. RW.2245 (2001) rel.

PETITIONERS BY

Salman Aslam Butt, Shoaib Rashid, Salman Akram Raja, Shehzad Atta Elahi, Ch. Muhammad Ali, Abuzar Salman Khan Niazi, Sikandar Bashir Mohmand, Atira Ikram, Arslan Riaz, Aneesa Agha, Mehrunnisa Sajjad, Waleed Khalid, Furqan Naveed, Ahmad Raza, Manahil Khan, Ghulam Mujtaba, Barrister Ch. Saeed Hassan Nagra, Syed Hammad Ul Hassan, Nadeem Yousaf Rana, Faisal Anwar Minhas and Zeeshan Ghani Sulehria.

RESPONDENTS BY

Barrister Khalid Jawed Khan, Attorney General for Pakistan.

Ch. Ishtiaq Ahmad Khan, Addl. Attorney General.

Asad Ali Bajwa, Deputy Attorney General.

Zahid Sikandar, Asst. Attorney General.

Ms. Zarish Fatima, Asst. Attorney General.

Ms. Ruqia Ambreen, Deputy Director Law, FIA.

Ruman Bilal and Shehzad Ali Rana for SECP.

P L D 2021 Lahore 271

Before Muhammad Ameer Bhatti, J

SAMINA FAROOQ---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Schools Education Department, Lahore and 7 others---Respondents

Writ Petition No. 168241 of 2018, heard on 27th January, 2021.

Constitution of Pakistan---

----Arts. 185(2), 189 & 199---Constitutional petition---Judgment of Supreme Court---Order declining leave to appeal---Effect---Petitioner claimed advance increment but the same was declined on the basis of an earlier judgment passed by Supreme Court---Petitioner relied upon an order passed by Supreme Court refusing leave to appeal in another case---Validity---High Court was under obligation to follow and give effect to legal principles laid down by Supreme Court in the judgment---Leave refusing order did not refer any authoritative principle flowing from the same---Mere factum of leave refusing order could not characterized to have a binding force as against spirit of finding of Supreme Court recorded in judgment referred as adjudication was conclusive and equitable and was a judgment in rem---Constitutional petition was dismissed, in circumstances.

Government of the Punjab through Secretary Education and others v. Faqir Hussain and 5 others 2004 PLC (C.S.) 491; Kareem Nawaz Khan v. The State through PGP and another 2016 SCMR 291; Shipyard K.Damen International v. Karachi Shipyard and Engineering Works Ltd. 2003 CLD 1; The Commissioner Inland Revenue v. The Secretary Revenue Division and others 2020 SCMR 2055 and Gulistan Textile Mills Ltd and another v. Soneri Bank Ltd. and another 2018 CLD 203 rel.

Adeel Farooq Khan for Petitioner.

Saqib Haroon Chishti, A.A.G. with Ghulam Fareed, Assistant Director, C.E.O. (DEA) for Respondents.

P L D 2021 Lahore 274

Before Muhammad Qasim Khan, C.J.

ABAD ALI alias IMRAN and another---Petitioners

Versus

CITY POLICE OFFICER, FAISALABAD and 6 others---Respondents

Writ Petition No. 25337 of 2020, decided on 17th June, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 154---Ex-Officio Justice of Peace, order of---Non-compliance---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace---Validity---Ex-Officio Justice of Peace, before taking cognizance in the matter of application under Ss.22-A & 22-B, Cr.P.C. was obliged to satisfy that petitioner had already approached concerned quarters meant for redressal of his grievance i.e. he had filed application before Station House Officer for registration of case, which was registered under a proper diary number and inaction by Station House Officer was further agitated before higher police hierarchy (Superintendent of Police) under due receipt but with no effect---When such pre-requisite was established then as a second phase it was mandatory that proposed FIR in original was annexed with petition under Ss.22-A & 22-B, Cr.P.C. while copy of the same duly attested by the counsel was to be clubbed with the petition---If after taking into consideration/evaluating the facts and circumstances of the case, Ex-Officio Justice of Peace would pass direction for registration of a case, the proposed FIR annexed with file was to be handed over to prosecutor with due receipt who was to onward transmit the same to the highest police officer of the district/tehsil---Receipt issued in such behalf was to contain signatures with name, date and time of its receiver---Such was the duty of concerned police officer to route the same to concerned quarter/Station House Officer for due legal action---District Police Officer or City Police Officer, as the case could be, would be responsible to pay surprise and random visits to police stations so as to ensure that proposed FIRs were entered as regular/formal FIRs for further process/investigation, in accordance with law---Unless order of Ex-Officio Justice of Peace viz. registration of version or FIR was suspended by higher forum, police hierarchy was bound for its implementation in letter and spirit as early as possible but not later than five days, except in compelling circumstances---Otherwise if such matter with regard to non-compliance of order of Ex-Officio Justice of Peace viz. registration of case after five days was brought to the notice of Court the consequences would be on the shoulders of concerned Station House Officer---First Information Report in the present case, was already stood registered at concerned police station, therefore, petitioners had more than one alternate remedy before Trial Court for redressal of their grievance---Constitutional petition was dismissed, in circumstances.

Mian Muhammad Ali v. C.C.P.O. and others PLD 2015 Lah. 313 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

Ms. Sadia Iftikhar for Petitioners.

P L D 2021 Lahore 278

Before Mrs. Ayesha A. Malik, J

SUPERIOR COLLEGE FOR GIRLS through Principal---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 2 others---Respondents

Writ Petition No. 54008 of 2020, heard on 17th February, 2021.

Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----Ss.3, 5 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of Private Educational Institutions---Functions of the Registering Authority---Role of the Provincial Higher Educational Department in such registration---Regulation and framing of Standard Operating Procedures (SOPs) for the registration process---Scope---Petitioner private educational institution impugned delay in process of registration under Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984; and the interference of the Provincial Higher Educational Department in the process---Validity---Provincial Higher Educational Department, in the entire scheme of the registration process under the Ordinance, had no role to play, and no jurisdiction with respect to registration of an institute, and the same did not fall into the mandate of Provincial Higher Educational Department---High Court observed that present registration process did not have any comprehensive procedure laid out and no specific time-frame with regard to registration had been developed by Provincial Government; and furthermore that there existed no justification for annual registration valid for one year, and reasonable time-frame should be provided within which existing registration expired and fresh registration had to be undertaken---High Court directed Provincial Government to make regulations and SOPs with regard to registration process and directed that petitioner college should be registered immediately---Constitutional petition was allowed, accordingly.

Superior College of Commerce v. Government of the Punjab through Chief Secretary and others and judgment dated 14.2.2020 and Punjab College v. Government of the Punjab through Chief Secretary and others 2020 MLD 1502 rel.

Shan Saeed Ghumman, Adeel Hassan and Azizullah Khan for Petitioner.

Akhtar Javed, Additional Advocate General, Punjab along with Dr. Ashiq Hussain, Director General Public Instructions (Colleges), Punjab, Sakhawat Ali Dogar, Deputy Director (Colleges) and Qaiser Raza, Deputy Director in the office of Respondent No.3.

P L D 2021 Lahore 284

Before Faisal Zaman Khan, J

FAIZ ULLAH---Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and 4 others---Respondents

Writ Petition No. 3176 of 2021, heard on 3rd February, 2021.

Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Transgender rights---Recruitment process---Petitioner was a transgender who applied for a post of Lecturer (female) but Punjab Public Service Commission denied petitioner to participate in recruitment process---Validity---First and foremost duty/responsibility (moral and legal) of Provincial Government was to implement provisions of Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit by not letting government department discriminate between male, female and transgender persons---Transgender person was neither an option nor a preference but a recognized and respectable third gender all over the world---High Court directed Provincial Government to make a comprehensive policy at the earliest for implementing Transgender Persons (Protection of Rights) Act, 2018, in letter and spirit and to ensure that rights of transgender persons were protected like any other citizen of Pakistan---High Court set aside order passed by Punjab Public Service Commission and petitioner was allowed to be participated in recruitment process---Constitutional petition was allowed, in circumstances.

Dr. Muhammad Aslam Khaki and others v. S.S.P. (Operations) Rawalpindi and others PLD 2013 SC 188; Dr. Muhammad Aslam Khaki and another v. Senior Superintendent of Police (Operation), Rawalpindi and others 2013 SCMR 187 and Mian Asia v. Federation of Pakistan through Secretary Finance and 2 others PLD 2018 Lah. 54 rel.

Syed Ali Hassan Zaidi and Muhammad Zeshan Zafar for Petitioner.

Malik Adul Aziz Awan, Addl. A.G., Muhammad Asif Bhatti, Addl. A.G., Ch. Faza Ullah, A.A.G., Mian Muhammad Iqbal, Law Officer on behalf of P.P.S.C. and Abdul Jabbar, Section Officer (DF), Higher Education Department for Respondents.

P L D 2021 Lahore 287

Before Muhammad Ameer Bhatti, J

SHER MUHAMMAD (deceased) through L.Rs. and others---Petitioners

Versus

Mst. SAMEERI BIBI---Respondent

Civil Revision No. 52826 of 2019, heard on 26th January, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XLI, R. 29---Suit for declaration and injunction---Additional evidence, recording of---Suit for declaration filed by respondent/plaintiff was dismissed by Trial Court but Lower Appellate Court remanded the matter to Trial Court for recording additional evidence on behalf of respondent/ plaintiff---Validity---Held, it was well within the domain of Lower Appellate Court to do complete justice and if necessary could permit production of such additional evidence, provided non-production thereof at initial stage was duly supported by reasonable ground, in order to meet the ends of justice---Official record specifically relied upon through averments of plaint in addition to availability of all those documents duly attached therewith at the time of its filing, had direct bearing on the merits of the case---Necessity had arisen to get such documents exhibited primarily with a view to arrive at a just and proper conclusion---Lower Appellate Court did not commit any illegality or irregularity while exercising its power under O.XLI, R.27, C.P.C. and had rightly exercised its jurisdiction by allowing application of respondent/plaintiff to produce documents mentioned in his application---High Court declined to interfere in such finding of Lower Appellate Court and directed the Lower Appellate Court to receive evidence from respondent/plaintiff as well as evidence in rebuttal and set aside order of Lower Appellate Court remanding the matter to Trial Court for recording of additional evidence---Revision was allowed accordingly.

Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; The Secretary to the Government of West Pakistan, Communication and Works Department and The Advisor, Town Planning v. Gulzar Muhammad PLD 1969 SC 60; Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Mst. Resham Bibi and others v. Ali Muhammad and others 2015 SCMR 1398; Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 and Zarwali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 ref.

Qaisar Mahmood Sra for Petitioner.

Muhammad Shahzad Shaukat for Respondent.

P L D 2021 Lahore 296

Before Mirza Viqas Rauf, J

HUSNAIN INAM---Petitioner

Versus

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

Writ Petition No. 3739 of 2019, heard on 9th January, 2020.

(a) Constitution of Pakistan---

----Art.199(1)(b)(i)---Habeas corpus, writ of---Precondition---While exercising jurisdiction in terms of Art.199(1)(b)(i) of the Constitution, High Court has to satisfy itself that a person who has been taken into custody by Law Enforcement Agencies was taken so with due process of law and custody of detenu is backed by some legal authority.

Malik Ghulam Jilani v. (1) The Government of West Pakistan, through the Home Secretary, Lahore and (2) The Deputy Commissioner, Lahore PLD 1967 SC 373 and Mrs. Ifrah Murtaza and another v. Government of Pakistan and others PLD 2019 Lah. 565 rel.

(b) Constitution of Pakistan---

----Arts.9 & 199---Constitutional jurisdiction of High Court---Scope---High Court, being custodian of Fundamental Rights of citizens was bound to examine question relating to curtailment of their liberty, with vigor and due care as right of liberty of a person is one of the valuable Fundamental Rights guaranteed under Art.9 of the Constitution.

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

----S. 59---Civil offences---Procedure---All civil offences committed by persons subject to Pakistan Army Act, 1952, are brought within the purview of Pakistan Army Act, 1952 but offences do no lose their character as being civil offences---Persons subject to Pakistan Army Act, 1952, who have committed any such civil offence and are charged therewith only 'liable to be dealt with under Pakistan Army Act, 1952'.

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

----S. 2(d)---Pakistan Army Act Rules, 1954, Rr.13, 15 & 19---Terms "accused" and "complaint"---Distinction---Accusation is a stronger phrase than mere complaint---Though both words carry meaning of a charge yet in case of complaint it relates to a stage when charge is still to mature into an accusation---Such minute and trivial distinction can be spelled out from combined reading of Rr. 13, 15 & 19 of Pakistan Army Act Rules, 1954.

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

----Ss. 59 & 73---Official Secrets Act (XIX of 1923), Ss. 2(1)(d), 2(8), 11 & 12---Criminal Procedure Code (V of 1898), S. 549---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Habeas Corpus, writ of---Civil offence---Arrest---Delivery to military authorities---Petitioner sought recovery of his father who was retired army officer and was allegedly abducted by Military Authorities---Plea raised by authorities was that the detenu was taken into custody under Official Secrets Act, 1923 and jurisdiction of High Court was barred under Art.199(3) of the Constitution---Validity---Arrest of father of petitioner was in negation of provisions of Official Secrets Act, 1923---High Court observed that if detenu was an accused of offences under Official Secrets Act, 1923, authorities should have resorted to the provisions contemplated in Official Secrets Act, 1923 and then to S.549, Cr.P.C. seeking his delivery to Military Authorities to be tried by Court Martial---Prohibition contained in Art.199(3) of the Constitution, was with regard to making an order on application made by a person, who was member of Armed Forces of Pakistan or who was for the time being subject to any law relating to any of those Forces, in respect of his terms and condition of service, in respect of any matter arising out of his service or in respect to any action taken in relation to him as a member of Armed Forces of Pakistan or as a person subject to such law---Tribunal established under Art. 199(5) of the Constitution of Pakistan, pertaining to law relating to Armed Forces Pakistan was not included in term 'person' to whom a direction could be issued under Art. 199 of the Constitution---Provisions of S.59(4) of Pakistan Army Act, 1952, made it clear that jurisdiction of High Court under Art. 199 of the Constitution was barred in respect of a person mentioned therein---Civilian who was otherwise not subject to Pakistan Army Act, 1952, could become so subject, if he was 'accused' of an offence under S.2(1)(d) of Pakistan Army Act, 1952---Whenever order/action assailed was without jurisdiction, mala fide or coram non-judice, bar under Art. 199(3) of the Constitution was not attracted---Action of Army Authorities taking father of petitioner into custody was not only without lawful jurisdiction but was tainted with mala fide---High Court declared detention of father of petitioner as illegal, unlawful and set the detenu at liberty---Constitutional petition was allowed, in circumstances.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Saifuddin Saif v. Federation of Pakistan and 3 others PLD 1977 Lah. 1174; Syed Muhammad Anwar Shohrat Bokhari v. Federation of Pakistan and 3 others PLD 1981 Lah. 742; Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405; Ali Rizwan Raja v. Federation of Pakistan and others PLD 2019 Isl. 273; Malik Ghulam Jilani v. (1) The Government of West Pakistan, through the Home Secretary, Lahore and (2) The Deputy Commissioner, Lahore PLD 1967 SC 373; Mrs. Ifrah Murtaza and another v. Government of Pakistan and others PLD 2019 Lah. 565; Federal Government Ministry of Defence, Rawalpindi v. Lt.-Col. Munir Ahmed Gill 2014 SCMR 1530 and Civil Appeal No.1038 of 2006 Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866 rel.

Muhammad Wasif Khan for Petitioner.

Sajid Ilyas Bhatti, Additional Attorney General and Malik Ahtesham Saleem, Assistant Attorney General for Pakistan along with Brigadier Falak Naz, Director (Legal), Ministry of Defence and Khalid Abbas Bhatti, Law Officer for Respondents Nos.1 and 2.

Mirza Asif Abbas, Assistant Advocate General for Punjab along with Syed Ali, Superintendent of Police, Potohar and Aizaz Azeem, Station House Officer, Morgah for Respondents Nos.3 and 4.

P L D 2021 Lahore 314

Before Mrs. Ayesha A. Malik, J

JOHNSON AND JOHNSON PAKISTAN (PRIVATE) LIMITED through authorized signatory---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and 5 others---Respondents

Writ Petition No. 20263 of 2020, decided on 22nd October, 2020.

(a) Drugs Act (XXXI of 1976)---

----S. 3(g)(ii), (vi)---"Drugs" and "medical devices"---Scope---Definition of 'drug' is not limited to medicine or substances which are ingested, applied or administered but includes devices---Federal Government is allowed under S.3(g)(vi) of Drugs Act, 1976 to notify any substance or device as "drug".

(b) Drugs Act (XXXI of 1976)---

----S.3(g)(ii), (vi)---Medical devices---Scope---Medical devices include health care equipment as well as devices used in cosmetic surgery and processes as well as in-vitro diagnosis medical devices (IVD)---As per definition given by the World Health Organization, it is the purpose of medical devices which is relevant and which renders medical devices to regulations similar to drugs and medicines---Such is fundamental to health and safety of user of medical devices---'Drugs and medicines' cannot be restrictively construed particularly when records shows that drugs include medical devices.

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

----Ss.7 & 32---Drugs Act (XXXI of 1976), S.3 (g) (ii), (vi)---Medical Devices Rules, 2017, Rr.24, 25 & 29---Constitution of Pakistan, Art. 199---Constitutional petition---Drugs and medical devices---Drug Regulatory Authority of Pakistan (DRAP)---Role and jurisdiction---Medical Devices Board---Petitioners were importers, exporters and manufacturers of medical devices---Plea raised by petitioner was that medical devices did not fall within the ambit of 'drugs and medicines'---Petitioner further contended that under Drug Regulatory Authority of Pakistan Act, 2012, medical devices were included under 'therapeutic goods' therefore, Medical Devices Board constituted by DRAP was a result of excess delegation of power---Validity---Purpose of the Authority was to regulate manufacture, import, export, storage, distribution and sale of therapeutic goods---Therapeutic goods have a health related purpose and are to be regulated for safety efficiency and efficacy---Medical devices are specifically and purposefully included in range of therapeutic goods for the purposes of regulation---It is for DRAP to decide whether a medical device fell within their regulatory domain, as underlying principle is the purpose for which the device is used---Medical devices play a significant role in health care delivery and also carry some element of risk associated with the purpose and usage---Medical devices are regulated by DRAP to ensure safety, effectiveness and quality and are assessed on the basis of their classification---Medical devices are classified in for categories based on intended use with class A as the lowest in risk and class D as the highest in risk---Mere fact that a product was registered with a regulatory authority of foreign jurisdiction did not mean that medical device should not be scrutinized at the time of manufacture, import or export by DRAP to ensure compliance with its regulatory requirements---For the purposes of medical devices manufactured, imported or exported into Pakistan or from Pakistan it must be ensured that standards set out by DRAP were complied with---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Constitution Petition No. 127 of 2012 PLD 2013 SC 829; Johnson and Johnson Pak (Pvt.) Ltd. v. Pakistan and others 2008 PTD 345; Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad 2011 SCMR 1737; Nadeem Ahmad Advocate v. Federation of Pakistan 2013 SCMR 1062; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd. Peshawar and others 2003 SCMR 370; Chimanlal Jagjivandis Sheth v. State of Maharashtra AIR 1963 SC 665 (V 50 C 102) and Dawakhana Hakim Ajmal Khan (Pvt.) Limited v. Federation of Pakistan and others PLD 2020 Lah. 899 ref.

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.

Advocates for Petitioners

Hasan Irfan Khan, Ali Mohsin Qazalbash, Saqib Asghar Baig, Barrister Khadija Yasmin Bokhari, Chaudhary Faisal Nawaz, Mudassar Hassan, Abdul Muqtedar Khan, Sheikh Irfan Saeed Khan, Barrister Haroon Dugal, Mrs. Samia Khalid, Abdul Waheed Khan, Muhammad Asif Butt, Abdul Latif, Muhammad Javed Arshad, Syed Samar Raza Rizvi, Arsalan Tariq Butt, Usman Khalil, Usman Ijaz Malik, Naveed Ahmad Khawaja, Ghulam Murtaza, Afzal Hussain, Muhammad Naveed, Chaudhary Ehsan ul Haq Virk, Mustafa Kamal, Muzammil Ashraf Qureshi, Rana Adnan Ahmad, Muhammad Baqir Hussain, Munir Hussain Panjotha, Muhammad Shahzad Shaukat, Taha Shahzad, Aamir Manzoor Aslam, Chaudhary Anwer Ali Sangha, Muhammad Azhar Siddique, Ms. Salma Riaz, Ms. Aqsa Jabeen, Sheikh Shahzad Ahmed, Muhammad Shahban, Rashid Mehmood Khan, Nabeel Rafaqat, Awais Shahzad Bhatti, Saifullah Maan, Iftikhar Ahmad Samdani, Syed Shafique Hussain, Faiz ul Hassan, Asim Sohaib, Ghulam Abbas Tarar, Shahid Imran Aulakh, Muhammad Riaz Anjum, Mian Adeel Mumtaz, Tariq Mahmood Chaudhary, Mohsin Shafiq Chaudhry, Rai Sajid Ali Kharal, Rana Shahzad Khalid, Mudassar Iqbal Jami, Zaheer ud Din Babar, Mian Ejaz Latif, Muhammad Yousaf Khan-II, Rai Muhammad Javed Iqbal Kharal, Muhammad Tariq Bashir Awan, Shahbaz Ali Khan, Muhammad Siraj ul Islam Khan, Ashfaque Ahmad Malik, Tariq Mehmood Ansari, Kamran Babar, Syeda Fatima Tanveer, Sardar Muhammad Asim Javid, Chaudhary Safdar Saeed, Sardar Muhammad Safian Amin, Muhammad Adeel Gohar, Zahid Imran Gondal, Muhammad Ahmed, Rashid Mehmood Khan, Sami ul Hassan Rana, Muhammad Ahad Naeem, Ghulam Murtaza Chaudhry, Rana Basharat Ali Maraka, Rana Irfan Ahmad, Zubair Ahmad Kundi, Syed Kashif Hassan, Touseef Zada Khan, Allah Ditta Sial, Shamim ur Rehman Malik, Zaheer Ahmad Chaudhry, Malik Mehtab Nabi, Tariq Mahmood Mughal, Zaheer Mirza, Mian Muhammad Ahmad Chhachhar, Syed Umair Abbas, Zaheer Ahmad Chaudhary, Rana Muhammad Shahid Mehmood, M. Nasrullah Ghaffar Chishti, Arslan Riaz, Ms. Samran Mushtaq Chaudhry, Chaudhary Zulfiqar Ali, Muhammad Azam Zafar Khan, Rana Intezar, Khalid Mahmood Baig, Muhammad Mustafa Khalid, Muhammad Afzaal, Hasan Ahsan Mian, Syed Ali Tahir Naqvi, Raza Imtiaz Siddiqui, Jamshed Alam, Qadeer Ahmad Kalyar, Muhammad Azam Zafar Khan, Muhammad Rizwan Rasheed, Muhammad Zafar Khan, Mian Shahid Ali Shakir, Shahid Mehmood Minhas and Barrister Humayun Faiz Rasool.

For the Respondents

Federation of Pakistan

Ch. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan, Ms. Ambreen Moeen, Deputy Attorney General for Pakistan and Tahir Mehmood Ahmad Khokhar, Deputy Attorney General for Pakistan.

Province of Punjab

Akhtar Javed, Additional Advocate General, Punjab.

DRAP

Syed M. Ghazenfur Ali, Mian Faisal Naseer, with Dr. Ghazanfar Ali Khan, Secretary/Director Medical Devices Board, Shahrukh Ali, Assistant Director Legal Affairs DRAP.

Collectorate of Customs and Federal Board of Revenue

Sarfraz Ahmad Cheema; Mrs. Kausar Parveen, Malik Abdullah Raza, Shahzad Ahmad Cheema, Farrukh Ilyas Cheema, Izhar ul Haq, Sultan Mahmood, Ch. Muhammad Zafar Iqbal, Ms. Riaz Begum, Muhammad Waseem A. Malik, Faraz Ansar Hashmi, Mohsin Ali, Osama Zafar, Zafar Iqbal Bhatti, Chaudhary Muhammad Imtiaz Elahi, Waqar A. Sheikh, Rana M. Mehtab and Falak Sher Khan.

P L D 2021 Lahore 343

Before Jawad Hassan, J

CHENAB FLOUR AND GENERAL MILLS---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos. 7263, 7335, 7432, 7650, 7798, 8004 and 8281 of 2020/BWP, heard on 8th February, 2021.

(a) Federal Board of Revenue Act (IV of 2007)---

----Ss. 2(a), 4 & Preamble---Income Tax Ordinance (XLIX of 2001), S.2(8)---Sales Tax Act (VII of 1990), S. 2(4)---Federal Excise Act (VII of 2005), S. 2(4)---Federal Board of Revenue---Functions and purpose---Federal Board of Revenue (FBR) was the regulator of all fiscal laws in the country, and being a regulator it was vested with the main goal of tax collection in the country---Legal anthropology of FBR stated.

(b) Interpretation of statutes---

----Preamble to a statute---Scope---Preamble of a statute though not a substantive and enforceable part of the enactment, yet being its usher, it provided primary guidelines about the object and scope of the legislation.

Treatise Practical Legislation by Lord Thring J, [Page 92]; Understanding Statutes- Canons of Construction by S.M. Zafar, [Fourth Edition page 53]; Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 and Abwa Knowledge Pvt. Ltd. and another v. Federation of Pakistan and another PLD 2021 Lah. 436 ref.

(c) Words and phrases---

----'Regulate' and 'regulator'---Meaning.

Advanced Law Lexicon, 4th Edition, Volume-4, Page-4130; Words and Phrases, Permanent Edition, Volume 36B, Page-249; K J Aiyar Judicial Dictionary 16th Edition, Volume 2-L to Z, Page-1488 and Oxford Advanced Learner's Dictionary, International Student's Edition, Page-1259 ref.

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

----S. 209(8A)---Federal Board of Revenue Act (IV of 2007), Ss. 4(1)(a) & 4(1)(h)---Jurisdiction of income tax authorities---Scope---Federal Board of Revenue (FBR)---Regulatory and administrative powers---Scope---By way of Notification No.F.No.1 (48)Jurisdiction/2014-177049-R dated 12.10.2020 (the "impugned notification") taxing jurisdiction of petitioner-tax-payers was changed from the Regional Tax Office ("RTO") to the Large Taxpayer Office ("LTO"), by the Federal Board of Revenue ("FBR") under S. 209 of the Income Tax Ordinance, 2001 (2001 Ordinance)---Question as to whether exercise of jurisdiction to transfer cases from RTO to LTU under S.209 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') was ultra vires the 2001 Ordinance---Held, that perusal of the impugned notification revealed that the Chief Commissioner Inland Revenue, LTO, had been given powers to perform functions under the fiscal laws, which was proper, valid and within the permissive ambit of law---If a regulator, such as the FBR, was restrained from performance of its function it would negate the very purpose of law, which chalked out the functionality of such regulator---Impugned Notification, was an expression of policy decision, issued within the ambit of delegated functions of the FBR---Said notification was competently issued under enabling provisions of the law and validly conferred jurisdiction of the Commissioner under the 2001 Ordinance pertaining to particular class of taxpayers as envisaged under S.209, subsection (8A) of the 2001 Ordinance---Impugned notification was within the bound and competence of its parent law and enabling fiscal legislation and well within the object and scope of the Federal Board of Revenue Act, 2007 and the Income Tax Ordinance, 2001, thus, it carried a strong presumption of legality and competence and presumption of intra vires was also attached with the same---Mere 'probable inconvenience' that the impugned notification might have caused to the petitioners-tax-payers could not be equated with infringement of any of their vested right or fundamental rights---Revamping and restructuring of the FBR tax administration in the form of establishing the LTO to deal only with specified category of cases, including those of petitioners-tax-payers, was neither arbitrary nor adverse to the rights of the petitioners recognized under the law and the Constitution---Impugned notification issued by the FBR under S. 209 of the 2001 Ordinance empowered the FBR to transfer the jurisdiction pertaining to particular class of taxpayers of any RTO to the LTO to improve tax governing mechanism---Constitutional petitions challenging the impugned notification were dismissed with the observation that courts always jealously guarded rights of individuals against the arbitrariness of the state institutions, however, at the same time Courts never turned a blind eye on the progress and development happening around the world and always looked positively towards any attempt to reformulate the tax governing mechanism(s) so initiated by the FBR, in an attempt to contribute in the goal of ease of doing business and taxpayer facilitation.

Abwa Knowledge Pvt. Ltd. and another v. Federation of Pakistan and another PLD 2021 Lah. 436 and Suo Motu Case No.11 of 2011 PLD 2014 SC 389 ref.

Crescent Textile Mills Limited v. Federation of Pakistan and others 2021 PTD 689 ref.

(e) Legislation---

----Delegated/subordinate legislation---'Notifications' as a form of delegated legislation---Purpose and scope---Subordinate or delegated legislation derived its authority from the primary law and could not go beyond its scope---Such legislation was always aimed to further the object and purpose of the law and was deemed as an effective measure to keep the law well abreast with the change of time and embrace modernism in functional efficiency by exercising the mandate provided under the law.

Mustafa Impex, Karachi v. The Government of Pakistan through Secretary Finance, Islamabad 2016 PTD 2269; Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472; Muhammad Ibrahim v. Province of Sindh through Secretary Irrigation and Power Department and 3 others 2017 PLC (C.S.) Note 7 and Commissioner Inland Revenue, Regional Tax Office, Peshawar v. Messrs Sheraz Arena Deans Trade Center, Peshawar and another 2018 PTD 2212 ref.

(f) Legislation---

----Delegated/subordinate legislation, vires of---Strong presumption of constitutionality, legislative competence, legality, reasonableness and intra vires was attached with subordinate legislation---To strike down such delegated legislation, the challenger was required to show that the same impinged upon Fundamental rights, or conflicted with any Constitutional provision, or there was lack of legislative competence on part of the delegatee making it, or it was being beyond the scope of the parent statute.

Suo Motu Case No.11 of 2011 PLD 2014 SC 389 ref.

(g) Interpretation of statutes---

----Proviso to a provision in a statute---Scope and purpose---As a general rule, a proviso was added to an enactment to qualify or create an exception to what was in the enactment---Ordinarily, a proviso was not interpreted as stating a general rule---However a proviso which was inserted to remedy unintended consequences and to make the provision workable, (or) a proviso which supplied an obvious omission in the section and was required to be read into the section to give the section a reasonable interpretation, was required to be treated as retrospective in operation, so that a reasonable interpretation could be given to the section as a whole.

Pakistan Match Industries (Pvt.) Ltd. and others v. Assistant Collector, Sales Tax and Central Excise Mardan and others 2019 SCMR 906 and Collector of Customs Appraisement, Collectorate, Customs House, Karachi v. Messrs Gul Rehman, Proprietor Messrs G. Kin Enterprises, Ghazali Street, Nasir Road, Sialkot 2017 SCMR 339 ref.

(h) Interpretation of statutes---

----Where the intention of the legislature and the object for which the law had been enacted were clear, the Courts were not allowed to interpret such a law in a manner which could impede or defeat the object for which such law had been enacted.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 ref.

(i) Interpretation of statutes---

----Subsections to a section in a statute---Interpretation---Statute in general and subsections of a section were to be read together to understand the true purpose and meaning of a particular provision.

Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; R V. Venkataswami Naidu v. Narasram AIR 1966 SC 361; Tehsildar Singh v. State of U P. AIR 1959 SC 1012, 1022; Gurmej Singh v. Partab Singh AIR 1960 SC 122,124 and State of Bihar v. Hiralal AIR 1960 SC 47, 50 ref.

(j) Constitution of Pakistan---

----Art. 199 & Pt. II, Chap. 1---Constitutional jurisdiction of the High Court---Scope---High Court was custodian of individual liberties and guardian of Fundamental Rights of citizens but at the same time it was duty of the Court not to unnecessary halt, hamper or pace down equilibrium of progress, modernity and efficiency initiated, installed or introduced in the system of economic governance in order to enhance its utility and to make it more efficient.

(k) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1---Fiscal notification---Constitutional jurisdiction of the High Court---Scope---Though the High Court never shied away from striking down any notification, which was contrary to law, beyond the scope of parent legislation or abridged or took away any of the Fundamental Right granted and guaranteed under the Constitution, yet if the right of taxpayer was not abridged and his only objection rested upon the parameters of inconvenience then the Court must look objectively towards the collective good of the people.

Muhammad Naveed Farhan, Advocate Supreme Court in this Petition along with connected W.P. No. 7798 of 2020/BWP, W.P.No.8004 of 2020/BWP, W.P.No.7650 of 2020/BWP and W.P.No.7335 of 2020/BWP for Petitioner.

Muhammad Siddiq Chohan, Advocate in connected W.P.No.8281 of 2020/BWP and W.P.No.7432 of 2020/BWP. for Petitioner.

Sardar Abdul Basit Khan Balouch, Advocate Supreme Court and Rai Muzaffar Hussain Kharal for Petitioner.

Muhammad Tariq Mehmood and Irfan Majeed Rehmani, Advocates/Legal Advisor of FBR along with Syed Maroof Gilani, Chief Commissioner, Regional Tax Office (RTO), Bahawalpur and Ms. Attiya Rehman, Additional Commissioner, Inland Revenue Service (FBR) for Respondents.

Mehr Khalil-ur-Rehman, Deputy Attorney General Pakistan for Respondents.

Ch. Muhammad Ramzan Shama, Assistant Attorney General along with Muhammad Shahid Akhtar, Assistant Attorney General and Jam Muhammad Afzal Gasoora, Assistant Advocate General for Respondents.

P L D 2021 Lahore 364

Before Shahid Waheed and Faisal Zaman Khan, JJ

MUHAMMAD YAQOOB through Legal heirs---Petitioners

Versus

LAND ACQUISITION COLLECTOR (M-4) NATIONAL HIGHWAY AUTHORITY

and 4 others---Respondents

R.F.As. Nos. 781 and 957 of 2014, heard on 10th March, 2021.

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

----S.18---Reference to Court---Administration of justice---Justice has to be not only swift but also fair---Court must examine preliminary objections to claim at the outset---Court, upon declaring objections valid, is relieved of its duty to take further proceedings in the matter and parties also stand discharged from further hassle.

(b) Precedent---

----Binding nature---Precedents are anchors of law---Respect and adherence to precedents is rule rather than exception---Supreme Court is the ultimate expositor of law, High Courts and others Courts are bound by its precedents---Not only owning obedience, but also of developing consistency in evenhanded administration of justice in Courts.

Muhammad Saif Ullah v. Lahore Development Authorities and others PLD 2021 Lah. 168 rel.

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

----Ss.18 & 31---Reference and compensation---Principle---Concept of consent and protest cannot go together, therefore, it is essential that whenever a person feels dissatisfied with amount of compensation determined in award, it ought to first raise its protest either by making application before Collector asking him to send reference to Court for determination of his objections or in alternative receive amount of compensation under protest, otherwise such person is precluded to make any grouse and taking out any proceedings.

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

----S. 23---Compensation, determination of---Principle---Question to determine compensation payable, is market value at the relevant time---Best method of fixing market value is to find what a willing purchaser would pay to a willing seller.

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

----Ss.18 & 31---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Acquisition of land---Compensation---Determination---Average value of previous sales---Potential value---Proof---Onus to prove---Appellants/ landowners were aggrieved of award of compensation given by authorities and sought increase therein---Mutations of sale in recent past were produced by landowners to prove market value of land but Trial Court dismissed the reference and maintained the award---Validity---Landowners were to prove mutations by adducing evidence either of vendor or vendee or witnesses passing consideration under mutations, to prove that sale transactions were genuine transactions between willing vendor and willing vendee---Landowners did not prove that consideration passed represented prevailing market value and lands under acquisition and lands concerning sale were similarly situated and possessed of same or similar nature, advantage etc.---No evidence was brought on record from independent source that land had an orchard and had also come into commercial area---Potential value of land could not be determined on the basis of mere oral assertion of landowners---Landowners failed to discharge burden of proving market value as well as potential value of land---High Court declined to interfere in order passed by Trial Court and maintained compensation fixed by authorities---Appeal was dismissed, in circumstances.

Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Government of N.W.F.P and others v. Akbar Shah and others 2010 SCMR 1408; Wali Ahmad v. Collector, Land Acquisition and others 1985 SCMR 224; Zardad Khan and others v. Government of N.W.F.P. and others 1987 SCMR 1387; The Land Acquisition Collector v. Ch. Muhammad Ali 1979 CLC 523; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749; Nirman Singh and others v. Lal Rudra Partab Narain Singh and others AIR 1926 PC 100; North West Frontier Province v. Shad Mohammad Khan and others 1975 Law Notes 338; Land Acquisition Collector-II Tarbela Dam Resettlement Organisation, WAPDA and 2 others PLD 1976 Pesh. 50; Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406; Liyar Khan v. Land Acquisition Collector/A.C., Swabi 2003 YLR 3287; Saeedur Rehman and others v. Assistant Commissioner/Collector Acquisition, Swabi 2004 CLC 378 and Abdul Sattar v. Land Acquisition Collector Highways Department and others 2010 SCMR 1523 rel.

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

----S.23---Compensation---Factor affecting value of land to be acquired---Prices go up in the locality concerned, as soon as the information that government is about to acquire land in that vicinity reaches owners of property in that locality.

Mian Asghar Ali for Appellants (in both Appeals).

Muhammad Awais Kamboh for Respondents Nos.1 to 3.

Malik M. Jahangir Aslam for Respondents Nos. 4 and 5.

P L D 2021 Lahore 377

Before Mirza Viqas Rauf, J

The CHIEF ADMINISTRATOR AUQAF---Appellant

Versus

Syed ABID HUSSAIN through L.Rs. and others---Respondents

F.A.O. No.152 of 2005, heard on 18th February, 2021.

(a) Punjab General Clauses Act, 1956 (III of 1957)--

----S. 2(20)---"District Judge"---Connotation---District Judge is Judge of Principal Civil Court of original jurisdiction but does not include "Additional District Judge" as of Principal Civil Court of original jurisdiction along with District Judge.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 11---Punjab Civil Courts Ordinance (II of 1962), S.6---Civil Procedure Code (V of 1908), S. 24---"District Court"---Scope---Additional District Judge---Jurisdiction---Dispute was with regard to assumption of jurisdiction by Additional District Judge as a District Court---Validity---Additional District Judge, by virtue of S.6(2) of Punjab Civil Courts Ordinance, 1962, was to discharge such functions of a District Judge, as the District Judge assigned him; in discharge of those functions, an Additional District Judge was to exercise same powers as of District Judge but it did not mean that in such way an Additional District Judge could assume status of "District Court" as per contemplation of S.11 of Punjab Waqf Properties Ordinance, 1979---Courts of Additional District Judge and Assistant Judges, under S.24, C.P.C. were deemed to be subordinate to District Court---Term "District Court" used in S.11 of Punjab Waqf Properties Ordinance, 1979, was only relatable to "District Judge"---Additional District Judge was alien to the provisions contained in Punjab Waqf Properties Ordinance, 1979---Such powers and functions vested under S.11 of Punjab Waqf Properties Ordinance, 1979 of a "District Court" could not be bestowed upon him---Only the "District Judge" was competent to adjudicate upon petition under S.11 of Punjab Waqf Properties Ordinance, 1979---High Court declared that all judgments passed by Additional District Judge were without any lawful authority and jurisdiction and remanded matters to District Judge to decide the petitions afresh---Constitutional petition was allowed, in circumstances.

Abdul Samad v. Muhammad Ali and another PLD 1977 Lah. 687 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

Haji Abdullah through his L.Rs. v. Mst. Gohar Sultana and others 1984 MLD 1097 and Mst. Aziz Begum v. Sheikh Nur Muhammad (Additional District and Sessions Judge, Lyallpur) and others PLD 1962 (W.P.) Lah. 887 rel.

Muhammad Muzaffar Samore for Appellant.

Zahid Saleem and Zahoor-ul-Haq for Respondents Nos.1(a) to 1(d), 2, 4 to 6, 9 and 10.

Muhammad Shahzad Shaukat, Amicus curiae.

Syed Shadab Hussain Jafferi, Additional Advocate-General Punjab along with Rana Ehsan-ul-Haq, District Manager Auqaf, Kasur for Respondents..

P L D 2021 Lahore 387

Before Asim Hafeez, J

Ms. UNAIZA AHMED and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Finance Division, Islamabad and 3 others---Respondents

Writ Petition No. 8105 of 2021, decided on 8th February, 2021.

Benami Transactions (Prohibition) Act (V of 2017)---

----Ss. 2(31), 21, 22, 24 & 47 [as amended by Benami Transactions (Prohibition) (Amendment) Ordinance (XX of 2019)]---Show-cause notice---Benami property, determination of---Procedure---Petitioner was aggrieved of dismissal of his objections to show cause notice issued by authorities---Validity---Petitioner was to first establish that property held by him was not as Benamidar of other person, during the course of which proceedings status of the property-accounts would be determined---If it was found/established that property was held as Benamidar of other person, law was to take its course---Provision of S.2(31) of Benami Transactions (Prohibition) Act, 2017, was not to control and regulate Ss.21 & 22 of Benami Transactions (Prohibition) Act, 2017, conferring jurisdiction accordingly---Show-cause notice neither defeated purpose of Benami Transactions (Prohibition) Act, 2017, nor violated any provision thereof---Initiating Officer after performing its functions under S.22 of Benami Transactions (Prohibition) Act, 2017, was to draw up a statement of case for reference to Adjudicator having power to adjudicate in terms of S.24 of Benami Transactions (Prohibition) Act, 2017---Upon conclusion of such adjudication status of petitioner and property in question was to be conclusively settled---High Court declined to interfere in the matter as there was no jurisdictional defect nor there was any illegality made out by authorities---Any interference in exercise of Constitutional jurisdiction by High Court would prejudice remedy of appeal provided in terms of S.47 of Benami Transactions (Prohibition) Act, 2017, whereby appeal had to be heard by Division Bench of High Court---Constitutional petition was dismissed, in circumstances.

Habib Bank Ltd. v. WRSM Trading Company, LLC. and others 2018 CLD 1282; Tanveer Asim v. Pakistan Institute of Fashion and Design, Lahore and others 2020 PLC (C.S.) 1537; Dilawar Hussain and others v. Province of Sindh and others PLD 2016 SC 514; Mst. Fehmida Begum v. Federation of Pakistan through Secretary, Federal Secretariat, Islamabad and 6 others PLD 2000 Lah. 602; Messrs Forbes Forbes and Campbell, Co. through Company Secretary v. Messrs Ebrahim Trust through Managing Trustee and 2 others PLD 2010 Kar. 170; Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 and Ehsan-ul-Haq v. MCB Bank Limited through Manager 2016 CLD 1874 distinguished.

Mian Sultan Tanveer Ahmad, Hafiz Mubashar Ullah and Ch. Abdul Majid for Petitioners.

P L D 2021 Lahore 392

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

HAFEEZ BIBI---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No. 42391 of 2019, heard on 19th January, 2021.

Criminal Procedure Code (V of 1898)---

----Ss.35 & 382-B---Penal Code (XLV of 1860) Ss. 53 & 57---Criminal trial---Conviction of accused---Sentence in case of conviction of several offences in one trial---Maximum term of punishment---Life imprisonment---Scope---Petitioner/convict sought reduction of sentence, inter alia, on ground that she was convicted of several offences at same time, and her sentence of imprisonment, in present form, added to 100 years which was beyond expectancy of life---Validity----Under S.35, Cr.P.C., total period of imprisonment at one trial could not exceed 25 years, and sentence of imprisonment of petitioner/convict, being around 100 years, was impermissible and such anomaly should be rectified---High Court directed that sentences of life imprisonment awarded to petitioner should run concurrently and she should be given benefit of S.382-B, Cr.P.C.---Constitutional petition was allowed, accordingly.

Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15; Javed Shaikh v. The State 1985 SCMR 153; Juma Khan and another v. The State 1986 SCMR 1573; Muhammad Ittefaq v. The State 1986 SCMR 1627; Khan Zaman and another v. The State 1987 SCMR 1382; Faridullah Shah and another v. The State 1990 PCr.LJ 1945; Bashir and 3 others v. The State PLD 1991 SC 1145; Shah Hussain v. The State PLD 2009 SC 460; Faiz Ahmad and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Muhammad Sharif v. The State 2014 SCMR 668; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 and Rahib Ali v. The State 2018 SCMR 418 rel.

Hafiz Sohaib Altaf for Petitioner.

Mehar Fayyaz Ahmad, Assistant Advocate General for the State.

P L D 2021 Lahore 398

Before Jawad Hassan, J

NAZIR AHMAD and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Revision No. 790 of 2012/BWP, heard on 9th February, 2021.

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

----Ss. 2(a) & 14---Oral agreement for referring matter to arbitration---Permissibility---Questions as to whether there could be an oral agreement for arbitration, and if so, whether award made by such an Arbitrator could be made rule of court---Held, that law required that an arbitration agreement should be in writing---Award passed by an Arbitrator, who was appointed through an oral agreement, could not be made the Rule of Court under the Arbitration Act, 1940.

Arbitration agreement meant a written agreement to submit present or future differences to arbitration, whether arbitrator was named therein or not. The essential requirement for a valid arbitration agreement under section 2(a) of the Arbitration Act, 1940, was that an arbitration agreement must be in writing, and as it was a contract between the parties it was essential that it must qualify the test of a valid contract in terms of the law of contract.

Ch. Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516; Karachi Dock Labour Board v. Messrs Quality Builders Ltd. PLD 2016 SC 121; Sheikh Azizullah v. Haji Qismat Khan and another PLD 1996 SC 831; Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808 and Chief Engineer, Building Department v. Messrs Pakistan National Construction 1988 SCMR 723 ref.

An Arbitration agreement should be in writing and need not be signed by both the parties. If the intention to refer the dispute to the Arbitration was manifest from the documents it amounted to an Arbitration agreement.

Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 ref.

Section 14 of the Arbitration Act, 1940 provided that when an application was made, it had to be seen whether the award was made by a competent person. Purported award made by a person who had no authority to make it, was not an award and no decree in terms of it could be passed.

In the instant case admittedly there was an oral Arbitration agreement. The counsel of the petitioners neither filed any written arbitration agreement nor relied on any written document to show that the parties had mutually agreed in writing to appoint an Arbitrator.

Three essential ingredients/conditions required to be fulfilled for attracting the provisions of the Arbitration Act, 1940 were that, firstly, there should be an agreement of arbitration; secondly, there should be a dispute between the parties of the arbitration agreement, concerning the agreement, and lastly, the matter was referred to the arbitrator. If there was no reference, the purported award would be nullity in the eye of law. In the present case, there was neither any written agreement nor there was any document/agreement for the appointment of arbitrator. There was nothing on record to show that any transaction was made between the parties, and on what date, month or year and who were the witnesses of the agreement.

(b) Interpretation of statutes---

----Object for which a law was enacted---Significance---Where the intention of the legislature was clear and the object for which law had been enacted, Courts were not allowed to interpret such a law in a manner which could impede or defeat the object for which such law had been enacted.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 ref.

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

----S. 2(a)---Oral arbitration agreement---Mandatory requirement for an arbitration agreement to be in writing---Jurisprudence on non-recognition of oral Arbitration agreements as found in the jurisdictions of the United Kingdom and India.

Russell on Arbitration, Twenty-fourth Edition, Chapter II, Pages 31-32; Russell on Arbitration, Twenty-fourth Edition, Chapter II, Page 47; Arbitration Step by Step, P C Markand, Edition: 2012; Page 22; Travancore Devaswom Board v. Panchamy Pack (P) Ltd. (2004) 13 SCC 510; Scon Contracts v. Neena Dhingra 2008 (2) RAJ 318 (Del); Indowind Energy Ltd. v. Wescare (I) Ltd. AIR 2010 SC 1793; Cheran Properties Limited v. Kasturi and Sons Limited (2018) 16 SCC 413; Fuerst Day Lawson Ltd. and others v. Jindal Exports Ltd. AIR 2011 SC 2649 and Kamal Pushp Enterprises v. D.R. Construction Company AIR 2000 SC 2676 ref.

(d) Jurisdiction---

----Jurisdiction of court---Scope---Whenever a suit or an application or an appeal, as the case may be, was filed contrary to the law provided, the jurisdiction of the Court ceased to exist from giving any verdict except to close the matter---Court's jurisdiction was based on the relief claimed and the Courts had powers to pass such orders as may be required for the satisfaction of decree unless any such order by express or by necessary implication was prohibited.

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

----S.115---Revisional jurisdiction of the High Court---Scope and nature---Revisional jurisdiction of the High Court was defined, limited and corrective in nature---In revisional jurisdiction concurrent findings of fact recorded by the Court/s below could not be upset unless there was mis-reading and non-reading of evidence.

Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046 ref.

Raja Muhammad Sohail Iftikhar, Advocate Supreme Court assisted by Saif-ur-Rehman for Petitioners.

A.R. Aurangzeb, Advocate Supreme Court assisted by Sardar M. Akram Balouch for Respondents Nos.2 to 9.

Ch. Shafi Muhammad Tariq, Advocate Supreme Court for Respondent No.12.

Muhammad Javed Khan and Mehwish Mahmood, Civil Judges/Research Officers, Lahore High Court Research Centre [Bahawalpur Bench] for Respondents.

P L D 2021 Lahore 411

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

Sheikh SHAHID JAMAL---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Criminal Appeal No. 416 of 2020, heard on 19th November, 2020.

(a) Constitution of Pakistan---

----Arts. 23 & 24---Protection of property rights and right to acquire, hold and dispose of property---Fundamental Rights to protection of property could not be syncopated without due sanction of law---Such right however was not an absolute right and test of reasonableness was to be applied in every case individually and not with reference to any abstract standard or general pattern---Any law which imposed restrictions on right to property must be compatible with rule of law and should not be arbitrary.

Colt, Le Baron B. "Law and Reasonableness", Annual Report of the American Bar Association, 26, 1903, p. 341-362. HeinOnline; Barnes v. The Eastenders Group and another, [2014] UKSC 26; Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; Fazal Karim, Judicial Review of Public Actions (Second Edition) p.1120; Bazal Ahmad Ayyubi v. The West Pakistan Province PLD 1957 Lah. 388; Saiyyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and another PLD 1964 SC 673; James and others v. United Kingdom (1986) 8 EHRR 123 and Sporrong and Lonnroth v. Sweden (1982) 5 EHRR 35 rel.

(b) Words and phrases---

----"Belief" and "suspicion"---Distinction---Law recognized distinction between "belief" and "suspicion" and former connoted "conviction of the truth of some statement or the reality of some being or phenomenon especially when based on examination of evidence"---"Suspicion" meant act or an instance of suspecting something wrong without proof or on slight evidence---"Suspicion" in its ordinary meaning was a state of conjecture or surmise when proof was lacking; and "reasonable ground to believe" was point where credibly-based probability replaced suspicion.

Shaaban Bin Hussien and others v. Chong Fook Kam and another, [1969] 3 All ER 1626 (PC); Hunter et al v. Southern Inc., [1984] 2 SCR 145; Merriam-Webster Online Dictionary and Halsbury's Laws of India rel.

(c) Words and phrases---

----"Reasonable grounds to believe"---Meaning---"Reasonable grounds to believe" meant final conclusion on basis of information that a thing, condition, statement or fact existed---Standard applicable to "reasonable grounds to believe" had both an objective and subjective facet and person concerned must not only subjectively believe that standard had been met, but grounds must be objectively justifiable in the sense that an ordinary prudent person in his place would conclude that there indeed existed reasonable grounds.

K. Munivelu v. The Government of India and others AIR 1972 AP 318; (Moulvi) Fazlul Qader Choudhury v. Crown PLD 1952 FC 19; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Da Silva v. Regina, [2006] 4 All. ER 900 and Ronald Percy Storrey v. Her Majesty the Queen [1990] 1 SCR 241 rel.

(d) Interpretation of statutes---

----"Shall" or "must" used in statutory provisions---Construction of such words, and connotation---Determination as to nature of a provision, and whether the same was directory or "mandatory---Scope---Ordinarily words "shall" or "must" show that Legislature intended to make a provision mandatory, while use of word "may" indicated that the same was directory, but both words were also used interchangeably---No principle of universal application existed to classify a provision as mandatory or directory but the same depended on the intent of Legislature rather than phraseology used.

N.S. Bindra's Interpretation of Statutes (Tenth Edition); The Construction of Statutes (2014 Edition) by Crawford; Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others PLD 1972 SC 326; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Understanding Statutes" (Fourth Edition) by S.M. Zafar rel.

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

----Ss. 12 & 13---General Clauses Act (X of 1897), S. 24-A---Freezing of property---Appointment of receiver under S.12 of National Accountability Ordinance, 1999 (the Ordinance)---Exercise of power to appoint "receiver" by Chairman National Accountability Bureau (NAB) or Accountability Court---Satisfaction of grounds of reasonableness, rule of balance and judicious exercise of discretion while making such order---Scope---Appellant / accused impugned order of Accountability Court whereby order for freezing of his property and appointment of receiver made by Director General (DG) NAB, was confirmed---Validity---Object of freezing was to keep assets available to satisfy any final order of confiscation if one was made and term "freezing" was quite expansively defined in National Accountability Ordinance, 1999 and included holding, controlling and managing any property through a receiver or otherwise---Appointment of receiver was an extremely harsh step, and Legislature could not have intended that Chairman NAB and Accountability Court should invoke S. 12(c)(ii) of the Ordinance in routine, said section should be invoked judiciously and by balancing competing interests of society and accused in every case---Section 12(c)(ii) of the Ordinance, was therefore was a permissive or enabling provision rather than a mandatory one, and S.12(b) of the Ordinance did not make appointment of receiver compulsory where property ordered to be frozen was a debt or other movable property and since S.12(e) used words "receiver, if any, appointed under the section" while describing powers, duties and liabilities of a receiver---For appointment of receiver, the State must satisfy the "rule of balance"---Director General NAB, in the present case, passed receivership order mechanically without giving reasons as to why same was required and whether means employed were proportional to aim sought to be realized and same was a violation of S.24-A of General Clauses Act, 1897 and also violative of law of discretion---Director General NAB therefore had no reasonable cause to appoint receiver in present case, and thus impugned order till extent of appointment of receiver was set aside---Appeal was partly allowed, accordingly.

R v. Rezvi [2003] 1 AC 1099; Crown Prosecution Service v. Compton, [2002] EWCA Civ 1720; Capewell v. Her Majesty's Revenue and Customs, [2007] UKHL 2; Hughes and others v. HM Customs and Excise Commissioners [2002] EWCA Civ 734; Lala Roshan Lal and others v. Ch. Muhammad Afzal and others PLD 1949 Lahore 60; Norgulf Holdings Limited v. Michael Wilson and Partners Limited, www.worldcourts.com/acsi/eng/decisions/ http://www.worldcourts.com/acsi/eng/decisions/ 2007.10.29;_Norgulf_holdings _v_Michael_Wilson_&_Partners.pdf; Jahn v. Germany, (2006) 42 EHRR 1084; Union of India v. Kuldeep Singh [(2004) 2 SCC 590; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Benoy Krishna Mukerijee v. Satish Chandra Giri and others AIR 1928 PC 49; M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54; Ch. Naseer Ahmad v. Rehman Dad and others 2002 SCMR 1306; Motherwell Bridge Contracting and Trading Co. Ltd. v. Riaz Ali Khan and others PLD 1978 Karachi 1093; Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Kar. 409; Muhammad Usman v. Muhammad Shahbaz and 7 others 2007 MLD 1121; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 PTD 1100 = 2015 SCMR 630; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876 and Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 rel.

Mian Sohail Anwar for Appellant.

Muhammad Akram Rao, Special Prosecutor for Respondents.

P L D 2021 Lahore 429

Before Muhammad Ameer Bhatti, J

HUSSAIN SHAH and others---Petitioners

Versus

IMAM BAKHSH---Respondent

Civil Revision No. 577 of 2010, heard on 3rd December, 2015.

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

----S. 8---Limitation Act (IX of 1908), Art. 142---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for recovery of specific immovable property---Limitation---Estoppel---Scope---Petitioners assailed the judgments and decrees passed by courts below whereby respondent's suit for possession was decreed---Validity---Suit of the respondent was time barred besides he was also estopped from filing the suit on account of his lethargic act and admittedly the property had never remained in his possession before and after the process of consolidation---Respondent during the process of consolidation was shown as co-owner in the khata but he had filed the suit showing himself as exclusive owner of his portion of land---Besides he had never come forward to claim possession of the property from any occupant except the petitioners who proved their possession on the property for more than twelve years at that time and at such belated stage he tried to eject the petitioners by bringing the lis; even before that other persons had remained occupants of the suit land---Respondent's suit suffered from legal impediment of limitation and estoppel---Revision petition was allowed and the suit was dismissed, in circumstances.

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

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

----Art. 114---Estoppel---Scope---Party is estopped by his own conduct if he knowingly allows any person to cause damage to his right leading to inference that such happening was in true direction.

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

----S.8---Suit for recovery of possession---Joint property---Un-partitioned property---Scope---Suit for possession can only be filed against the illegal occupant of joint khata by all the co-owners or by one but joining other co-owners as defendants because decree would be for joint possession and not for plaintiff exclusively.

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

----Art. 114---Estoppel---Scope---If a person knowingly does not come forward for ejectment of the illegal occupant within the limitation, he cannot succeed beyond limitation and would not be in position to cross the legal estoppel.

Jamshed Iqbal Khakwani for Petitioners.

Sardar Muhammad Hussain Khan for Respondents.

P L D 2021 Lahore 436

Before Jawad Hassan, J

ABWA KNOWLEDGE PVT. LTD. and another---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

Writ Petition No. 54112 of 2020, heard on 21st December, 2020.

(a) Interpretation of statutes---

----"Preamble"---Scope---Preamble of a statute is though not an operative part of enactment but it is a gateway, which opens purpose and intent of Legislature, which necessitated legislation on the subject---Preamble also sheds clear light on goals which Legislator aimed to secure through introduction of such law---Preamble of a statute holds a pivotal role for the purpose of interpretation in order to dissect true purpose and intent of law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

(b) Interpretation of statutes---

----Intention of legislature---Law is conscious reflection of sovereign command which always has clear history, aim and purpose behind its enactment and also clear objective and purpose ahead of it---Law cannot be read or truly understood in isolation with very purpose it was enacted for---Purposive approach of construction provides the Court objective and necessary aid to unearth underlying true intention of Legislature.

Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Hart v. Pepper (Inspector of Taxes) [1992] 3 WLR 1032 = [1992] UKHL 3 and 1993 SCMR 1019 rel.

(c) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss. 3 & 18---Admission to medical college---Medical and Dental Colleges Admissions Tests (MDCAT)---Requirement---Pakistan Medical Commission---Role---Petitioner company was running a medical college in private sector---Plea raised by petitioner was that for admission to private medical colleges there was no requirement of MDCAT---Validity---For taking admission in a public or private medical college, students from all over the country were to undertake and get through necessary requirement of MDCAT---Mandatory restriction was cast upon under S.18(2) of Pakistan Medical Commission Act, 2020 that a student who did not fulfill requirement of S.18(1) of Pakistan Medical Commission Act, 2020, could not be awarded degree---Requirement of MDCAT was mandatory requirement for admission into medical colleges as well as for awarding degree---Pakistan Medical Commission was created as a regulatory authority, for regulation and control of medical profession and to establish a uniform minimum standard of basic and higher medical education in medicine and dentistry---Functions of a Regulator were comprehensive and exhaustive ranging from formulation of policies, regulations etc. in furtherance of the cause of legislation to administratively govern and oversee implementation of those polices/rules/regulations to ensure that the same were observed in very spirit in which law intended it---If Regulator was barred from exercising any of such functions, the purpose of law would not only be compromised but the intent behind making such law was also jeopardized---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Suo Motu Case No.11 of 2011, PLD 2014 SC 389; Suo Motu Case No.13 of 2009, PLD 2011 SC 619; Hamdard Dawakhana v. Commissioner of Income-Tax, Karachi PLD 1980 SC 84; East and West Steamship Co. v. Pakistan PLD 1958 SC 41; Muhammad Uneeb Ahmed v. Federation of Pakistan through Secretary, Ministry of Science and Technology, Islamabad 2019 MLD 1347; Pakistan through Secretary Finance, Islamabad v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar 2003 SCMR 370; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Aftab Ahmed Kolachi v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad 2009 PLC (C.S.) 258, Lahore Electric Supply Company Limited (LESCO) v. National Electric Power Regulatory Authority PLD 2018 Isl. 20; Wellcome Agencies (Private) Limited Company 1988 CLC 206; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 SC 255; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Mansab Ali v. Amir PLD 1971 SC 124; Muhammad Abdus Salam v. Chairman, East Pakistan Election Authorty PLD 1965 SC (Ind) 231; Sanchit Bansal v. Joint Admission Board (JAB) 2012 SCMR 1841; AIR 1984 SC 1543; AIR 2009 SC 2322; President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 and Suo Motu Case No.15 of 2009 PLD 2012 SC 610 ref.

(d) Words and phrases---

----"Enroll"---Meaning.

Black’s Law Dictionary, Eleventh Edition p.671 and Advanced Law Lexicon, 4th Edition rel.

(e) Words and phrases---

----"Addition"---Meaning.

Black’s Law Dictionary, Eleventh Edition p.671 and Advanced Law Lexicon, 4th Edition rel.

(f) Interpretation of statutes---

----Statute in general and sub-sections of a section are to be read together to understand true purpose and meaning of particular provision.

Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596 rel.

(g) Interpretation of statutes---

----Intention of Legislature---Principle---Where intention of Legislature is clear and object for which law has been enacted is well reflected in statute, Courts are not allowed to interpret such law in a manner which impedes or defeats object for which law has been enacted.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 rel.

(h) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss. 19(7) & 19(8)---Pakistan Medical Commission Admission Regulations, 2020-2021, Reglns. 24, 25, 26, 27, 28 & 29---Fixation of tution fee---Principle---Medical colleges are barred under S.19 (7) of Pakistan Medical Commission Act, 2020, from enhancing fee during entire program---Imperative for all medical colleges prior to initiating annual admission process to publicly declare fixed tuition and all other ancillary fee structure for entire program of study---All medical colleges are bound under S.19(8) of Pakistan Medical Commission Act, 2020 to submit their annual financial statement to the Authority---Provisions of Reglns. 24 to 29 of Pakistan Medical Colleges Admission Regulations 2020-2021, are in continuation and explanation of Ss.19(7) & 19(8) of Pakistan Medical Commission Act, 2020, which are to bind medical colleges to give justification of fee fixed by them to Pakistan Medical Commission.

Salman Aslam Butt, Senior Advocate Supreme Court assisted by Muhammad Shoaib Rashid, Advocate Supreme Court for Petitioners.

Ms. Sadia Malik, Assistant Attorney General for Pakistan for Respondents.

Barrister Ch. Muhammad Umar, Pakistan Medical Commission for Respondents.

Date of hearing: 21st December, 2020.

P L D 2021 Lahore 453

Before Tariq Saleem Sheikh, J

ABDUL WAHEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 1854 of 2021, decided on 19th April, 2021.

(a) Contract---

----"Force majeure", meaning and concept of---Use of "force majeure" clauses in contract law---Scope---"Force majeure" was a French term that literally meant "greater force" or "superior force" and could be defined as an event or effect that could be neither anticipated nor controlled; especially, an unprecedented event that prevented someone from doing or completing something that he or she had agreed or officially planned to do---"Force majeure" included both, acts of nature (e.g. floods and hurricanes) and acts of people (e.g. riots, strikes and wars) and referred to events beyond control of parties which prevented one or both of them from performing their contractual obligations----Parties may include a force majeure clause in their contract specifying the consequences of certain supervening events and there was no standard force majeure clause----Such clauses generally focused on impossibility, impracticability and illegality but parties may negotiate it like any other term of a contract and interpretation, scope and application of a force majeure provision would depend on its precise language and party seeking to avoid contract had to show that such event fell within ambit of force majeure clause---Covenants of force majeure clause would also determine remedies available to parties and some contracts may provide for immediate termination of contract on the happening of a force majeure event, while others may stipulate that contract would be put on hold till resolution of a force majeure event and some contracts may make provision for suspension of certain obligations.

Taylor v. Caldwell [1863] 3 B & S 826; J. Lauritzen A.S. v. Wijsmuller B.V. (The Super Servant Two) [1990] 1 Lloyd's Rep.1; Chitty on Contracts Thirty-third Edition, p. 1672; Edwinton Commercial Corp v. Tsavliris Russ (Worldwide Salvage and Towage) Ltd. (The Sea Angel) [2007] 2 All ER (Comm) 634; Lebeaupin v. Richard Crispin and Co. [1920] 2 K.B. 714; Black's Law Dictionary, 11th Edition and P. Ramanatha Aiyar's Advanced Law Lexicon, 5th Edition rel.

(b) Contract---

----"Impracticability" and "impossibility" of contract---Concept of, and distinction between impracticability and impossibility---Scope---"Impracticability" was a concept different from "impossibility", for while latter was absolute, former introduced at all events, some degree of reason and involved some regard for practice---"Impracticable" presupposed that an action was "possible" but owing to certain practical difficulties or other reason it was incapable of being performed---Something was said to be impossible when it was not practicable, and a thing is impracticable when it can only be done at an excessive or unreasonable cost---Doctrine of impracticability of performance excused performance by a contracting party because happening of event unforeseen by parties destroyed value of performance or object of contract.

Black's Law Dictionary; Jenson v. Haynes, 633 S.W. 2d 154 and Stroud's Judicial Dictionary of Words and Phrases rel.

(c) Contract---

----Determination of the nature of a contract/agreement---Contract of "lease" and "license"---Scope---Relationship between parties was determined from the contents of their agreement rather than phraseology used---Most important factor that distinguished a lease from a license was that in the former there was a transfer of interest in immovable property while in latter said element was excluded; and it was a "license" when a person was accorded right to use premises without becoming entitled to its exclusive possession---Agreement, if it was for use of property in a particular way and on certain terms, while such property remained in possession or control of owner, then such agreement operated as a license.

Errington v. Errington and another, [1952] 1 All ER 149; Associated Hotels of India Ltd. v. R.N. Kapoor AIR 1959 SC 1262; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Sajid Ali Khan, Assistant Collector Customs and another v. Muhammad Ahmed Farooqui PLD 1959 (W.P.) Kar. 24; Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others PLD 1961 (W.P.) Lah. 418; Daly v. Edwards (1900) 83 LT 548 (CA); Warr & Co. Ltd. v. London County Council (1904) 1 KB 713 (CA); Clore v. Theatrical Properties Ltd. (1936) 3 All ER 483 and Bird v. Great Eastern Ry. (1865) 19 CB (NS) 268 rel.

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

----S. 62(f)---Contract Act (IX of 1872) Ss. 32 & 56---Civil Procedure Code (V of 1908), O. XXXIX Rr. 1 & 2---Constitution of Pakistan Art. 199---Constitutional petition---Contract of "license" to use premises---Impracticability or frustration of contract of license---Restitution/compensation for impracticability/frustration of contract---Impact on contractual relationship between parties due to Covid-19 Pandemic and Lockdown---Principles for grant of Interim relief---Scope---Petitioner/plaintiff, held a contract with defendant for running hostelry at a Hospital, paid contract consideration in advance, however, due to Covid-19 Pandemic and the lockdown imposed, petitioner incurred heavy losses in business and sought reimbursement of "rent" paid during lockdown period, and deferring of any further advance payable under contract, as well as relief against recovery of utility bills, and instituted a suit before Trial Court for such relief---Petitioner impugned order of Appellate Court, whereby partial interim relief granted by Trial Court, which restrained recovery of monies from petitioner/plaintiff, was set aside---Validity---Agreement between petitioner and defendant was in nature of a license and not a lease, and thus S.62(f) of Easements Act, 1882 would apply, which being a special law, would also exclude applicability of S.56 of Contract Act, 1872---Under S.62(f) of Easements Act, 1882, test to be adopted was of "impracticability" instead of "impossibility", which was subjective---For adjudication of impracticability claim, a court was to ask whether supervening event so radically altered things that it became onerous for promisor to fulfil his promise and it was unwise to hold them to a bargain; and judicial relief may not be afforded if impact of an event was little or otherwise not material---Argument of commercial impracticability or frustration should not provide a means of escape from a contract less profitable than anticipated---Question as to whether a license became impracticable was a question of fact, requiring evidence, and thus Court should avoid giving conclusive findings on same while adjudicating interim relief under O. XXXIX Rr. 1 & 2, C.P.C.---Record, in present case, revealed that despite lockdown imposed due to Covid-19, petitioner's business was not completely disrupted and frustration of contract did not occur, therefore question of compensation or restitution for petitioner did not arise---Frustration brought a contract to an end forthwith, and in present case, petitioner did not quit after the alleged frustration and continued to operate the hostelry till expiry of contract---High Court observed that petitioner's claim for compensation by way of remission of monthly charges (or what petitioner referred to as rent) for lockdown period was not maintainable for reason that courts had no mandate to rewrite a contract---Trial Court therefore could not have restrained recovery of monies due from petitioner as contracts between petitioner and defendant were independent and governed by their own terms, facts and circumstances---No illegality existed in impugned order---Constitutional petition was dismissed, in circumstances.

Satyabrata Ghose v. Mugneeram Bangur and Company and others AIR 1954 SC 44; Alopi Parshad and Sons Ltd. v. Union of India [(1960) 2 SCR 793; Andrew A. Schwartz, Contracts and COVID-19, Stanford Law Review Online, Volume 73, July 2020; Kadir Bakhsh & Sons v. Province of Sindh 1988 CLC 171; Edwinton Commercial Crop. v. Tsavliris Russ (Worldwide Salvage and Towage) Ltd. [2007] 2 All ER (Comm) 634; Kidar Lall Seal and another v. Hari Lall Seal AIR 1952 SC 47; Mahadeo Prosad Shaw v. Calcutta Dyeing and Cleaning Co. AIR 1961 Cal. 70; Raja Dhruv Dev Chand v. Raja Harmohinder Singh and another AIR 1968 SC 1024; T. Lakshmipathi and others v. P. Nithyananda Reddy and others (2003) 5 SCC 150; Energy Watchdog v. Central Electricity Regulatory Commission and others (2017) 14 SCC 80 and Ramanand and others v. Girish Soni and others AIR 2020 Delhi 96; Ganga Saran v. Ram Charan Ram Gopal AIR 1952 SC 9; Abdul Mutaleb v. Mst. Rezia Begum PLD 1970 SC 185; Major Radha Krishan v. Union of India and others AIR 1996 SC 3091; Bengal Oil Mills Ltd. v. Dada Sons PLD 1964 (W.P.) Kar. 18; Syed Ahmed through Special Attorney v. Syed Muzaffar Hussain through L.Rs. 2008 CLC 175; Paula Walter, Commercial Impracticability in Contracts, St. John's Law Review, Volume 61, No.2 (1987); Waegemann v. Montgomery Ward & Co., 713 F.2d 452 (9th Cir. 1983; Messrs Mansukhdas Bodaram v. Hussain Brothers Ltd. PLD 1980 SC 122; Bharti Cellular Limited v. Union of India and others [(2010) 10 SCC 174 and Messrs Jaffer Bros. Ltd. v. Islamic Republic of Pakistan and another PLD 1978 Kar. 585 rel.

Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Mst. Ameeran Mai v. I.G. Punjab Police, Lahore and 2 others 2015 PLC (C.S.) 289 ref.

Fakhar Raza Ajmal Malana for Petitioner.

Muhammad Tariq Nadeem, Assistant Advocate General, Muhammad Imran Shakir, Law Officer, Nishtar Hospital, Multan, with Dr. Shahid Mehmood Bukhari, Medical Superintendent, Nishtar Hospital, Multan for Respondents.

P L D 2021 Lahore 473

Before Ali Baqar Najafi, J

Syed YASIR HASSAN and another---Petitioners

Versus

HOME SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 7 others---Respondents

Writ Petition No. 2051 of 2019, decided on 19th February, 2021.

Punjab Arms License Rules, 2017---

----Rr.35, 44 & 45---Arms business license, transfer of---Principles---Prospective legal heirs' willingness---Scope---Authorities declined to transfer arms business license in the name of petitioner---Validity---Sui juris and legally competent person could transfer or attorn his license during his lifetime to some other person---Prospective legal heirs were nothing but a heir in the waiting who could enjoy some rights with the contingency of death of predecessor and until that fact was materialized, they could not have any right except that of an advisor or a consultant---Actual licensee consented to transfer the license in the name of petitioner---Authorities could not refuse to grant the license within the parameters of Punjab Arms License Rules, 2017---High Court directed the authorities to transfer license in the name of petitioner, within the scope of R. 45 of Punjab Arms License Rules, 2017---Constitutional petition was allowed in circumstances.

Water and Power Development Authority, Lahore through Chairman and another v. Haji Abdul Aziz and others 2012 SCMR 965; Muhammad Tariq Badar and another v. National Bank of Pakistan and others 2013 SCMR 314 and Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995 ref.

Omer Farooq Khan for Petitioners.

P L D 2021 Lahore 479

Before Raja Shahid Mehmood Abbasi, J

GULL TABASSUM alias WAIRI---Petitioner

Versus

INSPECTOR GENERAL (PRISONS), PUNJAB, LAHORE and another---Respondents

Writ Petition No. 1695 of 2021, decided on 24th February, 2021.

Prison Rules, 1978---

----R. 644---Fettering of convicted prisoners---Scope---Petitioner assailed action of jail authorities whereby they had put fetters on the petitioner and had restricted his movement in the jail---Validity---Petitioner was statedly convicted in four criminal cases and facing trial in nine criminal cases but the jail authorities had not mentioned anywhere that the petitioner was violent or a dangerous criminal or had attempted to escape from the jail---No material was brought on record which could satisfy the court qua availability of sufficient reasons for imposition of fetters on the petitioner---Jail authorities had produced an uncertified copy of an order passed by District and Sessions Judge but even such order did not disclose any justifiable reason for imposition of fetters---Under the law, the Inspector General of Prisons as well as District and Sessions Judge were required to record reasons for imposition of fetters on any prisoner, but prima facie, such exercise was not carried out in the case in hand---Writ petition was allowed, petitioner was ordered to be unfettered and dealt strictly in accordance with law.

Doctor Muhammad Aslam Khakhi and others v. The State and others PLD 2010 FSC 1; Syed Shajjar Abbas Shah v. The State and others 2010 PCr.LJ 1935 and Majeedan Bibi v. Superintendent Jail PLJ 1995 Kar. 1 ref.

Rana A.D. Kamran for Petitioner.

Prince Rehan Iftikhar Sheikh as Amicus Curiae.

P L D 2021 Lahore 483

Before Mrs. Ayesha A. Malik, J

SURAJ COTTON MILLS LIMITED through Adil Bashir and 8 others---Petitioners

Versus

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

Writ Petition No. 35089 of 2020 (and other connected Petitions), heard on 19th February, 2021.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 8---Natural Gas Tariff Rules, 2002, R. 18---Pricing for retail consumers of natural gas---Advice of Federal Government for minimum price and sale price of natural gas---Mandatory nature of obligations cast under upon Oil and Gas Regulatory Authority (OGRA) and Federal Government under S.8 of Oil and Gas Regulatory Authority Ordinance, 2002---Scope---Petitioners impugned demand for arrears of charges for use of gas created by respondent OGRA on ground that such demand was based on tariff, which was notified in contravention of S.8 of Oil and Gas Regulatory Authority Ordinance, 2002 read with R. 18 of Natural Gas Tariff Rules, 2002; as Federal Government not render its mandatory advice on prescribed tariff, and thus demand for arrears based on impugned notification issued by OGRA was illegal---Validity---Oil and Gas Regulatory Authority per S.8 of Oil and Gas Regulatory Authority Ordinance, 2002 issues "prescribed price" whereas Federal Government notifies sale price and in event of failure of Federal Government to advise OGRA within stipulated time, OGRA was obligated to notify prescribed price, if higher, as sale price---Section 8 of Oil and Gas Regulatory Authority Ordinance, 2002 cast an obligation on Federal Government to issue its advice within 40 days on sale price and it also cast an obligation on OGRA to make a determination and issue a notification, when Federal Government does did not issue its advice in 40 days, and such statutory provisions were mandatory in order to ensure that process of notifying tariff and ensuring that licensee of natural gas received its revenue requirements was maintained---Upon failure of Federal Government to render advice, it was mandatory upon OGRA to notify prescribed price, if higher, as sale price in terms of S.8(4) of Oil and Gas Regulatory Authority Ordinance, 2002, and no such notification was issued in the present case---Petitioners however could not get benefit for such shortcomings and had no right to decide what tariff should be and if they were aggrieved during process of determination of tariff, a statutory remedy was available to them under Oil and Gas Regulatory Authority Ordinance, 2002---High Court observed that since determination of prescribed price and notification of sale price was an ongoing matter, setting aside sale price in impugned notification would give petitioners a benefit they were otherwise not entitled to---Constitutional petitions were dismissed, in circumstances.

Khalil-ur-Rehman and Anis-ur-Rehman for Petitioners (in W.Ps. Nos.35089/20, 36727/20, 128267/18, 40568/20, 37819/20, 43313/20, 35367/20 and 11921/21).

Malik Bashir Ahmad Khalid for Petitioners (in W.Ps. Nos.35355/20, 35357/20 and 35652/20).

Ms. Ambreen Moeen, DAG along with Usman Arif Rai, Deputy Director (Legal) in the office of Respondent No.1.

Mrs. Samia Khalid, Zarak Zaman Khan and Usman Sheikh for Respondent OGRA.

Anwaar Hussain for Respondent SNGPL (in W.Ps. Nos.35089/20, 36727/20, 128267/18, 37819/20, 43313/20, 35367/20, 11921/21, 35355/20, 35357/20 and 35652/20) along with Atif Rizwan, Law Officer and Muhammad Zia, Officer Regulatory Affairs in the office of Respondent No.3.

Imran Khan Klair for Respondent SNGPL (in W.P. No.40568/20).

P L D 2021 Lahore 495

Before Shahid Jamil Khan, J

Mst. HIRA DAR---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 24831 of 2021, heard on 21st April, 2021.

(a) Constitution of Pakistan---

----Art.199---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1 (Judicial Business), Pt. A, R. 1(a)(ix)---Certificate accompanying a Constitutional petition filed before the High Court---Constitutional petition filed with incorrect certificate, showing it to be a first petition on the matter, whereas earlier petition, against the same issue was dismissed as withdrawn---Held, that words "judicial matter" used in R. 1(a)(ix) of Part A to Chap. 1 (Judicial Business) of the High Court (Lahore) Rules and Orders (Volume V) meant that any lis or controversy, brought before High Court through 'petition, application or appeal'---Each instance of bringing a controversy or lis before the High Court in any mode, had to be disclosed in the certificate by the petitioner or his counsel on instruction---If petition, application or appeal was filed through a counsel, signing of the certificate was responsibility of the counsel, who was obligated to disclose correct information on instructions or otherwise---Any misstatement would constitute misconduct and would lead to proceeding before the respective Bar Council---High Court observed that it was mindful of referring the matter to Bar Council and to dismiss present petition with costs, however, lenient view was taken; that the counsel for petitioner and through him the legal fraternity was expected to be careful and diligent, while signing the certificate in any matter brought before the High Court---High Court directed that Office shall countercheck that the certificate commensurated with annexures of the petition, was properly worded and duly signed; that if the petition was second, as per certificate, file of the earlier matter be appended with fresh petition, and if earlier matter was pending, the fresh petition be fixed before the Court, where earlier matter was pending---Constitutional petition was dismissed.

Hafiz Muhammad Akram v. Mansoor Sarwar Khan, Barrister-at-Law and 3 others 2006 CLC 40; Nabi Bakhsh and 3 others v. The State 2009 PCr.LJ 690; Muhammad Munir v. The State PLD 2017 Pesh. 10 and Nazir Ahmed and another v. The State and others PLD 2014 SC 241 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner approaching the High Court with unclean hands---Such petition merited dismissal in limine.

Abbas Baig v. The State 1998 MLD 1604 ref.

Ch. Abdul Hameed Gujjar for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General, Punjab for Respondents.

P L D 2021 Lahore 499

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

Qari MUHAMMAD ARIF---Petitioner

Versus

SECRETARY HOME DEPARTMENT and others---Respondents

Writ Petition No. 1735 of 2020, heard on 15th December, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy---Scope---In matters involving enforcement of Fundamental Rights, High Court may not insist on strict adherence to principle of alternate statutory remedy while exercising Constitutional jurisdiction under Art.199 of the Constitution.

Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537; Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and others PLD 2005 Lah. 370; Hafiz Bilal Ahmad v. Station House Officer, Police Station 18-Hazari, Tehsil and District Jhang and 3 others PLD 2011 Lah. 145; Muhammad Mohsin Kulachi alias Gomi v. Government of Punjab and others 2020 YLR 1327; Muhammad Irshad v. Government of the Punjab and others 2020 PCr.LJ 206; Muhammad Subtain Khan v. National Accountability Bureau through Chairman NAB and 3 others PLD 2020 Lah. 191 and from Chief Justice Cornelius of Pakistan, Oxford (1999) p. 42-43, by Ralph Branbiti rel.

(b) Administrative Law---

----Quasi-judicial acts/functions of an administrative authority---Determination as to whether an action by an authority was "quasi-judicial" in nature---Duty to act fairly and judicially----Scope---While distinction between an authority's purely administrative and quasi-judicial acts may be difficult however "duty to act judicially" was the real test---Duty to act judicially may arise in widely different circumstances, which would be impossible to attempt to define exhaustively---Where the statute itself required administrative authority to act judicially, there would be no doubt that its function was quasi-judicial---Even where an authority performed pure administrative functions, it was required to act honestly and fairly---Duty to act fairly was an expansion of principles of natural justice denoted an implied procedural obligation, contents of which may fall considerably short of essential elements of a trial or a formal inquiry accompanying performance of a function that could not be characterized as judicial in nature.

H.W.R. Wade and C.F. Forryth, Administrative Law, Eleventh Edition, p. 31; De Smith, Judicial Review, Sixth Edition; R. v. Manchester Legal Aid Committee, (1952) 1 All ER 480 (489); Cooper v. Wandsworth Brand of Works, (1863) 14 CB (NS) 180; R. v. Electricity Commissioners and others, (1924) 1 KB 171; R. v. Legislative Committee of the Church Assembly, (1928) 1 KB 411 at 415; R. v. The London County Council (1931) 2 KB 215; Justice C.K. Thakker, "From Duty to Act Judicially to Duty to Act Fairly", (2003) 4 SCC (Jour) 1; Nakkuda Ali v. M.F. De S. Jayaratne PLD 1950 PC 102; Ridge v. Baldwin, 1964 AC 40; Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another AIR 1959 SC 308; Anglo-American Direct Tea Trading Co. Ltd. v. Their Workmen and another AIR 1963 SC 874; State of Orissa v. Dr. Binapani Dei and others AIR 1967 SC 1269; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and 2 others PLD 1958 SC (Pak) 437; A.K. Kraipak and others v. Union of India and others AIR 1970 SC 150; State of H.P. v. Raja Mahendra Pal and others (1999) 4 SCC 43; Jaswant Sugar Mills Ltd. Meerut v. Lakshmi Chand and others AIR 1963 SC 677; Province of Bombay v. Kusaldas S. Advani and others AIR 1950 SC 222; Indian National Congress v. Institute of Social Welfare and others (2002) 5 SCC 685; Sandhi Mamad Kala v. State of Gujarat (1973) 14 GLR 384; The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others AIR 1970 SC 1896; Board of High School and Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta and others AIR 1962 SC 1110; Dwarka Nath v. Income Tax Officer, Special Circle D-Ward, Kanpur and others AIR 1966 SC 81; Mrs. K.L. Sahgal v. State of U.P. and others AIR 1965 Allahabad 465; Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Muhammad Ali v. Additional I.G., Faisalabad and others PLD 2014 SC 753; Nicholson v. Haldimand-Norfolk Regional Police Commissioners (1979) 1 SCR 311; R. v. Commission for Racial Equality ex. p. Hillingdon LBC 1982 AC 779; K.(H) (an infant) (1967) 1 All ER 226; Schmidt and another v. Secretary of State for Home Affairs (1969) 1 All ER 904; Pearlberg v. Varty (Inspector of Taxes) (1972) 2 All ER 6; Management of Messrs Nally Bharatengg. Co. Ltd. v. State of Bihar and others (1990) 2 SCC 48; Mary v. State of Kerala and others AIR 2014 SC 1; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; (Re: Corruption in Hajj Arrangements in 2010) PLD 2011 SC 963 and Abdul Wahab and another v. Secretary, Government of Balochistan and another 2011 PLC (C.S.) 1017 rel.

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

----S.11EE & Fourth Sched.---Constitution of Pakistan Arts. 4 & 199---Proscription of a person in the Fourth Schedule of Anti-Terrorism Act, 1997---Nature and exercise of powers of proscription under S.11EE of Anti-Terrorism Act, 1997---Essential pre-requisites/criteria for making an order under S.11EE of Anti-Terrorism Act, 1997---Judicial review of an order for proscription of a person under S.11EE of Anti-Terrorism Act, 1997---Scope---Petitioner impugned order made by Provincial Home Department whereby his name was proscribed under S.11EE of Anti-Terrorism Act, 1997, inter alia, on ground that no material existed to justify such proscription---Validity---Proscription of a person under S.11EE of Anti-Terrorism Act, 1997 was a quasi-judicial function and decision to proscribe a person depended on determination of facts mentioned in said section and imposed obligations affecting Fundamental Rights of a person and provision of review against proscription order by S.11EE(3) of Anti-Terrorism Act, 1997 fortified such view---Mere fact that there was no lis or two contending parties before Provincial Home Department would not take such case out of realm of a quasi-judicial function, Provincial Home Department had a duty to act judicially---Phrase "if there are reasonable grounds to believe" used in S.11EE of Anti-Terrorism Act, 1997 constituted a condition precedent for an order under said provision---Order for proscription could be made only if there were reasonable grounds to believe that person concerned fell within the ambit of S.11EE(1) of said Act and competent authority must take into account all relevant facts and circumstances to form an honest opinion whether an order of proscription was necessary---Such opinion may be formed on basis of information received from any credible source, whether domestic or foreign---Information on which an authority relied to form opinion, if the same was oral, then it must show was authentic and not just a rumour---Evidence must exist to establish reasonableness which stood on higher pedestal than mere suspicion---Grounds of proscription should be relevant to aims and objects of Anti-Terrorism Act, 1997 and the provisions S. 11EE(1) of same---Order made for extraneous considerations or in colourable exercise of power was not sustainable and order of proscription should not be vague and be perspicuous so that person against whom it was made may file a review application as provided by law---Grounds of proscription should be communicated to proscribed person within three days and Court was competent to examine vires of such order and initial burden lay on competent authority to show that same was legal---Authority must place entire material before Court on basis of which it had passed order of proscription and if it claimed privilege in respect of any document, then Court was the final arbiter---Impugned order, in the present case, which only stated "on basis of information placed before me," was not sustainable as it did not show that there was/were actual reasonable grounds to believe that an order under said S.11-EE was necessary, and deprived proscribed person/petitioner of an opportunity to rebut material being used against him---Impugned order was therefore made without lawful authority and was quashed---Constitutional petition was allowed, accordingly.

Saiyyed Abul A'la Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Hafiz Bilal Ahmad v. Station House Officer, Police Station 18-Hazari, Tehsil and District Jhang and 3 others PLD 2011 Lah. 145; Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore and 6 others 2013 PCr.LJ 312 and Javed Iqbal v. Government of the Punjab through Home Secretary and another 2014 MLD 1308 distinguished.

Indian National Congress v. Institute of Social Welfare and others (2002) 5 SCC 685; R. v. Dublin Corporation, (1878) 2 Ir. R. 371; Muhammad Shakeel and others v. Government of Punjab through Home Secretary, Lahore and 3 others PLD 2020 Lah. 629; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Nakkuda Ali v. M. F. De S. Jayaratne PLD 1950 PC 102; Malik Ghulam Jilani v. The Government of West Pakistan PLD 1967 SC 373; Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313; Shaaban bin Hussien and others v. Chong Fook Kam and another, [1969] 3 All ER 1626 (PC); Justice C.K. Thakker, "From duty to Act Judicially to Duty to act fairly", (2003) 4 SCC (Jour) 1; Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537; Hunter et al v. Southern Inc., [1984] 2 SCR 145; Gurmakh Kang-Brown v. Her Majesty The Queen and another, [2008] 1 SCR 456; Joti Parshad v. State of Haryana AIR 1993 SC 1167; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Da Silva v. Regina [2006] 4 All. ER 900; R. v. Storrey, [1990] 1 S.C.R. 241 and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

(d) Words and phrases---

----Phrases "reasonable suspicion" and "reasonable grounds to believe"---Distinction---Distinction between "reasonable suspicion' and "reasonable grounds to believe" lay in the fact that they set different standards for judicial assessment of whether a legal threshold had been met in a particular case---Former suffices if the concerned person thought that there existed a possibility, which was, more than fanciful, that relevant facts existed---Standard applicable to "reasonable grounds to believe" had both an objective and subjective facet and person concerned must not only subjectively believe that such standard had been met, but grounds must be objectively justifiable in the sense that an ordinary prudent person in his place would conclude that there indeed existed reasonable grounds.

Shaaban bin Hussien and others v. Chong Fook Kam and another, [1969] 3 All ER 1626 (PC); Justice C.K. Thakker, "From duty to Act Judicially to Duty to act fairly", (2003) 4 SCC (Jour) 1; Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537; Hunter et al v. Southern Inc., [1984] 2 SCR 145; Gurmakh Kang-Brown v. Her Majesty The Queen and another, [2008] 1 SCR 456; Joti Parshad v. State of Haryana AIR 1993 SC 1167; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Da Silva v. Regina [2006] 4 All. ER 900 and R.V. Storrey [1990] 1 S.C.R. 241 rel.

Petitioner by:

Malik Muhammad Siddique Kamboh.

Respondents by:

Rana Muhammad Arif Kamal Noon, Prosecutor General, Punjab.

Muhammad Abdul Wadood, Additional Prosecutor General with Liaquat/SI.

Mehr Zameer Hussain, Deputy Attorney General for Pakistan.

Muhammad Siddique, Assistant Attorney General for Pakistan.

Muhammad Ayub Buzdar, Assistant Advocate General, Punjab.

Muhammad Amir Khattak, Deputy Commissioner, Multan.

P L D 2021 Lahore 527

Before Muhammad Shan Gul, J

KHALID IMRAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SUNDAR, LAHORE and 2 others---Respondents

Writ Petition No. 31566-Q of 2021, decided on 21st May, 2021.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.154---Constitutional petition---Quashing of FIR---Interference in investigation---Scope---Petitioner sought quashing of FIRs registered against him---Specific allegations spelling out cognizable offences have been raised in the applications and from the contents thereof the relevant provisions of law mentioned in the FIRs were arguably attracted---High Court observed that High Court could not indulge in a fact finding exercise---Criminal reports in question were under investigation, and any interference at such stage would mean pre-empting the powers of the Investigating Officers and the Trial Court---Constitutional petitions were dismissed.

Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 Privy Council 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 and Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Constitutional remedy afforded by Art. 199 of the Constitution is hedged and conditioned, both by way of constitutional prescription as also jurisprudentially, by riders and conditions---Commonly referred to as a sword in the hands of the citizens against executive excesses, Art. 199 itself as also the jurisprudence developed on the basis thereof reveals that as against a sword, the jurisdiction contemplated in terms of Art. 199 offers many shields as well in the form of conditions and riders---Remedy afforded by Art. 199 is primarily discretionary in nature; and that factual controversies or disputed questions requiring recording of evidence cannot be resolved in constitutional jurisdiction since the remedy afforded is a summary remedy---Questions that require recording of evidence and for the resolution of which an elaborate inquiry is required are ill suited for adjudication in constitutional jurisdiction.

Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023; Muhammad Younas Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy---Scope---Constitutional jurisdiction can only be invoked as a last resort when all other remedies have already been exhausted or are not available.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Statutory remedy, availability of---Scope---High Court observed that Court may not indulge in determination of questions arising under a statute for which the particular statute itself provides a remedy.

Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Muslimabad Cooperative Housing Society Ltd. Through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Article 199 cannot be invoked to defeat the provisions of a validly enacted statutory provision.

President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 ref.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Recording of evidence---Scope---Adjudication in constitutional jurisdiction takes place on the basis of affidavits and counter-affidavits and no examination or cross-examination on such affidavits is permissible in constitutional jurisdiction and, therefore, controversies that require resolution of disputed questions of fact cannot possibly be adjudicated upon in constitutional jurisdiction under Art. 199 of the Constitution.

(g) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.63, 154, 190, 249-A & 551---Constitutional jurisdiction---Quashing of FIR---Alternate remedies---Scope---Petition under Art. 199 of the Constitution is competent only if it is established that no adequate remedy is available to an aggrieved person who seeks the court's indulgence in constitutional jurisdiction---Accused person seeking quashing of an FIR has at least five remedies available before he can have resort to constitutional jurisdiction---In the first place, he can take his grievance before the Investigating Officer and in the event that he is not satisfied with the conduct of investigation by the Investigating Officer he can approach the higher police hierarchy on the investigation side in terms of S.551, Cr.P.C.---Aggrieved person, thereafter, also has a remedy before a Magistrate in terms of S.63 of the Cr.P.C. to seek his discharge from the case---Another remedy under Art. 24.7 of the Punjab Police Rules, 1934, is also available to a person seeking quashing of FIR---Section 190 of the Cr.P.C. also affords a remedy in this regard and a Magistrate can refuse to take cognizance if no case is made out---Another remedy in the form of S.249-A, Cr.P.C. is also available to the petitioner in this respect.

Qaisar Mahmood v. Muhammad Sham and another PLD 1998 Lah. 72; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 and Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102 ref.

Mian Shahzad Siraj for Petitioner (in W.P. No.31566-Q of 2021).

Imran Zahid Khan for Petitioner (in W.P. No.31733 of 2021).

P L D 2021 Lahore 533

Before Ch. Muhammad Masood Jahangir, J

HALEEMA SHUJA---Petitioner

Versus

Mst. Syeda MEHMOODA BEGUM (Deceased) through L.R. and others---Respondents

Writ Petition No. 42235 of 2020, heard on 19th May, 2021.

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

----S. 39---Civil Procedure Code (V of 1908), S. 12(2)---Suit for cancellation of inheritance mutation---Bar to further suit---Framing of issues---Recording of evidence---Scope---Original owner of suit property (respondent) filed suit for cancellation of inheritance mutation claiming therein that she was shown to be dead by practicing mis-representation---Civil Court decreed the suit---Respondent subsequently transferred the suit property to the beneficiaries---Petitioner filed application under S.12(2), C.P.C. contending therein that she had purchased the suit property from legal heirs of the respondent---Bank, in whose favour the petitioner had mortgaged the suit property, also filed application under S.12(2), C.P.C.---Petitioner's application was concurrently dismissed by the courts below---Validity---One party claimed that the respondent passed away in the year 1985 or prior thereto and thereby the inheritance mutation along with various registered instruments were not only attested, rather money decree by Banking Court was passed as well, whereas in contra, the other/rival party asserted that the respondent after getting the consent decree from the Civil Court in her favour and transferring the suit property to beneficiaries as well, subsequently departed in the year 2003---Real controversy inter se both set of the parties could not be resolved until and unless the date of death of respondent was determined through proper/due trial---Issue of limitation in the lis was a mixed question of law and fact which could not be determined without conducting the trial---Constitutional petition was allowed, impugned order was set aside and the trial court was directed to decide the application filed by petitioner and the Bank jointly.

Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Service, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Lahore Development Authority through Director-General v. Arif Manzoor Qureshi and others 2006 SCMR 1530; Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493; Muhammad Altaf v. District Judge and 3 others 2016 YLR 1191; Hazoor Muhammad v. Raqia Begum (deceased) through L.Rs. 2020 CLC Note 19; Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and Lahore Development Authority v. Arif Manzoor Qureshi and others 2006 SCMR 1530 ref.

Majid Ali Naqvi v. Additional District Judge and Ex-officio Settlement and Rehabilitation Commissioner, Tharparkar and another 1970 SCMR 375; Muhammad Sharif v. Chief Administrator, Auqaf and others 1975 SCMR 104; Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334; Abdullah v. Shaukat 2001 SCMR 60; Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others PLD 2001 SC 1028; Tariq Mahmood v. District Returning Officer, District Faisalabad and 3 others 2001 SCMR 1991; Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCMR 1992; Faizum alias Toor v. Nader Khan and others 2006 SCMR 1931; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Ghulam Rasool and others v. Akbar Ali and others 2011 SCMR 794; Raja Muhammad Arshad v. Raja Rabnawaz 2015 SCMR 615 and Nasrullah Khan and another v. Mst. Khairunnisa and others 2020 SCMR 2101 distinguished.

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

----S. 12(2)---Practice of fraud---Bar to further suit---Framing of issues---Recording of evidence---Scope---Whenever a controversial question of fact, especially practice of fraud is raised, the proper course for the court will be to frame issues on such question and decide the lis on its merits in the light of evidence to be made available before it.

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

----S. 12(2)---Forgery, misrepresentation or fraud---Bar to further suit---Framing of issues---Recording of evidence---Scope---Where element of forgery, misrepresentation or fraud is involved, the said issue cannot be decided summarily, rather it being mixed question of law and fact can only be adjudicated upon after settling issues and appreciating the evidence to be led by the parties in pros and cons.

Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 ref.

(d) Limitation---

----Where an order/judgment was challenged through different appeals or petitions and if anyone out of those was brought within time, while the others were preferred beyond specified period, then all those matters ought to be decided on merit especially when an order in one appeal or petition would apply to the other connected lis/matters, even if brought after the provided limitation.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160; Muhammad Ashraf and others v. U.B.L. and others 2019 SCMR 1004 and FBR through Chairman, Islamabad and others v. Messrs Wazir Ali and Company and others 2020 SCMR 959 ref.

(e) Constitution of Pakistan---

----Arts. 199 & 4---Civil Procedure Code (V of 1908), S. 115---Right of individuals to be dealt in accordance with law---Scope---Every citizen under Art.4 of the Constitution has an inalienable right to enjoy the equal protection of law and to be treated in accordance therewith, thus, if a Revisional Court has passed an order, which does not qualify the test of Art.4 and suffers from patent error of fact, such as non-reading as well as misreading of the material on record or has committed a grave illegality in applying the correct law, such as the error of misapplication and non-adherence of correct law, thus being an illegality of sheer nature, can always be rectified by the High Court while exercising its constitutional jurisdiction under Art. 199, as no bar/limitation in this behalf on the exercise of constitutional jurisdiction either emanates from the plain reading of the Article or can be read into it.

Haris Azmat, Maryam Hayat and Jawad Ashraf for Petitioner.

Syed Muhammad Kaleem Ahmad Khurshid, Fazal Ilahi Akbar and Ihsan Ullah for Respondents Nos. 4 and 5.

Moiz Tariq for Respondent No.6.

Malik Nadeem-ud-Din, Ahmad Yar and Dawod Ahmad Asif for Respondent No.8.

P L D 2021 Lahore 544

Before Shahid Karim, J

VICE-CHAIRMAN PUNJAB BAR COUNCIL and others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 19469 of 2021, heard on 3rd May, 2021.

(a) Constitution of Pakistan---

----Art. 128---Ordinance---Power to promulgate Ordinance by Governor---Such power vests in Governor by Art.128 of the Constitution---In essence it is a legislative power but in actuality it is exercised by political executive.

The Bribery Commissioner v. Ranasinghe (1964) 2 All E.R. 785, 790 rel.

(b) Constitution of Pakistan---

----Art. 128---Ordinance, promulgating of---Pre-conditions---Power to promulgate Ordinance by Governor is subject to the condition that Provincial Assembly is not in session and he is satisfied that circumstances exist which render it necessary to take immediate action.

Chief Constable v Evans (1982) All ER 141, 154 and Marbury v Madison (1803) 5 US 137 rel.

(c) Constitution of Pakistan---

----Art. 139---Punjab Government Rules of Business, 2011, Rr. 25, 26 & 27---Decision by circulation by the Cabinet---Scope---Decisions by circulation by Cabinet must be based on certain prior actions and cannot be simply done on a summary prepared by Secretary Law---Such decisions must be compliant of the procedure laid down in Rr. 25, 26 & 27 of Punjab Government Rules of Business, 2011, read cumulatively.

(d) Constitution of Pakistan---

----Art. 116---Punjab Government Rules of Business, 2011, R.33 (1)---Proposed legislation, initiation of---Procedure---Proposed legislation under R.33 (1) of Punjab Government Rules of Business, 2011, has to be initiated by department concerned which has to obtain approval of Cabinet for the issue involved before asking Law and Parliamentary Affairs Department to give legal shape to a bill.

(e) Constitution of Pakistan---

----Art. 116---Punjab Government Rules of Business, 2011, R. 20---Legislation, initiation of ---Role of Law and Parliamentary Affairs Department---No legislation can be originated from office of Law and Parliamentary Affairs Department.

(f) Code of Civil Procedure (Punjab Amendment) Ordinance (VII of 2021)---

----Preamble---Punjab Government Rules of Business, 2011, Rr.20, 25, 26, 27, 33 & 35---Constitution of Pakistan, Arts. 128, 199 & 202---Constitutional petition---Amendment in Civil Procedure Code, 1908, vires of---Compromising provincial autonomy---Direction by Prime Minister---Dictated exercise of powers---Failure to consult High Court---Scope---Petitioners assailed promulgation of Code of Civil Procedure (Punjab Amendment) Ordinance, 2021, on the plea that it was not a valid piece of legislation---Validity---Procedural formalities for an Ordinance to be issued and promulgated were to be put to wayside while enacting an Amendment Ordinance---Concept of provincial autonomy was encapsulated in Rr.33 & 35 of Punjab Government Rules of Business, 2011, in the matter of promulgation of an Ordinance---Any direction by Prime Minister or by Federal Government offended sovereignty of Province (Punjab) in law-making process and was ultra vires to principle of illegality and dictated exercise of powers---Such was an example of Federation commandeering provincial law-making, which was complied by the Province (Punjab) mechanically---By so doing Punjab not only abdicated its provincial authority but compromised individual rights which it was obliged to protect---Punjab, despite Prime Minister's direction was to engage in deliberative process with stakeholder and law had to undergo an independent analysis regarding its efficacy in Punjab---Consultation with High Court was not normally a sine qua non but in peculiar circumstances where across the board amendments in rules were made by Committee of High Court only a few months ago, the Government of Punjab was obligated to have consulted High Court of Punjab for the purposes of reconciliation of two amendments in order to avoid inconsistency and confusion---Amendments in question disregarded previously enacted Lahore High Court amendments which too not only had statutory but constitutional basis and were result of thoughtful and inclusive consultative process---Amendments in question were also liable to be struck down on the ground that there was no prior consultation with Lahore High Court in order to streamline and reconcile amendments made through Code of Civil Procedure (Punjab Amendment) Ordinance, 2021 with Lahore High Court amendments which had their source in the Constitution---High Court struck down amendments in question as Code of Civil Procedure (Punjab Amendment) Ordinance, 2021, was without lawful authority and of no legal effect and was unconstitutional---Constitutional petition was allowed in circumstances.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; American Constitutional Law (Third Edition-Volume One); U.S v. Lopez 115 S.ct.1624 (1995); Amax Potash Ltd. v. Saskatchewan, 2 S.C.R. 576, 590 (1977); K.E. Swinton, the Supreme Court of Canada and Canadian federalism: the Laskin-Dickson years 57-58, 65-68 (1990); Garcia v. San Antonio Metropolitan Transit Authority, 469, U.S 528 (1985); New York v. United States, 505 US 144 (1992); Printz v. United States, 521 U.S 98 (1997) and PLD 2005 Lah. 662 rel.

(g) Constitution of Pakistan---

----Art. 139 (3)---Rules of Business---Status---Rules of Business are Constitutional rules and occupy a pedestal higher than ordinary statutory rules formulated under delegated exercise of power.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

(h) Constitution of Pakistan---

----Art. 1---Interpretation of Constitution---"Republic"---Scope---Constitution envisages a limited government which means that it has put in place a system of restraints and limitations to constrain its power and to define its periphery---In Pakistan it is a representative democracy in which people act not directly but through their "representatives"---Such system of government is called "republicanism"---"Republic" is a democracy but a representative democracy.

McCulloch v. Maryland (1819) 17 US 316; Gregory v. Ashcroft, 501 US 452 (1991) and Constitutional Interpretation, 2009 Harvard Law Review 2004 rel.

(i) Constitution of Pakistan---

----Art. 1---"Federalism"---Provincial autonomy---Scope---Constitution has placed a number of constraints on Federal Government and Parliament lest they may not trample upon provincial autonomy and disregard principle of federalism on which Constitutional structure stands.

McCulloch v. Maryland 17 U.S. (4 Wheaton) 316 (1819) and Rawalpindi Bar Association v. Federation PLD 2015 SC 401 rel.

(j) Constitution of Pakistan---

----Arts. 4 & 5---Rule of law---Scope---In a country governed by a written Constitution, the written Constitution is the rule of law---While the rule of law underlines entire Constitution in particular---Provisions of Arts. 4 & 5 of the Constitution embody the essence of the rule of law.

Jamal Shah v. Election Commission PLD 1966 SC 1 and Ahmad Nawaz v. Pakistan PLD 1998 Sindh 180 rel.

(k) Constitution of Pakistan---

----Art. 149(3) & (4)---Direction to Provinces by the Federation---Principle---Circumstances under which directions may be issued to Provinces by the Federation have been enumerated in Arts. 149(3) & (4) of the Constitution---None of these Articles comprised circumstances under which a direction to make a law may be given by Federal Government---Direction may only relate to exercise of the Executive authority of Federation and in no other case.

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

----Preamble---Composition---Principle---Civil Procedure Code, 1908, is an amalgam of substantive and procedural laws---Substantive part contains provisions enacting fundamental principles of procedural law but rules provide procedure to be followed by Courts in application of those principles.

(m) Constitution of Pakistan---

----Art. 202--- Rules of procedure---High Court, jurisdiction of---Scope---High Courts have been conferred Constitutional power regarding rules of procedure which may not only regulate practice and procedure of High Court but also any Court subordinate to it.

(n) Constitution of Pakistan---

----Arts. 89 & 128---Ordinance promulgating power---Scope---Ordinance making power is not fixed in Legislative cement but written in softer sand of Executive order.

Muhammad Ahmad Qayyum, Amjad Iqbal, Abdul Basit Khan Baloch, Umat ur Rehman Shafqat, Shehzad Ahmad Cheema, Baleegh uz Zaman Chaudhry, M.A Fatmi, Muhammad Jameel Rana, Asad Abbas Dhother, Taha Shaukat, Mirza Waqas Baig, Muhammad Ali Raza Saeed, Ghulam Mustafa Umair, Hamid Raza and Rai Mazhar Hussain for Petitioners

Waqar Saeed Khan, A.A.G., Muhammad Shahzad Shaukat and Mirza Nasar Ahmad, Amici Curiae for Respondents.

P L D 2021 Lahore 586

Before Tariq Saleem Sheikh, J

MUHAMMAD UMAR---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 4603-B of 2020, decided on 11th February, 2021.

(a) Juvenile Justice System Act (XXII of 2018)---

----Ss. 6 & 8---Penal Code (XLV of 1860) Ss. 302, 324, 337-F & 34---Criminal Procedure Code (V of 1898) Ss. 167 & 497---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, common intention---Bail, grant of---Release of juvenile on bail---Delay in conclusion of trial due to determination of age of accused---Accused sought post-arrest bail, inter alia, on ground that he had been in detention for a period exceeding six months, and being a juvenile was entitled to bail per Juvenile Justice System Act, 2018---Contention of prosecution, however, was that delay occurred in determining as to whether accused was juvenile, and such application for determination of age was moved by him, making accused responsible for delay---Validity----Time spent by accused in obtaining declaration that he was a juvenile could not be counted to his disadvantage---Section 8(2) of Juvenile Justice System Act, 2018 stipulated that an accused who appeared to be juvenile must be brought before a court under S.167, Cr.P.C. and court before granting detention, must record its findings on issue of accused's age---In present case, neither the police nor court performed such statutory duty---Accused's case fell within ambit of S.6(5) of Juvenile Justice System Act, 2018 and he had been detained for a continuous period exceeding six months, and trial had not been concluded, and such delay was not attributable to him---Accused was therefore admitted to post-arrest bail, accordingly.

Saleem Khan v. The State and others PLD 2020 SC 356 rel.

(b) Juvenile Justice System Act (XXII of 2018)---

----Ss. 6 & 8---Criminal Procedure Code (V of 1898) Ss. 167 & 497---Detention of juveniles accused of criminal offence(s)---Release of juvenile on bail---Guidelines and directions for police, prosecution and state functionaries for safeguarding juveniles accused of criminal offences---International human rights regime sought to protect children in conflict with law and the Juvenile Justice System Act, 2018 was enacted to provide criminal justice system for juveniles with special focus on disposal of cases through diversion and social reintegration of juvenile offenders---Such objectives were shared by international community, one of which was that children should be detained when absolutely necessary and for shortest period of time possible---Unique vulnerability of children deprived of their liberty required higher standards and broader safeguards to minimize use of detention and prevent ill-treatment in custody---High Court directed that the Provincial Inspector General of Police shall ensure that all cases involving juveniles were processed swiftly in accordance with law and challan was submitted within 14 days or at least interim challan in terms of proviso to S.173, Cr.P.C. was submitted within such time; that Provincial Prosecutor General shall ensure that no delay in meeting the said timeline was occasioned by Prosecution Department and that Inspector General of Police and Prosecutor General shall immediately nominate designated officers who shall monitor submission of challans in cases involving juveniles on monthly basis; that disciplinary action should be taken against those responsible for causing delay in such cases and that juvenile cases should be on agenda of every meeting of Criminal Justice Coordination Committees constituted under Police Order, 2002 and such committees shall review progress of said cases and issue such directions and take such steps as may be necessary; and that all Trial Courts were to decide cases involving juveniles expeditiously and shall ensure that they were proceeded on day-to-day basis without grant of unnecessary adjournments and that every trial of a juvenile must be concluded within period of six months.

Children in Pretrial Detention: Promoting Stronger International Time Limits, a report jointly prepared by the Clinical Program of the American University Washington College of Law, the University of Minnesota Human Rights Centre, and Juvenile Justice Advocates International, available at https://www.wcl.american,edu/index.efm? LinkServID=336BF47E-F500-5734-BF73571825FE45B; Re William M., 3 Cal. 3d 16, 473 P.2d 737, 89 Cal. Rptr. 33 (1970); Preface to Children in Pretrial Detention: Promoting Stronger International Time Limits (ibid); David E. Arredondo, Child Development, Children's Mental Health and the Juvenile Justice System: Principles for Effective Decision-Making, 14 STAN. L. and Pol'y Rev. 13, 18-19 (2003), cited in Children in Pretrial Detention: Promoting Stronger International Time Limits; The Rights of Children in Conflict with Law (Podgorica, 2007). Available at: https://www.unicef.org/montenegro/media/7931/file/MNE-media-MNEpublication391.pdf and UN Committee on the Rights of the Child (CRC), General Comment No.10 (2007): Children's Rights on Juvenile Justice, 25 April 2007, CRC/C/GC/10, available at: https://www.refworld.org/docid/4670fca12.html rel.

Malik Muhammad Saleem and Malik Sheraz Arshad for Petitioner.

Adnan Latif Sheikh, Deputy Prosecutor General with Ali Abbas SI for Respondents.

Syed Fayyaz Ahmad Shah Bukhari and Sardar Inayatullah Khan Bhutta for the Complainant.

P L D 2021 Lahore 598

Before Asim Hafeez, J

MAIMOONA RAJAB---Petitioner

Versus

PROVINCE OF PUNJAB through Section Officer of Governor of Punjab, Lahore and another---Respondents

Writ Petition No. 26126 of 2020, decided on 9th March, 2021.

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

----S. 2(h)---"Harassment"---Scope and effect---Charge of harassment at workplace, in particular, involving allegation of unwelcome sexual advance and sexually demeaning attitudes entailed serious consequences for the accused person, affecting person's life, career and social relationships--- Equally, such deviant behaviour violated social norms, discouraged participation of womenfolk in economic activity and often led to disastrous consequences, hence, called for accountability and strict action.

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

----S. 2(h)---"Harassment"---Proof---Quasi-criminal charge of sexual harassment, as a bare minimum, had to be impartial, credible, capable of surviving test of reasonableness and must be reinforced with convincing / independent evidence.

Quasi-criminal charge of sexual harassment, as a bare minimum, had to be impartial, credible, capable of surviving test of reasonableness and must be reinforced with convincing / independent evidence. In the present case, the complainant-petitioner failed to substantiate charge of harassment through independent, convincing and definite evidence. The testimony of the witnesses - claimed as hostile - extended no support to the case of the petitioner, when their assertions otherwise did not bring home the charge of harassment. Accused could not be punished merely on unsubstantiated assertions.

Furthermore, multifariousness of the allegations, mostly manifesting grievances regarding administrative failures, compromised the credibility, seriousness and efficacy of the charges levelled by the petitioner, which fact was evident from perusal of the complaint. Representation filed by the accused before the Governor was rightly allowed where after he was absolved of all charges levelled against him.

High Court observed that since the filing of the complaint, the accused had faced much discomfiture and social disgrace, which constituted sufficient warning, and it was expected that the complainant would demonstrate good and decent behaviour towards colleagues and co-workers. Constitutional petition was dismissed.

Mustafa Shaukat Iman Pasha for Petitioner.

Sardar Qasim Hassan Khan, Assistant Advocate General Punjab for Official Respondent.

P L D 2021 Lahore 601

Before Mrs. Ayesha A. Malik, J

Dr. M. ASIF and 35 others---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary Specialized Healthcare and Medical Education Department, Lahore and 5 others---Respondents

Writ Petition No. 8024 of 2021, heard on 29th April, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public sector doctors---Post-graduate training---Pakistan Medical Commission ("PMC") recognized teaching hospitals---Placement of doctors to hospitals not recognized by PMC by Provincial Healthcare Department---Scope--- Petitioners, who were doctors, sought placement / adjustment to a PMC recognized hospital for post-graduate training and contended that at present, they were placed at a hospital not recognized by PMC---Validity---Contention of Department that the said hospital would likely be recognized by PMC was presumptive and put petitioners at risk by making them carry out their training at an institution not recognized and for which there was no assurance that the same would be recognized---High Court directed Provincial Healthcare Department to induct trainees only into programs recognized by PMC and furthermore directed that petitioners be immediately transferred to a recognized program with assistance of PMC and PMC should ensure that petitioners were placed accordingly---Constitutional petitions were allowed, accordingly.

Shaigan Ijaz Chadhar for Petitioners.

Akhtar Javed, Additional Advocate General, Punjab for Respondent No.1.

Mian Shahid Nazeer for Respondents Nos.2 to 5 along with Muhammad Yar, Assistant, Sargodha Medical College, Sargodha.

P L D 2021 Lahore 605

Before Abid Aziz Sheikh and Mirza Viqas Rauf, JJ

GHULAM YASIN BHATTI---Appellant

Versus

FEDERATION OF PAKISTAN, MINISTRY OF LAW AND JUSTICE, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, ISLAMABAD and another---Respondents

Intra Court Appeal No.23200 of 2021 in Writ Petition No. 5366 of 2019, decided on 7th April, 2021.

Constitution of Pakistan---

----Arts. 175-A & 193---Judicial Commission Rules, 2010, Rr. 3 & 5---Appointment of High Court Judges---Procedure---Contention of appellant was that appointments of High Court Judges were to be made by calling for applications, followed by written tests and then interviews---Validity---Process or mode suggested by appellant for filling up vacancy of a Judge in superior judiciary was alien to Art. 175-A of the Constitution---Any procedure which was not recognized by Art. 175-A of the Constitution, could not be pressed into service for such purpose, as the same would amount to intrude Constitutional mandate---Division Bench of High Court declined to interfere in judgment passed by Single Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

P L D 2021 Lahore 612

Before Ch. Abdul Aziz, J

MUHAMMAD SOHAIL SHAIKH---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No. 199 of 2020, decided on 10th December, 2020.

(a) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 5(5)---Foreign Exchange Regulation Act (VI of 1947), Ss. 4, 5, 8, 19 (3) & 23---Seizure of Bank accounts---Procedure---Petitioner-accused was aggrieved of seizure of his Bank accounts by investigating officer during investigation---Validity---Opinion so formed by member of Federal Investigation Agency was to be expressed in writing along with reasoning and was to be incorporated in case diary---Omission to fulfill prerequisite of mentioning opinion and reasoning in writing was violative of S.5(5) of Federal Investigation Agency Act, 1974, and such order of seizure was nullity in the eye of law---Member of Federal Investigation Agency could directly pass a seizure order in terms of S.5(5) of Federal Investigation Agency Act, 1974, only if it apprehended that before approaching appropriate authority in accordance with S.19(3) of Foreign Exchange Regulation Act, 1947, the property would be removed or disposed of---High Court set aside seizure letter issued by Federal Investigation Agency and seizure order passed by Tribunal, as the same were suffering from perversity---Revision was allowed in circumstances.

Muhammad Muslim v. Federal Investigation Agency PLD 1984 Kar. 71 rel.

(b) Interpretation of statutes---

----Redundancy, principle of---Applicability---Presumption of redundancy could not be attached to any word, expression or punctuation used in any legal provision by Legislature, rather are meant to be given effect.

(c) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S.5(5)---Seizure---Expression "likely to be removed"---Applicability---Expression "likely to be removed" used in S.5(5) of Federal Investigation Agency Act, 1974, ensues that seizure order is normally to be obtained from Court and member of Agency can use his powers only in cases of utmost urgency wherein time required for having recourse to Court may provide an opportunity to the possessor of property to remove or dispose it off.

Muhammad Muslim v. Federal Investigation Agency PLD 1984 Kar. 71 rel.

(d) Administration of justice---

----Criminal proceedings---Principle---Regime of criminal litigation is placed in three compartments which can be summed up as investigative phase, judicial proceedings and powers of executive to implement orders of Court---Balance of criminal administration of justice rests in the idea that respective three organs must not encroach upon jurisdiction of others---Courts must exercise restraint and must not interfere in process of investigation---At the same time, a judge is not expected to sit like a silent spectator and let the executives mutilate rights of ordinary individuals---If act of an individual of State is found to be in sheer violation of law, it is required to be set at right by the Courts.

Mian Sohail Anwar for Petitioner.

P L D 2021 Lahore 624

Before Abid Aziz Sheikh, J

ADNAN---Petitioners

Versus

SUPERINTENDENT JAIL, GUJRAT and 3 others---Respondents

Writ Petition No. 22688 of 2021, heard on 4th May, 2021.

Family Courts Act (XXXV of 1964)---

----S. 13 (3)---Punjab Land Revenue Act (XVII of 1967), S. 82---Civil Procedure Code (V of 1908), S. 55 & O.XXI, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Decretal amount, non-payment of---Civil imprisonment---Duration---Petitioner was put in civil prison for his failure to pay decretal amount in a suit for maintenance filed by his wife---Plea raised by petitioner was that under S.82 of Punjab Land Revenue Act, 1967, period of detention could not exceed 30 days---Validity---Special procedure prescribed under S.13(3) of Family Courts Act, 1964, could be followed by Family Court through a specific order---In absence of such order, ordinary mode for execution prescribed under Civil Procedure Code, 1908, was applicable---No specific order was passed by Executing Court to follow procedure provided under Punjab Land Revenue Act, 1967, therefore, term of civil imprisonment was not to be governed under S.82 of Punjab Land Revenue Act, 1967 but provision of S.55 read with O.XXI, C.P.C. was applicable under which civil imprisonment for failure to pay decretal amount could be up to one year---Detention of petitioner more than one month was not illegal nor against the provisions of S.13(3) of Family Courts Act, 1964---Constitutional petition was dismissed, in circumstances.

Nasir Khan v. Tahira Rashida 1986 CLC 2381; Parwaiz Ahmed v. District Judge and others 1987 CLC 1277; Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Farzana Rasool and others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221; Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393; Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321; Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950; Talib Hussain v. Mst. Parveen Akhtar PLD 2013 Lah. 129; Muhammad Ashraf v. Mst. Safia Bibi 2008 CLC 1583 and Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799 distinguished.

Ijaz Ahmed Siddiqui v. The District Judge and others 1988 CLC 634; Qurban Ali Khan v. IV Civil and Family Judge and others PLD 1993 Kar. 159; Muhammad Ramzan v. Mst. Afshan Kanwal and others 1991 CLC 1823; Tahir Farooq v. Judge Family Court and others 2002 MLD 1758 and Abdul Majeed v. Additional District Judge and others 2019 YLR 2924 rel.

Muhammad Irfan Malik for Petitioner.

Mian Haseeb-ul-Hassan for Respondents Nos. 3 and 4.

Zafar Rahim Sukhera, Assistant Advocate General, Punjab for Respondent No.1.

P L D 2021 Lahore 630

Before Sultan Tanvir Ahmad, J

AMIR ABBAS MINHAS---Appellant

Versus

DEPUTY COMMISSIONER CHAKWAL and another---Respondents

F.A.O. No. 138 of 2019, heard on 9th June, 2021.

(a) Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----Ss. 19 & 10---Cancellation of declaration---Authentication of declaration---Scope---Appellant was aggrieved of annulment of declaration authenticated by District Co-ordination Officer under section 10 of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002---Show cause notice was issued containing the allegation of violation of the Press Council of Pakistan Ordinance, 2002 and the Ethical Code of Practice---Show cause notice alleged that a news about the death of a person was published in the newspaper of appellant and the allegations of death were attributed to the negligence of the doctor as well as the medical officer of the District Headquarter Hospital; that the imputation in the newspaper was untrue and that the action was initiated on the request of Medical Superintendent of the District Headquarter Hospital---Section 19(1) of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 provided that any person who was aggrieved from a newspaper could file an application to Press Registrar who would then forward the same to the District Co-ordination Officer for making a declaration---District Co-ordination Officer empowered to authenticate a declaration had power to cancel the declaration as well---District Coordination Officer could use the power of cancellation only when application in that regard was moved by the Press Registrar himself---District Co-ordination Officer had no suo motu power and he could not initiate the action on the complaint of any person apart from Press Registrar---Wording of show cause notice, in the present case, was very clear that the Press Registrar had not moved the complaint---District Co-ordination Officer had assumed the jurisdiction in the matter on the basis of incompetent application---Entire superstructure built upon illegal assumption of jurisdiction had to crumble on the ground of being coram non judice---Impugned order was set aside and the appeal was allowed, in circumstances.

Qaisar Nadeem Saqi v. District Coordination Officer (DCO), Hafizabad and 8 others PLD 2006 Lah. 76 ref.

Muhammad Idrees Aasi v. District Coordination Officer, Faisalabad and 2 others 2009 CLC 1163 and Mir Abdul Razzaq v. D.C.O., Gujrat PLD 2017 Lah. 147 rel.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, profession or business---Scope---Citizens have right to enter into any lawful 'profession or occupation' and Art. 18 of the Constitution guarantees to protect the 'profession and occupation' subject to law and regulation---Authorities can regulate the 'profession or occupation', however while exercising these powers, authorities should be careful and must remain within the four corners of law---High Court observed that care and caution should be used before taking any extreme measures and option to provide remedy for wrong by imposing fines or issuance of warnings must be explored before such extreme steps.

Osama Amin Qazi for Appellant.

Mirza Asif Abbas, Assistant Advocate General for Respondents.

P L D 2021 Lahore 635

Before Jawad Hassan, J

Mst. ZAHIDA PARVEEN---Petitioners

Versus

LAMREY CERAMICS (PVT.) LIMITED and others---Respondents

Civil Original No. 58 of 2006, decided on 4th April, 2021.

(a) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 9 & 152---Power of Court to rectify register of members---Scope---Jurisdiction of High Court under S.152 of Companies Ordinance, 1984 stated.

Section 152 of the Companies Ordinance, 1984 ('the Ordinance') gave wide powers to the High Court to rectify the register of members, yet, the jurisdiction of the High Court was summary in nature. Intention of the legislature was to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. Section 152 of the Ordinance empowered the Court to decide any question relating to "rectification" of the register including a question of law. For any question raised within the peripheral field of rectification, it was the High Court under section 152 alone which had the exclusive jurisdiction. However in case any claim was based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member, and if the Court felt such claim did not constitute rectification but instead required adjudication of a basic pillar or facts falling outside the rectification, it had the discretion to send a party to seek its relief before Civil Court first for the adjudication of such facts. In case, allegation of fraud and fabrication or intricate question of law was involved requiring recording of evidence, the High Court could advise the party to approach the Civil Court of competent jurisdiction to get the issue determined and in case of favourable judgment, the litigant could always approach the High Court again under section 152 of the Ordinance.

Manzoor Ahmad Bhatti v. Haji Noval Khan 1986 CLC 2560; Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore PLD 2001 Lah. 523; Zakir Latif Ansari v. Pakistan Industrial Promoters Ltd. 1988 CLC 154 and Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(b) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 152---Power of Court to rectify register of members---Rectification---Connotation---"Rectification" itself connoted some error, which had crept in requiring correction---Error would only mean that everything as required under the law had been done yet by some mistake a name was either omitted or wrongly recorded in register of the company.

Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(c) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 152---Limitation Act (IX of 1908), Art. 120---Application/petition under section 152 of the Companies Ordinance, 1984 for rectification of register of members---Limitation---Principles---Law of limitation was fully applicable to a petition filed under S.152 of the Companies Ordinance, 1984 ('the Ordinance')---Summary proceedings under S.152 of the Ordinance could not be resorted to when the suit for seeking same relief had become barred by time under the Limitation Act, 1908---Limitation period for seeking same relief in a civil suit would also be deemed limitation period for the purposes of application under S.152 of the Ordinance---Civil suit for a relief under S.152 of the Ordinance would entail the limitation period prescribed in Art. 120 of Limitation Act, 1908, therefore, said Article shall also be applicable to a petition filed under S.152 of the Ordinance and period mentioned in the said Article should be taken as a reasonable standard by which delay was to be measured.

Khurshid Ahmad Khan v. Pak Cycle Manufacturing Company Ltd. PLD 1987 Lah. 1; Mian Waheed-ud-Din v. Messrs Royal Rice Millers 2015 CLD 1978 and Mrs. Saeeda Mahmood v. Anas Munir 2007 CLD 637 ref.

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

----S. 5 & Art. 163--- Civil Procedure Code (V of 1908), O.IX, Rr. 3, 4, 8 & 9---Companies Ordinance (XLVII of 1984) [since repealed], S. 152---Petition under S.152 of the Companies Ordinance, 1984 dismissed due to default/non prosecution---Application seeking restoration of petition---Limitation for filing such application---Condonation of delay---If an application was dismissed due to default as provided under O.IX, R. 3 or R. 8, P.P.C. it could be restored in accordance with O.IX, R.4 & R. 9 of C.P.C. provided that such restoration was sought within the limitation period of thirty days as specifically provided under Art. 163 of Limitation Act, 1908---Therefore the time limitation for filing an application for restoration of a petition under S.152 of the Ordinance was thirty days from the date of its dismissal---Although S.5 of Limitation Act, 1908 was made applicable to such an application for restoration, however, the petitioner was bound to establish sufficient cause, which prevented him/her to approach the Court within the period of limitation.

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

----S. 5---'Pardanasheen lady'---Cause of action barred by time---Condonation of delay---Principles relating to justification for condonation of delay in cases involving Pardanasheen lady---"Pardanasheen lady" was not a term of art; it has legal purport, impact and significance, which encapsulated certain defences in favour of a woman taking and establishing such plea, which were not available to other persons under the law; it was a bulwark, which offered legal immunity from certain ordinary binding legal principles especially a valid legal justification to substantiate the plea for condonation of delay on the touchstone of being unaware or uninformed; it offered a legitimate defence to agitate a cause of action which was otherwise barred by flux of time under the applicable limitation criteria---Valid excuse of being a pardanasheen lady therefore offered a strong ground and a reasonable consideration for exercising discretion in favour of a time barred application, as it could be taken as a sufficient cause within the contemplation of S.5 of the Limitation Act, 1908 to condone the delay.

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

----S. 5---'Pardanasheen lady'---Petition barred by time---Application seeking restoration of petition not filed within time---Condonation of delay---Perusal of available record revealed that the petitioner-lady had been appearing personally before Courts in two different cities in suits filed by the respondents which were decided in year 2003 while the petition was dismissed on 27-12-2002---Petitioner (lady) on the one hand had been appearing before the Courts personally and also by engaging counsels independently and on the other hand, she was taking the plea of being a Pardanasheen lady, which was contrary to her conduct---When the petitioner was performing such like professional activities personally, the principle of pardanasheen lady and presumption and immunities attached with it under the law, did not apply in her favour---Petition was dismissed.

Muhammad Shujaat Khan v. Nawab Mashkoor Ahmed Khan 2000 SCMR 953 ref.

(g) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 76---Transfer of shares and debentures---Requirements under S.76 of the Companies Ordinance, 1984 for transfer of shares and debentures---Such requirements were mandatory in nature and in the absence of such compliance no transfer of shares in law stood effected.

Muhammad Imran Sarwar, Advocate Supreme Court and Saad Ullah for Petitioner.

Hafiz Muhammad Talha, Advocate/Legal Advisor for SECP for Respondents.

P L D 2021 Lahore 654

Before Ayesha A. Malik, J

HAMZA BASHIR and others---Petitioners

Versus

PAKISTAN MEDICAL COMMISSION through President and others--Respondents

Writ Petitions Nos. 30346, 30812, 30078, 30479 and 34213 of 2021, heard on 9th June, 2021.

(a) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss. 13(c), 32 & 37---Pakistan Medical Tribunal Act (XXXIV of 2020), S.6(11)---Admission Regulations, 2020-2021, Reglns.18, 19, 19-A & 19-F---Medical and Dental Undergraduate Education (Admission, Curriculum and Conduct) Regulations, 2021, Reglns. 10 & 21---Constitution of Pakistan, Art. 10-A---Re-admission process---Due process, principle of---Applicability---Petitioners were students of medical colleges who were aggrieved of directions issued by Pakistan Medical Commission for initiating process of re-admission---Validity---Orders in question were not appealable before Medical Tribunal as those were not specific orders passed on a specific complaint---Orders in question were identical and had suspended admission of petitioners and their interview marks without hearing them---Pakistan Medical Commission did not exercise its authority as per law and entire decision making process was contrary to principles of due process---Pakistan Medical Commission was to ensure that process of admission was not tainted, it was complied with regulations so as to ensure that students with higher merits were given admission---Admission process itself was competitive and private colleges were given discretion of 20% marks with respect to interview---Entire dispute before High Court hinged on the manner in which 20% marks were granted---Though Pakistan Medical Commission asserted that merit and transparency was necessary and it was in order to attain merit and transparency that such exercise was undertaken but the manner in which Pakistan Medical Commission attempted to resolve the problem was in contravention to its own Admission Regulations, 2020-2021 and Medical and Dental Undergraduate Education (Admission, Curriculum and Conduct) Regulations, 2021,and in negation to the authority it could exercise under Pakistan Medical Commission Act, 2020---High Court observed that Pakistan Medical Commission should have addressed each and every complaint on its merit, passing a specific order with respect to basic complaint against respective college, which order would be appealable before Medical Tribunal---High Court set aside order passed by Pakistan Medical Commission---Constitutional petition was allowed, in circumstances.

Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Muhammad Aslam v. Senior Member (Colonies), Board of Revenue, Punjab and others 2004 SCMR 1587; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Haleem ur Rehman v. Province of Sindh and others 2019 SCMR 1653; Pakistan Medical and Dental Council v. Shahida Islam Medical Complex (Pvt.) Limited and others 2019 CLC 1761; Muhammad Fahad Malik through Safdar Ali Malik v. Pakistan Medical and Dental Council through its President and others PLD 2018 Lah. 75 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Judicial review---Scope---High Court can always in Constitutional jurisdiction review decision making process in order to ensure that competent authority has acted in accordance with law, maintained principles of natural justice and due process and has not in any manner abused its authority.

Muhammad Safdar Shaheen Pirzada and Toseef Shaheen Pirzada for Petitioners (in W.Ps. Nos.30346 of 2021 and 34213 of 2021).

Mian Ismat Ullah and Shakeel Ahmad Pasha for Petitioners (in W.P. No.30078 of 2021).

Altaf Hussain Bajwa, Vice Mian Muhammad Saeed for Petitioners (in W.Ps. Nos.30479 and 30812 of 2021).

Ms. Ambreen Moeen, Deputy Attorney General for Pakistan along with M. Rashid Umar, Assistant Attorney General for Pakistan for Respondents.

Barrister Chaudhary Muhammad Umar and Rana Muhammad Ansar for Respondent PMC.

Imran Muhammad Sarwar for Respondent UHS.

Mahmood A. Sheikh for Respondent Al-Aleem Medical College, Lahore (in W.P. No.30812 of 2021).

Adeel Shahid Karim, Vice Khalid Ihsaq for Respondent Sahara Medical College (in W.Ps. Nos.34213 and 30346 of 2021).

Muhammad Rashid and Farooq Saeed Khan for Respondent Akhtar Saeed Medical College (in W.P. No.30078 of 2021).

P L D 2021 Lahore 670

Before Ali Zia Bajwa, J

NATIONAL BANK OF PAKISTAN and another---Petitioners

Versus

The STATE and 4 others---Respondents

Writ Petition No. 30742 of 2021, decided on 21st May, 2021.

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

----S. 22-A--- Federal Investigation Agency Act, 1974 (VIII of 1975), S. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Powers of Justice of Peace---Maintainability---Alternate remedy, availability of---Inquiry conducted by FIA---Scope---Petitioners challenged the vires of an inquiry conducted by Federal Investigation Agency (FIA) on the allegations of illegal issuance of loans and money laundering---Validity---Petitioners had an alternate remedy under S.22-A(6), Cr.P.C. and in such like cases, High Court always showed reluctance to encourage the practice to invoke the extra-ordinary Constitutional jurisdiction under Art. 199 of the Constitution---Provisions of S.22-A(6), Cr.P.C. were made part of the statute book with the object to reduce the burden of High Court by designating Sessions Judges and on their nomination Additional Sessions Judges as ex-officio Justice of Peace to share the powers of High Court in the matters mentioned in subsection (6) of S.22-A, Cr.P.C.---Constitutional petition, in view of availability of alternate remedy, was dismissed.

Syed Zafar Ali Shah's case 2005 MLD 1593 rel.

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

----S. 22-A---Federal Investigation Agency Act, 1974 (VIII of 1975), Ss. 3, 4 & 5---Powers of Justice of Peace---Constitution of the Federal Investigation Agency (FIA)---Superintendence and administration of the Agency---Powers of the members of the Agency---Expression 'police authorities'---Scope---Question before High Court was whether FIR fell within the expression 'police authorities' as used in S.22-A(6), Cr.P.C.---Held; FIA was constituted under S.3 of the Federal Investigation Agency Act, 1974---Section 4(2) provided that the administration of the Agency shall vest in the Director General who shall exercise, in respect of the Agency, the powers of an Inspector General of Police under the Police Act, 1861---While S.5(1) in most unequivocal manner provided that the members of the Agency shall, for the purpose of an inquiry or investigation under the Federal Investigation Agency Act, 1974, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of Provincial Police have in relation to the investigation of offences under the Criminal Procedure Code, 1898 or any other law for the time being in force, therefore, when functions, rights, privileges and liabilities of officials of FIA were same as that of Provincial Police officer under the Cr.P.C., ex-officio Justice of Peace was very much competent to issue directions to the FIA as it could issue to the Provincial Police---Term 'police authorities' used in S.22-A(6), Cr.P.C., was wide enough to include FIA officials---No provision of the Federal Investigation Agency Act, 1974, contradicted the powers of ex-officio Justice of Peace granted under S.22-A(6), Cr.P.C.

Makhdoomzada Syed Mushtaq Hussain Shah's case PLD 2013 Isl. 26 and Ch. Abdur Rehman's case 2010 MLD 1346 rel.

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

----S. 22-A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Powers of Justice of Peace---Excess committed by police authorities---Alternate remedy, availability of---Scope---Section 22-A(6), Cr.P.C. provides an adequate and efficacious alternative remedy to any person who is aggrieved by the excess committed by the 'police authorities'

Dr. Sher Afgan Khan Niazi's case 2011 SCMR 1813 and Mehboob Ali Malik's case PLD 1963 (W. P.) Lah. 575 ref.

(d) Interpretation of statutes---

----Provision of law must be read and applied in toto.

Mirza Shaukat Baig's case PLD 2005 SC 530 ref.

Fazal Dad's case PLD 2007 SC 571 and Aziz Ahmad's case 2019 YLR 355 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy, availability of---Comments on merits of the case to be refrained---Scope---Once High Court makes up its mind that in presence of alternate adequate remedy, relief cannot be granted to a petitioner, Court should refrain itself from commenting upon the merits of the case and should leave its exercise for the competent alternate forum, otherwise no fruitful purpose would be served to send such aggrieved person to that alternate forum.

Khalid Mehmood's case 1999 SCMR 1881 rel.

Khurram Abbas Jafri for Petitioners.

Asad Ali Bajwa, Deputy Attorney General for Federation with Zahid Javed Butt, Assistant Attorney General for Respondents.

P L D 2021 Lahore 678

Before Mirza Viqas Rauf, J

YAQOOB ALI through L.Rs. and others---Petitioners

Versus

MUHAMMD AYUB and others---Respondents

Writ Petitions Nos. 1447 and 2954 of 2017, heard on 15th April, 2021.

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

----S.12(2)---Judgment, decree and order, setting aside of---Principle---Judgment, decree or order can be annulled by the Court, who passed the same, if it is the product of fraud, misrepresentation or coram non judice.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 12 (2), 96, 114, O.V, Rr. 16, 18, 19, 20 & O.IX, R.13---Ex-parte judgment and decree, setting aside of---Remedy---Service to respondents-defendants---Petitioners-plaintiffs filed suit for declaration and injunction claiming to be owners in possession of suit land---Ex-parte judgment and decree in favour of petitioners-plaintiffs was set aside concurrently by Trial Court as well as Lower Appellate Court in exercise of powers under S.12(2), C.P.C.---Validity---Several remedies are available to an aggrieved person against ex-parte decree out of which first can be application under O.IX, R.13, C.P.C. second a review application under S.114, C.P.C., third appeal under S.96, C.P.C. and fourth application under S.12(2), C.P.C., when decree is product of fraud, misrepresentation and coram non judice---Suitor was to opt any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury---Suitor has to elect and or choose from amongst host of actions or remedies available under law---Respondents-defendants, in the present cases, opted to move application under S.12(2), C.P.C. with assertion that they were proceeded ex-parte on account of fake and faulty service reports---Application under S.12(2), C.P.C. was not decided summarily rather fate of the case was determined after framing of necessary issues and recording of evidence of both the sides---Both the sides were conscious of the controversy who produced their evidence which was appraised by Courts below in a beneficent manner---Glaring flaws in mode of service were floating on the surface of record which were sufficient to erode validity of ex-parte judgment and decree---High Court declined to interfere in order passed by two Courts below---Constitutional petition was dismissed in circumstances.

Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Sain v. Government of N.-W.F.P. through Secretary, Auqaf and 2 others 2005 SCMR 1848; Muhammad Younas v. Umar Hayat and another 2014 CLC 914; Muhammad Aslam and others v. Mst. Kundan Mai and others 2004 SCMR 843; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Government of N.W.F.P. through Secretary Works and Services Department Peshawar and another v. Messrs Cemcon (Private) Ltd. through Managing Director PLD 2018 Pesh. 154; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Mubarak Ali v. First Prudential Modaraba 2009 CLD 849; Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703; Fazal Hussain v. Mst. Husna Bano 1995 MLD 170; WAPDA v. Ghulam Hussain 2000 CLC 530 and Syed Sajjad Hussain Shah v. Messrs Federation of Employees Cooperative Housing Societies Ltd. through General Secretary 2003 CLC 1011 ref.

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

----O. V, R. 1(1)---Service of summons---Scope---Due service is the first fundamental right of a person, who has to defend his cause before Court of law which is even duly recognized by principles of natural justice---Due service of summons is not a formality but a matter of such importance that Courts are obliged that before deciding the service to be sufficient must be satisfied that all requirements of law have been strictly complied with---Such becomes more inevitable when service is not personal but substituted.

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

----O.V, Rr. 16, 18, 19 & 20---Substituted service---Principle---Before resorting to provision of substituted service provided under O.V, R.20 C.P.C., it is incumbent upon Court to ensure compliance of O.V, Rr.16, 18 & 19, C.P.C.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Concurrent findings of facts by two Courts below---Scope---Constitutional jurisdiction should be exercised rarely and sparingly when Courts of competent jurisdiction proceeded to lay the matter in controversy at rest after due application of judicial mind to the facts of the case.

Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155 and Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919 rel.

Muhammad Shahzad Shaukat and Malik Muhammad Kabir for Petitioners.

Muhammad Ilyas Sheikh for Respondents Nos.1 to 8(iv).

Tanveer Iqbal Khan for Respondents Nos.9(i) & 9(ii).

Ch. Shamas Tabraiz, Assistant Advocate General Punjab for Respondents Nos.10 and 11.

P L D 2021 Lahore 688

Before Shahid Waheed, J

Syed AAKIF ALI SHAH---Petitioner

Versus

MUHAMMAD IJAZ and others---Respondents

Civil Revision No. 13840 of 2021, decided on 23rd June, 2021.

(a) Administration of justice---

----High Court observed that technicality was a ploy to stultify course of justice as its use did not unredeemed the wrong and the right was left unenforced---While observance of rules of procedure was fundamental to course of litigation, however, Courts must also be aware that too rigid adherence to such rules in certain circumstances may inappropriately and unjustly deprive a party of his/her rights---Fact cannot be ignored that counsel/lawyers sometimes do make mistakes while conducting their cases, which ordinarily attracted sanctions or penalties, however in trying to give life to substantial justice, some mistakes or errors which, if not fraudulent or intended to overreach, may be overlooked in order not to allow strict compliance to suffocate the process of delivery of justice---Judges must not act as judicial technicians and courts ought not to present themselves as workshops of technical justice and must endeavor to grant reasonable opportunity all parties in a litigation to put up their respective best cases.

Cropper v. Smith (1884) 26 Ch. D. 700; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 and Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 rel.

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

----O. I, R. 10 & O. VII, R. 17---Amendment of plaint---Voluntary amendment to plaint by plaintiff---Amendment in plaint on direction of Trial Court under O. I, R. 10, C.P.C.---Nature of such amendments---Consequences of non-compliance---Scope---During trial of a suit, necessity for making amendment in plaint arose when plaintiff thought that material facts or material particulars already stated in plaint required rectification or elucidation; or further facts or materials were necessary and in such a case, amendment to plaint was allowed under O. VII, R. 17, C.P.C., which was called voluntary amendment---When court, on such terms as it thought just, either on its own motion or on application, ordered any person to be added as a defendant who ought to have been joined as a defendant or whose presence before court was necessary then in such a case, plaint was compulsorily amended under O. I, R. 10(4) of C.P.C., in such manner as was deemed necessary---Nature of the said two types of amendments was not only different but also consequences of failure to make such amendments after order were also not the same---Plaintiff if, after obtaining leave to amend his plaint, failed to amend it within time, then he would not be permitted to amend it afterwards, but such failure did not render suit liable to dismissal---Consequence of failure to amend plaint, therefore, was that suit would go to trial on original pleadings, but such suit could not be dismissed---Trial Court had no power to compel a plaintiff to amend his plaint and failure to make either type of amendment did not result in dismissal of suit.

Dr. Thakur Das and others v. The President, Municipal Committee of Simla (Punjab Record No.36 of 1890); Gaj Kumar Chand v. Lachman Ram (1911) 10 IC 503; Govinda Goundar and another v. Ramien and others AIR 1915 Mad 335(1); Vice-Chancellor, University of Azad Jammu and Kashmir, Muzaffarabad and 3 others v. Muhammad Shahzad Khalid PLD 2001 SC (AJ&K) 21 and Khalid Mahmood v. Asghar Ali Bhatti 2005 CLC 1821 rel.

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

----O. VII, R.11 & O. I, R. 10 & O. VII, R. 17---Rejection of plaint---Rejection of plaint upon failure of plaintiff to amend plaint---Scope---Order VII, R.11, C.P.C., gave instances of cases where plaint could be rejected and grounds given therein were not exhaustive and plaint could also be rejected under inherent powers of a court, however, defect due to which rejection was deemed necessary should not be such as was curable by amendment in plaint and plaint could not be rejected in cases where defect was nothing more than an error of procedure.

Mrs. Tomlinson v. Musammat Goran 60 IC 376; Govinda Goundar and another v. Ramien and others AIR 1915 Madras 335(1); Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Messrs PAN Century Edible Oils SDN BHD through Authorized Representative v. Fatima Enterprises Ltd. 1999 MLD 3193 and M. Waseem Zakai v. Mst. Mumtaz Mirza and others 2000 YLR 453 rel.

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

----O.XVII, R. 3 & O. I, R. 10---Adjudication and exercise of power by court under O. XVII, R. 3, C.P.C.---Dismissal of suit under O. XVII, R. 3, C.P.C.---Scope---Question before High Court was whether upon failure of plaintiff to amend plaint in terms of O. I, R. 10, C.P.C.; could the court dismiss suit under O. XVII, R. 3, C.P.C., on the ground that such amendment was necessary for progress of suit and failure to amend plaint entitled court to dismiss suit under said provision---Held, that failure to amend plaint and to pay costs of adjournment did not justify dismissal of suit under O. XVII, R. 3, C.P.C.---Words "decide the suit" used in O. XVII, C.P.C., could not be taken as tantamount to dismissing the suit for default and meant that court under O. XVII, R. 3, C.P.C., could only decide suit on merits on material available before it.

Rahman v. Ahmad Din AIR 1926 Lahore 571; Amanullah Khan and 3 others v. Akhtar Begum 1993 SCMR 504; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 and Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 rel.

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

----S. 151---Inherent powers of court---Scope---Every court was deemed to possess all powers which are necessary to do the right and to undo the wrong, in the course of administration of justice and law recognized and left unfettered inherent powers of a Court to act ex debito justitiae.

Khawaja Mohsin Abbas and Muhammad Zahid Sadiq for Petitioner.

Sardar Muhammad Ramzan for Respondent No.1.

Shahid Aziz Anjum for Respondents Nos.2 to 7.

Mian Abdul Aziz, Rana Zia Abdul Rehman, Nayab Karim Rana and Rana Intizar for Respondent No.8.

Nawab-ur-Rehman Mian for Respondent No.9.

Ihtisham-ud-Din, Muhammad Arif Raja, Addl. Advocate General for Respondent No.10/L.D.A.

P L D 2021 Lahore 699

Before Tariq Saleem Sheikh, J

AMEER HUSSAIN---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 31145 of 2021, decided on 24th May, 2021.

(a) Constitution of Pakistan---

----Art. 10---Safeguards as to arrest and detention---Preventive detention, concept of---Scope---Preventive detention was a form of administrative detention, ordered by executive authorities, usually on assumption that a detainee posed future threat to national security or public peace---Article 10 of the Constitution empowered Legislature to enact preventive detention laws to deal with persons acting in a manner prejudicial to integrity, security or defence of Pakistan, or any part thereof, or external affairs of the country, or public order, or maintenance of supplies or services subject to the safeguards and protections provided by Art. 10 of Constitution.

Reema Omer, No more preventive detention, www.dawn.com http://www.dawn.com and Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another PLD 1974 Lah. 7 rel.

(b) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Power to arrest and detain suspected person---Representation against order of detention under S.3 of Punjab Maintenance of Public Order Ordinance, 1960---Judicial review of administrative actions---Alternate remedy, availability and efficacy of---Scope- Petitioner impugned order of detention under S.3 of Punjab Maintenance of Public Order Ordinance, 1960---Question before High Court was whether Constitutional petition against such detention order was maintainable in view of availability of remedy of representation under S.3(6) of said Ordinance---Validity---When order of an executive authority regarding detention of a person was challenged under Art.199 of the Constitution, High Court had limited jurisdiction since remedy of judicial review could not be treated as appeal or revision---High Court could not substitute its discretion for that of an administrative authority and could only see as to whether an order for detention was reasonable and objective---Impugned order for detention of petitioner, in the present case, was unexceptionable and was made to preserve peace---Constitutional petition was dismissed, in circumstances.

Ismaeel v. The State 2010 SCMR 27; Reema Omer, No more preventive detention, www.dawn.com http://www.dawn.com; Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another PLD 1974 Lah. 7; R v. Inland Revenue Commissioners, Exparte Preston [1985] BTC 208; Glencore Energy UK Ltd. v. Commissioners of HM Revenue and Customs [2017] EWHC 1476; Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1453; Union of India v. T.R. Varma AIR 1957 SC 882; Thansingh v. Superintendent of Taxes AIR 1964 SC 1419; Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Tariq Transport Company v. Sargodha Bhera Bus Service PLD 1958 SC (Pak) 437; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Naeem Jaffar v. Senior Superintendent of Police and 2 others 1997 MLD 1198; Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1451; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140; Sheikh Rashid Ahmad v. D. M. Rawalpindi and others PLJ 2004 Lahore 1221; Messrs Azad Papers Ltd. and another v. Province of Sindh through Secretary, Home Department, Karachi and another PLD 1974 Kar. 81; Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222; Maulana Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur 1999 PCr.LJ 2104; Mamoona Saeed v. Government of Punjab through Secretary, Home Department and 2 others PLD 2007 Lah. 128; Rafaqat Ali and others v. Deputy Commissioner, Rawalpindi and 3 others 2019 PCr.LJ Note 154; Muhammad Abdaal alias Abdali v. Government of Punjab and others PLD 2020 Lah. 471; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Amatul Jalil Khawaja and others PLD 2003 SC 442; The Government of East Pakistan v. Rowshan Bijaya Shaukat Ali Khan PLD 1996 SC 286; Clinton Rossiter, Introduction to the Federalist cited by Fazal Karim in Judicial Review of Public Actions, Second Edition, at p. 865 and Niharendu Dutt Majumdar v. Emperor AIR 1942 FC 22 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review of administrative actions---Scope---Remedy of judicial review under Art. 199 of Constitution could not be treated as an appeal or revision and High Court could not substitute its discretion for that of an administrative authority.

Ehsan Ali Arif for Petitioner.

Ahmad Awais, Advocate General, Punjab.

Akhtar Javed, Additional Advocate General, Punjab.

Rai Shahid Saleem, Assistant Advocate General.

P L D 2021 Lahore 713

Before Mirza Viqas Rauf, J

YASIR CHAUDHRY---Appellant

Versus

FAISALABAD DEVELOPMENTAUTHORITY through Director General and another--Respondents

F.A.O. No.74 of 2015, heard on 24th March, 2021.

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

----Ss. 2 (j), 25, 31 & 33---Sale of Goods Act (III of 1930), S. 2(7)---Term 'product'---Consumer Court, jurisdiction of---Development facilities in housing scheme---Appellant purchased plots in housing scheme launched by respondent---Appellant invoked jurisdiction of Consumer Court to get development facilities in housing scheme---Consumer Court dismissed claim of appellant---Validity---Term 'product' was mainly derived from movable property and land was specifically excluded from the 'goods' under Sale of Goods Act, 1930---Though word 'immovable' was also referred in S.2(j) of Punjab Consumer Protection Act, 2005, but land could not be termed as a 'product'---In order to invoke jurisdiction of Consumer Court, claimant must first qualify to be a 'consumer'---For such purpose, a person had to qualify that he had purchased or obtained on lease any product for a consideration or hired any services for a consideration from service provider---Jurisdiction of Consumer Court was different from Constitutional Court---Consumer Court was bereft of any jurisdiction to pass direction in the form of mandamus---High Court declined to interfere in the order passed by Consumer Court, as it had no jurisdiction to entertain claim of appellant---Appeal was dismissed, in circumstances.

Defence Housing Authority, Islamabad through its Secretary and another v. Malik Khalid Mahmood PLJ 2014 Lah. 24 ref.

Muhammad Ameer Qazi v. Muhammad Asif Ali and others PLD 2015 Lah. 235; Mst. Hira Rehman v. Chancellor, Government College University, Lahore and 2 others 2011 CLC 377; Engineer Jameel Ahmad Malik v. Shaukat Aziz and 6 others 2007 CLC 1192; Muhammad Hanif and 2 others v. Muhammad Sadiq and 14 others 2019 MLD 846; Messrs Askari Leasing Ltd. through Chief Manager v. Presiding Officer and another PLD 2015 Lah. 140 and Chief Executive, FESCO, Faislabad and 2 others v. Nayab Hussain PLD 2010 Lah. 95 rel.

Ghulam Farid Sanotra for Appellant.

Iftikhar Ahmad Mian for Respondents.

P L D 2021 Lahore 720

Before Muhammad Qasim Khan, C.J.

MUBASHIR AHMAD ALMAS---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and 8 others---Respondents

Writ Petition No. 64117 of 2020, heard on 9th June, 2021.

(a) Constitution of Pakistan---

----Arts. 184 (3) & 199---Constitutional jurisdiction---Fundamental rights, protection of---Locus standi---Courts are custodians of fundamental rights of citizens and are protector of civil liberties---Constitution has made it imperative upon Courts to pass orders and issue direction in case of breach of fundamental rights---Question of locus standi from the standpoint of bringing forth issue of public importance and enforcement of fundamental rights on behalf of community has always been liberally interpreted by Courts---Such actions have not only been permitted within the purview of Arts. 184(3) & 199 of the Constitution but also appropriate orders have always been passed to ensure protection of fundamental rights---Citizens must not be breached upon by executive in any manner through its inactions.

Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482 and Sheikh Asim Farooq v. Federation of Pakistan PLD 2019 Lah. 664 rel.

(b) Punjab Private Housing Schemes and Land Sub-Division Rules, 2010---

----R.10---Lahore Development Authority Land Use Rules, 2014, R.3---Lahore Development Authority Private Housing Schemes Rules, 2014, R. 24---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition---Maintainability---Right to life and fresh air---Pro bono publico litigation---Scope---Petitioner assailed violation of different rules by housing societies whereby they had encroached upon green areas and agriculture lands---Validity---Petitioner had put forth a pervasive concern which was rampant in its impact and raised an issue which had a direct bearing on fundamental rights of citizens to enjoy life---Such right is well enshrined and protected under Art. 9 of the Constitution and also directly affects conditions and quality of living for people residing within the province---Petition was well within the scope of pro bono publico---Constitutional petition was maintainable, in circumstances.

(c) Punjab Private Housing Schemes and Land Sub-Division Rules, 2010---

----R.10---Lahore Development Authority Land Use Rules, 2014, R.3---Lahore Development Authority Private Housing Schemes Rules, 2014, R. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Aggrieved person---Scope---Right to life and fresh air---Petitioner assailed violation of different rules by housing societies whereby they had encroached upon green areas and agriculture lands---Validity---Petitioner was residing within territorial limits of Lahore Development Authority and while breaching rules and regulations of Lahore Development Authority thereby using agriculture land and green belts areas for development of colonies, life of all citizens including petitioner could materially be affected---For enforcement of fundamental rights of all citizens, which were also available to petitioner, he was an aggrieved person and competent to file petition in his personal capacity---Constitutional petition was maintainable, in circumstances.

(d) Punjab Private Housing Schemes and Land Sub-Division Rules, 2010---

----R.10---Lahore Development Authority Land Use Rules, 2014, R.3---Green belts---Object, purpose and scope---Validity---Green belts designation is a planning tool and aim of green belt policy is to prevent urban sprawl by keeping land permanently open---Green belt development helps in removing particulate matter from air and reduces intensity of sound---Trees can either deflect, refract or may absorb sound to reduce its intensity---Green belts also help in soil erosion control and aid in containing water run offs.

(e) Punjab Private Housing Schemes and Land Sub-Division Rules, 2010---

----R.10---Lahore Development Authority Land Use Rules, 2014, R.3---Lahore Development Authority Private Housing Schemes Rules, 2014, R. 24---Constitution of Pakistan, Art. 9---Right to life and fresh air---Violation of Lahore Development Authority Land Use Rules, 2014---Petitioner assailed violation of different rules by housing societies whereby they had encroached upon green areas and agriculture lands---Validity---Right of life included oxygen and pollution free society---Right of life co-existed with forest and green areas---High Court directed concerned authorities/legislative bodies to examine and make laws/rules/regulations to bind developers that while establishing private housing colonies and societies, cooperative societies and even colonies developed by Defence Housing Authority, along with road side there must be green belts separate to footpaths---High Court recommended that on green belts trees of indigenous species must be planted to protect environment and also to attract birds---High Court also directed that to preserve agriculture land, authorities must initiate a campaign on media including social media to attract people for high-rise buildings to avoid extra use of agricultural land for the purpose of residence/colonies or commercial plazas and necessary legislation be carried out and reasonable area be fixed for every housing society, where developer would construct high-rise buildings/flats and provide all civic facilities in those buildings surrounded by beautiful green environment---High Court further directed that where government would deem necessary proper plants must be planted on road-side ensuring that plantation be made according to the status of land keeping in view the chances of effective and rapid growth---High Court observed that by every passing day acute water shortage was being faced, therefore, such plants must be chosen which could require/ consume minimum water for their growth and plants must be of long height belonging to indigenous species which could attract local birds also---High Court also directed the authorities to locate government land available within cities and ensure development of mini forests in thickly populated areas within the towns, cities, metropolitan corporations to minimize impact of pollution---Constitutional petition was allowed accordingly.

Messrs Pak Gulf Construction Company (Pvt.) Ltd. Islamabad v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and others 2020 PTD 336; D.G. Khan Cement Company Ltd. v. Government of Punjab through Chief Secretary, Lahore and others 2021 SCMR 834; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Mian Irfan Bashir v. The Deputy Commissioner (D.C.) Lahore and others PLD 2021 SC 571 and Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414 rel.

(f) Lahore Development Authority Land Use Rules, 2020---

----R.2 (bb) ---Master plan---Scope---Master plan is basic necessity for development of city---Plan saves agriculture lands, green areas and also ensure people to be treated alike without any discrimination.

(g) Constitution of Pakistan---

----Art. 199(1)(a)(i)---"Continuing mandamus", doctrine of---Scope---Object of writ of continuing mandamus is to ensure that orders of Courts are implemented and are not fallen victim to official reluctance---Doctrine of "continuing mandamus" serves several functions especially in a case where executive does not carry out its functions effectively and either does not implement a statutory function/duty or does not exercise its discretion wisely.

PLD 2017 SC 265 and PLD 2017 SC 692 rel.

Qazi Misbah ul Hassan and Zain Qazi for Petitioner.

Malik Abdul Aziz Awan and Asif Afzal Bhatti, Additional Advocates General with Capt (R) Muhammad Usman, Commissioner Lahore Division and Aman Anwar Qadwai, Additional Commissioner for the State.

Sahibzada Muzaffar, Ali Safdar Nagra, Asif Mehmood Khan, and Malik Eisa Usman Ghazi for Respondents.

Malik Muhammad Awais Khalid, Amicus Curiae.

Malik Sher Abbas Awan, Senior Research Officer and Shafqat Abbas, Research Officer.

P L D 2021 Lahore 735

Before Muhammad Qasim Khan, C.J.

MUBASHIR AHMAD ALMAS---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and others---Respondents

Writ Petition No. 64117 of 2020, heard on 9th June, 2021.

Punjab Shahr-e-Khamoshan Authority Act (IX of 2017)---

----S. 6---Constitution of Pakistan, Art. 14---Dignity of man---Burial proceedings and maintenance of graveyards---Scope---In a pro bono publico petition issue regarding graveyards and cemeteries was highlighted---Validity---Dignity of man is most sacred belonging and the most valuable asset of every person regardless of his social or economic status in life---One should never be deprived of the same, save in accordance with law---Right to dignity of a person not only remains intact when his connections with the thread of life disconnects but by that moment his right to dignity gets more emphasized and it becomes more necessary to ensure that the right to a dignified burial according to religion of a person must be ensured and not violated at any cost---To uphold dignity of a dead person, it is the duty of State to ensure provision of an appropriate place for burial---High Court directed the authorities to properly manage and look after the graveyards---High Court further directed the concerned authorities to sort out possibilities that each grave should be numbered, registered in record for future reference, plantation be carried out, adequate sitting and allied facilities (water taps, shed along with seats at proper spaces) be arranged/provided to visitors of graveyards---Constitutional petition was disposed of accordingly.

Asif Afzal Bhatti, Additional Advocates General for Petitioner.

P L D 2021 Lahore 741

Before Ch. Muhammad Iqbal and Ahmad Nadeem Arshad, JJ

ADEEL ARSHAD---Appellant

Versus

ISHFAQ AHMAD CHAUDHRY, D.C. KHANEWAL and others---Respondents

I.C.A. No. 453 of 2019, decided on 16th June, 2021.

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

----Ss. 19 & 3---Contempt of court---Orders appealable under S.19 of Contempt of Court Ordinance, 2003---Scope---Question before High Court was whether intra-court appeal under S. 19 of the Contempt of Court Ordinance, 2003 was maintainable against order of High Court whereby criminal original initiated by appellant was disposed of with the observation that since order of High Court in Constitutional petition had been complied with, therefore no further proceedings could be carried out against alleged contemnor---Held, that through impugned order, no contempt proceedings were initiated against alleged contemnor and disposal of criminal original by the High Court as such did not amount to an order appealable under S.19 of the Contempt of Court Ordinance, 2003---Intra-court appeal was dismissed, in circumstances.

Muhammad Mohsin Rafiq and others v. Messrs Siddqui & Co. 2021 CLC 1 rel.

Syed Muhammad Asad Abbas for Appellant.

P L D 2021 Lahore 746

Before Tariq Saleem Sheikh, J

FAYSAL BANK LIMITED through Authorized Attorneys---Petitioner

Versus

The GOVERNMENT OF PUNJAB through Chief Secretary and 8 others---Respondents

Writ Petition No. 25108 of 2015, heard on 2nd April, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Availability of alternate statutory remedy---Scope---General rule was that the extraordinary Constitutional jurisdiction of High Court could not be invoked where remedy of statutory appeal was effective and adequate, however such question of efficacy and adequacy turned on each case and, on the provision, granting the right of appeal.

Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1455 rel.

(b) Punjab Security of Vulnerable Establishments Act (XIV of 2015)---

----Ss. 2(i), 6, 5, 7 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Vulnerable establishment---Security Advisory Committee ("Committee")---Warning under the Punjab Security of Vulnerable Establishments Act, 2015---Mandatory requirement of notification of a premises as a "vulnerable establishment"---Scope---Petitioner Bank impugned notice issued to it under Ss. 6 & 10 of the Punjab Security of Vulnerable Establishments Act, 2015, inter alia, on ground that same was incompetently issued by respondent SDPO Police, and that the petitioner's premises were not duly notified as "vulnerable establishment" in terms of S.2(i) of the said Act---Validity---Provisions of said Act would apply only to an establishment subject to two conditions: first, if Committee identified same as a "vulnerable establishment" and made a recommendation to the DCO for its notification as such; and secondly, if DCO declared same a vulnerable establishment by notification.---None of said two requirements were fulfilled in present case as no notification in terms of S.5 of said Act declaring petitioner's premises as "vulnerable establishment" was issued nor published---Impugned notice was therefore unlawful and set aside---Constitutional petition was allowed, accordingly.

Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1455; Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253; Karachi Electric Supply Company Ltd. through Authorized Officer/Attorney v. Lotte Powergen (Pvt.) Limited through Company Secretary and 3 others PLD 2014 Sindh 574 and Khalid Imran Khan Barki v. Government of Punjab and others 2021 PLC (C.S. 426 ref.

Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Syed Abdul Aziz Nasir Haqqani alias Pir Aziz Ullah Haqqani v. Returning Officer for Presidential Election (Chief Election Commissioner), Islamabad 1994 CLC 648; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi and 2 others 1997 SCMR 1228; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Tehsil Municipal Administration and others v. Noman Azam and others 2009 SCMR 1070; Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347; Pakistan Sugar Mills Association (PSMA), Islamabad, and 10 others v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others PLD 2021 Isl. 55; Muhammad Siddique v. The Market Committee, Tandlianwala 1983 SCMR 785; Pakistan through Secretary, Ministry of Defence, and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180; Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261; Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787; Fazal Muhammad Chaudhry v. Ch. Khadim Hussain and 3 others 1997 SCMR 1368; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404; Chairman, State Life Insurance Corporation and others v. Humayun Irfan and 2 others 2010 SCMR 1495 and National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446 rel.

(c) Administration of justice---

----Statutory condition, if same was mandatory for exercise jurisdiction and was not fulfilled, then entire proceedings were vitiated.

Rashid Ahmad v. The State PLD 1972 SC 271; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783 and Izhar Alam Farooqi v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 rel.

Azmat Hayat Khan Lodhi for Petitioner.

Zaman Khan Vardag, Additional Advocate General, with Nisar/ASI for Respondents.

P L D 2021 Lahore 757

Before Safdar Saleem Shahid, J

ANA LIAQAT---Petitioner

Versus

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

Writ Petition No. 10090 of 2011, heard on 14th June, 2021.

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

----Ss. 5, Sched. & 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ii)(viii)---Suit for dissolution of marriage---Khula in lieu of dower---Scope---Relinquishment of dower---Cruelty by husband---Thirty-two (32) tolas gold ornaments were fixed as dower---Wife/petitioner filed suit on the grounds of cruel behavior and failure to pay maintenance, however, Family Court on failure of reconciliation between the parties dissolved the marriage on the basis of Khula in lieu of dower; which decree was maintained by the appellate Court---Held, that the wife, for decree of dissolution of her marriage, had to forego her claim of dower only in the event of failure of reconciliation between the parties---Family Court on its own could not deprive the lady from the dower and could not order to relinquish the dower as the dower was the right of the lady given by Shariah---Said right could not be discretionarily or arbitrarily exercised by the Court---Family Court in a suit for dissolution of marriage, if reconciliation failed, shall pass decree for dissolution of marriage forthwith and shall restore to the husband the Haq Mehr received by the wife at the time of marriage---Such option could only be exercised if the lady had opted to relinquish the benefit but the Court could not exercise its jurisdiction---Although the Court was empowered to pass a decree on the basis of Khula, but subject to the fact that all the conditions required were fulfilled---In the present case, neither the lady agitated the ground of Khula nor it was her request while making statement before the Court and certain other grounds existed on the basis of which decree for dissolution of marriage could have been passed ---High Court set aside impugned judgments and decrees passed by both the Courts below and dissolved the marriage between the parties on the basis of grounds asserted by the petitioner---Constitutional petition was allowed, in circumstances.

Mst. Saima Irum and 3 others v. Tariq Javed and another 2006 MLD 83 and Lal Muhammad v. Mst. Gul Bibi and another PLD 1986 Quetta 185 ref.

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

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage on the basis of Khula Talaq-e-Baain---Scope---Held, that if the marriage was dissolved on the basis of Khula, it would be Talaq-e-Baain---If the husband and wife compromised with each other, then only the Nikah would be repeated.

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

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Allegation (cruelty etc) asserted by wife---Scope---Held, that the Court framed the issues regarding the allegations asserted by the lady and those were not proved by her ; at such stage the Court could pass decree for dissolution of marriage on the basis of some condition, but it would not be dissolution of marriage on basis of Khula---Wisdom behind this was that the parties should not be forced to live in a hateful union.

Abdul Ghaffar v. Parveen Akhtar 1999 YLR 2521 and Sajjad Hussain alias Allah Ditta Khan v. Judge Family Court, Mailsi and another 2015 CLC 1347 ref.

(d) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Held, that decree of Khula could be passed even when there existed no ground but lady was not willing to settle down with the husband, however, the condition had to be fulfilled ; and the lady might be asked to return the benefits, but not the full dower rather the half one---Certainly in such situation the lady would have to forego rights which she had gained from the husband.

Mst. Shazia Haider v. Gul Islam PLD 2014 Pesh. 194; Shamim Akhtar v. Arshad Mehmood PLD 2017 SC (AJ&K) 40 and Chanzeb and another v. Mst. Yasmeen Bibi and others 2015 MLD 1140 ref.

(e) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Dissolution of marriage---"Talaq" and "Khula"---Distinction---Held, that there was difference in Talaq and Khula---Dissolution of marriage on the basis of Khula is on the demand of the lady---If offer is accepted by the husband, then Talaq would be effected otherwise in case of refusal by the husband, the condition of Khula had to be fulfilled.

(f) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage---Khula---Scope---Procedural mistakes in passing decree noted/explained---Decree of dissolution of marriage on the basis of Khula cannot be passed ex-parte---Court had to put the offer of the lady to the husband and on the reply of husband in positive, the decree of Khula could be passed; secondly, if the conditions were put by the lady, for which the husband was not ready or he put some more conditions, then the same would be put to the lady---Unless the spouses were ready on the conditions, the decree could not be passed on the basis of Khula---Now the Court would frame the issues, regarding the other grounds agitated by the lady for dissolution of marriage and would decide the same on the basis of available record.

Asghar Ali Hashmi for Petitioner.

Ex parte vide order dated 22.09.2020 Respondent No. 3.

P L D 2021 Lahore 768

Before Syed Shahbaz Ali Rizvi, J

ANWAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 72278 of 2019, heard on 2nd July, 2021.

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

----S. 6(5)(b) [as amended by Punjab Muslim Family Laws (Amendment) Act (XIII of 2015)]---Second marriage contracted by husband without permission of first wife---Fine, reduction in---Scope---Sessions Court reduced the imprisonment of accused/petitioner (husband) to that of already undergone, however, maintained sentence of fine of Rs. 5,00,000/- passed by the Judicial Magistrate---Question was whether the sentence of fine imposed against the petitioner could be reduced in consideration of the circumstances weighed by Appellate Court while reducing the quantum of sentence of imprisonment---Held, that sentence of fine stipulated in S.6(5)(b) of Muslim Family Laws Ordinance, 1961, was amended by the Legislature, through Punjab Muslim Family Laws (Amendment) Act, 2015 by substituting, "or with fine which may extend to five thousand rupees, or with both" with "and with fine of five hundred thousand rupees"---Legislature had thus withdrawn the discretion of Court with regard to quantum of fine itself, which transpired its intention---Imposition of fine of Rs. 5,00,000/- to a convict under S. 6(5)(b) of Punjab Muslim Family Laws (Amendment) Act, 2015, was mandatory---Though discretion with regard to the quantum of sentence of imprisonment was provided, yet no such space was given in case of sentence of fine---No illegality, jurisdictional error or impropriety was found in the judgments passed by the Courts below with regard to the question of law involved---Criminal revision was dismissed, in circumstances.

Ishtiaq Ahmad v. The State and others PLD 2017 SC 187 and Noor Muhammad and another v. State and others PLJ 2018 Cr.C. (Lahore) 275 distinguished.

Mian Mureed Hussain for Petitioner.

Qazi Ammar Arshad for Respondent No.2

Irfan Zia, Deputy Prosecutor General for the State.

P L D 2021 Lahore 770

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

Messrs JET GREEN (PVT.) LIMITED---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Intra Court Appeal No. 54648 of 2021, decided on 13th September, 2021.

(a) Interpretation of statutes---

----Preamble to a statute---Scope and purpose---Preamble to a statute was though not an operational part of the enactment but it was a gateway, which opened the purpose and intent of the legislature, which necessitated the legislation on the subject and also shed clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble of a statute, therefore held a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 ref.

(b) Constitution of Pakistan---

----Art. 199---Territorial jurisdiction of the High Court---Scope---Duty of Court was to amplify, enhance and extend its jurisdiction to advance justice and for that purpose it must adopt an approach to embrace rather to deny.

Broom's Legal Maxims 10th Edition, page 44 ref.

(c) Constitution of Pakistan---

----Art. 199---Territorial jurisdiction of the High Court---Scope---If an authority was established under a federal law and performing functions in connection with the affairs of Federation, then no matter where its head office was situated, in the Capital city or in any other city of a Province, if it passed any order or undertook any proceedings in relation to any person living or doing business in any of the Provinces, then the High Court of that Province, in whose territory the order would affect that person, would be competent to exercise jurisdiction in the matter.

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; General (R) Pervez Musharraf v. Federation of Pakistan and others PLD 2020 Lah. 285; A.M. Construction Company (Pvt.) Limited through Chief Executive Officer and another v. National Highway Authority through Chairman and 2 others 2017 CLC 178 and Messrs Sethi and Sethi sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 ref.

(d) Constitution of Pakistan---

----Arts. 199(1)(a), 199(5), 9 & 18---Pakistan Civil Aviation Authority Ordinance (XXX of 1982), S. 3---Territorial jurisdiction of (Lahore) High Court---Scope---Constitutional petition against Civil Aviation Authority (CAA) filed before the (Lahore) High Court---Maintainability---Apellant's application for grant of Regular Public Transport License ("RPTL") was pending before the 'CAA'---Question was whether a constitutional petition filed by the appellant before the (Lahore) High Court against 'CAA' seeking a decision on the pending application for grant of "RPTL" was maintainable---Held, that 'CAA' was a statutory authority, which was a creation of federal law and it performed functions in connection with the affairs of the Federation, which was the mandatory and required criteria to pass a direction in the nature of mandamus as ordained under Art. 199(1)(a)(ii) of the Constitution---Admittedly, the appellant is residing within the territorial jurisdiction of the (Lahore) High Court and carrying out its business throughout Pakistan through its office situated within the territorial bound of the (Lahore) High Court and the prayer it had made regarding the issuance of RPTL from the CAA, if granted, would also take effect and was going to be operative and effective throughout the country including the Province of Punjab---Moreover, the subject matter of the Constitutional petition, the RPTL, whether granted or denied by the CAA, would directly have an impact on the rights and interests of the appellant, which was residing for the purposes of carrying out business through its office within the jurisdictional limits of the (Lahore) High Court---Furthermore CAA had its offices in the Province of Punjab as well, which further strengthened the argument that besides performing the functions in connection with the affairs of the Federation, the CAA also had material and actual presence in the form of its office in Lahore, well within the territorial jurisdiction of the (Lahore) High Court---Since any order of the CAA would directly affect the functionality and operation of the appellant within the limits of the (Lahore) High Court, therefore (Lahore) High Court had the jurisdiction to entertain and decide the Constitutional petition---As the appellant had only sought a direction to the CAA to decide its pending application and its fundamental right of livelihood (Article 9 of the Constitution) as well as right to business and trade (Article 18 of the Constitution) were involved in the matter, therefore, High Court modified the impugned order (of the Single Judge) to the extent that the application of the appellant, if pending before the CAA, shall be decided by it after providing proper hearing to all concerned including the appellant, strictly in accordance with law and through a speaking order within one month.

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; General (R) Pervez Musharraf v. Federation of Pakistan and others PLD 2020 Lah. 285; A.M. Construction Company (Pvt.) Limited through Chief Executive Officer and another v. National Highway Authority through Chairman and 2 others 2017 CLC 178 and Messrs Sethi and Sethi sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 ref.

(e) Administration of justice---

----Rule of law---Scope---Access to justice---Rule of law included access to justice as its most sacrosanct and hallmark ingredient to secure dispensation of justice---In order to strengthen the belief of general public in the system of justice, to provide them the choice of judicial forum with regard to territory in case of availability of more than one and to give them confidence in the Courts, was essential to uphold the majesty of law within the spectrum of its efficiency and efficacy at the same time.

Ms. Ayesha Hamid, Advocate Supreme Court, Sahar Bandial and Raja Akbar Ali Mehboob for Appellant.

Naveed Sohail Malik, Additional Attorney General with Ms. Sadia Malik, Assistant Attorney General and Sheikh Nadeem Anwaar, Assistant Attorney General for Respondents.

P L D 2021 Lahore 783

Before Mirza Viqas Rauf, J

Mst. SHAHIDA PARVEEN and another---Petitioners

Versus

UNION COUNCIL JASWAL through Chairman and Secretary and 6 others---Respondents

Writ Petition No. 106 of 2019, decided on 2nd July, 2021.

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

----Ss. 2(a), 9 & 10---Family Courts Act (XXXV of 1964), S. 20---Child marriage---Trial, forum of---Application of petitioners(minor girl and her mother) was dismissed by respondent (Chairman Union Council) after holding inquiry---Held, that in terms of S.9 of Child Marriage Restraint Act, 1929 ('the Act 1929'),the cognizance of any offence under the Act 1929 had been made subject to a complaint by the union council concerned---Obligatory for a union council to place a formal complaint against the persons violating the provisions of the Act 1929 before the Family Court exercising the powers of a Judicial Magistrate of the first class enabling such Court to conduct the trial of the offender under the Act 1929, in accordance with the provisions of Family Courts Act, 1964---High Court directed the respondent (Chairman Union Council) to proceed against the respondents---Constitutional petition was allowed, in circumstances.

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

----Ss. 2(a), 9 & 10---Family Courts Act (XXXV of 1964), S. 20---Child marriage---Offenders---Scope---Held, that Child Marriage Restraint Act, 1929 ('the Act 1929') categorized three kinds of persons as offenders; firstly, a male above eighteen years of age who contracted child marriage; secondly, person who performed, conducted or directed any child marriage; and thirdly, where a minor contracted a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who did any act to promote the marriage or permit it to be solemnized or negligently failed to prevent it from being solemnized---Constitutional petition was allowed.

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

----S. 2(a)---Family Courts Act (XXXV of 1964), S. 20---Child marriage---Trial---Age, determination of---Record (certificates issued by NADRA and concerned union council) revealed that age of the petitioner/girl was less than sixteen years of age at the relevant time---Entry in Nikah Nama regarding age of bride/petitioner was recorded as "almost sixteen (16) years"---High Court observed that it was common practice in the society that whenever somebody's age was mentioned in approximate figures, it tended to show that he /she was yet to achieve that age and it was always treated as less than the age mentioned therein.

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

----Ss. 2(a), 9 & 10---Family Courts Act (XXXV of 1964), S. 20---Child marriage---Preliminary inquiry---Union Council, jurisdiction of---Application of petitioners (minor girl and her mother) was dismissed by respondent (Chairman Union Council) after holding inquiry---Held, that holding of inquiry or probe was not within domain of union council(respondent)---Rather the same was within the domain of the Family Court, taking cognizance on the complain, to hold a preliminary inquiry under S.10 of Child Marriage Restraint Act, 1929---Any proceedings conducted by union council (respondent) in pursuance to application of the petitioners were coram non judice---High Court directed the respondent (Chairman Union Council) to proceed against the respondents---Constitutional petition was allowed, in circumstances.

Tahira Bibi v. Station House Officer and others PLD 2020 Lah. 811 and Mst. Alishba Bibi v. The State and 7 others PLD 2020 Isl. 28 ref.

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

----Ss. 2(a), 9 & 10---Family Courts Act (XXXV of 1964), S. 20---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Child marriage---Trial---Litigation between the parties was pending before the Family Court and an order was also passed in petitions filed under Ss.22-A & 22-B, Cr.P.C---Application of petitioners (minor girl and her mother) was dismissed by respondent (Chairman Union Council) after holding inquiry---Held, that the proceedings under Child Marriage Restraint Act, 1929 ('the Act 1929') were independent in nature---Pendency of any suit could not be pleaded as hurdle in the way of such proceedings---Civil and criminal proceedings could proceed side by side---Ex-officio Justice of Peace, in the present case, had dismissed petitions under Ss.22-A & 22-B, Cr.P.C on the ground that in terms of S.9 of the Act, 1929, there was a prohibition in taking cognizance of the offence under the Act, 1929, so said order could also not be an impediment in exercising constitutional petition---Even otherwise, no remedy was provided under the Act, 1929 against the order passed by the Chairman Union Council (respondent)---High Court directed the respondent (Chairman Union Council ) to proceed in terms of S.9 of the Act, 1929 against the private respondents---Constitutional petition was allowed, in circumstances.

Ch. Imran Hassan Ali for Petitioners.

Amjad Bashir Mirza for Respondent No.1.

Mirza Asif Abbas, Assistant Advocate General Punjab for Respondent No.2.

Muhammad Amir Butt for Respondents Nos. 3, 4 and 7.

Ex parte for Respondents Nos.5 and 6.

P L D 2021 Lahore 790

Before Muhammad Shan Gul, J

MUHAMMAD RAZZAQ---Petitioner

Versus

SURAYYA BIBI and 6 others ---Respondents

Writ Petition No. 41097 of 2021, heard on 14th July, 2021.

(a) Administration of justice---

----Reasons to be given for decision---Scope---Judicial order has to contain reasons as to allow the reader to understand and comprehend the grounds/reasons prevailing with the Court in arriving at a conclusion---Any reasonable judicial discourse or exercise on the judicial side that attempts to identify and address an issue must contain reasons for reaching a conclusion---Reasons given for a decision or an order explain the justification or logic of such decision or order---Reasons give satisfaction to the person against whom a decision has been given about the decision not being arbitrary, whimsical and take the matter out of the realm of subjectivity---Reasons enable an affected party to gauge, consider or examine whether an appeal or any further challenge is in order---Requirement of giving reasons, therefore, operates as an important check on abuse of powers---Reasons enable a Court or tribunal to decide whether there are any legitimate grounds for it to interfere with the decision---Reasons can be said to be the heartbeat of every conclusion since these introduce clarity, regularity, reasonableness in a decision and a decision indeed becomes lifeless without such reasons.

Breen v. Amalgamated Engineering Union Limited (1971) 2 QB 175; Regina v. Secretary of State for the Home Department exp Doody (1994) 1 AC 531; Regina v. Civil Service Appeal Board, Ex parte Cunningham (1991) 4 All ER 310; Regina v. Higher Education Funding Council, ex parte Institute of Dental Surgery (1994) 1 All ER 651 and International Sporting Club's case (1982) QBD 304 rel.

(b) Administration of justice---

----"Speaking order"---Scope---Speaking order means an order that speaks for itself and an order can only speak through the reasons rendered in support thereof---In fact provision of reasons in support of an order or a decision is so well entrenched in modern day jurisprudence that it will not be wrong to label reasons as the un-conspicuous third pillar of natural justice, the other two being audi alteram partem and nemo judex in causa sua---Such is only when the decisions and orders reveal a rational nexus between the facts considered and the conclusions drawn that such opinions can be held to be just and reasonable and not otherwise---While no particular form of recording or provision of reasons is required, it suffices if the adjudicating authority records reasons which are proper, relevant, germane, intelligible and proportionate.

Siemens Engineering v. Union of India AIR 1976 SC 1785; S.N. Mukharjee's case AIR 1990 SC 1984 and Padfield's case 1968 AC 997 rel.

(c) Administration of justice---

----Reasons for decision---Scope---Provision of reasons in an order or a decision is an essential attribute thereof and the chain between conclusion and fact in a decision is broken if there are no reasons provided to support the conclusion.

Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 and Khurram Farooq v. Bank Al-Falah Limited and another 2018 CLD 1417 rel.

(d) Administration of justice---

----Reasons for decision---Scope---Term 'reasons' has not been defined in any statutory law but in common parlance or in terms of reasonable prudence, the presence of reasons is what confirms whether an order or a decision is reasonable and confirms to the requirement of reasonableness---In order to be reasonable there should be an umbilical link between the conclusions and the material on which such conclusions are based---Condition to give reasons introduce clarity and excludes arbitrariness---Reasoned order may be said to be an absolutely desirable condition associated with judicial dispensation---Reasons substitute subjectivity with objectivity and failure to give reasons amounts to denial of justice.

Smt. Swaran Lata Ghosh v. Harendra Kumar Banerjee and another AIR 1969 SC 1167 rel.

(e) Administration of justice---

----Reasons for decision---Scope---Rationale for providing reasons in an order is that the affected party can know why a decision has gone against him---Mysterious face of a sphinx is inconsistent with a judicial or quasi-judicial exercise---Right to reasons is an indispensable part of a sound judicial system and is indicative of application of mind by the decision maker.

(f) Constitution of Pakistan---

---Ars. 10-A, 14, 4 & 9---Right to fair trial---Inviolability of dignity of man---Right of individuals to be dealt in accordance with law, etcetera---Security of person---Reasons for decision---Scope---While Arts. 4, 9 & 10-A of the Constitution are enough to provide a foothold to the concept of provision of reasons in judicial, quasi-judicial and even administrative orders and decisions, Art. 14 of the Constitution, which speaks about the right to dignity, may also be compromised if reasons are not forthcoming in a decision or an order---Article 14 of the Constitution provides for protection of dignity and in case an order or a decision is passed without reasons then the said Article may also be invoked to attack such an order or a decision on the basis that the order or decision so passed treats and addresses a living person as an object or a non-living thing---Therefore, and arguably, the right to reasons may also be premised as a concomitant right of the right to dignity---Such is indeed arbitrary and condescending to have a persons' status redefined without an adequate explanation of reasons for such change.

(g) Administration of justice---

----Reasons for decision---Scope---Reasons have a direct and rational nexus with procedural fairness---Certain factors militate against the giving of reasons in that it can place an undue burden on the decision maker, demand the articulation of inexpressible value judgments and offer an invitation to the litigious to comb reasons for grounds of challenge---Jurists have acknowledged and admitted that modern day jurisprudence is geared towards openness and that there is a perceptible and conspicuous trend towards greater transparency in decision making---Giving of reasons is widely regarded as one of the cardinal principles of good administration in that it encourages a careful examination of relevant issues, the elimination of extraneous considerations and consistency in decision making---Likewise, the giving of reasons may protect the decision maker from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken---Justice will not be done if it is not apparent to the parties why one has won and the other has lost---Fairness surely requires that the losing party should be left in no doubt why it has lost---Reasoned decision is also necessary to enable the person prejudicially affected to know whether a ground of appeal or review is available to him---If those entitled to be heard have no right to know how a decision has been reached, the legally conferred opportunity of hearing may well go down as an empty ritual---Without reasons, it is extremely difficult to detect errors.

(h) Administration of justice---

----Reasons for decision---Scope---Number of advantages in the provision of reasons for decisions exist---Firstly, reasons can assist the Courts in performing their supervisory function---Substantive review based on relevancy, propriety of purpose or proportionality is much easier to apply if the agency's reasons are evident---Secondly, an obligation to provide reasons will often help to ensure that the decision has been thought through by the agency---Thirdly, the provision of reasons can help to ensure that other objectives of administrative law are not frustrated---If consultation rights are granted in certain areas, then a duty to furnish reasons make it more difficult for the decision maker merely to go through the motions of hearing interested parties without actually taking their views into account---Finally, it is arbitrary to have one's status redefined without an adequate explanation of the reasons for the action---Provision of reasons can, by way of contrast, increase public confidence in the administrative process and enhance its legitimacy---Duty to provide reasons can, therefore, help to attain both the instrumental and non-instrumental objectives that underlie process rights.

Book on Administrative Law 7th Edition by Paul Craig fol.

Zulfiqar A. Sheikh for Petitioner.

A.D. Bhatti and Sher Hassan, Research Officer for Respondents.

P L D 2021 Lahore 802

Before Ali Baqar Najafi, J

Miss SHAKEELA RANA ADVOCATE---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No. 59314 of 2017, decided on 29th June, 2021.

Penal Code (XLV of 1860)---

----S. 123-B---Constitution of Pakistan, Art. 199---Constitutional petition---National Flag Protocols---Defilement of national flag---Petitioner assailed printing national flag in different colours with different shapes, portraits and cartoon etc.---Validity---National Flag Protocols prescribe officially that it must not touch the ground, shoes or feet or anything unclean and must not be flown in darkness and must not be marked with anything (including words, numerals or images)---National flag when raised or lowered must be saluted by all in uniform and the others must stand attention---National flag must not fly or be displayed upside down or with a crescent and star facing left and it must not be displayed where it is likely to get dirty---National flag must not be set on fire or trampled upon nor it can be buried or lowered in grave---Section 123-B, P.P.C. defines defilement of national flag an offence punishable with imprisonment for three years---High Court declared that printing of flags in different colours, on distorted shaped portraits, in ugly cartoons, its disgraceful imprint on clothes undermining national dignity were considered defilement---Constitutional petition was disposed of accordingly.

Ms. Sidra Sehar, Vice Counsel for Petitioner.

Malik Asif Ahmed Nissoana, D.A.G. for Respondents.

P L D 2021 Lahore 805

Before Sohail Nasir, J

Mst. SHAHIDA CHOUDHARY---Petitioner

Versus

REGIONAL POLICE OFFICER, RAWALPINDI and 6 others---Respondents

Writ Petition No. 1984 of 2021, heard on 2nd July, 2021.

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

----Ss.22-A, 22-B, 174 & 176---Constitution of Pakistan, Art.199---Constitutional petition---Fake police encounter---Remedy---Judicial inquiry---Second FIR---Scope---Application under Ss.22-A & 22-B, Cr.P.C. seeking registration of FIR on the allegation that her husband and brother were murdered by police during custody in fake police encounters---Police officials contended that matter was judicially inquired by a Magistrate appointed under Ss.174 & 176, Cr.P.C. by Sessions Judge---Ex-Officio Justice of Peace dismissed the application filed by petitioner---Validity---If petitioner claimed the encounters as fake and she had evidence in such regard, that should have been investigated when in both the encounters the only story on the surface was by police officers---Story narrated by petitioner did not appear to be true so she was not entitled for any relief and application under Ss.22-A & 22-B, Cr.P.C. was rightly dismissed---Petitioner had a legitimate right to raise a voice alleging fake encounters and it must have been investigated---High Court directed the authorities to record version of petitioner in Roznamcha (Daily Diary) of police station concerned so that the same would form part of investigation of FIRs already registered and would be investigated on merits---Practice on the part of police officers to ask for judicial inquiry in the matters (in particular police encounter), other than determination of cause of death, amounted to misuse of their powers---Sessions Judge before entrustment of such application to a Magistrate was under obligation to examine its contents so as to find out that what had been asked, was permissible under law and was the request made within the parameters of S.176, Cr.P.C. and if not it would have been turned down----Request made by police authorities to Sessions Judge for probing into the facts of occurrence, entertaining such application by Sessions Judge and its entrustment to Magistrate were illegal and without lawful authority---Constitutional petition was dismissed accordingly.

Mustafa IMPEX Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 and Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

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

----Ss. 174 & 176---Inquest/inquiry---Object, purpose and scope---Purpose of an inquest/inquiry by a Magistrate is to gather evidence that may be used by police in exploration of a violent or suspicious death and subsequent prosecution of a person if death ensued from a criminal act---Inquest is not a trial but criminal proceedings of a preliminary investigatory nature---While holding an inquest/inquiry under S.174 or 176, Cr.P.C. a Magistrate is confined to find out cause of death only if it is unnatural like homicidal or accidental or suicidal---Magistrate cannot declare that who is responsible for the death and is under no jurisdiction to proceed for fact finding.

Khuda Bakhsh v. Province of Punjab and another PLD 1957 W.P (Lahore) 662; Shera v. The State and 3 others 1972 PCr.LJ 626; Khizar Hayat and others v. District Magistrate and others PLD 1995 Lah. 433; Mumtaz Hussain v. Deputy Commissioner Faisalabad and 7 others PLD 2002 Lah. 78; Haji Abdul Hameed v. Raz Muhammad and another PLD 2014 Bal. 50; Muhammad Yaseen v. Additional Sessions Judge and 3 others 2019 PCr.LJ 219; https://en.wikipedia.org/wiki/ Inquests_in_England_and_Wales# Scope_of_inquest and https://amity. edu/UserFiles/aibs/c7a42018_Amity_International_Journal_of_Juridical_Scie_007.pdf rel.

Malik Waheed Anjum for Petitioner.

Mujeeb Ur Rehman Kiani, Additional Advocate General for Respondents Nos. 1, 3 to 7.

Tasawwur Iqbal, S.P., Ejaz Hussain, D.S.P., Ahsan Kiani S.I./S.H.O., Abid Munir, S.I./S.H.O., Hassan Askari, S.I. and Habib, S.I./S.H.O. in person.

P L D 2021 Lahore 823

Before Muhammad Qasim Khan, C.J.

SHAHZANA KAZMI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Islamabad and 4 others---Respondents

Writ Petition No. 59484 of 2020, heard on 25th May, 2021.

Constitution of Pakistan---

----Arts. 4, 9, 14, 25 & 199---Notifications U.O. No.8/5/2017-TK, dated 18-12-2018 &U.O. No.8/2/2020-TK, dated 26-10-2020 issued by Cabinet Division, Government of Pakistan---Constitutional petition---Tosha Khana articles---Auction procedure---Right to life---Petitioner assailed Notifications U.O. No.8/5/2017-TK, dated 18-12-2018 and U.O. No.8/2/2020-TK, dated 26-10-2020 issued by Cabinet Division, Government of Pakistan which changed criteria for auction of different articles available in Tosha Khana ---Validity---Inalienable right of every citizen to be treated in accordance with law and no action detrimental to his life, liberty, reputation or property can be taken except as per law---Auction notice/advertisement in question infringed fundamental rights of petitioner---Courts are custodian of fundamental rights of citizens and protectors of civil liberties---Constitution makes it imperative upon the Court to pass orders and issue directions in case of breach---Basic human rights of life, liberty and enjoyment of one's property has been recognized nationally as well as internationally---Word 'life' in the Constitution has not been used in a limited manner---Right to life under Art. 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy legally and Constitutionally with dignity---High Court declared notifications U.O. No.8/5/2017-TK, dated 18-12-2018 and U.O. No.8/2/2020-TK, dated 26-10-2020 both issued by Cabinet Division, Government of Pakistan, ultra vires of the Constitution and were set aside as the same were against Arts. 4, 9, 14 & 25 of the Constitution---High Court directed Federal Government to formulate new policy or lay down an enactment to regulate auction proceedings for the articles of Tosha Khana---High Court further directed Federal Government to ensure that new policy or enactment would be within the parameters of law and Constitution---Constitutional petition was allowed accordingly.

Naimatullah Khan Advocate v. Federation of Pakistan 2020 SCMR 513; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Mustafa Impex's case PLD 2016 SC 808 and Haji T. M. Hassan Rawther v. Kerala Financial Corporation AIR 1988 SC 157 ref.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 rel.

Adnan Ahmed Paracha, Zahid Ghaffar, Malik Eisa Usman Qazi and Asif Mehmood Khan for Petitioner.

Asad Ali Bajwa, Deputy Attorney General for the State.

P L D 2021 Lahore 831

Before Raja Shahid Mahmood Abbasi and Sohail Nasir, JJ

MUHAMMAD SADIQ RAJA---Appellant

Versus

The STATE and another--Respondents

Criminal Appeal No. 1809-E of 2010, heard on 28th June, 2021.

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

----S.31-A---"Absconding" and "avoiding process of law"---Distinction---Procedure to be adopted---Difference exists between non-appearance by avoiding process of law and absconding---Absconding under National Accountability Ordinance, 1999, attracts penal consequences---Prosecution must prove that warrants was issued and serious effort was made for execution of warrants---Statement of process server has to be recorded by Court.

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

----Ss. 9(a)(v), 14(c) & 31-A---Acquiring assets beyond known sources of income and avoiding process of Court---Appreciation of evidence---Benami holdings---Absconder---Proof---Ex-Pakistan leave---Effect---Defence evidence---Accused was holder of public office who was alleged to have acquired assets beyond his known sources of income and was also alleged to have absconded to avoid process of Court---Trial Court convicted accused and sentenced him to imprisonment along with fine and forfeiture of properties---Validity---Prosecution did not produce the officer to whom any proclamation was entrusted---Absconding of accused was not proved by prosecution and at the most accused could be said to have long disappearance on his part---Such disappearance was not unlawful as the accused was abroad pursuant to approval of Ex-Pakistan leave for three years by competent authority---If brothers-in-law and mother-in-law of accused were Benamidar of accused then why their other properties were not forfeited---Version of accused throughout was that his two brothers-in-law were abroad from where they used to send money to him---Accused remained abroad for three years and his saving could not be thrown out from consideration---Accused was under obligation to offer a reasonable explanation although not beyond doubt---Word 'reasonable' did not mean that accused had to prove his innocence by producing evidence of high quality or at the same yardstick which was for prosecution, it simply meant 'something that was logical and exhibited good sense'---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

Pir Mazhar ul Haq and others v. The State through Chief Ehtsab Commissioner Islamabad PLD 2005 SC 63; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Bashir Ahmad and another v. The State and others 2019 SCMR 1417 rel.

Sh. Zamir Hussain for Appellant.

Husnain Khursheed, Special Prosecutor, NAB for the State.

P L D 2021 Lahore 843

Before Abid Hussain Chattha, J

MANZOOR ELAHI---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No. 12424 of 2019, decided on 19th July, 2021.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 2(xviii), 2(xxix), 4, 22, 23 & 24--Punjab Healthcare Commission Regulations for Banning Quackery, 2016, Regln. 6---Application before the Punjab Health Care Commission for de-sealing a Clinic---Allegation against petitioner (deceased) that during the visit/inspection by the Manager Enforcement, the Petitioner was found practicing allopathy; that he had failed to show his qualification/registration to practice allopathy; that he was unable to produce registration/license issued by the Commission to establish/operate/run the Clinic; and the confiscated medical equipment proved the Petitioner a Quack---Petitioner was declared as quack and fine of Rs.330,000/- was imposed---Appellate Court dismissed appeal---Validity---Petitioner was owner of the (sealed) Property which was rented by the Doctor---Petitioner was employed by the Doctor as a Dispenser---Said doctor was not proceeded against who was simply separated from the proceedings and the proceedings were focused on the Petitioner to declare him as a Quack---Said Doctor was not summoned/examined by the Punjab Health Care Commission---Witness of the report was never summoned/examined---Manager Enforcement of the said Commission who visited and prepared the report was never summoned/examined/allowed to be cross examined---Affidavits obtained from the Petitioner with respect to de-sealing of the Property was treated as admission---All Inferences were drawn from the report without reference to the surrounding facts/circumstances of the case---Recovery of medical equipment/ machines were required to be verified if the same belonged to/being used by the Doctor or the Petitioner---Said Doctor had applied for registration of the Clinic (Healthcare Service Provider) mentioning the Petitioner as a Dispenser in Appendix B prior to the date of alleged inspection---Statement of the patient allegedly treated by Petitioner was not obtained--- Commission solely relied upon inspection report which was not appealing to the judicial conscience of High Court---Petitioner never claimed to be doctor/in charge of the Clinic---No inspection Team was appointed---Admittedly the inspection had been undertaken by a single functionary of the Commission which in itself was illegal in terms of S. 22(1) read with S.2(xviii) of the Act---Confiscation/seizure of medical equipment by the Manager Enforcement was in blatant violation of S.24 of the Act, 2010---Power to impose fine was granted to the Commission under various provisions of the Act, 2010 Commission did not specify as to which provision of the Act/Regulations was invoked for imposition of alleged fine of Rs.330,000/---Inspection of the Clinic was not sanctioned/conducted in accordance with the express provisions of the Act, 2010---Provisions of the Act, 2010 should always override to anything inconsistent in the Punjab Healthcare Commission Regulations for Banning Quackery, 2016---Constitutional petition was allowed, property was de-sealed and fine was ordered to be refunded.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 4(12)---Qanun-e-Shahadat (10 of 1984), Art. 37---Affidavit containing admission---Evidentiary value---Scope---Affidavits obtained against the promise of de-sealing the Property or against the threat of refusal to de-seal the Property, were like confessions of an accused person before the police and therefore, cannot be accorded any evidentiary value.

(c) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 2(xviii) & 22--- Punjab Healthcare Commission Regulations for Banning Quackery, 2016, Regln. 5---Term 'inspection team'---Delegated legislation---Scope---Under Regulation No. 5 officers of executive authorities/law enforcement agency, or any other person authorized by the Commission were empowered to visit the premises to check/verify the valid certificate of registration/licence for rendering healthcare service; to seize all or any relevant evidence; to seal such premises---Such powers were inconsistent with S.22 of Punjab Healthcare Commission Act, 2010 which required the Punjab Healthcare Commission to appoint an inspection team for inspections under the said Act/Rules/Regulations---Regulation No. 5 was in conflict with the definition of 'inspection team' as stipulated under S.2(xviii) of the Act, 2010.

(d) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 4(g)---Punjab Healthcare Commission Regulations for Banning Quackery, 2016, Regln. 7---Delegated legislation---Imposing fine, power of---Inconsistency---Regulation No. 7(3) of the Punjab Healthcare Commission Regulations for Banning Quackery, 2016 had empowered the Committee to impose fine upon person found to be practicing quackery, which was against the express provisions of the Punjab Healthcare Commission Act, 2010---Under S.4(g) of the Act, 2010 such power was the sole prerogative of the Punjab Health Care Commission and the same could not have been delegated to a Committee nominated by the said Commission under Regln. 2(c).

(e) Punjab Healthcare Commission Act (XVI of 2010)---

----S. 30---Jurisdiction---Judicial security---Court had duty to see whether the summary proceedings under the Punjab Health Care Commission Act, 2010 withstand the test of judicial scrutiny on the touchstone of mandatory provisions of law embodied in the said Act---Discretionary powers of the Commission under the Act, 2010 must be examined to see if the same were exercised with due care/reasonably/ proportionately and in consonance with law.

(f) Punjab Healthcare Commission Act (XVI of 2010)---

---Preamble---Constitution of Pakistan, Arts. 9 & 10A---Quackery was a menace and a challenge for the society to eradicate---Punjab Health Care Commission Act, 2010 was a beneficial legislation promulgated for the reformation/redressal of issues arising in medical sphere---Punjab Health Care Commission was established and given administrative/executive authorities----Said Commission was, however, bound by the provisions of the Act, 2010---Existence of a noble/humanitarian cause had not conferred a license to the said Commission to travel beyond the express provisions of the Act, 2010.

Muhammad Kashif Saeed Bhatti for Petitioner.

Gohar Nawaz Sindhu, A.A.G. along with Saqib Naveed Bhatti, Assistant Director Legal for Respondents.

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Before Syed Arshad Ali and Wiqar Ahmed, JJ

MUHTADDIN and 3 others---Petitioners

Versus

SAEED ALI alias SYED ZALI and 3 others---Respondents

Writ Petition No. 868-M of 2019, decided on 2nd December, 2019.

Constitution of Pakistan---

----Arts. 15 & 199---Freedom of movement---Jirga decision---Implementation---Petitioners sought implementing decision of Jirga whereby respondent was declared as 'Kushinda' and was not allowed to enter his native village---Validity---Respondent had fundamental right to remain in, enter and move freely throughout Pakistan including his native village---Customs like declaring somebody as 'Kushinda' or expelling him from any of the territories was always discouraged by superior Courts of the land---Such practice or custom even if existed in the past could not be allowed to operate in future in any manner, particularly when it operated to abridge any of the fundamental rights of citizens---Petitioners were seeking to invoke Constitutional jurisdiction of High Court for ordering relevant authorities to implement a decision of Jirga which would have the effect of depriving respondent from exercise of his fundamental right guaranteed under Art. 15 of the Constitution---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Abdul Bari and 2 others v. Director, Livestock, Dairy Development FATA and 2 others PLD 2014 Pesh. 132; 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; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 and Government of Pakistan through Secretary Ministry of Interior and Narcotics Control (Interior Division) Board, Islamabad v. Muhammad Yasin, Sub-Inspector No. 525-L and others 1997 PLC (C.S.) 606 rel.

Saif-ul-Malook Saif for Petitioners.

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Before Muhammad Naeem Anwar, J

RASOOL KHAN and 5 others---Petitioners

Versus

FAZAL WADOOD and 15 others---Respondents

Civil Revision No. 42-P of 2011, decided on 2nd March, 2020.

Civil Procedure Code (V of 1908)---

----O. XXIII, Rr. 1 & 2---Limitation Act (IX of 1908), Art. 120---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration---Withdrawal of---Fresh suit---Limitation---Commencement of---Estoppel, principle of---Applicability---Earlier suit filed on behalf of predecessor-in-interest of plaintiffs was dismissed as withdrawn---Suit filed on behalf of plaintiffs was dismissed concurrently---Validity---When earlier suit had been dismissed as withdrawn then present suit was to be considered in accordance with O. XXIII, R. 2 of C.P.C.---Limitation for the purpose of a fresh suit was to be considered from the knowledge as alleged in the earlier suit---Predecessor-in-interest of plaintiffs were aware with regard to impugned mutations---Plaintiffs were not party in the earlier suit but their predecessor-in-interest had filed the said suit---Present plaintiffs were estopped by their conduct to file the present suit, in circumstances---No one could transfer the better title of his own---Plaintiffs had failed to point out any mis-reading or non-reading of evidence in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Bahadar Alam v. Abdul Razaq 2001 YLR 331; Abdul Karim Butt v. Government of Balochistan and others 1989 CLC 1625 and Malik Zahir v. Muhammad Salim 2010 CLC 642 rel.

Gul Sadbar Khan for Petitioners.

Fazal-e-Wahid for Respondents.

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Before Waqar Ahmad Seth, C.J. and Muhammad Naeem Anwar, J

Dr. MAZHAR UL HAQ KAKAKHEL---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 4 others---Respondents

Writ Petition No. 1688-P of 2016, decided on 3rd June, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 25(a)---Qanun-e-Shahadat (10 of 1984), Art.114---Constitution of Pakistan, Art. 199---Constitutional petition---Voluntary Return---Coercion and fraud---Principle of estoppel---Applicability---Factual controversy---Petitioner opted for Voluntary Return before National Accountability Bureau (NAB) and returned all illegal benefits alleged to have acquired by him---Two years later, petitioner sought recovery of amount deposited by him with NAB on the plea of misrepresentation, coercion and fraud committed by NAB---Validity---Admission of petitioner pertaining to Voluntary Return application and his affidavit created a barrier for him under the principle of estoppel---Questions of misrepresentation, coercion and fraud required complete trial which could not be resolved in Constitutional jurisdiction---High Court declined to go into disputed questions of facts---Constitutional petition was dismissed, in circumstances.

Dr. Muhammad Javed Shafi v. Sayed Rashid Arshad and others PLD 2015 SC 212 and Fida Hussain v. Mst. Saiqa 2011 SCMR 1990 rel.

Barrister Syed Mudassar Ameer and Barrister M. Yaseen Yaseen Raza Khan for Petitioner.

Syed Azeem Dad and Hashmat Jahangir, ADPGs for Respondents.

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Before Ahmad Ali, J

ABDUL QADEER---Petitioner

Versus

Mst. NAZIMA SHAHEEN and 4 others---Respondents

Writ Petition No. 441-A of 2020, decided on 16th March, 2020.

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

----S. 52---Civil Procedure Code (V of 1908), S.12(2)---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Compromise decree, setting aside of---Fraud and misrepresentation---General attorney of defendant during pendency of suit entered into an agreement with the petitioner to sell---Defendant entered into compromise with the plaintiff and consent decree was passed---Lis pendens, principle of---Applicability---Contention of petitioner was that consent decree had been obtained by suppressing material facts from the Court---Petition for setting aside of consent decree was dismissed concurrently---Defendant being owner of suit property had entered into an agreement to sell with the plaintiff and had settled the matter---Defendant had never entered into any transaction or agreement with the present petitioner---Alleged agreement to sell with the petitioner had been executed on behalf of attorney of defendant during pendency of suit when restraining order with regard to further alienation of suit property was in the field---No fraud or misrepresentation had been committed by the defendant with the petitioner or with the Court---Petitioner had purchased suit property during pendency of suit and no fraud or misrepresentation was visible from the material placed on file on the part of defendant---Transaction which had taken place during pendency of suit had no protection as it was hit by the principle of 'lis pendens'---Findings recorded by the Courts below were based on proper appreciation of facts and law applicable thereto---If any fraud or misrepresentation had been committed on the part of general attorney of defendant then same could be remedied through suit for damages and recovery of amount paid by the petitioner---Constitutional petition was dismissed, in circumstances.

Muhammad Ashraf Butt's case PLD 2009 SC 905; 1992 CLC 1564; 1999 YLR 797; 2014 CLC 1172 and 2016 CLC (Note) 102 rel.

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

----S. 52---Transaction during pendency of a suit---Lis pendens, principle of---Applicability---Transaction which had taken place during pendency of suit had no protection as it was hit by the principle of 'lis pendens'.

Syed Mehboob Shah for Petitioner.

Haq Nawaz Khan for Respondents.

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Before Qaiser Rashid Khan and Lal Jan Khattak, JJ

BAHRAMAND KHAN (NAZIM) and another---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Senior Member Board of Revenue and 9 others---Respondents

Writ Petition No. 4636-P of 2019, decided on 15th October, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 6---Constitution of Pakistan, Art. 199---Districts to be divided into Sub-Divisions---Scope---Petitioners sought declaration to the effect that notification whereby the concerned village council was included in the newly created Tehsil as illegal---Validity---Residents of Village Council might not be happy over the inclusion of their area in the newly established Tehsil but according to S.6 of the Khyber Pakhtunkhwa Land Revenue Act, 1967, each district could be divided into such Tehsils or Sub-Tehsils with such limits and such areas as the Government might by notification specify---High Court, in exercise of its constitutional jurisdiction could not determine whether the newly created Tehsil would bring convenience to the people of the concerned village council or otherwise---Creation of new Districts and Tehsils, detachment of some area from one Tehsil and its inclusion into another were purely administrative and policy decisions of the Government, legality or otherwise of which could not be questioned before the Court in a Constitutional petition which had a very limited scope--- Constitutional petition was dismissed.

Muhammad Irshad Mohmand for Petitioners.

Atif Ali Khan, Addl. A.G. along with Hussain Akbar, Revenue and Estate Assistant, D.C. Office Mardan for Respondents.

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Before Wiqar Ahmad, J

FARJAN KHAN---Appellant

Versus

KAMRAN KHAN and others---Respondents

R.F.A. No. 216-P of 2019, decided on 5th March, 2020.

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

----O. XV-A [as inserted in Khyber Pakhtunkhwa]---Summary judgment---Scope---Disposal of cases through summary judgments was earlier limited to only those cases where defendant admitted claim of plaintiff as a whole and where rendering of judgment for settling issues on legal claim and application of law to facts of the case did not require any deliberation, findings and factual determinations---Introduction of such new mechanism was made after realization that protracted litigation has been costing people heavy in terms of money and time, beside bringing the system civil adjudication under stark criticism for delays which is normally caused in disposal of cases.

Hryniak v. Mauldin rel.

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

----Ss. 8, 12, 39 & 42---Civil Procedure Code (V of 1908), S.35-A & O.XV-A--- Suit for recovery of possession of immovable property, specific performance of agreement to sell, cancellation of document, declaration and recovery of damages---Summary judgment---Unjust enrichment, concept of---Applicability---Special damages---Quantum--- Parties entered into agreement to sell of immovable properties for which plaintiff/appellant had paid more than 50% of the entire consideration amount---Plaintiff/appellant filed suit which was disposed with vide summary judgment wherein amount paid in advance was allowed to be retained by defendants/respondents as confiscation of earnest money---Validity---Amount more than 50% of entire sale consideration could not be considered as earnest money only and was not liable to confiscation, in case of non-performance of contract---Holding such amount not returnable entirely would amount to unjust enrichment of defendants/respondents at the cost of plaintiff/appellant---Concept of unjust enrichment was a common law concept based on equity, justice and good conscience---Courts had always been taking restitutionary measures whether or not there had been privity of contract or requisite clauses of contract to such effect, when they found phenomena of unjust enrichment---Trial Court had rightly found plaintiff/appellant at some fault but the fault was not of a nature which could have burdened him with such a heavy penalty of confiscation of entire amount rendered in part performance of agreement---Specific damages caused as a result of frustration of agreement could not be measured with precision---High Court declined to remand the matter for recording of evidence as the same would neither serve interest of parties to the lis nor would it serve interest of justice---Both parties would remain deprived of their substantial investment and remained stuck in litigation and would not be able to utilize their respective properties, resulting into material loss to both of them---High Court reduced confiscated amount to 10% of the total amount paid as the same was enough compensation for general damages that could have been caused to defendants/respondents because of cancellation of contract---High Court remolded relief granted by Trial Court by reducing amount of compensation---Appeal was allowed accordingly.

Mosses v. Macferlan (1558-1774) All E.R. 581 (KB.); Kwei Tek Chao v. British Traders and Shippers Limited 1954 2 QB 459; Mirza v. Pateel 2016 SCMR 1637; 32nd Edition of Chitty on Contracts volume 1; 6th Edition of Polllock and Mulla's Contract Act at page No. 384; Messrs American Orient Lines Inc. and another v. Messrs New Jubilee Insurance Co. Ltd. and another 1990 MLD 2002; Rabien Sea Enterprises Limited v. Abid Amin Bhatti PLD 2013 Sindh 290; Province of West Pakistan v. Messrs Mistri Patel & Co. and another PLD 1969 SC 80; Messrs Khanzada Muhammad Abdul Haq Khan Khattak & Co. v. WAPDA through Chairman WAPDA and another 1991 SCMR 1436 and Space Telecom Private Limited Lahore v. Pakistan Telecommunication Authority Islamabad through Chairman 2019 SCMR 101 ref.

Syed Haider Imam Rizvi for Appellant.

Mian Naeem-ud-Din and Majid Ali Khan for Respondents.

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Before Abdul Shakoor and Sahibzada Asadullah, JJ

ASIF RAZA MASIH---Petitioner

Versus

Mst. SOFIA alias PINKY and others---Respondents

Writ Petition No. 1075-D with C.M. No.1194-D of 2019, decided on 14th September, 2020.

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

----S.5---Muslim Family Laws Ordinance (VIII of 1961), Ss.7, 8, 9 & 10---Family Court, jurisdiction of---Condition 'subject to provisions of Muslim Family Laws Ordinance, 1961'---Applicability---Said condition implies only that where there is an inconsistency between Muslim Family Laws Ordinance, 1961 and Family Courts Act, 1964, provisions of the former prevail and have to be given effect to in their pristine form and no more---Provisions of other laws are not affected from the condition.

Ahmed v. Mehr Khan PLD 1982 FSC 48 ref.

(b) Divorce Act (IV of 1869)---

----Ss.10 & 22---Family Courts Act (XXXV of 1964), S. 5---Christian divorce or separation---Reasons, non-mentioning of---Parties were Christians and Family Court dissolved the marriage merely on the statement of wife---Validity---Bond of marriage between Christian husband and wife was of permanent nature---Wife had to prove her case on concrete facts after leading reliable and cogent evidence to facts on which claim of dissolution of marriage was based, only then Court could grant decree for a judicial separation within the meaning of S.22 of Divorce Act, 1869 or to dissolve marriage under S.10 of Divorce Act, 1869---Mere assertion of wife that she was not ready to live with husband was not sufficient for dissolving marriage between petitioner and respondent under Christian law---High Court set aside order passed by Family Court and remanded the mater to Family Court for decision afresh after framing of issues and recording of evidence---Constitutional petition was allowed in circumstances.

Muhammad Taqqi Jan Sappal for Petitioner.

Muhammad Abdullah Baloch for Respondents.

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Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

ZARAK ARIF SHAH, ADVOCATE HIGH COURT, PESHAWAR---Petitioner

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Government of Khyber Pakhtunkhwa , Peshawar and 3 others---Respondents

Writ Petition No. 1584-P of 2020, decided on 6th May, 2020.

(a) Constitution of Pakistan---

----Arts. 2-A, 175 (3), 203 & 264---General Clauses Act (X of 1897), S.6---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 22 (4) [as amended by Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance (II of 2020)]---Control of Narcotic Substances Act (XXV of 1997), Ss.45 & 46---Subordinate judiciary---Control and supervision---Independence of Judiciary---Implied repeal---Defective doctrine---Subsequent consultation with Chief Justice---Effect---Petitioner was aggrieved of amendment inserted on the basis of Ordinance promulgated by Provincial Governor abridging powers of Chief Justice designating Special Courts without consultation with Chief Justice of Peshawar High Court---Validity---Matters of appointment, promotion, posting, transfer and conferment of powers including terms and conditions of service of members of Subordinate Judiciary, were controlled and governed by High Court of the Province---Any legislative enactment in the garb of power of promulgating an Ordinance, for grabbing Constitutionally assigned mandate of Judiciary was not only violative of Arts. 175(3) & 203 of the Constitution but also offended against Constitutional scheme of independence of Judiciary enumerated in Art. 175 of the Constitution and Objectives Resolution---Inappropriate and unwarranted interference with powers vested in Chief Justice and High Court by any Executive Authority, could create an imbalance in Constitutionally empowered organs of the State which resulted into a state of great confusion and turmoil---Division of functions of three main Organs of State were recognized and emphasized by the Constitution---Later statute repealed the earlier statute and by insertion of S.22 in Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, i.e. specific provision for establishment of Court in Khyber Pakhtunkhwa, provisions of Ss.45 & 46 of Control of Narcotic Substances Act, 1997, had lost their efficacy and applicability in Khyber Pakhtunkhwa and was deemed as impliedly repealed---Any amendment abridging powers of Chief Justice and High Court and empowering the Executive Authority to confer power on a judicial Officer or designate a Court without consultation of Chief Justice, not only amounted to intrusion and encroachment on the powers vested in Chief Justice and High Court but also was violative of Arts. 2-A, 175(3) & 203 of the Constitution---Powers conferred upon Sessions Judges, Additional Sessions Judges and Judicial Magistrates 1st Class as Special Court under Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance, 2020, without consultation and consent of Chief Justice of the High Court was in violation of S.22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and Arts. 2A, 175(3) & 203 of the Constitution---Such act of government was void ab initio and holder of the posts of Special Judges as Special Court was to be treated as having exercised powers and functions in a defective capacity---High Court protected all acts done and orders and judgments passed by judges so appointed, including all proceedings under Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, under defective doctrine, as Provincial Government had rectified its mistake through a subsequent notification and had consulted Chief Justice as required under S. 22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Constitutional petition was allowed accordingly.

Sharif Faridi and 03 others v. The Federation of Pakistan PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Al Jehad Trust's case PLD 1996 SC 324; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Shazia Munawar v. Punjab Public Service Commission through Secretary Lahore PLD 2010 Lah. 160; Agha Inam ur Rehman Khan v. The Registrar Lahore High Court Lahore 2013 SCMR 109; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Mian Khan's case PLD 1993 SC 187; Government of Punjab through Chief Secretary v. Syed Riaz Alizaidi 2016 PLC (C.S.) 1074; Yousaf Ayub Khan v. Government through Chief Secretary, Peshawar and 02 others PLD 2016 Pesh. 57; Mehram Ali's case PLD 1998 SC 1445 and Malik Asad's case PLD 1998 SC 161 rel.

(b) Interpretation of statutes---

----"Repeal" and "amendment"---Distinction---"Repeal" of law is different from "amendment"---"Amendment" of law involves making a change in law that already exist, leaving a portion of the original still standing, whereas repeal is an amendment or abrogation of previously existing statute expressly or impliedly.

(c) Rules of Business, 1973---

----R. 3(3) & Sched.-II, Sr.21(3)---Drafting of statute---Duties and responsibilities of Draftsman---Legislative drafter is under a laden duty to ensure that contents of legislative drafts are not inconsistent or ultra vires the provisions of the Constitution and proposed enactment is within the competence of legislative authority---Such a drafter must be well conversant with the legislative list of the Constitution, the Federal and Provincial Codes, which contains all Federal and Provincial laws---At least, the drafter should know about the provisions of General Clauses Act, 1897, which is commonly known as Interpretation Act.

Ali Gohar Durrani for Petitioner.

Shumail Ahmad Butt, Advocate General, Khyber Pakhtunkhwa for Respondents.

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Before Lal Jan Khattak, Ishtiaq Ibrahim and Ijaz Anwar, JJ

GUL ZAMEEN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs, Peshawar and 3 others---Respondents

Writ Petition No. 477-A of 2018 and other connected Writ Petitions, decided on 7th May, 2020.

(a) Constitution of Pakistan---

----Art. 45---President's power to grant pardon---Executive function---Under Art. 45 of the Constitution, the President enjoyed unfettered powers to grant remissions in respect of offences---Clog stipulated in piece of subordinate legislation could not abridge said power of the President---When the Notification by itself had been categorized the availability of remission to a particular class of prisoners and withheld its application to another class then the Court could not add or omit to the said Notification unless the same was contrary to law and discriminatory---Intelligible differentia and considerable distinction between the two categories of convicted prisoners was available---President could exclude the applicability of remissions to those convicted prisoners who were involved in heinous crimes and they could not claim at par treatment with rest of the prisoners---Presidential remission under Art. 45 of the Constitution was not applicable to the prisoners who had been specifically excluded by the Notification granting remissions.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 and Haji Abdul Malik and others v. The State and others PLD 2006 SC 365 ref.

Nazar Hussain's case PLD 2010 SC 1021 rel.

(b) Prisons Rules, 1978---

----Chap. 8, Rr.201-A & 214-A---Grant of remission to prisoner---Scope---Remission being granted under the Prison Rules, 1978---Chap. 8 of Prisons Rules, 1978 catered for the remission system, wherein, Rr. 201-A & 214-A of the said Rules placed embargo to the grant of ordinary and special remissions to person convicted under the charge of espionage/anti-state activities---Said remission had been left to the discretion of the concerned Provincial Government.

(c) Interpretation of statutes---

----Punitive law---Principle---While interpreting the provision of punitive law, Court was required to strive in search of an interpretation, which preferred the liberty of a person instead of curtailing the same and that too unreasonably and unfairly unless the statutory law clearly directed otherwise---Law which curtailed the liberty of a person was to be construed very strictly---Even if two equal interpretations were possible then the one favourable to the accused and his liberty must be adopted and preferred upon the contrary one.

Muhammad Inam Khan Yousafzai for Petitioner.

Arshad Ahmad Khan, A.A.G. for Respondents.

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Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

KHAIR UD DIN---Petitioner

Versus

Mst. SABIHA and 5 others---Respondents

Writ Petition No. 847-M of 2019, decided on 22nd September, 2020.

(a) Constitution of Pakistan---

----Art. 199---Family Courts Act (XXXV of 1964), S. 5, Sched. & S.14---Evidence recorded by Family Court---Reappraisal by High Court under its constitutional jurisdiction---Scope---Proceedings under the constitutional jurisdiction of High Court were not a substitute for an appeal so as to reappraise the evidence recorded by the Family Court.

Muhammad Ashraf v. Mst. Salma Bibi 1987 MLD 2336; Muhammad Anwar v. Tahira Jabeen and 3 others 2003 CLC 878 and Muhammad Aslam v. Kausar Parveen and another 1987 CLC 256 ref.

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

----S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S. 11---Suit for dissolution of marriage---Application for restitution of conjugal rights by husband---Scope---Res-judicata, principle of---Applicability---Earlier suit for recovery of maintenance allowance filed by wife was decreed, however, prayer of the husband for restitution of conjugal rights had also been accepted vide the same judgment---Wife later filed a suit for dissolution of marriage which was decreed in her favour---Husband contended that when there was decree for restitution of conjugal rights existed in his favour, then subsequent suit of the wife for dissolution of marriage was not maintainable in terms of S.11 of the Civil Procedure Code, 1908---Held, that although S.17 of the Family Courts Act, 1964 provided that S. 11 of Civil Procedure Code, 1908 would apply to the family suits, but the Courts had not heard/decided the issue of dissolution of marriage in the earlier suit---Grant of a decree for restitution of conjugal rights could not preclude a wife from seeking dissolution of marriage thereafter---Family Court had rightly held that it was a recurring cause of action and so long as the wedlock subsisted, a suit could be brought for dissolution of marriage, unless such a relief was declined to a wife by a competent Court of law, after hearing a duly instituted suit on merit and when the situation remained unchanged---Principle of res judicata was not applicable in circumstances---Constitutional petition was dismissed.

Ghulam Muhammad v. Mst. Rashida Bibi and 2 others PLD 1983 Lah. 442 and Mst. Riaz Bibi v. Additional District Judge, Multan and others 1999 YLR 875 ref.

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

----S.5, Sched & S.17---Civil Procedure Code (V of 1908), S.11---Maintenance allowance of wife, quantum of---Res judicata, principle of---Scope---First suit for recovery of maintenance allowance of wife was decreed subject to restitution of conjugal rights of the husband---Subsequent suit filed by wife for dissolution of marriage was decreed with higher rate of maintenance allowance for the period of iddat---Held, that the changed situation had required re-determination for such relief as in the earlier suit, grant of maintenance allowance had been made conditional upon compliance of wife with the decree for restitution of conjugal rights, which compliance had become unlawful due to dissolution of marriage---Maintenance allowance granted in the earlier suit had been granted for unspecified period of time, while in the subsequent suit, maintenance allowance for wife had been restricted till passage of period of iddat, which modification had also become necessary in the circumstances of the case---Subsequent suit in changed circumstances could not be held to be barred by the principle of res-judicata , even in respect of grant of maintenance allowance to the wife---Earlier decree (for grant of maintenance allowance) in favour of the wife would be deemed to have been substituted by the subsequent decree in her favour for all intents and purposes (to the extent of recovery of her maintenance allowance)---Constitutional petition was dismissed.

Muhammad Ramzan alias Jan Muhammad v. Additional District Judge, Sahiwal and 4 others 2018 YLR 2653 and 2019 CLC 1261 ref.

(d) Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17---Suit for dissolution of marriage on ground of Khula---Return of dower---Scope---Four tolas of gold ornaments as dower was fixed between the spouses at the time of Nikah---In earlier suit filed by the wife for recovery of maintenance allowance, the Family Court held had that three (out of four) tolas of gold ornaments was tendered to the wife at the time of Rukhsati , which remained with her---Wife filed a subsequent suit for dissolution of marriage on basis of Khula, which was decreed---Petitioner/husband contended that Family Court should have, in the subsequent suit, also ordered return of three tolas gold ornaments, besides extinguishing his liability of one tola gold ornaments under the earlier decree---Held, that the entitlement of the wife regarding recovery of one tola gold ornaments (claimed as outstanding part of the dower fixed at the time of Nikah) stood vanished as a corollary to dissolution of marriage on the ground of Khula in the subsequent suit---Return of remaining three tolas gold ornaments , however, required a different treatment---Marriage between the spouses had remained effective for a period of 7/8 years, wherefrom three kids had also been born---Dissolution of marriage through Khula was not an inflexible rule that the dower, already paid, had to be returned to the husband---Justification for return of the already paid dower, in the present case, did not exist---In absence of such justification, Family Court was correct in its outcome, and non-discussion on the issue of return of dower would not render it liable to be reversed, under the constitutional jurisdiction of the High Court---No illegality or infirmity having been noticed in the impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Karim Ullah v. Shabana and 2 others PLD 2003 Pesh. 146 ref.

Aziz-ur-Rahman Swati for Petitioner.

Miss Mehnaz Naz for Respondent No.1.

P L D 2021 Peshawar 98

Before Muhammad Naeem Anwar, J

ISMAIL---Petitioner

Versus

Syed ZULFIQAR HUSSAIN SHAH and others---Respondents

Civil Revision No. 595-P of 2020, decided on 24th November, 2020.

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

----S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance of agreement to sell---Rejection of plaint---Scope---Petitioner assailed concurrent rejection of his plaint in a suit for specific performance of agreement to sell and partition---Respondent in the earlier round of litigation had sought ejectment of petitioner from the suit property and had obtained a decree in his favour---Petitioner's claim was that the respondent's brother had sold his share in the suit property to him---Trial Court had to determine as to whether the respondent was sole owner on the basis of tamleek nama or whether the respondent's brother had got any right in the shop, if so, whether he had transferred the same to the petitioner---If it was proved through evidence that both petitioner and respondent's brother with their collusion had tried to deprive the respondent from the fruit of decree, then provisions of Ss. 35 & 35-A, C.P.C. would be applied against them and for the frivolous litigation respondent would be compensated, but in no case, while considering the plea of respondent that petitioner had got no cause of action, his suit could be dismissed---Fate of both the deeds i.e. tamleek nama and iqrar nama would be decided after complete inquiry---High Court observed that the petitioner would surrender possession to the respondent either himself or through execution pending against him by order of the court--- Petitioner was under obligation to hand over the vacant possession of the suit property (decreed property in rent petition)---Mere institution of suit was not sufficient to withhold the execution proceedings---Revision petition was allowed, in circumstances.

Tahir Hussain and others v. Ilyas Ahmad and others 2014 SCMR 1210; Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546 and Barkat Masih v. Manzoor Ahmad (deceased) through legal heirs 2006 SCMR 1068 rel.

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

----O. VII, R. 11---Rejection of plaint---Scope---Incompetent, frivolous and time barred suits are liable to be buried from their inception and even in such circumstances it is duty of the court, without there being an application to invoke the provisions of O. VII, R.11, C.P.C., so that the other may not be dragged in such litigation and to save the precious time of the court.

Raja Ali Shah v. Messrs Essem Hotel Limited and others 2007 SCMR 741 rel.

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

----O. VII, R. 11---Rejection of plaint---Cause of action---Scope---Accrual of cause of action is something different from disclosure of cause of action, as non-accrual would result into dismissal of suit, but after recording of evidence and non-disclosure of cause of action would result in rejection of plaint.

Shaheen Nasir Khan v. Mst. Asmat Ara and 6 others PLD 2002 Kar. 408 rel.

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

---O. VII, Rr. 11, 13 & S. 11---Rejection of plaint---Rejection of plaint does not preclude presentation of fresh plaint---Scope---Res judicata---Scope---Rejection of plaint also provides an alternate remedy under O.VII, R.13, C.P.C. but dismissal of suit would operate as res judicata in the same matter, between the same parties, if cause of action remains one and the same.

A Hashim Khan for Petitioner.

Shahzad Faheem for Respondent No.1 along with respondent in person.

Nasir Khan Afridi and Raja Ijaz for Respondents Nos. 2 to 7 and 9.

P L D 2021 Peshawar 105

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

MUHAMMAD ISRAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1143-P of 2019, decided on 11th March, 2020.

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

----Arts. 2(e) & 164---Criminal Procedure Code (V of 1898), S. 353---Electronic Transactions Ordinance (LI of 2002), S. 2---Recording of evidence---Video-link---Scope---Courts are allowed to record evidence through video conferencing, but the witness while making statement on video link has to be kept under supervision of a Judicial or Executive Officer for the purpose of maintenance of court decorum and to supervise the conduct, demeanour and attitude of witness---Certainly, the person giving evidence on video link is to be governed by the same law as applicable to a witness physically appearing before the Trial Court for recording his/her testimony---In case of whatsApp call or any other independent mode of call, the witness may be considered present in the court, albeit without any strong supervision at the witness end, there will be always difficult and awkward situation for the Trial Court, particularly if witness commits contempt of court or perjures himself and it immediately notices that he has purges himself---Identification of witness and administering oath to the person to be examined on video link can be another state of inconvenience for the court and prosecution---To shun such contingencies, as a matter of prudence, the evidence of a person should be recorded in open court, if the witness is inside the country---Nevertheless, if a witness is unable to attend the Trial Court due to serious reasons, the prosecution is to submit an application at the earliest for examining of such witness through video link from the court of corresponding jurisdiction or Sessions Judge of the District or Tehsil where the witness resides or having temporary abode.

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

----Art. 164---Recording of statement through video link---Evidence recording through modern device---High Court formulated Protocol/ Guidelines for conducting proceedings and directed that such guidelines shall be observed by the Trial Courts of Khyber Pakhtunkhwa.

"The following protocol/guidelines shall be observed by the trial courts in the province of Khyber Pakhtunkhwa.

1. Guidelines for conducting proceeding between trial court and court where witness shall appear.

For the purpose of these guidelines, reference to the "trial court" shall mean, where the trial is pending and witness attendance required, whereas the "witness end" shall be the place/court, where witness appears for recording his statement via video link.

i. In appropriate cases, the trial court may direct or allow a witness to be examined on video link.

ii. At any time, on application of a party or on its own initiative, the trial court may make direction in open court or in chamber for recording any testimony of a witness intra province, inter province or oversees Pakistan.

iii. The direction of the court for recording evidence of witness on behest of parties be sought through a proper application at the earliest, showing reasonable ground for inability of the witness to personally appear before the trial court. Notice of such application be given to the other party or counsel on the same date of filing application and the trial court may discuss it with the party under notice. In case of consensus between the parties the trial court shall proceed further, however in case of contest of application, the trial judge after hearing the parties shall pass an appropriate order in writing, granting leave or otherwise.

iv. The proceedings by way of video conference shall be conducted as judicial proceedings and the same courtesies and protocol shall be observed at both end viz trial court and court where witness is appearing for making statement. All the relevant provision of procedural and penal Code including the provision of Qanun-e-Shahadat Order shall apply to the recording of evidence by video technology; however, these guidelines shall not be applicable to proceedings under section 164 of Cr.P.C.

1. There shall be coordinator at both sides i.e. trial court as well as at the witness end. The trial judge shall act as coordinator at trial court side while at the witness end, the coordinator may be any of the following officials.

a. Where the witness is to be examined intra province, the judicial officer of equal jurisdiction of the trial court or the Session Judge of District at witness end or any judicial officer not below the rank of Additional Sessions Judge shall be coordinator.

b. Whereas the witness is to be examined is in other province including Azad Kashmir and Gilgit-Baltistan, and Islamabad, the judicial officer of the equal jurisdiction or the Session Judge of the district where the witness is permanently or temporarily settled subject to availability of video link facility at that District shall be coordinator. In case of non-availability of internet/video link facility at the witness end, the coordinator shall be nominated by the Registrar of the concerned High Court in any other nearest districts.

c. Whereas the witness to be examined is abroad and overseas, the trial court through Registrar of the High Court shall coordinate with the Foreign Ministry to nominate the official of Embassy/High Commissioner/Consulate of Pakistan to be a coordinator as well to arrange all necessary requirements including virtual court at witness end. The responsible officer Embassy/High Commissioner/Consulate shall be deputed for supervision, identification and administering oath etc to the witness. The officer shall be vested with the power of trial court for purpose of recording of statement.

d. Whereas the person to be examined is a convict or otherwise in a jail in connection with any offence, the concerned jail superintendent shall produce him before the Sessions Judge of the District where the convict prisoner is lodged. For production of the witness, the Superintendent Jail shall adhere to the order of District and Session Judge at the witness end. In case the witness is juvenile lodged at Borstal House or a lady with residence at shelter home/Dar-ul­-Aman etc, the concerned Incharge shall be under obligation to follow the directions of Sessions Judge at the witness end.

e. Whereas the witness is to be examined is hospitalized in any Provincial or Federal hospital or public sector hospital, the coordinator (Sessions Judge of concerned District) shall of its own or appoint any judicial officer as commissioner to visit the hospital for recording the statement of patient/witness. The Coordinator shall make correspondence with the Medical Officer or Incharge of the hospital for providing necessary internet facilities at the premises of patient/witness. The Medical Superintendent/Incharge of the Hospital shall associate the Sessions Judge or his nominee at the witness end.

f. In case of any other person/witness, as may be ordered by the Sessions Judge at witness end.

1. The Sessions Judge or his/her nominee at the witness end shall ensure the attendance of witness through all means prescribed by the provisions of Procedural, Penal Codes and Qanun-e-Shahadat Order, 1984. The prosecutors shall assist the court at trial court as well as at witness end.

2. In case, the person is witness of record, the prosecution shall be under obligation to provide the attested copies of entire record to witness to enable him/her in recording of his/her examination in Chief/Cross examination/re-examination or to confront him with any document etc. The trial court, at the time of allowing witness to be examined on video link, shall record the direction, of the prosecution in the case to make all necessary arrangements for ensuring the production of witness and availability of record at witness end.

3. In case of any difficulty in understanding the court language by the witness, the prosecutor shall bring in to the notice of trial court, at initial stage, on his application. The District Prosecutor, at witness end, shall arrange a translator/interpreter, who, on closing of the statement of witness, shall furnish a certificate to that effect, duly signed digitally.

4. Whereas the witness is beyond Pakistan i.e overseas, the prosecution shall provide the record of the witness while the coordinator at witness end i.e. Ambassador/Consular/High Commission shall be appraised through foreign ministry of Pakistan to make necessary arrangements for translator/Interpreter as prescribed in preceding Para-5.

5. Where the person is to be examined as court witness, the prosecution and where a person is to be examined as defence witness, the defence counsel will be under obligation to confirm to the court the exact location and willingness of witness to be examined by video link at the witness end. In case the witness is an accused and his attendance is dispensed with by the trial court during trial, the counsel for defence will confirm his location and availability of video link facility at that side.

6. Where the person is an accused in the case and trial court allowed him/her to record his statement on video link, and where the defence counsel requested that in the course of recording statement on video link some privileged communication would be required between the counsel and accused, the trial court will pass an appropriate order and directions in that regard.

7. At the request of a person to be examined on video link, or the trial court on its own motion, taking in to account the best possible interest of the person to be examined and arrival at just and proper conclusion subject to relevant provision(s) of Procedural, Penal Codes and Qanun-e-Shahadat Order, 1984, shall pass appropriate direction to protect the privacy of witness keeping in mind his age, gender and physical condition.

8. The record of proceedings, including typing and preparation of hard copy of statement(s) of the witness(s), marking all exhibits on documents at judicial file shall be made and prepared by the trial court. In case signature of the witness or coordinator or Sessions Judge or witness is required to be taken on statement or document, the soft copy shall be transmitted to the Sessions Judge at witness end through electronic means including Fax, scan or E-mail, where it will be converted in to hard copy and after doing the needful, it will be returned in the same mode to the trial court.

9. If possible, the Audio Video record may be saved in the computer data at the trial court. The saved statement of Audio and Video record may be kept intact till decision of the case/appeal.

10. Any expenses incurred on recording of statement via video link shall be borne by the party, on whose application or behest the statement is to be recorded. In case the person to be examined is a court witness, or the trial court, on its own motion, in the interest of witness, has ordered to allow recording statement on video link, the cost of expenditure shall be paid by the party at trial court, in whose favor such statement is recorded.

11. Recording of statement of conclusion at video link shall ordinarily take place during the local hours at Pakistan. Where the witness is oversees, the trial court may pass suitable direction with regard to timing as the circumstances dictate.

12. The Information Technology (IT) expert shall be allowed to be present during recording statement of a witness, if he/she is not cited as witness in the case. The (IT) expert shall establish and regulate the connection disconnection and reconnection of links between the trial court and court or place at witness end. He/she shall further ensure and satisfy the trial court and judge/coordinator at witness end, about clear visibility and loud audible voice at both ends.

13. Before starts of the video link, the witness shall disclose his/her identity before the judge/coordinator at witness end and likewise picture/photograph of his/her national identity card/passport/domicile shall be pasted at screen for the purpose of identification in the trial court. As soon as the identification process is completed, oath would be administered to the witness by the judge/ coordinator at witness end, loudly audible and clearly visible at trial court end.

14. The learned judge/coordinator shall ensure that the witness is not coached, tortured or prompted by any person. The witness, if willing, shall be allowed to engage a counsel for his assistance or to remain present with him/her at the witness end, when the evidence is being recorded.

15. The trial court and judge/coordinator at witness end will ensure that once the process of recording of statement on video link commences, as far as practicable and possible, it shall be kept continued to proceed without any break, interruption and without any adjournment at any cause or cost.

16. The Sessions Judge/coordinator, if needed or observed, may record any remark or observation as is material regarding the demeanor, attitude or conduct of the witness end and will transmit it to the trial court through electronic mode of transmission.

17. The Registrar of this court shall ensure, at least, to equip all the District courts with minimum required electronic/digital appliances i.e. computer set, laptop, video cameras microphone and speaker, display unit, documents visualizers, scanner, setting arrangement in the court rooms at both sides, printer and uninterrupted fast internet connection.

18. These guidelines, are just directory and also not all inclusive and comprehensive, therefore the court while recording statement on video link may resort to legally permissible steps not in conflict to these guidelines though and befitting the facts and circumstances of a particular case. Any such matter with respect to which no express provision has been made in these guidelines, the trial court may adopt any permissible and convenient mode to meet the end of justice."

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

----Ss. 302(b), 324, 427, 148 & 149---Electronic Transactions Ordinance (LI of 2002), S. 2---Criminal Procedure Code (V of 1898), S. 353---Qanun-e-Shahadat (10 of 1984), Arts. 2(e) & 164---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recording of evidence---Video-link---Accused was charged for committing murder of the brother of the complainant by firing---Dispute over the cooking of bread between the deceased and the accused had been advanced as motive behind the crime---Accused was aggrieved of order passed by Trial Court directing to record evidence of eye-witness residing abroad through video-link---Validity---Record showed that statement of eyewitness in the case through video call i.e. IMO from Saudi Arabia had not been recorded in accordance with the formulated guidelines---Similar was the case of statement of other witness in the connected criminal appeals---Conviction and sentence of accused recorded in the case were set aside and cases were remanded to the Trial Court for recording the statements of witnesses either on their physical presence before the court and, if it was not possible, then it might be recorded through video link/conferencing by following the formulated guidelines and then to decide the cases on merits in accordance with law.

Shabbir Hussain Gigyani for Appellant.

Shumail Ahmad Butt, Advocate General and Muhammad Nisar Khan, Assistant Advocate General for the State.

Ali Gohar Durrani, Amicus Curiae.

Asad Yousafzai for Respondent-1.

P L D 2021 Peshawar 135

Before Qaiser Rashid Khan, C.J. and Syed Arshad Ali, J

MUHAMMAD IDREES KHATTAK---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 4 others---Respondents

Writ Petition No. 4271-P of 2020, decided on 28th January, 2021.

Official Secrets Act (XXII of 1923)---

----S. 2(1)(d)(ii)---Pakistan Army Act (XXXIX of 1952), S. 59(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Field General Court Martial---Civil offence---Trial of civilian---Petitioner alleged that his brother was detained by military authorities and had assailed his Field General Court Martial---Validity---Detenue was charged for offences under Official Secrets Act, 1923---Any person who had committed offence under S.2(1)(d)(ii) of Official Secrets Act, 1923, would become subject of Pakistan Army Act, 1952---Provision of S.59(4) of Pakistan Army Act, 1952, was a deeming provision and it was non-obstinate clause having overriding effect over mechanism of trial provided under Official Secrets Act, 1923---Field General Court Martial was competent to try the detenue for the offence---High Court declined to interfere in the matter as the detenue would get an opportunity to defend himself through an advocate of his choice---Constitutional petition was dismissed, in circumstances.

S.H.T. Leelan's case 2004 SCMR 1761; Ghulam Abbas Niazi's case PLD 2009 SC 866; Mushtaq Ahmad's case PLD 2007 SC 405; Gul Akbar v. Chief Air Staff PLD 1968 Pesh. 114; Allah Rakha's case PLD 1968 Lah. 1061; Asif Mehmood's case PLD 2005 Lah. 721 and Mushtaq Ahmad v. Secretary Ministry of Defence PLD 2007 SC 405 rel.

F.B.Ali's case PLD 1975 SC 506 fol.

Abdul Lateef Khan Afridi and Sajeed Khan Afridi for Petitioner.

Aamir Javed, D.A.G. along with Lt.-Col. Rizwan for Respondents.

P L D 2021 Peshawar 146

Before Shakeel Ahmad, J

SWAT TEXTILE MILLS LIMITED, HARIPUR through Managing Director and 4 others---Petitioners

Versus

Mst. NABEELA and others---Respondents

Writ Petition No. 404-A of 2017, decided on 4th February, 2021.

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

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Counsel and client---Liability---Petitioners sought setting aside of judgment and decree on the plea of fraud and misrepresentation---Trial Court and Lower Appellate Court declined to set aside judgment and decree in exercise of powers under S.12(2), C.P.C.---Plea raised by petitioners was that Vakalatnama used was issued for some other purpose and not for litigation in question---Validity---Vakalatnama showed that title of case in question was specifically written, which suggested that Vakalatnama/Power of attorney was issued to counsel for contesting suit in question---Vakalatnama/Power of attorney gave authorization to enter into arbitration, settlement or compromise which was expressly been conferred on the attorney/advocate---Attorney or advocate had not committed fraud with petitioners, who failed to make out a case of fraud or misrepresentation out of the record against respondents or anyone else---When an attorney/advocate had defrauded a person, the only remedy available to that person was to sue his attorney for damages or recovery of any such amount on his part---Other parties could not be dragged into litigation just because of the fact that an advocate had allegedly committed some fraud with any person---Application under S. 12(2), C.P.C. was moved by petitioners beyond prescribed period of three years---High Court declined to accept the plea that petitioners had learnt about judgment and decree in question a few days before filing of application under S.12(2), C.P.C.---Constitutional petition was dismissed, in circumstances.

Mst. Shabana Irfan v. Muhammad Sham Khan and others 2009 SCMR 40; Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation PLD 1996 SC 213 and Zaheer Hussain Naqvi v. Sahibzada Saeed and others 2002 YLR 1984 ref.

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

----S. 12 (2)---Setting aside of judgment---Recording of evidence---Principle---While deciding fate of application under S.12(2), C.P.C., Court is not always bound to hold a full dressed trial like a regular suit---Such is left to discretion of Court while dealing with an application under S.12(2), C.P.C. to decide it on case to case basis---If Court concludes that material available on record can safely be utilized for making a just decision on application under S.12(2), C.P.C., according to law, then recording of evidence may be avoided to save people from agony of protracted trial.

Mst. Shabana Irfan v. Muhammad Sham Khan and others 2009 SCMR 40 rel.

Muhammad Shahbaz Khan and Haq Nawaz Khan for Petitioners along with Petitioner No. 5.

Haji Ghulam Basit for Respondents.

P L D 2021 Peshawar 154

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

S. M. WAJEEHUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 230-P of 2019, decided on 29th September, 2020.

(a) Drugs Act (XXXI of 1976)---

----Ss. 27(4) & 34---Drugs Registration, Licensing and Advertising Rules, 1976, R. 30(4)(5)---Offence by Pharmaceutical company---Appreciation of evidence---Substitution of accused---Knowledge of Chief Executive Officer of Company---Proof---Accused was Chief Executive Officer of Pharmaceutical company alleged to have caused shortage of life saving drug in market---Trial Court convicted the accused and sentenced him to imprisonment till rising of the Court along with fine---Validity---Managing Director nominated as accused in FIR was substituted by appellant as accused on the ground that he replaced nominated official who had ceased to be Chief Executive Officer of the company---Neither accused could be substituted against nominated official nor he could be made responsible of alleged shortage---Criminal culpability could not be shifted to accused after his assuming charge of Chief Executive of the Company---Prosecution failed to establish its case against Company, nor it could prove knowledge or consent of its directors or officers in alleged offence---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed, in circumstances.

(b) Drugs Act (XXXI of 1976)---

----S. 34---Offence committed by Pharmaceutical company, corporation or firm---Liability of director, partner or officer---Pre-condition---Knowledge and consent of director, partner or officer of company, corporation or firm regarding offence has to be proved by prosecution.

Syed Haziq Ali Shah for Appellant.

Arshad Ahmad, A.A.G. for the State.

P L D 2021 Peshawar 159

Before Sahibzada Asadullah, J

MIRAJ BIBI and others---Petitioners

Versus

AKBAR KHAN---Respondent

C.R. No. 176-D with C.M. No.184-D of 2020, decided on 3rd March, 2021.

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

----Ss. 42 & 39---Transfer of Property Act (IV of 1882), S. 54---Suit for declaration---Cancellation of mutation---Sale transaction---Fraud---Scope---Plaintiff claimed that the patwari obtained his thumb impression and signature on certain documents on the pretext of attestation of inheritance mutation, however, he subsequently came to know that impugned sale mutation was sanctioned in favour of the defendant---Trial Court decreed the suit whereas Appellate Court dismissed the appeal---Validity---Perusal of roznamcha revealed that no reference to sale was made therein---Naib Tehsildar who had accorded sanction to the mutation had categorically admitted that the seller had not signed and thumb impressed in his presence---Marginal witnesses to the impugned mutation were examined before the Court, albeit, they had refused to get recorded any statement regarding authenticity or otherwise of the mutation---Preponderance of evidence was surely in favour of the plaintiff, as he was able to produce strong and sufficient evidence in support of his claim, while the defendant had remained unable to produce any solid and credible evidence to substantiate her claims and more so the entire evidence produced by the defendant was not worthy of credence to diminish the evidentiary value of what was produced by the plaintiff---Defendant had desperately failed to prove the sale transaction appearing/embodied in the impugned mutation by producing the witnesses in whose presence the sale price was paid---Revision petition was dismissed, in circumstances.

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

----Arts. 117 & 118---Burden of proof---On whom burden of proof lies---Scope---Initial burden to prove a claim is on the party seeking the aid of the Court, but this 'onus of proof' shifts and oscillates---Once the parties have adduced their respective evidence in support of their claims, then it is 'preponderance of evidence', which rules the scale of relief---Such is only when the Court deciding the lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision.

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

----S. 54---Sale---Scope---Payment of sale price is essential ingredient of sale as defined in section 54 of the Transfer of Property Act, 1882---Valid sale transaction is constituted when the essential elements are provided by the vendee i.e. valid sale agreement; parties to the sale transaction; sale consideration fixed and paid and subject-matter of the sale transaction---If any one of said ingredients are found missing the transaction would not fall within the definition of "sale"---Expression 'in exchange for a price' used in S.54 of the Transfer of Property Act, 1882, is very significant---No transaction of sale can be said to be completed in the eyes of law unless price was fixed or paid or part paid and part promised.

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

----Art. 103---Exclusion of evidence of oral agreement---Scope---Principle laid down in Art. 103 of Qanun-e-Shahadat, 1984, is subject to the provisos; proviso (1) manifests that any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto such as fraud, intimidation; illegality; want of due execution; want of capacity in any contracting party and want or failure of consideration or mistake in fact or law.

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

----Art. 103---Exclusion of evidence of oral agreement---Scope---Where validity of sale deed is itself in question either because of misrepresentation, fraud or non-payment of consideration, the evidence could be led not to alter the terms of document but to prove its invalidity.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 ref.

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

----Art. 103---Exclusion of evidence of oral agreement---Scope---False acknowledgement of receipt of price by a recital in a sale deed does not stop the seller from giving evidence as against the buyer that he has not received payment.

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

----Art. 103---Exclusion of evidence of oral agreement---Scope---Notwithstanding an admission in a sale deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid, if it is not so, facilities would be afforded for the grossest frauds---Such recital may give rise to a presumption of payment.

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

----Art. 103---Exclusion of evidence of oral agreement---Registered sale deed---Acknowledgment of receiving consideration---Scope---Where a sale is effected through registered sale deed in which amount of consideration was mentioned, same could not be construed to be a sale without consideration though it could altogether be a different matter whether payment of that consideration was made or not, however party who has acknowledged the receipt of consideration in the sale deed can show that he did not receive it.

(i) Administration of justice---

----Civil case---Issues are resolved on preponderance of evidence.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of the Courts below cannot be set at naught in revisional jurisdiction only on the basis that from reappraisal of evidence available on the record some other view is possible---Revisional jurisdiction is circumscribed to the eventualities mentioned in S.115, C.P.C.

Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Administrator, Thal Development through EACO Bhakhar and others v. Ali Muhammad 2012 SCMR 730 ref.

Muhammad Ghazanfar Ali for Petitioner.

Not represented (Motion case) for Respondent.

P L D 2021 Peshawar 166

Before Rooh-ul-Amin Khan, J

TEHSILDAR, MARDAN and 5 others---Petitioners

Versus

ASIF BACHA---Respondent

Civil Revision No. 753-P of 2020 (and other connected Petitions), decided on 25th June, 2021.

(a) Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----S. 12---Civil Procedure Code (V of 1908), S. 115---Suit for declaration/permanent injunctions against Petitioner/Defendant (Tehsildar) who served notices directing to remove superstructure over suit properties---Plaintiffs/respondents alleging to be owners in possession---Said notices were set aside by the Tribunal---Review petition was also dismissed---Validity---Held, that Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 did not provide any right of appeal/revision before High Court---Provisions of Civil Procedure Code, 1908 were not applicable to proceedings under the Act 1977, as such the revision petitions were not maintainable---Conversion of present Revision petitions into writ petitions was to nullify the legislative intend of not providing revisionary power to High Court, which was not permissible under the law---Contention for the said conversion was repelled and Revision petitions were dismissed.

(b) Constitution of Pakistan---

----Art. 199--- Extra-ordinary jurisdiction---Power to convert petitions/proceedings---Statutes provided no right to appeal revision---Proceedings of one kind be converted into another by High Court to advance the cause of justice but Constitutional jurisdiction could never be involved as a substitute for the right of appeal---Writ jurisdiction was extra-ordinary jurisdiction which could be invoked only to meet the extraordinary situation---To convert/permit conversion of revision petition into writ petition by exercising such jurisdiction where statute had not given right to appeal/revision, would circumvent the legislative intent and nullify the mandatory provisions of the statute.

(c) Interpretation of statutes---

----Purposive interpretation---Statute not providing right to appeal/revision---Where statute did not provide any right to appeal/revision before High Court, the purpose was to give finality to the order passed under the statute and in such case High Court would not be justified in interfering with such order under Art. 199 of the Constitution.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---High Court under Constitutional jurisdiction could not assume the power of Appellate/ Revisional Court---High Court's concern was not with the decision but with the decision making process.

Mohammad Suhail Khan, A.A.G. for Petitioners.

Haji Sardar Ali Khan for Respondent.

P L D 2021 Peshawar 171

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD TAHIR and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petitions Nos. 378-M and 736-M of 2020, decided on 2nd February, 2021.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 33, 34, 54, 55 & 120A---Constitution of Pakistan, Art. 140A---Purposive construction---Deputy Commissioner, jurisdiction of---Scope---Tehsil Council approved Annual Development Program (ADP)---Tenders had been published in daily newspapers, bids had been invited---Deputy Commissioner cancelled all tenders---Petitioners contended that Deputy Commissioner had no lawful authority to cancel the validly approved ADP---Government stated that complaint of illegalities/irregularities had been received, inquiry had been made and on basis of inquiry committee's report the ADP was rolled back---Validity---Subsection (2) of S.120A of Khyber Pakhtunkhwa Local Government Act, 2013 provided that department would authorize officers to perform administrative functions of respective Nazimeen till installation of the local government which was further amended (under Second Amendment of 2019) and added that authorized officers would also exercise the powers of their respective councils and Naib Nazimeen for 'running day to day affairs'---Such powers could not be construed to the effect of substitution of Tehsil Council and fully empowering such officers to act as Tehsil Council---Such interpretation would be against other provisions of the Act, 1913 and also against Art. 140A of the Constitution---Purpose of second Amendment of S.120A of the Act, 1913 had not been more than authorizing the administrative officers to perform day to day affairs of the local government---Purposive interpretation would have to be adopted and newly inserted provisions had to be read with the whole scheme/purpose/objects of the Local Government Act, 2013---Reading S.120A in isolation, by adopting literal construction only, would amount to implied repeal of the whole of Local Government Act, 2013---Vesting powers of the administrative officers under said section may be compared with and found analogous to the functionaries of a caretaker government (running in day to day manner)---Deputy Commissioner was not empowered to hold an inquiry into allegation of violations of law/rules by the Tehsil Council----Impugned action of Deputy Commissioner was without jurisdiction hence declared as null, void and ineffective upon the rights of petitioners---Appropriate forum for approval of such schemes was Local Government Commission---Role of District Development Committee would come after schemes were approved in ADP---Authorization of spending money could not be granted for a period of more than one year---Financial year of authorized Annual Development Program, i.e. 2018/19, had ended on 30th June 2019 and the same could not be stretched to 2019/20 or 2020/21---Relief regarding further processing of the tenders could not be ordered without lawful authorization from the respective council---Constitutional Petitioned partially allowed.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 and Wali Muhammad v. Government of Khyber Pakhtunkhwa through Chief Secretary and 5 others 2018 CLC 134 ref.

(b) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Preamble & S. 120A---Constitution of Pakistan, Art. 140A---Local government/Administrative authorities---Scope---Vesting administrative powers in officers with the powers of Tehsil/District Councils with full authority to perform its functions and discharge duties of such representative bodies would go against the very purpose of Khyber Pakhtunkhwa Local Government Act, 2013 and would also go in contrast with mandate of Art. 140A of the Constitution.

Rana Amer Raza v. Doctor Minhaj Ahmad Khan 2012 SCMR 6 ref.

(c) Interpretation of statutes---

----Purposive interpretation---Provision of a statute inserted through an amendment could not be construed in a way so as to wipe out the entire statute, unless the legislature by express words or necessary intendment intended to give such an effect to newly provided law---Law Commission in England while giving the report in 1969 had not approved use of the word "mischief" and had instead preferred "a purposive approach to construction of statutes.

Carter v. Brad Beer (1975) 3 All ER 158, 16; Jones v. Wrothem Park Settled Estates (1979) 1 ER 286, 289; "Understanding Statutes" by Diplock J. and Cross on Statutory Interpretation 3rd Edition ref.

Sultan Rome and Aurangzeb for Petitioners.

Sohail Sultan, Astt: A.G. for Respondents.

P L D 2021 Peshawar 184

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

FAZAL RAHMAN and others---Petitioners

Versus

Mst. FAHMIDA and others---Respondents

Writ Petitions Nos. 609-M of 2015, 29-C of 2019 with C.Ms. Nos.120-C, 641-M, 766-M, 947-M and 1263-m of 2020, decided on 24th March, 2021.

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

----S. 14(2)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(a)---Right to appeal---Restrictive/narrow construction---Family Court, exclusive jurisdiction of---Scope---Question whether the parties should remain within the marriage tie or such tie should be dissolved would fall in the exclusive domain of Family Court---If Family Court dissolved a marriage, such an order to the extent in case of dissolution of marriage made under clause (a) of item (viii) of S.2 of the Dissolution of Muslim Marriages Act, 1939---Words provided in clause (a) of S.14(2) of Family Courts Act, 1964 for exclusion of jurisdiction should narrowly be interpreted---Words 'dissolution of marriage' used in the said clause would mean a bare decree for dissolution of marriage which might not be appealed against with the aim of its reversal---Any string attached to such decree be it grant/refusal of dower or any other condition would be appealable under S.14 of the Act, 1964.

Mst. Rushda Zareen v. Muhammad Saleh PLD 1976 Lah. 1327; Bashira Bibi v. Muhammad Rafiq and 2 others 1982 CLC 1200 and Shazia Samad v. Malik Tariq Mehmood Akhtar and another 2015 MLD 210 ref.

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

----S. 14---Family Appeal---Power to change the mode of dissolution of marriage---Appellate Jurisdiction---Scope---Decree of dissolution of marriage on the basis of Khula and the refusal of Judge Family Court to grant a decree for award of dower, could be converted to dissolution of marriage on any other ground available in the case which would entitle a wife to the grant of decree for dower---Without such powers, filing of an appeal under S.14 of Family Courts Act, 1964 would become meaningless---Appeal was continuation of original proceedings---While hearing appeal against judgment of Family Court and appellate Court would have full spectrum of powers to make any lawful order in respect of which it had the competency to entertain an appeal---Appellate Court could convert a decree for dissolution of marriage from one mode to another.

Gulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Pervaiz Ahmad v. Muhammad Khursheed Khan 2018 CLC 1851 and Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302 rel.

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

----S. 14(2)---Appeal---Jurisdiction---Scope---Restrictive construction of subsection (2) of S.14 of the Family Courts Act, 1964 would be beneficial for the system besides affording an important right of first appeal to a person feeling aggrieved of order of Family Court where dissolution of marriage was also coupled with ancillary orders issued for payment or non-payment of dower etc.---Even the presumption required to be taken while interpreting laws having effect of ousting established jurisdiction would also require a restrictive construction of said provision of Act, 1964---By giving the said provision extended meaning, that would be depriving a party from the right of appeal---Interpretation which would advance right to appeal should be preferred instead of the one which extinguished it.

Maxwell on Interpretation of Statutes by P. St. J. Langan and Oil and Gas Development Co. Ltd. v. The Sacked Employers Review Board and others 2016 PLC (C.S.) 318 ref.

(d) Interpretation of statutes---

----An interpretation which would advance the purpose was to be preferred over an interpretation which defeated its object.

Saif-ur-Rehman v. Additional District Judge Toba Tek Singh and others 2018 SCMR 1885 rel.

(e) Constitution of Pakistan---

----Arts. 10A & 199---"Constitutional jurisdiction" and "Appeal", distinction---Scope---Remedy under Art. 199 of the Constitution was not as open-ended and as beneficial as the remedy of appeal before an appellate Court, where the parties could re-agitate factual issue and an appellate court may reappraise the evidence on factual side---Right to appeal was a substantive as well as vested right and same could only be taken away through express words and necessary intendment to said effect.

Abdul Halim Khan, (learned amicus curiae), Mian Muhammad Riaz, Qazi Ishaq, Aziz Ahmad Hashmi, Syed Yasir Arafat, Ahmad Hussain and Sardar Hussain Khan for Petitioners.

Asmat Ali, Ahmad Riaz Wardag, Mian Muhammad Riaz, Attaullah, Aftab Rahim Khan and Gohar Ali for Respondents.

P L D 2021 Peshawar 198

Before Sahibzada Asadullah, J

SAID ALAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 252-B of 2021, decided on 29th June, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd and common intention---Bail, refusal of---Dying declaration---Scope---Complainant while being in injured condition lodged a report in emergency ward of the hospital to the effect that on the day of incident he along with his father was present at a road when the accused persons fired at him with intention to commit qatl-i-amd, resultantly he was hit and injured, while his father escaped unhurt---Complainant later on succumbed to the injuries---Accused along with two others was directly charged for the murder of the deceased---Main thrust of the counsel for accused was that the injuries did not commensurate with the number of accused and that no bullet marks were found on the surrounding walls---True that the number of injuries did not commensurate with the number of the accused but it was not a rule of thumb that in every criminal case the accused charged was to be released on bail in a mechanical way---Investigating Officer during spot inspection had recovered the empties of different caliber and it was the deceased then injured, who had attributed specific role to the accused with specific weapons of offence---Accused was prima facie connected with the commission of offence---Petition for grant of bail was dismissed, in circumstances.

Muhammad Ashraf Marwat for Appellant.

Iftikhar Durrani for the Complainant.

Arshad Hussain Yousafzai Asstt. A.G. for the State.

P L D 2021 Balochistan 1

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

STATE through Deputy Attorney General---Appellant

Versus

IKRAMULLAH---Respondent

Criminal Acquittal Appeal No. 164 of 2015, decided on 9th August, 2019.

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

----Ss. 561-A, 249-A & 417---Federal Investigation Agency Act, 1974 (VIII of 1975), Preamble & S. 3---Intellectual Property Organization of Pakistan Act (XXII of 2012), Ss. 17, 18 & 13---Inherent powers of High Court---Intellectual Property dispute (pirated books)---Power of Magistrate to acquit accused at any stage---Constitution of the Agency---Powers, functions and jurisdiction of Intellectual Property Organization---Dispute between private parties---Scope---Accused was alleged to have been engaged in selling pirated books---FIR was created under Federal Investigation Agency Act, 1974, Preamble of which showed that the agency was created for investigation of certain offences committed in connection with the matters concerning Federal Government and for the matters connected thereto---Dispute in the present case was between the private parties in respect of pirated books and their alleged sale in the open market---Complainant was a private organization which was doing business in Pakistan privately and no government work was involved, therefore, FIA had no jurisdiction in respect of infringement of copyright between the private parties as dispute was civil in nature---Tribunal created under Intellectual Property Organization of Pakistan Act, 2012, had the exclusive jurisdiction to try the offences with respect to intellectual property laws---Cognizance taken by FIA was illegal and beyond their jurisdiction---Appeal filed under S.417, Cr.P.C., was converted into an application under S. 561-A, Cr.P.C., and the FIR was quashed.

Syed Iqbal Raza v. Justice of Peace Islamabad 2019 PCr.LJ 1059 ref.

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

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court---Power of Magistrate to acquit accused at any stage---Power of Court to acquit accused at any stage---Scope---Section 561-A, Cr.P.C., confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice---Such powers are very wide and can be exercised by High Court at any time---High Court ordinarily does not quash proceedings under S.561-A, Cr.P.C., unless trial court exercises its powers under S.249-A or 265-K, Cr.P.C., which are incidentally of the same nature and in a way akin to and co-related with quashing of proceedings as envisaged under S.561-A, Cr.P.C.---High Court can, in exceptional cases, exercise its jurisdiction under S.561-A, Cr.P.C., without waiting for trial court to pass orders under S.249-A or 265-K, Cr.P.C., if the facts of the case so warrant to prevent abuse of process of any Court or otherwise to secure the ends of justice.

Syed Iqbal Shah, Deputy Attorney General (DAG) for the State.

Shamsuddin Achakzai for Respondent.

P L D 2021 Balochistan 5

Before Abdul Hameed Baloch, J

NOOR UD DIN and 4 others---Petitioners

Versus

The SECRETARY BOARD OF REVENUE DEPARTMENT and others---Respondents

Civil Revision No. 76 of 2015, decided on 16th September, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Suit for declaration and injunction---"Rejection" and "dismissal" of plaint---Distinction---Trial Court dismissed the suit on application filed by defendant under O.VII R.11, C.P.C.---Validity---Words 'rejection of plaint' mentioned in O.VII, R.11, C.P.C. meant that if ingredients in O.VII, R.11, C.P.C. were available in plaint, the Court had jurisdiction and power to reject the plaint---"Dismissal of suit" connoted that it was a final determination of controversy between the parties and Trial Court could dismiss the suit only after holding inquiry and recording of evidence---Rejection of plaint provided or opened door for plaintiffs to fresh suit but in case of dismissal of suit no fresh suit could be filed and only statutory remedy was available against dismissal order---High Court modified order passed by Trial Court as one passed under O.VII, R.11, C.P.C. and plaint was rejected---Revision was dismissed accordingly.

Muhammad Siddique (deceased) through legal heirs v. Mst. Noor Bibi (deceased) through legal heirs) 2020 SCMR 483 ref.

Muhammad Akram Shah for Petitioners.

Munir Ahmed Kakar for Respondents Nos. 4A to 27.

Rasool Bakhsh for Respondents Nos. 28 to 54.

Muhammad Ayub, Assistant Advocate General for Respondents Nos. 1 to 3.

P L D 2021 Balochistan 9

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

Messrs ABASEEN ORE through Azmat Khan---Petitioner

Versus

DIRECTOR GENERAL (LICENSING AUTHORITY) MINES AND MINERALS, BALOCHISTAN and another---Respondents

Review Application No. 6 of 2020 in C.P. No. 46 of 2020, decided on 5th March, 2020.

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

----S. 114---Constitution of Pakistan, Art. 199---Constitutional petition---Review---Scope---Petitioner sought review of order passed by High Court whereby his constitutional petition was dismissed---Validity---Impugned order did not suffer from any error or mistake warranting review---All points raised by the counsel for the petitioner were addressed/answered by the High Court after going through entire record with care and caution---No case for review was made out---Review petition was dismissed.

Daewoo Corporation v. Zila Council, Jhang and 2 others 2004 SCMR 1213; Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Mirza Shahjehan Haider Gorgani v. Chairman, Federal Land Commission, Islamabad and others 2008 SCMR 575 and Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049 ref.

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

----S. 114---Review---Scope---Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other---Any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegally---Review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved.

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

----S. 114---Review---Scope---Exercise of review jurisdiction does not mean a rehearing of the matter and as finality is attached to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review---Before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on record---Be it an error of fact or of law, it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of ratiocination.

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

----S. 114---Review---Scope---Where a Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or error cannot be obtained on grounds that the Court took an erroneous view or that another view on reconsideration is possible---Review cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced.

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

----S. 114---Review---Scope---Unless and until there is an error or a mistake on the face of the record or for that matter some new and important matter or evidence has been discovered a review application is incompetent.

Daewoo Corporation v. Zila Council, Jhang and 2 others 2004 SCMR 1213; Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Mirza Shahjehan Haider Gorgani v. Chairman, Federal Land Commission, Islamabad and others 2008 SCMR 575 and Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049 ref.

Muhammad Riaz Ahmed for Applicant.

P L D 2021 Balochistan 15

Before Muhammad Kamran Khan Mulakhail, J

NAIMATULLAH and 11 others---Petitioners

Versus

FAIZULLAH and 2 others---Respondents

Civil Revision No. 209 of 2011, decided on 19th November, 2020.

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

----O.XLI, R.31(a)---Term 'points for determination'---Scope---Term 'points for determination' refers to all important questions involved in case; it does not include points which have been abandoned or which are not necessary for disposal of case.

Muhammad Yousaf alias Bala v. Khuda Dad 2004 MLD 1107 and Ali Hassan v. Sher Muhammad and another 2007 CLC 969 ref.

(b) Balochistan Civil Disputes (Shariat Application) Regulation, 1976---

----Constitution of Pakistan, Art. 247 (as omitted by 25th Constitutional Amendment Act, 2018)---Suit for declaration and injunction---Shariat Court---Jurisdiction---Defendant was aggrieved of concurrent judgments and decrees passed in favour of plaintiff by Trial Court and Lower Appellate Court constituted under Balochistan Civil Disputes (Shariat Application) Regulation, 1976---Validity---Provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976, was promulgated and was extended to tribal area of Balochistan by exercising powers conferred under Art. 247 of the Constitution, which was no more part of the Constitution in view of 25th Constitutional amendment---After newly emerged situation, tribal areas were no more in existence---Neither powers conferred upon the President of Pakistan, in respect of Federally Administered Tribal Areas nor upon Governor of Balochistan in respect of Provincially Administered Tribal Areas were available and such powers could not be exercised anymore---For merged areas High Court had already ordered that all litigations pending before Trial Courts and appeals/revisions pending before Lower Appellate Courts exercising jurisdiction under Balochistan Civil Disputes (Shariat Application) Regulation, 1976, stood transferred to ordinary civil Courts constituted under Balochistan Civil Courts Ordinance, 1962---High Court set aside judgment and decree passed by Lower Appellate Court which was no more in existence and had become functus officio and case was remanded for decision of appeal afresh---Revision was allowed accordingly.

Gul Hassan Tareen for Petitioners.

Tariq Mehmood Butt and Abdul Ghani Sherani for Respondents Nos.1 to 3.

P L D 2021 Balochistan 20

Before Rozi Khan Barrech, J

SADIA GILL---Petitioner

Versus

VISHAL MASIH and another---Respondents

Civil Revision No. 474 of 2019, decided on 19th August, 2020.

Divorce Act (IV of 1869)---

----S. 3(2), (3)---Civil Procedure Code (V of 1908), S.20 & O.VII, R.10---Suit for separation and dissolution of marriage---Territorial jurisdiction---Parties were Christian by faith and suing spouse sought separation and divorce on the plea of desertion---Defending spouse sought return of plaint on the plea that they were living at place "Q" and cause of action had also accrued at place "Q" therefore, Courts at place "M" had no power to adjudicate---Validity---Suing spouse had choice of selecting his / her forum either as (i) the district where parties had last resided together or (ii) the district within the local limits of which both the husband and wife resided, though living separately---Matter was governed by first category that parties were married at place "Q" and lastly resided together at place "M"---For determination of jurisdiction, provision of S.20, C.P.C. was not to be taken into consideration as provision of S.3(3) of Divorce Act, 1869, catered for the position with regard to determination of jurisdiction of Court---In presence of provision in special law the provision of general law was not to be taken into consideration---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed in circumstances.

Muhammad Siddiq v. Zawar Hussain PLD 1974 SC 572; Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 CLD 1198 and State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 CLD 1080 rel.

Najeeb Tareen for Petitioner.

Aminullah Gharsheen for Respondent No.1.

Ahmid Ali Baloch, A.A.G. for Respondent No.2.

P L D 2021 Balochistan 24

Before Jamal Khan Mandokhail, C.J. and Nazeer Ahmed Langove, J

The PEOPLE'S PRIMARY HEALTHCARE INITIATIVE BALOCHISTAN (PPHI-B) through Chief Executive Officer---Petitioner

Versus

AUDITOR GENERAL OF PAKISTAN, ISLAMABAD and 2 others---Respondents

C.P. No. 124 of 2017, decided on 15th July, 2020.

Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance (XXIII of 2001)---

----Ss. 8 & 15 [as amended by Auditor General's (Functions, Powers and Terms and Conditions of Service) (Amendment) Act, 2017]---Constitution of Pakistan, Art. 170(2)(f)---Public sector enterprise---Audit---Dispute was with regard to audit of petitioner company which was a private limited company controlled and run by Provincial Government---Validity---Petitioner was though a private limited company, registered under Companies Ordinance, 1984, but it was owned and established by Government of Balochistan and funded through Provincial Consolidated Fund---Audit of accounts of government owned company was to be carried by Auditor General, therefore, audit of petitioner company was also the responsibility of Auditor General of Pakistan---High Court directed Auditor General to carry audit of petitioner company initially with effect from year 2017 and onwards whereas in second phase audit of petitioner should be conducted from the date of its establishment till year 2017---Constitutional petition was dismissed accordingly.

Sindh Rural Support Organization v. Federation of Pakistan and others (Civil Petition No.211-K of 2016) ref.

Naveed Baloch and Tahir Ali Baloch for Petitioner.

Arbab Muhammad Tahir Kasi, Advocate General, Balochistan, Shai Haq Baloch, Additional Advocate General, Ghulam Mustafa Buzdar, Deputy Attorney General for Respondents.

Aziz Ahmed Jamali, CEO, PPHI.

Rafique Raisani, COO, PPHI.

Arif Shah, Manager, PPHI.

Syed Naseebullah, Deputy Director, DG Audit, Balochistan, Quetta.

P L D 2021 Balochistan 28

Before Abdul Hameed Baloch, J

Mst. ABIDA KHANUM and another---Petitioners

Versus

SARFARAZ and others---Respondents

Civil Revision No. 101 of 2020, decided on 29th September, 2020.

(a) Islamic-law---

----Marriages---Irregular marriage---When a lady entered into marriage before completion of iddat period, then said marriage would not be a "void marriage" but would be an irregular marriage---Such union, which was an "irregular marriage", could not be regarded as being against Sharia.

Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273 rel.

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

----Ss. 373 & 372---Succession Certificate---Nature of proceedings under Ss.373 & 372 of Succession Act, 1925---Dispute between legal heirs and intricate questions of facts, determination of---Scope---Procedure provided for in S.373 of Succession Act, 1925 was of a summary nature and did not decide rights of parties---For determination of rights as legal heirs, remedy lay before a court of competent jurisdiction---Intricate questions of fact could not be resolved in such summary proceedings, and questions as to title of property had to be decided before a civil court.

Muhammad Sher v. Additional Sessions Judge/Justice of Peace District Khushab 2016 CLC 717 and Allah Dad v. Mukhtar Ahmed 1992 SCMR 1273 ref.

Mst. Aisha v. Mst. Mah Gul 2015 CLC 1719; Malik Muhammad Rafique v. Mst. Tanveer Jahan PLD 2015 Isl. 30 and Mst. Samina Sikandar v. Public-at-Large PLD 2011 Lah. 192 rel.

Mumtaz Hussain Baqri and Rasool Bakhsh Baloch for Petitioners.

Abdul Zahir Khan Noorzai for Respondent No.5 and Maqbool Hussain Respondent No.3 present in person.

P L D 2021 Balochistan 45

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

AMANULLAH BAZAI through Attorney---Petitioner

Versus

DIRECTOR GENERAL OF MINES AND MINERAL (DEV.) DEPARTMENT, BALOCHISTAN and another---Respondents

C.P. No. 422 of 2019, decided on 19th August, 2020.

Balochistan Mineral Rules, 2002---

----Rr. 57, 70, 83 & 90---Constitution of Pakistan, Art. 199---Constitutional petition---Condemned unheard---Show-cause notice---Necessary ingredients---Petitioner was aggrieved of cancellation of his Prospecting Licence for coal---Plea raised by petitioner was that no notice was issued by authorities before cancelling his licence---Validity---Before any action was taken, affected party was to be given a notice to show cause against proposed action and to seek his explanation, as the same was sine qua non of right of fair hearing---Any order passed without giving notice was against principles of natural justice and was void ab initio---Before taking any action, it was right of a person to know the facts, as without knowing facts of case no one could defend himself---Right to notice meant right of being known---Right to know facts of suit or case was to happen at start of any hearing and notice was a must to start a hearing---Notice was to contain time, place and date of hearing, jurisdiction under which case was filed, charges and proposed action against person---All such things were to be included in notice to make it proper and adequate---Whenever statute made it clear that notice was to be issued to party and if no compliance or failure to give notice occurred, the same had made that act void---Non-issue of notice or any defective service of notice did not affect jurisdiction of authority but had violated principles of natural justice---Cancellation orders passed by authorities were illegal, perverse to record and arbitrary---High Court set aside orders passed by authorities as the same were void and of no legal effect---Constitutional petition was dismissed, in circumstances.

2002 SCMR 1034 rel.

Abdul Zahir Kakar for Petitioner.

Zahoor Ahmed Baloch, Assistant Advocate General ("A.A.G.") for Respondents Nos.1 and 2.

Ewaz Zehri for Respondent No.3.

P L D 2021 Balochistan 51

Before Abdul Hameed Baloch, J

MUHAMMAD NOOR---Petitioner

Versus

MUHAMMAD USMAN and 4 others---Respondents

Civil Revision No. 374 of 2016, decided on 18th November, 2020.

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

----O. XVII, Rr. 2 & 3 & O. IX---Specific Relief Act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of sale-deed---Dismissal of the suit for non-prosecution and lack of interest---Effect---Appellate Court upheld the Trial Court's view---Validity---Held, that there was distinction between R.2 & R.3 of the O.XVII, C.P.C.; in R. 2 of the said Order, where the suit was adjourned, the parties or any of them failed to appear, the Court could proceed to dispose of the suit in one of the modes prescribed under O.IX, C.P.C. or could make such order as it thought fit; while under R. 3, when time was granted and any party failed to produce his evidence or to cause the attendance of his witnesses or to perform any other act, which was necessary for further progress of the suit, on default, the Court would proceed to decide the suit forthwith---To attract the procedure laid down under O.XVII, R.3 of the C.P.C.; firstly adjournment must have been on the instance of a party and secondly there must be material on record for the Court to peruse and decide the case---For proceedings under O. XVII, R. 3, C.P.C., there had to be material to decide the suit forthwith---Trial Court, in the present case, proceeded to decide the suit forthwith, without having any material before it, and thus, had acted in its jurisdiction illegally and with material irregularity---Trial Court, in the present case, had not even discussed the material available on record and dismissed the suit for lack of interest and non-prosecution, which did not fulfil the requirement of O. XVII, R. 3, C.P.C.---While Appellate Court decided the case on merit and suit was dismissed on the ground that land-in-question was unsettled one, therefore, the plaintiff had no title---Said judgment of the Appellate Court was not according to the law as there was no provision in the law where the settlement having not been conducted by the concerned state functionaries, the inhabitant(s) of the Unsettled Areas would lose his/their title---High Court set aside the decrees and judgments passed by both the Courts below and remanded the case to the Trial Court with direction to provide two opportunities to the petitioner/plaintiff to produce his evidence---Revision was allowed, in circumstances.

Muhammad Haleem v. H. H. Muhammad Naim PLD 1969 SC 270 and Tanzeem Corporation Gupis/Yasin v. Momin Shah 2016 CLC 1490 ref.

(b) Title---

----Property---Title was to be decided on the basis of evidence and not on presumptions and conjunctions.

Rahim Khan v. Station Commander Station Headquarter Zhob 2019 CLC 114 ref.

Nemo for Petitioner.

Nemo for Respondent.

P L D 2021 Balochistan 55

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

GHULAM RASOOL---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Jail Application No. 240 of 2020, decided on 11th January, 2021.

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

----Ss. 2(c), 9 (4) & 12---Agreement between Islamic Republic of Iran and Islamic Republic of Pakistan on the transfer of Prisoners [enforced on 11-05-2014]---Invoking jurisdiction of Court---Waiving of the fine---Scope---Applicant/offender was convicted and sentenced for two years imprisonment plus 11,636,706,670 Riyals fine by the Court of criminal jurisdiction Islamic Republic of Iran for recovery of 12512 Cans of Alcoholic drink in Iran---Applicant/offender was transferred to Pakistan under "the Agreement between Government of the Islamic Republic of Iran and the Government of Islamic Republic of Pakistan on the transfer of Prisoners---Applicant/offender filed application for waiving of the fine on the basis of being pauper---Validity---Offence related to intoxicating liquor, in Pakistan, was punishable under Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979---Keeping in view Art.9(4) of the Prohibition (Enforcement of Hadd) Order, 1979 and Arts. 8 & 9 of the Agreement, in exercise of inherent jurisdiction under S.561-A, Cr.P.C., the sentence of the pauper applicant was adopted and was made compatible by High Court under S.4 of the Prohibition (Enforcement of Hadd) Order, 1979---Application of pauper was disposed of with the direction for the compliance/implementing the sentence accordingly.

Amici Curiae Talat Waheed Khan, Muhammad Aamir Nawaz Rana and Sultan Khalid for Applicant.

Zahoor Ahmed Baloch, Assistant Advocate General, Abdul Karim Malghani, State Counsel along with Naveed Ilyas, Superintendent Central Prison Mach for Respondent/State.

P L D 2021 Balochistan 59

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ABDUL HAMEED KHAN and 6 others---Petitioners

Versus

NASRULLAH and others---Respondents

C. P. No. 1146 of 2019, decided on 26th October, 2020.

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

----S. 151---Inherent powers of Court---Scope---Consolidation of suits was prerogative, which was to be exercised on the dictate of the justice to avoid contradictory judgments and for better administration of justice---Though no provision for consolidation of civil suits was provided in the Civil Procedure Code, 1908 but the Court could consolidate different suits to avoid conflict of judgments if the parties in the suits were the same and the cause of action was common---Parties, in the present case, had filed separate suits against each other before the Trial Court about the same property---Admittedly, subject-matter of the two suits, was the same and if the suits would have been adjudicated separately there was likelihood of conflicting judgments subject matter of the suits being the same it was proper in the interest of justice that they (suits) be consolidated---Despite the fact that the two suits were at different stages of adjudication, they should be heard together---No illegality or infirmity was found in the impugned orders and the judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Zahid Zaman Khan v. Khan Afsar PLD 2016 SC 409 and Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262 ref.

(b) Administration of justice---

----Consolidation of the suits---Consolidation of suits was to be ordered to avoid contradictory judgments and for better administration of justice.

Muhammad Din Kakar for Petitioners.

Muhammad Ali for Respondent No.5.

P L D 2021 Balochistan 63

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD JAFFAR MAGSI---Petitioner

Versus

SANAULLAH and 2 others---Respondents

Constitution Petitions Nos.(s) 1 and 21 of 2020, decided on 14th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Ex-officio Justice of Peace, powers of---Registration of FIR---Reasons to be furnished for passing an order contrary to the police report---Scope---Ex-officio Justice of Peace on application of the respondent under S.22-A, Cr.P.C. containing allegations that the Assistant Commissioner along with Levies Officials came to his house, beaten two persons, detained them for three hours, set his residential hut on fire as a result of which his educational documents were burnt into ashes not only that an amount of rupees seven million and four hundred thousand were found missing, in view of such circumstances, Tehsildar be directed to register FIR against the nominated persons---Ex-officio Justice of Peace had obtained report from the concerned Tehsildar which had elaborated that no such offence took place, however, despite such report Ex-officio Justice of Peace had ordered for registration of FIR without any corroborative material from the complainant---Ex-officio Justice of Peace was not required to blindly allow a request of the complainant and to believe the averments of the complaint as gospel truth---Ex-officio Justice of Peace was supposed to furnish tangible reasons for not relying upon the solicited report---Constitutional petitions were allowed and the order passed by Ex-officio Justice of Peace was set aside.

Nazim Hussain v. Additional Sessions Judge/Ex-officio Justice of the Peace, Nankana Sahib 2017 PCr.LJ Note 35 rel.

Mian Muhammad Khalid v. Station House Officer Police Station Manawan 2017 PCr.LJ Note 9 fol.

Naveed Qambrani, Muhammad Adil and Matiullah for Petitioner (in Constitution Petition No. 1 of 2020).

Jameel Akhtar Gajani, Additional Prosecutor General, Zahoor Ahmed Baloch, Assistant Advocate General and Asif Reki and Jameel Agha for Respondent No.1 (in Constitution Petition No. 1 of 2020).

Abdul Wahab, Assistant Commissioner Jhal Magsi Petitioner No.1 present in person (in Constitution Petition No. 21 of 2020).

Jameel Akhtar Gajani, Additional Prosecutor General, Zahoor Ahmed Baloch, Assistant Advocate General and Asif Reki and Jameel Agha for Respondent No.1 (in Constitution Petition No. 21 of 2020).

P L D 2021 Balochistan 67

Before Abdul Hameed Baloch, J

ZIAUDDIN---Petitioner

Versus

KHAN MUHAMMAD and 7 others---Respondents

Civil Revision No. 118 of 2017, decided on 17th December, 2020.

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

----O. II, R. 2---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for possession, mense profit and permanent injunction--- Bar on further suit---Splitting of claim---Scope---Petitioner/plaintiff filed a suit in respect of legacy of his father which was decreed /acted upon, where after he filed civil suit again on the same subject-suit/cause of action, which was dismissed---Held, that under O. II, R.2 of the Civil Procedure Code, 1908, the splitting of claim was not permissible and all the claims based on same cause of action against the same party should be included in one suit---O. II, R. 2 of the C.P.C, 1908, was devised to prevent a party from splitting up its claim, and if the plaintiff omitted or relinquished any part of his right/entitlement, he was precluded from agitating the relinquished part of claim in subsequent suit---Suit of the petitioner was hit by the O. II, R.2, C.P.C.---No illegality or infirmity was found in the impugned findings of both the Courts below---Revision was dismissed, in circumstances.

Safdar Ali v. Muhammad Nawaz 2006 YLR 1137 and Syed Basharat Hussain Shah Gillani and 3 others v. The Azad Government of the State of Jammu and Kashmir 2018 YLR 31 ref.

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

----O. II, R. 2---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for possession, mense profit and permanent injunction---Bar on further suit---Object---Object of R.2 of O.II, C.P.C, was to prevent further litigation between the same parties over the same cause of action---Where the plaintiff relinquished a claim which was available to him during the previous suit, the same could not be suited in part left subsequently.

Abdul Hadi Tareen for Petitioner.

Ahmed Ali Baloch, A.A.G. for Official Respondents.

P L D 2021 Balochistan 72

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

JADOON NASIM AKHTAR and others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Jail Applications Nos.394 to 403 of 2020, decided on 15th March, 2021.

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

----Ss. 2(c) & 9---Offender convicted and sentenced in a foreign country transferred to Pakistan---Sentence, modification of---Scope---Accused persons convicted by competent court of law of foreign country/ sentencing State, had been transferred to Pakistan/administrative State/Receiving State to serve their remaining sentences in pursuance of agreement dated 11.05.2014 on transfer of sentenced persons executed between the two countries---Administrative State/Receiving State upon the transfer of sentenced persons would impose a new sentence within the terms of its national laws---Such a sentence may be less severe than that imposed initially by the sentencing State, but it may not be more severe and the administrative State may, however, adopt a sentence for particular offence by reducing it to the national statuary maximum for that offence.

Muhammad Asif Reki, Syed Jamil Ahmed Agha, Najeebullah Kakar, Imran Khan, Muhammad Arif Achakzai and Liaquat Ali for Applicants.

Habibullah Gul, Additional Prosecutor General assisted by Zahoor Ahmed Baloch, Assistant Advocate General for the State.

P L D 2021 Balochistan 79

Before Abdul Hameed Baloch, J

SHABBIR AHMED---Petitioner

Versus

MUHAMMAD MUZAMIL HUSSAIN and another---Respondents

Civil Revision Petition No.(s) 31 of 2018, decided on 5th November, 2020.

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

----O. XXII, R. 3---Procedure in case of death of one of several plaintiffs or of sole plaintiff---Scope---Where no application is made or intimation is given of death of sole or one of several plaintiffs the court proceed with the case and any order made and judgment pronounced in such suit notwithstanding of death of plaintiff have the same force and effect as it had been made or pronounced before the death took place---Death of plaintiff during pendency of his suit would not cause his suit to abate, if no application for impleading his legal representative is brought within the period of limitation---In absence of such application for impleading legal representative of a deceased party, Court will continue with adjudication of the suit and decree so passed would be valid.

Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 ref.

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

----O. XIV, Rr. 1 & 3---Framing of issues---Material from which issues may be framed---Scope---Issues are to be framed on the basis of material alleged by one party and denied by other---Court should frame issues with regard to material proposition of law or fact---Separate issues are to be framed---Court is to frame proper issues so that a party could know the controversy.

Juma Gul v. Gul Bibi 2015 MLD 1627 rel.

Anwar-ul-Haq for Petitioner.

Shahid Baloch and Ahmed Ali, Additional Advocate General for Respondents.

P L D 2021 Balochistan 84

Before Naeem Akhtar Afghan and Zaheer ud Din Kakar, JJ

BAHADUR KHAN---Petitioner

Versus

The VICE-CHANCELLOR, BALOCHISTAN UNIVERSITY OF MEDICAL AND HEALTH SCIENCES, QUETTA---Respondent

C.P. No. 1470 of 2020, decided on 26th April, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Test for admission in Medical College---Policy decision of government---Scope---Petitioner passed his matriculation examination in the year 2012, thereafter, he continued his Islamic education, however, in the year 2017, he passed Higher Secondary School Examination and scored higher marks but since there existed gap between the degrees of matriculation and intermediate, therefore, five marks of the petitioner as per annum, were deducted from his qualification marks despite the fact that he qualified for medical seat---Petitioner also contended that on the one hand his marks were deducted while on the other hand he was not granted additional 20 marks given to persons acquiring madrasa degree---Validity---Petitioner had not submitted any certificate to show that he was a Hafiz-e-Quran, therefore, he was not entitled for the 20 marks---Eligibility of candidates was a policy of the College, thus, High Court could not interfere in the policy matters, which required consideration of various factual aspects---Constitutional petition was dismissed in limine.

Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Policy decision---Scope---High Court cannot sit as a Court of appeal over the policy decisions and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or the same is arbitrary and devoid of any justification.

Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 and Dossani Travells Pvt. Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749 ref.

Syed Abdul Basit Shah for Petitioner.

Sohail Azam, Admin: Officer B.M.C., Quetta for Respondent.

P L D 2021 Balochistan 87

Before Abdul Hameed Baloch, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE---Respondent

Criminal Revision Petition No.(s) 11 of 2021, decided on 3rd May, 2021.

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

----Ss. 223, 224 & 120-B---Escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, criminal conspiracy---Appreciation of evidence---Acquittal of co-accused---Scope---Prosecution case was that due to negligence of officials deputed on duty, accused managed to flee away by breaking the locks---Prosecution had failed to produce an iota of evidence to show that the accused was custodian of the lock up---None of the ocular witnesses stated that the accused was in charge of the lock up---Accused was convicted on the basis of inquiry report---Opinion of inquiry officer was not binding upon the Court---Prosecution had even failed to produce the register wherein the accused-official and others were entrusted with the duty of securing the lock up---Initially eight employees were arrested, whereafter five of them were discharged under S.169, Cr.P.C. and were released on the direction of the high ups; while two accused persons were acquitted by the Trial Court---If the prosecution story was accepted then it could be said that only the accused-official was on duty which by itself was enough to create doubt regarding the authenticity of prosecution case---Revision petition was accepted and the accused was acquitted of the charge, in circumstances.

Muhammad Nawaz v. The State PLD 2002 SC 287; 2021 SCMR 612 and Saifullah v. State 2018 MLD 751 rel.

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

----S. 223---Escape from confinement or custody negligently suffered by public servant---Proof of negligence---Scope---Prosecution must prove that whoever being public servant was legally bound to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffered such person to escape from confinement, meaning thereby that the prosecution must prove the escape made by negligence of public servant---Mere proving that the accused person was on duty does not constitute the offence in the absence of evidence of negligence.

(c) Words and phrases---

----"Negligence"---Meaning.

Failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights. Term "negligence" denotes culpable carelessness.

Black's Law Dictionary rel.

(d) Criminal trial---

----Appreciation of evidence---Where there are two possibilities, one which favours the accused will be accepted because the accused is favourite child of law.

(e) Criminal trial---

----Evidence---No one can be convicted on the basis of presumption---Presumption how much strong, cannot take place of legal evidence.

Saifullah v. State 2018 MLD 751 rel.

Ahsan Rafiq Rana for Petitioner.

Abdul Karim Malghani, State Counsel for Respondent.

P L D 2021 Balochistan 94

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

Malik MEHRULLAH KHAN---Petitioner

Versus

MUHAMMAD HAYAT and 3 others---Respondents

Constitutional Petition No. 493 of 2020, decided on 2nd July, 2020.

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

----S. 6---Act of 'terrorism'---Scope---Courts, for determining the issue whether a case is triable under the Anti-Terrorism Act, 1997 or not, are required to examine the FIR (First Information Report), the statements recorded under S.161, Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution---Inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into consideration the documents/material, came on to surface with regard to previous enmity or dispute.

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

----S. 6---Act of 'terrorism'---Scope---Terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more connected with the object and design behind an action than with the action itself---Terrorism is not primarily directed against the actual victims themselves who are treated merely as 'collateral damage'---Extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard---Ferocious action against neutrals that had no dogmatic, conceptual or religious aims is just an act of criminal delinquency, a crime, or simply an act of senselessness unrelated to "terrorism".

Criminal Appeals Nos.95 and 96 of 2019, Civil Appeal No.10-L, and Criminal Appeal No.63 of 2013 rel.

Amanullah Batezai for Petitioner.

Respondents: None present.

P L D 2021 Balochistan 97

Before Abdul Hameed Baloch, J

TAJ MUHAMMAD---Petitioner

Versus

NOOR-UD-DIN and another---Respondents

Civil Revision No. 173 of 2016, decided on 26th November, 2020.

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

----Art. 59---Opinions of expert---Reliance---Scope---Exhibition of report---Scope---Question before High Court was whether the Trial Court without calling the expert as witness of handwriting and fingerprint could exhibit his report on its own---Held; report of expert under Art. 59 of the Qanun-e-Shahadat, 1984 was relevant---Expert opinion could not be relied upon without producing the expert in Court for recording his statement, so that the opposite party availed the opportunity of cross-examination.

Wadhawa's case AIR 1928 Lahore 427; Allah Dino's case 1974 SCMR 411 and Muhammad Hussain's case 1970 SCMR 504 ref.

Sultan Muhammad's case PLD 2008 Quetta 1 rel.

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

----Art. 59---Opinion of expert---Scope---Opinion of expert is relevant in evidence, but without examination of such expert his report is not admissible.

Allah Dino v. Muhammad Umar 1974 SCMR 411 rel.

(c) Evidence---

----Documentary evidence---Proof---Exhibition of document---Scope---Mere placing a document on record cannot be considered as evidence unless proved through prescribed procedure---Document can be proved through the statement of witness and its exhibition---Even after exhibition it cannot be said that the document has been proved---When a party intends to rely on a document it should prove the same through witness.

Azizullah through legal heirs v. Muhammad Haneef through legal heirs PLD 2018 Lah. 132 rel.

Jameel Ahmed Khan Babai for Petitioner.

Adnan Ejaz and Ahmed Ali, Additional Advocate General for Respondent No. 1.

P L D 2021 Balochistan 105

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD AJMAL and 3 others---Petitioners

Versus

PROVINCE OF BALOCHISTAN through Secretary Irrigations and others---Respondents

C. P. No. 813 of 2019, decided on 29th December, 2020.

(a) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Cultivation of crops with sewage water---Scope---Petitioners, being agriculturalists, assailed the act of respondents whereby they had blocked the supply of black/grey water to an area of 1000 acres---Validity---Reports prepared by the representatives of different departments showed that the petitioners were using sewage water for cultivation of crops which contained household waste, hospital waste as well as waste material eliminated from food points and factories, etc---Sewage water cultivation was a point of grave concern---Mixing of unpurified water with purified made the entire water contaminated and carcinogenic---Vegetables (leafy/non-leafy) fodder crops irrigated by such contaminated, arsenic rich water absorbed the chemicals and metals from the water which became hazardous for human health, causing various fatal diseases---Around 3000 acres of land was under cultivation with leafy crops by sewage water that was being sold in the local market and was used for salad and foods---High Court observed that only treated water should be used for fruit and vegetable production---Cultivation of crops with contaminated water was declared to be an unlawful business and the respondents were directed to ensure stoppage of such business.

Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Enforcement of Fundamental Rights---Scope---Jurisdiction of High Court while exercising power under Art. 199 of the Constitution is restricted to making an order directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or declaring that any act done or proceeding taken within the territorial jurisdiction of the court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect---However, when dealing with constitutional petitions for the enforcement of fundamental rights, the jurisdiction of High Court is not controlled by any limitation---Such fact finds mentioned in clause (c) of sub-Article (1) of Art. 199 of the Constitution.

(c) Constitution of Pakistan---

----Art. 199(1)(c)---Constitutional jurisdiction---Enforcement of Fundamental Rights---Scope---High Court, in exercise of the constitutional jurisdiction for enforcement of fundamental rights, has unlimited powers to issue appropriate directions to the functionaries of the State for securing the fundamental rights or to avoid their violation---Act which is required to be done by the public functionaries by the Court under the clause (c) of Sub-Article (1) of Art.199 may not normally be allowed to be taken by them under specific law/rules or in normal circumstances, they may even be not permitted specifically to perform such acts under the existing law or rules---In pursuance of the direction given by the court under said sub-clause (c), the person/authority/government so commanded by the High Court shall be bound to perform the act so that the fundamental rights of citizens are enforced---Reasons behind granting such powers for issuing appropriate direction are that every other law/rule/instruction have to yield to the fundamental rights enshrined in the Constitution.

(d) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Article 18 of the Constitution declares in unequivocal terms freedom of occupation, trade and business but it is equally true that such right is subject to qualifications, if any, as may be prescribed by law and that the profession, occupation, trade or business in which a citizen is entitled to engage must be a lawful profession, permitted by law or at least not forbidden by law---Concept of dangerous and offensive trades and civil defence is not that the candle should not be lit---Candle must be lit to remove darkness and make the things more productive but care must also be taken not to let the candle burn everything around.

Humaira Munir and Shams-ud-Din for Petitioners.

Shahid Baloch, Additional Advocate General for Official Respondents.

Ali Ahmed Kakar and Muhammad Khalid Kakar for Respondent No.3.

P L D 2021 Balochistan 113

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ABDUL MATEEN through guardian/father---Petitioner

Versus

BIBI KHADIJA and others---Respondents

C. P. No. 639 of 2017, decided on 31st December, 2020.

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

----S. 152---Amendment of judgments, decrees or orders---Scope---Section 152 of C.P.C. provides a speedy and inexpensive relief without resorting to other remedies that may be available under the law---Section 152, C.P.C. has limitations which have been provided therein---Scope of S.152, C.P.C., is limited to 'clerical', 'arithmetical mistakes' or "errors" arising from any "accidental slip" or "omission"---Where the order or judgment is deliberate, having been passed after application of mind, it will be outside the scope of S.152, as an error or omission in such an order would not be construed as an accidental slip or omission---Not every mistake by a Court can be termed as an error resulting from an 'accidental slip' or 'omission'---Questions involving contentious issues cannot be considered or corrected under S.152, C.P.C.

Baqar v. Mohammad Rafique and others 2003 SCMR 1401 rel.

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

----S. 152---Amendment of judgments, decrees or orders---Scope---Court cannot rectify a decree, judgment or order on the grounds that it was wrong or unfair---Section 152, C.P.C. does not authorize the Court to supplement its judgment passed after application of mind and having effect of taking away rights accrued to any party---Errors as contemplated by S.152, C.P.C. are those which may have crept into the order or decree inadvertently or unintentionally---Mistakes which do not go to the merits of the case and not substantially affecting rights of the parties can always be corrected by exercising jurisdiction under S.152, C.P.C.

Abdul Haq Kasi for for Petitioner.

Mumtaz Hussain Baqri and Shams-ul-Huda for Respondents.

P L D 2021 Balochistan 116

Before Abdul Hameed Baloch, J

MUHAMMAD QASIM TAREEN---Petitioner

Versus

ABDUL KARIM BARYALAI and 3 others---Respondents

Civil Revision No. 53 of 2018, decided on 7th June, 2021.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Arts, 17 & 79---Suit for declaration and injunction---Sale deed, proof of---Onus to prove---Two attesting witnesses, non-production of---Concurrent findings of facts by two Courts below---Petitioner/plaintiff claimed to be owner in possession of cabin/Khokha on the plea that his father purchased it---Petitioner/ plaintiff did not produce evidence in regard of sale purchase of suit property---Trial Court and Lower Appellate Court dismissed suit and appeal filed by petitioner/plaintiff---Validity---Mere annexing document with plaint was not ipso facto proof of execution of document tendered in evidence without producing two attesting witnesses---For proving document attesting witnesses had to be compulsorily examined as per requirement of Art.79 of Qanun-e-Shahadat, 1984, otherwise such document was not to be taken as proved---Petitioner/plaintiff was duty bound to prove sale deed in case of denial by respondent/defendant---Petitioner/plaintiff neither produced a single witnesses nor any reason thereof for non-production of attesting witnesses---High Court declined to interfere in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Mst. Alam Bibi v. Kasb Bank 2020 CLC 1835 distinguished.

Noorani Travels, Karachi v. Muhammad Hanif 2008 SCMR 1395; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs PLD 2011 SC 241; Badar Zaman v. Sultan 1996 CLC 202; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish 2010 SCMR 817 and N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26 ref.

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

----Art.17---Attestation of document by witnesses---Object, purpose and scope---Attestation of a document by certain number of witnesses and its proof through them is meant to eliminate possibility of fraud and purported attempt to create and fabricate false evidence for proof thereof.

Sheikh Karimullah v. Gudar Koeri and others AIR 1925 Allahabad 56; Ram Samujh Singh v. Mst. Mainath Kuer and others AIR 1925 Oudh 737 and Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 rel.

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

----Art.79---Expression "shall not be used as evidence"---Connotation---Powerful expression "shall not be used as evidence" until requisite number of attesting witnesses have been examined to prove its execution is couched in negative which depicts clear and unquestionable intention of the Legislature, barring and placing complete prohibition for using in evidence any such document, which is either not attested as mandated by law and / or if required number of attesting witnesses are not produced to prove it.

Sheikh Karimullah v. Gudar Koeri and others AIR 1925 Allahabad 56 and Ram Samujh Singh v. Mst. Mainath Kuer and others AIR 1925 Oudh 737 rel.

Abdul Hadi Tareen for Petitioner.

Imdad Shah and Ayub Tareen, Additional Advocate General for Respondent No. 1.

P L D 2021 Balochistan 127

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

NASEEBULLAH---Petitioner

Versus

The STATE---Respondent

C.P. No. 578 of 2020, decided on 28th July, 2020.

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

----Ss. 265-F & 540---Constitution of Pakistan, Art.199---Constitutional petition---Summoning of witness---Principle---Petitioner/accused was facing trial for causing injuries and damage to person and property of complainant party---Trial Court allowed complainant to produce those persons as prosecution witnesses who were not included in calendar of witnesses---Validity---Mandatory under S.265-F(1), Cr.P.C. upon Court to take all such evidence as was produced in support of prosecution---No restriction was imposed on prosecution to produce evidence of its choice---Court could refuse under S.265-F(2), Cr.P.C. to summon any such witness who was to be called for purpose of vexation of delay or defeating ends of justice---Court had no choice to refuse to examine any witness produced by prosecution in view of S.265-F(1), C.P.C.---All proposed witnesses were figured as eye witnesses in FIR but they were neither cited as witnesses in calendar of witnesses nor their statements were recorded under S.161, Cr.P.C.---Non-availability of statement of a witness who had not recorded its statement could not be considered to be a violation of provision of S.265-C, Cr.P.C.---Law did not place any embargo on examination of a person during course of trial, either in favour of prosecution or accused, who had not recorded his statement under S.161, Cr.P.C.---High Court declined to interfere in the orders passed by Trial Court as well as Lower Appellate Court in exercise of revisional jurisdiction---Constitutional petition was dismissed in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

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

----Ss. 161 & 265-F---Summoning of witness---Non-recording of statement by police during investigation---Effect---Provision of S.265-F, Cr.P.C. does not provide specifically that only those witnesses can be examined whose statements have been recorded under S.161, Cr.P.C. or their names have been mentioned in challan in column of witnesses.

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

----S. 540---Summoning of witness---Essential for the just decision of the case---Determination---Procedure---Not necessary to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision the case---Such is enough if it appears so to the Court from any material and infers from the material including that which is already available to the Court in any, admitted evidence or material otherwise lying on the judicial and other files before it.

The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.

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

----S. 265-F(2)---Summoning of person not named in calendar of witnesses---Principle---Person not already cited as a witness can be produced under S.265-F (2), Cr.P.C. when permission is given by Court.

Shah Zain Bugti and others v. The State PLD 2013 SC 160 rel.

Naimatullah Achakzai for Petitioner.

Mian Badar Munir, Assistant Attorney General-I ("AAG") and Mrs. Noor Jahan Kahoor, Additional Prosecutor General ("APG") for the State.

P L D 2021 Balochistan 134

Before Jamal Khan Mandokhail, C.J. and Muhammad Kamran Khan Mulakhail, J

IMTIAZ AHMED SHAHID, ADVOCATE HIGH COURT, QUETTA---Petitioner

Versus

The GOVERNMENT OF BALOCHISTAN through Secretary Health Department, Quetta---Respondent

C. P. No. 769 of 2021, decided on 19th July, 2021.

(a) Pakistan Medical Commission Act (XXXIII of 2020)---

----S. 29(1)---Medical certificate---Validity---Medical certificate, prescription or medical or dental advise only issued by registered medical or dental practitioner under S.29(1) of Pakistan Medical Commission Act, 2020, can be considered valid.

(b) Police Rules, 1934---

----R. 25.18---Constitution of Pakistan, Art. 199---Constitutional petition---Medical certificate---Private doctor---Petitioner met an accident and was treated by private doctor---Grievance of petitioner was that medical certificate issued by private doctor was not accepted by authorities---Validity---Medical opinion required in police case, under R.25.18 of Police Rules, 1934, could only be issued by the highest medical authority or medical staff of the district---When accused of criminal offence would get benefit of privately issued medical certificate and similarly complainant or injured of any criminal case would also be at ease to exaggerate his alleged injury/hurt allegedly caused during course of criminal offence---High Court apprehended that such act would open floodgate and mushroom growth of fabricated and manipulated medical record and the same could not be permitted or legitimized---Constitutional petition was dismissed, in circumstances.

Petitioner in person.

P L D 2021 Balochistan 139

Before Abdul Hameed Baloch, J

ABDUL KAREEM---Petitioner

Versus

SULTAN BADSHAH---Respondent

Civil Revision No. 05 of 2021, decided on 3rd May, 2021.

Civil Procedure Code (V of 1908)---

----O. XIII, R. 2 & O. XXXVII, R. 2---Suit for recovery of money---Additional evidence, production of---Principle---Petitioner/defendant was aggrieved of permission granted under O. XIII, R. 2, C.P.C. by Trial Court to respondent/plaintiff to place on record certain document---Validity---Object of O. XIII, R. 2, C.P.C. was to exclude forged document and expedite trial and not to exclude genuine document---If there was no doubt as regards to authenticity then for substantial justice such document was not to be refused to be received in evidence merely on the ground of delay---Trial Court was empowered under O. XIII, R. 2, C.P.C. to allow production of document at later stage, if the document was essential for just decision of the case and also the document was free from any suspicion of being forged and fabricated---High Court declined to interfere in order passed by Trial Court---Revision was dismissed, in circumstances.

Muhammad Musa v. Hamid Ali 2021 CLC 254; Trading Corporation of Pakistan (Pvt.) Ltd. v. Haji Khuda Bux Amir Umar (Pvt.) Ltd. 2017 CLC 1387 and Firhan Faheem v. District Judge 2003 CLC 1579 ref.

Shah Muhammad v. Habibullah PLD 2020 Bal. 5; Anwar Ahmad v. Mst. Nafis Bano 2005 SCMR 152; Muhammad Afzal v. Khush-Hal PLD 2004 Azad (J&K) 43; Faizullah's case, PLD 1984 Azad (J&K) 41; Makhdoom Ahmed Mahmood v. Fouzia Hussain 1995 MLD 1164 and Kohinoor Tobacco Company (Pvt.) Ltd. v. S. M. Idrees Allawala 2013 CLC 1789 rel.

Abdul Jabbar and Farah Farooq for Petitioner.

Jamil Ahmed Khan Babai for Respondent.

P L D 2021 Balochistan 145

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

REHMATULLAH---Petitioner

Versus

Mst. BIBI ZENORA and 2 others---Respondents

C. P. No. 335 of 2020, decided on 8th March, 2021.

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

----Ss. 5, Sched. & 14---Family Courts Rules, 1965, R. 3---Dastoor-ul-Amal Diwani State Kalat, 1952, S. 24---Suit for dissolution of marriage---Appeal---Scope---Respondent/wife filed suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates---Family Court partly decreed the suit---Petitioner filed appeal before the Member, Majlis-e-Shoora, who returned the appeal by holding that the court had no jurisdiction to entertain the appeal---Petitioner filed appeal before the District and Sessions Judge, who dismissed the same being barred by time---Validity---Section 14 of the Family Courts Act, 1964, provided that a decision given or decree passed by a Family Court shall be appealable to High Court, where the Family Court was presided over by a District Judge and to the District Court in any other case---To define the words "District Judge", an Explanation was given in R. 3 of the Family Courts Rules, 1965, wherein it was laid down that "for the purpose of this rule and R. 7, the expression 'District Judge' shall be deemed to include the President of Majlis-e-Shoora, Kalat"---Section 24 of the Dastoor-ul-Amal Diwani State Kalat, 1952, envisaged that there shall be a Majlis-e-Shoora comprising of two or more members to decide appeals arising out of the judgments and decrees of the Qazis working under the hierarchy of Dastoor, thus, for all intents and purposes, reference to word 'Majlis-e-Shoora' meant a Court constituted with two members and a President, whereas the reference to words 'President of Majlis-e-Shoora' was limited only to President of Majlis-e-Shoora---Provincial Government while defining the territorial limits of the various courts of Majlis-e-Shoora had simultaneously declared the respective District and Sessions Judges as President of different Courts of Majlis-e-Shoora---Intention of legislature was clear that in family matters either decided by a Civil Judge or Qazi, the appeal would solely lie before the District Judge---Constitutional petition was dismissed accordingly.

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

----S. 14---Family Courts Rules, 1965, R. 22---Appeal---Limitation---Condonation of delay---Scope---Respondent filed a suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates---Family Court partly decreed the suit---Petitioner filed an appeal before the Member, Majlis-e-Shoora, who returned the appeal by holding that the court had no jurisdiction to entertain the appeal---Petitioner filed an appeal before the District and Sessions Judge, who dismissed the same being barred by time---Validity---Even the appeal filed before the court of Member, Majlis-e-Shoora, was barred by time---Rule 22 of Family Courts Rules, 1965, provided that an appeal under S.14 of the Family Courts Act, 1964, shall be preferred within 30 days of the passing of the decree or a decision excluding the time required for obtaining the certified copies---Although it was provided in the proviso to R. 22 of Family Courts Rules, 1965, that the Appellate Court might for sufficient cause extend the period---Nothing was available on record to suggest that any application was filed for extension of time, nor any such ground was taken in the memorandum of appeal---Constitutional petition was dismissed accordingly.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Suit for dissolution of marriage---Ground for dissolution of marriage---Cruelty---Scope---Respondent filed a suit for dissolution of marriage on the ground of cruelty, recovery of dower amount, custody of minors and return of educational certificates---Family Court partly decreed the suit---Petitioner filed appeal before the District and Sessions Judge, who dismissed the same being barred by time---Validity---Statement of respondent/wife and her witnesses showed that there was maltreatment both physically and mentally from the side of petitioner, that was why the petitioner had to give surety that next time there would be no beatings---Petitioner, on the other hand, had failed to give substantiating evidence to prove that the respondent willingly left him and refused to rejoin him---Petitioner had also failed to maintain the respondent for several years during her stay with her parents---Cruelty was not limited to physical bearing rather it could either be mental or even by conduct---Respondent had taken shelter in her parent's house for several years and in such a situation the respondent had sustained acute mental anguish and suffering by the reckless and careless attitude of the petitioner, which compelled her to approach the trial court for dissolution of marriage---Constitutional petition was dismissed accordingly.

(d) Interpretation of statutes---

----Proviso to section---Construction---Proviso is to be restrictively construed.

(e) Family Courts Act (XXXV of 1964)---

---S. 14---Appeal---Dissolution of marriage---Scope---Logic behind non-provision of appeal in the dissolution of marriage case is to protect the underprivileged and generally oppressed section of society i.e. wife, from costly and prolonged litigation---Lawmakers have put a clog on the right of a husband to file appeal in case of dissolution of marriage, keeping in view the peculiar circumstances prevailing in the society.

(f) Family Courts Act (XXXV of 1964)---

----S. 14---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(d)---Appeal---Dissolution of marriage---Scope---Section 14 of the Family Courts Act, 1964, contemplates appeal from the decision of the Judge Family Court to be competent before the District Judge but with a bar that no appeal shall lie from a decree passed by a Family Court dissolving the marriage on any other ground or grounds specified therein except on the ground mentioned in S.2(viii)(d) of Dissolution of Muslim Marriages Act, 1939, which relates to the disposal of property of wife preventing her from exercising her legal right over it.

(g) Administration of justice---

----No one can claim benefit of his own wrong.

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

----S. 14---Exclusion of time of proceeding bona fide in Court without jurisdiction---Scope---Where a litigant has not acted in a bona fide manner or he has acted without due diligence in prosecuting remedies before a wrong forum, he cannot be benefitted under S.14 of the Limitation Act, 1908.

Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Laches---Scope---No period of limitation is prescribed for filing a constitutional petition under Art.199 of the Constitution, but it has to be filed within a reasonable time---Reasonable time means time requisite for filing of appeal/ revision, which is normally three months.

Khali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

Abdul Ahad Kakar for Petitioner.

Miss Sarwat Hina for Respondent No.1.

P L D 2021 Balochistan 157

Before Jamal Khan Mandokhail, C.J. and Muhammad Kamran Khan Mulakhail, J

ASSOCIATED BUILDERS (PVT.) LTD. Through authorized person and another---Petitioners

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary Balochistan and 4 others---Respondents

C. Ps. Nos. 1147, 1321 and C.P. No. (T) 58 of 2020, decided on 15th July, 2021.

(a) Balochistan Board of Revenue Act (XI of 1957)---

----S. 8---Review---Wrong heading on the top of constitutional petition---Effect---Mentioning of word 'revision' at the top of petition instead of word 'review' is not fatal nor excludes jurisdiction of Board of Revenue to entertain review petition filed under S.8 of Balochistan Board of Revenue Act, 1957.

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

----O.VI, Rr. 14 & 15---Pleadings, non-signing of---Unintentional failure to sign pleadings can be rectified with permission of Court by a person concerned to sign it subsequently.

2003 YLR 3309 and PLD 1994 Lah. 111 distinguished.

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

----S. 42---Record of rights---Object, purpose and scope---Basis of entries---Purpose of preparation of revenue record is to maintain a record of rightful owner of land for the purposes of revenue collection---While preparing record of rights or mutating any property, it is incumbent upon revenue authorities to adopt a procedure provided by S.42 of Balochistan Land Revenue Act, 1967---Revenue officer has to mutate a property in record on the basis of inheritance, registered sale deed executed on the basis of transaction legally taken place between parties or by or under an order or decree of Court.

(d) Balochistan Land Revenue Act (XVII of 1967)---

----Ss. 42 & 164---Balochistan Board of Revenue Act (XI of 1957), S.8---Mutation entry---Provisional allotment/offer letter---Petitioner claimed to be owner of land in question on the basis of entries in revenue record made against provisional allotment/offer letter---Board of Revenue in exercise of review jurisdiction cancelled mutation of land in favour of petitioner---Validity---Provisional allotment/offer letter was neither permanent allotment order, nor issued by a competent authority---No registered sale deed was available to prove any legal transaction taken place between Provincial Government and petitioner---No order was made nor any decree passed by any Court in favour of petitioner to believe him as lawful owner of land in question---Mere mutation entry in revenue record did not create any title or vested right---Petitioner could not claim his right of ownership on the basis of revenue record---Board of Revenue was the highest forum in revenue hierarchy which had all powers to direct subordinate revenue authorities to undo the wrong in revenue record by any revenue officer subordinate to the Board and rectify the same---High Court declined to interfere in correction of revenue record as there was no illegality or jurisdictional defect in the order---Constitutional petition was dismissed in circumstances.

PLD 1993 SC 147; 2010 SCMR 115; Mustafa Impex, Karachi v. The Government of Pakistan PLD 2016 SC 808; 2018 SCMR 359; 2017 SCMR 118 and PLD 2021 Quetta 9 ref.

Naeem Bukhari, Ijaz Janjua and Tahir Ali Baloch for Petitioners (in C.Ps. Nos. 1147 and 1321 of 2020), Ahmed-ur-Rehman and Imtiaz Baloch, Law Officer GDA for Respondent No.3 (in C.Ps. Nos. 1147 and 1321 of 2020).

Amanullah Kanrani for Respondent No.5 (in C.Ps. Nos. 1147 and 1321 of 2020).

Shai Haq Baloch, Additional Advocate General along with Javed Iqbal, Legal Expert and Muhammad Akram, Secretary (Judicial and Inquiry) Board of Revenue for Official respondents (in C.Ps. Nos. 1147 and 1321 of 2020).

Amanullah Kanrani for Petitioner (in C.P. No.(T) 58 of 2020).

Shai Haq Baloch, Additional Advocate General along with Javed Iqbal, Legal Expert and Muhammad Akram, Secretary (Judicial and Inquiry) Board of Revenue for Respondents (in C.P. No.(T) 58 of 2020).

P L D 2021 Balochistan 172

Before Jamal Khan Mandokhail, C.J. and Muhammad Kamran Khan Mulakhail, J

MUHAMMAD SAJID TAREEN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others---Respondents

C.P. No. 901 of 2021, decided on 19th July, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Inheritance---Protection of women's right of inheritance---Prohibition of depriving woman from inheriting property---Scope---Petitioner filed constitutional petition with the assertion that the process of settlement was initiated in the different parts of the province and during such process, the property was being settled and mutated only in the name of male members, whereas, the names of females were not being provided/supplied to the revenue authorities nor the revenue authorities were making efforts to get the names of the female shareholders---Validity---Perusal of the reply filed by the Provincial Government revealed that no mechanism was drawn in the pre-settlement process---Though the publication was being made in the newspapers prior to carrying out the mutation of inheritance, but the same was not enough, as firstly the newspapers were not supplied and circulated in the far flung areas of the province and secondly the womenfolk being illiterate either did not have excess to the newspaper or being illiterate were unable to read and understand the same---Mere publication in the newspapers was not enough to invite the shareholders or to draw their attention, rather concrete steps were required to be taken by the Revenue Authorities to ensure that no female shareholder was deprived from her right of inheritance or her name was not excluded from the settlement process or mutations carried thereon---High Court observed that it would be good enough to take the NADRA authorities (National Database and Registration Authority) on board prior to carrying out the process of inheritance and the family tree of the deceased, whenever felt necessary, be obtained from the NADRA authorities and after assuring and confirming the number and names of the legal heirs of the deceased, the further process be carried out---High Court while accepting the petition issued certain directions to the official respondents.

Following directions were issued by the High Court while accepting the petition:

I. The rights of women are being protected by the Holy Quran, which cannot be denied, thus, they are entitled to be given their/her right from the legacy of their/her deceased predecessor.

II. No mutation process of inheritance be carried out without transferring the property firstly in the name of all shareholders including female(s) and any property being transferred/mutated by concealling or excluding the name(s) of female(s) shareholder(s), the entire process would be treated as null and void, and liable to be reversed without even approaching the court of civil jurisdiction.

III. No female shareholder can be deprived from her right on basis of relinquishment/gift deed, bridal gift, maintenance allowance, payment of some cash for any erroneous consideration, force, or for any other means, whatsoever high it may be, other than right of inheritance in the legacy/property of her/their deceased predecessor. In case of any such reason stated hereinabove or leading to deprivation of female shareholder from her right of inheritances, the entire process would stand null and void.

IV. No Process of settlement is to be carried out anywhere in the province, unless it is assured that the name of female shareholders are provided and are included in the process, and in case, there is no female in the family, the Revenue Authorities must specifically mention the relevant details in this behalf.

V. The Secretary/Senior Member Board of Revenue shall ensure and direct his sub-ordinate revenue/settlement officials that before starting the settlement operation in any area of the province, the leaflet/handbill duly written in Urdu and local language of the respective area shall be distributed in the girls' schools/colleges, hospitals and door to door by deputing a lady constable and if not available the lady teacher or midwife/nurse of the respective basic health unit (BHU)/District Head Quarter Hospital (DHQH).

VI. The respective Deputy Commissioners shall also be directed to arrange the announcement in Urdu and local language of the respective area on loudspeaker in the Masjids/Madrasas, followed by beat of drum in the streets/vicinities, within the precincts of the targeted area(s) of settlement operation.

VII.The DG NADRA is directed to establish an on call special desk facilities at the revenue office of the relevant District/Tehsil for provision of family tree of the deceased, whose property is either likely to be inherited or to be settled during the settlement operation to ensure inclusion of name(s) of female legal heir(s) of any deceased either male or female.

VIII. The DG NADRA is also directed to ensure that wherever the female legal heir after getting marriage is or has been included in the family tree of her husband, through registration track system (RTS), the origin of her father's family shall also be ascertained to avoid any deprivation of legal right.

IX. The Secretary, Member Board of Revenue is directed to convene a meeting with the DG NADRA for evolving a comprehensive mechanism for avoiding unnecessary delay for provision of family tree of the deceased and till establishment of special facility at the revenue offices, an interim procedure shall be devised to achieve the objects of this judgment.

X. The Secretary, Member Board of Revenue is further directed to constitute a complaint cell at the Revenue Office(s) supervised by an officer not below the rank of Additional Secretary, to avoid any unnecessary delay in the process of inheritance as well as in the settlement operation and also to eradicate the possibility of illegal gratification.

XI. The Member Board of Revenue and his all sub-ordinate officials are strictly directed that in case of any complaint with regard to deprivation of any female legal heir(s) a legal action shall be initiated against the wrong doers by registering a criminal case under the provision of section 498-A, P.P.C. While for this purpose no female shall be compelled either to withdraw from her claim or to force her to initiate a criminal proceeding on her own, rather, it would be the duty of the concerned revenue official to lodge a criminal case.

XII.All civil suits relating to inheritance pending before the Civil Court are directed to be decided within three months from receipt of this judgment and such period in no case shall exceed six months, from today, whereas, if any suit is newly instituted, the same be registered as Inheritance Suit/appeal/revision/ petition and be decided within three months without extension of further time. All the appeals and revisions pending before the Appellate Court and Revisional Courts are directed to be decided within one month preferably, but not later than two (02) months. The Member Inspection Team of this court shall circulate a circular and ensure that these directions are followed in letter and spirit within stipulated time.

XIII. The Registrar of this Court is directed that if any complaint is received by any aggrieved person against any revenue/settlement official or by any private individual with regard to deprivation of female legal heir either in case of inheritance or settlement operation, the same be immediately placed before us for our perusal in chamber and after passing an appropriate direction same shall immediately be transmitted to Senior Member Board of Revenue for information and compliance.

XIV. Any application/complaint filed with regard to issue decided in this judgment shall be treated as an execution application, which after entering as a Civil Miscellaneous Application shall be proceeded accordingly either under the Code of Civil Procedure, 1908, (C.P.C.) or The Contempt of Court Ordinance, 2003, and as a criminal complaint under section 200, Cr.P.C.

Verses 1, 2, 7, 11 and 12 of Surah An-Nisa (4); Farhan Aslam and others v. Mst. Nuzba Shaheen and others 2021 SCMR 179; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1618; Taleh Bibi and others v. Maqsooda Bibi and others 1997 SCMR 459; Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi and others PLD 1990 SC 1 and R.F.A. No.40 of 2011 rel.

Petitioner in person.

Shai Haq Baloch, A.A.G. along with Qamar Masood, SMBR, Javed Iqbal, Legal Expert and Muhammad Akram, Secretary (Judicial and Inquiry), Board of Revenue Department for Respondents.

Kashif Panezai for Interveners.

P L D 2021 Balochistan 196

Before Abdul Hameed Baloch, J

SAMIULLAH---Applicant

Versus

BAZ MUHAMMAD---Respondent

Civil Miscellaneous Application No 1282 of 2020, decided on 11th June, 2021.

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

----S. 12(2)---"Final order"---Application under S.12(2), C.P.C.---Appeal of respondent against eviction order of Trial Court in favour of respondent (alleged owner of shop) was dismissed by High Court---Separate suit of the present applicant for declaration and permanent injunction against respondents was decreed in favour of applicant/ plaintiff---Held, that applicant was recorded owner of shop as per revenue abstract---Respondent intentionally concealed from High Court the fact that applicant filed the suit for declaration and permanent injunctions---Even after disposal of the said suit, respondents (contesting in appeal before High Court) did not bother to inform the fate of the suit to High Court---Fraud would vitiate most solemn proceeding---Respondents by concealing the facts from Court/Rent Controller committed fraud---Concealment of facts should be discouraged---High Court accepted application under S.12(2) and remanded the matter to Rent Controller with direction to implead the applicant and decide the application according to law---Cost of Rs.200,000/- imposed on the respondents.

The Punjab Cooperatives Board for Liquidation v. Dr. Nazir Saeed 2019 MLD 201; Mst. Marryam Bibi v. Mst. Murad Bibi 2018 MLD 984 and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 ref.

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

----S. 12(2)---Phrase 'court which passed the final judgment, decree or order'---Scope---Applicant's prior application under S.12(2) for setting aside the order of trial Court was dismissed by trial Court as withdrawn for filing it before proper forum i.e. High Court---Held, that contention of respondents that application under S.12(2) of Civil Procedure Code, 1908 could not be filed before Trial Court because High Court affirmed judgment of Trial Court, had no force---With respect to the four situations relevant to the determination of the final court within the purview of S.12(2) of C.P.C. as mandated by Supreme Court in Sahabzadi Maharunisa v. Mst. Ghulam Sughran (PLD 2016 SC 358), High Court recorded elaborate observations:

High Court observations were as follows:--

(i) In the cases where the remedy of appeal/revision is provided against a judgment etc. or a remedy of writ is availed, the appellate/ revisional/constitutional forum records reasons on the consideration of the issues of law and /or fact the judgment etc. of the subordinate court/forum will merge into the decision of the appellate court etc. irrespective of the fact that such judgement reverses, varies or affirms the decision of the subordinate court/forum and its decision will be operative and capable of enforcement on the principle of merger, the application under section 12(2) of the C.P.C. will be maintainable before the appellate/revisional/constitutional forum (High Court, District Court, Tribunal or Special Court as the case may be);

(ii) In the situation where an appeal/revision/writ is not disposed of on merits but on some other grounds; there are certain exceptions to the rule of merger which shall not apply where an appeal etc. has been dismissed:-(i) for non-prosecution; (ii) for lack of jurisdiction; (iii) for lack of competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi) withdrawal of the matter by the party; (vii) for lack of locus standi; (viii) decided on the basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) is rendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writ is dismissed on the ground of availability of alternate remedy; (xii) where the writ is dismissed on the point of laches. Such exceptions shall also be attracted to the decision(s) of the Supreme Court, where applicable. However, where the case falls within the noted exceptions the forum for an application under section 12(2) of the C.P.C. is the one against whose decision the matter has come and been disposed of in the above manner by the higher forum;

(iii) In the cases of reversal or modification of the judgment of the High Court(s), Tribunal(s) or Special Courts before High Court, or those affirmed in appeal (where the matter does not fall within the exceptions) the judgment of the Supreme Court shall be deemed to be final for moving an appropriate application on the plea of lack of jurisdiction, misrepresentation and fraud;

(iv) In the cases where leave is declined by High Court, the judgment etc. of the lower fora will remain intact and final and will not merge into the leave refusing order, for the purposes of an application under section 12(2) of the C.P.C. which can only be filed before the last forum i.e. the High Court(s) if the matter has been decided in the appellate/revisional/writ jurisdiction by the said court, or if the matter has come to this Court directly for leave from a Tribunal/Special Court (see Article 212 of the Constitution). However where the petition for leave to appeal has been dismissed with detailed reasons and a thorough decision of the questions of law and fact has been made, the judgment of the High Court(s)/Tribunal will though not merge into the order of the Supreme Court yet in order to avoid a ludicrous situation that once a question of law and fact has been elaborately and explicitly dealt with by High Court in the leave refusing order and the court below may not be in a position to adjudicate upon those points without commenting on the order/reasons of the Supreme Court and to reopen the matter, an application in the nature of section 12(2) of the C.P.C. can be filed before High Court, leaving it to the absolute discretion of this Court to either decide such application itself or send the matter to the lower fora for the decision.

Khalil-ur-Rehman for Applicant.

Siyal Khan for Appellant.

Syed Muhammad Zahid for Respondent.

P L D 2021 Balochistan 206

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

Syed NASEEM AGHA and 3 others---Petitioners

Versus

SHUJA UD DIN KASI and others---Respondents

Constitutional Petition No 1203 of 2020, decided on 8th March, 2021.

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

----S. 75 & O. XXVI, R. 1---Suit for declaration, possession and permanent injunctions---Local Commission, appointment of---Case at initial stage---Dispute to the extent of only possession as owners---Authenticity/genuineness of mutation entries---District Court in revisional jurisdiction set aside order of Trial Court for appointment of Commission---Validity---Neither issues were framed nor the parties had led any evidence---At such initial stage, the authenticity/genuineness of the mutation entries of respondents could only be determined/ established before the Civil Court through full-fledged inquiry/scrutiny, that too after providing the full opportunity of hearing to both the parties before the Trial Court---At such initial stage the genuineness/ authenticity could not be determined through the appointment of the local commission---No bar on filing a second application for appointment of local commission---Constitutional petition was dismissed accordingly.

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

----S.9 & O. XXVI, R.9---Jurisdiction---Demarcation of suit property---Scope---Civil Court could resolve the controversy by adopting any means, and there was no restriction imposed upon the exercise of powers under O. XXVI, R. 9 of C.P.C. to get the disputed land demarcated as to whether the same would fall within the specific Khasra number with specific boundary limits/dimensions.

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

----S. 75 & O. XXVI, R. 1---Local Commission, report of---Scope---Report of Commission was not exclusive and was always subject to the objection of the parties, and the Court was not bound to straightaway accept/reject the same, but the Court would evaluate the objection of the parties---Even if the report was accepted, it would not amount to evidence, but would only help the Court in reaching to a conclusion.

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

----Ss. 9, 75 & O. XXVI, Rr. 1 & 9---Jurisdiction---Phrase 'local investigation'---Local dispute of encroachment---Scope---Term 'local investigation' indicated certain special powers available to Civil Court to collect information, inquire into the matter, record evidence, in order to formulate its opinion to get the issue resolved in its true perspective as without appointment of Local Commission the Court could not have a clear view and the just decision could not be achieved especially when the matter related to a local dispute regarding encroachment which would otherwise require the probe on site and as such there was no direct evidence regarding the identification/nature of the site.

Abdul Sattar Kakar for Petitioners.

Rizwan-ud-Din Kasi for Respondents Nos. 1 to 5.

P L D 2021 Balochistan 211

Before Abdul Hameed Baloch, J

DIRECTOR GENERAL, PROVINCIAL DISASTER MANAGEMENT AUTHORITY (PDMA), BALOCHISTAN and others---Petitioners

Versus

AMIRULLAH and others---Respondents

Civil Revisions Nos. 315 and 317 of 2020, decided on 23rd June, 2020.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 75---Proof of documents by primary evidence---Photocopy---Suit for declaration---Scope---Plaintiffs filed suit for declaration and recovery of compensation with the averment that due to earthquake their district was seriously affected, pursuant to which the government through a notification had categorized the affectees in four categories such as totally collapsed house, unrepairable damaged house, repairable damaged house and minor damaged house and that the plaintiffs' houses were totally collapsed but they were not compensated accordingly---Trial Court decreed the suit---Appellate Court partly allowed the appeal---Validity---Local Commission had reported that the plaintiffs' houses had collapsed and were unrepairable---Report of Local Commission was not disputed---Defendants had not filed objection on report of Local Commission---Defendants in their written statement had stated that the survey was conducted by the Army but none from the Army was examined nor was the original survey report exhibited---Mere tendering of photocopy of report had no legal value---Judgment passed by Trial Court was upheld and that of Appellate Court was set aside.

National Bank of Pakistan, Shahrah-e-Quaid-e-Azam Lahore v. Messrs Ch. Auto and Tools Agency PLD 2001 Lah. 133 and Mst. Razia Ahmed's case PLD 2000 Kar. 288 rel.

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

----O. XXVI, R. 2---Order for Commission---Purpose---Scope---Purpose of appointment of Local Commission is to elucidate any matter in dispute.

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

----Arts. 75 & 74---Proof of documents by primary evidence---Secondary evidence---Scope---Under Art. 75 of Qanun-e-Shahadat, 1984, the document must be proved by primary evidence---Certified copy of a document would be considered on secondary evidence as contained in Art. 74(1) of Qanun-e-Shahadat, 1984.

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

----Art. 75---Proof of documents by primary evidence---Photocopy---Scope---Document should be primary evidence, the secondary evidence can be produced when the original was non-existent or lost---Where the party has not proved the loss of original evidence the secondary evidence has no value.

(e) Pleadings---

----Written statement cannot be considered as evidence.

Ayub Tareen, A.A.G. for Petitioner and Respondents Nos. 9 to 11 (in C.R. No. 315 of 2020).

Adnan Ejaz and Tahir Baloch for Private Respondents (in C.R. No. 315 of 2020).

Adnan Ejaz and Tahir Baloch for Petitioners (in C.R. No. 317 of 2020).

Ayub Tareen, A.A.G. for Respondents (in C.R. No. 317 of 2020).

P L D 2021 Supreme Court 1

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

JUSTICE QAZI FAEZ ISA and others---Petitioners

versus

The PRESIDENT OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 17, 19 of 2019 and C.M.A. No.7417 of 2019 in Constitution Petition No. 19 of 2019 in Constitution Petitions Nos.20-30, 32 and 34 of 2019, decided on 19th June, 2020.

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 agreeing with regard to quashing of Presidential reference against the judge but dissenting by not joining the majority as to the directions given to the Federal Board of Revenue for initiating proceedings against the judge's wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Majority view]

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope and pre-requisites---In order to invoke the original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution, the impugned action must be shown to involve a matter of "public importance" arising from the breach of a fundamental right which affected the public at large.

Al-Jehad Trust and another v. Lahore High Court 2011 SCMR 1688 ref.

(b) Constitution of Pakistan---

----Arts. 4, 9, 10-A, 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Maintainability---Fundamental right of the general public which was claimed by the petitioner to be under threat was the derivative right of the independence of the judiciary---Said right was an essential prerequisite for the enjoyment of, inter alia, the principal fundamental right to access justice which was guaranteed to the people by Arts. 4, 9 & 10-A of the Constitution---In the absence of independence of the judiciary, all other facets of the right to access justice were essentially rendered null and void---Unlawful infringements of Art. 209 of the Constitution eroded the independence of the judiciary which was directly connected with the right to access justice---Present petition, therefore, satisfied the two-fold requirements of Art. 184(3) of the Constitution, and was accordingly maintainable.

Sh. Riaz-Ul-Haq v. Federation of Pakistan PLD 2013 SC 501 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(c) Constitution of Pakistan---

----Arts. 209(5) & 209(6) & Preamble---'Independence of judiciary' and 'accountability of judges', concepts of---Complementary concepts---Independence of the judiciary was not primarily for the benefit of the Judges, but existed instead to secure the interests, rights and benefits enjoyed by the whole of society---If one were to focus only on the protection of the judiciary from the depredations of the organs of the State (howsoever vitally important and crucial that may be), it would not be the independence of judiciary that would result but rather it would be the rule of Judges without any checks and balances---Accordingly, it was only fitting that judicial independence and accountability were treated as being complementary to each other.

(d) Constitution of Pakistan---

----Arts. 184(3), 209(5)(b) & 211---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Proceedings before Supreme Judicial Council ('the Council' )---Bar of jurisdiction of courts---Whether Art. 211 of the Constitution that barred jurisdiction of courts in respect of proceedings before the Council was applicable in the present case---Held, that in present proceedings under Art. 184(3) of the Constitution the Supreme Court was neither adjudicating upon the process of the Council nor quashed its notice issued to the petitioner-judge---In fact, in view of the findings recorded in the present judgment, the Supreme Court had simply abated the notice---Factual information underlying the reference did cast a smear on the petitioner's name and could not be ignored; however, without confronting the owners of the foreign properties the information was at present inchoate to form the basis of proceedings under Art. 209 of the Constitution---In such circumstances, the same must be verified to test the veracity of the inference drawn in the reference about the source of funds---Nevertheless, as the reference had been quashed, the notice issued by the Council had no foundation except for the preliminary factual information contained in the reference---In this situation, the notice had rightly been abated because it also lacked the factual and legal material on which the reference was based---Accordingly, Art. 211 of the Constitution had no application to the available facts of the present case---Constitutional petitions were disposed of.

(e) Constitution of Pakistan---

----Arts. 184(3), 209(5) & 209(6)---Presidential reference against a judge of the Superior Court before the Supreme Judicial Council ('the Council')---Pre-reference proceedings---Whether the Supreme Court could strike down pre-reference proceedings on judicial review grounds---Reasons for quashing the Presidential reference recorded.

Supreme Judicial Council ('the Council') was a unique (and the only) body which could examine the conduct of a Superior Court Judge and decide whether the said Judge was fit to complete his tenure. Reference, which was an executive action under the Constitution, forwarded to the Council should not be struck down on ordinary judicial review grounds such as unreasonableness and proportionality, as doing so would be belittling its status, ignoring its competence and pre-empting its decisions based on appreciation of the record. Giving the power of judicial review to the Supreme Court to set aside pre-reference proceedings would be tantamount to rejecting the capacity and jurisdiction of the Council to adjudicate upon any question of unreasonableness, proportionality or suitability raised in relation to the merits of the President's actions; it would also open the floodgates of litigation by Judges who were the subject of a reference. Such course of action prima facie appeared to be contrary to the meaning of Article 209 of the Constitution which entrusted all matters regarding the merits of a case to a high powered Constitutional domestic forum within the judiciary.

Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607 and Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 ref.

(f) Constitution of Pakistan---

----Arts. 209(5)(b) & 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209 (8) of the Constitution), Preamble---Supreme Judicial Council Procedure of Enquiry 2005, R. 3(l)---Supreme Judicial Council ('the Council')---Reference against a judge of the Superior Court on grounds of 'misconduct'---Misconduct---Meaning, scope and standard of proof.

Any conduct of a judge which conflicted with the mandated norms in the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution) ['the Code'] could attract scrutiny for possible misconduct. The Code primarily provided guidance to Judges of Superior Courts on the exemplary qualities they must possess, and it expected that Judges would conduct themselves with integrity, propriety and dignity both in their public and private lives and would not engage in controversy. Therefore, conduct that diverged from these qualities would constitute misconduct.

Articles of the Code were non-legal in nature. A violation of any of these Articles would neither sustain a civil lawsuit nor a criminal prosecution. However, an infringement thereof may very well lead to disciplinary proceedings under Article 209(5) of the Constitution. The Code does not only expect impeccable behaviour from a Judge in the courtroom but it also expected him to maintain these high standards of integrity, propriety and dignity outside the Court. Such qualities and conduct were necessary to preserve not only the prestige and honour of the Judge but also the prestige and honour of the institution of the judiciary. [p. 98] Q1 & R1

Misconduct was any conduct of the Judge which damaged the public's perception about his ability to discharge his duties or which undermined public confidence in the institution of the judiciary regardless of whether such conduct occurred in the professional arena or in the private life of a Judge. [p. 100] T1

The Supreme Judicial Council Procedure of Enquiry, 2005 ('the 2005 Rules') had been framed by the Supreme Judicial Council ('the Council') to implement its mandate and regulate its own proceedings, therefore, they carried special force and stood on a higher pedestal than ordinary laws. The 2005 Rules provided guidelines for the conduct of the Council proceedings and the exercise of its jurisdiction. The Council as the constitutionally empowered body had been utilising the criteria of misconduct noted in Rule 3(l) of the 2005 Rules and elaborated upon in the Code to assess the culpability of Superior Court Judges. Rule 3(l)(i) of the 2005 Rules succinctly encapsulated the normative standards of misconduct provided in the Code whilst Rule 3(l)(iii) included an objective criterion that related to a Judge's professional performance. Both criteria were consistent with the Code. [pp. 93, 94] M1 & N1

The threshold that constituted misconduct for the purposes of Judges of the Superior Courts should manifest the intent and spirit of Article 209 of the Constitution. Accordingly, the standard for the commission of misconduct must not be so high that it was impossible to allege thus rendering Judges unanswerable for their conduct. On the other hand, the threshold for misconduct must also not be so lenient so as to become a weapon in the hands of disgruntled litigants, interest groups or Executive against honest, competent and independent Judges. [p. 96] O1

Misconduct recognised under Article 209(5) of the Constitution gave discretion to the Council to determine whether any alleged conduct of a Judge came under the purview of misconduct. It also laid down a high threshold of misconduct to ensure that trivial indiscretions or infractions of the law by Judges or any minor shortcomings in their personal lives did not render them liable to removal proceedings. At the same time it protected the integrity of the judicial institution by allowing for the removal of Judges whose conduct without constituting a violation of a prescribed law was so improper that it rendered such Judge unfit for holding judicial office. [p. 97] P1

Interpretation of misconduct set out by the Supreme Court in the case of The State v. Mr. Justice Akhlaque Husain (PLD 1960 SC 26) reflected the intent and spirit of Article 209(5) of the Constitution, the Code and the 2005 Rules. [p. 98] S1

The State v. Mr. Justice Akhlaque Husain PLD 1960 SC 26; Lawrence v. Attorney General of Grenada 2007 UKPC 18 at para-25; Clark v. Vanstone 2004 FCA 1105 and Privy Council in Hearing on the Report of the Chief Justice of Gibraltar 2009 UKPC 43 at para-202 ref.

(g) Constitution of Pakistan---

----Arts. 209(5)(b) & Fifth Sched., Cl. 4---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Art. II---Federal Service Medical Attendance Rules, 1990, R. 10---Supreme Court Judges (Travelling Allowance) Rules, 1958, Rr. 3(4)(i) & 4(i)---Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, Rr. 20, 21 & 25---UN Economic and Social Council Resolution 2006/23: Strengthening Basic Principles of Judicial Conduct, Cl. 4.7---Family members of a Judge of the Superior Court---Financial affairs---Question as to whether a Judge of the Superior Court needed to be aware/have knowledge of the financial affairs of his independent spouse and adult children---Held, that family members of a Judge were required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others so that no controversy arose which may embarrass the Judge---High standards of propriety were expected of a Judge and his family members---Judges were supposed to have knowledge of the financial interests of their family members, however, if they did not, then they were expected to make reasonable efforts to acquire such information, moreso when they were questioned by a competent forum to explain the financial interests of their family members---Accordingly, there was a continuing obligation on a Judge to keep himself informed about the financial interests of his family members.

Judges, like other public office holders, occupied a position of sacred trust. They held positions where they exercised power and authority under the law. Under the Constitution and the law, such a position carried certain benefits and privileges accompanied by obligations and responsibilities. A Judge of the Superior Court was entitled to these perks and benefits which were also enjoyed by his spouse and family. [p. 101] V1

Generally, every adult individual was recognised in law as an independent entity. However, different principles applied in relation to family members of public office holders. This was because any irresponsible act on the part of a family member may reflect adversely on the Judge. [p. 103] X1

Entitlements of the Judge which he shared with his family [his spouse and members of his family who were either dependent on him or with whom he had financial dealings ("family members")] also carried certain responsibilities and obligations. One such obligation was the duty to enjoy these privileges with dignity, probity and discretion. Apart from the material benefits enjoyed by a Judge's family members during and after his service, they also received an advantage from the respect and recognition extended, through association, by people who interacted with them. In these circumstances, the family members of a Judge were required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others so that no controversy arose which may embarrass the Judge. Although these responsibilities were shared by family members of all public office holders, they applied with particular force to family members of Judges as the latter were expected to be the embodiment of a person who was 'God fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed' [Article II of the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution]. Accordingly, high standards of propriety were expected of a Judge and his family members. [p. 102] W1

Suo Motu Case No. 5 of 2012 PLD 2012 SC 664 ref.

A Judge was required to make reasonable efforts to be aware about the financial affairs of his family members. This precaution helped to forewarn him about extraneous influences or vested interests which could compromise not only his independence and credibility but also the purity and honour of the institution to which he belonged. To understand the rationale behind the obligation on Judges to make reasonable efforts to be informed about or to watch over the financial affairs of their family members, one had to understand the nexus of this obligation with the nature of Judges work and the position they occupied in society. Judges exercised pre-eminent authority under the law. They adjudicated disputes between litigants, held parties appearing before them accountable and imposed liabilities and granted relief to such parties. With their authority came an even greater responsibility to decide cases fairly, independently and in accordance with law. In such a situation, it was imperative for a Judge that he should make reasonable efforts to be informed about the financial interests of his family members for the simple reason that if a case came before him which directly or indirectly involved the pecuniary, proprietary or other personal interests of any of his family members, he could recuse himself. [p. 104] Y1 & Z1

Government of N.W.F.P v. Dr. Hussain Ahmad Haroon 2003 SCMR 104 ref.

Another equally, if not more, important reason for requiring Judges to be aware of the financial interests of their family members was that the law's intent was to prevent a Judge's family from becoming a conduit to discreetly influence his opinions and views. This assured the Judge's independence and integrity apart from safeguarding the institution of the judiciary. [p. 105] A2

Judges were supposed to have knowledge of the financial interests of their family members. However, if they did not, then they were expected to make reasonable efforts to acquire such information, moreso when they were questioned by a competent forum to explain the financial interests of their family members. What constituted 'reasonable effort' on the part of Judges would no doubt depend upon the circumstances of each case. However, a plea of lack of knowledge by a Judge in relation to the financial affairs of his family members was untenable in light of the general trend in international practice, the obligations imposed on a Judge under the Code of Conduct for Judges of the Supreme Court and High Courts [framed by the Supreme Judicial Council under Article 209(8) of the Constitution] and the law relating to public office holders including Judges. Accordingly, there was a continuing obligation on a Judge to keep himself informed about the financial interests of his family members. [p. 107] B2

(h) Mala fides---

----Types of mala fides---'Mala fide in law' and 'malice in fact'---Distinction.

Traditionally, an action actuated with an ulterior purpose to harm another or benefit oneself was classified as an act that was malicious or malice in fact. However, in recent times, the Supreme Court had recognised another category of mala fides, namely, mala fide in law. Even though both were a species of mala fide, yet each had distinct ingredients and consequences. [p. 109] C2

Said Zaman Khan v. Federation of Pakistan 2017 SCMR 1249 ref.

Apart from the generally recognised category of actions driven by a foul personal motive described as malice in fact, there was another category of reckless action in disregard of the law termed as mala fide in law. The first type of mala fide was attributed to a person whereas the second was levelled against the impugned action. While the former was concerned with a collateral purpose or an evil intention to hurt someone under the pretence of a legal action, the latter dealt with actions that were manifestly illegal or so anomalous that they lacked nexus with the law under which they were taken. Thus it was clear that malice in fact and mala fide in law had different ingredients, the former being comprised of factual elements with the latter being composed of legal features, that needed to be established as such for the respective consequences to ensue. Secondly, an accusation of mala fide in law involved more than errors of misreading the record or non-application of the law or lack of proportionality in the impugned action. Instead, this was a serious allegation of wanton abuse or disregard of the law. However, when an ulterior motive to cause harm was proved then the repercussions of malice in fact followed. It was for this reason that a mere allegation that an action had been taken wrongly could not be grounds to hold that such action suffered from mala fide in law or malice in fact. [p. 110] D2

Imputing mala fide of either kind to a person or an action was a grave accusation. It should not be made lightly but could only be done when the facts or legal defects justified its use. [p. 110] E2

(i) Mala fides---

----'Malice in fact'---Scope and standard of proof.

Plea of malice in fact required a high standard of proof. The rationale behind such an approach was that a plea of malice in fact frustrated the process of justice. After a complainant established malice in fact against a person, the entire proceeding by the latter was brought to an end. This resulted in the merits of the case being ignored. Moreover, the reputation of the person, against whom an allegation of malice in fact was made, became tarnished and if the said allegation was proved then his repute was forever ruined. He was made out to be avicious individual who harboured ill-intentions against others. Such were the negative consequences of this plea, if established. This reasoning applied with greater force if such an allegation was made against senior public functionaries of the State. [p. 110] F2

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151 ref.

An allegation of malice in fact was unlike any other ordinary allegation. It carried with it a stigma for the accused which could not easily be washed away. If a lower standard of proof for malice in fact was adopted, that would open the floodgates for recalcitrant litigants to make such allegations against their opposing side to derail the process of justice and to defame their opponents in Court. Therefore, to limit these allegations to only genuine claims of malice in fact, any person who wished to raise this plea must prove it to the satisfaction of the Court on the basis of positive and cogent evidence. [p. 111] G2

Moreover, there was also an obligation on litigants to plead the particulars of malice in fact in detail. Vague allegations could not establish a plea of malice in fact. [p. 111] H2

Federation of Pakistan v.. Saeed Ahmed Khan and others PLD 1974 SC 151 ref.

Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

Accordingly, to raise the plea of malice in fact, it was necessary for the relevant party to pinpoint the specific incidents/events/actions which demonstrated the malice in fact of the opposing side. [p. 112] I2

Allegation of malice in fact would be defeated if it was proved that a complaint levelled against a person was true. [p. 118] R2

(j) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Question as to whether the reference was filed with mala fides (malice in fact) due to a judgment the petitioner-judge had authored in the past [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], wherein he had criticized the ruling political party and one of its coalition partners, and against which judgment said two parties had filed a review petition containing certain adverse remarks against the petitioner---Reasons for quashing the Presidential reference recorded.

Recourse to a review petition was a lawful remedy granted to litigants by the Constitution itself. Reference in question was based on the ownership of petitioner's wife's undeclared foreign properties. With the blemish attached to the ownership of undeclared foreign properties, such ownership automatically attracted speculation about its status and source. Recourse to a lawful remedy under Article 209(5) of the Constitution could not be malicious unless for ill motives an information alleged wrong or distorted or exaggerated facts, or sought relief that was inordinate or extraneous to the undisputed facts. Furthermore, the observations in the judgment [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], given by the petitioner-judge paled in comparison to the remarks passed by the Supreme Court in another judgment Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig (PLD 2013 SC 1) in which far stronger observations about the country's politicians and political system failed to draw any adverse reaction from the Federal Government against any Judge. Consequently, no malice in fact was made out on such ground. Constitutional petitions were disposed of. [pp. 112, 113] J2, K2 & L2

(k) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Reference based on information provided by a journalist---Plea of petitioner-judge that said journalist had a reputation of planting false stories---Question as to whether the reference had been filed against the petitioner-judge with mala fides (malice in fact)---Reasons for quashing the Presidential reference recorded.

When an information against a person (whether a public office holder or a private person) was to be evaluated, it was the substance, veracity and consequence of the information which mattered and not the credibility and credentials of the informant. Receipt of information from any source was cognizable by the Supreme Judicial Council under Article 209(5) of the Constitution and was sufficient to sustain an inquiry against a Judge of the Superior Courts. Word 'any' used in Article 209(5) of the Constitution meant that the antecedents of the informant were irrelevant unless the information was false, concocted, distorted, exaggerated or sought relief that was excessive in relation to the accepted facts. In the present case the underlying information in the reference to the extent of ownership of the foreign properties by the petitioner's wife and children was not disputed by the petitioner. In such circumstances the background of the informant became insignificant. As a result, the plea of malice in fact raised by the petitioner was repelled. [pp. 113, 114] M2 & N2

Pakistan Tobacco Company Ltd v. Federation of Pakistan 1999 SCMR 382 ref.

(l) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Confidentiality of a reference---Scope---Details of the reference leaked to the media---Plea of petitioner-judge that the government and its functionaries were behind such leaks---Whether mala fides of Government functionaries in leaking details of the reference---Reasons for quashing the Presidential reference recorded.

Reference filed against a Superior Court Judge had to be kept confidential. To hold any particular person/authority accountable for revealing the details of a reference, there needed to be at least some material on record that connected the leaks to one or more of such persons/authorities. From the chronology of events and case record of the present case it was not evident as to which event triggered the sudden disclosure of the reference. Although the allegation made against the respondents (Government and its functionaries) in the present case raised suspicion, it was still unsupported by any evidence. Consequently it could not suffice to conclusively hold that either one or more of the respondents leaked the reference to the media. On the basis of speculations and suspicions it could not be determined who leaked the reference, therefore no finding with respect to its disclosure and hence of malice in fact against any of the persons who were aware of its contents could be recorded. [pp. 114, 115, 116] O2, P2 & Q2

Justice Shaukat Aziz Siddiqui and others v. Federation of Pakistan PLD 2018 SC 538 ref.

(m) Constitution of Pakistan---

----Arts. 4, 90, 184(3) & 209(5)(b)---Rules of Business, 1973, R. 2(1)(ii)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit, constitution of---Legality---Question as to whether the constitution of the Assets Recovery Unit, which coordinated the collection of evidence against the petitioner-judge was lawful---Reasons for quashing the Presidential reference recorded.

To determine the legality of Assets Recovery Unit's creation, one had to consider whether the requisite legal actions and procedures for its establishment had been adopted by the person(s) competent and authorised to do so under the law. [p. 120] S2

The Assets Recovery Unit (ARU) was a coordinating agency which brought under one umbrella the competent statutory authorities to stem the menace of tax evasion, money laundering and corruption in the country. Accordingly, the ARU was essentially executing the policy of the State to curb financial crimes in the country. It was therefore an executive office, in particular an 'Attached Department' of the Cabinet Division, performing executive functions. Having such status, it did not need the backing of an Act to grant validity to its creation and actions as required by Article 4 of the Constitution. [p. 121] T2

Perusal of Rule 2(1)(ii) of the Rules of Business, 1973 made it clear that for any 'Attached Department' to exist and function, it needed to have a direct relation with a Division and had to be declared by the Federal Government as an 'Attached Department.' The material on record showed that these two essential steps were taken in relation to the creation of ARU. The first of such documents, demonstrating the procedure followed for constituting the ARU as an 'Attached Department,' was the Summary for the Cabinet dated 11-09-2018, followed by a Notification dated 19-09-2018. Said two documents proved that the creation of the ARU as an 'Attached Department' of the Cabinet Division was approved by the Cabinet itself. Article 90 of the Constitution established that the Cabinet with the Prime Minister as its head was the Federal Government. Consequently, it became evident that the approval for the creation of the ARU was given by the Federal Government. As a result, the two-fold requirement listed in Rule 2(1)(ii) of the Rules of Business, 1973 for the constitution of ARU as an 'Attached Department' had been satisfied in the present case. [pp. 121, 122] U2 & V2

The ARU did not act directly but instead operated through its members who had been borrowed from various statutory bodies of the country including the Federal Investigation Agency ("FIA"); the National Accountability Bureau ("NAB"); the Federal Board of Revenue ("FBR"); and the State Bank of Pakistan ("SBP"). As a result, the ARU was manned primarily with individuals whose powers and jurisdiction were exercised under a statutory regime. Accordingly, the ARU was simply a coordinating office attached to the Cabinet Division with the main purpose of facilitating the collaborative efforts of the relevant statutory functionaries. It therefore could not be accused of adversely affecting the rights of any citizen without the backing of law. This was made clear by the composition of the ARU and its terms of reference ("TORs") which were also set out in a Notification dated 06-11-2018. Clause 3 of the said TORs confirmed that when it came to dealing with the assets of citizens of Pakistan, the ARU was only authorised to act through its designated officer/member from the relevant department/ agency. Since these designated officers/members were simultaneously serving in statutory agencies, they were vested not only with the powers granted by the relevant statute governing their agency but were also bound by the procedural safeguards and obligations laid down in such a statute. As a result, any action attributed to the ARU in relation to the assets of citizens of Pakistan was taken through competent authorities strictly in accordance with the law. There was no defect in the creation of the Assets Recovery Unit. [pp. 122, 124] W2 & X2

(n) Notification---

----Non-publication of notification in Gazette---Effect---In ordinary circumstances, the non-publication of a Notification in the Gazette did not affect its validity except for in limited situations such as when a statute made publication in the Gazette mandatory or where the rights and liabilities of other persons were involved. [p. 125] Y2

Saghir Ahmed v. Province of Punjab PLD 2004 SC 261 and Bahadur Khan v. Federation of Pakistan 2017 SCMR 2066 ref.

(o) Constitution of Pakistan---

----Arts. 184(3), 199(b)(ii), 209(5)(b) & 260---Rules of Business, 1973, R. 4(6) & Sched. V-A, Sr. No. 1A ---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Special Assistant to Prime Minister (SAPM) on Accountability appointed as Chairman of an Assets Recovery Unit (ARU), which received information about the foreign properties in the name of the petitioner-judge's wife---Question as to whether the appointment of SAPM on Accountability was lawful---Reasons for quashing the Presidential reference recorded.

Rule 4(6) and serial number 1A of Schedule V-A of the Rules of Business, 1973 gave the Prime Minister the power to appoint a Special Assistant with such status and functions as he desired. Office of Special Assistant to the Prime Minister (SAPM) was mentioned in Article 260 of the Constitution as one of the posts that was excluded from the definition of 'Service of Pakistan.' Therefore, at present the post of an SAPM was a political appointment. Accordingly, the said appointment was made in the discretion of the Prime Minister and was not regulated by statute. Court would interfere in such appointment if the Prime Minister exercised his discretionary power 'arbitrarily, unlawfully or in a fanciful manner,' or if the appointment of a person as SAPM suffered from 'cronyism, nepotism or political favour.' In such a situation the appointment would be struck down under Article 199(b)(ii) of the Constitution. As a result, there was a judicial check on the exercise of the Prime Minister's discretion. Nonetheless, such relief could not be claimed in collateral proceedings. [p. 126] Z2 & A3

Muhammad Adil Chattha v. Federation of Pakistan (Constitution Petition No. 63 of 2018) and Qazi Hussain Ahmad v. General Pervez Musharraf PLD 2002 SC 853 ref.

In the present case petitioner had neither challenged the appointment of SAPM on Accountability in separate proceedings under Article 199(b)(ii) of the Constitution nor had he placed any material on record which disqualified the incumbent SAPM on Accountability from being appointed to such office. Therefore, without proof of illegal or arbitrary exercise of discretion by the Prime Minister, the Court could not interfere with his decision on this matter. Accordingly, there was no unlawfulness in the appointment of the SAPM on Accountability. [p. 127] B3

(p) Constitution of Pakistan---

----Arts. 14(1), 184(3) & 209(5)(b)---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Tax and property records of the petitioner-judge and his family were accessed/searched to frame the reference against the petitioner---Question as to whether such searches were a breach of the petitioner's and his family's right to privacy enshrined in Art. 14(1) of the Constitution and thus amounted to covert surveillance---Reasons for quashing the Presidential reference recorded.

Surveillance primarily involved the monitoring or recording of a person's movements, conversations or other activities and communication. However, in the present case the petitioner-judge had not produced any evidence which demonstrated that either the petitioner or his family had been monitored or their communications had been intercepted. Only proof which the petitioner referred to was the admission by the respondents that the tax and property records of the petitioner and his family had been accessed from Government and public records. Indeed, there was no allegation that any information was obtained from the petitioner's personal or private records. [p. 128] C3

Guarantee under Article 14(1) of the Constitution was for the privacy of home and that too subject to law. Such privacy did not extend to the tax and property records of either the petitioner or his family members. [p. 135] J3

Mohatarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 distinguished.

(q) Constitution of Pakistan---

----Art. 260---Service of Pakistan---Scope---Office of Judge of the Superior Court---Such office fell within the category of "Service of Pakistan". [p. 130] D4

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig PLD 2013 SC 1 ref.

(r) Public servant---

----Person holding judicial office---Such person was a public servant. [p. 131] E3

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

(s) Public office---

----Public servant, office of---Main ingredients.

Following are the five main ingredients present in the office of a public servant:

(i) The office was a trust conferred for a public purpose;

(ii) The functions of the office were conferred by law;

(iii) The office involved the exercise of a portion of the sovereign functions of Government whether that be executive, legislative or judicial;

(iv) The term and tenure of the office were determined by law; and

(v) Remuneration was paid from public funds. [p. 132] F3

(t) Constitution of Pakistan---

----Art. 176---"Public servant"---Scope---Judges of the Supreme Court were public servants. [p. 132] G3

(u) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), S. 216(3)(p)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Tax records of the petitioner-judge and his family disclosed by Federal Board of Revenue to the Assets Recovery Unit of the government---Question as to whether such disclosure was lawful, and whether the exception under S.216(3)(p) of the Income Tax Ordinance, 2001 applied to the petitioner-judge and his wife---Reasons for quashing the Presidential reference recorded.

Section 216(1) of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') declared the tax records of taxpayers to be confidential. However, the same section also contained the exceptions to this general rule. For purposes of present case, the exception found in section 216(3)(p) of the 2001 Ordinance provided that disclosure of tax records was not precluded where the same may be required by any officer or department of the Federal Government or of a Provincial Government for the purpose of 'investigation' into the 'conduct and affairs' of any public servant. Judge of the Supreme Court was a public servant for the purposes of section 216(3)(p) of the 2001 Ordinance. In relation to the Judge of a Superior Court, an 'investigation' into his 'conduct and affairs' could only mean an investigation for the purposes of Article 209 of the Constitution. However, it was critical (for the exception in section 216(3)(p) to be attracted) that the 'investigation' was duly sanctioned and was being carried out in accordance with law at the time that the clause was invoked. If this was not so then clause (p) of section 216(3) could have no application and the information could not be disclosed. In the present case there was no proper investigation for the purposes of Article 209 when the Assets Recovery Unit (ARU) of the government sought the tax information of the petitioner from the Federal Board of Revenue (FBR). Consequently, the exception in section 216(3)(p) of the 2001 Ordinance was not applicable to the facts of the present case. [p. 132] G3 & H3

As far as the petitioner's wife, the language of section 216(3)(p) of the 2001 Ordinance suggested that it was not limited only to information relating to the public servant. However, since the jurisdictional prerequisites for carrying out an investigation against the petitioner did not exist, it therefore followed that the request made by the ARU for the tax information and the release of such information by the tax authorities did not fall within the exception contained in section 216(3)(p) of the 2001 Ordinance. As a result, the disclosure by the FBR was contrary to law. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 133, 169, 170] I3, O4 & P4

(v) Constitution of Pakistan---

----Art. 209(5)---Reference sent by the President to the Supreme Judicial Council against a Judge of the Superior Court---Standard of proof and care required for a Presidential reference stated.

Article 209(5) of the Constitution only required the President to form an opinion that a Superior Court Judge may have been guilty of misconduct. He did not need to be certain that a Judge was guilty of the conduct alleged. Nevertheless, his opinion must be based on positive and affirmative material and on the assurance that necessary legal and procedural safeguards had been observed in the preparation of the reference. Therefore, for the President to even form a prima facie opinion about a Judge's guilt, the President needed to verify that there had been compliance with the settled rules on authorisation; he needed to obtain proper advice on the contents of the reference from competent persons; and he needed to ascertain that there was sufficient material before him which satisfied the high thresholds of care and proof expected in the preparation of a reference. [p. 136] K3

Complaint against a Superior Court Judge could be generated in one of three ways: a Presidential reference, a private complaint and the exercise of suo motu jurisdiction by Supreme Judicial Council. Since all three methods were distinct, therefore, the quality of their information/ complaint would also be different. Presidential reference was articulated on a different level compared to a private complaint. When the President, as the Head of State, sent a reference against a Judge, he had at his disposal State agencies and access to competent legal advice. He could utilise these to verify that valid authorization for investigation had been granted and that materials that were relevant and reliable were available to support the reference. However, stating that despite all the machinery of the Federal Government at his command, the President was only required/obliged to send a perfunctory reference which contained legal and factual defects, then nothing would be more harmful to the independence of the judiciary. Such a relaxation would give the Executive the room to send frivolous references with the expectation that if some nexus between the material and the object of Article 209 of the Constitution was demonstrated, the Supreme Judicial Council would itself find substance in the reference. Therefore, to protect and defend the independence of the judiciary, a reference sent by the President must contain authorised, serious, considered and verified information in both respects, legal and factual, in order to possess the gravity that should accompany a Presidential action. [p. 137] L3 & M3

(w) Constitution of Pakistan---

----Arts. 48, 90, 184(3) & 209(5)(b)---Rules of Business, R. 15-A, Sched. V-B, Entry No. 35---Procedure for filing a Presidential reference before the Supreme Judicial Council---Scope---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Federal Law Minister providing authorization for investigation conducted prior to the filing of the reference---Whether such authorization was unlawful and could only be provided by the President at his discretion---Reasons for quashing the Presidential reference recorded.

President could not authorise an investigation against a Judge in his own discretion. Sending of a reference was an executive act performed by the Federal Government. To declare that the President was to authorise investigations into Superior Court Judges in his discretion would amount to inviting the President to arrogate powers in complete contradiction of the Constitutional scheme. [p. 143] N3 & O3

Under the Constitutional process for performing the executive function of authorising an investigation into an information against a Superior Court Judge, the President should act on the advice of the Prime Minister or the Cabinet under Article 48(1) of the Constitution and not invoke his discretionary power under Article 48(2). [p. 143] P3

Entire process of a Presidential reference fell under the advice of the Prime Minister according to the Rules of Business, 1973. It was he (i.e. the Prime Minister) who had to advise the President on the steps that needed to be taken in a matter that bore relation to Article 209(5) of the Constitution. As a result, the approval by the President of the advice of the Prime Minister was necessary for commencing an investigation into a complaint made against a Judge of the Superior Court. Initial authorisation by the President on the advice of the Prime Minister to commence an investigation against a Judge in a complaint falling under Article 209(5) was a legal requirement for sustaining the validity of a Presidential reference that was ultimately filed with the Supreme Judicial Council. Such oversight by the highest Constitutional functionaries protected Judges from whimsical and arbitrary interference by Executive authorities in their personal judicial independence and privacy. Without valid authorisation the foundation of the reference suffered from an initial illegality which amounted to a Constitutional violation. Consequently, such an infirmity was fatal to the superstructure that was erected on it. In the present case with regard to the reference there was no such authorisation on record for commencing an investigation against the petitioner-judge. Instead the record showed that the only authorisation sought, for probing the complaint against the petitioner, was from the Law Minister who under any interpretation of the Constitution had no jurisdiction in such behalf. The competent authorities, namely, the Prime Minister and the President were never approached by the Ministry of Law for the requisite authorization. As a result the present reference was defective and illegal. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 145, 146, 168, 169, 170] R3, S3, T3, J4, O4 & P4

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(x) Constitution of Pakistan---

----Arts. 99(2) & 99(3)---Rules of Business, 1973---Said Rules were constitutionally mandated rules and must be followed by the Government in carrying out its functions. [p. 144] Q3

Messrs Mustafa Impex, Karachi v. The Government of Pakistan PLD 2016 SC 808 ref.

(y) Constitution of Pakistan---

----Arts. 4, 10A, 184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) & 116(2)---Foreign Exchange Regulation Act (VII of 1947) S. 5---Anti-Money Laundering Act (VII of 2010), Ss. 2(q), 2(s) & 3 & Sched., section XIIA---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Allegations in the reference, validity of---Whether there was any substance in the allegations contained within the reference---Reasons for quashing the Presidential reference recorded.

Counsel for the Government did not make any submissions on the petitioner's alleged violation of the provisions of Foreign Exchange Regulation Act, 1947. In fact, he did not even nominate the relevant provisions of the said law. There was also no material, before the Court, which supported the said bald allegation of a violation of the claimed foreign exchange regime under Foreign Exchange Regulation Act, 1947. Allegation of violating the provisions of the said Act was unsubstantiated assumption neither backed by evidence nor supported by the relevant provision that was allegedly breached. As such, it could not be sustained. [pp. 149, 169] U3, V3 & M4

Next allegation levelled against the petitioner was that of money laundering. The primary legislation governing said subject matter was the Anti-Money Laundering Act, 2010 ('the 2010 Act'). Reading of sections 2 and 3 of the 2010 Act provided that a necessary element of the offence of money laundering was the commission of a predicate offence. The execution of this offence gave birth to the proceeds of crime, the movement of which attracted the criminal conduct of money laundering. Therefore, without the commission of a predicate offence there could be no offence of money laundering. In the present case, the main allegation against the petitioner was that he had failed to declare the foreign properties owned by his wife and children in his wealth statements. The contents of a wealth statement were provided in Section 116(1) of the Income Tax Ordinance, 2001 ('the 2001 Ordinance'). In order to attract the offence of money laundering the non-declaration of assets under Section 116 of the 2001 Ordinance must constitute a predicate offence. Only then may the allegation of money laundering be made against the petitioner. Perusal of section XIIA of Schedule to the 2010 Act revealed that the non-declaration of assets by a taxpayer under the 2001 Ordinance was not a predicate offence under 2010 Act. The reference had not alleged the commission of any specific predicate offence under the 2010 Act by any person. Therefore, prima facie no case of money laundering could be made out against the petitioner on such count. [pp. 150, 169] W3 & L4

Equally, it was relevant to note that the four sections of the 2001 Ordinance were only inserted in the Schedule to the 2010 Act as predicate offences on 20-05-2016 whereas the foreign properties were purchased by the petitioner's family in 2011 and 2013. Consequently, it was an established fact that before 2016, violations of the 2001 Ordinance could not form the basis of a money laundering allegation. [p. 151] X3

There was no allegation or material on record suggesting that the petitioner or his wife transferred money to the foreign country via illegal means/methods. [p. 152] Y3

Primary allegation in the reference against the petitioner was his failure to disclose the foreign properties of his wife and children in his wealth statement. In the reference it was alleged that this obligation was imposed on the petitioner by virtue of Section 116(1)(b) of the 2001 Ordinance. No notice was ever issued to the petitioner or his wife under section 116(1). Petitioner's wife did receive notices for the years 2015, 2017 and 2018 but those were issued under section 114(4) of the 2001 Ordinance for her failure to file her tax returns. Moreover, on a perusal of the reference it became evident that the entire case under section 116 of the 2001 Ordinance rested on the opinion of an Assistant Commissioner (Inland Revenue) who stated that the petitioner was liable to disclose the foreign properties of his wife and children. Such opinion and that of the respondent-Government was based on a literal reading of section 116(1)(b). Such interpretation of the section 116(1)(b) had never been tested judicially before. Indeed, counsel for the Government candidly acknowledged that there was no case-law in our jurisprudence on the subject of declaration by a taxpayer of the assets of his spouse and children under section 116(1)(b).On an examination of the (several) instructions published by Federal Board of Revenue (FBR) for completing a wealth statement in tax years subsequent to 2013, it could be noticed that the FBR was itself unsure about the true interpretation of section 116(1)(b) of the Ordinance. Amongst all of the varying constructions of section 116(1)(b), there was also the overriding difficulty that the language of section 116(1)(b) was open to more than one interpretation. [pp. 154, 155, 156, 168] A4, B4, C4 & K4

Neither the Government nor the petitioner produced any case-law or other relevant material to support their respective interpretations of Section 116(1)(b). Even the FBR's own instructions on completing a wealth statement form were unclear and had wavered from year to year. Accordingly, the respondents' decision to charge the petitioner with a violation of section 116 of the 2001 Ordinance on the basis of an interpretation that was devoid of judicial consideration let alone approval, and which lacked any definitive and consistent departmental practice was conjectural. In such a situation, it would be better if this matter was determined in the first instance by the hierarchy of specialised fora specified in the 2001 Ordinance. [p. 157] D4

To establish the source of funds for the acquisition of the foreign properties, the requirements of due process under Article 4 and Article 10A of the Constitution mandated that the first person concerned, namely, petitioner's wife ought to be given an opportunity through sending a notice to explain her sources of funding for the foreign properties and the reasons for not declaring such properties in her wealth statement. Without granting such opportunity/notice, the framing of the reference against the petitioner was premature, hypothetical, and impulsive. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. [pp. 159, 169, 170] E4, O4 & P4

(z) Interpretation of statutes---

----Special laws---Scope---When a special law regulated a particular subject area then another law enacted for a different special purpose could not affect the subject matter governed by the former special law---Statutes which were not pari materia could not govern each other's interpretation. [p. 152] Z3

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 and Halsbury's Laws of England (Volume 96, 2018) ref.

(aa) Constitution of Pakistan---

----Arts. 48(1), 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---President to form an opinion in terms of Art. 209(5) of the Constitution before sending the reference to the Supreme Judicial Council---Meaning and scope---Whether the President could seek advise from those involved in investigating or framing the reference---Reasons for quashing the Presidential reference recorded.

Sub-Article (5) of Article 209 of the Constitution provided that before directing the Supreme Judicial Council ('the Council') to hold an inquiry against a Supreme Court Judge, the President should have formed the opinion that the said Judge may be guilty of misconduct. However, the basis upon and the means by which the President needed to form his opinion was not readily discernible from Article 209(5) of the Constitution. Although it was not for the Court to specify a list of persons from whom legal advice may be sought by the President, however, there were certain persons who should not be approached by the President for legal advice on a reference under Article 209 of the Constitution. Fairness and objectivity dictated that those involved in the investigation and framing of the reference may brief the President but could not advise him on whether it was maintainable and appropriate for inquiry by the Council. This was because there was a clear conflict of interest for the architects of the reference to opine on the weaknesses of their work. But this was precisely what happened in the present reference. The President discussed the reference and its legal aspects with the Attorney General and the Law Minister. As senior functionaries of the Federal Government, both said persons were admittedly involved in the framing of the reference against the petitioner. Under Article 209(5) of the Constitution, the opinion formed by the President was expected to be considered, fair and objective. President's power clearly granted him the jurisdiction to evaluate the worth of the advice tendered to him. If he was so inclined he may require the same to be reconsidered once by the Prime Minister. In order to be objective and fair the President should rely upon counsel and legal experts not linked with the framing of the reference or working for the Federal Government. President's opinion in the present reference was influenced by the inadmissible advice of individuals who were involved in the preparation of the reference. In these circumstances, it could not be said that the President formed an informed opinion in terms of Article 209(5) of the Constitution, therefore, the reference against the petitioner was defective. Presidential reference against the petitioner was quashed and in consequence thereof the proceedings pending in the Supreme Judicial Council against the petitioner-judge, including the show-cause notice issued to him, stood abated. Constitutional petitions were disposed of.

[pp. 161, 163, 169, 170] F4, G4, N4, O4 & P4

Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 ref.

(bb) Constitution of Pakistan---

----Arts. 48(1) &209(5)---Rules of Business, 1973, Sched. V-B---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council---Advice of Prime Minister received by the President---Scope---In the filing of a reference the President was bound to act on the advice of the Prime Minister and not the Cabinet---If the reference was substantive, cogent, coherent, rational and lawful, then the President simply had to record his assent, and there was no additional obligation on him to set out his separate reasons---However, if the reference was defective factually and/or legally then the President must state his reasons for disagreement and call for reconsideration of the matter by the Prime Minister in the light of those reasons---If the President subsequently disagreed even with the reconsidered advice, then he was bound by Art. 48(1) to endorse the said advice leaving it for the Supreme Judicial Council to analyse the merits of the reference sent by the President. [p. 167] H3

(cc) Constitution of Pakistan---

----Art. 209(5)---Presidential reference sent to the Supreme Judicial Council against a Judge of the Superior Court---Pre-requisites---Federal Government must set out its reasons for preparing and sending a reference against a Judge of the Superior Court---In fact, the summary and statement of reference prepared by the Ministry of Law for the Prime Minister and the President were the documents which contained these reasons---Said documents contained the crux of the reference against a Superior Court Judge, therefore they needed to be factually and legally complete---Failure to comply with such requirement would render the reference unsustainable. [p. 168] I4

(dd) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously 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, and also send a report in such regard to the Supreme Judicial Council, which had the powers if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---Reasons for referring the matter to the Federal Board of Revenue notwithstanding the quashing of the Presidential reference.

[Note: The directions can be found in the short order of the present judgment reported as (Mr.) Justice Qazi Faez Isa and

14 others v. The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

Notwithstanding the quashing of the Presidential reference against the petitioner-judge, the decision to direct the Federal Board of Revenue (FBR) to commence tax proceedings against the petitioner's wife and children was primarily based on two grounds: to establish that Judges of the Superior Court were answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution; and to honour the petitioner's plea that his wife and children, who were independent taxpayers, should first be asked about their source of funds for the acquisition of the foreign properties. [pp. 170, 172] Q4 & T4

The illegalities in the present reference were a result of its careless and casual preparation. These errors or defects did not erase petitioner's wife's ownership of the foreign properties, the primary fact which formed the basis of the reference and which was not denied by the petitioner. Whilst the ownership of the foreign properties was not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad required explanation. Otherwise, an unexplained investment by the spouse of a Judge of the Superior Courts, who was a holder of public office, compromised the integrity of the Judge and ultimately the probity and credibility of the institution which he served. Rather than allowing the disturbing allegation against the petitioner and his family to circulate and attract innuendos thereby injuring the reputation and integrity of both the petitioner and the Supreme Court, the fair, impartial and transparent route was to allow petitioner's wife and her children to disclose the source of their funds to the relevant authorities, namely, the FBR. Such a transparent course of action was consistent with the Code of Conduct for Judges of the Supreme Court and High Courts, the maintenance of institutional integrity and the image of Judges as the neutral and independent arbiters of law and justice. [p. 171] R4

By referring the issue of source of funding to the FBR for verification from petitioner's wife and his children, the Supreme Court had chosen the path which in the first place should have been taken by the Government and its functionaries but which was casually ignored by them. By sending the matter to the FBR the Court had assured the substantive and procedural rights of each party under the Income Tax Ordinance, 2001. These rights and the right of the petitioner's family to appeal against adverse orders had specifically been preserved. Additionally, it was directed that only appropriate proceedings for undeclared or unexplained assets be initiated against the petitioner's family which should be concluded within a reasonable timeline. Therefore, by such referral to the FBR the controversy surrounding the allegation in the reference would be settled. [p. 172] S4 & U4

Supreme Court had also directed the Chairman FBR to submit his report, regarding the proceedings before the Commissioner (Inland Revenue), to the Supreme Judicial Council ('the Council') for its consideration. This was done to give the Council a chance, if it so wished, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction. However, the direction issued to the Chairman FBR in no way obliged the Council to take any action based on the report. The Council may do so of its own volition if it considered that the report justified any action against the petitioner. Consequently, the Chairman FBR's report was a piece of information to be evaluated by the Council in its suo motu jurisdiction. The Council may if so inclined in the exercise of its suo motu jurisdiction conferred by the Constitution take into consideration any proceedings before the tax authorities or orders passed by them. [pp. 172, 173] V4 & W4

Per Faisal Arab, J; agreeing with the majority view regarding quashing of Presidential reference against the judge and the directions given to the Federal Board of Revenue for initiating proceedings against the judge's wife and children, but giving his own views on the interpretation of Article 48 of the Constitution, section 116(1)(b) of Income Tax Ordinance, 2001 and on the plea of mala fide raised by the petitioner.

(ee) Constitution of Pakistan---

----Art. 209(5)---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council ('the Council')---Information against the judge---President and the Council had to judge whether such information was credible before initiating an inquiry---Had the Constitutional safeguard of formation of opinion on a particular information not been made a condition precedent, no judge would be able to work with the freedom and confidence required of him in discharge of the obligation of his or her office.

Use of the words 'from any source' appearing in Article 209(5) of the Constitution allowed information to come from a member of the general public or a government functionary or that which was based on a finding of fact of a judicial forum. No specific route from which information was to come had been laid down in the Constitution. While leaving the door wide open for the information to come in from any source, Article 209 (5) of the Constitution had also ensured that receipt of any and every information per se should not trigger inquiry against a Judge and only such information was to become actionable on which either the Supreme Judicial Council ('the Council') or the President had formed the opinion that the matter needed to be inquired into. The informant had no right to seek that the President or the Council must conduct inquiry on the information that had been placed by him before any of them. The Constitution had left such decision in its entirety in the hands of the Council and the President. Until either of them considered any information to be convincing enough to call for an inquiry only then the Council could embark upon the inquiry otherwise not. [p. 178] X4

Had the Constitutional safeguard of formation of opinion on a particular information not been made a condition precedent, no judge would be able to work with the freedom and confidence required of him in discharge of the obligation of his or her office. On every kind of complaint made against them the Judges would remain unendingly entangled in putting up their defence in one inquiry after another and correspondingly the members of the Council would also be perpetually engaged in conducting inquiries upon whatever information was placed before them by any informant, crippling them from performing their normal judicial function. Apprehending such drawback, the Constitution had given primacy to the opinion that was formed on the information by either of the two opinion-makers (i.e. the President and the Council) described in Article 209 (5) of the Constitution. It was for this reason that when the Constitution admitted information from any source, it basically said that let there be search for the truth if in the opinion of any of the two opinion makers there was substance in the information regardless of the source. There was no independence of judiciary if there was no effective mechanism for its accountability. [p. 178] Y4

(ff) Constitution of Pakistan---

----Art. 209(5)---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council ('the Council')---Report submitted by the Council to the President---Discretion of President to accept or reject the report---Scope.

Once a matter was referred by the President to the Supreme Judicial Council ('the Council') to conduct an inquiry then it became a constitutional obligation of the Council to first conduct the inquiry and then submit its report to the President. Once that was done and in its report the Council returned its findings of guilt or otherwise, it was then for the President to either accept the report or reject it. He may not agree on removing a judge as Clause (6) of Article 209 of the Constitution used the word 'may', which clothed the President with such discretion. Where the Council exonerated a judge of the charges framed against him, in that eventuality the matter ended there. The exoneration brought the whole proceedings to an end which no more remained open to challenge, not even by the President by seeking judicial review before the Supreme Court [p. 179] Z4

(gg) Constitution of Pakistan---

----Arts. 184(3), 209(5) & 211 ---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council ('the Council')---Bar of jurisdiction under Article 211 of the Constitution---Scope and purpose.

The Supreme Court on its judicial side could not examine the merits of the allegations contained in a reference on account of the constitutional bar contained in Article 211 of the Constitution, which though appeared to be a clog on judicial review but if such a bar was not implanted through a constitutional provision, it would have deprived the most important organ, the Supreme Judicial Council ('the Council'), of its vital powers in discharging its constitutional responsibility of inquiring into the conduct of Judges of the Superior Courts in an effective and efficient manner. In the face of the bar contained in Article 211, if any interference by the Supreme Court on the merits of the controversy gained currency, every Judge against whom the Council was to conduct inquiry would first come to the Supreme Court and seek examination of the credibility of the informant as well as of the merits of the information. If the Supreme Court was to first give its findings on the adequacy of the allegations or credibility of the informant and then decide whether to allow or restrain the Council from proceeding with the inquiry, it would be deviating from the scheme devised under the Constitution for the accountability of the judges of the Superior Judiciary. It would also set a very dangerous precedent for actions that may be taken under Article 209(5) of the Constitution in future. In every case the credentials of the informant and not the worth of the information disclosed against a judge would be examined first on the judicial side of the Supreme Court. Invasion of this Constitutional power by any Court would not only amount to demonstrating mistrust in the forum created exclusively for the accountability of judges but would also be in disregard of the Constitutional mandate contained in Article 211. Hence, where decision to conduct inquiry had been taken in terms of Article 209(5) of the Constitution, the allegations made against a sitting Judge could only be proved or disproved before the Council and not before a court through a judicial pronouncement. Any judicial interference that amounted to stifling the very function which the Constitution had assigned exclusively to the Council would be violative of Article 211 of the Constitution. [p. 179] A5

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

----O. VI, R. 2---Pleadings---Scope---Pleadings were to be confined to a statement of material facts; it shall be presumed that reliance would be placed on such facts and what legal effects emerged from such facts need not be stated in the pleadings in order to seek the relief---Failure to state the legal effects, therefore, could not even be regarded as an omission in law much less fatal to any legal proceedings---In fact stating legal effects in the pleadings was regarded as lack of regard for the rules of pleadings. [p. 181] B5

Budho v. Ghulam Shah PLD 1963 SC 553 ref.

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

----Ss. 116(1)(b)---Public office holder/tax payer---Wealth statement---Assets and liabilities of the tax payer's spouse, minor children, and other dependents, declaration of---Perusal of S.116(1)(b) of the Income Tax Ordinance, 2001 revealed that the wealth in the names of the taxpayer's spouse or minor children had to be declared on account of mere existence of such relationship with the taxpayer---Dependency of such relations on the taxpayers was not a condition precedent---Scope and purpose of S.116(1)(b) of the Income Tax Ordinance, 2001. [Minority view]

Apart from detecting tax evasions on undeclared incomes, the declarations made under section 116 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') could also be used by a forum that was entrusted with the function to initiate disciplinary proceedings against a public office holder in order to ascertain whether his undeclared assets were acquired beyond his known sources of income. In that sense the declarations made under section 116(1)(b) became a 'relevant fact' in order to prove a 'fact in issue' which was possessing assets beyond means. So, the utility of the declaration made under section 116 was not restricted to detecting probable tax evasion only but it could be utilized by a forum, other than income tax authorities, to examine the legitimacy of the source from which an asset was acquired when it came to examining the conduct of a public office holder. [p. 182] C5

The source of undeclared asset must reconcile with the legitimate source of income of the holder of high public office or of the member of his or her household, in whose name the asset stood. Unless it was so demonstrated, non-disclosure was likely to cast doubts on his or her integrity and honesty and could be taken as an act of concealment of an illegal source from which the undeclared asset was acquired. Thus, in the context of accountability of a public office holder, the declaration under section 116(1)(b) of the 2001 Ordinance by itself was not a 'fact in issue' but only a 'relevant fact' which could be used to seek explanation with regard to source of acquisition of undeclared assets that stood either in the name of the public office holder or his spouse or children or any other person dependent upon him. No claim of privacy or privilege could justify withholding of financial disclosure that was relevant in such accountability process. Thus, the declaration of assets and liabilities made under section 116(1)(b) could be used as a 'relevant fact' before both the forums i.e. income tax authorities and the forum that was empowered to take disciplinary action against a holder of public office, as the object and purpose of both the forums was distinct. [p. 183] D5

Declaration under section 116(1)(b) of the 2001 Ordinance had nothing to do with the spouse's financial dependency or otherwise on the resident taxpayer. Income tax law was not concerned with whether the spouse of a resident taxpayer was dependent or was a person of means. All that it intended was that no tax evasion took place by hiding one's undeclared source of income in the names of taxpayer's loved ones. Husband and wife were both presumptive heirs of each other. Any property in the name of any of them was also inheritable by their children. Hence, wealth in the name of taxpayer's spouse, irrespective of his or her own means of income, had to be declared on account of mere existence of such relationship with the taxpayer. If dependency of spouse of a public office holder was made a criterion, it may give rise to scenarios where a resident taxpayer may purchase property in the name of his or her spouse who was financially well off and was living as a member of the taxpayer's household and a property in his or her name remained undeclared and when such a fact got disclosed, the public office holder in order to avoid disciplinary proceedings would take the plea that his or her spouse was a person of means and not dependent on him or her, therefore, information about the source of acquisition of undeclared asset was not required to be divulged by him or her under section 116 of the 2001 Ordinance. [p. 184] E5 & F5

What section 116(1) (b) intended to mean was that the wealth in the names of the taxpayer's spouse or minor children had to be declared on account of mere existence of such relationship with the taxpayer. The dependency of such relations on the taxpayers was not a condition precedent. A resident taxpayer even in an action taken under the 2001 Ordinance, could not take the stand that unless his or her spouse was shown to be dependent on him or her, there was no legal obligation to declare the assets that stood in their names under section 116(1)(b) of the 2001 Ordinance. [p. 185] G5

(jj) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Plea of mala fides raised by the petitioner---Question as to whether the reference against the petitioner could be quashed by the Supreme Court on grounds of mala fides based on the judgment reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61 ref.)---Reasons for quashing the Presidential reference recorded. [Minority view]

As regards plea of mala fide, only on one occasion in the past the Supreme Court interfered with the proceedings of the Supreme Judicial Council ('the Council'). This happened in the case of Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 Supreme Court 61). Even in that case the merits of allegations made in the Presidential reference against the then Chief Justice of the Supreme Court were not made basis for nullifying the proceedings but the Supreme Court noticed quite pronounced acts of mala fide on the part of the then President who under the then existing provisions of Article 209 (5) of the Constitution was the sole opinion-maker to initiate the inquiry. Presidential reference was not quashed by the Supreme Court on the basis of the allegations contained therein but because the Chief Justice's removal from his office was on account of his refusal to give assurance to the then President that his candidature in (military) uniform in the said elections would not be judicially invalidated. Hence, the unholy haste in first seeking resignation of the then Chief Justice under coercion followed by his mistreatment and forcible removal from office and then sudden convening of the meeting of the Supreme Judicial Council ('the Council') on one and the same day clearly demonstrated utter mala fide on the part of the then President who himself was the sole opinion-maker under Article 209(5) of the Constitution to refer the matter to the Council. That was the background that led to the quashment of the reference against the then Chief Justice by the Supreme Court. However in the present case the petitioner-judge had not alleged mala fide against the President but had raised such a plea only against the informant and the persons who processed the information forming basis of the reference. The present case was thus not even remotely close to what treatment was meted out to the then Chief Justice. [pp. 186, 187] H5 & I5

(kk) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) & 209(5)---Presidential reference before the Supreme Judicial Council---Scope---Discretion and independent opinion of the President---Scope---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether the President was bound to act on advice of the Prime Minister in terms of Art. 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

From the contents of Article 209 (5) of the Constitution, it became clear that in forming his opinion the President was not dependent on the advice of the Prime Minister or the Cabinet. He could form opinion on any information that may have come to him from any other source. This was so as the Judiciary was separate and distinct from the Executive branch of the Government. It had to remain completely separate and uninfluenced by any decision of the Executive in the running of its affairs. So while examining the power of the President to call for inquiry under Clause (5) of Article 209 of the Constitution, it clearly indicated that the President had to act in his own discretion to which he was entitled to by virtue of Article 48(2) of the Constitution. All that the executive could do was to place information which it considered actionable before the President and then it was for him to either seek any further information or consider the information already provided sufficient enough to refer the matter to the Supreme Judicial Council for inquiry without being burdened with the constraints of Article 48 (1) of the Constitution. The Executive on its part could not compel the President by advising him on the strength of Article 48 (1) of the Constitution to send the reference proposed by it to the Supreme Judicial Council for inquiry against a judge of the superior judiciary. [p. 188] J5 & K5

In the present case the contents of the summary prepared for the Prime Minister in respect of reference against the petitioner showed that it was proposed to the Prime Minister to advice the President to direct the Supreme Judicial Council to probe into the allegations in terms of Article 209(5) of the Constitution, and after such inquiry submit a report to the President under Article 209(6) of the Constitution. The summary was then endorsed by the Prime Minister and placed before the President. The President acted on such advice and signed the reference, which was then sent to the Supreme Judicial Council to conduct inquiry against the petitioner under Article 209(5) of the Constitution. Thus, nothing was left for the President to decide on his own in terms of Article 209(5) of the Constitution. From what transpired from the whole process, it became abundantly clear that the President acted on the summary in terms of Article 48(1) of the Constitution and signed the reference considering the advice to be binding on him. Thus, the decision of filing the Reference was not based on President's own independent opinion. The Reference not being based on President's own independent opinion, the same was submitted to the Supreme Judicial Council beyond the contemplation of the provisions of Article 209(5) of the Constitution and thus was not maintainable in law. [p. 189] L5

(ll) Constitution of Pakistan---

----Art. 209(5)---Reference before the Supreme Judicial Council against a judge of the Superior Courts---Information provided to the President or the Supreme Judicial Council by an informant---Credibility and motivation of the informant---Jurisdiction of the Supreme Judicial Council did not depend upon what motivated the informant to place the information on the desk of one of the two opinion makers (i.e the President or the Supreme Judicial Council) who found it to be credible enough to call for an inquiry---Function of the Supreme Judicial Council was to search for the credibility of the information rather than the credibility or motivation of the informant. [p. 191] M5 & O5

(mm) Constitution of Pakistan---

----Art. 209(5)---Reference before the Supreme Judicial Council against a judge of the Superior Courts---Filing of the Reference becoming public news---Such news becoming public would not be enough to vitiate the proceedings before the Supreme Judicial Council. [p. 191] N5

Per Yahya Afridi, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but finding the Constitutional petition filed by the judge under Article 184(3) of the Constitution as not maintainable, and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judge's wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(nn) Constitution of Pakistan---

----Arts. 184(3) & 188---Original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Order passed by the Supreme Court under Art. 184(3) of the Constitution was final and not appealable---Only medium of challenge available to a person aggrieved of such an order was the limited jurisdiction of the Supreme Court under review. [p. 193] P5

(oo) Constitution of Pakistan---

----Art. 184(3)---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Pre-requisites -- Matter of public importance---Meaning and scope---Matter of public importance encompassed any issue affecting the legal rights or liabilities of the public or the community at large, and it was not restricted to an individual or a group of individuals, how so large the group might be. [p. 194] Q5

Anwar Aziz v. Federation of Pakistan PLD 2001 SC 49; Abdul Wahab v. HBL 2013 SCMR 1383; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 ref.

(pp) Constitution of Pakistan---

----Art. 184(3)---Original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Pre-requisites---Matter of public importance---Scope---Independence of judiciary---Independence of the judiciary with all its legal, social and political implications was a matter of public importance. [p. 195] R5

Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Al-Jehad Trust v. Lahore High Court 2011 SCMR 1688; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

(qq) Constitution of Pakistan---

----Arts. 178, 184(3), 209(5)(b) & Third Sched.---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209 (8) of the Constitution), Arts. II, III, V, VI & Preamble---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Maintainability---Whether present petition was maintainable, and whether it involved the enforcement of a Fundamental Right of the petitioner---Reasons for finding present Constitutional petition as not maintainable recorded. [Minority view]

Petitioner was a Judge of the Supreme Court and had assumed the office by taking an oath under the Constitution. The oath declared, inter alia, that the judge would abide by the Code of Conduct for Judges of the Supreme Court and High Courts [framed by the Supreme Judicial Council under Article 209 (8) of the Constitution] ('the Code'). On taking an oath, a Judge accepted to assume a constitutional position with all its trappings; be it the privileges and facilities attached therewith or the duties and obligations. Accordingly, where the declaration of his oath commanded him to avoid an act, the sitting Judge was constitutionally obligated under the oath to abstain therefrom. This act of self-restraint by the sitting Judge would not infringe or compromise his fundamental rights but only moderate the exercise of enforcing the same. And thus, once a person took an oath under the Constitution, he by his conduct subjected all rights and privileges available to him under the Constitution and the law, which may be contrary to or not in consonance with the behaviour expected of a sitting Judge, as prescribed under the Code. Consequently, the fundamental rights of a sitting Judge shall remain eclipsed, so far as their enforcement was not in consonance with the terms of his oath. [p. 196] S5 & T5

The Code demanded a Judge to be "cautious and forbearing"; "to keep his conduct in all things, official and private, free from impropriety"; to avoid publicity and "not engage in public controversy"; and most important and relevant to the present matter, "endeavour to avoid, as far as possible, either on his behalf or on behalf of others, in litigation". [p. 197] U5

The subject matter of the present litigation, in pith and substance, revolved around allegations of impropriety. That being so, seeking to enforce the fundamental rights to challenge the very charges against him to be ultra vires, and that too without withstanding the prescribed enquiry would negate the very spirit of the oath taken by the petitioner-judge. [p. 198] V5

Present petition was not maintainable. It starkly lacked one of the essential conditions - enforcement of fundamental rights - for the Supreme Court to invoke its original jurisdiction under Article 184(3) of the Constitution. Moreso, when the positive exercise of the said jurisdiction by the Supreme Court would in effect thaw the process of accountability of one holding a public office, be it a judge of the Supreme Court. Accordingly, the present petition being bereft of essential constitutional requirements was non-maintainable, and thus, must fail. [p. 198] W5

(rr) Constitution of Pakistan---

----Arts. 10-A, 178, 184(3), 209(5)(b) & Preamble---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judge's tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers ('the petitioners') before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Maintainability---Whether the petitions were maintainable---Reasons for finding the present petitions as maintainable recorded.

In essence, present petitions sought the enforcement of the fundamental rights i.e. access to justice and a fair and independent judiciary. These issues were matters of public importance.

For seeking matters of public importance relating to the enforcement of fundamental rights in the original constitutional jurisdiction of the Supreme Court, the general petitioner need not be an aggrieved person in the strict sense. And more importantly, the present petitioners, unlike a sitting Judge of the superior court, were not shackled by any legal restrain of a constitutional oath to invoke the original constitutional jurisdiction of the Supreme Court. Resultantly, the present petitioners fulfilled the two mandated condition precedents to invoke the constitutional court of the Supreme Court under Article 184(3) of the Constitution. Present petitions were held to be maintainable. [p. 199] X5

Al-Jehad Trust v. President of Pakistan PLD 2000 SC 84; Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission 2017 PLC (C.S.) 984; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Pakistan Muslim League (N) through Khawaja Muhammad Asif v. Federation of Pakistan PLD 2007 SC 642 ref.

(ss) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) & 209(5)---Presidential reference before the Supreme Judicial Council---Discretion and independent opinion of the President---Scope---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judge's tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Whether the President was bound to act on advice of the Prime Minister in regard to the reference in terms of Art. 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

Constitutional mandate of the President under Article 209(5) of the Constitution was to form an "opinion", whether misconduct was made out against the Judge, and if so, then a reference was to be sent for an enquiry to the Supreme Judicial Council ('the Council'). This decision or for that matter, the "opinion" was to be based on the "information" received from "any source". The "advice" of the Prime Minister when received by the President, would only be an "information" received from a "source", and thus lost its efficacy as an "advice", within the contemplation of clause (1) of Article 48 of the Constitution. In such circumstances, the "advice" of the Prime Minister would then fall within the exception to the general rule, as envisaged under clause (2) of Article 48 of the Constitution; where the President would have to apply his independent mind on the matter and then act accordingly. [p. 202] A6

In the present case based on the complaint of a journalist, a summary was prepared and then moved by the Ministry of Law, and finally placed before the President, with the "advice" of the Prime Minister. The President signed and approved the summary with his handwritten note in terms that reflected, firstly, that the "advice" of the Prime Minister was unconditionally approved by the President; secondly, the approval so made by the President was without his independent application of mind on the "information" contained in the summary regarding the alleged misconduct against the judge; and finally, that, there was no formulation of an "opinion" by the President regarding the sufficiency of the "information" to constitute misconduct against the judge to file a reference. [pp. 200, 201] Y5 & Z5

The decision-making process leading to the President sending a reference to the Council under Article 209(5) deserved careful and thorough deliberation by the President. Given the facts relating to the opinion formed by the President in the present case, it demonstrated grossly negligent attitude lacking any application of mind. Instead of applying his independent mind to the seriously important matter placed before him, the President blindly accepted and followed the "advice" of the Prime Minister to send the reference to the Council. The formation of the "opinion" by the President was muddied by the blatant and uncalled for obedience to the "advice" of the Prime Minister. [p. 203] B6

The President had grossly failed to discharge his constitutional obligations as ordained under Article 209(5) of the Constitution. Since the very foundation of the "opinion" formed by the President was based on the non-exercise of lawful jurisdiction, therefore the 'superstructure' built thereon, the signing and sending of the reference to the Council would lack legal sanction and be without lawful authority, and thus ultra vires of the Constitution. Consequently, the proceedings before the Council in furtherance of the Presidential reference against the judge stood abated. [p. 203] C6

(tt) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) & 209(5)---Presidential reference before the Supreme Judicial Council---Information against the judge obtained and disclosed unlawfully---Effect---Information, obtained and disclosed unlawfully, if admitted would fall within the mischief of "information from any source"---Thus, it would remain the discretion of the Supreme Judicial Council to decide whether based on the admitted information, it would suo motu proceed against a sitting Judge or otherwise. [p. 205] D6

(uu) Constitution of Pakistan---

----Arts. 14(1), 184(3) & 209(5)(b)---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judge's tax returns---Constitutional petitions filed by different Bar Councils, Bar Associations and lawyers ('the petitioners') before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Tax and property records of the judge and his family were accessed/ searched to frame the reference against him---Whether such searches amounted to unlawful surveillance---Reasons for quashing the Presidential reference recorded.

Had the information regarding the foreign properties owned by the family members of the judge not been freely and legally accessible, then it would have sufficed to establish the allegation of obtaining the said information through surveillance. The counsel for the Government was able to demonstrate that the information regarding any property in the foreign country (United Kingdom), including the one owned by the family members of the judge could be retrieved or accessed through internet searches. And further, placing on record, a copy of the title of the said foreign properties, pre-dating the complaint against the judge, and that too, from the relevant and competent authority under the laws of the foreign country (United Kingdom) confirmed that the requisite search under the laws of the foreign country (United Kingdom) had already been carried out. Hence, the stance of the petitioners regarding mala fide of the Federal Government did not cross the legal threshold to saddle it with the responsibility of unlawfully obtaining the said information by surveillance. [p. 205] E6

(vv) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 198, 199 & 216(3)(p)---Presidential reference against a judge of the Supreme Court pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the judge's tax returns---Constitutional petition filed by different Bar Councils, Bar Associations and lawyers before the Supreme Court calling into question the constitutionality and legality of the reference against the judge---Law Minister directed the Chairman, Assets Recovery Unit (ARU), to seek verification of the ownership of the foreign properties from the income tax returns of the judge or his wife---Accordingly Chairman ARU sought confidential information of the judge and his wife from the Federal Board of Revenue (FBR) of particulars of the income tax returns filed and maintained under Income Tax Ordinance, 2001 ("the 2001 Ordinance")---Said information was disclosed by the Chairman FBR to Chairman ARU; and finally, the said confidential information was further passed on by Chairman ARU to the Law Minister and was then made the basis for the Presidential reference---Question as to whether disclosure of such confidential information was lawful, and whether the exception under S.216(3)(p) of the Income Tax Ordinance, 2001 applied to the judge and his wife---Reasons for quashing the Presidential reference recorded.

Income Tax Ordinance, 2001("the 2001 Ordinance") expressly provided for confidentiality of information recorded in the income tax returns of an assessee. The income tax officials, who were the custodian of the said information, were commanded under the law to jealously guard the same, and in case of any breach thereof, the offender was to face penal consequences under the Ordinance. However, this confidentiality of information would in no way prevent the competent income tax officials to seek from the assessee, the source of funds for the acquisition of any assets. In case, the competent income tax official was not satisfied with the explanation for the source of funds, he could departmentally proceed against the assessee for non-declaration and misdeclaration of assets under the enabling provisions of the 2001 Ordinance. [pp. 206, 207] F6 & G6

Law Minister and the Chairman ARU lacked the mandate to initiate an enquiry against a sitting Judge of the Supreme Court, as the legal domain to do so rested solely with the Supreme Judicial Council, and none other. Even otherwise, the information relating to income tax returns of the judge's wife would not fall within the scope of the purported enquiry of a "public servant" envisaged under section 216(3)(p) of the 2001 Ordinance. The particulars of the wife's income tax returns would remain immune from such permissible disclosures and thus retain its confidentiality. The legal position would have been otherwise, had the wife consented to allow such disclosure, which she did not or had the competent tax authorities initiated proceedings against her under the 2001 Ordinance, which they never did. [p. 209] I6

In the present case, once the income tax officials had information regarding the alleged undeclared assets of the judge's wife, they despite having ample authority to legally proceed against her under the 2001 Ordinance, opted to proceed unlawfully by disclosing confidential information to unauthorized persons. Thus, prima facie, keeping in view the chain of directions emanating from the Law Minister leading to the unlawful disclosures of confidential information by the income tax officials, all persons at different rungs of the governmental hierarchy, who were part of this unlawful disclosure of confidential information, had exposed themselves to penal prosecution for commission of offences under section 198 read with section 199 and section 216 (1) of the Ordinance. The direction of the Law Minister and the Chairman ARU to solicit, obtain and receive, confidential information regarding the income tax returns of the judge and his wife, prima facia, exposed them to criminal prosecution for having committed an offence under section 199 read with sections 198 and 216(1) of the 2001 Ordinance. Similarly, the fact that the then Chairman FBR and the income tax officials having not refused the illegal directions of the Law Minister and Chairman ARU, and passing on confidential information to them, prima facie, exposed them not only to departmental action but also to penal consequences under section 198 read with section 216(1) of the 2001 Ordinance. Accordingly, the present Chairman, FBR should ensure that the entire record of the present case was placed before the FBR to proceed under the law, against the Law Minister, the Chairman ARU, the then Chairman, FBR and all the concerned income tax officers qua their role in ordering to inquire into, solicit, disclose and receive confidential information relating to the income tax returns of the judge and his wife. [Minority view] [pp. 207, 210] H6 & L6

Since the entire process leading to the filing of the Presidential reference was in violation of the law and the Constitution, the sending of the same to the Supreme Judicial Council lacked legal sanction and was without lawful authority, and thus ultra vires of the Constitution. Consequently, the proceedings before the Supreme Judicial Council in furtherance of the Presidential reference against the judge stood abated. [p. 211] M6

Any directions by the Supreme Court to the tax authorities with specific time spans and setting the procedure for the income tax officials to proceed against the judge's wife, would amount to parallel legislation, when the 2001 Ordinance provided a framework for all such matters. More so, when such directions had been made against a person who was not a party to the present petitions. In the circumstances, any such directions of the Supreme Court would amount to prosecute her, and that too without providing her with an effective opportunity of hearing. [Minority view] [p. 209] J6

(ww) Constitution of Pakistan---

----Art. 248---Constitutional office holders---Illegal acts---Immunity from prosecution----Scope---No protection was extended to holders of constitutional office from prosecution for their illegal acts. [p. 209] K6

Ch. Zahur Ilahi's case PLD 1975 SC 383; Aman Ullah Khan's case PLD 1990 SC 1092; Nawabzada Muhammad Umar Khan's case 1992 SCMR 2450; Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice, Islamabad PLD 2012 SC 870 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

Per Syed Mansoor Ali Shah, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but with his own views and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judge's wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(xx) Constitution of Pakistan---

----Arts. 184(3), 209(5) & 211---Presidential reference against a judge of the Superior Court sent to the Supreme Judicial Council ('the Council')---Bar of jurisdiction under Art. 211 of the Constitution---Scope and purpose.

A Presidential reference competently filed by the President against a constitutional court judge should not ordinarily be made subject to scrutiny in judicial review by any Constitutional Court including the Supreme Court, unless the extraordinary circumstances demanded such intervention in the interest of justice and fair play. [p. 218] P6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

The proceedings before the Supreme Judicial Council ('the Council'), its report to the President and the removal of the judge by the President under Article 209 could not be called in question in any court of law under Article 211 of the Constitution, unless the removal of the judge was without jurisdiction, mala fide or coram non judice. A limited judicial review on said three grounds was not affected by Article 211, as no ouster clause could keep the actions taken without jurisdiction, mala fide or coram non judice, beyond the scrutiny of the constitutional courts. Article 211 of the Constitution gave immunity to proceedings before the Council till the removal of the judge by the President. However, proceedings and steps taken before the matter landed before the Council escape the immunity under Article 211. [p. 217] N6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

All acts preceding the proceedings before the Council were not hit by the ouster clause of Article 211. They were, therefore, subject to standard judicial review like any other executive or administrative act, on the grounds of substantive illegality, procedural impropriety and decisional irrationality. [p. 218] O6

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(yy) Constitution of Pakistan---

----Art. 209(5) ---Supreme Judicial Council ('the Council')---Complaint against judge of the Superior Courts---Council was the only constitutional forum available to inquire into the conduct or capacity of a constitutional court judge.

Only constitutional forum available to inquire into the conduct or capacity of a constitutional court judge was the Supreme Judicial Council ('the Council'). So the Government, its Ministries, Divisions, Departments or Attached Departments and their officers were not authorized to entertain any complaint against a constitutional court judge, let alone proceed and collect evidence to supplement the complaint. They could at best return the complaint to the complainant and guide him to approach the constitutional forums under Article 209 of the Constitution. [p. 218] Q6

Where any Ministry, Division, Attached Department or Department of the Government, in the course of its normal business, discovered some adverse information against a constitutional court judge that may attract impeachable misconduct, in addition to the legal proceedings under the relevant law, the concerned Department etc., in such situation, should at first proceed against the constitutional court judge on the basis of the adverse information in accordance with the law under which it functioned. For example, if it was the Federal Board of Revenue (FBR) that discovered such an information, it could proceed against the judge under the tax laws and the judge would have a right to defend himself in accordance with law. Only when these proceedings came to a close after exhausting all the legal and judicial avenues and it was finally held that the judge had violated the law, the FBR may, in the interest of judicial accountability, send this information to the Federal Government through the Division with which it was attached under the Rules of Business, 1973 ("ROB") for information and necessary action. It would then finally rest with the Federal Government i.e., the Cabinet, to decide if the violation of law amounted to impeachable misconduct and whether the Federal Government should proceed against the constitutional court judge and place the "information" before the President. Such process found its justification from the foundational constitutional principles like independence of judiciary, rule of law and parliamentary democracy. [p. 219] R6

(zz) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Rules of Business, 1973, R. 14 ---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit purportedly established vide a Cabinet notification coordinated the collection of evidence against the petitioner-judge---Question as to whether the ARU could have entertained and investigated the complaint against the petitioner-judge---Reasons for quashing the Presidential reference recorded. [Minority view]

The complainant could only have approached the constitutional forums provided under Article 209(5) of the Constitution and could not have filed the complaint before any other office or authority. Therefore, the very act of approaching the Assets Recovery Unit (ARU) was per se unconstitutional and illegal. It was to be noted with concern and suspicion that how did the complainant, a citizen of the country, planned on filing the complaint against a constitutional court judge before the ARU, which had no public interface or the legal mandate to deal with such a matter and had earlier never conducted any inquiry for the accountability of a constitutional court judge. There was surprisingly nothing on the record to show how the complainant found out about ARU. The ARU was not a Ministry or Division of any Ministry of the Federal Government, or an Attached Department, neither was it a statutory authority nor had the notification of its establishment been published in the official gazette for public information. The ARU, therefore, for all practical purposes did not legally exist for the world outside the Prime Minister's Office. However, the complainant instead of approaching the Supreme Judicial Council ('the Council'), which would have ordinarily come to the mind of a citizen, particularly in view of the publicly known recent removal of a High Court Judge by the President on the recommendation of the Council, approached the ARU for the accountability of judges. This looked more odd especially when the complainant claimed to be a journalist. Such an unusual step by the complainant raised eyebrows about the credibility of the complaint and the bona fide of the complainant. [p. 219] S6

The Chairman, ARU on receiving the complaint from the complainant acted with surprising agility and activated his team to collect evidence of the alleged foreign properties. The ARU, which was to work under the Cabinet Division as per decision of the Cabinet, did not make any formal request to the Law and Justice Division through the Secretary, Cabinet Division for consultation on the matter in accordance with Rule 14 of the Rules of Business, 1973 ('the ROB'), despite noting in minutes of its meeting held on 15-04-2019 that the matter was sensitive as it related to the Judges of the Superior Judiciary. The informal discussion and consultation made by the Chairman and Members of the ARU with the Law Minister on 16-04-2019, and the oral advice of the Law Minister in that discussion carried no value in the eyes of law. The Law Minister, who was a distinguished constitutional lawyer, also did not realize the importance of his advice, even oral, and gave a "go ahead" to the ARU for inquiring into the veracity of the allegations made in the complaint against judges of the constitutional courts. The Chairman, ARU who was also a Barrister-at-law, and not a layman, knew well that an oral advice of the Law Minister was nothing in the eyes of law and he should have ascertained his legal authority to inquire into the allegations made against Judges of Constitutional Courts, before initiating the inquiry into the allegations made in the complaint. But both of them paid no heed to the constitutional mandate of Article 209 of the Constitution, and initiated the process of inquiring into the allegations. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 224] Y6

(aaa) Constitution of Pakistan---

----Arts. 82(2), 84, 99(3), 184(3), 209(5)(b) & 240(a)---Rules of Business, 1973, Rr. 2(1)(ii), 4(4), 4(5), 16(1)(m) & Sched. III---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Assets Recovery Unit purportedly established vide a Cabinet notification coordinated the collection of evidence against the petitioner-judge---Question as to what was the legal and budgetary status of the Assets Recovery Unit and that of its Chairman---Reasons for quashing the Presidential reference recorded. [Minority view]

The Assets Recovery Unit (ARU) was purportedly established by the Cabinet vide notification dated 06-11-2018. The Federation had defended the establishment of the ARU by the Cabinet, by referring to the provisions of Rules 4(5) and 16(1)(m) of the Rules of Business, 1973 ('the ROB'). The Federation argued that Rule 4(5) empowered the Prime Minister to establish agencies and offices for conducting the business of the Federal Government, and under Rule (16)(1)(m) the Cabinet had power to decide any matter referred to it by the Prime Minister, and that the Prime Minister referred the matter of establishing the ARU to the Cabinet, and the Cabinet thus competently approved the establishment of the ARU. [p. 220] T6

Bare reading of the provisions of Rule 4(5) of the ROB made it clear that the said Rule did not empower the Prime Minister to establish new agencies or offices; it simply authorized him to refer the business of the Government to already established agencies and offices under the law. The word "determine" had been used in the Rule in the context of allocation or entrustment of the business of Government and not for the power to establish a new agency or office. In the absence of any power to establish a new agency or office, reference of the matter to the Cabinet under Rule 16(1)(m) by the Prime Minister was inconsequential, as the Cabinet also did not enjoy any such power. The scope of the ROB could not extend to creation of agencies or offices to perform functions in relation to any matter to which the executive authority of the Federation extended. Such agencies or offices could be established only by or under some law enacted by the Parliament on the subject over which it had the legislative power under the Constitution. The creation of the ARU by the Cabinet, could not be sustained treating it as an Attached Department of the Cabinet Division also. The Departments that had been declared as Attached Departments to particular Divisions were created by or under the law, and not by the Federal Government. The Federal Government, as per Rules 2(1)(ii) and 4(4) of ROB, could only declare them attached with a particular Division, but could not create them. [p. 220] U6

The Terms of Reference (TORs) of the ARU defined its role and powers. The ARU did not pass as a coordinating agency or office under its TORs for the following reasons: first, as per its notification it was established as an entity separate from the Departments whose officials had been made its Members and also addressed as such in its TORs; second, there was no mention of its coordinating role in the TORs; third, the powers and functions had been prescribed in the TORs as that of the ARU, and not of its Members; and fourth, but most importantly, the ARU was conferred such wide and extensive powers which even its Members did not enjoy under the laws of their parent institutions, e.g., it was empowered to request any intelligence agency under the Government for assistance in obtaining any information on any subject within and outside the country, and authorized to seek assistance and information from law enforcement agencies and other Government departments, including the information relating to bank accounts, companies record, revenue record, travel record, NADRA record etc. With such intrusive investigative powers, the ARU could not be said to be an innocuous coordinating agency, office or unit. The establishment of the ARU was, therefore, absolutely without lawful authority. In the absence of any legal status of the ARU, its Chairman and Members also had no legal position or status. [p. 221] V6

The appointment of the Chairman, ARU by the Cabinet was not backed by any law including any rule of the ROB. Even otherwise, the ROB made under Article 99(3) of the Constitution could not provide for creation of posts in connection with the affairs of the Federation. Such power must be conferred by some law enacted under Article 240(a) of the Constitution. Article 99(3) empowered the Federal Government to make rules only on two subjects: firstly, for the allocation of the business of the Federal Government to its different components, i.e., the Ministries; and secondly, for the transaction of that business. The Rules made under such power could regulate the procedural modalities of allocation and transaction of the business, i.e., by which Ministry or Division of a Ministry and how a matter was to be taken up and dealt with; such Rules could not grant substantive power to create posts in connection with the affairs of the Federation. The expression "allocation and transaction" of the business did not by any stretch of imagination imply such power. Thus, the appointment of the Chairman, ARU by the Cabinet was without lawful authority. [p. 222] X6

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 ref.

Funds could be allocated for any Government activity only by the National Assembly in the Annual Budget Grants under Article 82(2) of the Constitution or supplementary and excess budget grants under Article 84 of the Constitution. The Annual Budget Statements for the relevant financial years 2018-19 and 2019-20 did not mention the allocation of any budget for the expenditure of ARU. The amounts as approved in the budget passed by the National Assembly could be utilized only for the purpose specified in the budget statement. Any re-appropriation of funds or their utilization for some other purpose was not justified under the Constitution; for this purpose, the supplementary budget statement had to be placed before the National Assembly following the procedure provided in Article 84 of the Constitution. Persons making the unauthorized expenditure from the Federal Consolidated Fund were personally responsible for that expenditure. The ARU, therefore, had no budgetary support and therefore did not pass for an executive authority. In such background, role of the ARU became more suspicious and raised the questions: who funded the investigation and the transnational surveillance of the petitioner judge; who paid for the law expert of the ARU; who paid for collecting information from the land registry of the foreign country and websites, which only provided access to information after payment; and who was funding the entire operation. These unanswered questions cast doubts on the bona fides of the Government and the Prime Minister, who was the Chief Executive of the Federation. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 222] W6

Action Against Distribution of Development Funds PLD 2014 SC 131; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 and Ram Jawaya v. State of Punjab AIR 1955 SC 549 ref.

(bbb) Constitution of Pakistan---

----Arts. 9, 14(1), 184(3) & 209(5)(b)---National Database and Registration Authority Ordinance (VIII of 2000), S. 28---Income Tax Ordinance (XLIX of 2001), S. 216---Government Servants (Conduct) Rules, 1964, R. 18---Investigation for Fair Trial Act (I of 2013), S.35---Right to privacy---Scope---Surveillance---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Property records and information relating to the petitioner-judge and his family were accessed/searched by the Assets Recovery Unit using different sources, including websites, to frame the reference against the petitioner---Question as to whether the information obtained through such searches was breach of the petitioner's and his family's right to privacy, dignity and personal liberty enshrined in the Constitution and amounted to covert surveillance---Reasons for quashing the Presidential reference recorded. [Minority view]

Chairman and legal expert of the Assets Recovery Unit (ARU) asserted that the details of those residing in any immovable property in the foreign country (United Kingdom) could be accessed through open source websites; that once the address was located, the owner of that immovable property could be found through open source such as the land registry website. However, it was important to note that said websites were not free or open source websites. To access the information from the websites, an account with username and password needed to be created, payment was to be made by debit/credit card, the website acknowledged the payment of charges by email, and sent the requested information by email. The Federation in defence did not produce any record of the searches made on the said websites: What and how many addresses were found and under whose names? Who created the account? Who made the payment of charges? What were the payment or credit card details? Who received the acknowledgement of payment and the requested information and at whose email address? More importantly, there was no evidence of what information was received that was allegedly used for searching on the land registry website. A paid source, which required registration and payment before allowing access to information, was not an open source as claimed by the Federation. It showed that no such search was conducted for tracing the properties through those websites; rather the details of the properties were gathered through covert surveillance of the petitioner judge and his family. Covert surveillance and interception were offensively intrusive investigative tools only available to intelligence agencies in the country. [p. 227] Z6

The omission of the Federation and of the Chairman and legal expert, ARU to produce the website record as to procuring the address of the foreign properties of the spouse and children of the petitioner judge gave rise to a presumption that the legal expert, ARU never searched the addresses of the properties through the website. Even otherwise, the Chairman and legal expert, ARU in their concise statement made a general statement that an immovable property could be located through open source websites, but they did not make any specific and categorical statement therein that the foreign properties of the family of the petitioner judge were located by that method. [p. 227] A7

Surveillance was permitted in the limited area of anti-state or terrorist activities and that too under judicial and executive oversight. Outside such limited area, surveillance was constitutionally prohibited. Intelligence agencies did not enjoy a free hand in conducting surveillance but are subject to strict rules of compliance and oversight by the court. The fact that the ARU did not possess the resources or the technical capacity to carry out surveillance of the petitioner and his family and the interception of their communications, gave credence to the stance of the petitioner that the surveillance was carried out in connivance and in collaboration with the intelligence agencies. The possibility of such happening, therefore, could not be ruled out in the absence of any other evidence furnished by ARU or the Law Minister. It was but obvious that in the present case the information about the addresses of properties were obtained through no other means but through covert surveillance and interception of the intelligence agencies which gathered the information from the private zone of privacy enjoyed by the petitioner judge and his family, without any authorization of law and by trampling over the constitutional guarantees of privacy, personal freedom and dignity. The issue of unlawful surveillance and invasion of privacy of the petitioner judge and his family was far more critical and graver than the information procured by the ARU. It was a naked threat to personal liberty, privacy and dignity guaranteed to the citizens under the Constitution. [pp. 228, 230, 233] B7, E7 & J7

Employees of National Database and Registration Authority (NADRA), who were legally enjoined under section 28 of the National Database and Registration Authority Ordinance, 2000 not to communicate to any person any information acquired by them in the course of their employment, committed violation of that command of the law by making compliance with the command of the Chairman, ARU in communicating to the Chairman and other Members of the ARU the NADRA record relating to the petitioner and his family. Likewise, Member of the ARU from Federal Board of Revenue (FBR) committed violation of section 216 of the Income Tax Ordinance, 2001 by disclosing the tax records of the petitioner and his spouse to the Chairman and other Members of the ARU. While Member of the ARU from the Federal Investigation Agency (FIA) breached Rule 18 of the Government Servants (Conduct) Rules, 1964 by making unauthorized communication of the official documents and information as to the passport/visa record and travelling history of the petitioner and his family. The Chairman and Legal Expert, ARU procured the information regarding the foreign properties by offending the fundamental rights of personal liberty, privacy and dignity of the petitioner and his family by procuring personal information regarding the foreign properties without the sanction of any law through covert surveillance and interception, and also by violating the confidentiality provisions of the National Database and Registration Authority Ordinance, 2000 and the Income Tax Ordinance, 2001. These actions of the Chairman and legal expert of ARU also attracted criminal liability under section 35 of Investigation for Fair Trial Act, 2013. For these illegal actions, the authorities concerned must initiate criminal and disciplinary proceedings against the Chairman, legal expert and Members of the ARU, as well as, the defaulting officials of FBR and NADRA under their respective laws. [pp. 236, 237, 240] M7, N7, O7 & R8

The admission and reliance on the material (evidence) illegally collected by the ARU without any enabling law empowering it to do so, in flagrant violation of the fundamental rights of the petitioner and his family was inadmissible, therefore, the Law Minister and Prime Minister could not have relied and acted upon it, for making the "summary" and advising the President. [pp. 240, 241] R7 & S7

The complainant journalist also appeared before the Court but did not explain his source of information regarding the foreign properties belonging to the petitioner's family. The complainant appeared to be a proxy, who could not have discovered the addresses of the foreign properties. After putting together, the facts relating to the information given by the complainant it was easy to discern that the complainant was fed the information to generate the complaint. Whoever fed him the information were the real actors of the present case. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 229] C7 & D7

(ccc) Constitution of Pakistan---

----Arts. 9, 14(1) & 25---Right to privacy---Scope---Illegal surveillance by State agencies, impact of---Privacy affirmed the agency and autonomy of the individual and the right of every person to have the freedom and liberty to live a life of dignity---Privacy required that all information about a person was fundamentally his own, only for him to communicate or retain for himself---Privacy attached to the person and not to the place where it was associated---Intrusion by the State into the sanctum of personal space, other than for a larger public purpose, was violative of the constitutional guarantees---Right to privacy was deeply intertwined with the right to life, right to personal liberty and right to dignity---Illegal and illegitimate surveillance, by both State and private actors, had the impact of intrusion into the private lives of citizens, not only violating their constitutional rights but also intruding on the very personhood, privacy and personal liberty of those surveilled---Surveillance had disparate impact, violating principles of non-discrimination and equality as enshrined in the Constitution---Illegally procured private information amassed by the agencies could be used to manipulate and blackmail people for promoting political agendas; this crippled human security and dismantled democracy, lowering it slowly into an abyss of totalitarianism---Concept of privacy and social impact of illegal surveillance explained.

[pp. 230, 231, 232, 235] F7, G7, H7, I7 & K7

Michael C. James, A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe, Connecticut Journal of International Law, p.261, Vol. 29, Issue 2, (Spring 2014); John Stuart Mill, On Liberty, Batoche Books, p.13, (1859); [5 Coke 91: 1 Sm LC (13th Edn.) 104 at p. 105]; Warren and Brandeis, The Right to Privacy, Harvard Law Review, p. 193, (1890), Vol. 4, No. 5; 277 U.S.438, 478 (1928); Lawrence Lessig, Code and Other Laws of Cyberspace, p.153-55 (1999); Artavia Murillo ET AL. ("In Vitro Fertilization") v. Costa Rica (2012), Inter-Am. Ct. H.R. (Ser.C) No.257; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 and Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000) ref.

(ddd) Constitution of Pakistan---

----Arts. 9 & 14(1)---Right to personal liberty and privacy---Scope---Duty of State institutions/authorities with respect to personal information of citizens.

Rights to personal liberty and privacy under Articles 9 and 14 of the Constitution imposed a constitutional obligation on State authorities to protect the privacy and personal freedom of the citizens unless the law expressly authorized them to do otherwise in exceptional circumstances. In the absence of any law to the contrary, the rights to privacy and personal freedom became absolute and stood to protect the privacy and personal freedom of the citizen. No Government institution was to disclose the personal information of any citizen unless the law authorized the institution to do so. In the absence of any specific law, the umbrella of constitutional guarantees would come to cover and protect the citizen. [p. 236] L7

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

----Preamble---Constitution of Pakistan, Art. 14(1)---Illegally collected evidence, admissibility of---Principles regarding the admission or exclusion of evidence obtained in violation of the constitutional rights. [Minority view]

The Irish Supreme Court in the case DPP v. JC [2015] IESC 31 laid down the following principles with regard to the admission or exclusion of the evidence obtained in violation of the constitutional rights, in order to balance the legitimate competing public interests: (i) The onus was on the prosecution to establish the admissibility of all evidence; (ii) If a claim was raised that evidence was obtained in breach of constitutional rights, the onus was on the prosecution to establish either that there was no unconstitutionality, or that despite any interference with constitutional rights the evidence should still be admitted; (iii) Where evidence was obtained in deliberate and conscious violation of constitutional rights, it should be excluded except in exceptional circumstances; (iv) Where evidence was taken in breach of constitutional rights, there was a presumption in favour of exclusion, which could be rebutted by evidence that the breach of rights was either inadvertent or derived from subsequent legal developments; and (v) Whether or not a breach of constitutional rights was deliberate and conscious required analysis of the conduct or state of mind of the individual who actually gathered the evidence, as well as, any senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence-gathering of the type concerned. [p. 239] P7

Neil M. Richards, The Dangers of Surveillance, Harvard Law Review, p.1935, Vol.126, (2013); [2006] 2 AC 221; [1970] HCA 21; [1978] HCA 22; 116 U.S. 616 (1886); 367 US 643 (1961) and [2015] IESC 31 ref.

Above stated principles as to inadmissibility of the illegally collected evidence had developed mostly in the cases where there was a law that regulated a constitutional right, but that law was not followed or was violated in the process of collecting evidence. The courts have held such evidence to be generally inadmissible, with few exceptions, mainly with the reason that the admission of such evidence would compromise the integrity of the judicial process and bring the administration of justice into disrepute. There was no hindrance in adopting the said principles in our jurisdiction. [p. 240] Q7

(fff) Constitution of Pakistan---

----Arts. 48(1), 48(2), 184(3) & 209(5)---Rules of Business, Sched. V-B, Entry No. 35---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Prime Minister placing information/advice before the President with regard to misconduct of a judge---Independent opinion of the President---Scope---Entry 35 in Sched. V-B to the Rules of Business, 1973---Ultra vires the Constitution---Whether under Art. 209(5) of the Constitution, the President was to form his personal "opinion" or to act on the "advice" of the Cabinet or the Prime Minister as envisaged under Article 48(1) of the Constitution---Reasons for quashing the Presidential reference recorded. [Minority view]

The President was to examine the "information" placed before him under Article 209(5) as Head of State, acting as an arbiter between the two branches of the State, discharging his function as a person representing the unity of the Republic. Personal opinion of the President under Article 209(5) actualized the non-partisan role of the President and provided a check on any partisan adventurism by the Government of the day against the judiciary. If the President was just a rubber stamp acting on the advice of the Cabinet, a hostile Government could, theoretically, file references against a number of judges of the constitutional courts, resulting in initiation of inquiries against all of them. The "information" placed before the President under Article 209(5) was to be processed into a reference only if the President formed an opinion that the information made out a case for inquiry against the judge. [p. 244] T7 & U7

While the Constitution vested the President with the power to form an "opinion", it was difficult to imagine that this power was to be exercised by him in a mindless and mechanical manner, thus reducing him to just a rubber-stamp, who upon receiving information was to simply direct the Council to inquire into the conduct of a constitutional court judge. [p. 245] V7

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61, paras 107 and 196 ref.

Entry 35 in Schedule V-B to the Rules of Business, 1973 that provided that President was to act on advice of the Prime Minister for making a reference to the Supreme Judicial Council under Article 209(5) of the Constitution was, therefore, ultra vires the Constitution. [p. 246] W7

In the present case, the President did not apply his mind and form his own opinion on the "information" received; he simply approved the advice of the Prime Minister and signed the draft Reference submitted with that advice. The formation of opinion and the direction to the Supreme Judicial Council to hold an inquiry was, therefore, not that of the President; both these acts were made without jurisdiction and were coram non judice, and thus unconstitutional and of no legal effect. [p. 246] X7

(ggg) Constitution of Pakistan---

----Arts.184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 111, 114, 116(1)(b), 116A & 120(3)---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether petitioner-judge was obliged under S.116(1)(b) of the Income Tax Ordinance, 2001 to declare the assets and liabilities of his spouse and children in his wealth statement---Reasons for quashing the Presidential reference recorded. [Minority view]

Section 116(1), of the Income Tax Ordinance, 2001 (the 2001 Ordinance') simply provided for issuance of notice to a taxpayer for filing the wealth tax statement or wealth reconciliation statement along with the income tax return and provided for particulars to be included in such a statement. In case a taxpayer had already filed the said statements along with his return, section 116(1) appeared to have no relevance. It was not the case of the Federation that the petitioner failed to file the wealth tax statement or wealth reconciliation statement. In case the said statements were deficient or incorrect, the tax department could issue notice to the taxpayer under section 120(3) and consider the case in the light of Section 111 of the 2001 Ordinance. No such notice or proceedings were initiated by the Federal Board of Revenue (FBR) against the petitioner. Directly leveling allegation of violation of section 116(1)(b) against the petitioner in such background was misconceived besides being premature. [p. 247] Y7

One foreign property was purchased by the spouse of the petitioner in the year 2004, before his elevation to the Bench of the High Court in 2009; this property was therefore completely irrelevant for forming opinion of misconduct and making the reference against the petitioner. The other two foreign properties were acquired by the spouse and children of the petitioner in the year 2013, after his said elevation; they were, therefore, to be declared in the tax year 2013 by the petitioner if there was any legal obligation on him, at that time, to do so. The children of the petitioner were not minors in the year 2013; therefore, no question as to his obligation to declare their assets arose under section 116(1)(b). The current dispute related to his alleged obligation to declare the assets of his spouse only. Therefore, the question was whether the petitioner was under any legal obligation to declare the foreign assets of his spouse in his wealth statement along with his tax returns filed in the tax year 2013. The simple and straightforward answer as per FBR's own interpretation that was in vogue in 2013 was that he was not. The FBR, in the wealth statement form prescribed for the tax year 2013, required a taxpayer to declare the assets of his or her spouse if he or she had not filed income-tax return and wealth statement independently. It was an admitted fact that the spouse of the petitioner had filed her income-tax return and wealth statement independently, in the year 2013. It, therefore, appeared that there was no legal obligation on the petitioner to declare the assets of his spouse in his wealth statement as per the requirement of the FBR prevailing in the year 2013. [pp. 248, 249] Z7 & B8

PLD 2017 SC 265 ref.

The FBR's second interpretation expressed in the form prescribed for the tax year 2015 was that a taxpayer was required to declare only those assets of his or her spouse which had been acquired by funds provided by that taxpayer. There was neither any allegation in, nor was any material annexed with, the "summary" initiated for forming the opinion of misconduct against the petitioner that the funds for purchase of the foreign assets were provided by the petitioner to his spouse. No opinion of misconduct against the petitioner, thus, could have been made on the basis of these two departmental interpretations of the provisions of section 116(1)(b) of the 2001 Ordinance. [p. 248] A8

In terms of the scheme envisaged in the 2001 Ordinance, once an asset was claimed by a person to have been sourced by him or her and, more so, such asset was also declared in the statutory declaration/wealth statement by that person, then only that person could be questioned and required to explain the source of acquiring such asset by the tax authorities. In the event that person failed to properly explain the source, an addition could be made in his or her income and that added income was taxed accordingly. Under no circumstances, any other person could be made directly or indirectly part of such proceedings. Thus, no opinion of misconduct against the petitioner could have been formed on the basis of even such interpretation of the provisions of section 116(1)(b) of the 2001 Ordinance. [p. 250] C8

Another interpretation of section 116(1) of the 2001 Ordinance suggested by the Federation was that every individual resident taxpayer was to mention the assets of his or her spouse in the wealth statement irrespective of the fact that the latter was or was not his or her "dependent". Section 114 of the 2001 Ordinance required that the tax return for any tax year had to be accompanied by the wealth statement required under section 116. In case a wealth statement was not filed or was deficient, the income tax return filed was not considered complete. In case of any deficiency, the Commissioner, FBR was empowered to issue a notice to the taxpayer under section 120(3), informing the deficiency and providing him time to rectify it. If it was cured during the given time, the tax return was considered complete and accepted. Therefore, if the Commissioner, FBR had been of the view, as per the interpretation suggested by the Federation, that the petitioner was under legal obligation to declare the assets acquired by his spouse in the year 2013, in his wealth statement filed with tax return of 2013, he should have issued notice to the petitioner specifying the defect and providing him time to rectify it. The petitioner, in that case, could have defended that notice on all legal grounds available to him including the interpretation proposed by him as well as the interpretations put to the provisions of section 116(1)(b) by the FBR itself in the forms prescribed for wealth statement. No such notice, however, was issued to the petitioner. [p. 250] D8

It was also important to highlight that Section 116A of the 2001 Ordinance which required a resident individual taxpayer to furnish statement of foreign assets, was inserted in the 2001 Ordinance in the year 2018 by the Finance Act, 2018. This amendment made in the year 2018 prima facie showed that there was earlier no obligation on a resident individual taxpayer to furnish such statement of even his own foreign assets, much less the foreign assets of his spouse and children. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 251] E8

(hhh)Constitution of Pakistan---

----Arts. 12, 184(3) & 209(5)(b)---Anti-Money Laundering Act (VII of 2010), Sched., section XIIA---Income Tax Ordinance (XLIX of 2001), Ss. 192, 192A, 194 & 199---Foreign Exchange Regulation Act (VII of 1947) Ss. 4 & 5---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Whether the petitioner violated any provisions of Anti-Money Laundering Act, 2010 or the Foreign Exchange Regulation Act, 1947---Reasons for quashing the Presidential reference recorded. [Minority view]

The Federation argued that being a case of 'concealed income', the case against the petitioner-judge also fell under the Anti-Money Laundering Act, 2019 (AMLA) by referring to sections 192, 192A, 194 and 199 of Income Tax Ordinance, 2001 ('the 2001 Ordinance') mentioned in in section XIIA of the Schedule to the AMLA. The said sections in the Schedule of AMLA were inserted vide Notification No. SRO 425(I)/2016 dated 14-05-2016 through which offences under sections 192, 192A, 194 and 199 of the 2001 Ordinance were listed as "predicate offences" for the purposes of invocation of the AMLA. In the present case, admittedly all three foreign properties were acquired prior to 14-05-2016; therefore, the AMLA was not applicable at all. Furthermore, principle of prohibiting retrospective punishment was a guaranteed fundamental right under Article 12 of the Constitution. Even otherwise, it was clear that the Legislature had put a precondition that 'tax sought to be evaded is ten million rupees or more' in all the four said sections of 2001 Ordinance mentioned in AMLA. Thus, for the invocation of the AMLA the law presupposed conclusion of proceedings under the relevant provisions of the 2001 Ordinance to determine the said threshold and that too in relation to tax liability for the period on or after 14-05-2016. No such determination had taken place in the present case; hence, there was no application of the AMLA. [p. 251] F8

The Foreign Exchange Regulation Act, 1947 (FERA) provided for regulation of payments and dealings in foreign exchange and securities, and the import and export of currency and bullion. Sections 4 and 5 of the FERA provided that no one could deal in foreign exchange except through an authorized dealer and imposed restrictions on transfer of money outside Pakistan. There was no evidence on the record that established or even prima facie showed any violation of the FERA against the petitioner. The Federation pointed out no violation of the FERA, even during the arguments. The Presidential reference against the petitioner judge was quashed, and as a result the proceedings, including the show cause notice, before the Supreme Judicial Council stood abated. [p. 252] G8

(iii) Constitution of Pakistan---

----Arts. 209(5)(b) & 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209 (8) of the Constitution), Preamble---Reference against a judge of the Superior Court on grounds of 'misconduct'---Impeachable misconduct---Meaning. [Minority view]

Impeachable misconduct was when there was a violation of law or violation of the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) ['the Code'] that was so grave that it ruptured judicial integrity, tarnished public confidence and pulled down legitimacy of the judicial institution. Short of this, it might be misconduct but not impeachable misconduct. It was commonsensical that not every infraction led to removal of a constitutional court judge or constituted impeachable misconduct. The best test was to see if the judicial integrity of a judge had been undermined resulting in lowering the public confidence and trust in the judiciary, thus impairing impartiality and legitimacy of the judicial institution. [p. 254] H8

(jjj) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Preamble---Standards under the said Code extended to the judge and judge alone---Said Code had no jurisdiction over or concern with the family, relatives and friends of the judge---Judge could not be made vicariously liable for the conduct of his family. [Minority view]

Judicial integrity and the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) ['the Code'] were judge specific, largely covering judicial conduct and partly his personal behavior. The standards under the Code extended to the judge and judge alone. The Code had no jurisdiction over or concern with the family, relatives and friends of the judge. [p. 254] I8

The Code was a judge specific document and did not extend to family members and in no event, held a judge vicariously responsible for the conduct of his family - his spouse and children - who were independent, natural and legal persons in their own right and could do whatever they wanted. "Conduct" and "misconduct" were personal to a judge under the Code. Like any other citizen, a judge could not be held accountable for the conduct of someone else, there was no such thing as vicarious responsibility of a judge, unless the law required it or there was evidence that the wrongdoings of the judge had been concealed behind the family facade. [p. 255] J8

Judges were not to be taken as supporting or endorsing their spouse's or partner's conduct if they did not publicly dissociate themselves from it. The law should recognize that they were independent actors and that the deeds of one were not to be visited on the other. [p. 255] K8

Hearing on the Report of the Chief Justice of Gibraltar, [2009] UKPC 43. (4-3 minority view) ref.

(kkk) Constitution of Pakistan---

----Arts. 184(3), 204(2)(b)& 209(5)(b)---Supreme Judicial Council Procedure of Enquiry 2005, R. 13---Contempt of Court Ordinance (V of 2003), Ss. 3 & 4---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Confidentiality of the reference---Details of proceedings of the reference publicized by the President and reported by the media---Proceedings by the President were to kept confidential---Reasons for quashing the Presidential reference recorded. [Minority view]

Paragraph 13 of the Supreme Judicial Council Procedure of Enquiry 2005 provided for the proceedings of the Supreme Judicial Council ('the Council') to be conducted in camera and also banned reporting the proceedings of the Council. There was an absolute restriction of confidentiality on the process of preliminary assessment of the allegations made against a constitutional court judge. Such restriction equally applied to publicizing the reference filed by the President and the allegations made therein. In the context of publicizing, proceedings of preliminary assessment of "information" conducted by the President was similar and equal to proceedings by the Supreme Judicial Council ('the Council'). Therefore, if the proceedings were to be conducted by the Council in camera, then so should be the proceedings by the President. [pp. 255, 256] L8 & M8

Under Article 204(2)(b) of the Constitution, the constitutional courts had power to punish any person who scandalized the Court or otherwise did anything which tended to bring the Court or a Judge of the Court into hatred, ridicule or contempt. Publicizing a complaint or reference and the allegations made therein, of which veracity was yet to be determined after inquiry by the Council, definitely tended to bring the Judge into hatred, ridicule and contempt, and thus attracted the provisions of Article 204 of the Constitution and the Contempt of Court Ordinance, 2003. In the present case, it was a matter of record that the reference was publicized even when it had not yet been placed before the Council for preliminary consideration, as the filing of the reference and the allegations made therein against the petitioner was published in several newspapers and later during the proceedings before the Council the matter was discussed in press conferences and TV talk shows by the Government Ministers and even by the President. The act of publicizing the filing of the reference against the petitioner and of the allegations made therein, was clearly unconstitutional and fell within the scope of the provisions of Article 204 of the Constitution and the Contempt of Court Ordinance, 2003. The fact as to who leaked and publicised the matter was disputed and could not be resolved in the present proceedings, but the matter could not be left unnoticed and allowed to go unchecked. Such omission would encourage repetition of the mischief in future. Thus, the present matter was to be left to the discretion of the Chief Justice who was pater familias of the judiciary and was to protect its prestige, honour, reputation and integrity, to initiate appropriate proceedings for a thorough inquiry of the matter so that the right to fair trial of the persons involved in publicizing the reference and the allegations made therein, may not be infringed.

[pp. 256, 257, 263] N8, O8 & S8

(lll) Mala fides---

----Types of mala fides---'Mala fide of law' and 'mala fide of fact'---Distinction.

Mala fide of law was constituted when a person inflicted an injury upon another person in flagrant contravention of the law; he was not allowed to say that he did so with an innocent mind. He was taken to know the law and act within the law. He may, therefore, be guilty of mala fide of law, although so far as the state of mind was concerned, he acted ignorantly and in that sense innocently. Thus, action of an authority was tainted with mala fide of law when it took the action which was so unreasonable, improbable or blatantly illegal that it ceased to be an action contemplated by the law under which it was purportedly taken, or took the action by violating the mandatory procedural requirements or without satisfying the jurisdictional requirements, or took the action which no reasonable person could have taken on the basis of the available material. On the other hand, an unlawful action done designedly, willfully or wantonly and not accidently, thoughtlessly or negligently fell within the domain of mala fide of fact. In such case, the action was taken in bad faith either to hurt the person against whom the action was taken or to benefit oneself or another, or in colourable exercise of powers for collateral or ulterior purposes not authorized by the law under which the action was purportedly taken. If the act suffered from mala fide of law, the mischief was corrected by nullifying the act; mala fide of fact, however, further entailed the consequences of making the actor accountable also. [p. 257] P8

West Pakistan v. Begum Shorish Kashmiri PLD 1969 SC 14; Sarwar v. Punjab 1990 SCMR 999; Said Zaman v. Federation 2017 SCMR 1249; Abdul Rauf v. Abdul Hamid PLD 1965 SC 671 and Federation v. Saeed Ahmad PLD 1974 SC 151 ref.

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

----Art.129(e)---Presumption of correctness attached to an official act---Scope---Public functionary, mala fide of---Proof.

Mala fide was difficult to prove against a public functionary because there was a presumption of regularity with regard to all official acts under Article 129(e) of the Qanun-e-Shahadat, 1984.However, this presumption of regularity was available only to official acts done by a person or authority competent to do that. The presumption of regularity could not be attached to the acts done by the persons and authorities who had no legal authority to do those acts, rather a reverse presumption for lack of bona fide arose. In such a case, the onus to prove mala fide did not remain as high. Mala fide was inferential by construct. It could be drawn from direct or circumstantial evidence. The Court carefully took into consideration the surrounding circumstances of the action; the conduct of the persons involved; the object and purpose to be achieved; and the nature of the illegality. The court, in a way, reconstructed the whole act and its backdrop, and then evaluated the fides of the action and its actors. If mala fide on the part of the actors was apparent on the face of record, then the court of law seized with the matter was not supposed to shut its eyes from taking notice thereof. While full faith was given to public acts and record of the Government, this assumption was overturned if mala fide was borne out from the record. [p. 258] Q8

Federation v. Saeed Ahmad PLD 1974 SC 151 ref.

(nnn) Constitution of Pakistan---

----Arts. 10A, 184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) & 122---Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209(8) of the Constitution), Preamble---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously 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, and also send a report in such regard to the Supreme Judicial Council, which had the powers to, if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---His Lordship (Syed Mansoor Ali Shah, J) observed that after quashing of the Presidential reference against the petitioner, the case set out against him came to an end---Reasons given by His Lordship for not agreeing with the majority view as to the directions given to the Federal Board of Revenue after the reference had been quashed. [Minority view]

[Note: The directions can be found in the short order of the present judgment reported as (Mr. Justice Qazi Faez Isa and 14 others v The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

The spouse and children of the petitioner like all other citizens of the country were independent persons and enjoyed an inalienable right to the protection of law. As they were not party to the instant proceedings and were never summoned or made a party to the proceedings by the Court, any adverse order against them, would deprive them of their inalienable right to due process under the Constitution and the law, and would contravene the well-entrenched and deep-rooted principle of audi alteram partem. After the reference against the petitioner was unanimously quashed by the Court, the case set out against the petitioner came to an end. In the absence of any allegations of corruption against the petitioner or of his holding foreign properties in the names of his wife and children as a trustee or a benamidar, the Supreme Court, and for that matter the Supreme Judicial Council ('the Council'), had no concern with the assets and properties of the spouse and the children of the petitioner. [p. 263] T8

The Federal Board of Revenue (FBR) did not require any direction from the Supreme Court for taking any proceedings against any individual (including a constitutional court judge or his spouse and children) for a tax violation under the Income Tax Ordinance, 2001 ('the 2001 Ordinance'), if any. Similarly, the Council was also free and independent to exercise its suo moto jurisdiction against any judge of the constitutional courts when so required. It was nobody's case that either the FBR or the Council were reluctant or unwilling to perform their functions under the law and the Constitution. [p. 264] U8

Under Section 122 of the 2001 Ordinance an assessment order could not be reopened after a lapse of five years by the FBR. Also, the directions in the majority view regulating the Tax Commissioner to function and perform his duties within a prescribed time-line, which was not so provided under the 2001 Ordinance amounted to entering the realm of judicial legislation. [p. 264] V8

The direction to the Chairman, FBR to send the report to the Council would make the Chairman, FBR a complainant and the report a new complaint. The FBR was an organ and instrumentality of the Federal Government and was not empowered to directly approach the President under Article 209 of the Constitution unless the Federal Government i.e., the Cabinet, approved to place such information before the Council through the President. [p. 264] W8

The Supreme Court could not direct someone to file a complaint against a constitutional court judge before the Council and then make the Council consider the said complaint. This would have a far reaching effect as it would dismantle the independence and neutrality of the Council and the constitutional scheme under Article 209 that safeguarded a constitutional court judge. It also flouted the right to fair trial under Article 10A of the Constitution. [p. 265] X8

The observation in the majority view that the right to appeal under the 2001 Ordinance would be available to the spouse and children of the petitioner while simultaneously, the Council may also commence proceedings - could lead to conflicting results and thereby, may render the appeal under the 2001 Ordinance otiose and futile. Besides, the Council did not enjoy any power to issue directions to any judicial or a quasi-judicial forum to speed up pending matters against a constitutional court judge. [p. 265] Y8

The proceedings initiated through the majority view after the quashment of the reference against the petitioner would mean that the Council must now consider if a judge could be made vicariously liable for misconduct for his family's affairs, a concept that was alien to the Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Article 209(8) of the Constitution) and had nothing to do with judicial integrity. [p. 265] Z8

Per Maqbool Baqar, J; agreeing with the majority view to the extent of quashing of the Presidential reference against the judge but with his own views and also disagreeing with the majority view regarding directions given to the Federal Board of Revenue for initiating proceedings against the judge's wife and children, and for submitting a report of said proceedings to the Supreme Judicial Council. [Minority view]

(ooo) Constitution of Pakistan---

----Arts. 14(1), 90, 91, 184(3) & 209(5)(b)---Rules of Business, 1973, R. 20(6)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b), 198 & 216---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 28 & 29---Government Servants (Conduct) Rules, 1964, R. 18---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council ('the Council') in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns---Constitutional petition filed by the petitioner-judge before the Supreme Court calling into question the constitutionality and legality of the reference against him---Held, that the purported reference was based on actual malice and ill-will harboured against the petitioner-judge by the concerned State functionaries on account of a judgment the petitioner-judge had authored in the past [Suo Motu Case No. 7 of 2017 (PLD 2019 SC 318)], wherein he had criticized the ruling political party and one of its coalition partners---Purported reference did not allege any dishonesty or corruption in the acquisition of the foreign properties and it was also not alleged that the petitioner did not have sufficient tax paid/white money to acquire the said properties, if he wanted to---Nothing was placed on the record to show that there had been any money laundering or that the petitioner failed to pay any tax due---Joint reading of Ss.114 & 116 of the Income Tax Ordinance 2001 ('the 2001 Ordinance') showed that the petitioner was not at all required to declare the assets of his non-dependent wife, and children, nor was there any other provision in the 2001 Ordinance creating any such obligation on the petitioner requiring him to disclose the assets of his non-dependent wife and children along with his income returns---Prime Minister bypassed the Cabinet altogether and sent his purported advice to the President for forwarding the purported reference to the Council, without the sanction of the Cabinet---President had not applied his independent mind while forwarding to the Council the purported reference---Assets Recovery Unit (ARU) and its Chairman were bereft of any legal status and had absolutely no power or authority to collect the material in connection with the purported reference---Information about the petitioner and his family available with the Federal Board of Revenue (FBR) and National Database and Registration Authority (NADRA) was freely accessed, obtained and shared by/with the ARU and the media in violation of the respective statutory provisions relating to confidentiality and statutory prohibition on sharing such information---Complainant-journalist who informed the Chairman ARU of the foreign properties belonging to the petitioner's family was merely a proxy who was set up by the Government itself---Whole account of "complaint" followed by an "investigation" was to cover up the fact that the information about the foreign properties was, in fact, obtained by government agencies through covert surveillance---Petitioner's image was systematically damaged through selected leaks and press conferences by members of the Cabinet in relation to the reference---All illegal acts leading upto the filing of the reference were collusive involving at the very least the President, Prime Minister, Law Minister, Chairman Assets Recovery Unit (ARU) and the Attorney General---Malice could be inferred from their deeds and actions and the surrounding context---Law Minister, the Chairman ARU and officials of Federal Investigation Agency (FIA) were additionally liable under the relevant provisions of Income Tax Ordinance, 2001 ('the 2001 Ordinance') and the National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance) for illegally obtaining/disclosing personal and confidential information of the petitioner and his family---Prime Minister himself was also liable under the 2001 Ordinance and NADRA Ordinance as it was on his orders and that of his team that the illegalities in relation to the reference were committed---Prime Minister was also liable for sending the purported advice to the President, which in the facts and circumstances of the case was infected with malice---Whereas, the then, Special Assistant to the Prime Minister on Information was liable for committing contempt of Court for the uncalled for and disrespectful comments she made in her press conference relating to the reference---Purported reference against the petitioner was quashed and the proceedings and the show cause notice in relation thereto stood abated---Illegalities and violations of the Constitution and relevant laws committed from the stage of pre-reference investigation/ proceedings to the filing of the Presidential reference before the Supreme Judicial Council stated in detail. [Minority view] [pp. 270, 271, 272, 276, 277, 278, 281, 286, 293, 294, 295, 298, 299, 300, 302, 303, 305, 306, 310] A9, B9, C9, D9, E9, F9, G9, H9, K9, N9, Q9, R9, S9, T9, U9, V9, W9, X9, Y9, Z9, A10, B10, C10, D10, E10, F10 & K10

Messrs Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mohtarma Benazir Bhutto's case PLD 1998 SC 388; Muhammad Yousuf v. Abdul Qayyum PLD 2016 SC 478, 483; State v. Ataullah Mengal PLD 1967 SC 78, 91; Shahbaz Khan's case PLD 2016 SC 1, 9; Aftab Ahmed Memon v. Chairman NAB 2019 YLR 1865, 1870; Khawaja Ahmed Hassan's case 2005 SCMR 186 and Jan e Alam v. State PLD 1965 SC 640 ref.

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

----S. 116(1)(b)---Wealth statement---Assets in name of non-dependent spouse and children acquired by them through their own resources, disclosure of---Filer/taxpayer was certainly not required to disclose such assets of his independent spouse and children through the wealth statement that he/she was required to file along with his/her income return. [Minority view] [p. 282] I9

(qqq) Interpretation of statutes---

----Notifications---Beneficial notifications, executive orders and instructions had retrospective effect. [p. 283] J9

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Elahi Cotton Mills Ltd. and others v. Federation through Secretary, Ministry of Finance, Islamabad and others PLD 1997 SC 582 ref.

(rrr) Constitution of Pakistan---

----Arts. 48(2) & 209(5)(b)---Presidential reference against a judge of the Superior Courts---President to form an 'opinion' in terms of Art. 209(5) of the Constitution before sending the reference to the Supreme Judicial Council---Meaning and scope---Whether the President could apply his independent mind or had to act on the advice of the Prime Minister---Held, that no concept of any "advice" was present in the constitutional scheme of initiating and maintaining any proceedings against a Judge---Article 209(5) of the Constitution, recognised the role of only two offices/entities, the President, and the Supreme Judicial Council ('the Council')---Prime Minister had absolutely no role or participation in the entire process---Term "advice" was alien to the proceedings under Article 209---Article 209(5) of the Constitution did not state that President had to form an opinion on the advice of the Prime Minister, thus, it was the exclusive domain and prerogative of the President to form an opinion, whether or not to send the matter to the Council for it to hold an inquiry---President must personally and independently apply his mind as to whether a Judge had committed misconduct and, if so, whether it justified the sending of reference against him. [Minority view] [pp. 287, 288] L9 & M9

(sss) Constitution of Pakistan---

----Arts. 4 & 14(1)---Right to privacy---Scope---Surveillance---Collection of evidence through surveillance---Scope and permissibility. [Minority view]

State functionary could only embark upon the investigation or collection of material about a citizen under (i) the authority of an enabling law, (ii) by a functionary designated under the law; and (iii) only for a justifiable cause or reason. [p. 291] O9

The State had no business to pry upon or collect personal information about its citizen, unless there was a just cause and legitimate purpose for doing so. No State functionary could embark upon an investigation or collection of material without the sanction of an enabling law, and even where such sanction and authority was available, the power and mandate thereunder was well regulated; neither could such power be exercised whimsically, nor could it travel beyond certain specified limits, and was always designed to be invoked/exercised under certain specified circumstances, and only where grounds and reasons justifying such exercise occurred or existed, and in a just, fair and a reasonable manner. Non-compliance of such prescription shall render the investigation, or collection of material, violative of Articles 4 and 14 of the Constitution. [p. 291] P9

(ttt) Interpretation of statutes---

----Similar words in two different statutes---Interpretation of a word or a phrase could not be transported from one statute to another---Comparing the language of one statute with that employed in another was unsafe, even though the subjects covered by the two may involve similarities. [p. 307] G10

Ghulam Mustafa Jatoi v. Additional and Sessions Judge 1994 SCMR 1299 and Federation of Pakistan through Secretary, Ministry of Finance v. Haji Mohammad Sadiq and others 2007 PTD 67 ref.

(uuu) Islamic law---

----Husband and wife---Individual ownership of property---Doctrine of proximity---Applicability---Separation of entities of the spouses regarding the holding of separate properties by them individually was clearly ordained in the Holy Quran---Islam stipulated separate identities of the spouses particularly in relation to their entitlement for holding of their properties separately from one another---Doctrine of proximity did not apply to the properties of spouses. [pp. 308, 309] H10 & I10

Verse 7 of Surah An Nisa; Verses 11 and 12 of Surah An Nisa; Verse 32 of Surah An Nisa and Verse 176 of Surah An Nisa ref.

(vvv) Constitution of Pakistan---

----Arts. 184(3) & 209(5)(b)---Income Tax Ordinance (XLIX of 2001), Ss. 116(1)(b) & 122---Presidential reference against a judge of the Supreme Court ('the petitioner') pending before the Supreme Judicial Council in relation to properties bought by his spouse and children in a foreign country that were not declared in the petitioner's tax returns (wealth statement)---Constitutional petition filed by the petitioner before the Supreme Court calling into question the constitutionality and legality of the reference against him---Supreme Court unanimously 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 (FBR) 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, and also send a report in such regard to the Supreme Judicial Council, which had the powers to, if it considered justified, to commence proceedings against the petitioner in exercise of its suo motu jurisdiction---His Lordship observed that after quashing of the Presidential reference against the petitioner, there was absolutely no justification for the said directions to the FBR as they were beyond the scope of the petition---Reasons given by His Lordship (Maqbool Baqar, J) for not agreeing with the majority view as to the directions given to the Federal Board of Revenue after the reference had been quashed. [Minority view]

[Note: The directions can be found in the short order of the present judgment reported as (Mr. Justice Qazi Faez Isa and 14 others v. The President of Pakistan and others (PLD 2020 SC 346), headnote (b)]

Upon quashment of the purported reference and abatement of the proceedings in relation thereto, and in view of the clear finding that the petitioner had not misconducted himself and had no concern, either with the foreign properties held by his spouse and children, or their tax affairs, if any, no question of public importance with reference to the fundamental right, amenable before the Supreme Court under Article 184(3) of the Constitution, remained to be decided, or dealt with. The directions given to the Federal Board of Revenue by the majority view after quashment of the reference were extraneous to the present proceedings. [pp. 283, 287, 309, 310] J10 & L10

The properties having been acquired by the wife and children of the petitioner in the tax years 2004 and 2013, and five years period of limitation prescribed by law for opening of the tax assessment with regard thereto having expired several years before, they could not be lawfully required to furnish the source of funds for acquiring the said properties, or any income information for the said years. The assessments that had attained finality with the afflux of time could not be ordered to be re-opened. The Federal Board of Revenue's (FBR's) reopening the same shall be in violation of the legal prohibition and disability. Such would also violate the vested rights of the petitioner's wife and children. The directions given by the majority view required the wife and children of the petitioner to do what the law did not oblige them to do. [p. 288, 291, 311] M10 & P10

The directions to FBR given in the majority view had been passed against the persons (the wife and children of the petitioner) who were neither before the Court nor were they put to notice. No opportunity was provided to them to submit as to why the FBR be not so directed. The wife and children being private citizens, their tax matters had no nexus with the essential pre-requisite for invoking and maintaining any proceedings under Article 184(3) of the Constitution, and were thus not amenable to the proceedings that were invoked thereunder. The role and jurisdiction of the Supreme Judicial Council ('the Council')was limited to the matters relating to the conduct and capability of the superior Court Judges; it was not mandated to delve into the affairs of someone who was not a judge of a superior Court. The directions in in the majority view tended to stretch the scope of the Council beyond its mandated jurisdiction, it rather vested in the Council the jurisdiction and authority not granted to it by the constitution. [p. 291] N10 & O10

The directions to FBR in the majority view tended to create an anomalous situation, for they provided that the proceedings before the Council as contemplated thereby, shall not be effected by the filing or pendency of any appeal under the Income Tax Ordinance, 2001 ('the 2001 Ordinance') against the order/report of the Commissioner, or against any order made or decision taken at any appellate stage, as in the event the Council, on the basis of the report submitted by the Commissioner, recommended removal of the petitioner, but subsequently the petitioner succeeded in his challenge to the order of the Commissioner, and the said report was found not sustainable, the time for the retrieval may have passed, as by then the petitioner may have reached the age of superannuation. Even otherwise the damage inflicted upon the petitioner, and suffered by the Supreme Court, would be irretrievable. In the reverse scenario where the Council may not agree with the findings of the Commissioner, but such findings were upheld by forums before which the Commissioner's finding may be amenable to correction, an anomalous and embarrassing situation may arise for the Council. [p. 312] R10

(www) Administration of justice---

----Courts could not and should not create any right, liability or obligation that was not founded in law. [p. 312] Q10

State v. Ziaur Rehman PLD 1973 SC 49 ref.

Munir A. Malik, Senior Advocate Supreme Court along with Justice Qazi Faez Isa (appeared in person on 17.06.2020), Mrs. Qazi Faez Isa (appeared through video link on 18.06.2020), Tariq Mehmood, Senior Advocate Supreme Court, Salahuddin Ahmed, Advocate Supreme Court, Ch. Atif Rafiq, Advocate Supreme Court assisted by: Barrister Kabir Hashmi and Barrister Rabi-bin-Tariq; Babar Sattar, Advocate Supreme Court, assisted by: Miss Shohan Karimi, Advocate, Syed Kazim Hassan, Advocate Supreme Court and Kassim Mir Jat, Advocate-on-Record for Petitioners (in Constitutional Petition No.17 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; Syed Qalb-e-Hassan, Advocate Supreme Court, Amanullah Kanarani, Advocate Supreme Court, Rasheed A. Rizvi, Senior Advocate Supreme Court assisted by: Abbas Rasheed Rizvi, Advocate and M.S. Khattak, Advocate-on-Record for Petitioners (in Constitutional Petition No. 19 of 2019).

Bilal Hassan Minto, Advocate Supreme Court and Ms. Hina Jillani, Advocate Supreme Court for Petitioner (in Constitutional Petition No. 20 of 2019).

Sardar Muhammad Aslam, Advocate Supreme Court, Syed Amjad Ali Shah, Advocate Supreme Court, Kamran Murtaza, Senior Advocate Supreme Court, Azam Nazeer Tarar, Advocate Supreme Court Abid Saqi, Advocate Supreme Court, Hafiz M. Idrees, Advocate Supreme Court, Salman Akram Raja, Advocate Supreme Court assisted by: Asad Ladha, Advocate, Malik Ghulam Sabir, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitutional Petition No. 21 of 2019).

Naseebullah Tareen, Advocate Supreme Court and Syed Amjad Ali Shah, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 22 of 2019).

Hamid Khan, Senior Advocate Supreme Court, assisted by: Naseebullah Tareen, Advocate Supreme Court, Munir Kakar, Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate, Asif Reki, Advocate, Sh. Ahsan-ud-Din, Advocate Supreme Court and Khushal Kansi, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 23 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court, assisted by: Abbas Rasheed Rizvi, Advocate and M. Aqil, Advocate Supreme Court, Kassim Mir Jat, Advocate-on-Record for Petitioners (in Constitutional Petition No. 24 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, Rashid A. Rizvi, Senior Advocate Supreme Court, assisted by: Abbas Rasheed Rizvi, Advocate for Petitioners (in Constitutional Petition No. 25 of 2019).

Mian Raza Rabbani, Senior Advocate Supreme Court, assisted by: Zeshan Abdullah, Advocate and Saalim Salim Ansari, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 26 of 2019).

Hafiz Abdul Rehman Ansari, Advocate Supreme Court, Taufiq Asif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitutional Petition No. 27 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court, assisted by: Abbas Rasheed Rizvi, Advocate and Syed Haider Imam, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 28 of 2019).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, assisted by: Barrister Saad M. Buttar, Barrister Jibran Gillani and Miss Ramsha Hayat, Advocate, Abdul Latif Afridi, Advocate Supreme Court and Tariq Khan Hoti, Advocate Supreme Court for Petitioners (in Constitutional No. 29 of 2010).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, assisted by: Barrister Saad M. Buttar, Barrister Jibran Gillani and Miss Ramsha Hayat, Advocate, Abdul Latif Afridi, Advocate Supreme Court and Tariq Khan Hoti, Advocate Supreme Court for Petitioners (in Constitution Petition No. 30 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, M.S. Khattak, Advocate-on-Record for Petitioners (in Constitutional Petition No. 32 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court, assisted by: Abbas Rasheed Rizvi, Advocate for Petitioners (in Constitutional Petition No. 34 of 2019).

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, DAG. for Respondent No.1.

Aamir Rehman, Addl. AG. for Respondent No. 3.

Irfan Qadir, Advocate Supreme Court for Respondent No.4.

Dr. Khalid Ranjha, Senior Advocate Supreme Court along with Sajeel Sheryar Sawati, Advocate Supreme Court for Respondent No.9.

Respondent No.10 (in-person).

Respondent No.11 (in-person).

Arbab Arif, Secretary, SJC/Khawaja Daud Ahmad, Secretary SJC for Supreme Judicial Council.

P L D 2021 Supreme Court 313

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Services and General Administration Department and others---Appellants

Versus

ABDUL RAUF and others---Respondents

Civil Appeals Nos.433 to 438 and 596 of 2020, decided on 14th October, 2020.

(Against the judgment dated 03.01.2020 passed by the High Court of Balochistan, Quetta in C.Ps. Nos. 48, 363, 401, 401, 656, 678 and 1173 of 2019).

Constitution of Pakistan---

----Art. 224 (1A)---Caretaker Government/Cabinet, powers of---Scope---Caretaker Government/Cabinet could not take policy decisions and permanent measures including recruitments, making appointments, transfers and postings of Government servants during the limited period that it held office.

In the present case, the process of recruitment may have been initiated by way of publication of advertisement before the Caretaker Government was put in place. However, all material steps including processing of applications, tests (if any) interviews (if any) and recommendations by the Recruitment Committee were taken during the Caretaker Government and the elected Government was practically presented with a fait accompli. The mandate of a Caretaker Government was to hold the mantle in the interregnum when the term of the sitting Government had expired and the new Government was yet to take charge. A caretaker Government was empowered only to carry out day to day affairs of the State with the help of available machinery/ resources/manpower. It could not take policy decisions and permanent measures including recruitments, making appointments, transfers and postings of Government Servants. It must leave such matters to the elected Government which took charge as a result of elections.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 ref.

Decisions having far reaching consequences should only be taken by the elected government having the mandate to perform such functions as were required of it in exercise of powers conferred by the Constitution.

Nemat Ullah and others v. Chairman Governing Body, Worker Welfare Board/Secretary to Government of KPK, Labour Department and others 2016 SCMR 1299 ref.

Even otherwise, in the present case, there was no record whatsoever of any process of recruitment having been transparently conducted with a view to make merit-based appointments. The recommendations made by the Committee had ex facie been made arbitrarily and were neither based upon any test results nor interviews. There was not an iota of evidence available on the record that any test or interview was conducted or transparent and proper merit list was prepared showing marks obtained by each candidate in the NTS test or interview.

In the interest of being just and fair the Supreme Court directed that it would be appropriate if all those candidates who filed applications pursuant to the advertised posts were allowed to appear in fresh tests to be conducted by NTS. Appeals were allowed with further relevant directions.

Arbab M. Tahir, A.G. Balochistan, Ayaz Khan Swati, Addl. A.G., Balochistan for Appellants (in all cases).

Sardar Ahmed Haleem, Advocate Supreme Court for Respondents (in C.A. No. 433 of 2020).

Amanullah Kanrani, Advocate Supreme Court for Respondents (in C.As. Nos. 435-438 of 2020).

Kamran Murtaza, Senior Advocate Supreme Court for Respondents (in C.A. No. 596 of 2020) (via video-links from Quetta).

Syed Rifaqat H. Shah, Advocate-on-Record for Respondents (in C.As. Nos. 433, 435-438 and 596 of 2020).

Nemo for Respondents (in C.A. 434 of 2020).

P L D 2021 Supreme Court 320

Present: Umar Ata Bandial, Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

NATIONAL SAVING CENTRAL DIRECTORATE, ISLAMABAD through D.G. and another---Petitioners

Versus

MUHAMMAD FAROOQ RAJA---Respondent

Civil Petition No. 405 of 2020, decided on 2nd November, 2020.

(Against judgment dated 9.12.2019 passed by Lahore High Court (Rawalpindi Bench) in Writ Petition No. 275 of 2018).

(a) Bahbood Savings Certificates Rules, 2003---

----Rr. 5 & 8---General Clauses Act (X of 1897), S. 24-A---Locus poenitentiae, principle of---"Bahbood Saving Certificate Scheme" ('the Scheme') introduced by the National Saving Centre ('the petitioner-Authority')---Dual national holding nationality of Pakistan and a foreign country---Whether a dual national (respondent) was eligible to avail the Scheme---Held, that respondent under the impression that he was eligible to purchase bonds under the Scheme applied for the same, in response to the acceptance shown by the petitioner-Authority---Respondent invested in the Scheme as a bona fide claimant---Incentive arising out of the said Scheme was extended in favour of the respondent in accordance with the rules framed under Bahbood Saving Certificates Rules, 2003---Petitioner-Authority was under an incumbent duty to scrutinize the status of the respondent prior to issuing acceptance which had accrued a right in favour of respondent---Any slackness on the part of the petitioner-Authority at belated stage could not be burdened to the respondent and the same was hit by principle of locus poenitentiae----Otherwise the case of the respondent was also covered by S. 24-A of General Clauses Act, 1897, which clearly reflected that once a right under the Scheme was accrued, the same could not be withdrawn unless and until it was established that the Scheme was availed by practicing fraud or misrepresentation---Besides respondent was a dual national, holding nationality of foreign country Denmark, which was one of the countries, whose nationality could be kept alongside nationality of Pakistan without deprivation of any legal rights under the law of the land---High Court had rightly found the respondent to be eligible for availing benefit of the Scheme---Petition for leave to appeal was dismissed and leave was declined.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

(b) Estoppel---

----Promissory estoppel---Government functionaries---Where Government controlled functionaries made a promise which ensued a right to anyone who believed in it and acted under the same, then such functionaries were precluded from acting detrimental to the rights of such person/citizen.

Molvi Ijaz ul Haq, D.A.G. and Saghir Ahsan Farooqi, Joint Director (CDNS) for Petitioners

Fareed Nasir, Law Officer, National Savings.

Zafar Mehmood Mughal, Advocate Supreme Court for Respondent.

P L D 2021 Supreme Court 327

P L D 2021 Supreme Court 327

Present: Mushir Alam, Faisal Arab and Syed Mansoor Ali Shah, JJ

Messrs CHERAT CEMENT CO. LTD., NOWSHERA and others---Petitioners/Applicants

Versus

FEDERATION OF PAKISTAN through Ministry of Petroleum and Natural Resources and others---Respondents

Civil Review Petitions Nos. 421 to 454, 458 and 459 of 2020 and Civil Miscellaneous Applications Nos.6317 to 6353, 6355 to 6421, 6423 to 6427, 6735, 6736, 6839, 6841, 6843 and 6845 of 2020 in Civil Review Petitions Nos. Nil of 2020.

(On review of this Court's judgment dated 13.08.2020 passed in Civil Appeal No. 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, 3411 of 2017 and 3385 of 2018 etc.).

Per Mushir Alam, J; Faisal Arab, J; agreeing; Syed Mansoor Ali Shah, J. dissenting [Majority view]

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

----Ss. 3 & 4---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 Mushir Alam, J: Supreme Court in the judgment under review had declared the GIDC Act, 2015 as intra vires the Constitution---When, the GIDC Act, 2015 had been declared to be intra vires by the Supreme Court then every provision of it, which either created an obligation or granted any relief was enforceable in law---None of the grounds urged by the petitioners called for reviewing the judgment under review---Review petitions were dismissed and the Gas Infrastructure Development Cess Act, 2015 (by a majority of 2:1, with Syed Mansoor Ali Shah, J dissenting) was held to be intra vires the Constitution.

Per Syed Mansoor Ali Shah, J. dissenting [Minority view]

(b) Supreme Court Rules, 1980---

----O.XXVI, R. 8---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review petition, hearing of---Constitution of Bench---Scope---Application/petition for review shall, as far as practicable, be posted before the "same Bench" that delivered the judgment or order sought to be reviewed---Judge who dissented from the majority judgment should be Member of the Bench that was to hear the review petition, as a judgment pronounced in terms of the majority opinion of a larger Bench could not be reviewed by a smaller Bench consisting of only the Judges holding the majority opinion---Jurisdiction and judicial power of the Judge who earlier dissented from the majority judgment of the Bench was similar and co-extensive with that of those Judges whose opinion became the majority judgment of the Bench, in hearing the review petition against that majority judgment. [Minority view]

Rule 8 of Order XXVI of the Supreme Court Rules, 1980 very clearly and firmly prescribed that the application for review shall, as far as practicable, be posted before the "same Bench" that delivered the judgment or order sought to be reviewed. The expression "same Bench" left little room to speculate the constitution of the Bench: the "same Bench" meant the same judges, as far as practicable, and the same number of judges, i.e. the same numeric strength of the Bench.

PLD 2013 SC 1024; PLD 1979 SC 741; PLD 1979 SC 53 and 1979 SCMR 427 ref.

The Judge who dissented from the majority judgment, if available, should be Member of the Bench that was to hear the review petition, as a judgment pronounced in terms of the majority opinion of a larger Bench could not be reviewed by a smaller Bench consisting of only the Judges holding the majority opinion. It was utmost necessary to maintain quorum of the Bench that delivered the judgment under review. It was because of such legal compulsion, that new Members were added to the Bench when any of its earlier Members retired or was not available for any other reason, to maintain the quorum of the Bench for hearing the review petition.

Gadoon Textiles Mills v. WAPDA 1997 SCMR 641; Gandaf Steel Industries v. Federation 1997 SCMR 1669; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Benazir Bhutto v. President of Pakistan PLD 2000 SC 77; Nawaz Sharif v. Imran Khan PLD 2018 SC 1; Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 and Shyam Lal Sharma v. Union of India AIR 1987 SC 1137 ref.

Grounds of review which were, in fact, limitations on the power of review of the Supreme Court applied equally to the Judges whose opinion prevailed for being the majority view and to the Judge whose opinion remained inoperative for being the minority view. The Judge whose opinion remained the minority view in the main case could review the Judgment of the Bench that was pronounced in terms of the majority opinion, on any of the said grounds of review, as could a Judge who delivered the majority opinion.

PLD 1979 SC 741; PLD 1979 SC 53; AIR 1987 SC 877; Union of India v. Tulsiram Patel AIR 1985 SC 1416; Shyam Lal Sharma v. Union of India AIR 1987 SC 1137; [2011] 1 MLJ 25; Aamer Zaman v. Omar Ayub 2015 SCMR 890 and 2015 SCMR 1303 ref.

(c) Supreme Court Rules, 1980---

----O. X, R. 1---Judgment/order delivered by a Bench of the Supreme Court---Majority view/opinion---Scope---Judgment pronounced or Order made in terms of the majority opinion was the judgment or order of the Bench, and not of the Judges holding the majority opinion. [Minority view]

When a case was heard by a Bench of two or more Judges, the case was decided in accordance with the opinion of such Judges or of the majority of such Judges. Judgment or order of the Court was pronounced in terms of the majority opinion; such judgment or order was of the Bench that heard the case and, for that matter, of the Court, and not only of the Judges whose opinion prevailed as a majority opinion. Numeric strength of the whole Bench determined the judicial power of its Members, and not the numbers of the individual Judges in majority.

(2018) 11 SCC 305 ref.

(d) Supreme Court Rules, 1980---

----O. X, R. 1 & O.XI---Judgment of larger Bench of the Supreme Court---Scope---Such judgment was binding on the Benches of the Supreme Court consisting of Judges less than the larger Bench---Smaller Bench could not request for constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength could make such request. [Minority view]

Muhammad Saleem v. Fazal Ahmad 1997 SCMR 315; Babar Shehzad v. Said Akbar 1999 SCMR 2518; All Pakistan Newspapers Society v. Federation PLD 2004 SC 600; Ata Ullah v. Surraya Parveen 2006 SCMR 1637; Azhar Siddiqui v. Federation PLD 2012 SC 774 and Central Board of Dawoodi Bohra Community v. State of Maharashtra AIR 2005 SC 752 ref.

(e) Cess---

----Scope---Visible co-relation must exist between the collection of Cess and its expenditure---In a case where the fee was to be utilized for service that was to be rendered in future, it was important to see how the moneys collected were being expended and whether there was a transparent and confidence inspiring co-relation between the two---Furthermore amount of Cess so collected was for a specified purpose and must be accounted for accordingly---Cess was not the collection of general revenue which could be utilized anywhere. [Minority view]

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

----Ss. 3 & 4---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Whether there was any co-relation between the collection of the GIDC cess and expenditure therefrom---Held, that the data provided by the Government showed that it already had Rs.101.357 billion of GIDC cess in excess after factoring in the expenditure to be incurred on certain gas pipelines and gas storage projects (‘the Projects’) unless another gas pipeline project was put into motion---Co-relation between the collection and expenditure of GIDC cess stood completely frozen since the year 2011 raising fingers on the credibility and transparency of the Projects and on the availability of service (supply of natural gas) against the fee charged, in the near future---Further collection of arrears (in terms of the majority view of the judgment under review) in the sum of Rs. 456.946 billion, leading to an excess of Rs. 355.589 billion unduly promoted unjust enrichment and seriously offended the right to property and business of the petitioners guaranteed under the Constitution---After a decade of charging GIDC cess from gas consumers and after having collected Rs 295.40 billion to-date there was no sign of development of the gas pipeline projects in the country---Absence of the said projects and emphasis on the import of LNG suggested that the Government was either not willing to or was unable to complete the Projects and therefore the shortfall in gas supply was being increasingly plugged through imported LNG---Direction to recover arrears given by the majority in the judgment under review, was, therefore, not justified and legally sustainable and was liable to be recalled---Review petitions were allowed. [Minority view]

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

----Ss. 3 & 4---Constitution of Pakistan, Arts 78(1) & 78(2)---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Whether GIDC cess was to be deposited in the ‘Federal Consolidated Fund’ or the ‘Public Account’ of the Federation---GIDC cess amount collected under the Gas Infrastructure Development Cess Act, 2015 (GIDC Act) was to be credited in the Public Account with an entity distinct from the other revenues credited to it, and must be earmarked for utilization for the purposes specified in the GIDC Act only---No disbursement could be made from the GIDC cess amount for general governmental expenditures or any other purpose---Observations (of the majority in the judgment under review) regarding deposit of the GIDC cess amount in the Federal Consolidated Fund without appreciating the difference between the Federal Consolidated Fund and the Public Account under Article 78 of the Constitution, were, therefore, liable to be recalled. [Minority view]

Article 78(1) of the Constitution provided that all revenues received by the Federal Government, all loans raised by that Government, and all moneys received by it in repayment of loans shall form part of consolidated fund, to be known as the Federal Consolidated Fund. While all other moneys received by or on behalf of the Federal Government, or received by or deposited with the Supreme Court or any other court established under the authority of the Federation were to be credited to the Public Account of the Federation as per Article 78(2) of the Constitution. The expression "all revenues" used in Article 78(1) covered the revenues (taxes, duties, etc) raised for Governmental purposes, and did not include the revenue that could not be used for any Governmental purpose, like the compensatory fee collected for rendering any service to the payers of that fee. Such compensatory fee fell within the expression "all other moneys" used in Article 78(2) and was to be credited to the Public Account, and not to the Federal Consolidated Fund.

AIR 1953 Bom. 242 ref.

The GIDC cess amount collected under the Gas Infrastructure Development Cess Act, 2015 (GIDC Act) was to be credited in the Public Account with an entity distinct from the other revenues credited to it, and must be earmarked for utilization for the purposes specified in the GIDC Act only. No disbursement could be made from the GIDC cess amount for general governmental expenditures or any other purpose. The Supreme Court was not assisted on said point at the time of the hearing of the judgment under review, and made the observations (in the majority view) regarding deposit of the GIDC cess amount in the Federal Consolidated Fund without appreciating the difference between the Federal Consolidated Fund and the Public Account under Article 78 of the Constitution. The said observations were, therefore, liable to be recalled in review.

In case the GIDC Act became in-operational on failure of the Federal Government to take steps to commence work on the laying of the North South Gas Pipeline within six months, the amount of the GIDC cess collected were liable to be returned and refunded to the payers. Review petitions were allowed.

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

----Ss. 3 & 4 & Second Sched.---Constitution of Pakistan, Art. 25---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Different rates of GIDC cess for different industrial and commercial consumers---Discrimination---Judgment under review did not consider the rationale behind fixing different rates for GIDC cess within different sectors but instead discussed the question of discrimination between the industrial/commercial consumers and the domestic consumers, which was not the question agitated by the petitioners---No intelligible differentia seemed to exist amongst the different industrial and commercial gas consumers mentioned in the Schedule for the purposes of the Gas Infrastructure Development Cess Act, 2015 (‘the GIDC Act’)---Discrimination in providing maximum limit of GIDC cess for different sectors was overlooked in the judgment under review, and thus provided a valid ground to review it---In terms of Art. 25 of the Constitution which ensured equality and equal treatment among equals, the Federal Government could not charge the GIDC cess at the rate more than Rs.100 per MMBTU from any category of gas consumers---Review petitions were allowed. [Minority view]

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

---Ss. 3 & 4---Civil Procedure Code (V of 1908), S. 11---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Res judicata, principle of---Scope and applicability---Four-Member Bench of the Supreme Court in the case of Pir Bukhsh and others v. Chairman, Allotment Committee (PLD 1987 SC 145) (‘the Pir Bukhsh case’) elaborately discussed the principle of res judicata and concluded that in a controversy raising a dispute inter parties, the matter adjudged was conclusive as between the parties both on question of fact and question of law---However, an exception to said principle was created in the judgment under review, heard by a three-member Bench, by holding that 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---It was, not appropriate for the Three-Member Bench hearing the judgment under review to deviate from principle of res judicata laid down by an earlier Four-Member Bench---Three-Member Bench had two options: first, to follow the law declared earlier by the Four-Member Bench; or second, to refer the matter to a Four-Member Bench to decide whether that opinion should be reconsidered by a larger Bench---As the majority in the judgment under review did not opt for the second option, the principle of res judicata as settled in the ‘Pir Bukhsh case’ was fully applicable to the decree holders/petitioners in the suit decided by the (Sindh) High Court---Review petitions were allowed. [Minority view]

Pir Bukhsh and others v. Chairman. Allotment Committee PLD 1987 SC 145 ref.

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

----Ss. 3 & 4---Constitution of Pakistan, Fourth Sched., Pt. I, Entry No. 51---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Tax imposed on natural gas through a Money Bill---Constitutionality---In the judgment under review while interpreting Entry No.51 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution, the majority took a view contrary to that of a Bench of co-equal strength expressed in Federation of Pakistan through Secretary Petroleum and Natural Resources v. Durrani Ceramic (2014 SCMR 1630 : PLD 2015 SC 354: 2014 PTD 2016) (‘the Durrani Ceramic case’) by stating that "the National Assembly was fully competent to impose tax on natural gas through a Money Bill on the strength of Entry No. 51 of the Federal Legislative List.”---Said finding was against settled principles of the law of precedent and needed to be recalled---Review petitions were allowed. [Minority view]

Federation of Pakistan through Secretary Petroleum and Natural Resources v. Durrani Ceramic 2014 SCMR 1630 : PLD 2015 SC 354 and 2014 PTD 2016 ref.

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

----Ss. 3 & 4---Constitution of Pakistan, Fourth Sched., Pt. I, Entry No. 27 & Pt.II, Entry Nos. 2 & 15---Industrial and commercial consumers of natural gas---Gas Infrastructure Development Cess (‘GIDC cess’)---Whether Entry No.27 of Part I of the Federal Legislative List justified the legislative power of the Federation to enact the Gas Infrastructure Development Cess Act, 2015 (‘the GIDC Act’)---Held, that Entry No. 27 of Part I of the Federal Legislative Listread that "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 clearly related to trade with foreign countries (import and export), and inter-provincial trade and commerce, and in no way covered the subject of "natural gas"---Gas Infrastructure Development Cess Act had not taxed or charged fee on the foreign or inter-provincial trade and commerce; it had charged fee on use of natural gas---Entry No.27, in no terms, justified the legislative power of the Federation to enact the GIDC Act---Gas Infrastructure Development Cess Act fells under Entry No. 2 read with Entry No.15 of Part II of the Federal Legislative List---Parties were not heard on said point at the time of original hearing of the case; which point, therefore, escaped notice of the Bench that heard the judgment under review---Such error appeared to be apparent on the face of the record and was liable to be recalled---Review petitions were allowed. [Minority view]

Makhdoom Ali Khan, Senior Advocate Supreme Court for Petitioners/Applicants (in C.R.Ps. Nos. 444 to 447, 453, 454 of 2020, C.M.As. Nos. 6326, 6330, 6332 and 6333 of 2020).

Muneer A. Malik, Senior Advocate Supreme Court for Petitioners/Applicants (in C.R.Ps. Nos. 451 of 2020 and C.M.A. 6418 of 2020).

Isaac Ali Qazi, Advocate Supreme Court for Petitioners/Applicants (in C.R.Ps. Nos. 421, 437, 438, 449, 452 and C.M.A. 6407 of 2020).

Syed Ali Zafar, Advocate Supreme Court for Applicants (in C.M.As. Nos. 6411 and 6412 of 2020).

Rashid Anwar, Advocate Supreme Court for Petitioners/ Applicants (in C.R.Ps. Nos. 426 to 428, C.M.As. Nos. 6342 to 6346, 6348 to 6353, 6355 to 6382, 6384 to 6406, 6413 to 6415 of 2020).

Naeem Bokhari, Advocate Supreme Court for Applicants (in C.M.A. No.6341 of 2020).

Salman Akram Raja, Advocate Supreme Court for Petitioners/ Applicants (in C.R.Ps. Nos.422, 423 and 450 of 2020 and C.M.As. Nos. 6320, 6323 to 6325, 6327 to 6329, 6334, 6339 and 6340 of 2020).

Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioners (in C.R.Ps. Nos. 424, 425 and 426 of 2020).

Abid S. Zuberi, Advocate Supreme Court for Petitioners/ Applicants (in C.R.P. No. 427 and C.M.As. Nos. 6423 and 6424 of 2020).

Abdul Sattar Pirzada, Advocate Supreme Court for Applicants (in C.M.A. No. 6319 of 2020).

Qazi Ghulam Dastgir, Advocate Supreme Court for Petitioners (in C.R.Ps. Nos. 439 to 443 of 2020).

Mahmood A. Sheikh, Advocate-on-Record/Advocate Supreme Court for Petitioners/Applicants (in C.R.Ps. Nos. 448, 453, 424 to 426 of 2020 and C.M.As. Nos. 6317 to 6421 of 2020).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Applicants (in C.M.As. Nos. 6317 and 6318 of 2020).

Mian Mahmood Rashid, Advocate Supreme Court for Applicants (in C.M.As. Nos. 6321 to 6322 of 2020).

Shahzada Mazhar, Advocate Supreme Court for Applicants (in C.M.As. Nos. 6331 and 6335 of 2020).

Arshad Ali Chaudhry, Advocate-on-Record and Habib-ur-Rehman, Advocate for Applicants (in C.M.As. Nos. 6336 and 6408 of 2020).

Ahsan Mehmood, Advocate Supreme Court for Applicants (in C.M.A. No.6338 of 2020).

M. Anas Makhdoom, Advocate Supreme Court for Applicants (in C.M.A. No. 6383 of 2020).

Haider Waheed, Advocate Supreme Court for Applicants (in C.M.As. Nos. 6409 and 6410 of 2020).

Mrs. Tasneem Amin, Advocate Supreme Court/Advocate-on-Record for Petitioners/Applicants (in C.R.Ps. Nos. 458 of 2020 and C.M.A. No. 6416 of 2020).

Barrister M. Abdur Rahman, Advocate Supreme Court for Applicants (in C.M.As. 6417, 6419 and 6420 of 2020).

Kh. M. Saeed, Advocate Supreme Court for Petitioners (in C.R.P. No. 458 of 2020).

Mrs. Navin Salim Merchant, Advocate Supreme Court for Petitioners/Applicants (in C.R.P. No. 459 and C.M.A. 6736 of 2020).

Naeem Suleman, Advocate Supreme Court for Applicants (in C.M.As. 6425, 6426, 6839, 6841 and 6843 of 2020).

Abdul Qadir Khan, Advocate-on-Record/Advocate Supreme Court for Applicants (in C.M.As. Nos. 6425 to 6427 of 2020).

Khalid Javed, Advocate Supreme Court for Applicants (in C.M.A. No. 6735 of 2020).

Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court for Petitioners/Applicants (in C.R.Ps. Nos. 422, 423, 450, 428 to 436, 439 to 443, 450 of 2020 and C.M.As. Nos. 6320 to 6330, 6332 to 6334, 6337 to 6340, 6342 to 6353, 6365 to 6406, 6413 to 6415 of 2020).

K.A. Wahab, Advocate-on-Record for Petitioners/Applicants (in C.R.Ps. Nos. 427, 459 of 2020 and C.M.As. 6423, 6424, 6735, 6737 and 6846 of 2020).

M. Kasim Mirjat, Advocate-on-Record for Petitioners (in C.R.Ps. Nos. 444 to 447, 451, 453 and 454 of 2020).

Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.As. Nos. 6331 and 6335 of 2020).

Ch. Aamir Rehman, Additional Attorney General for Respondents.

Dr. Arshad Malik, EDG, Ministry of Energy.

Abdul Rasheed Jokhio, Director (Technical), Ministry of Energy.

Umar Farooq, AD (Legal), Ministry of Energy.

Muhammad Waqar Rana, Advocate Supreme Court, Barrister Mian Belal Ahmed, Advocate Supreme Court, Assisted by Abdul Malik Baig, Advocate (for SNGPL).

Dates of hearing: 27th to 29th October and 2nd November, 2020.

JUDGMENT

C.M.As. Nos.6341, 6409, 6410, 6417, 6419, 6420, 6418 and 6421/2020

MUSHIR ALAM, J.---Since the counsel in the main cases have been appointed as Federal Law Minister/Advocate General KPK, subject to all just exception, these applications are allowed, the respective ASCs are granted permission to argue. Let the review petitions be numbered, which shall be disposed of along with other review petitions.

1. Applications for joinder by parties who were either not party in earlier round and/or not heard in the main appeals, in view of the order proposed to be passed in main CRPs' all the applications stand disposed off.

All Review Petitions and C.M.As.

1. The Infrastructure Development Cess Act, 2015 (the GIDC, Act, 2015) became Act of the Parliament on 15.05.2015. Vires of the said Act was challenged. In the Sindh High Court suits were filed on its Original Side. The High Court declared the levy under the said Act to be unconstitutional vide its judgment dated 26.10.2016. Similar challenge was made in the Peshawar High Court by invoking its constitutional jurisdiction; which held the levy under the said Act to be intra vires the Constitution, vide its judgment dated 31.05.2017, Appeals from the judgment of the Peshawar High Court were preferred before this Court, whereas against the judgment of the Single Judge of the Sindh High Court only one High Court Appeal was filed in one suit though judgment dated 26.10.2016 was rendered in 377 suits.

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1. On 22.10.2019 when this Court was hearing appeals arising from the decision of the Peshawar High Court it was pointed out to it that in so far as the decision of the Sindh High Court is concerned High Court Appeal No. 361 of 2016 is pending before Division bench of the High Court. On that date this Court passed an order that in all identical matters pending in all High Courts, opportunity be given to such litigants and their counsel to present their case before us on the merits of the controversy. This was done so that the challenge to the vires of the said Act be adjudicated upon once and for all at this Court's level. Pursuant to our order dated 22.10.2019 several miscellaneous applications for joining in these proceedings as party were filed by those who had challenged the vires of the GIDC Act, 2015 in various other High Courts. All of them were given opportunity to present their point of view on the merits of the controversy. Certain other petitions which were filed against the judgment of the Peshawar High Court and had not come up for hearing at the time of grant of leave to appeal were also taken up for hearing so that the same could be decided together with the appeals. This Court then finally vide its judgment dated 13.08.2020 declared that the Act in question is intra vires of the Constitution. The petitioners in all these petitions fixed before us are seeking review of our judgment dated 13.08.2020.

2. This Court distinguished the principle of res judicata enunciated by this Court in the case of Pir Bukhsh and others v. Chairman Allotment Committee (PLD 1987 SC 145) in paragraphs 10 and 11 of the judgment under review. The contents of paragraphs 10 and 11 of the judgment for convenience sake are reproduced below:-

10. Any relief which a litigant seeks 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 is not dependent upon the legitimacy of a legislative enactment and stands or falls on its own strength then in such cases when the decision rendered by a court of competent jurisdiction attains finality, there is 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 depends upon the very legitimacy of the enactment that has 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 has 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 is 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 are similarly placed. If the decision rendered by the High Court that declared the law intra vires the Constitution is only challenged before the Supreme Court and after examining the merits of the case the enactment is declared by this Court to be intra vires the Constitution, then in such peculiar situation when this Court finally validates the legislative enactment then the same has to be applied uniformly to every person falling within its ambit. Such final judicial determination on the legitimacy of a legislative enactment has 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 this Court. Such a situation warrants departure from the doctrine of res judicata. Omission of a public functionary to file appeal cannot put fetters on the universal application of a legislative enactment declared by this Court to be constitutionally valid as it would amount to repealing the statute for some and treating it valid for others. Hence conflicting decisions on the vires of a legislative enactment of two High Courts, decision of one remains unchallenged in the hierarchy as no appeal was preferred and the other is challenged before this Court, then the verdict of the High Court that went unchallenged, which is in conflict with the final decision. of this Court has to be treated as outmoded and no longer executable.

11. In the case of Pir Bukhsh and others v. Chairman Allotment Committee (PLD 1987 SC 145), on which much reliance was placed by Mr. Muneer A. Malik, the learned counsel for one of the intervenors, the controversy was with regard to a right of allotment of land which did not depend on the constitutionality of a legislative enactment. In that case, the principle of res judicata clearly applied but this principle, as discussed above, cannot be applied in the same manner to a case where any power or a right or an obligation of a person solely depend upon the legitimacy of a legislative enactment without which such power or right or obligation has no existence of its own. Hence, when the power of the government to charge and the obligation of the persons to pay a tar a fee depends on the determination of vires of a legislative enactment then the final determination of this Court has to be uniformly applied on all those upon whom the law was intended to apply otherwise it would be applied in a discriminatingly manner to a section of persons belonging to one and the same class of persons. The final determination of this Court on the legitimacy of a law has to apply even to those who had succeeded in obtaining a judgment from a Court lower in the hierarchy that the law is ultra vires the Constitution, they too would be bound by the judgment of this Court which being the final Court of the judicature has through a judicial pronouncement declared a legislative enactment to be valid. The power of the Federal Government to charge the Cess and the obligation of the payers to pay under GIDC Act, 2015 would depend upon such final determination by this Court. Such power or obligation arising from an enactment will not cease to exist for the reason that the High Court in some other proceedings has declared the said Act ultra vires the Constitution which remained unchallenged. We in our minds are therefore clear that where there are two conflicting adjudications with regard to the constitutionality of a legislative enactment, standing side by side, then the one that has the binding effect on the other has to become the law of the land on the subject without any distinction whatsoever as an Act of the Parliament in its application cannot be allowed to be regarded as intra vires the Constitution for one set of persons and ultra vires for another at the same time when both belong to the same class of persons. If this is allowed, it would result in discrimination as some would be bound to discharge the obligation arising from the Act of the Parliament thereby putting them in disadvantageous position against those who are discharged from the obligation on the principle of res judicata. Such a position cannot be allowed to be sustained.'

1. The other ground taken in the review petitions is about the non-utilization of the Cess-fee that had been so far collected. This Court dealt with the said question in paragraph 39 of the judgment in review. The findings arrived at were as follows:

39. The background of the legal history of the controversy in question can be traced back to 2011, when the levy under GIDC Act, 2011 was challenged before the Peshawar High Court which in 2013 declared the levy as ultra vires the Constitution and struck down the GIDC Act, 2011. The Islamabad High Court followed the same course in its judgment in 2014. As a result of these decisions, the matter came before this Court in the case which has come to be known as Durrani Ceramics case. This Court in its judgment refused to interfere with the decision rendered by the Peshawar High Court and declared the GIDC Act, 2011 as unconstitutional, holding that the levy in question was in fact a fee and not a tax, hence, it could not have been imposed through a Money Bill. The case came before this Court again in review, which was dismissed in 2015. Later, the Government enacted the GIDC Act, 2015 as a fee imposing enactment. The constitutional validity of the said Act was also challenged before the High Courts. The Sindh High Court declared the levy unconstitutional vide its judgment dated 26.10.2016 whereas the Peshawar High Court upheld the constitutionality of the new Act vide its judgment dated 31.05.2017. While several other similar matters awaited adjudication before other High Courts issue came before this Court for a second time, in which we vide order dated 22.10.2019 allowed the parties concerned to join the present proceedings as intervenors so that they can have a chance to assist us in the present proceedings and get an opportunity to present their version of the case before us. If we look at this matter in retrospect, there has been continuous litigation pertaining to the constitutional validity of the GIDC cess right from 2011 till July 2020 when we are finally deciding the controversy in these proceedings. Apart from continuous litigation on the issue, we were also told that due to international sanctions on Iran, the response to international tender for EPC contract was very poor as no contractor was willing to undertake the project. On TAPI it is stated that land acquisition proceedings is at an advance stage however work on laying of the pipeline could not start in Afghanistan on account of the insurgency in Afghanistan. It is also stated at the bar that now there are signs that work on laying the pipeline in Afghanistan may commence soon as the final draft of TAPI Project Land Management Law is on final review of the Government of Afghanistan. Hence the delay in the commencement of work on laying the pipelines on account of continuous proceedings in the High Courts as well as before this Court and the levy under both the enactments having been struck down as unconstitutional in the year 2013 and 2016, geopolitical situations in the neighboring countries which are beyond the control of the Federal 'Government. This means that the projects have not been deliberately abandoned and there is also no material on record to doubt the intentions of Federal Government in this behalf. The Executive, therefore, cannot be blamed for not laying down the pipelines in question. In such a situation where work has not yet started on the laying of the pipelines and no contract has been awarded it would also be premature to ask for laying any report before the National Assembly.

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1. An argument, which was extraneous to the scope of the review, was that the benefits granted under its Section 8(2) of the GIDC Act, 2015 are not being extended by the government. We in our decision have not held that the benefit granted under Section 8(2) ibid, which has been extended to a particular class of the consumers of gas on certain. conditions shall not be extended. When the G1DC Act, 2015 has been declared to be intra vires by this Court then every provision of it, which either creates an obligation or grants any relief is enforceable in law. We may further clarify that to seek the relief granted under Section 8(2) of the GIDC Act, 2015 to a particular class entitled to it under certain conditions the remedy lies elsewhere and not in review.

2. However, before parting with this order, we may add here that the learned Additional Attorney General, has stated that the government is agreeable to recover the arrears in 48 installments instead of 24 installments but, the government may also be granted one year's time instead of six months as provided in paragraph 46 of the judgment in review.

3. Several other grounds were also urged before us but one of the grounds in our considered view call for review, hence we dismiss all the review petitions, All the C.M.As. for joinder are also dismissed.

Sd/- JUDGE

Sd/- JUDGE

Sd/- JUDGE

ORDER OF THE BENCH

By majority of 2:1, all the review petitions are dismissed.

SYED MANSOOR ALI SHAH, J.---I have had the privilege to go through the judgment of my learned brother Mushir Alam, J., with which Faisal Arab, J. has concurred. I, with respect, have not been able to agree with the majority view for the reasons discussed hereunder. As matter of background I had recorded a dissenting view in the judgment under review. While I maintain my view I hear the present review petitions not as a judge carrying a dissenting view but as a member of the Bench that delivered the judgment under review.

Constitution of a Review Bench

1. It may be pertinent to state that initially a three member Bench was constituted to hear these review petitions of which I as a dissenting judge was not a member. Perhaps for the reason that Order XXVI, Rule 8 of the Supreme Court Rules, 1980, which requires that the same Bench to hear the review petition, was over-looked. Subsequently, the roster was revised and I was also made a member of the Bench, making it a four member Bench. The four-member Bench sat and unanimously decided to bring that aforesaid provisions of the Rules to the notice of the Hon'ble Chief Justice for re-constitution of the Bench, vide order dated 21.10.2020. The present Bench, which had earlier heard the case and delivered the impugned judgment, was thus constituted. This made me examine the office noting contained in the file. There seems to be lack of clarity regarding the meaning and scope of Order XXVI Rule 8 of the Supreme Court Rules, 1980. I, therefore, before going into the merits of the case wish to state the legal position in this regard.

2. Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") states that the Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. The Parliament has not so far passed any Act under this Article; Order XXVI of the Supreme Court Rules, 1980, however, contains the rules that regulate the power of review of the Court. Rule 8 of that Order is relevant to the question under discussion. It is, therefore, reproduced hereunder for ease of reference:

3. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.

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Rule 8 very clearly and firmly prescribes that the application for review shall, as far as practicable, be posted before the "same Bench" that delivered the judgment or order sought to be reviewed. The expression "same Bench" leaves little room to speculate the constitution of the Bench: the "same Bench" means the same judges, as far as practicable, and the same number of judges, i.e., the same numeric strength of the Bench. There is no ambiguity in this regard, in the said rule. Mian Saqib Nisar, J., in the review1of Judges' Pension case observed:

1 PLD 2013 SC 1024

There is great wisdom in law, that the review, generally and ordinarily, should be heard by the same Court and the Court in this context is an interchangeable term with the Judge.

1. A seven-Member Full Court Bench of this Court heard the review petition in Zulfikar Ali Bhutto's case.2The main appeal3 in that case was decided by a majority of four to three Judges. All the Judges comprising majority and minority, both, were on the Bench hearing the review of the majority judgment. While deciding an application4 made for adding two other Judges on the review Bench, Anwarul Haq, C.J., speaking for the Bench, held:

2 PLD 1979 SC 741

3 PLD 1979 SC 53

4 1979 SCMR 427

The position under the Supreme Court Rules is clear and unambiguous. Rule 6 of Order XXVI lays down that "as far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed". Now, in the present case, the judgment under review was delivered by seven Judges of this Court, who are all available on the Bench for the disposal of the Review Petition. There is, accordingly, no justification for any departure or deviation from the relevant rule just mentioned.

(Emphasis added)

A question as to the inclusion of the three learned Judges who gave the dissenting judgment, in the Bench hearing the review petition also arose in that case, and it was held that as they were part of "the Bench that delivered the judgment sought to be reviewed" and were "available for the disposal of the review petition", their presence on the Bench was necessary. Muhammad Akram, J., mentioned the said decision of the Bench on this question, in his final order5 made on the review petition, thus:

5 PLD 1979 SC 741

At a subsequent stage a question arose as to the position of the three learned Judges of this Court who had recorded dissenting opinions in regard to the disposal of the petitioner's appeal. Again, relying upon the aforesaid rule 6, we took the view that as they were part of the Bench that delivered the judgment sought to be reviewed, their presence on the Bench was necessary, as they were continuing as Judges of the Supreme Court and were available for the disposal of the review petition.

(Emphasis added)

The notable point in the phrases underlined in the above quoted observations of Anwarul Haq, C.J., and Muhammad Akram, J., are that they both mentioned that the judgment sought to be reviewed was delivered by the Bench comprising seven judges of the Court. They did not consider that judgment as the judgment delivered by only four Judges comprising the majority. These observations of their lordships are in line with the language of Rule 8, which contains the expression "same Bench that delivered the judgment or order sought to be reviewed", and not the majority Members of the Bench who delivered the majority judgment or order sought to be reviewed.

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It is well-established practice of this Court that when a case is heard by a Bench of two or more Judges, the case is decided in accordance with the opinion of such Judges or of the majority of such Judges. Judgment or order of the Court is pronounced in terms of the majority opinion; such judgment or order is of the Bench that heard the case and, for that matter, of the Court, and not only of the Judges whose opinion prevailed as a majority opinion. This is why a unanimous opinion of a five-Member Bench on a legal question can be overruled by a majority of four Judges while sitting in a seven-Member Bench. It is the numeric strength of the whole Bench that determines the judicial power of its Members, and not the numbers of the individual Judges in majority. Justice Nariman of the Indian Supreme Court has stated this position in Shanti Fragrances v. Union of India,6as under:

6 (2018) 11 SCC 305.

Under the present practice, it is clear that the view of four learned Judges speaking for the majority in a 7 Judge Bench will prevail over a unanimous 5 Judge Bench decision, because they happen to speak for a 7 Judge bench.7

7 He has though expressed his desire to review this principle.

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It is also a well-established principle of precedent that judgment of a larger Bench of this Court is binding on the Benches of this Court consisting of Judges less than that larger Bench.8 A smaller Bench cannot request for constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength can make such request.9This principle also necessitates that the Judge who dissented from the majority judgment should be Member of the Bench that is to hear the review petition, as a judgment pronounced in terms of the majority opinion of a larger Bench cannot be

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reviewed by a smaller Bench consisting of only the Judges holding the majority opinion. It is utmost necessary to maintain quorum of the Bench that delivered the judgment under review. It is because of this legal compulsion, that new Members are added to the Bench when any of its earlier Members retires or is not available for any other reason, to maintain the quorum of the Bench for hearing the review petition. Many instances may be cited in this regard: Gadoon Textiles Mills' case10 was decided by a five-Member Bench with three-two majority. The review petitions11 were filed against the majority judgment. The dissenting judges, Justices Saleem Akhtar and Fazal Karim, had retired by the time the review petitions were taken up for hearing; therefore, other Judges were added to the Bench to maintain the quorum of five Members, for hearing the review petitions. Benazir Bhutto case12was decided by a seven-Member Bench with six-one majority. The review petition13filed against the majority judgment of six Judges was heard by the Bench of seven Judges, not of six Judges. The quorum of the Bench was, thus, maintained for hearing the review petition. There are many other cases14of our jurisdiction as well as the Indian jurisdiction wherein the dissenting Judges were part of the Benches that heard the review petitions against the judgments of the Court pronounced in terms of the majority opinion. It can, therefore, be safely concluded that a judge who dissented from the majority judgment, if available, must be Member of the Bench for hearing the review petition filed against that majority judgment.

8 See Muhammad Saleem v. Fazal Ahmad, 1997 SCMR 315; Babar Shehzad v. Said Akbar, 1999 SCMR 2518; All Pakistan Newspapers Society v. Federation, PLD 2004 SC 600; Ata Ullah v. Surraya Parveen, 2006 SCMR 1637; Azhar Siddiqui v. Federation, PLD 2012 SC 774, para 37.

9 See Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752

10 Gadoon Textiles Mills v. WAPDA, 1997 SCMR 641.

11 Gandaf Steel Industries v. Federation, 1997 SCMR 1669.

12 Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388.

13 Benazir Bhutto v. President of Pakistan, PLD 2000 SC 77.

14 See Nawaz Sharif v. Imran Khan, PLD 2018 SC 1 (Justices Asif Saeed Khosa and Gulzar Ahmed, the dissenting Judges, were on the Bench); Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877 (Justice Tulzapurkar, the dissenting Judge, was on the Bench that admitted the review for hearing); Shyam Lal Sharma v. Union of India, AIR 1987 SC 1137 (Justice Thakkar, the dissenting Judge, was on the Bench to which the review petition was presented for decision by circulation.

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1. So far as the scope of jurisdiction and judicial power of such Judge in hearing the review petition against the majority judgment is concerned, there is nothing in the Constitution or the Supreme Court Rules, 1980 that limits his jurisdiction and judicial power in a review in comparison with the Judges who delivered a majority judgment. He is a Member of the Bench with same jurisdiction and power like the other Members of that Bench. As afore-explained, the judgment pronounced or order made in terms of the majority opinion is the judgment or order of the Bench, and not of the Judges holding the majority opinion.

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1. Rule 1 of Order XXVI of the Supreme Court Rules, 1980 provides that subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and in a criminal proceeding on the ground of an error apparent on the face of the record. As per Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the applicant or could not be produced by him at the time when the judgment was pronounced or order made, some mistake or error apparent on the face of the record, and any other sufficient reason are the grounds for review of a judgment or order made in a civil proceeding. These grounds of review which are, in fact, limitations on the power of review of this Court applies equally to the Judges whose opinion prevails for being the majority view and to the Judge whose opinion remains inoperative for being the minority view. The Judge whose opinion remained the minority view in the main case can review the Judgment of the Bench that was pronounced in terms of the majority opinion, on any of the said grounds of review, as can a Judge who delivered the majority opinion.

2. In Zulfiqar Ali Bhutto review case,15 review petition was dismissed unanimously by all the seven Judges who were divided into four-three in the judgment pronounced in the main appeal case.16 Muhammad Akram, J. speaking for the majority dismissed the review petition with the observations that "the errors and omissions pointed out by [the petitioner's counsel]... have been found by us to be of inconsequential import, having no material bearing upon the fundamental and essential conclusions reached in the majority Judgment as to the guilt of the petitioner, on the various counts on which his convictions have been upheld, as well on the question of sentence." And Dorab Patel, J. speaking for the minority also held that the review petition had to be dismissed and further agreed with the view of Akram, J. that the question of sentence could not be raised in a review petition, and if they were to alter the sentence in this review, they would be unsettling the settled law. Similar is the legal position in Indian jurisdiction: In the case of Sheonandan Paswan v. State of Bihar,17 Justice Tulzapurkar, the Judge who earlier dissented with the majority judgment, was on the review-Bench, and admitted the review against the majority judgment for hearing, along-with two other Judges, i.e., one Judge who was earlier party to the majority judgment and the other judge added due to non-availability of a Judge18 in majority. Tulsiram case19was decided by a five-Judge Bench of the Indian Supreme Court with four-one majority. Justice Thakkar delivered the dissenting opinion. The review petitions20 filed against the majority judgment were dismissed in limine by the four Judges, but Justice Thakkar held that the issues raised in the review petitions needed examination and the Review Petitions deserved to be admitted for hearing.

15 PLD 1979 SC 741

16 PLD 1979 SC 53

17 AIR 1987 SC 877

18 Justice Baharul Islam, who was by that time had resigned.

19 Union of India v. Tulsiram Patel, AIR 1985 SC 1416

20 Shyam Lal Sharma v. Union of India, AIR 1987 SC 1137

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A judgment of the Federal Court of Malaysia delivered in the case of Terengganu Forest Products v. Cosco Container Lines21 may also be referred to on this point. The Federal Court, in that case, did not accept the argument that a judge who dissents at leave granting stage should not sit on the Bench hearing appeal, with the reason that the issues, considerations and arguments at the leave stage are different from that of the appeal hearing stage. Likewise, the considerations and grounds at the hearing of the review petition are different from that of the original hearing of the case; therefore, the judge who dissented at the original hearing of the case can sit on the review-Bench, and examine the considerations and grounds of review while hearing the review petition. There is another aspect of the matter to look at, i.e., when a Member newly added in the review Bench due to non-availability of an earlier Member, who was not earlier even part of the Bench, can make review of judgment, then how can any restriction or limitation be imposed on the jurisdiction and judicial power of review of the Member who earlier dissented. There are several instances when Members newly added on the Bench had recalled or reversed the original judgment or order in review jurisdiction despite contrary view of the Member who had earlier authored the judgment of the Court.22 It can, therefore, be said with certainty that the jurisdiction and judicial power of the Judge who earlier dissented from the majority judgment of the Bench is similar and co-extensive with that of those Judges whose opinion became the majority judgment of the Bench, in hearing the review petition against that majority judgment.

21 [2011] 1 MLJ 25.

22 See Aamer Zaman v. Omar Ayub, 2015 SCMR 890 reviewed in 2015 SCMR 1303

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Grounds of Review

1. A number of grounds highlighting errors apparent on the face of the record were agitated seeking review of the impugned judgment. It was argued: (i) that the principle of co-relation between the collection and expenditure of the amount of Cess as settled in the judgment under review was applied to stop further recovery of Cess, but it was not extended to restrain the collection of arrears of Cess, inspite of the fact that no developmental expenditure has taken place since 2011 and the Government has already collected Cess in excess of what is required for the foreseeable Projects; (ii) that the Court ordered that in case no work is carried out on North-South Gas Pipeline within six months, the Gas Infrastructure Development Cess Act, 2015 ("GIDC Act") would become permanently in-operational and considered dead for all intents and purposes, but has not made any order regarding return of the Cess collected to their payers or how and for what purpose the Cess collected would then be expended; (iii) that the decision of the Sindh High Court in 377 suits declaring the GIDC Act to be ultra vires the Constitution, being res judicata, has attained finality between the parties to those suits as it went unchallenged by the Federal Government, hence arrears, as well as, recovery of Cess in future could not be demanded of the petitioners who are decree holders in those suits. It was urged that the view expressed by a four-member Bench of this Court in Pir Bakhsh23was not fully appreciated; (iv) that the Second Schedule of the Act giving different maximum rates of Cess for different sectors is discriminatory as it lacks reasonable classification, giving no intelligible differentia that has any rational nexus with the object sought to be achieved by the statute in question; (v) that while interpreting Entry 51 of Part I of the Federal Legislative List the impugned judgment has disagreed with, rather overruled, the interpretation made in Durrani Ceramics. It was urged that this point was never pleaded before the Court by the parties and no arguments were heard on the point besides this Bench being of co-equal strength could not have so done as per the settled principles of precedent; (vi) that the GIDC Act does not fall within the scope of Entry No.27 of Part-I of the Federal Legislative List. It was submitted that the petitioners were not heard on this point before holding the said Entry applicable to the GIDC Act; (vii) that the petitioners have been wrongly deprived of the benefit of the first proviso to Section 8(2) of the GIDC Act by making order of recovering arrears of the Cess that are exempted under that proviso; and (viii) that the statement made in the impugned judgment that the Cess collected may form part of the Federal Consolidated Fund is not consistent with the Constitutional provisions.

23 PLD 1987 SC 145

1. My learned brothers have dealt with only two grounds: one, relating to res judicata and the other, regarding proviso to Section 8(2) of the GIDC Act. They have disposed of other grounds with the observation that "Several other grounds also urged before us but none of the grounds in our considered view call for review". I, thus, do not have the advantage to see the reasons that prevailed with their lordships in rejecting those grounds. My learned brothers have clarified that the impugned judgment has not held that "the benefit granted under Section 8(2) ibid, which has been extended to a particular class of the consumers of gas on certain conditions shall not be extended." I respectfully agree with this clarification. However, on the ground of res judicata I have a different view that I shall explain later herein.

Co-relation of collection and expenditure of Cess.

1. I now advert to the question whether there is any visible co-relation between the collection of Cess and expenditure therefrom. The impugned judgment held:

20.…..The other kind of a fee-levying legislation is where Cess is imposed as a compulsory exaction in the same manner where taxes are imposed with the distinction that it is 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. It can be described as 'purpose specific' and in many judicial pronouncements have been termed as 'Cess-fee'. In such a form of levy, the specified purpose is pre-committed to the payers before the revenue is collected under the legislation. To quote a few examples, Cess is 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 does not exist in the same sense as it exists in a case where an existing service is rendered or a privilege is extended directly to the payer for a fee. What needs to be taken into consideration is whether the enactment has 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 are imposed with no precondition attached for their spending.

1. When Cess as a fee is levied to meet an earmarked financial exigency spelt out in an enactment, it preserves the levy for such purpose only even with the change in the government setup. It cannot be levied as a general revenue collecting tool and the government would not be justified to collect it if the funds are diverted to some other expenditure……….. The proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization is 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 this manner the earmarked levy also provides information on the amount collected and spent. This also inculcates confidence in the payers as it contains 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. They can claim that the revenue cannot be utilized for any other purpose other than for which they have been charged. When the revenue can 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 stands served, the justification for its imposition also comes 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 is achieved, the government loses it right to collect Cess regardless of the fact that the enactment continues to remain in force.

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The principle settled by this Court was that there must exist a visible co-relation between the collection of Cess and its expenditure. In a case where the fee is to be utilized for service that is to be rendered in future, it is important to see how the moneys collected are being expended and whether there is a transparent and confidence inspiring co-relation between the two. The other principle settled was that the amount of Cess so collected is for a specified purpose and must be accounted for accordingly. It is not the collection of general revenue which can be utilized anywhere. Relying on these principles settled in the impugned judgment, further collection of Cess was stopped in the following manner:

42……However, keeping in view the ground realities discussed in the preceding paragraph and the fact that around 295 billion rupees have already been collected towards Cess-revenue and together with the outstanding amount the total sum by the end of this month would be in the vicinity of seven hundred billion rupees, which is more than what is the estimated cost of the projects mentioned in Section 4 of the GIDC Act, 2015, we are constraint to issue following directions: -

(i) From the date of this judgment, we restrain the Federal Government from charging Cess which power of the Federal Government shall remain suspended until the Cess-revenue collected and that which is accrued so far but not yet collected is expanded on the projects listed in Section 4 of the GIDC Act, 2015.

According to the figures given by the Government the Cess collected as on 30.06.2019 was as under:

TOTAL COLLECTION OF GIDC

| | | | | | | | --- | --- | --- | --- | --- | --- | | Levy and Collection of GIDC | | | | Rs. In Million | | | Sr.# | Sector | GIDC Accrued | GIDC Collected | GIDC Outstanding | | | 1 | Fertilizer Feed (old) | 192,240.31 | 111,814.62 | 80,425.69 | | | 2 | Fertilizer Feed (New) | 68,281.71 | 1,142.89 | 67,138.82 | | | 3 | Fertilizer – Fuel | 31,772.12 | 15,205.66 | 16,566.46 | | | 4 | General Industry | 70,729.64 | 24,402.27 | 46,327.37 | | | 5 | IPPs | 60,845.19 | 51,713.50 | 9,131.69 | | | 6 | KESC | 40,421.05 | 3,912.18 | 36,508.87 | | | 7 | GENCO/WAPDA | 67,317.33 | 44,753.78 | 22,563.55 | | | 8 | Captive Power | 119,247.65 | 17,522.73 | 101,724.92 | | | 9 | CNG Region-I | 53,420.68 | 11,765.63 | 41,655.05 | | | 10 | CNG Region-II | 48,073.10 | 13,169.51 | 34,903.59 | | | | Grand Total | 752,348.78 | 295,402.77 | 456,946.01 | |

TOTAL EXPENDITURE OF GIDC

| | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Project | Iran Pakistan (IP) Gas Pipeline Project | TAPI Pipeline Project | | North South Gas Pipeline Project | | Underground Gas Storages | | Total | | | All amounts in PKR | | | | | | | | | | | Estimated Project Cost | 271 billion | 1,500 billion | 405 billion | | 75 billion | | 2,251 billion | | | | Pakistan share | 271 billion | 31.353 billion | 20.25 billion | | 75 billion | | 397.6 billion | | | | Development Phase expenditure – already incurred funded through GIDC (received todate) | Nil | 0.483 billion | Nil | | Nil | | 0.483 billion | | | | Development Phase expenditure- already incurred funded by GHPL | 3.3 billion | 0.756 billion | 0.135 billion | | 0.040 billion | | 4.2 billion | | | | Total development and construction cost- to be funded through GIDC | 271 billion | 30.513 billion | 20.250 billion | | 75 billion | | 396.7 billion | | | | | | | | | | | | | |

| | | | --- | --- | | TOTAL AMOUNT COLLECTED | Rs.295.403 | | Expenditure required for (1) TAPI + | | | North South Gas Pipeline (2) +Underground Gas Storage (3) | Rs. 125.763 | | Balance after deducting (1 + 2 + 3) | Rs. 169.643 | | Required for Iran Pak | | | (IP) Gas Pipeline | Rs.271.000 | | Balance available for IP | Rs. 169.643 | | Excess- required if at all | | | IP proceeds | Rs.101.357 | | Collection Ordered | Rs.456.946 | | Excess | Rs.355.589 |

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The above working shows that the Government already has Rs. 101.357 in excess after factoring in the expenditure to be incurred on TAPI Gas Pipeline, North South Gas Pipeline and Underground Gas Storages unless the Iran Pak (IP) Project is put into motion. The co-relation between the collection and the expenditure stands completely frozen since 2011 raising fingers on the credibility and transparency of the Projects and on the availability of service (supply of natural gas) against the fee charged, in the near future. The direction for further collection of arrears in the sum of Rs. 456.946 billion leading to an excess of Rs. 355.589 billion unduly promotes unjust enrichment and seriously offends the right to property and business of the petitioners guaranteed under the Constitution. The status of the Projects submitted before this Court during the hearing of these review petitions reveals that the Government plans to start the North South Gas Pipeline (NSGP) Project only. This Project will not generate natural gas but is a support infrastructural Project and will not redress the shortage of natural gas in the country. The Government without any further collection of fresh amount of Cess or the arrears has an excess amount in the sum of Rs.101 billion including the expenditure for TAPI which has not even begun as yet. The impugned judgment though stops further collection of Cess on the principle that there has been no expenditure and no development on the Projects mentioned in the Act yet at the same time allows recovery of arrears in the sum of Rs. 456.946 billion. Reference is made to Chapter 14 on "Energy" in the Pakistan Economic Survey 2019-2020 which states:

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Pakistan is successfully overcoming energy crisis, which has direct and indirect impact on all sectors of the economy. Presently, Energy Sector is confronted with demand supply gap....in terms of energy-mix, Pakistan's reliance on thermal which includes imported coal, local coal and RLNG and natural gas has been decreasing over the last few years. Pakistan's dependence on natural gas in the overall energy mix is on decline and the reduction of its share in the energy mix may be attributed to declining natural gas reserves as well as to the introduction of LNG since 2015.

Gas Sector

Natural Gas is a clean, safe, efficient and environment friendly fuel. Its indigenous supplies contribute about 38 percent in total primary energy supply mix of the country. Pakistan produces around four (4) Billion Cubic Feet Per Day (Bcfd) of indigenous natural gas against an unconstrained demand of over six (6) Bcfd. To meet the shortfall, the GoP has initiated the import of LNG. (emphasis supplied)

Pakistan Economic Survey is silent regarding these Projects since 2015 and shows that the shortfall in natural gas is being successfully plugged through the import of LNG, which surprisingly, is not a GIDC funded Project. The above documents show that after a decade of charging GIDC from gas consumers and after having collected Rs 295.40 billion to-date there is no sign of development of the gas pipeline projects in Pakistan. Absence of the said projects and emphasis on the import of LNG in the latest Pakistan Economic Survey hazards a guess that the Government of Pakistan is either not willing to or is unable to complete these projects and therefore the shortfall in gas supply is being increasingly plugged through LNG imported from Qatar. There is a huge disconnect between the principle settled by the Court and its application leading to a material omission in assessing the correct ground and factual reality. The direction to recover arrears is, therefore, against the principle settled by this Court and is not justified and legally sustainable and is liable to be recalled.

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Deposit of Cess (GIDC) in the Federal Consolidated Fund

1. The other principle established in the impugned judgment was:

25…….It cannot be levied as a general revenue collecting tool and the government would not be justified to collect it if the funds are diverted to some other expenditure……. The proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization is 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.

38...it matters not if the revenue so collected forms part of the Federal Consolidated Fund as it is the mandate of Article 78 of the Constitution itself that all revenues of the Federal Government has to be made part of Federal Consolidated Fund.

The learned DAG was asked time and again during the hearing to provide the statement of GIDC account within the Federal Consolidated Fund but he failed to furnish the statement of account and instead furnished a general statement showing the amount so far collected to be Rs. 307.23 billion as on 30.07.2020. Initial reluctance and then the failure on the part of the Federal Government to place on record the statement of the account of GIDC gives rise to an adverse inference against the Federal Government under Article 129(g) of the Qanun-e-Shahadat Order, 1984. It shows that the collected amount of Rs. 307.23 billion is not physically present in the account and has already been expended elsewhere. This offends the principle settled by the Court. Additionally, it is also highlighted that even today the amount of GIDC has been shown as a Tax Revenue in the Annual Budget Statements for the years 2019-2020 and 2020-2021 as under:

FEDERAL BUDGET 2019-2020

ANNUAL BUDGET STATEMENT

REVENUE RECEIPTS

Tax Revenue

(Rs. in million)

| | | | | | | --- | --- | --- | --- | --- | | Object Code | Description | Budget Estimates 2018-19 | Revised Estimates 2018-19 | Budget Estimates 2019-20 | | B. | Tax Revenue | | | | | | a. FBR Taxes (i+ii) | 4,435,000 | 4,150,000 | 5,555,000 | | B01 | I. Direct Taxes | 1,735,000 | 1,659,000 | 2,081,945 | | B011 | Taxes on Income | 1,709,939 | 1,651,584 | 2,073,000 | | B0 15 | Worker's Welfare Fund | 18,636 | 4,186 | 5,050 | | B0 17-18 | Capital Value Tax (CVT) | 6,425 | 3,230 | 3,895 | | B02 | ii. Indirect Taxes | 2,700,000 | 2,491,000 | 3,473,055 | | B020-22 | Customs Duties | 735,000 | 735,000 | 1,000,500 | | B023 | Sales Tax | 1,700,000 | 1,490,000 | 2,107,738 | | B024-25 | Federal Excise | 265,000 | 266,000 | 364,817 | | b. Other Taxes | | 453,645 | 243,876 | 267,160 | | B026-30 | Other Indirect Taxes | 37,555 | 7,492 | 11,100 | | B03064 | Airport Tax | 90 | 30 | 35 | | B03083 | Gas Infrastructure Development Cess | 100,000 | 25,000 | 30,000 | | B03084 | Natural Gas Develop-ment Surcharge | 16,000 | 8,000 | 10,000 | | B03085 | Petroleum Levy | 300,000 | 203,354 | 216,025 | | Total Tax Revenue (a+b) | | 4,888,645 | 4,393,876 | 5,822,160 |

FEDERAL BUDGET 2019-2020

ANNUAL BUDGET STATEMENT

REVENUE RECEIPTS

Tax Revenue

(Rs in million)

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Object Code | Description | | Budges Estimates 2018-19 | Revised Estimates 2018-19 | Budges Estimates 2019-20 | | | B. | Tax Revenue | | | | | | | | a. FBR Taxes (i+ii) | | 4,435,000 | 4,150,000 | 5,555,000 | | | B01 | i. Direct Taxes | | 1,735,000 | 1,659,000 | 2,081,945 | | | B011 | Taxes on Income | | 1,709,939 | 1,651,584 | 2,073,000 | | | B0 15 | Worker's Welfare Fund | | 18,636 | 4,186 | 5,050 | | | B0 17-18 | Capital Value Tax (CVT) | | 6,425 | 3,230 | 3,895 | | | B02 | ii. Indirect Taxes | | 2,700,000 | 2,491,000 | 3,473,055 | | | B020-22 | Customs Duties | | 735,000 | 735,000 | 1,000,500 | | | B023 | Sales Tax | | 1,700,000 | 1,490,000 | 2,107,738 | | | B024-25 | Federal Excise | | 265,000 | 266,000 | 364,817 | | | b. Other Taxes | | | 453,645 | 243,876 | 267,160 | | | B026-30 | | Other Indirect Taxes | 37,555 | 7,492 | 11,100 | | | B03064 | | Airport Tax | 90 | 30 | 35 | | | B03083 | | Gas Infrastructure Development Cess | 100,000 | 25,000 | 30,000 | | | B03084 | | Natural Gas Development Surcharge | 16,000 | 8,000 | 10,000 | | | B03085 | | Petroleum Levy | 300,000 | 203,354 | 216,025 | | | Total Tax Revenue (a+b) | | | 4,888,645 | 4,393,876 | 5,822,160 | | | | | | | | | |

1. The above Annual Budget Statements for the year 2019-2020 and 2020-2021 show the said collection under the head "other tax revenue" as a part of Federal Consolidated Fund. Provinces are paid their respective shares under the National Finance Commission Award24from the Federal Consolidated Fund, and the possibility of the amount of GIDC being distributed amongst the Provinces cannot be ruled out. This Court, in the impugned judgment, held that "it matters not if the revenue so collected forms part of the Federal Consolidated Fund as it is the mandate of Article 78 of the Constitution itself that all revenues of the Federal Government has to made part of Federal Consolidated Fund."25 The Court in the impugned judgment ordered that "in case no work is carried out on North-South Gas Pipeline within the prescribed time and for laying any of the two other major pipelines (IP and TAPI) though the political conditions become conducive, the purpose of levying 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." In that eventuality, the amount of Fee already collected under the GIDC Act will have to be refunded to the payers of fee. It would not be possible for the Federal Government to refund the same, if the amount of GIDC is made part of the Federal Consolidated Fund and shown as an amount available for general expenditures of the Government in the Annual Budget Statement.

24 Prescribed Share of all Provinces under the Distribution of Revenues and Grants-in-Aids Order, 2010

25 Para 38 of Impugned Judgment (Majority View)

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1. Article 78(1) of the Constitution provides that all revenues received by the Federal Government, all loans raised by that Government, and all moneys received by it in repayment of loans shall form part of consolidated fund, to be known as the Federal Consolidated Fund. While all other moneys received by or on behalf of the Federal Government, or received by or deposited with the Supreme Court or any other court established under the authority of the Federation are to be credited to the Public Account of the Federation as per Article 78(2) of the Constitution. The expression "all revenues" used in Article 78(1) covers the revenues (taxes, duties, etc.) raised for Governmental purposes, and does not include the revenue that cannot be used for any Governmental purpose, like the compensatory fee collected for rendering any service to the payers of that fee. Such compensatory fee falls within the expression "all other moneys" used in Article 78(2) and is to be credited to the Public Account, and not to the Federal Consolidated Fund. This view is supported by Ratilal Gandhi v. State of Bombay,26wherein the provisions of Article 266 of the Indian Constitution that are similar to that of Article 78 were interpreted in the following manner:

26 AIR 1953 Bom 242.

It is only taxes raised and revenues raised for Governmental purposes that form part of this fund. But when moneys are received as a result of fees imposed for a specific purpose and when the fund collected is earmarked and set apart, such a fund does not form part [of the Consolidated Fund contemplated under Article 266 of the Indian Constitution].

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The Cess amount collected under the GIDC Act is to be credited in the Public Account with an entity distinct from the other revenues credited to it, and must be earmarked for utilization for the purposes specified in the GIDC Act only. No disbursement can be made from the Cess amount for general governmental expenditures or any other purpose. The Court was not assisted on this point at the time of the hearing of the main case, and made the observations regarding deposit of the Cess amount in the Federal Consolidated Fund in the impugned judgment without appreciating the difference between the Federal Consolidated Fund and the Public Account under Article 78 of the Constitution. The said observations are, therefore, liable to be recalled in review. Further it is clarified that in case the GIDC Act becomes in-operational on failure of the Federal Government to take steps to commence work on the laying of the North South Gas Pipeline within six months, the amount of the Cess collected are liable to be returned and refunded to the payers.

Discrimination

1. The Act provides for the following maximum rates of cess for different Sectors:

SECOND SCHEDULE OF THE ACT

| | | | | --- | --- | --- | | S.No. | Sector | Maximum Rate of Cess (Rs./MMBTU) | | (1) | (2) | (3) | | | Fertilizer-Feed (Old) | 300.00 | | | Fertilizer-Feed (New) | 300.00 | | | Fertilizer-Fuel | 150.00 | | | Captive Power | 200.00 | | | Industry | 100.00 | | | KESC/GENCO | 100.00 | | | IPPs | 100.00 |

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On the question of discrimination, the impugned judgment, with respect, did not consider the rationale behind fixing different rates within different sectors but instead discussed the question of discrimination between the industrial/commercial consumers and the domestic consumers, which was not the question agitated by the petitioners. There appears to be no intelligible differentia amongst the different Industrial and Commercial gas consumers mentioned in the Schedule for the purposes of the GIDC Act. The upper limit of GIDC for the Industry, KESC/GENCO and IPPs has been fixed as Rs.100 per MMBTU, while remaining categories of gas consumers have been allowed to be charged at the rate higher than that. This discrimination, with respect, was overlooked in the impugned judgment, and thus provides a valid ground to review it. As per Article 25 of the Constitution which ensure equality and equal treatment among equals, the Federal Government cannot charge the Cess at the rate more than Rs. 100 per MMBTU from any category of gas consumers.

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Principle of Res-Judicata

1. On the ground of res judicata, the petitioners vehemently relied upon Pir Bukhsh. My learned brothers have distinguished that case in the impugned judgment by highlighting the difference of facts of that case and the facts of the present case, and have repelled the ground of review by quoting the observations made in paras 10 and 11 by them in the impugned judgment. I am afraid if this is the correct approach to distinguish a principle of law declared by a larger Bench of this Court, which is binding on this Bench. Pir Bukhsh was decided by a four-member Bench of this Court in 1987 almost 33 years ago and still holds the field. The Court, in that case, elaborately discussed and expounded the doctrine of res judicata and its application between the parties both on questions of law and fact. The Court, in that case, approvingly referred to a judgment of Full Bench of the Calcutta High Court delivered in Tarini Charan27 wherein it was held:

27 Tarini Charan v. Kedar Nuth (A I R 1928 Cal. 777)

To say ... that the previous decision was wrong and that it was wrong on a point of fact, or on a pure point of law, and that therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.

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Finally, this Court in Pir Bakhsh came to the conclusion that in a controversy raising a dispute inter parties, the matter adjudged is conclusive as between the parties both on question of fact and question of law. However, an exception to this principle declared by a larger Bench was created in the judgment under review by holding that it would be difficult to apply such a principle in matters where a power or a right or an obligation solely depends upon the very legitimacy of the enactment that has come under challenge in a Court of law on the touchstone of the Constitution. It was, with respect, not appropriate for a three-member Bench to deviate from principle of res judicata laid down by an earlier four-member Bench. This Bench had two options: first, to follow the law declared by that Bench; or second, to refer the matter to a four-member Bench to decide whether that opinion should be reconsidered by a larger Bench. As the majority did not opt for the second option, the principle of res judicata as settled in Pir Bukhsh is fully applicable to the decree holders in the suit decided by the Sindh High Court.

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Interpretation of Entry No. 51 of Part 1 of the Federal Legislative List

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The Court, in the impugned judgment while interpreting Entry No.51 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution took a view28 contrary to that of Bench of co-equal strength expressed in Durrani Ceramics29 by stating that "the National Assembly was fully competent to impose tax on natural gas through a Money Bill on the strength of Entry No.51 of the Federal Legislative List." This finding, it is submitted with respect, is against settled principles of the law of precedent30and needs to be recalled.

28 In Durrani Ceramics case all items contained in Entry No.51 were read conjunctively, meaning thereby that Federal Government can levy tax on natural gas and mineral oil only if these sources of energy can be used to generate nuclear energy. It appears that no proper assistance on scientific lines was rendered by the law officers to this Court during the hearing of the Durrani Ceramics case hence the scientific fact that it was not possible to generate nuclear energy from mineral oil and natural gas, as these sources cannot be used as nuclear fuel was not taken into consideration. (Para 41 of the judgment under review)

29 Federation of Pakistan through Secretary Petroleum and Natural Resources v. Durrani Ceramic (2014 SCMR 1630 : PLD 2015 SC 354: 2014 PTD 2016)

30 The Province of East Pakistan v. Dr. Azizul Islam, PLD 1963 SC 296; the Province of East Pakistan v. Abdul Basher Cohwdhury, PLD 1966 SC 854; Multiline Associates v. Ardeshir Choasjee, PLD 1995 SC 423; Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883; Gulshan Ara v. The State, 2010 SCMR 1162; Zahid Rehman v. The State PLD 2015 Supreme Court 77; Messrs WAK Limited Multan Road v. Collector Central Excise and Sales Tax, 2018 SCMR 1474; Shafqat @ Shafaat v. The State PLD 2019 Supreme Court 43;

Entry No.27 of Part-I of the Federal Legislative List

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1. The Federation had defended its authority to legislate the GIDC Act on the basis of Entry No. 2 read with Entry No. 15 of Part II of the Federal Legislative List in the present case, and on Entry No. 51 of Part I of the Federal Legislative List in Durrani Ceramics. It was never the case of the Federation that it has competence to legislate a law relating to tax or fee on natural gas on the basis of Entry No. 27 of Part I of the Federal Legislative List. Entry No.27 reads as follows: "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." This entry clearly relates to trade with foreign countries (import and export), and inter-provincial trade and commerce, and in no way covers the subject of "natural gas". The GIDC Act has not taxed or charged fee on the foreign or inter-provincial trade and commerce. It has charged fee on use of natural gas. Entry No.27, in no terms, justify the legislative power of the Federation to enact the GIDC Act. The parties were not heard on this point at the time of original hearing of the case; this point, therefore, escaped notice of the Bench, and this error appears to be apparent of the face of the record and is liable to be recalled.

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1. In view of the above errors that have been found apparent on the face of the record, the review petitions are allowed in the following terms:

(i) The benefit available under the provisos to section 8(2) of the GIDC Act shall not be affected by the judgment under review.

(ii) The direction to recover arrears of Cess is recalled.

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(iii) In case the GIDC Act becomes in-operational on failure of the Federal Government to take steps to commence work on the laying of the North South Gas Pipeline within six months, the amount of the Cess collected shall be returned and refunded to the payers.

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(iv) The principle of res judicata as settled in Pir Bukhsh, is fully applicable to the decree holders in the suits decided by the Sindh High Court.

(v) The Federal Government shall not charge the Cess at the rate more than Rs. 100 per MMBTU from any category of gas consumers in view of Article 25 of the Constitution.

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(vi) The observation that "it matters not if the revenue so collected forms part of the Federal Consolidated Fund" is recalled and the amount of GIDC is to credited to the Public Account under Article 78(2) of the Constitution while maintaining a separate statement of account.

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(vii) The finding on Entry No. 27 of Part I of the Federal Legislative List is recalled. The GIDC Act falls under Entry No. 2 read with Entry No. 15 of Part II of the Federal Legislative List.

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(viii) The observations as to the interpretation of Entry No. 51 of Part I of the Federal Legislative List in the judgment under review being contrary to the judgment of co-equal Bench in Durrani Ceramics are recalled.

MWA/C-23/SC Order accordingly.

\\

1 PLD 2013 SC 1024

2 PLD 1979 SC 741

3 PLD 1979 SC 53

4 1979 SCMR 427

5 PLD 1979 SC 741

6 (2018) 11 SCC 305.

7 He has though expressed his desire to review this principle.

8 See Muhammad Saleem v. Fazal Ahmad, 1997 SCMR 315; Babar Shehzad v. Said Akbar, 1999 SCMR 2518; All Pakistan Newspapers Society v. Federation, PLD 2004 SC 600; Ata Ullah v. Surraya Parveen, 2006 SCMR 1637; Azhar Siddiqui v. Federation, PLD 2012 SC 774, para 37.

9 See Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752

10 Gadoon Textiles Mills v. WAPDA, 1997 SCMR 641.

11 Gandaf Steel Industries v. Federation, 1997 SCMR 1669.

12 Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388.

13 Benazir Bhutto v. President of Pakistan, PLD 2000 SC 77.

14 See Nawaz Sharif v. Imran Khan, PLD 2018 SC 1 (Justices Asif Saeed Khosa and Gulzar Ahmed, the dissenting Judges, were on the Bench); Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877 (Justice Tulzapurkar, the dissenting Judge, was on the Bench that admitted the review for hearing); Shyam Lal Sharma v. Union of India, AIR 1987 SC 1137 (Justice Thakkar, the dissenting Judge, was on the Bench to which the review petition was presented for decision by circulation.

15 PLD 1979 SC 741

16 PLD 1979 SC 53

17 AIR 1987 SC 877

18 Justice Baharul Islam, who was by that time had resigned.

19 Union of India v. Tulsiram Patel, AIR 1985 SC 1416

20 Shyam Lal Sharma v. Union of India, AIR 1987 SC 1137

21 [2011] 1 MLJ 25.

22 See Aamer Zaman v. Omar Ayub, 2015 SCMR 890 reviewed in 2015 SCMR 1303

23 PLD 1987 SC 145

24 Prescribed Share of all Provinces under the Distribution of Revenues and Grants-in-Aids Order, 2010

25 Para 38 of Impugned Judgment (Majority View)

26 AIR 1953 Bom 242.

27 Tarini Charan v. Kedar Nuth (A I R 1928 Cal. 777)

28 In Durrani Ceramics case all items contained in Entry No.51 were read conjunctively, meaning thereby that Federal Government can levy tax on natural gas and mineral oil only if these sources of energy can be used to generate nuclear energy. It appears that no proper assistance on scientific lines was rendered by the law officers to this Court during the hearing of the Durrani Ceramics case hence the scientific fact that it was not possible to generate nuclear energy from mineral oil and natural gas, as these sources cannot be used as nuclear fuel was not taken into consideration. (Para 41 of the judgment under review)

29 Federation of Pakistan through Secretary Petroleum and Natural Resources v. Durrani Ceramic (2014 SCMR 1630 : PLD 2015 SC 354: 2014 PTD 2016)

30 The Province of East Pakistan v. Dr. Azizul Islam, PLD 1963 SC 296; the Province of East Pakistan v. Abdul Basher Cohwdhury, PLD 1966 SC 854; Multiline Associates v. Ardeshir Choasjee, PLD 1995 SC 423; Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883; Gulshan Ara v. The State, 2010 SCMR 1162; Zahid Rehman v. The State PLD 2015 Supreme Court 77; Messrs WAK Limited Multan Road v. Collector Central Excise and Sales Tax, 2018 SCMR 1474; Shafqat @ Shafaat v. The State PLD 2019 Supreme Court 43;

P L D 2021 Supreme Court 362

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

ALI HAIDER alias PAPU---Petitioner

Versus

JAMEEL HUSSAIN and others---Respondents

Criminal Petition No. 513 of 2020, decided on 7th January, 2021.

(Against the judgment of Lahore High Court, Multan Bench, dated 11.02.2020, passed in Criminal Appeal No. 436 of 2017 and Capital Sentence Reference No.61 of 2017).

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

----Art. 164---Importance of modern forensic techniques and science under the criminal justice system explained.

For the law to serve people in today's technologically complex society, courts needed to understand and be open to science and its principles, tools and techniques. Legal decisions of the courts must fall within the boundaries of scientifically sound knowledge. A judge and more so a trial judge, acted as a gatekeeper of the scientific evidence and must, therefore, enjoy a good sense and understanding of science. As science grows so will the forensic techniques, tools and devices; therefore, courts must be open to developments in forensic science and embrace new techniques and devices to resolve a dispute, provided the said technique and device was well established and widely accepted in the scientific community as a credible and reliable technique or device.

Third Edition, Federal Judicial Centre, National Research Council of the National Academies, Washington, DC ref.

Article 164 of the Qanun-e-Shahadat, 1984 was the gateway allowing modern forensic science to come into courtrooms. Article 164 provided that courts may allow to be produced any evidence that may have become available because of modern devices and techniques. Proviso to Article 164, provided that conviction on the basis of modern devices and techniques may be lawful. Article 164 read with Article 59, inter alia, allowed modern forensic science to enter courts through the credible and valued scientific opinions of experts as evidence, in order to arrive at the truth.

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

----Ss. 302(b), 376, 377 & 377B---Qanun-e-Shahadat (10 of 1984), Arts. 53A, 59, 164, 164A & 164B---Qatl-i-amd, rape, unnatural offence, sexual abuse---Importance and admissibility of DNA evidence to establish the guilt or innocence of an accused.

The most significant advancement in criminal investigation since the advent of fingerprint identification is the use of DNA technology to help convict criminals or eliminate persons as suspects.

Deoxyribonucleic acid (DNA) technology was widely used in many jurisdictions by police, prosecutors, defense counsel, and courts. This scientific evidence was much speedier, specific, accurate and conclusive than any other human evidence and could stand the scrutiny of the court to determine the guilt or innocence of an accused. In criminal cases, like rape, murder, etc., timely medical examination and proper sampling of body fluids followed by quality forensic analysis could offer irrefutable evidence. Through the use of DNA evidence, prosecutors could establish the guilt of accused and at the same time, DNA aided the search for truth by exonerating the innocent.

Modi. A Textbook of Medical Jurisprudence and Toxicology, 26th Edition, LexisNexis. Pp 430- 453 and Studies in the Use of DNA Evidence to Establish Innocence After Trial by Edward Connors, Thomas Lundregan, Neal Miller, Tom McEwen, June 1996, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice ref.

DNA report like any other opinion of an expert under Article 59 of the Qanun-e-Shahadat, 1984 ('QSO') was relevant and thus admissible. Article 164 of the QSO further underlined the admissibility, reliability and weightage of modern scientific forensic evidence, including the DNA test, as the said Article provided that convictions may be based on modern techniques and devices.

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

----Ss. 302(b), 376, 377 & 377B---Criminal Procedure Code (V of 1898), S. 510---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 164---Punjab Forensic Science Agency Act (XIII of 2007), S. 9---Qatl-i-amd, rape, unnatural offence, sexual abuse---DNA evidence/report, Per-se admissibility---Meaning---Requirement of examining the expert who prepared the DNA report explained.

While the admissibility of expert opinion was already recognized under the Qanun-e-Shahadat, 1984 ('the QSO'), section 510, Cr.P.C. dealt with special rules of evidence and made the evidentiary procedure simple by providing that certain reports of the chemical examiner, etc. may be used in any trial without calling the Government Chemical Examiner, Serologist, finger print expert or fire-arm expert as a witness. Allowing admission of reports of the said Governmental experts in evidence without their author appearing as a witness had the objective of saving time and speeding up criminal trials. This simple procedure of admission of these reports in evidence, was referred to as per se admissible. However, the court may if it considered necessary, in the interest of justice, summon and examine the person by whom such a report had been made. Section 510, Cr.P.C. referred to reports of certain experts only but did not specifically mention the expert who conducted DNA analysis, hence the DNA test report was not per se admissible but it was certainly admissible if tendered in evidence by examining as witness the expert under whose hand it was prepared as per the QSO. Additionally, under section 9 of the Punjab Forensic Science Agency Act, 2007 an expert of the Punjab Forensic Science Agency (PFSA) was considered to be an expert in terms of section 510, Cr.P.C. Therefore, DNA test report prepared by an expert of the PFSA was per se admissible

Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

Article 164 of QSO held immense importance and demanded that the scope of expert opinions under Article 59 of QSO and the special rule of evidence under section 510, Cr.P.C. be interpreted progressively to come to give more space and recognition to modern forensic science. Supreme Court observed that use of the word "Chemical Examiner" in section 510, Cr.P.C. was almost obsolete and had no established definition; and, that it was time for the Government to consider revision of section 510, Cr.P.C. allowing reports of all the Government forensic scientists (as opposed to the specified ones under section 510, Cr.P.C.) to be per se admissible, to speed up the wheels of dispensation of criminal justice. Supreme Court directed that copy of present judgment be dispatched to the Ministry of Law and Parliamentary Affairs, for consideration of the said recommendation.

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

----Ss. 302(b), 376, 377 & 377B---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 164,---Qatl-i-amd, rape, unnatural offence, sexual abuse---Concept of DNA evidence as the strongest corroborative piece of evidence explained.

DNA evidence was considered as a gold standard to establish the identity of an accused. DNA test due to its accuracy and conclusiveness was one of the strongest corroborative pieces of evidence. DNA test with scientific certainty and clarity pointed towards the perpetrator and was, therefore, considered one of the strongest corroborative evidence, especially in cases of rape. Supreme Court observed that usefulness of DNA analysis, however, depended mostly on the skill, ability and integrity shown by the investigating officers, who were the first to arrive at the scene of the crime; that unless the evidence was properly documented, collected, packaged and preserved, it would not meet the legal and scientific requirements for admissibility into a court of law.

Salman Akram Raja v. Government of Punjab 2013 SCMR 203; United States v. Yee 134 F.R.D 161 and Muhammad Shahid v. State PLD 2010 FSC 215 ref.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Reappraisal of evidence---DNA evidence---Strong circumstantial evidence---Incident was unseen, however, the most important piece of circumstantial evidence in the present case, was the DNA test report---Furthermore wajtakkar evidence, evidence of extra-judicial confession of accused, medical evidence and DNA test report, considered together, clearly connected the accused with the rape and murder of the deceased---Chain of circumstantial evidence was firm and continuous, leaving no margin for the hypothesis of innocence of the accused---Convictions and sentences awarded to the accused by the trial court, including death sentence, were maintained.

Evidence of wajtakkar comprised of two witnesses, who were not chance witnesses, as they were residents of the locality and their presence near the place of occurrence, i.e., the field, was quite natural. They saw the accused coming out of that field while tightening the string of his shalwar at a time that was in line with the time of occurrence reported in the FIR and the approximate time of death of the deceased mentioned in the post-mortem report. The extra-judicial confession of accused though was a weak piece of evidence; but in the present case, it also inspired confidence when it was read in conjunction with other circumstantial evidence. The medical evidence, viz, the post mortem report and statement of the doctor who made the post-mortem examination of the deceased, supported the prosecution case. The fact established by the medical evidence that the deceased had suffered vaginal injury, as her hymen was found freshly torn with tear at 6 O'clock extending upto perineum with fresh bleeding, clearly supports the prosecution case that the deceased was raped before causing her death. The medical opinion of the doctor that the death of the deceased occurred due to throttling tallied with the DNA report regarding the swab obtained from the neck of the deceased: the DNA report stated matching of the DNA found in that swab with that of the accused.

According to the DNA test report the semen from vaginal swabs, as well as, the stain of the shalwar of the deceased matched the DNA of the accused. The DNA in the swab obtained from the neck of the deceased also matched the DNA of the accused.

The prosecution had thus proved its case against the accused beyond reasonable doubt. Convictions and sentences awarded to the accused by the trial court, including death sentence, were maintained. Petition for leave to appeal was dismissed and leave was refused.

Raja M. Shafat Khan, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, DPG for the State.

Research Assistance by Rana Shaheryar, Research Officer/Civil Judge, SCRC, Islamabad.

P L D 2021 Supreme Court 373

Present: Umar Ata Bandial, Sajjad Ali Shah and Munib Akhtar, JJ

Khawaja BASHIR AHMED AND SONS PVT. LTD.---Appellant

Versus

Messrs MARTRADE SHIPPING AND TRANSPORT and others---Respondents

Civil Appeal No. 782 of 2014, decided on 14th January, 2021.

(On appeal from the judgment dated 11.03.2014 of the Lahore High Court, Lahore passed in Civil Revision No. 260 of 2007.)

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

----O.XXIII, R. 1---Withdrawal of suit with permission to file fresh suit, application for---Scope---Where the plaintiff had applied for the withdrawal of his suit or had sought the abandonment of his claim or a part thereof, with the permission of the Court to bring a fresh suit, it was within the authority of the Court obviously with the parameters of O.XXIII, R. 1(2)(a) & (b), C.P.C to either decline such request or allow the permission--- In the eventuality of refusal the suit should not be dismissed simpliciter, rather the request for permission alone be turned down and the suit should continue, thus obviously the plaintiff shall have a right, to choose his further course of action and to decide whether he should withdraw the suit or not--- In the other eventuality, there did not seem any problem except that the Court had to record its reasons justifying the permission, which in any case shall be so recorded in either of the eventuality---However, the problem was faced where the request was not declined in express and clear words, yet the suit was 'dismissed as withdrawn' without recording the reasons; though such an order shall be bad for failure to assign the reasons and if not assailed on that ground by the other side it shall attain finality, but in the situation it should be implied, considered and deemed that the Court had found it to be a fit case for the permission and had granted the plaintiff permission to file a fresh suit, because this was the [safer] course, which should be followed in the interest and promotion of justice, otherwise serious prejudice shall be caused to the plaintiff who shall have to face the bar of O.XXIII, R.1(3), C.P. and shall be left in a flummox.

Muhammad Yar (dec'd) and others v. Muhammad Amin (dec'd) and others 2013 SCMR 464 quoted.

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

----O.XXIII, R. 1(2)(b)---Withdrawal of suit with permission to file fresh suit, application for---Permission by Court to withdraw suit with liberty to institute fresh suit if "there are other sufficient grounds" [O. XXIII, R. (1)(2)(b), C.P.C]---'Grounds'---Scope and meaning---For O. XXIII, R. (1)(2)(b), C.P.C to be at all applicable it was necessary that the facts disclosed in the application seeking permission must, in law, amount to a "ground"; it was only then that the provision became applicable, requiring the court to satisfy itself as to the sufficiency (or lack) of the stated ground---However, if what was stated in the application was not a "ground" at all then obviously no question would arise of the court having to consider whether there was any sufficiency or lack thereof---Only when the facts disclosed what could, in law, be regarded as a "ground" that it became necessary for the court to consider the sufficiency (or lack) thereof---In the present case the application for withdrawal of suit to the extent of one of the defendants stated that the plaintiff "for the time being doesn't want to proceed further against" the second defendant, and that the plaintiff "reserves its rights to sue the said defendant whenever the necessity so arises"---Such purported ground, in law, was no ground at all---Plaintiff could not be allowed to file his suit and then, at his sweet will and pleasure, exit the litigation only to enter the arena again as and when he pleased---Trial Court had rightly dismissed the suit as withdrawn and disallowed the filing of a fresh suit---Appeal was dismissed.

Malik M. Rafiq Rajwana, Advocate Supreme Court for Appellant.

Nemo for the Respondents.

P L D 2021 Supreme Court 379

Present: Gulzar Ahmed, C.J. and Ijaz ul Ahsan, J

Malik MUNSIF AWAN, ADVOCATE, CHAIRMAN, PAKISTAN JUSTICE PARTY, LAHORE---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law and Justice, Islamabad and others---Respondents

Civil Petition No. 2148 of 2020, decided on 18th December, 2020.

(Against judgment dated 30.07.2020 of Islamabad High Court, Islamabad, passed in Writ Petition No. 2058 of 2020).

(a) Rules of Business, 1973---

----R. 4(6)---Constitution of Pakistan, Arts. 184(3) & 185(3)---Special Assistants to the Prime Minister, appointment of---Discretion of Prime Minister---Scope---On the basis of doctrine of trichotomy of powers certain discretionary powers had been vested in the Prime Minister in order to facilitate him in the performance of his functions and conducting business of the State---Unless it was specifically shown that the appointment of any Special Assistant to the Prime Minister suffered from any blot or blemish on their names or reputation for having been convicted for an offence of any nature or were under a cloud for having committed an illegality for which they had been convicted by a Court of competent jurisdiction, the discretion by the Prime Minister was not justiciable and the flexibility provided by the Constitution to the Prime Minister was best left unfettered---Even otherwise, such appointments fell within the domain of discretionary powers available to the Prime Minister under the Constitution and the law---Unless abuse, excessive exercise, mala fides or blatant arbitrariness was clearly demonstrated, casual and frequent judicial interference in such matters would be violative of the concept of trichotomy of powers enshrined in the Constitution, and it would needlessly interfere with, hamper and obstruct the Prime Minister in the effective and efficient discharge and performance of his constitutional functions and obligations---Therefore, judicial restraint in such matters should be the norm and interference only an exception.

(b) Rules of Business, 1973---

----R. 4(6)---Constitution of Pakistan, Arts. 62, 63(1)(c) & 260---Special Assistant to the Prime Minister (SAPM), appointment of---Qualifications and disqualifications---Scope---Discretion of Prime Minister---Scope---Dual nationals appointed as Special Assistants to the Prime Minister---Constitutionality---Person having dual nationality was neither ineligible nor barred from appointment as a Special Assistant to the Prime Minister (SAPM)---Counsel for petitioner conceded that disqualifications mentioned in Arts. 62 & 63 of the Constitution were not attracted to the case of SAPMs---Special Assistants to the Prime Minister (SAPMs) were neither members of the Cabinet nor Parliamentarians or persons in the 'Service of Pakistan'---Person did not have to be a Parliamentarians in order to be appointed as SAPM---Post of SAPM was neither the creation of the Constitution nor could it be termed as a constitutional post---In view of the fact that the qualifications and antecedents for appointment of a SAPM were neither mentioned in the Constitution nor in the Rules of Business, 1973 it appeared to have been left at the discretion of the Prime Minister on the basis of his subjective assessment about the ability of a person to perform the functions that the Prime Minister required him to perform for such appointment---Further in view of absence of a settled criteria, standards or benchmarks, it was not possible to test the qualifications, antecedents and experience of incumbent SAPMs against such standards, therefore, it was appropriate to defer to the judgment and discretion of the Prime Minister in the hope that such discretion had been and shall in future be exercised in a fair, transparent and unbiased manner in the interest of better and more efficient functioning of the affairs of the Government---Supreme Court, however, observed that the Parliament may at an appropriate time consider laying down some criteria, minimum standards, educational qualifications, fields of expertise and levels of experience for appointment as Special Assistants to the Prime Minister in order to ensure that the exercise of discretion by the Prime Minister in such regard was properly structured, streamlined, circumscribed and systemized---Petition for leave to appeal was dismissed and leave was refused.

(c) Constitution of Pakistan---

----Arts. 184(3) & 185(3)---Writ of quo warranto---Scope---Where it was found that any person holding any position in or related to the Government or performing functions directly, indirectly or incidentally in connection with affairs of the Federal or any of the Provincial Governments or any local authority had been appointed on the basis only of political affiliation (as a political favour) and represented an exercise to reward cronies at the expense of public money, the Supreme Court could extend its outreach to undo such appointments.

(d) Rules of Business, 1973---

----R. 4(6) & Sched. VA, Sr. No. 1A---Special Assistant to the Prime Minister (SAPM)---Conferring status of Minister of State on a SAPM---Legality---In terms of R. 4(6) of the Rules of Business, 1973 read with Sr.No.1A of Sched.-VA of the said Rules, the Prime Minister had the power and authority to appoint a Special Assistant and determine his status---Petitioner was unable to point to any restriction or bar on the power of the Prime Minister against conferring of the status of Minister of State on the SAPMs---Merely by reason of being granted the status of a Minister of State a SAPM did not become a Minister of State---As such, there was no illegality in conferring on them the status of a Minister of State---Petition for leave to appeal was dismissed and leave was refused.

(e) Constitution of Pakistan---

----Arts. 184(3) & 185(3)---Rules of Business, 1973, Sched. VA---Appointments made by the Prime Minister in his discretion---Powers of the Supreme Court to set-aside such appointments---Scope---Unless specific grounds were asserted and established justifying interference in exercise of discretion by the Prime Minister in making appointments against positions which had been left to the discretion of the Prime Minister by the Constitution, the Supreme Court would be slow in interfering in such appointments unless the exercise of discretionary powers by the Prime Minister was blatantly arbitrary, fanciful, unlawful or ex facie violative of the settled principles of exercise of discretion.

(f) Constitution of Pakistan---

----Arts. 184(3) & 185(3)---State functionaries/holders of public office, discretion of---Powers of the Supreme Court to scrutinize executive actions where discretion was exercised---Scope---Constitution did not envisage unstructured, uncontrolled and arbitrary discretion being conferred on any State functionary or holder of a public office---Even if discretion had been conferred, the same had to be exercised honestly, fairly and transparently---Further, it had to meet the benchmark of being structured in the interest of uniformity, evenhandedness, probity and fairness---Only if the exercise of discretion met the said criteria the Supreme Court would refrain from interfering and scrutinizing executive actions on the principle of trichotomy of powers---No fetter could be placed on the power of the Supreme Court to examine and scrutinize executive actions to determine their legality and adherence to the Constitution.

(g) Rules of Business, 1973---

----R. 4(6)---Constitution of Pakistan, Arts. 90 & 99(3)---Power of the Prime Minister to appoint Special Assistants to the Prime Minister---Rule 4(6) of the Rules of Business, 1973, vires of---Rule 4(6) of the Rules of Business, 1973 had been framed validly in exercise of powers granted to the Federal Government under Arts. 90 & 99(3) of the Constitution---Nothing was available on record to suggest that said Rule was in conflict with any provision of the Constitution or the law---Rule 4(6) of the Rules of Business, 1973 was not ultra vires the Constitution.

M. Ikram Chaudhry, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2021 Supreme Court 391

Present: Gulzar Ahmed, C.J., Sardar Tariq Masood, Faisal Arab, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

GUL TAIZ KHAN MARWAT---Appellant

Versus

The REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR and others--Respondents

Civil Appeals Nos.353-355 of 2010, 130 of 2013, 176 of 2018, Civil Petitions Nos.4750-4751 of 2017, Civil Miscellaneous Application No.6310 of 2018 in Civil Miscellaneous Application No.4233 of 2017, Civil Petition No.3039 of 2015, Civil Miscellaneous Applications Nos.218, 413, 1718 of 2016 in Civil Petition No.3039, Civil Petition No.3040 of 2015, Civil Miscellaneous Applications Nos.222, 219 and 1177 of 2016 in Civil Petition No.3040 of 2015, Civil Petitions Nos.1439, 3280 of 2018 and Civil Miscellaneous Application No.8193 of 2017 in Civil Appeal No.1163 of 2017, decided on 16th March, 2020.

(Against the judgments dated 06.03.2009 passed by the Peshawar High Court, Peshawar in W.P. No.376 and 384 of 2008 and 1065 of 2007, 20.09.2012 passed by the Peshawar High Court, Peshawar in W.P. No.958 of 2009, 02.11.2017 passed by the Lahore High Court, Lahore in W.P. No.99511 of 2017, 27.09.2017 passed by the Islamabad High Court, Islamabad in W.Ps. Nos.3249 and 3250 of 2016, 08.10.2015 passed by the Peshawar High Court, Peshawar in W.Ps. Nos.931-P and 3378-P of 2015, 22.03.2018 passed by the Lahore High Court, Lahore in W.P. No.10229/04 of 2017 and 28.06.2018 passed by the Islamabad High Court, Islamabad in W.P. No. 856 of 2018).

(a) Constitution of Pakistan---

----Arts. 176, 192(1), 199 & 208---Constitutional jurisdiction of the High Court---"But for" test---Scope---Executive, administrative or consultative actions of the Chief Justices or Judges of a High Court---Such actions were not amenable to the constitutional jurisdiction of a High Court under Art. 199 of the Constitution---Superior courts judges did not come under the definition of "persons" in view of Art.199(5) of the Constitution and therefore writ petitions filed against their executive, administrative or consultative actions were not maintainable---Judges of the superior courts did not act as persona designata while exercising executive, administrative or consultative actions---Framers of the Constitution did not intend that the remedy of a writ be available against a High Court or the Supreme Court.

Bare reading of Article 199(5) of the Constitution showed that as a general rule for the purposes of Article 199, the Supreme Court and High Courts had been excluded from the term 'person', and therefore no writ could be issued by a High Court under Article 199 to the Supreme Court or to itself by any of the said Courts.Framers of the Constitution did not intend that the remedy of a writ be available against a High Court or the Supreme Court.

Perusal of Articles 176 and 192(1) of the Constitution made it clear that a High Court and the Supreme Court both comprised of the respective Chief Justices and judges, therefore the argument that there could be no Court without the Chief Justice and Judges was necessarily true. Furthermore, the definitions under the said Articles of the Constitution did not draw any distinction between the judicial orders of a Court and its administrative, executive or consultative orders.

Keeping in view Articles 176, 192, 199 and 208 of the Constitution, and upon a harmonious interpretation thereof, no distinction whatsoever had been made between the various functions of the Supreme Court and High Courts in the Constitution and the wording was clear, straightforward and unambiguous. There was no sound basis to the argument that Judges acting in their judicial capacity fell within the definition of a 'person' (Article 199(5) of the Constitution) and Judges acting in their administrative, executive or consultative capacity did not fall within such definition.

Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961 overruled, held needed to be revisited.

The 'but for' test, was pivotal in determining whether or not a particular act or function carried out by a Judge was immune to challenge under writ jurisdiction of the High Court under Article 199 of the Constitution. Question was 'but for' the person's appointment as a judge (thereby constituting a part of a High Court or the Supreme Court under Articles 192 and 176 of the Constitution), would the function in issue be exercised? If the answer to such question was yes, then such function would not be immune to challenge under Article 199. With respect to the administrative, executive or consultative acts or orders of the Chief Justices or Judges of a High Court, the answer to the "but for" test was an unqualified no, therefore such acts or orders would be protected by Article 199(5) of the Constitution and thereby be immune to challenge under the writ jurisdiction of the High Court.

Abrar Hassan distinguished.

Malik Asad distinguished.

Chief Justices or Judges of a High Court exercising their executive, administrative or consultative actions did not act as persona designata, rather acted for and on the behest of, and as a High Court as defined in Article 192 of the Constitution and were therefore not amenable to the constitutional jurisdiction of a High Court under Article 199 thereof.

Suleman Ali Haideri and another v. Government of Balochistan and others 2004 SCMR 354 ref.

Principle of judicial comity was another reason why the executive, administrative or consultative actions of the Chief Justices or Judges of a High Court were not amenable to the constitutional jurisdiction of a High Court under Article 199 of the Constitution.

Mujibur Rahman Shami and another v. A Judge of the High Court, Lahore PLD 1973 Lah. 778; Mian Jamal Shah v. The Member, Election Commission and others PLD 1966 SC 1; Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Asif Naz v. Government of Punjab and others PLD 2017 Lah. 271 and Water and Sanitation Agency, Lahore through M.D. v. Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others 2019 SCMR 1146 ref.

(b) Interpretation of Constitution---

----Constitutional provisions---Casus omissus, doctrine of---Applicability---Doctrine of casus omissus did not apply to Constitutional provisions and nothing could be "reading into" the Constitution---Strict and faithful adherence to the words of the Constitution, specially so where the words were simple, clear and unambiguous was the rule---Any effort to supply perceived omissions in the Constitution being subjective could have disastrous consequences

(c) Appeal---

----Right of appeal---Scope---Such right was a creature of the statute and it was not to be assumed that there was a right of appeal in every matter brought before a Court for its consideration---Right of appeal was expressly given by a statute or some authority equivalent to a statute such as a rule taking the force of a statute---Existence of right of appeal could not be assumed on any 'a priori' ground

Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853; Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 SCMR 819; Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd. and another 2001 SCMR 777; Syed Masroor Shah and others v. The State PLD 2005 SC 173; President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 and Malik Shakeel Awan v. Sheikh Rasheed Ahmed and 21 others PLD 2018 SC 643 ref.

(d) "Judicial comity", principle of---

----Scope---Said principle, albeit informal and discretionary, was essentially the respect and deference that one Court (or a Judge thereof) showed to another---Purpose of said principle was to stimulate a national interest in the finality of judicial decisions through a concerted effort by the judiciary of maintaining their hierarchy; this instilled faith in the public regarding the judiciary and in turn bolstered the rule of law, which was essential for the functioning of any democratic society.

(e) Constitution of Pakistan---

----Arts. 199 & 203-C---Constitutional jurisdiction of the High Court---Scope---Administrative acts or orders of the Judges of the Federal Shariat Court---Such acts or orders were not amenable to the writ jurisdiction of the High Court under Art. 199 of the Constitution.

Amjad Ali v. Federal Shariat Court through Registrar PLD 2016 SC 767 and M. R. Najmi v. The Registrar, Federal Shariat Court, Islamabad PLD 1992 Lah. 302 ref.

For the Appellants/Petitioners/Applicants:

Saleem Ullah Ranazai, Advocate Supreme Court along with Appellant in-person ((in C.As. Nos. 353-355 of 2010).

Abdul Lateef Afridi, Advocate Supreme Court and Khalid Anwer Afridi, Advocate Supreme Court along with Asif Hamid Qureshi, Appellant in-person ((in C.A. No. 130 of 2013).

Amjad Ali, Petitioner in-person (in C.Ps. Nos. 4750 and 4751 of 2017).

Fawad Saleh, Advocate Supreme Court ((in C.P. No. 3039 of 2015 and C.M.As. Nos.218, 413 and 1718 of 2016).

Nemo (in C.P. No. 3040 of 2015).

Ch. Faisal Fareed, Addl. AG Punjab Zohaib Alam, PA for Addl. Dir. (in C.P. No. 1439 of 2018).

Dr. G. M. Chaudhry, Advocate Supreme Court (in C.P. No. 3280 of 2018).

Muhammad Munir Paracha, Advocate Supreme Court (in Const. P. No. 4 of 2016)

Abdur Rashid Awan, Advocate Supreme Court (in Const. P. No. 12 of 2016).

Amjad Ali, Advocate Supreme Court (in Const. P. No. 143 of 2012)

Mian Shah Abbas, Advocate Supreme Court (in Crl. O. P. No. 125 of 2019)

For the Respondents:

Khalid Rehman, Advocate Supreme Court (appeared on behalf of PHC w/o POA in C.A. No. 353 of 2010, etc.)

Shumail Ahmed Butt, A.G. KPK and Barrister Qasim Wadood, Addl. A.G. KPK.

Khalid Javed Khan, Attorney General and Ch. Aamir Rehman, Addl. Attorney General.

Ch. Faisal Fareed, Addl. A.G. Punjab Khalid Mehmood.

Ayaz Khan Swati, Addl. A.G. Balochistan.

Barrister Shabbir Shah, Addl. A.G. Sindh (appeared via video-link from Karachi).

Mohammad Kassim Mirjat, AOR for Sindh.

Niaz Ullah Khan Niazi, A.G., Islamabad.

Muhammad Akran Gondal, Advocate Supreme Court (on behalf of F.S.C. in C.Ps. Nos. 4750 and 4751 of 2017).

Faiz Rasool Jalbani, Advocate Supreme Court (on behalf of Respondent No.1 in C.P. No. 1439 of 2018).

P L D 2021 Supreme Court 434

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

Mst. JAIWANTI BAI---Appellant

Versus

Messrs AMIR CORPORATION and others---Respondents

Civil Appeal No. 133-K of 2016, decided on 19th July, 2017.

(Against the order dated 23.9.2015 passed by High Court of Sindh, Karachi in II-Appeal No. 72 of 2009).

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

----S. 54---Contract Act (IX of 1872), S. 55---Agreement to sell immoveable property---Time, essence of the contract---Scope---Generally in a sale of immoveable property, time was not the essence of the contract, unless it was made so.

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

----S. 12---Contract Act (IX of 1872), S. 51---Transfer of Property Act (IV of 1882), S. 54---Specific performance of agreement to sell immoveable property---Scope---Specific performance could be sought by a vendee or vendor who had performed and was ready and willing to perform reciprocal promise.

(c) Registration Act (XVI of 1908)---

----S. 50(1), first and second proviso---Transfer of Property Act (IV of 1882), S. 54---Specific Relief Act (I of 1877), S. 12---Unregistered instrument---Prior in time to registered instrument---Rights of a person, having established that they were equipped with an unregistered instrument, which was prior in time, and were in possession of property in part performance of such instrument, would rank superior even against the subsequent registered instrument.

Faza v. Mehr Dia and 2 others 1999 SCMR 837; Mushtaq Ahmed and others v. Muhammad Saeed and others 2004 SCMR 530 and Sardar Arshad Hussain v. Muhammad Zenat Un Nisa 2017 SCMR 608 ref.

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

----S. 37---Immoveable property---Assignment---Scope---Assignment, in cases relating to immoveable property, took place when one party to an existing contract conveyed all the obligations, rights and interest under the agreement to another person---In such an eventuality, the assignee stepped into the shoes of the assignor and assumed all the contractual rights and obligations flowing therefrom.

AIR 1962 SC 1810 at 1817, Paragraph 21 ref.

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

----S. 54---Contract Act (IX of 1872), S. 37---Immoveable property---Forward contracts---Forward transferee---Supreme Court observed that it was common usage and custom in real estate, construction and building contract that at, or before the execution of sublease, investors booked the apartments/shops in advance and sold, or transacted, forward sale multiple times, before the final sublease was executed; that traditionally, such type of transaction was evidenced by tripartite arrangement by and between the allottee, forward purchaser, and the builder; that in Pakistan, such contracts and arrangements were not regulated, therefore it was high time that the real estate business was regulated, to secure rights and interests of builders, allottees and forward transferees alike---Appeals were allowed with said observations.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Agreement to sell immoveable property---No time for performance mentioned in agreement---Suit for specific performance of such agreement---Limitation period, commencement of---Scope---Where no time for the performance was mentioned in the agreement to sell/instrument, the court was required to find out when the vendee/plaintiff had notice that the performance was refused---Once such date or period was discovered, then period of three years was to be computed therefrom.

Gunwantbhai Mulchand Shah and others v. Anton Elis Farel and others (2006) 3 SCC 634 and R.K Parvatharai Gupta v. KC Jayadeva Reddy (2006) 2 SCC 428 ref.

Neel Keshaw, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Ex parte for Respondents.

P L D 2021 Supreme Court 446

Present: Gulzar Ahmed, C.J., Mushir Alam, Umar Ata Bandial, Qazi Faez Isa and Ijaz ul Ahsan, JJ

ACTION AGAINST DISTRIBUTION OF DEVELOPMENT FUNDS TO MNAs/MPAs BY PRIME MINISTER: In the matter of

C.M.A. No.490 of 2021 in Constitution Petition No. 20 of 2013, decided on 20th February, 2021.

Per Gulzar Ahmed, CJ; Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ agreeing; Qazi Faez Isa, J, dissenting.

(a) Constitution of Pakistan---

----Arts. 120, 121, 122, 123, 124 & 184(3)---Constitutional petition before the Supreme Court regarding distribution of development funds to Members of National and Provincial Assemblies by the Prime Minister---Report submitted on behalf of the Federal Government amply demonstrated that none of the development funds shall be handed over to any of the Federal Ministers, Parliamentarians or any other person under the existing budget and that whatever budgetary provisions had been made in the annual budget, the same would be utilized in the manner, as was provided in the Constitution and other applicable laws and regulations---Similarly reports submitted by the Provincial Governments, in specific terms, stated that no development fund was going to be given to any of the MPAs/Ministers/notables of their respective Provinces and that the development funds shall be used and spent as per the constitutional mandate and the applicable rules framed by the respective Governments for utilization of the development funds provided in the annual budget---Supreme Court observed that queries raised by it in one of its previous orders had been addressed by all the respective Governments and thus, there was no reason to further proceed with the matter---Application was disposed of accordingly. [Majority view]

(b) Supreme Court Rules, 1980---

----O. XI---Constitution of Pakistan, Art. 184(3)---Constitutional petition before the Supreme Court regarding distribution of development funds to Members of National and Provincial Assemblies by the Prime Minister---Un-biasness and impartiality of a judge---Scope---One of the Judges of the Bench hearing the present matter sought to place on record photocopies of certain documents statedly received by him from some anonymous source through a WhatsApp message indicating that funds had been provided to a member of the National Assembly---Attorney General contended that since the authenticity of said documents was questionable, the same may not be taken on record, and that in any event the Judge in question would become a complainant in the matter and in that capacity it would not be appropriate for him to hear the present matter---[Per Gulzar Ahmed, CJ; Majority view: In the circumstances it would not be proper for the Judge in question to hear the matter considering that he had already filed a petition against the Prime Minister, in his personal capacity, therefore, to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the Judge in question should not hear matters involving the Prime Minister]---[Per Qazi Faez Isa, J (Minority view): Order passed by the present Bench a day prior to current order did not state that a particular Judge should not hear cases involving the Prime Minister---More significantly, no one (on the Bench) took such an objection, including the Attorney-General, the law officers of the provincial governments and the Capital Territory or any government servant, therefore, there was no basis, let alone a factual basis, for a purported bias or lack of impartiality, as unilaterally attributed later to a Judge of the Supreme Court by the Chief Justice---Documents received on WhatsApp and the Prime Minister's statement (to provide money out of public funds to legislators), made in the backdrop of the upcoming (Senate) elections, merited scrutiny---In the interest of complete transparency and accountability and in conformity of the oath, the same were disclosed---Same were brought to the notice of the Judges, the concerned governments, their law officers and it was done in open Court and it was disclosed how the documents were received---Federal Government and the Provincial Government ought to have responded to the genuineness or otherwise of the documents---If the documents were not genuine the matter would have ended, but if the documents were genuine then it would need to be explained why such distribution of development funds was not in contravention of the Constitution and the earlier decisions of the Supreme Court---However, rather than verifying the documents, the Attorney General felt the need to transmute a Judge into a complainant---Chief Justice agreed with the Attorney General immediately and, promptly and unilaterally, without consulting his colleagues on the Bench, 'ordered' that a Judge (who he himself included on the Bench) 'should not hear matters involving the Prime Minister'---Such order was contrary to judicial propriety, decorum, restraint and courtesy].

Per Qazi Faez Isa, J dissenting [Minority view]

(c) Supreme Court Rules, 1980---

----O. XI---Constitution of Pakistan, Art. 184(3)--- Constitutional petition before the Supreme Court regarding distribution of development funds to Members of National and Provincial Assemblies by the Prime Minister---Re-constitution of Bench hearing a case by the Chief Justice---Propriety---His Lordship observed that present matter, which was being heard by a 2-member Bench, was fixed by the Chief Justice before a 5-member Bench, which did not include one of the Judges of the 2-Member Bench; that the 2-member Bench acted in the public interest to protect public money and ensure compliance with the Constitution and legal precedent, however, it was not permitted to proceed as the Chief Justice reconstituted the Bench; that Chief Justices may have discretion to constitute Benches but must do so for some reason; that the reconstitution of a Bench already seized with a matter (and in which a date-by-court had been given) must always be for a good, if not compelling, reason; that unstructured and arbitrary use of discretion gave rise to misgivings and undermined the peoples' confidence in the impartiality and integrity of the judicial system; that to arbitrarily reconstitute a bench for no reason when it was hearing a case was inappropriate because it raised unnecessary questions and people started speculating about why there was extraordinary interest in a particular case; that it also demoralized the members of the bench from whom the matter had been taken away. [Minority view]

(d) Supreme Court Rules, 1980---

----O. XI---Constitution of Pakistan, Arts. 184(3) & 189---Constitutional petition before the Supreme Court regarding distribution of development funds to Members of National and Provincial Assemblies by the Prime Minister---Un-biasness and impartiality of a judge---Scope---Chief Justice, who was a Member of the Bench hearing the present matter, observed and ordered that one of the Judges on the Bench had filed a petition against the Prime Minister in his personal capacity, therefore, to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the Judge in question should not hear matters involving the Prime Minister---[Per Qazi Faez Isa, J (Minority view)] Such an order was unconstitutional, illegal and contrary to the precedents of the Supreme Court---Order in question did not meet the stipulated criteria to constitute a legal order or a decision in terms of Art. 189 of the Constitution, was contrary to the rules of natural justice, the Constitution, impartiality and fair play and undermined the Supreme Court---Detailed reasons highlighting the illegalities and improprieties in the order stated.

In every order/judgment in which one or more Judges dissent a separate - Order of the Court - was always written. But this was not done in the present case, therefore, the matter remains pending. There was also a transgression; four Judges of a 5-member Bench had passed an order against one of their colleagues. Therefore, since there was no Order of the Court the Judges should reconsider and re-evaluate, or themselves review the order which was merited. Furthermore, the order was uploaded on the Supreme Court's website before all the concerned judges had signed, or at the very least, read it. The order and case file were not sent, in accordance with long-standing established practice, to the Judge in question. The said Judge learnt of the order through the media, and had to write to the Registrar seeking the order and case file.

The Chief Justice having himself constituted the Bench to hear the present matter, availed the opportunity to assume purported bias and lack of impartiality on the part of one of the Judge's on the Bench and passed a restraining order against the said Judge. An allegation of bias and impartiality had to be levelled first and only then was it to be addressed by the concerned Judge. No one had alleged bias or impartiality against any Judge on the Bench. If the Prime Minister wanted to make the said allegation he had to do so himself. The Attorney General, who raised the issue of the Judge in question becoming a complainant in the matter and his impropriety to hear the matter, was not the personal lawyer of the Prime Minister; nor could a Chief Justice extend support to a Prime Minister or restrain a Judge of the Supreme Court; nor the Constitution or law permitted Judges to look into the hearts of colleague Judges, and determine whether they suffered from biasness and lack of impartiality. Question marks on the reputation of a Judge had instead been raised by the Chief Justice unilaterally and arbitrarily in open Court and then in the order, despite the fact that no one had alleged bias or lack of impartiality. In unprecedented fashion, without any evidence, without recourse to petition or appeal, the reputation of a Judge of the Supreme Court had been tarnished. Consequently, the credibility and integrity of the Judiciary had also been undermined.

There were also factual inaccuracies in the order. Judge in question had not 'filed a petition against the Prime Minister in his personal capacity'. The said petition was filed against a Presidential Reference in which 13 respondents were arrayed, including the Prime Minister. The said petition was not filed against the Prime Minister in his personal capacity but in his capacity as the Prime Minister, as he had advised the President to file a Reference against the Judge in question, who subsequently challenged the Reference. Prime Minister as a person and the office of the Prime Minister were two different things and were not interchangeable. The order in question said that a Judge 'should not hear matters involving the Prime Minister'. The Prime Minister was the head of the Federal Government. Even the Head of State (the President) in most matters, acted on his advice. Therefore, if the order in question was implemented it meant that a Judge of the Supreme Court could only hear cases of private civil disputes, because even in criminal cases the State was always a party. The oath of office of a Judge required him to hear all cases. Moreover, if a Judge was restrained from hearing a genre of cases then his salary, judicial allowance, housing, utilities, etcetera, paid by the taxpayers was effectively wasted because they were not getting what they paid for.

Perusal of precedents of the Supreme Court (spanning decades) revealed that the order in question was not an 'order' as contemplated by law nor a 'decision' in terms of Article 189 of the Constitution. Before deciding against a person he must be provided an opportunity to meet the allegations against him, the authority must give reasoned order in writing and there was a duty to decide the case in an objective manner. To be properly categorized as an 'order' or a 'judgment,' reasons therein must be given, adjudication should take place after a careful consideration of the facts and the law and the decision made only after giving the affected party an opportunity of being heard. The order in question did not meet the stipulated criteria to constitute a legal order or a decision in terms of Article 189 of the Constitution, was contrary to the rules of natural justice, the Constitution, impartiality and fair play and undermined the Supreme Court.

Muhammad Akhtar v. State PLD 1957 SC 297; Faridsons Ltd. v. Government of Pakistan PLD 1961 SC 537; Abdul Kabeer v. Abdul Wahid 1968 SCMR 464; Gouranga Mohan Sikdar v. Collector of Import and Export PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736; Airport Support Services v. Airport Manager 1998 SCMR 2268; Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84 and Government of Sindh v. Muhammad Juman 2009 SCMR 1407 ref.

Judge against whom an objection had been raised was to himself decide whether to hear the case. Whether a Judge should hear a case or hear cases of any party was left to the sagacity and wisdom of the Judge. A Judge's colleagues could not impose their decision on him. No Judge could issue a writ against another or direct him not to hear any case on the ground that he had a bias and that it would be unconstitutional to do so.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Abrar Hassan v. Government of Pakistan PLD 1976 SC 315; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689 ref.

A smaller Bench could not take a view contrary to a larger Bench. Therefore the order in question was contrary to the decisions in the cases of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 Supreme Court 57), Abrar Hassan v. Government of Pakistan (PLD 1976 Supreme Court 315, Asad Ali v. Federation of Pakistan (PLD 1998 Supreme Court 161) and Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 Supreme Court 689); which were decided by larger benches of the Supreme Court, and wherein it was decided that only the concerned Judge could decide if he should hear a case.

The Supreme Court did not have jurisdiction to pass an order of the nature of the order in question. Significantly, the order did not state which particular jurisdiction was exercised. If a court assumed jurisdiction which it did not have, such an action/order was liable to be struck down; the Constitution enabled the High Courts and the Supreme Court to do so. Neither a High Court nor the Supreme Court could confer jurisdiction on itself which it did not already have.

In Attendance

Khalid Jawed Khan, Attorney General for Pakistan and Sohail Mehmood, Addl. AGP for the Federation.

Barrister Qasim Ali Chohan, Addl. A.G. Punjab, Khalid Mehmood, Addl. Secretary Finance, Punjab and Shehbaz Ahmed Sheikh, Law Officer, Finance, Punjab for Government of Punjab.

Shumail Ahmed Butt, A.G., KP, Aftab Ali Khan, Addl. A.G., KP, Atif Rehman, Secretary Finance, KP and Amir Sultan Tareen, Secretary, P&DD, KP for Government of Khyber Pakhtunkhwa .

Arbab Muhammad Tahir, A.G., Balochistan and Muhammad Fareed Dogar, Assistant A.G., Balochistan for Government of Balochistan.

Niaz Ullah Khan Niazi, A.G., Islamabad for ICT.

Salman Talib ud Din, A.G., Sindh, Saeed Ahmed Qureshi, Focal Person to Chief Secretary, Sindh and Sikander Hassan, D.S. Finance, Sindh for Government of Sindh (via video link from Karachi).

P L D 2021 Supreme Court 480

Present: Gulzar Ahmed, C.J., Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, JJ

In re: REFERENCE BY THE PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN, UNDER ARTICLE 186 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973

Reference No. 1 of 2020, decided on 1st March, 2021.

Per Gulzar Ahmed, CJ, Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ; agreeing Yahya Afridi, J. dissenting

Constitution of Pakistan---

----Arts. 186, 218(3), 220, 222 & 226 & Fourth Sched., Pt. I, Entry 41---Elections Act (XXXIII of 2017), S. 122---Reference by the President under Art. 186 of the Constitution---Senate elections---Voting procedure---Secrecy of ballot---Question asked in the Reference was whether the condition of 'secret ballot' referred to in Art.226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Art.222 read with Entry 41, Pt. I, Fourth Sched. to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017---[Per Gulzar Ahmed, CJ., Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ [Majority view]: Secrecy of ballot was not absolute and therefore, was not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election---In terms of Art.218(3) of the Constitution it was the duty of the Election Commission to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against---For fulfilling said solemn constitutional duty the Election Commission was required to take all available measures including utilizing technologies]---[Per Yahya Afridi, J. [Minority view]: Opinion being sought in the present Reference was not a question of law within the contemplation of Art.186 of the Constitution, thus, it was to be returned unanswered]---Answer (short opinion) to the Reference provided by the Supreme Court recorded.

[Per Gulzar Ahmed, CJ, Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ [Majority view]:

(i) The Elections to the Senate were held "under the Constitution" and the law;

(ii) It was the duty of the Election Commission in terms of Article 218(3) of the Constitution, to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against;

Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 ref.

(iii) The Election Commission was required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowered the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provided that, "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission" under Part VIII, Chap. 1 of the Constitution;

(iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces were obliged to assist the Commissioner and the Election Commission in discharge of his or their functions, as provided for in Article 218(3) of the Constitution;

(v) As far as the secrecy of ballot was concerned, secrecy was not absolute and the secrecy of the ballot, therefore, was not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election; and

Niaz Ahmad v. Azizuddin and others PLD 1967 SC 466 ref.

(vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission was required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election was "conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against".

Per Yahya Afridi, J [Minority view]

Opinion sought by the President in the instant Reference, was not a question of law within the contemplation of Article 186 of the Constitution, accordingly, the same was to be returned unanswered.

Khalid Jawed Khan, Attorney General for Pakistan, Sohail Mehmood, Addl. A.G.P. and Ayaz Shaukat, D.A.G. (Assisted by Ms. Maryum Rasheed, Advocate) for the Federation (in Reference No. 1/2020) (in C.M.As. Nos.127-128, 170, 989, 1293 of 2021).

Abdul Latif Yousafzai, Senior Advocate Supreme Court, Muhammad Mushtaq, Addl. Secretary (Legislation) and Muhammad Waqar, D.P.O. (Lit.) for the National Assembly (in C.M.A. No. 278 of 2021).

Senator Muhammad Ali Khan Saif and Muhammad Javed Iqbal, DD for the Senate of Pakistan (in C.M.A. No. 296 of 2021).

Sikandar Sultan Raja, Chief Election Commissioner, Justice (R) Muhammad Iltaf Ibrahim Qureshi, Member (Punjab), Mrs. Justice (R) Irshad Qaiser, Member (KP), Shah Mehmood Jatoi, Member (Balochistan), Nisar Ahmed Durrani, Member (Sindh), Sajeel Shehryar Swati, Advocate Supreme Court, Sana Ullah Zahid, Advocate Supreme Court, L.A., Dr. Akhtar Nazir, Secretary and Muhammad Arshad, DG (Law) for the Election Commission (in C.M.As. Nos. 210, 808, 880, 983, 1010 of 2021).

Ahmed Awais, A.G., Barrister Qasim Ali Chohan, Addl. A.G. and Ms. Imrana Baloch, Advocate-on-Record for Government of Sindh (in C.M.A. No.95 of 2021).

Salman Talib ud Din, A.G. and Sibtain Mahmud, Addl. A.G. for Government of Punjab (via video link from Karachi) for Government of Sindh (in C.M.A. No. 386 of 2021).

Shumail Ahmad Butt, A.G. and Atif Ali Khan, Addl.A.G. for Government of Khyber Pakhtunkhwa (in C.M.A. No.104 of 2021).

Arbab M. Tahir, A.G. for Government of Balochistan.

Muhammad Ayaz Khan Swati, Addl. A.G. and Muhammad Fareed Dogar, A.A.G. (in C.M.A. No.185 of 2021).

Niazullah Khan Niazi, A.G. for ICT (in C.M.A. No. 149 of 2021).

Kamran Murtaza, Senior Advocate Supreme Court and Jehangir Khan Jadoon, Advocate Supreme Court for JUI (in C.M.As. Nos. 129 and 541 of 2021)

Salahuddin Ahmed, Advocate Supreme Court Barrister Omer Soomro, Advocate Supreme Court, Syed Riffaqat Hussain Shah, Advocate-on-Record (Assisted by Ravi Pinjani, Advocate Supreme Court) for SHCBA (in C.M.As. Nos. 297 and 1119 of 2021).

Hassan Irfan Khan, Advocate Supreme Court (in C.M.As. Nos. 130, 1201 and 1292 of 2021).

Mian Raza Rabbani, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for PPP (in C.M.As. Nos. 131, 704 and 1217 of 2021).

Malik Qamar Afzal, Advocate Supreme Court (in C.M.As. Nos. 154 and 1295 of 2021).

Ishtiaq Ahmed Raja, Advocate Supreme Court for JI (in C.M.A. No.211 of 2021).

Syed Iqbal Hashmi, Advocate Supreme Court for JI (in C.M.A. No. 231 of 2021).

Barrister Zafar Ullah, Advocate Supreme Court for PML (N) (in C.M.As. Nos. 784 and 1231 of 2021).

Mansoor Usman Awan, Advocate Supreme Court for Pakistan Bar Council (in C.M.As. Nos. 807 and 1200 of 2021).

Farooq H. Naek, Senior Advocate Supreme Court for PPP (P) (in C.M.As. Nos. 872 and 1218 of 2021).

Khurram Shehzad Chughtai, Advocate High Court, in person for PPP(P) (in C.M.As. Nos. 908, 1008 and 1026-1030 of 2021).

Azhar Iqbal, Advocate Supreme Court for PPP(P) (in C.M.A. No. 1115 of 2021).

Waheed Ahmed Kamal, in person for PPP(P) (in C.M.A. No. 1233 of 2021).

Dates of hearing: 4th, 11th, 13th, 14th January, 2nd, 3rd, 4th, 8th, 10th, 11th, 15th, 16th, 17th, 18th, 19th, 22nd, 23rd, 24th and 25th February, 2021.

OPINION

The President of the Islamic Republic of Pakistan has sent a REFERENCE under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred to as "the Constitution"), for opinion of this Court. The question asked in the REFERENCE is as follows:

"Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017.?"

1. We have heard learned Attorney General for Pakistan, learned Advocate Generals of all four Provinces and ICT, learned counsel appearing for the National Assembly, the Senate of Pakistan, the Election Commission, Political Parties, Pakistan Bar Council, Sindh High Court Bar Association and the individuals, who have appeared in person.

2. For the detailed opinion to be recorded later, the REFERENCE is answered as follows:

(i) The Elections to the Senate of Pakistan are held "under the Constitution" and the law;

(ii) It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681);

(iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission" under Part VIII, Chapter 1 of the Constitution;

(iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution;

(v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that "the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election";

(vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is "conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against".

The REFERENCE is answered accordingly.

Sd/-

CHIEF JUSTICE

Sd/- Sd/-

Mushir Alam Umar Ata Bandial

JUDGE JUDGE

Sd/- With utmost respect the opinion sought being

Ijaz ul Ahsan not a question of law within the contemplation

JUDGE of Article 186 of the Constitution is returned unanswered.

Sd/-

Yahya Afridi

JUDGE

YAHYA AFRIDI, J.---For the reasons to be recorded later, with utmost respect, the opinion sought by the Worthy President, Islamic Republic of Pakistan in the instant Reference, is not a question of law within the contemplation of Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, accordingly, the same is returned unanswered.

Sd/-

Yahya Afridi

JUDGE

OPINION OF THE COURT

For the detailed opinion to be recorded later, by majority of 4 against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is answered as follows:

(i) The Elections to the Senate of Pakistan are held "under the Constitution" and the law;

(ii) It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681);

(iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission" under Part VIII, Chapter 1 of the Constitution;

(iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution;

(v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that "the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election";

(vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is "conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against".

Sd/-

Gulzar Ahmed C.J.

Sd/- Sd/-

P L D 2021 Supreme Court 488

Present: Manzoor Ahmad Malik, Sardar Tariq Masood, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

Civil Review Petition No. 420 of 2016 in Civil Petition No. 2990 of 2016

(To review the judgment dated 27.09.2016 passed by this Court in C.P. No. 2990 of 2016)

Civil Review Petition No. 424 of 2016 in Civil Petition No. 2990 of 2016

(To review the judgment dated 27.09.2016 passed by this Court in C.P. No. 2990 of 2016)

Criminal Review Petition No. 170 of 2016 in Criminal Appeal No. 619 of 2009

(To review the judgment of this Court dated 19.10.2015 passed by this Court in Criminal Appeal No. 619 of 2009)

Human Rights Case No. 16514-P of 2018

(Matter regarding treatment of condemned prisoner, Kaneezan Bibi confined in Central Jail, Lahore)

Constitution Petition No. 09 of 2019

(Regarding suspension of death sentence of condemned prisoner Ghulam Abbas on the ground of mental illness)

Mst. SAFIA BANO and another---Petitioners

Versus

HOME DEPARTMENT GOVERNMENT OF PUNJAB through Secretary and others---Respondents

Civil Review Petitions Nos. 420, 424 of 2016 in Civil Petition No. 2990 of 2016, Criminal Review Petition No.170 of 2016 in Criminal Appeal No. 619 of 2009, Human Rights Case No. 16514-P of 2018 and Constitution Petition No.9 of 2019, decided on 7th January, 2021.

(a) Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014)---

----Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Mental illness/disorder---Definition of terms 'mental illness' and 'mental disorder' as found in jurisdictions of the United Kingdom and India.

(b) Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014)---

----Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Penal Code (XLV of 1860), S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Prisons Rules, 1978, Chap. 18---International Classification of Diseases (ICD-11) [maintained by the Word Health Organization]---Mental illness/ disorder---Scope---Terms 'unsound mind', 'unsoundness of mind', 'lunatic' and 'insane' used in the Penal Code, 1860, the Criminal Procedure Code, 1898 and the Prisons Rules, 1978---Propriety---Terms "mental illness" or "mental disorder" were both used to refer to mental ailments and were defined by medical science---With the developing nature of medical science the scope of said terms may also evolve---Supreme Court observed that a limited definition of the terms "mental disorder" or "mental illness" should be avoided, and the Provincial Legislatures may, in order to better appreciate the evolving nature of medical science, consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognized mental and behavioural disorders as notified by World Health Organization (WHO) through its latest edition of 'International Classification of Diseases' (ICD); that the evolution of medical science and human rights had sensitized the society to stigmatic labels such as "unsound mind", "lunatic" and "insane", therefore, latest legislations all over the world did not use such terms---Supreme Court directed that the terms "unsoundness of mind" and "unsound mind" occurring in P.P.C., Cr.P.C. and the Prisons Rules, 1978 should be substituted with term "mental disorder" or "mental illness", and the term "lunatic", wherever it occurred, shall also be substituted appropriately.

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

----S. 84---Qanun-e-Shahadat (10 of 1984), Art. 121---Act of a person suffering mental illness/disorder---Mental condition of accused at the time of commission of offence---Scope and burden of proof---Within the contemplation of S.84, P.P.C., whenever the plea was raised regarding the state of mind of accused at the time of commission of offence, the onus would be on the defence (accused) to prove such a plea as contemplated in Art. 121 of the Qanun-e-Shahadat, 1984 (QSO)---Onus was on the accused to prove that when the alleged act was committed, he/she was suffering from a mental illness which made him/her incapable of knowing the nature of the act or that what he/she was doing was either wrong or contrary to law---Principles.

In the case of a special plea under section 84, P.P.C., the Courts should keep the following principles in view:-

(i) It was the basic duty of the prosecution to prove its case against the accused beyond reasonable doubt and the prosecution would not be absolved of this duty if the accused was unsuccessful in proving a plea raised on his/her behalf;

(ii) Where the accused raised any specific plea, permissible under the law, including a plea under section 84, P.P.C., the onus to prove such plea was on the accused. However, while proving such plea, the accused may get benefit from any material, oral or documentary, produced/relied upon by the prosecution.

Khizar Hayat v. The State 2006 SCMR 1755; The State v. Balahari Das Sutradhar PLD 1962 Dacca 467; Lal Khan v. The Crown PLD 1952 Lah. 502 and Gholam Yousaf v. The Crown PLD 1953 Lah. 213 ref.

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

----Ss. 464 & 465---Accused incapable of making his/her defence due to mental illness---Prima facie subjective view formed by the Trial Court---Medical opinion---Whether the Trial Court could form a prima facie subjective view regarding the incapability of the accused to make his/her defence without the opinion of the medical expert---Held, that the terms "reason to believe" and "appears to the Court" used in Ss.464 & 465, Cr.P.C., were to be interpreted as a prima facie tentative opinion of the Court, which was not a subjective view based on impressions but one which was based on an objective assessment of the material and information placed before the Court or already available on record in the police file and case file---While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanour of an accused person---Once the Court had formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it became obligatory upon the Court to embark upon conducting an inquiry to decide the issue of incapacity of the accused to face trial due to mental illness---Medical opinion was sine qua non in such an inquiry.

Whenever the trial Court was put to notice, either by express claim made on behalf of the accused or through Court's own observations, regarding the issue of incapability of accused to understand the proceedings of trial and to make his/her defence, the same shall be taken seriously while keeping in mind the importance of procedural fairness and due process guaranteed under the Constitution and the law.

Terms "reason to believe" and "appears to the Court" used in sections 464 and 465, Cr.P.C. were synonymous and referred to a tentative opinion which had to be formed for the purpose of deciding whether or not to enquire into the issue of capability of the accused to face trial as a question of fact. The terms "reason to believe" and "appears to the Court" were to be interpreted as a prima facie tentative opinion of the Court, which was not a subjective view based on impressions but one which was based on an objective assessment of the material and information placed before the Court or already available on record in the police file and case file. While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanour of an accused person. Failure of the parties to raise such a claim, during trial, did not debar the Court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial. In such a situation, the Court may rely on its own observations regarding the demeanor and conduct of the accused either before or at the time of taking a plea against the charge or at any later stage. The Court may take note whether he/she was being represented by Counsel or not and consider the material (if any) available on record which may persuade it to enquire into the capability of the accused to face trial. The Court may assess the mental health condition of an accused by asking him/her questions such as why he/she was attending the Court; whether he/she was able to understand the proceedings which were being conducted (trial); whether he/she was able to understand the role of people who were a part of the trial; the basic procedure may be explained to him/her to assess whether he/she was able to understand such procedure and whether he/she was able to retain information imparted to him/her; whether the accused was able to understand the act committed by him/her and what the witnesses were deposing about his/her act; and whether he/she was able to understand the evidence being produced by the prosecution against him/her. However a prima facie tentative opinion could not be formed by the Court only on the basis of such questions posed to the accused. The Court was required to objectively consider all the material available before it, including the material placed/relied upon by the prosecution.

Ata Muhammad v. The State PLD 1960 (W.P.) Lah. 111; Sher Afzal v. The State PLD 1960 (W.P.) Pesh. 66; Abdul Hamid v. The State PLD 1962 (W.P.) Quetta 111; Munshi Khan v. The State 1982 PCr.LJ 778; Abdul Wahid alias Wahdi v. The State 1994 SCMR 1517; Fauqual Bashar v. The State 1997 SCMR 239; Sirajuddin v. Afzal Khan and another PLD 1997 SC 847; Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 and Moulvi Fazlul Qader Choudhury v. Crown PLD 1952 FC 19 ref.

Once the Court had formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it became obligatory upon the Court to embark upon conducting an inquiry to decide the issue of incapacity of the accused to face trial due to mental illness. Medical opinion was sine qua non in such an inquiry. For this purpose, the Court must get the accused examined by a Medical Board, to be notified by the Provincial Government, consisting of qualified medical experts in the field of mental health, to examine the accused person and opine whether accused was capable or otherwise to understand the proceedings of trial and make his/her defence. The report/opinion of the Medical Board must not be a mere diagnosis of a mental illness or absence thereof. It must be a detailed and structured report with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and insight. The head of the Medical Board shall then be examined as Court witness and such examination shall be reduced in writing. Both the prosecution and defence should be given an opportunity to cross examine him in support of their respective stance. Thereafter, if the accused wished to adduce any evidence in support of his/her claim, then he/she should be allowed to produce such evidence, including expert opinion with the prosecution given an opportunity to cross examine. Similarly, the prosecution may also be allowed to produce evidence which it deemed relevant to this preliminary issue with opportunity given to the defence to cross examine. It was upon the consideration of this evidence procured and adduced before the Court that a finding on this question of fact i.e. the capability of the accused to face trial within the contemplation of sections 464 and 465, Cr.P.C. shall be recorded by the Court.

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

----Chap. XXXIV---Prisons Rules, 1978, Chap. 18---Act of a person suffering mental illness/disorder---Words "Civil Surgeon" and "medical officer" used in Chapter XXXIV, Cr.P.C. and the Prisons Rules, 1978---Supreme Court directed that said words should be substituted by the relevant Legislatures with "Medical Board", and that the Medical Board shall comprise of qualified and experienced psychologists and psychiatrists.

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

----S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014), Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Prisons Rules, 1978, Rr. 107 & 362---Mentally ill prisoner on death row---Whether such prisoner should be executed---Held, that if a condemned prisoner, due to mental illness, was found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence would not meet the ends of justice---However, not every mental illness shall automatically qualify for an exemption from carrying out the death sentence---Such exemption would be applicable only in that case where a Medical Board consisting of mental health professionals, certified after a thorough examination and evaluation that the condemned prisoner no longer had the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to him/her---To determine whether a condemned prisoner suffered from such a mental illness, the Supreme Court directed the Federal Government (for Islamabad Capital Territory) and each Provincial Government to constitute and notify, a Medical Board comprising of qualified psychiatrists and psychologists from public sector hospitals.

Ford v. Wainwright 477 U. S. 399 (1986); Pannetti v. Quarterman 551 U.S 930. (2007); Madison v. Alabama 586 U.S. ____(2019); Shatrughan Chauhan and another v. Union of India and others (2014) 3 SCC 1 and 'X' v. State of Maharashtra (2019) 7 SCC 1 ref.

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

----Ss. 84 & 302(b)---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Qatl-i-amd---Reappraisal of evidence---Mentally ill prisoner on death row suffering from chronic schizophrenia (insanity)---Sentence, reduction in---Conversion of death sentence to imprisonment for life---To ascertain the mental health condition of the accused the Trial Court merely relied upon its own observation and after asking a few questions formed a subjective view on the matter without having recourse to the material annexed with the application filed on behalf of accused or any argument advanced by his counsel in support of his contentions and grounds raised in the application filed under S.465, Cr.P.C.---Issue of mental illness of accused was not appreciated in terms of S.465 of Cr.P.C. either before the Trial Court, or the High Court, or before the Supreme Court---Furthermore after the original counsel for the accused failed to appear before the High Court at the time of hearing of his criminal appeal along with Murder Reference, the High Court appointed some other counsel on his behalf to represent him in a rather hasty manner and he was asked to argue the case on the next day---Such hasty approach could not be appreciated because it was a matter of life and death for the accused---Medical Board was constituted to report about the mental health condition of the condemned prisoner, and said Board opined that the accused was suffering from chronic schizophrenia (insanity), and that considering the present mental state of accused, it was likely that the illness had already started at the time of the commission of the crime, and he might have committed murder under the delusional belief of persecutions (insanity)---In such circumstances the conviction of accused under S.302(b), P.P.C. was maintained, however, his sentence of death was converted into imprisonment for life---Appeal was partly allowed.

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

----Ss. 84 & 302(b)---Qatl-i-amd---Reappraisal of evidence---Mentally ill prisoner on death row suffering from chronic schizophrenia (insanity)---Sentence, reduction in---Conversion of death sentence to imprisonment for life---Legitimate expectancy of life, principle of---Scope---Accused was behind bars for the last about 20 years and had served out substantive part of alternative sentence provided under S.302(b), P.P.C. i.e. imprisonment for life---Secondly the motive set up by the prosecution was disbelieved by the Trial Court after assigning valid and convincing reasons---On the principle of legitimate expectancy of life, the accused was entitled to conversion of death sentence to that of imprisonment for life---Conviction of accused under S.302(b), P.P.C. was maintained, however, his sentence of death was converted into imprisonment for life---Appeal was partly allowed with the Supreme Court holding that its observations in the judgment reported as Mst. Safia Bano v. Home Department, Government of Punjab and others (PLD 2017 SC 18) were not relevant anymore and were of no legal effect---Supreme Court directed the Provincial Government to immediately shift the accused from prison to Punjab Institute of Mental Health, for treatment and rehabilitation in accordance with provisions of Prisons Rules, 1978; that on the completion of his sentence, he shall be examined afresh by the Medical Board required to be notified by the Provincial Government, and that he shall be released from the hospital as and when the said Medical Board opined that he was fit for himself and for the society.

Sikandar Hayat and another v. The State and others PLD 2020 SC 559 ref.

PLD 2017 SC 18 held to be not relevant anymore and of no legal effect.

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

----Ss. 84, 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Mentally ill prisoner on death row suffering from severe lifelong schizophrenia---Sentence, reduction in---Conversion of death sentence to imprisonment for life---Legitimate expectancy of life, principle of---Scope---Medical Board constituted for the purpose of examining the accused opined in its report that she suffered from Alogia (no speech), Avolition (lack of motivation), Anhedonia (complete lack of interest), Apathy (no emotional response, lack of spontaneity), lack of prompt verbal, emotional and physical action, slowness, negativism, self-muttering (talking to herself in very low voice) and withdrawn emotionally (isolated from environment); that she had severe lifelong mental illness "schizophrenia" and would need lifelong psychiatric treatment---Furthermore case record showed that the accused was behind bars for the last about 32 years meaning thereby that she has served out more than the alternate sentence provided under S.302(b), P.P.C. i.e. imprisonment for life---On such score, it was a fit case where principle of legitimate expectancy of life could be invoked---Conviction of accused under Ss.302(b)/34, P.P.C. on six counts was maintained, however, her sentence of death on six counts was converted into imprisonment for life on six counts---Supreme Court directed the Provincial Government to immediately shift the accused from prison to Punjab Institute of Mental Health for treatment and rehabilitation in accordance with provisions of Prisons Rules, 1978; that on the completion of her sentence, she shall be examined afresh by the Medical Board required to be notified by the Provincial Government, and that she shall be released from the hospital as and when the said Medical Board opined that she was fit for herself and for the society.

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

----Ss. 84, 302(b), 324 & 449---Constitution of Pakistan, Art. 45---Prisons Rules, 1978, Rr. 101, 104 & 107---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass in order to commit offence punishable with death---Reappraisal of evidence---Mentally ill prisoner on death row having cognitive/intellectual impairment---Fresh mercy petition before the President, filing of---Accused had exhausted all the remedies available to him under the law, however, the plea taken by him that he was suffering from mental illness was endorsed by the report of the Medical Board constituted by the Supreme Court---Though, it had come on record that a mercy petition filed by the accused was rejected by the President yet there was nothing on record to show whether the ground of mental illness was taken into consideration while dismissing the mercy petition---Supreme Court directed that the concerned Jail Superintendent shall ensure that a fresh mercy petition was filed on behalf of the accused; that the mercy petition was prepared in accordance with relevant Prisons Rules, 1978 and submitted to the President mentioning therein the plea of mental illness taken by the accused along with copies of his entire medical history/record, copies of report of Medical Board constituted by the Supreme Court and a copy of present judgment, and that till disposal of the mercy petition, the accused shall be immediately shifted to Punjab Institute of Mental Health in accordance with provisions of Prisons Rules, 1978 for his treatment and rehabilitation---Constitution petition was disposed of.

Moinuddin and others v. The State and others PLD 2019 SC 749 ref.

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

----S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Prisons Rules, 1978, Chap. 18---Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014), Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Mentally ill prisoners under trial or on death row---Directions issued by the Supreme Court with respect to establishment of secure Mental Health Facilities, constitution of Medical Boards for examination and evaluation of prisoners, launch of training programs on forensic mental health assessment, and courses for Trial Court judges, prosecutors, lawyers and court staff on mental illness.

Following are the directions issued by the Supreme Court with respect to establishment of secure Mental Health Facilities, constitution of Medical Boards for examination and evaluation of prisoners, launch of training programs on forensic mental health assessment, and courses for trial Court judges, prosecutors, lawyers and court staff on mental illness:

(i) The Prisons Rules, 1978 shall be appropriately amended so as to bring the Jail Manuals of all the Provinces in harmony;

(ii) The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately establish/create High Security Forensic Mental Health Facilities in the teaching and training institutions of mental health for assessment, treatment and rehabilitation of under trial prisoners and convicts who had developed mental ailments during their incarceration;

(iii) The Federal Government (for Islamabad Capital Territory) and each Provincial Government, shall immediately constitute and notify a Medical Board comprising of three qualified and experienced Psychiatrists and two Psychologists from public sector hospitals for examination and evaluation of the condemned prisoners who were on death row and were suffering from mental illness to ensure that such mentally ill condemned prisoners who no longer had the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to them were not executed;

(iv) The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately constitute and notify a Medical Board consisting of two qualified and experienced Psychiatrists and one Psychologist from public sector hospitals at Islamabad (in case of Federal Government) and at each Divisional Headquarter of the Provinces for examination, assessment and rehabilitation of the prisoners i.e. under-trial and convicts, if referred by the jail authorities. The said Medical Board shall also be authorized to examine those accused persons who were referred by the trial Court(s) for examination under the provisions of sections 464 and 465, Cr.P.C.;

(v) The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately launch training programs and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel;

(vi) The Federal Judicial Academy, Islamabad and all the Provincial Judicial Academies shall also arrange courses for trial Court judges, prosecutors, lawyers and court staff on mental illness including forensic mental health assessment.

For the Petitioner(s)

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court assisted by Ms. Zainab Mahboob, Barrister Hashim, Barrister Syeda Jugnoo Kazim and Maria Kazmi (in C.R.P. No. 420 of 2016 and H.R.C. No. 16514-P of 2018).

Qasim Ali Chohan, Addl. AG Punjab (in C.R.P. No. 424 of 2016).

Ch. Muhammad Sarwar Sidhu, Addl. PG, Dr. Faria Munawar, WMO (Adyala Jail, Rawalpindi).

Zahid Bhatti, Assistant Superintendent Jail, DIG Prisons Office Rawalpindi Region and Tahir Shah, Dy. Superintendent. (in Crl. R.P. No. 170 of 2016).

For the Complainant:

Sanaullah Zahid, Advocate Supreme Court (in Crl.R.Ps Nos. 420 and 424 of 2016).

On Court's Notice:

For the Federation:

Sajid Ilyas Bhatti, Addl. AGP.

For the Province of Punjab:

Qasim Ali Chohan, Addl. AG Punjab.

For the Province of Sindh:

Solat Rizvi, Addl. AG Sindh.

For the Province of KPK:

Shumail Ahmad Butt, AG, KPK, Atif Ali Khan, Addl. AG KPK and Zahid Yousaf Qureshi, Addl. AG KPK.

For Province of Balochistan:

Arbab Muhammad Tahir, AG Balochistan and Ayaz Muhammad Swati, Addl. AG Balochistan.

For Islamabad:

Niaz Ullah Niazi, AG, Islamabad.

Amici Curiae:

Brigadier (Retd.) Professor, Mowadat Hussain Rana, Professor of Psychiatry and Barrister Haider Rasul Mirza, Advocate Supreme Court.

P L D 2021 Supreme Court 538

Present: Qazi Faez Isa and Yahya Afridi, JJ

Sheikh MUHAMMAD MUNEER---Petitioner

Versus

Mst. FEEZAN---Respondent

Civil Petition No. 962 of 2016, decided on 25th February, 2021.

(Against the order dated 11.01.2016 passed by the Lahore High Court, Lahore in Regular Second Appeal No. 104 of 2010).

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

----Ss. 3 & 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Agreement to sell immoveable property---Proof and burden of proof---Where the purported seller denied the execution of the agreement and denied agreeing to sell his/her immoveable property, the said agreement was required to be proved by the party relying on the same as mandated by Art.79 of the Qanun-e-Shahadat, 1984.

2008 SCMR 1639 and PLD 2003 Supreme Court 31, para 9, p. 35-36 ref.

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

----Ss. 3 & 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Agreement to sell immoveable property---Proof---Scribe of the agreement as an attesting witness to its execution---Permissibility---Scribe may be an attesting witness provided the agreement itself mentioned/nominated him as such---Where the scribe was not shown or described as a witness in the agreement, he could not be categorised as an attesting witness.

PLD 2011 SC 241 ref.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 17(1) & 17(2)(a)---Agreement to sell immoveable property---Proof---Competence and number of witnesses---Scope---In the present case, the purported agreement to sell was with a lady (purported seller) and under the agreement a certain amount was stated to have already been paid and the remainder was to be paid in the future and she was supposed to convey and deliver possession of her house to the petitioner (purported purchaser) upon receipt of the balance payment---Subject agreement was thus in respect of 'matters pertaining to financial or future obligations' in terms of Art.17(2)(a) of the Qanun-e-Shahadat, 1984 and required that such an agreement to be attested 'by two men, or one man and two women, so that one may remind the other'---However, only one attesting witness was produced by the petitioner in the present case---For proving a document Art.17(1) of the Qanun-e-Shahadat stated that, 'The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah'---Holy Qur'an required that the number of witnesses should be not less than two men or a man and two women (so that the one may remind the other if she forgets)---However, in the present case, only one attesting witness was produced, therefore, compliance was also not made with Art.17(1) and (2) of the Qanun-e-Shahadat, 1984 and with the Injunctions of Islam---When the respondent lady denied having entered into the subject agreement which the petitioner, an attesting witness and the scribe testified that she had, her solitary testimony was to be accepted because this was what the law and the injunctions of the Holy Qur'an mandated---Courts below correctly dismissed the petitioner's suit as the petitioner had failed to establish that the subject agreement had been executed by the respondent lady and/or that she had agreed to sell her house to the petitioner---Petition for leave to appeal was dismissed and leave was refused.

Verse 282 of the second chapter, Al-Baqarah, of the Holy Qur'an; An -Nisa (4) verse 32; An -Nisa (4) verses 24 and 25, Al-Maidah (5) verse 5 and Al -Mumtahanah (60) verse 10.; Al-Baqarah (2) verse 240 and Al-Baqarah (2) verse 282 ref.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art. 79---Agreement to sell immoveable property---Proof---Attesting witnesses---Scope---One of the attesting witnesses to the agreement was the purported seller's husband, who was not summoned as a witness by the purported purchaser as he apprehended that said witness would deny witnessing his wife sign the agreement---Held, that merely because a witness was related to either party did not mean he/she stopped being a witness nor that he/she should not be produced/summoned as a witness---Muslims had a religious duty to come forward to testify when called upon to do so---Attesting witness remained a witness irrespective of his or her relationship to the parties to an agreement---If a witness did not agree to testify he/she could be summoned through the court. In the present case, two attesting witnesses to the agreement were not produced nor compelled to give evidence by being summoned through the court---Courts below correctly dismissed the petitioner's suit as the petitioner had failed to establish that the subject agreement had been executed by the respondent lady and/or that she had agreed to sell her house to the petitioner---Petition for leave to appeal was dismissed and leave was refused.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 80---Agreement to sell immoveable property---Proof---Attesting witnesses not traceable---Scope---Petitioner (purported purchaser) claimed that he did not produce one of the attesting witnesses to the agreement as the said witness could not be found---Held, that burden to produce or summon said witness lay upon the petitioner, which was not alleviated merely by saying he could not be found---Article 80 of Qanun-e-Shahadat, 1984 provided that it must be proved that such a witness had either died or could not be found---Simply alleging that a witness could not be found did not assuage the burden to locate and produce him---Petitioner did not lead evidence either to establish said witness's death or disappearance, let alone seek permission to lead secondary evidence---Courts below correctly dismissed the petitioner's suit as the petitioner had failed to establish that the subject agreement had been executed by the respondent lady and/or that she had agreed to sell her house to the petitioner---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Munir Piracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Nemo for Respondent.

P L D 2021 Supreme Court 550

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

ATIF ZAREEF and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.251 of 2020 and Criminal Petition No.667 of 2020, decided on 4th January, 2021.

(Against the judgment of Lahore High Court, Rawalpindi Bench, dated 09.06.2016, passed in Criminal Appeal No.393 of 2013, and Capital Sentence Reference No.14-T/2013 and against the Order dated 09.06.2020 of that Court declining suspension of sentence in Criminal Miscellaneous No. 822/M of 2020.)

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

----S. 376(2)---Gang rape---Reappraisal of evidence---Complainant/ victim while appearing before the trial court deposed each and every detail of the gruesome act committed on her, and her testimony could not be shaken as to any material part of the occurrence stated by her---Suggestions in cross-examination relating to her alleged immoral character were strongly denied by her, and in any case, the questions targeting her character had no relevance to the matter on trial, i.e., the commission of rape on her---Complainant being an educated lady, had no reason to falsely implicate the accused persons, and that too with a such self-deprecating allegation that would tarnish her honour and dignity---Prosecution witness, with whom the complainant was travelling, at the time of the incident deposed how he and the complainant, were interrupted by the accused persons and how the complainant was taken away by them on the day of occurrence---Said statement, fully corroborated the version of the complainant as to her forcible taking away by the accused persons---Testimony of the complainant as to commission of rape on her on the day of occurrence was supported by the medical evidence, i.e., the medico-legal report and the statement of the doctor who examined the complainant---Potency test of the accused persons was also positive, and their involvement in commission of the offence was corroborated by the DNA test report---Prosecution had thus proved its case against the accused persons beyond reasonable doubt---Convictions recorded against the accused persons were upheld, and their sentences of imprisonment for life, as modified by the High Court, were also maintained---Appeal to the extent of accused persons was dismissed.

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

----S. 376---Rape---Reappraisal of evidence---Testimony of victim---Sufficient for conviction---Rape was a crime that was usually committed in private, and there was hardly any witness to provide direct evidence of having seen the commission of crime by the accused person---Courts, therefore, did not insist upon producing direct evidence to corroborate the testimony of the victim if the same was found to be confidence inspiring in the overall particular facts and circumstances of a case, and considered such a testimony of the victim sufficient for conviction of the accused person---Rape victim stood on a higher pedestal than an injured witness, for an injured witness got the injury on the physical form while the rape victim suffered psychologically and emotionally.

State of U.P. v. Munshi AIR 2009 SC 370 ref.

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

----S. 376---Rape---Reappraisal of evidence---DNA test report---Evidentiary value---DNA test report due to its scientific accuracy and conclusiveness, was considered as a gold standard to establish the identity of an accused and a very strong corroborative piece of evidence.

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

----S. 376(2)---Gang rape---Reappraisal of evidence---Benefit of doubt---Possibility of mistaken identification---Accused was not nominated by the complainant/victim in the FIR, nor was there any explanation given in the supplementary statement of complainant, wherein he was nominated, as to how the complainant came to know that he was that unknown person who had committed rape on her with other persons---Such gap in the prosecution evidence cast a reasonable doubt about his involvement in the occurrence especially when it was appreciated in view of his negative DNA test report---Possibility of mistaken identification of the unknown person, as being the accused, could not be ruled out---Prosecution thus could not prove its case against the accused beyond reasonable doubt---Appeal was accepted to the extent of accused, his conviction and sentence were set-aside, and he was acquitted of the charge by extending him the benefit of doubt.

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

----S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape---Sexual history/character of rape victim---Relevancy---"Two-finger test" (TFT) or "virginity test"---Constitutionality and legality---In rape cases sexual history/character of rape victim was not relevant and it could not be used to discredit the victim's credibility---Furthermore the two-finger test" (TFT) or "virginity test" had no scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape---Reporting sexual history of a rape survivor amounted to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Art. 14 of the Constitution---Principles relating to relevance of sexual history of rape victim and constitutionality of two-finger test" (TFT) or "virginity test" stated.

Modern forensic science showed that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus had no bearing on a case of sexual violence. The status of hymen was also irrelevant because hymen could be torn due to several reasons such as cycling, riding among other things. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that were relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., were to be documented. The medical officers instead of burdening themselves with reporting about the sexual history of the victim must ensure, in a case of sexual offence of rape to examine the external genital area for evidence of injury, seminal stains and stray pubic hair.

Modi's Textbook of Medical Jurisprudence and Toxicology, 26th Edition. Lexis Nexis publications. P.766. ref.

Due to a combination of lack of training, inexperience the medico-legal certificate's (MLC) casually report the two finger test, to show that the vagina could admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a "virgin" as perceived by the society. Neither of these tests had any basis in medical science. Medical language of 'MLC' was riddled with gender biases and immediately called into question the character of the rape survivor. It was used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. Examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity.

Dragging sexual history of the rape survivor into the case by making observations about her body including observations like "the vagina admits two fingers easily" or "old ruptured hymen" was an affront to the reputation and honour of the rape survivor and violated Article 4(2)(a) of the Constitution, which mandated that no action detrimental to the body and reputation of person shall be taken except in accordance with law. Similarly, Article 14 of the Constitution mandated that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution.

A woman, whatever her sexual character or reputation may be, was entitled to equal protection of law. No one had the license to invade her person or violate her privacy on the ground of her alleged immoral character. Even if the victim of rape was accustomed to sexual intercourse, it was not determinative in a rape case; the real fact-in-issue was whether or not the accused committed rape on her. If the victim had lost her virginity earlier, it did not give to anyone the right to rape her.

Shakeel v. State PLD 2010 SC 47; Shahzad v. State 2002 SCMR 1009 and State of U.P. v. Munshi AIR 2009 SC 370 ref.

Evidence relating to sexual history should not be admitted in order to draw inferences supporting the 'twin myths', namely, that by reason of that sexual history, it was more likely that the complainant may have consented or become less worthy of belief.

PLD 2009 FSC 65 ref.

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

----S. 376---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape cases---Use of expressions, like "habituated to sex", "woman of easy virtue", "woman of loose moral character", and "non-virgin", for alleged rape victims in court judgments---Supreme Court observed that such intrusive and inappropriate expressions should be discontinued by the courts, even if they found that the charge of rape was not proved against the accused, and that such expressions were unconstitutional and illegal. (g) Penal Code (XLV of 1860)---

----S. 376---Qanun-e-Shahadat (10 of 1984), Arts. 146 & 151(4)[since omitted]---Punjab Witness Protection Act (XXI of 2018), S. 12(3)---Constitution of Pakistan, Arts. 4(2)(a) & 14(1)---Rape---Prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged "general immoral character" for the purpose of impeaching her credibility---Scope---Omission of Art.151(4) of the Qanun-e-Shahadat, 1984 ('the QSO') by the Legislature left no doubt in discovering and ascertaining the intention of the Legislature that in a rape case the accused could not be allowed to question the complainant about her alleged "general immoral character---However, the omission of Art. 151(4) of the Qanun-e-Shahadat, 1984, implied prohibition on questions put in cross-examination or the defence evidence led as to the reputation of the complainant to show her as of "generally immoral character", and not on the questions put or defence evidence led to prove that some other person, and not the accused, was perpetrator and source of semen or injury found on the body of the complainant; nor did that omission completely shun the admissibility of questions in cross-examination or defence evidence, on the previous sexual relation of the complainant with the accused when the accused took the defence, and intended to prove, that the complainant consented to the sexual activity that was an issue in the case---Section 12(3) of the Punjab Witness Protection Act, 2018 codified such position when it obligated the court to forbid a question to the victim of a sexual offence relating to any sexual behavior of the victim on any previous occasion with the accused or any other person, but also empowered the court to allow such a question if, in the court's opinion, it was a relevant fact in the case---To the same effect were the provisions of Art. 146 of the Qanun-e-Shahadat, 1984, under which the court may forbid such questions if it found that they were 'indecent' or 'scandalous', but could allow them if they related to facts-in-issue or to matters necessary to be known in order to determine whether or not the facts-in-issue existed---However, while allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant's rights to dignity and privacy, to keep the scales of justice even for both.

Section 276(1) of the Canadian Criminal Code ref.

Sardar Abdul Raziq Khan, Advocate Supreme Court for Appellants/Petitioners (in both cases).

Mirza Abid Majeed, DPG for the State.

P L D 2021 Supreme Court 564

Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUNAWAR AHMED, CHIEF EDITOR DAILY SAMA and another---Petitioners

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Petition No. 2580 of 2020, decided on 5th January, 2021.

(Against the judgment dated 15.9.2020 passed by the Islamabad High Court in F.A.O. No. 113 of 2016)).

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

----Ss. 3 & 9---Defamatory news article---Damages, quantum of---Damages for 'bodily injury' and 'injury to career'---Proof---Plaintiff had undeniably proved that the defamation had occurred but the Court below had not independently applied its discretion in ascertaining damages---Courts below, in a mechanical fashion and without applying their judicial mind to assess the quantum of damages proceeded to decree the suit as prayed for---Plaintiff under the law was entitled not only to minimum damages in the sum of Rs.300,000/- but also an apology in the similar manner and with the same prominence as the defamatory statement was published---Supreme Court modified the decree and awarded monetary compensation of Rs.300,000/- to the plaintiff with the direction that the same shall be recovered jointly and severally from the defendants.

In the present case, the plaintiff, by producing unrebutted documentary as well as oral evidence had fully proved that the publication released by the defendants/petitioners was defamatory and on account of such defamatory publication, the plaintiff suffered mental torture and inconvenience. However, it was not justified for the Courts to pass a decree for the amount which the plaintiff desired.

Courts below, in a mechanical fashion and without applying their judicial mind to assess the quantum of damages in accordance with the evidence brought on record by the plaintiff and the principles settled by the Supreme Court, proceeded to decree the suit as prayed for. Plaintiff/respondent was asked to show from the evidence that he had suffered any bodily injury for which he had claimed damages in the sum of Rs.5 million and likewise to further show from the record as to what injury to his career was caused by such defamatory statement for which again a further sum of Rs.5 million had been claimed. However, the plaintiff was not able to demonstrate from the record that he had adduced any evidence to prove special damages allegedly sustained on account of "bodily injury" or "injury to his career".

Plaintiff totally failed to adduce any evidence, either oral or documentary, in support of his claim that he had actually sustained bodily injury or any set back to his career, therefore, the hefty special damages granted without application of judicial mind could not be sustained. Notwithstanding the fact that the plaintiff was entitled to an ex parte decree but such decree could not be sustained, as it was passed without application of mind and was violative of the basic principles of exercising judicial powers.

Plaintiff had proved that the defendants being originators had published an article which of course was defamatory and had caused inconvenience and mental torture/agony to the respondent and, therefore, the plaintiff under the law was entitled not only to minimum damages in the sum of Rs.300,000/- but also an apology in the similar manner and with the same prominence as the defamatory statement was published in terms of section 9 of the Defamation Ordinance, 2002. In the circumstances, instead of remanding the matter, the Supreme Court modified the decree and awarded monetary compensation of Rs.300,000/- to the plaintiff with the direction that the same shall be recovered jointly and severally from the defendants. Petition for leave to appeal was converted into appeal and was allowed partially in the said terms.

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

----S. 9---Special damages, award of---Scope---Special damages were defined as the actual but not necessarily the result of the injury complained of---While awarding special damages, it was to be kept in mind that the person claiming special damages had to prove each item of loss with reference to the evidence brought on record; this may also include out-of-pocket expenses and loss of earnings incurred down to the date of trial, and was generally capable of substantially exact calculation.

Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 and Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 PLC (C.S.) 574 ref.

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

----O. IX, R.6(1)(a)---Ex-parte decree against the defendants---Scope---Even in case where the defendants were declared ex parte, though the Courts were empowered to pass ex-parte decree, but such discretionary power must be exercised judicially---In cases where the defendants were declared ex-parte, Courts were not supposed to only pass ex-parte decree in favour of the plaintiff by assessing his claim in toto, but were saddled with the duty to examine the worth/credence of each piece/item of plaintiff's claim before accepting or rejecting it.

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

----S. 9---General damages, award of---Scope---Mental torture---Burden of proof---General damages normally pertained to mental torture and agony sustained through derogatory/defamatory statements---Since there was no yardstick to gauge such damages in monetary terms, therefore, while assessing damages on account of such inconvenience, the Courts applied a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case to case basis---Once it was determined that a person had suffered mental shock and injury and was entitled to compensation on account of such defamatory statement, then the other important and more difficult question which arose was to weigh the quantum of damages for such loss caused to him by such wrongful act---Burden in such situation, like in all cases, was on the shoulder of the plaintiff to prove the magnitude of such suffering---But again since such suffering could not be converted or gauged in monetary terms and, therefore, the Court had to apply rule of thumb---Other aspect which needed to be kept in mind by the Courts while awarding general damages on account of mental torture/nervous shock was that damages for such suffering were purely compensatory to vindicate the honour or esteem of the sufferer, therefore such damages should not be exemplary or punitive as the sufferer should not be allowed to make profit of his reputation.

Bashir Khan, Advocate Supreme Court for Petitioners.

Afzal Malik, Advocate Supreme Court for Respondent No.1.

P L D 2021 Supreme Court 571

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Mian IRFAN BASHIR---Petitioner

Versus

The DEPUTY COMMISSIONER (D.C.), LAHORE and others---Respondents

C. P. No. 446-L of 2019, decided on 27th January, 2021.

(On appeal from the order of Lahore High Court, Lahore dated 24.01.2019, passed in I.C.A. No.4343 of 2019).

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court did not enjoy suo motu jurisdiction under Art. 199 of the Constitution.

There must exist a dispute before the High Court before it exercises judicial power. "On the application of an aggrieved party" was an essential pre-requisite to invoke the constitutional jurisdiction of the High Court under Article 199 of the Constitution. There must be an application and an applicant to invoke the jurisdiction of judicial review as the High Court did not enjoy suo motu jurisdiction under Article 199 of the Constitution.

Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 and Jehanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414 ref.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 89-A---Constitution of Pakistan, Arts. 9, 18 & 199---Constitutional jurisdiction of the High Court---Scope---Suo motu exercise of judicial power under Art. 199 of the Constitution was not available to the High Court---Where the High Court issued directions in its constitutional jurisdiction with respect to an issue or dispute that was not before the Court, it would amount to judicial overreach.

A Traders Association, approached the constitutional jurisdiction of the High Court to challenge a notice issued by the Zonal Officer (Regulation) Metropolitan Corporation for the removal of signboards and advertisements from their shops within 24 hours. Single Bench of the High Court while dealing with this issue thought it best to also discuss and pass directions on to a totally different issue, which was not even before the Court, regarding wearing of helmets by motorcyclists plying their bikes on the Mall Road. Without there being any dispute before it, the Court examined the compliance by the motorcyclists of wearing helmets when plying their bikes on the Mall Road. The High Court exercising suo motu powers, passed directions to the effect that the petrol pumps shall not fill in the petrol tanks of the motorcyclists who did not wear helmets and in case any owner of the filling station was found to provide petrol to such motorcyclist, the petrol pump would be sealed and heavy fine would be imposed. Intra Court Appeal filed before the Division Bench of the High Court was dismissed and Order of the Single Bench was upheld.

In the instant case, the direction against the motorcyclists (who did not wear helmets) and the petrol pump owners was a suo motu exercise of judicial power not available to the High Court under the Constitution. There was no such lis or dispute before the High Court. The grievance agitated before the High Court was regarding the signboards and advertisements put up by the traders on the Mall Road and this matter was not even remotely connected to the motorcyclists, helmets or the purchase of petrol by them.

The use of helmets was provided under section 89-A of the Provincial Motor Vehicle Ordinance, 1965 which provided that no person shall drive or ride the pillion seat of a two-wheeled motor vehicle without wearing a crash helmet. While the requirement of wearing helmets by the motorcycle riders and those on the pillion seat was provided under the law, there was no legal backing for the impugned direction issued by the High Court. There was no law or executive policy supporting such a ban on sale and purchase of petrol by the petrol pump owners to the motorcyclists not wearing helmets. The impugned direction was above the law and had no legal legitimacy or sanctity. Such exercise of judicial power by a judge passed for judicial overreach i.e., exercise of judicial power without any backing of law and clearly interfering in and encroaching on the legislative and executive domain.

In the present case, the order passed by the single bench of the High Court had no law or executive policy behind it. It was a clear example of judicial legislation and thus judicial overreach. High Court was not vested with any such jurisdiction under the Constitution. Impugned direction by the High Court placing a ban on motorcyclists without a helmet to purchase petrol, lost sight of the fundamental rights guaranteed to the petrol pump owners and the motorcyclists under the Constitution. The impugned direction deprived the petrol pump owners of their business guaranteed under Article 18 of the Constitution and the motorcyclists of their right to mobility and right to livelihood guaranteed under Article 9 of the Constitution. The High Court, in its desire to make The Mall Road, an iconic thoroughfare, overstepped its jurisdiction, forgetting that a Judge was bound by the Constitution and the law.

Supreme Court set aside the impugned orders passed by the Single Bench as well as Division Bench of the High Court to the extent of the direction issued to the petrol pump owners of placing a ban on the sale of petrol to motorcyclists plying without a helmet, as the same were unconstitutional, illegal and without jurisdiction. Petition for leave to appeal was converted into appeal and allowed.

(c) Constitution of Pakistan---

----Arts. 184(3) & 199---'Judicial review', 'Judicial activism' and 'Judicial overreach'---Meaning and distinction.

Judicial review was the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions were consistent with the Constitution. Actions judged inconsistent were declared unconstitutional and, therefore, null and void. Judicial review was the genus and judicial activism or judicial restraint were its subspecies. While exercising judicial review, there came a point when the decision rested on judicial subjectivity; which was not the personal view of a judge but his judicial approach. One judge may accord greater significance to the need for change, while the other may accord greater significance to the need for certainty and status quo. Both types of judges acted within the zone of law; neither invalidated the decision of another branch of the Government unless it deviated from law and was unconstitutional.

Activist judges (or judicial activism) were less influenced by considerations of security, preserving the status quo, and the institutional constraints. On the other hand, self-restrained judges (or judicial restraint) gave significant weight to security, preserving the status quo and the institutional constraints. Both judicial activism and judicial self-restraint operated within the bounds of judicial legitimacy.

Aharon Barak, The Judge in a Democracy. Princeton. Chapter 15 ref.

It was one thing for a judge to progressively interpret the law because of human rights considerations about which he had substantial information. It was quite another to change or ignore the law for economic or social or political reasons based on polycentric considerations beyond the judge's expertise. Judicial power was never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law. When courts exercised power outside the Constitution and the law and encroached upon the domain of the Legislature or the Executive, the courts committed judicial overreach.

Christopher Wolfe, 'The Rehnquist Court and "Conservative Judicial Activism"' in Christopher Wolfe (ed), That Eminent Tribunal: judicial supremacy and the constitution (Princeton 2004) ref.

Judicial overreach was when the judiciary started interfering with the proper functioning of the legislative or executive organs of the government. This was totally uncharacteristic of the role of the judiciary envisaged under the Constitution and was most undesirable in a constitutional democracy. Judicial overreach was transgressive as it transformed the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the Government and disregarding the fine line of separation of powers, upon which was pillared the very construct of constitutional democracy. Such judicial leap in the dark was also known as "judicial adventurism" or "judicial imperialism." A judge was to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution. The role of a constitutional judge was different from that of a King, who was free to exert power and pass orders of his choice over his subjects. Having taken an oath to preserve, protect and defend the Constitution, a constitutional judge could not be forgetful of the fact that he himself, was first and foremost subject to the Constitution and the law. When judges uncontrollably treaded the path of judicial overreach, they lowered the public image of the judiciary and weakened the public trust reposed in the judicial institution. In doing so they violated their oath and turned a blind eye to their constitutional role. Constitutional democracy leaned heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. Judges by passing orders, which were not anchored in law and did not draw their legitimacy from the Constitution, unnerved the other branches of the Government and shook the very foundations of democracy.

Muqatadir Akhtar Shabbir, Advocate Supreme Court and Nasrullah Khan Babar, Advocate Supreme Court for Petitioner.

Ch. Zafar Hussain Ahmad, Addl. A.G. along with Mudassar Riaz Malik, D.C., Amir Shafiq, ADC (Headquarters), Hammad, CTO, Lahore and Sajid Sharif, Law Officer for Respondents.

P L D 2021 Supreme Court 579

Present: Mushir Alam and Syed Mansoor Ali Shah, JJ

Mst. KULSOOM RASHEED---Applicant

Versus

NOMAN ASLAM---Respondent

C.M.A. No. 284 of 2021, decided on 23rd February, 2021.

(For transfer of family suit from one Province to another).

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

----S. 25-A (2-B)---Transfer of case from one Province to another by the Supreme Court---Scope---Perusal of section 25-A (2-B) of the Family Courts Act, 1964 revealed that the Supreme Court may order the transfer of proceedings pending from one jurisdiction to another more particularly from one Province to another either at the motion of the parties or on its own motion without notice.

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

----S. 25-A(2-B)---Constitution of Pakistan, Art 10-A---Suit for recovery of maintenance and dowry articles---Transfer of execution proceedings from one Province to another---Suit filed by wife in the Family Court at city "I" was decreed ex-parte---Husband was resident of city "K" and the decree could not possibly be executed at "I"---Wife filed present application seeking transfer of the case from Family Court at "I" to the court of competent jurisdiction/ Family Court at "K" in terms of S.25-A (2-B) of the Family Courts Act, 1964---Held, that looking into the facts and circumstances of the present case, it would be cumbersome to issue notice to the husband, who was resident of "K"---Even otherwise it would burden the husband with heavy costs on travelling or contesting the matter at "I"---In order to protect the rights and interest of the parties and to ensure that right to fair trial as conferred by Art. 10-A of the Constitution was protected, the Supreme Court could always make an order of transfer and the transferee court may take further proceedings from where it was left by the Court from which matter was transferred, only after due service of notice on the respondent---Present matter in issue related to the execution of a decree passed in favour of the wife, therefore, in order to facilitate expeditious disposal, the execution proceedings, were ordered to be transferred from the Family Court/Guardian Judge at "I" to the District Judge (concerned) at "K" who was directed to assign the matter to the competent Family Court concerned for the purpose of the execution of the judgment and decree after due service on the husband---Application was disposed of.

Applicant in person.

Nemo for Respondent.

P L D 2021 Supreme Court 581

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Mst. SAMRANA NAWAZ and others---Appellants

Versus

M.C.B. BANK LTD. and others---Respondents

C. A. No. 17-L of 2019, C.P. 2646-L of 2018 and C.A. 364-L of 2020, decided on 16th March, 2021.

(Against the judgment dated 20.11.2018 passed in E.F.A. No.17 of 2012, judgment dated 20.11.2018 passed in E.F.A. No.620 of 2011 and judgment dated 03.02.2020 passed in E.F.A No.231782 of 2018 respectively by the Lahore High Court, Lahore).

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

----O.XXI, R. 90, Second Proviso---Second proviso to O.XXI R.90, C.P.C.---Interpretation and scope---Sale of mortgaged property---Judgment debtor objecting to sale---Question as to whether a 20% deposit of the auction price was obligatory for an objector without an order by the Banking Court requiring the same to be deposited in terms of second proviso to R. 90 of O.XXI, C.P.C.---Held, that the second proviso to O.XXI, R. 90, C.P.C. ('the second proviso') contemplated a prior direction of the court to deposit the sum or furnish the security for entailing penal consequences of dismissing the objection petition due to non-deposit of the amount or non-furnishing of the security, which was required to be deposited or furnished under the second proviso for entertaining the objection petition---Punitive action could be taken only when the applicant failed to comply with the direction of the court, and in absence of such direction the objection petition could not be dismissed for non-deposit of the 20% of the sum realised at sale---Expression "as the Court may direct" used in the second proviso left little room to speculate whether the applicant/objector was to deposit the 20% of the sale amount at the time of filing the objection petition or at a subsequent stage under direction of the court---Furthermore the expression "such amount not exceeding twenty percent" further strengthened the position that the amount required to be deposited by the applicant/objector was to be determined by the court which must not exceed twenty percent of the sale amount but could be less than that---Applicant could not anticipate what the direction of the court would be in such regard and, therefore, he cannot deposit the requisite amount at the time of filing the objection petition---Mandatory requirement of the second proviso appeared to become operative only once the court determined the "amount not exceeding twenty percent of the sum realised at the sale" and directed the applicant/objector to deposit the same---Supreme Court observed that said interpretation of the second proviso was, however, in contrast to the view expressed by a three-member Bench in the case of Habib and Company v. MCB (PLD 2020 SC 227), and according to established practice and procedure the present three member Bench was bound by the view in the said case; that since only a Bench larger than the present three member Bench could reconsider the question as to the interpretation of the second proviso, and revisit (if found necessary) the view expressed by the three member Bench in the case of Habib and Company v. MCB (PLD 2020 SC 227), therefore, office should place the matter before the Chief Justice for appropriate order.

Alhamdi Begum v. NBP PLD 1976 Kar. 723; Shafique Shah v. Irshad Begum 1981 CLC 369; Rukhsana v. Muhammad Ilyas 1993 CLC 1949; Ali Match Industries v. IDB 1999 MLD 2127; Niamat Ali v. Muhammad Imran PLD 2003 Lah. 42; Sultan Mahmood v. HBFC 2006 YLR 2776 and Khursheed v. Inam-Ur-Rehman PLD 2009 Lah. 552 and Hindusthan Commercial Bank v. Punnu Sahu AIR 1970 SC 1384 ref.

Wali Khan v. Manager, ADB PLD 2003 SC 500 distinguished.

Habib and Company v. MCB PLD 2020 SC 227 contrary to language of second proviso to O.XXI, R. 90, C.P.C, but binding upon the present Three Member Bench till it was revisited by a larger Bench.

(b) Precedent---

----Judgments of the Supreme Court---Binding precedent---Scope---Earlier judgment of a Bench of the Supreme Court was binding not only upon the Benches of smaller numeric strength but also upon the Benches of coequal strength; a Bench of co-equal strength could not deviate from the view held by an earlier Bench, and if a contrary view had to be taken, then the proper course was to request the Chief Justice (of the Supreme Court) for constitution of a larger Bench to reconsider the earlier view---Smaller Bench cannot request for the constitution of a larger Bench to revisit the opinion of a larger Bench on any question or principle of law; only a Bench of co-equal strength can make such a request---As a judgment of a larger Bench was binding on the smaller Benches, judicial discipline and propriety demanded that a two member Bench should follow decision of a three member Bench, and if a two member Bench concluded that an earlier judgment of a three member Bench was so incorrect that in no circumstances could it be followed, the proper course for it was to set out the reasons why it could not agree with the judgment of the three member Bench and to refer the matter to the Chief Justice for constitution of a three member Bench---If the three member Bench also came to the conclusion that the earlier judgment of a three member Bench was not correct, then the reference of the matter to a five member larger Bench was justified---Two member Bench cannot jump over a three member Bench and directly ask for constitution of a Bench larger than three member Bench, to review the principle of law declared by that Bench.

Ardeshir Cowasjee v. KMCA 1999 SCMR 2883; Ameer Zeb v. State PLD 2012 SC 380; Muhammad Saleem v. Fazal Ahmad 1997 SCMR 315; Babar Shehzad v. Said Akbar 1999 SCMR 2518; All Pakistan Newspapers Society v. Federation PLD 2004 SC 600; Ata Ullah v. Surraya Parveen 2006 SCMR 1637; Azhar Siddiqui v. Federation PLD 2012 SC 774; Charat Cement Co. v. Federation PLD 2021 SC 327 and Pradip Chandra v. Pramod Chandra AIR 2002 SC 296 ref.

Shahid Ikram Siddiqui, Advocate Supreme Court for Appellants/ Petitioners.

Umar Farooq, Advocate Supreme Court, Ashar Elahi, Advocate Supreme Court and Hafeez Saeed Akhtar, Advocate Supreme Court for Respondents.

P L D 2021 Supreme Court 595

Present: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

JUSTICE QAZI FAEZ ISA and others---Petitioners

Versus

The PRESIDENT OF PAKISTAN and others---Respondents

Civil Review Petitions Nos. 296 of 2020 along with Civil Misc. Application No. 1243 of 2021, Civil Review Petitions Nos.297 to 301 of 2020, C.M.A. No. 4533 of 2020 in C.R.P. No. Nil of 2020, Civil Review Petitions Nos. 308, 309 and 509 of 2020, decided on 13th April, 2021.

Per Umar Ata Bandial, J; Sajjad Ali Shah, Munib Akhtar, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Yahya Afridi, J agreeing with the majority with respect to dismissal of application but with his own reasons; Maqbool Baqar, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ dissenting.

Constitution of Pakistan---

----Arts. 19-A, 184(3), 186, 188, 191 & 209(5)(b)---Broadcasting or live streaming of court proceedings---Constitutionality and permissibility---Review petitions before the Supreme Court challenging the directions given to the tax authorities by the Supreme Court to conduct an inquiry into the foreign assets of petitioner judge's family members and submit a report to the Supreme Judicial Council despite quashing of Presidential reference against the petitioner-judge---Application filed by the petitioner-judge seeking live coverage of proceedings of his review petition---[Per Umar Ata Bandial, J (Majority view)]: Said application of petitioner-judge was dismissed, however, it was observed that the right of the people to have access to information in matters of public importance under Art. 19-A of the Constitution was recognized, the details and modalities of which were to be decided by the Full Court on the administrative side---[Per Yahya Afridi, J, agreeing with the majority with respect to dismissal of application but with his own reasons] Application of petitioner-judge merited dismissal as the relief sought by him would negate the very spirit of the oath taken by the petitioner-judge---His Lordship, however, observed that the right of the public to have access to live-streaming or audio-video recording, written transcript or any other medium, of the court hearings in the proceedings of public importance, including those under Arts. 184(3) & 186 of the Constitution, was their fundamental right under Art. 19A of the Constitution---His Lordship directed the Registrar of the Supreme Court to place the matter before the Full Court for appropriate steps as it deemed fit, under Art. 191 of the Constitution, to effectuate such fundamental right of the public---[Per Maqbool Baqar, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ (Minority view)] Art. 19-A of the Constitution created an obligation on State institutions, including the Judiciary, to take the necessary measures to ensure realization of the fundamental right of citizens to have access to information in matters of public importance---Cases under Art. 184(3) of the Constitution, including review petitions and other matters arising therein, were matters of public importance, and the public had a right to know and see how proceedings in these cases were conducted and concluded by the Court---Live Streaming (audio and video) of court hearings of such cases should be made available for information of the public through a link on the official website of the Supreme Court, and for such purpose the Registrar of the Supreme Court should take steps to provide for the requisite technological infrastructure and make arrangements for necessary amendments in the Rules under Art. 191 of the Constitution to regulate its practice and procedure in such regard---Keeping in view the current state of technological infrastructure available in the Supreme Court and the fact that the review petitions filed in the present case were fixed for hearing, Their Lordships directed that the audio recording of the proceedings of the court hearings of the present review petitions should be made available to the public through a link on the official website of the Supreme Court; that the Registrar of the Supreme Court shall ensure that the un-edited audio recording of the proceedings of the court hearing of the review petitions was made available to the public on the official website of the Court on the same day soon after the hearing and before the close of the working hours].

For the Petitioners

Qazi Faez Isa (in-person) (in C.R.P. No.296 of 2020).

Rasheed A. Rizvi, Senior Advocate Supreme Court (through Video Link from Karachi) (in C.R.Ps. Nos.297 and 309 of 2020).

Mrs. Sarina Faez Isa (In-person) (in C.R.P. No.298 of 2020).

Hamid Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.Ps. Nos.299, 300, 301 and 308 of 2020).

Nemo. (in C.M.A. No. 4533 of 2020).

Nemo. (in C.R.P. No. 509 of 2020).

For Federation of Pak.

Ch. Aamir Rehman, Addl. A.G.P.

For President, PM and AGP

Sohail Mahmood, Addl. A.G.P.

P L D 2021 Supreme Court 600

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

NAVEED ASGHAR and 2 others---Petitioners

Versus

The STATE---Respondent

Jail Petition No. 147 of 2016, decided on 7th December, 2020.

(Against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 12.02.2016 passed in Criminal Appeal No. 16-J of 2011, Criminal Revision No. 31 of 2011 and M.R. No. 25 of 2011).

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

----Ss. 374, 375, 376 & 423---Constitution of Pakistan, Arts. 9, 10A & 14---Murder reference sent by the Trial Court to the High Court for confirmation of death sentence---Scope---Duty cast on the High Court in deciding a murder reference under S.374, Cr.P.C. was a heavy one and could only be discharged once the entire evidence was reappraised to fully exhaust all the points having a bearing upon the guilt or innocence of the convicted person---High Court, in dealing with a murder reference, was not only to see whether the order passed by the Trial Court was correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considered it desirable in order to ascertain the guilt or the innocence of the convicted person---Scope of a murder reference and principles in relation thereto stated.

Normally, the High Courts hear and decide the appeal filed by the convicted person and the reference sent by the trial court for confirmation of the death sentence, together. While doing so the Judges of the High Courts some times remain content with examining and deciding only the arguments and contentions advanced in appeal, and do not by themselves scrutinize the whole material available on record of the case. Apart from deciding those arguments and contentions, it was incumbent upon the High Courts, in discharge of their statutory duty under sections 375 and 376 of the Code of Criminal Procedure, 1898 ("Cr.P.C."), to read and appraise each and every piece of evidence, and to examine also whether any evidence had been improperly admitted or excluded, or had been misread or non-read by the trial court.

Ordinarily, in a criminal appeal against conviction, the appellate Court, under section 423 of the Cr.P.C., could dismiss the appeal if the court was of the opinion that there was no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the trial court. It was not necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant was fully justified. The position was, however, different where the appeal was by an accused who was sentenced to death, so that the High Court dealing with the appeal had before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under section 374 of the Cr.P.C. On a reference for confirmation of sentence of death, the High Court was required to proceed in accordance with sections 375 and 376 of the Cr.P.C. and the provisions of these sections made it clear that the duty of the High Court, in dealing with the reference, was not only to see whether the order passed by the trial court was correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considered it desirable in order to ascertain the guilt or the innocence of the convicted person.

Bhupendra Singh v. State of Punjab AIR 1968 SC 1438 ref.

Section 374 of the Cr.P.C. provided that when the Court of Session passed sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it was confirmed by the High Court. As the death sentence passed by the trial court, i.e., the Court of Session, could not be executed without being it confirmed by the High Court, proceedings before the High Court on reference under section 374, Cr.P.C. was yet another tier of judicial assessment of the evidence to examine "any point bearing upon the guilt or innocence of the convicted person." The High Court had been given very wide powers to prevent any possible miscarriage of justice. The proceedings were a reappraisal and reassessment of the entire facts of the case and of the law applicable. This extensive power actually cast an onerous duty on the High Court to ensure safe administration of criminal justice by considering in the reference proceedings all aspects of the case and coming to an independent conclusion, apart from the view expressed by the Court of Session. The High Court had to decide on reappraisal of the whole evidence whether the conviction was justified and, having regard to the circumstances of the case, whether the sentence of death was appropriate.

Jumman v. State of Punjab AIR 1957 SC 469; Ram Shankar v. State of West Bengal AIR 1962 SC 1239 and Masalti v. State of U.P. AIR 1965 SC 202 ref.

The worth and sanctity of human life were a test and mark of civilized societies, and were increasingly reflected in the criminal jurisprudence. The Legislature had provided in confirmation proceedings a final safeguard and had laid this duty upon the High Court. The duty of judgment was laid in the first instance upon the trial Judge. But equally and with all that weight, the High Court in confirmation proceedings must finally weigh for itself the whole evidence, and was to confirm the conviction and sentence or make any other order according to its own final conclusion on the guilt or innocence of the sentenced person in the discharge of the duty laid upon it by law. Right to life and liberty, right to fair trial and right to dignity were fundamental rights guaranteed under Articles 9, 10A and 14 of the Constitution. The importance of human life went to the heart of these fundamental rights, the rigorous two-tiered process of appraisal, assessment and examination under section 374, Cr.P.C. also met the test of these fundamental rights. The duty cast on the High Court in deciding a murder reference under section 374, Cr.P.C. was a heavy one and could only be discharged once the entire evidence was reappraised to fully exhaust all the points having a bearing upon the guilt or innocence of the convicted person.

AIR 1921 Sindh 84 ref.

(b) Criminal trial---

----Heinous nature of crime---Nature of the crime should not influence the mind of the judge---Duty of the court was to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations.

The frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. Cases were to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. Gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it was totally irrelevant at the stage of appraising or reappraising the evidence available on record to determine guilt of the accused person, as possibility of an innocent person having been wrongly involved in cases of such nature could not be ruled out.

Observations of the Courts recorded in judgments Muhammad Fazil v. State 1982 PCr.LJ 510; Abdul Ghaffar v. State 2005 PCr.LJ 887; Muhammad Arif v. State 2006 PCr.LJ 1827 and Kazim Hussain v. State 2008 PCr.LJ 971 in regard to deciding cases on basis of evidence alone and not on the basis of sentiments and emotions approved.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

No matter how heinous the crime, the constitutional guarantee of fair trial (under Article 10A of the Constitution) could not be taken away from the accused. It was, therefore, duty of the court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice would follow.

State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

(c) Criminal trial---

----Presumption of innocence of accused---Scope---Accused person was presumed to be innocent till the time he was proven guilty beyond reasonable doubt, and this presumption of his innocence continued until the prosecution succeeded in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence. [p. 617] F

(d) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Principles of fair trial, guaranteed as a Fundamental Right under Art. 10-A of the Constitution, were to be read as an integral part of every sub-constitutional legislative instrument that dealt with determination of civil rights and obligations of, or criminal charge against, any person.

(e) Criminal trial---

---Circumstantial evidence---Standard of care required for relying on circumstantial evidence stated.

Circumstantial evidence may some times be conclusive, but it must always be narrowly examined. In cases that rested entirely on circumstantial evidence, it was of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person was drawn. The process of inference and deduction involved in such cases was of a delicate and perplexing character, liable to numerous causes of fallacy. This danger pointed the need for great caution in accepting proof of the facts and circumstances, before they were held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which were supported by defective or inadequate evidence, could create a specious appearance, leading to fallacious inferences. Hence, it was necessary that only such circumstances should be accepted as the basis of inferences that were, on careful examination of the evidence, found to be well-established. A high quality of evidence was, therefore, required to prove the facts and circumstances from which the inference of the guilt of the accused person was to be drawn.

Lejzor Teper v. Queen PLD 1952 PC 117; Fazal Elahi v. Crown PLD 1953 FC 214 and Saeed Ahmad v. Muhammad Irfan PLD 1986 SC 690 ref.

There were chances of fabricating evidence in cases that were based solely on circumstantial evidence; therefore, the court, in such cases, should take extra care and caution to examine the evidence with pure judicial approach on strict legal standards to satisfy itself about its proof, probative value and reliability. When there were apparent indications of possibility of fabricating evidence by the investigating officer in making the case, the court must be watchful against the trap, which may misled to drawing a false inference, and satisfy itself about the fair and genuine collection of such evidence. The failure of the court to observe such care and caution could adversely affect the proper and safe administration of criminal justice.

Hashim Qasim v. State 2017 SCMR 986 and Fayyaz Ahmad v. State 2017 SCMR 2026 ref.

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

----S. 302(b)---Qatl-i-amd---Circumstantial evidence---Approach to determine sufficiency of circumstantial evidence stated.

The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person was that, if, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person could be suggested, the case was fit for conviction of the accused person on such conclusion; however, if such facts and circumstances could be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case was to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touched the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances had to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain broke the whole chain and rendered the same unreliable; in that event, conviction could not be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence was found not of the said standard and quality, it would be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence would a better and a safer course.

Siraj v. Crown PLD 1956 FC 123; Nazir Hossain v. State 1969 SCMR 388; Sairan v. State PLD 1970 SC 56; Karamat Hussain v. State 1972 SCMR 15; Saeed Ahmad v. Muhammad Irfan PLD 1986 SC 690; Barkat Ali v. Karam Elahi 1992 SCMR 1047; Ibrahim v. State 2009 SCMR 407; Muhammad Hussain v. State 2011 SCMR 1127; Imran v. State 2015 SCMR 155 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref.

(g) Criminal trial---

----Chance witness, evidence of---Scope---Chance witness was witness who in view of his place of residence or occupation and in the ordinary course of events was not supposed to be present at the place of the occurrence but claimed to be there by chance---Testimony of such witness required cautious scrutiny and was not accepted unless he gave satisfactory explanation of his presence at or near the place of the occurrence at the relevant time.

Javed Ahmad v. State 1978 SCMR 114; Zafar Hayat v. State 1995 SCMR 896; Muhammad Rafique v. State 2004 SCMR 755; Muhammad Khalid v. Abdullah 2008 SCMR 158; Sughra Begum v. Qaiser Pervez 2015 SCMR 1142 and Ibrar Hussain v. State 2020 SCMR 1850 ref.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Chance witness, evidence of---Explanation given by the chance witness, who saw the accused persons entering the house of the deceased, was that he happened to pass by in front of the house of the deceased, as he was going from his house to a nearby village for condolence on the death of the father of a person---However, said witness did not mention the name of the person on whose father's death he was going for condolence; nor could he tell the name of the late person on whose death he was going for condolence---Further, his assertion of going for condolence at such odd hours, i.e., about 08:30 p.m., on a winter-night of the month of January did not fit in the customary time of visiting people for condolence on death of someone, in rural areas: people usually made such visits during daytime---Explanation of chance witness of being present before the house of the deceased, at the relevant time was thus found far less than being satisfactory one, and therefore, his testimony could be discarded on such ground alone---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

(i) Criminal trial---

----Witness---Material improvements made by a witness in his statement---Effect---Deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his veracity, and made him untrustworthy and unreliable---Relying on the testimony of such witness was quite unsafe, even on facts deposed by him other than those improvements unless it received corroboration from some other independent piece of reliable evidence.

Hadi Bakhsh v. State PLD 1963 (W. P.) Karachi 805; Shahzada v. Hamidullah 1968 PCr.LJ 176; Amir Zaman v. Mahboob 1985 SCMR 685; Saeed Muhammad v. State 1993 SCMR 550; Khalid Javed v. State 2003 SCMR 1419; Akhtar Ali v. State 2008 SCMR 6; Muhammad Rafique v. State 2010 SCMR 385; Muhammad Saleem v. Muhammad Azan 2011 SCMR 474; Sardar Bibi v. Munir Ahmed 2017 SCMR 344 and 1968 PCr.LJ 176 ref.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Material improvements made by a witness in his statement---Effect---Witness who claimed to have seen the accused persons entering the house of the deceased stated to the investigation officer in his statement recorded under S.161, Cr.P.C. that due to darkness he could not recognize the accused persons when he saw them standing at the door of the house of the deceased; but in his statement in court he said that the accused persons were those whom he saw at the door of the deceased---Said witness also stated that there was light, not darkness, at the door of the house of the deceased at that time---Such improvement made by the witness was very glaring and material---Said witness admitted in his cross-examination that he had not mentioned any identifying features, like age, height, colour of complexion etc., of the persons in his statement to the investigating officer---If the witness had really seen and recognized the persons standing at the door of the deceased, he would definitely have described their identifiable features to the investigating officer, and had he described such recognizable features of those persons, the investigating officer would have conducted the test identification of the accused persons on their arrest in the case---Such deliberate and dishonest improvement made by the witness made him unreliable---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Recovery of motorcycle allegedly used for reaching the place of occurrence---No specification of the motorcycle, i.e., its make, colour, engine power, or registration number was mentioned in the FIR, therefore, it could not be said with certainty that it was the motorcycle that the chance witness saw with the persons outside the house of the deceased and was mentioned in the FIR---Statement of the investigating officer that the seat-cover of the recovered motorcycle was bloodstained and such fact suggested that it was the same motorcycle that was used in the crime was not found confidence inspiring; had the seat-cover of the motorcycle been really bloodstained, the investigating officer would have sent the same for examination by the Chemical Examiner for ascertaining whether the bloodstain was that of human blood and whether that bloodstain matched with the blood of any of the deceased persons or the accused persons---In absence of the reports of the Chemical Examiner and the Serologist on these facts, the assertion of the investigating officer as to use of the said motorcycle in commission of the crime carried no legal worth---Failure on part of the investigating officer to ascertain registration number and name of the registered owner of the motorcycle was also fatal to his assertion that the recovered motorcycle belonged to one of the accused persons---Non-preparation of the site-map of the place of recovery of motorcycle added further suspicion to the alleged recovery of the motorcycle from the house of one of the accused persons---Recovery of the motorcycle, in view of the said omissions made by the investigating officer, was found completely deficient as an incriminatory piece of circumstantial evidence to connect the accused persons with the commission of the offence---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Recovery of stolen items on the alleged pointation of accused persons---Investigating officer deposed that during the inspection of the place of occurrence he found empty boxes of jewellery scattered there which indicated the commission of offence of robbery---Prosecution story of interrogation of the accused persons at the place of their arrest (a snooker club) and then leading of the accused persons from the very place of their arrest to the recoveries of the alleged stolen property appeared to be intrinsically doubtful: it did not even fit in with the ordinary human conduct---Accused persons who, as per the prosecution story, were enjoying play snooker in a snooker club, admitted the commission of offence that may entail death penalty forthwith on their arrest, and not only admitted the commission of offence but also cooperated well to lead to the recovery of the stolen property then and there---Such story was very hard to believe for a prudent person---Non-mentioning the alleged fact of finding any scattered jewellery boxes at the place of occurrence in the FIR shook the foundation of the prosecution story---Investigating officer also stated in his examination-in-chief that a crime scene expert was summoned at the spot, who took photographs of the dead bodies and the place of occurrence---All said photographs were available on record but in none of them were there any scattered empty jewellery boxes---Said photographs, tendered in evidence by the prosecution itself, completely negated the alleged fact of finding scattered empty jewellery boxes at the place of occurrence---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

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

----S. 392---Robbery---Recovery of alleged stolen property in absence of prior description---Effect---In absence of any description of the stolen property given in the FIR, or in the supplementary statement of the complainant or any witness recorded under S.161, Cr.P.C., prior to the alleged recovery, it could not be said with certainty the recovered property was that which was allegedly stolen.

Observations of the Federal Shariat Court on the issue of recovery of alleged stolen property in absence of prior description made in judgments Noor Ullah v. State 2012 YLR 2618; Changez v. Shahid 2018 MLD 1136 and Tariq Hussain v. State 2018 MLD 1573 approved

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd , robbery, house trespass, common intention---Reappraisal of evidence---Recovery of stolen items on the alleged pointation of accused persons---Investigating officer neither got the allegedly stolen laptop and cameras identified from the surviving daughters of the deceased, nor got done forensic audit of these articles from the expert concerned who may have retrieved data therefrom indicating the persons who were in use of these cameras and laptop---Such failure on part of the investigating officer made the recovery of said articles, even if presumed to have been effected from the accused persons, useless for the purpose of crafting any link in the chain of circumstantial evidence against the accused persons to connect them with the commission of offences of robbery and murders---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Recovery of mobile phones belonging to the deceased persons on the alleged pointation of accused persons---Clear contradiction existed in the oral stance of the investigation officer and the proceedings of recovery reduced into writing by him in the recovery memos, which made the recoveries of mobile phones doubtful---Furthermore it was also not consistent with the normal human conduct that the offenders would have taken the mobiles phones of some of the deceased persons, and had left the mobile phone of one of the deceased laying it on a conspicuous place, i.e., on a table beside the dead body of the said deceased---Non-mentioning the theft of the mobile phones of the deceased persons in the FIR or in the supplementary statement of the complainant, non-joining in investigation the brothers of the accused persons who had allegedly brought the mobile phones to the investigating officer, and not bringing on record their names and the details as to the place from where they got the said mobile phones, all these omissions, also made the alleged recoveries unreliable---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Recovery of the bloodstained weapons of offence on the alleged pointation of accused persons---Both the witnesses associated during recovery proceedings were close relatives of the complainant and astonishingly they reached the police station at the time when the investigating officer planned to make a raid for arrest of the accused persons and also when the accused persons were ready to cooperate for making recoveries during investigation---Prosecution story became further doubtful as particulars of said witnesses were written on the recovery-memos in handwriting patently different from all other writings thereon; it indicated that the particulars of the witnesses were added and their signatures obtained subsequently on the already prepared recovery memos---As per version of the investigating officer, there were 7/8 shops and two villages near the place of alleged recoveries, but no person from those nearby shops and villages was associated in the recovery-proceedings---Although it was a fact that the persons from the general public usually did not come forward to be witness to such police proceedings, but the assertion of the investigating officer that no person of the locality other than the said witnesses was there to see the proceedings that allegedly continued for about three hours of the day made the proceedings further doubtful---Story of wrapping up bloodstained knives, the alleged weapons of offence and gloves into polythene shopper bags and then burying them in the ground close to a water stream by the offenders, for a future recovery therefrom, instead of throwing them into that water stream or a nearby river also did not appeal to a prudent mind---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons in a manner that could rule out every hypothesis inconsistent with their innocence---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

2017 SCMR 344 and 2017 SCMR 486 ref.

(q) Criminal trial---

----Recovery---Recovery of weapon of offence--- Corroborative evidence---Scope---Recovery of weapon of offence was only a corroborative piece of evidence; and in absence of substantive evidence, it was not considered sufficient to hold the accused person guilty of the offence charged---When substantive evidence failed to connect the accused person with the commission of offence or was disbelieved, corroborative evidence was of no help to the prosecution as the corroborative evidence could not by itself prove the prosecution case.

Saifullah v. State 1985 SCMR 410; Ali Muhammad v. Bashir Ahmed 2003 SCMR 868; Israr-ul-Haq v. Muhammad Fayyaz 2007 SCMR 1427; Hayatullah v. State 2018 SCMR 2092; PLD 1956 FC 123 and 1985 SCMR 410 ref.

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

----Ss. 302(b), 392, 452 & 34---Qatl-i-amd, robbery, house trespass, common intention---Reappraisal of evidence---Recovery of the bloodstained knives (churri) on the alleged pointation of accused persons---Such recovery, without a positive forensic report matching the blood found thereon with that of the deceased, could not be considered as a substantive or corroborative piece of evidence against the accused persons to connect them with the commission of offence---Prosecution had failed to complete the chain of circumstances so as to establish conclusively the guilt of the accused persons---Petition for leave to appeal was converted into appeal and allowed, and the accused persons were acquitted of the charges against them.

2015 SCMR 840; 2003 SCMR 1419; 2011 SCMR 1233 and 2017 SCMR 486 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---Scope---Medical evidence was in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and was not "corroborative evidence" in the sense the term was used in legal parlance for a piece of evidence that itself also had some probative force to connect the accused person with the commission of offence---Medical evidence by itself did not throw any light on the identity of the offender---Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it did not connect the accused with the commission of the offence---Medical evidence could not constitute corroboration for proving involvement of the accused person in the commission of offence, as it did not establish the identity of the accused person.

Yaqoob Shah v. State PLD 1976 SC 53; Machia v. State PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Mehmood Ahmad v. State 1995 SCMR 127; Muhammad Sharif v. State 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Iftikhar Hussain v. State 2004 SCMR 1185; Sikandar v. State 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 and Hashim Qasim v. State 2017 SCMR 986 ref.

(t) Criminal trial---

----Conviction---Conjectures and probabilities---Not the substitute of proof---In criminal cases finding of guilt against an accused person could not be based merely on the high probabilities that may be inferred from evidence in a given case---Accused person could not be convicted on the basis of mere "suspicion" or "probability" unless and until the charge against him was "proved beyond reasonable doubt"---Finding as regards guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence---Mere conjectures and probabilities could not take the place of proof---If a case was decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which was a dominant feature of the administration of criminal justice would be reduced to a naught.

Muhammad Luqman v. State PLD 1970 SC 10 ref.

(u) Criminal trial---

----Prosecution----Standard of proof--- Scope--- Benefit of doubt---Scope---Prosecution was under the obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and could not be said to have discharged this obligation by producing evidence that merely met the preponderance of probability standard applied in civil cases---If the prosecution failed to discharge its said obligation and there remained a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt was to be given to the accused person as of right, not as of concession.

Tariq Pervez v. State 1995 SCMR 1345 ref.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Nemo for the Complainant.

Mirza Abid Majeed, D.P.G., Punjab for the State.

P L D 2021 Supreme Court 639

Present: Umar Ata Bandial, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ

JUSTICE QAZI FAEZ ISA and others---Petitioners

Versus

The PRESIDENT OF PAKISTAN and others---Respondents

Civil Review Petition No.296 of 2020 along with C.M.A. No. 7084 of 2020, Civil Review Petition No.297 of 2020 along with C.M.A. No. 7086 of 2020, Civil Review Petition No.298 of 2020 along with C.M.A. No. 7085 of 2020, Civil Review Petition No.299 of 2020 along with C.M.A. No. 7087 of 2020, Civil Review Petition No.300 of 2020 along with C.M.A. No. 7169 of 2020, Civil Review Petition No.301 of 2020 along with C.M.A. No. 7170 of 2020, C.M.A. No.4533 of 2020 in C.R.P. No. Nil of 2020, Civil Review Petition No.308 of 2020 along with C.M.A. No. 7171 of 2020, Civil Review Petition No.309 of 2020 along with C.M.A. No. 7172 of 2020 and Civil Review Petition No.509 of 2020, decided on 22nd February, 2021.

Per Umar Ata Bandial, J.; Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ agreeing; Manzoor Ahmad Malik, J dissenting.

(a) Supreme Court Rules, 1980---

----O.X, R.2 & O. XXVI, Rr. 1 & 8---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Scope---Minority/dissenting opinion in the judgment under review---Scope---Review jurisdiction could be invoked only in relation to unanimous and majority judgments of the Supreme Court---Minority judgments, prima facie, fell outside the purview of review under O.XXVI, R.1 of the Supreme Court Rules, 1980---However, the other two categories of judgments given in O.X, R.2 of the said Rules, namely, unanimous and majority judgments issuing directions, orders or decrees possessed the attribute of being enforceable throughout the country, therefore, on a joint reading of O.XXVI, Rr.1 & 8 of the Supreme Court Rules, 1980, it was these judgments that were reviewable---Even though a minority judgment did fall within the ambit of Art. 188 of the Constitution and within the classification set out in O. X, R. 2 of the Supreme Court Rules, 1980, prima facie, it did not qualify the test of review.

Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1962 SC 335 and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

(b) Supreme Court Rules, 1980---

----O.X, R.2, O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme Court---Constitution of Bench---Numerical strength and composition of the review Bench---Prerogative of the Chief Justice---Scope---Principles relating to the numerical strength and composition of a review Bench and the prerogative of the Chief Justice of the Supreme Court in such regard stated.

Following are the principles relating to the numerical strength and composition of a review Bench and the prerogative of the Chief Justice of the Supreme Court in such regard

(i) The constitution of review Benches (or any Bench) was the sole prerogative of the Chief Justice under Order XI of the Supreme Court Rules, 1980 ('the 1980 Rules'). As a matter of law and settled practice it was for the Chief Justice, as the master of the roster, to determine the composition of a Bench and he may, for like reason, constitute a larger Bench for hearing the review petition;

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 284 ref.

(ii) The direction in Order XXVI, Rule 8 of the 1980 Rules that review petitions should be posted before the 'same Bench' was subject to the requirements of practicability;

(iii) In constituting a review Bench the Chief Justice should ensure substantial compliance with Order XXVI, Rule 8 of the 1980 Rules by including the author Judge (if available) in the review Bench. However, in case he was not available or where it was not practicable to do so, then any other Judge who agreed with the author Judge should be included in the Bench, as there was no obligation to have exactly the same Judges on the Bench;

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 391 and Shahzada Aslam v. Ch Muhammad Akram PLD 2017 SC 142 ref.

(iv) The numerical strength of a review Bench had to be the same as that of the original Bench, regardless of whether the judgment under review was passed unanimously or by majority;

Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 ref.

(v) For the purposes of Order XXVI, Rule 8 of the 1980 Rules the minimum numerical strength of the Bench that delivered the judgment or order under review was the numerical strength of the Bench which heard and decided the original matter, regardless of whether the judgment under review was passed unanimously or by majority; and

(vi) In certain circumstances, the Chief Justice may in his discretion constitute a larger Bench according to the importance of a matter or other considerations of practicability.

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644 and Akhter Umar Hayat Lalayka v. Mushtaq Ahmed Sukhaira 2018 SCMR 1218 ref.

(c) Supreme Court Rules, 1980---

----O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme Court---Constitution of Bench---Numerical strength and composition of the review Bench---Prerogative of the Chief Justice---Scope---Examples of conditions/circumstances affecting the strength of the review Bench that may prevail with the Chief Justice of the Supreme Court listed.

Following are some of the examples of conditions/circumstances affecting the strength of the review Bench that may prevail with the Chief Justice of the Supreme Court:

(i) The temporary and/or permanent unavailability of the Judges (e.g., because of retirement of the Judge) who originally heard the matter;

Government of Punjab v. Aamir Zahoor-ul-Haq PLD 2016 SC 421 ref.

(ii) To ensure the smooth and efficient functioning of the Court as a whole;

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 391 ref.

(iii) The nature of cases e.g., matters that, inter alia, involved complex questions of law or were of significant public importance were placed before a larger review Bench; and

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 664 and Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad PLD 1995 SC 701 ref.

iv. Deference to the norms of judicial propriety.

(d) Supreme Court Rules, 1980---

----O. XXVI, R. 1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Scope---Power of review was limited in scope---Consequently, it must be exercised by all the Judges sitting in the review Bench in such a manner that it did not overstep into the realm of revisiting or re-hearing the original judgment.

Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1962 SC 335 and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

Per Manzoor Ahmad Malik, J; dissenting with Umar Ata Bandial, J [Minority view]

(e) Constitution of Pakistan---

----Arts. 184 & 185---Judgment (direction, order or decree) passed by the Supreme Court, unanimously or by majority---Scope---Such judgment became the Order of the Bench and Order of the Court---Majority judgment (Order of the Court) was the judgment of the entire Bench that had heard the original matter.

(f) Supreme Court Rules, 1980---

----O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme Court---Constitution of Bench---Numerical strength and composition of the review Bench---Scope---Review petitions shall be heard by the same Bench that had delivered the judgment or order under review and the 'same Bench' included all the Judges of the Bench, whether in majority or minority (subject to their availability) as the order or judgment of the Court was an order or judgment of all the Judges who were part of the Bench and who had delivered the judgment sought to be reviewed.

(g) Supreme Court Rules, 1980---

----O. XXVI, Rr. 1 & 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme Court---Judges who rendered the minority view in the judgment under review, powers of---No provision in the Constitution or the Supreme Court Rules, 1980 limited the jurisdiction and judicial power of a minority judge while sitting in review of the Order of the Bench or Order of the Court as against those Judges who had delivered the majority judgment---Any suggestion that the Judges who dissented with the majority judgment ought to show maximum restraint and quietude while sitting on the Bench hearing the review, may give an impression of undermining the judicial independence of other Judges---Grounds for review were limited and applied equally to both the Judges who rendered the majority view and the Judges who rendered the minority view.

(h) Supreme Court Rules, 1980---

----O.XI & O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petitions before the Supreme Court---Constitution of Bench---Numerical strength and composition of the review Bench---Prerogative of the Chief Justice as 'master of the roster'---Scope---Term 'master of roster' could not be understood to mean that the Chief Justice of the Supreme Court had unfettered discretion regarding constitution of Benches---In fact, the discretion vested in the office of the Chief Justice for constitution of Benches was to be exercised in a structured manner according to the Supreme Court Rules, 1980.

For the Petitioner(s)

Mrs. Sarina Faez Isa (In-person) and Kassim Mirjat, Advocate-on-Record (in C.R.P. No. 298/2020 and C.M.A. No. 7085 of 2020).

Munir A. Malik, Sr. Advocate Supreme Court (through Video Link from Karachi) (in C.R.P. No. 296 of 2020 and C.M.A. No.7084 of 2020) Kassim Mirjat, Advocate-on-Record .

Rasheed A. Rizvi, Sr. Advocate Supreme Court (through Video Link from Karachi) (in C.R.P. No. 297 of 2020 and C.M.A. No.7086 of 2020 and in C.R.P. No. 309 of 2020 and C.M.A. No. 7172 of 2020).

Hamid Khan, Sr. Advocate Supreme Court (through Video Link from Lahore) (in C.R.P. No.299 of 2020 and C.M.A. No. 7087 of 2020 and in C.R.P. No. 300 of 2020, C.M.A. No. 7169 of 2020 and in C.R.P. No. 301 of 2020, C.M.A. No. 7170 of 2020 and in C.R.P. No. 308 of 2020 and C.M.A. No. 7171 of 2020).

Nemo. (in C.M.A. No. 4533 of 2020).

Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.P. No. 509 of 2020).

Ms. Shireen Imran, Advocate Supreme Court (in Addl. Secy. SCBAP)

Respondents: Not represented.

P L D 2021 Supreme Court 667

Present: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

JUSTICE QAZI FAEZ ISA and others---Petitioners

Versus

The PRESIDENT OF PAKISTAN and others---Respondents

Civil Review Petitions Nos.296 to 301 of 2020, C.M.A No.4533 of 2020 in C.R.P No. Nil of 2020, Civil Review Petitions Nos.308, 309, 509 of 2020, C.M.A. No.3457 of 2021 in C.R.P. No. 296 of 2020 and Cr. Original Petitions Nos. 10 and 11 of 2021, decided on 26th April, 2021.

Per Maqbool Baqar, J; Manzoor Ahmed Malik, MazharAlam Khan Miankhel, Yahya Afridi, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ. agreeing; Umar Ata Bandial, Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ. dissenting) [Minority view]

Constitution of Pakistan---

----Arts. 188 & 209(5)(b)---Review petitions before the Supreme Court challenging the directions given to the tax authorities by the Supreme Court to conduct an inquiry into the foreign assets of petitioner judge's family members and submit a report to the Supreme Judicial Council despite quashing of Presidential reference against the petitioner-judge---By way of the impugned directions contained in paras 4 to 11 of the short order (reported as PLD 2020 SC 346), along with supporting detailed reasons given in the majority judgment (reported as PLD 2021 SC 1), the Supreme Court directed the Commissioner, Inland Revenue and Federal Board of Revenue to inquire into and seek explanation from the spouse and children of the judge as to the nature and source of the funds whereby the properties in a foreign country were acquired in their names, and also send a report in such regard to the Supreme Judicial Council, which it was held had the powers to, if it considered justified, to commence proceedings against the judge in exercise of its suo motu jurisdiction---[Per Maqbool Baqar, J (Majority view)]: Impugned directions contained in paras 4 to 11 of the short order (PLD 2020 SC 346), and other connected matters along with supporting detailed reasons given in the majority judgment (PLD 2021 SC 1), of the same date were recalled and set-aside---All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order (PLD 2020 SC 346), and the detailed reasons thereof (PLD 2021 SC 1), were declared to be illegal and without any legal effect---Resultantly, the Supreme Court directed that any such proceedings, actions, orders or reports could not be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council]---[Per Yahya Afridi, J, agreeing with the Majority view: Directions contained in paragraphs Nos. 4 to 11 of the short order (PLD 2020 SC 346), and the detailed judgment (PLD 2021 SC 1), and other connected petitions were recalled---Consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions were declared to be of no legal effect and/or consequences]---Review petitions were allowed accordingly.

For the Petitioner(s):

Justice Qazi Faez Isa (in-person), assisted by Barrister Kabir Hashmi (in C.R.P. No. 296 of 2020 and C.M.A. No. 3457 of 2021).

Mrs. Sarina Faez Isa (in-person) (in C.R.P. No. 298/2020 and Cr.O.Ps. Nos. 10 and 11 of 2021).

Hamid Khan, Sr. Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.Ps. Nos. 299, 300, 301 and 308 of 2020).

Rasheed A. Rizvi, Sr. Advocate Supreme Court (through Video Link from Karachi) (in C.R.Ps. Nos. 297 and 309 of 2020).

Nemo. (in C.M.A. No.4533 of 2020).

Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.P. No.509 of 2020).

For Federation of Pakistan:

Ch. Aamir Rehman, Addl. A.G.P.

For President, PM and A.G.P.

Sohail Mahmood, Addl. A.G.P.

P L D 2021 Supreme Court 671

Present: Mushir Alam and Munib Akhtar, JJ

SAEEDA SULTAN---Petitioner

Versus

LIAQAT ALI ORAKZAI and others---Respondents

Crl. M.A. No. 62-P of 2018 in Crl. O.P. 82 of 2010 and Crl. O.P. 55 of 2018 in Crl. O.P. 82 of 2010 in C.P. 103-P of 2010, decided on 4th November, 2020.

(Contempt of Court/Non-compliance of Court Order).

Civil Procedure Code (V of 1908)---

----S. 38 & O.XXI & O. XLV, R. 15---Contempt of Court Ordinance (IV of 2003), Ss. 2(a), 3 & 5---Supreme Court Rules, 1980, O.XXVII---Constitution of Pakistan, Arts. 204(2) & 204(3)---Decree/order passed by the Supreme Court, execution of---Contempt proceedings---Scope---Where a decree and/or order of the Supreme Court was to be implemented, the appropriate remedy would lie in execution proceedings and not contempt proceedings unless decree holder clearly set down relevant facts constituting contempt of court, in addition to being able to demonstrate that the matter complained of was "willful disobedience" of any judgement, decree, direction, order, writ, other process of the Court---Contempt would only lie under the circumstances enumerated under Art. 204 of the Constitution---Contempt of Court Ordinance, 2003 did not contain any provisions for execution of the orders, judgments, or decrees of the Court in the contempt jurisdiction---Supreme Court observed that Courts should be careful in matters of contempt and must refrain to come to the aid of a party who, in the first instance, avoided or refused to avail the efficacious and effective legal remedy to seek execution or order, judgment, and decree of the Trial Court in the manner provided under the C.P.C.

Where an order, judgement, and decree originating from the lower court reached the Supreme Court for final adjudication of the judgment or decree of the court below, such final order, judgement, or decree was to be implemented and executed by the Court of first instance under section 38, read with Rule 15 of Order XLV of C.P.C and not through contempt proceedings.

Tool of contempt was often and rampantly misused as a substitute for execution and implementation of the final orders, judgment and decree of the trial Court as may be upheld, reversed, modified or varied by the Supreme Court. Where it was a case for implementation of order, judgement, and decree of the Court below simpliciter, the course available was to seek execution in the manner provided for exhaustively in the Code of Civil Procedure, 1908 and not by way of contempt either under Article 204 of the Constitution or Contempt of Court Ordinance, 2003, or under Order XXVII of the Supreme Court Rules 1980.

Contempt of Court Ordinance, 2003 did not contain any provisions for execution of the orders, judgments, or decrees of the Court in the contempt jurisdiction.

Civil contempt proceedings could not be initiated to have a judgment, decree, or order of the Supreme Court executed. These proceedings were quasi-criminal in nature, as was evident from the penal consequences provided in the Contempt of Court Ordinance, 2003, and were, therefore, not warranted in each case or cases where the appropriate remedy laid elsewhere, such as execution proceedings.

(2013) 9 SCC 600 and AIR 2020 SC 2100 ref.

In contempt proceedings, unless the petitioner/decree holder successfully and clearly set down relevant facts constituting contempt of court, in addition to being able to demonstrate that the matter complained of was "wilful disobedience" of any judgement, decree, direction, order, writ, other process of the Court, or breach of an undertaking given to court, no interference was warranted under contempt proceedings. Wilful disobedience carried a mental element that must be examined by the Court after initiating contempt proceedings. After having established the mental element, it was to be seen if invoking the contempt jurisdiction would effectively cause the cessation of an act that adversely affected the administration of justice.

(2014) 16 SCC 204 ref.

Contempt jurisdiction vested in the Supreme Court to ensure the maintenance of the dignity of court and the majesty of law. Such jurisdiction was to be exercised with circumspection and sparingly and not merely at the whims and fancy of any person to satisfy personal ego or as an arm twisting tool. The exercise of contempt was discretionary and was between the Court and the alleged contemnor. However, where efficacious remedy was available by pursuing execution proceedings to seek implementation of the order/judgment of the Superior Court, contempt proceeding was not a choice but an exception. The Courts should be careful in matters of contempt and must refrain to come to the aid of a party who, in the first instance, avoided or refused to avail the efficacious and effective legal remedy to seek execution or order, judgment, and decree of the trial Court in the manner provided under Order XXI, C.P.C.

2013 SCMR 461; (1998) 4 SCC 409; (2004) 4 SC 573 and (2000) 4 SCC 400 ref.

Hamid Khan, Senior Advocate Supreme Court along with applicant for Petitioner.

Abdul Lateef Afridi, Advocate Supreme Court for Respondent No.3.

P L D 2021 Supreme Court 684

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Messrs LUNG FUNG CHINESE RESTAURANT, LAHORE and others---Petitioners

Versus

PUNJAB FOOD AUTHORITY and others---Respondents

C.P. 1331-L of 2017, decided on 13th April, 2021.

(Against the judgment of Lahore High Court, Lahore dated 27.01.2017, passed in W.P. No.25124 of 2015).

(a) Punjab Food Authority Act (XVI of 2011)---

----Ss. 4, 7(3) & 9---International key principles integral to the architecture of food laws stated.

General Food Regulations of the European Commission-EC Regulation No. 178(2002); Principles of food safety legislation, J.L. Jouve, Food Control. Vol.9. No.2-3. pp.75-81, 1998 Elsevier Science Ltd. and The General Food Law Regulation by the European Food Safety Authority (EFSA) ref.

(b) Punjab Food Authority Act (XVI of 2011)---

----Ss. 13(1)(c), 18 & 31(2)---Constitution of Pakistan, Arts. 18, 23 & 25---Powers of Food Safety Officer to seal premises under S. 13(1)(c) of the Punjab Food Authority Act, 2011 ('the 2011 Act')---Constitutionality and legality---Power of sealing in the hands of the Food Safety Officer (FSO) could easily be applied arbitrarily which could not be permitted under the constitutional scheme, as any such act would offend fundamental rights under Arts. 18, 23 & 25 of the Constitution---Power of sealing of premises by the FSO, in its present form, was therefore ex facie discriminatory---Power of the FSO to "seal any premises" in S.13(1)(c) of the 2011 Act was declared to be unconstitutional and illegal, and it was further declared that any Rules, Regulations or SOPs promulgated under the 2011 Act dealing with "sealing of the premises" by the FSO in the absence of any sealing power under the Act were, ultra vires the 2011 Act and also illegal and without any legal effect.

The Punjab Food Authority Act, 2011 ('the 2011 Act') did not lay down any parameters or guidelines as to when the power of "sealing of premises" could be invoked by the Food Safety Officer (FSO) under section 13(1)(c) of the 2011 Act. No ground or any other legislative guideline had been given in section 13(1)(c) that permitted or empowered the FSO to exercise his discretion and invoke the power of sealing. Section 13(1)(c) simply stated that FSO could seal any premises where he believed any food was prepared, preserved, packaged, stored, conveyed, distributed or sold, examined any such food and examined anything that he believed was used, or capable of being used for such preparation, preservation, packaging, storing, conveying, distribution or sale. Nowhere did section 13(1)(c) provide when the sealing powers could be invoked. Further, the act of "sealing" was not supported by a remedial mechanism as in the case of seizure of food. Therefore, there was no legal remedy available to a food operator or food business after the premises had been sealed. There was also no provision for de- sealing under the Act. More importantly, a similar power had been actually vested in the FSO under section 18 of the Act for passing emergency prohibition orders whereby a food operator could be restrained from carrying on food business. The difference was that within twenty-four hours the aggrieved party could approach the Food Authority for its redressal against such order (Section 18(2)). The so-called sealing power under section 13(1)(c) amounted to frustrating section 18 and the scheme of the 2011 Act.

In the absence of any legislative policy or guideline clearly spelling out when the sealing could take place and there being no remedial process provided against sealing, the power of sealing in the hands of the FSO could easily be applied arbitrarily which could not be permitted under the constitutional scheme, as any such act would offend fundamental rights under Articles 18, 23 and 25 of the Constitution. The power of sealing of premises by the FSO, in its present form, was therefore ex facie discriminatory. Supreme Court declared that the power of the FSO to "seal any premises" in section 13(1)(c) was unconstitutional and illegal, hence, the power to seal the premises of a food operator or a food business by the FSO was struck down; that reference to "sealing" in section 31(2) was also to be accordingly struck down; that the rest of the provision [section 13(1)(c)] shall remain intact and continue to be enforceable; that any Rules, Regulations or SOPs promulgated under the 2011 Act dealing with "sealing of the premises" by the FSO in the absence of any sealing power under the Act were, therefore, ultra vires the Act and also illegal and without any legal effect.

(c) Punjab Food Authority Act (XVI of 2011)---

----Ss. 13(1)(ca), 16, 18 & 39(1)(d)---Constitution of Pakistan, Art. 10A---Powers of Food Safety Officer (FSO) to impose fines, issue Improvement Notice or issue Emergency Prohibition Orders under the Punjab Food Authority Act, 2011 ('the 2011 Act')---Constitutionality---All said powers enjoyed by the FSO provided a supporting remedial forum for the aggrieved party---Said powers and their corresponding provisions in the 2011 Act not only met the requirement of Art.10A of the Constitution regarding fair trial and due process, but they also gave the FSO the choice to make risk analysis and then adopt a proper risk management strategy by either issuing a Notice of Improvement or imposing a fine or taking a more stern action by seizing the food item which contravened the provisions of the 2011 Act or if the risk to human health was imperative, to issue Emergency Prohibition Order and restrain the food operator from carrying on food business under S. 18 of the 2011 Act---The enforcement interventions by the FSO under the 2011 Act were laid out in a manner that highlighted the concept of proportionality and must be applied in such spirit on case to case basis.

(d) Punjab Food Authority Act (XVI of 2011)---

----Ss. 7, 13 & Preamble---Constitution of Pakistan, Arts. 18 & 24(1)---Powers of Food Authority and Food Safety Officers---Principles of 'scientific risk analysis' and 'proportionality'---Scope---Punjab Food Authority Act, 2011 ('the 2011 Act') could only be put to an effective use to achieve its goal of food safety and protection of human health if the key principles of scientific knowledge, risk analysis, proportionality and precautionary principle were kept in mind by the Food Safety Officer (FSO) and the Food Authority---Additionally, the FSO must be of the requisite qualification as provided under S.13 of the 2011 Act, he must be abreast with the latest food and health science to be able to make intelligent and smart risk analysis of the risk and danger to food and healthy safety in any given situation---Any drastic step by the Food Authority or its officers that was not based on scientific risk analysis or was not proportionate to the health hazard involved, could cause huge economic and financial loss to the food business by bringing the business of a food operator to a crushing halt, thereby offending the constitutional rights to business and property of a food operator or food business---If the contravention under the 2011 Act could be remedied through a less harsh mechanism provided under the law, taking of a more drastic step should be avoided; this was a balancing act the Food Authority had to undertake to meet the international food law principle of proportionality.

(e) Punjab Food Authority Act (XVI of 2011)---

----S. 38---Constitution of Pakistan, Art. 10A---Publication of names of convicts in newspapers---Constitutionality and scope---Section 38 of the Punjab Food Authority Act, 2011 ('the 2011 Act') dealt with publication in the newspapers and provided that after the conviction under the 2011 Act had attained finality, the Food Authority with the permission of the Special Court could publish the name of the food operator or food business in the newspapers or in any other mode for information---Section 38 clearly barred the Food Authority and its officers to publicize any proceedings taken against a food business or a food operator under the 2011 Act unless the conviction had attained finality and there was permission granted by the court for its publication----Food Authority and Food Safety Officers (FSOs), therefore, cannot release any information during the pendency of the proceedings under the 2011 Act---Section 38 of the 2011 Act was in line with the requirement of due process and fair trial---Any violation of S.38 would make the FSO or any other officer of the Food Authority liable to departmental action.

(f) Punjab Food Authority Act (XVI of 2011)---

----Ss. 7, 13 & Preamble---Powers of Food Authority and Food Safety Officers---'Precautionary principle'---Scope---Precautionary principle [Article 7 of EU Law Regulation (EC) No. 178/2002] referred to specific situations where: (i) there were reasonable grounds for concern that an unacceptable level of risk to health existed and (ii) the available supporting information and data were not sufficiently complete to enable a comprehensive risk assessment to be made---When faced with these specific circumstances, decision makers or risk managers may take measures or other actions based on the precautionary principle, while seeking more complete scientific and other data---Such measures were provisional until the time when more comprehensive information concerning the risk could be gathered and analysed---Precautionary principle had no application where the food items inspected by the Food Safety Officer (FSO) were found to be adulterated, substandard or misbranded, unsafe or suffered from false advertisement or false labelling or were kept under unhygienic and unsanitary conditions---No scientific uncertainty existed about such contravention and could easily be checked on the spot or in a food laboratory---Precautionary principle was to be applied where the health and food safety risk attached to a food item was scientifically uncertain and created doubt of health risk, in such a case, till such time that there was scientific certainty, such a food item could be seized or recalled as the case may be.

M. Irfan Khan Ghaznavi, Advocate Supreme Court for Petitioners.

Iftikhar Ahmad Mian, Advocate Supreme Court, Ch. Sultan Mahmood, Advocate Supreme Court, Sheheryar Sultan, Secretary, Food Department, Government of the Punjab, Rafaqat Ali Niswana, D.G. Punjab Food Authority, Anum Gulraiz Mir, Addl. Director Legal and Usman Samad, Assistant Director, Legal for Respondents.

Ahmad Awais, A.G. Punjab and Rana Shamshad Khan, Addl. A.G. Punjab on Court's notice.

P L D 2021 Supreme Court 700

Present: Mushir Alam and Qazi Muhammad Amin Ahmed, JJ

CIVIL PETITION NO. 3923 OF 2016

(Against the judgment dated 10.11.2016 passed by Peshawar High Court, Mingora Bench (Darul-Qaza) Swat in C.R. No.33-M of 2014)

C.M.A. NO. 8642 OF 2016 IN C.P. 3923 OF 2016

(Stay application)

CIVIL PETITIONS NOS.2875, 4159-4161 OF 2019

(Against the judgment dated 11.6.2019, passed by Peshawar High Court, Mingora Bench (Darul-Qaza) Swat in C.Rs. Nos.535-M, 450-M, 491-M, 515 of 2011)

C.M.A.7510 OF 2019 IN C.P. NO. 2875 OF 2019

(Stay application)

HAZRAT BILAL through L.Rs. and others---Petitioners

Versus

Mst. SPOGMAI and others---Respondents

Civil Petition No. 3923 of 2016, C.M.A. No. 8642 of 2016 in C.P. 3923 of 2016, Civil Petitions Nos. 2875, 4159-4161 of 2019 and C.M.A. 7510 of 2019 in C.P. No. 2875 of 2019, decided on 15th October, 2020.

ShariahNizam-e-Adl Regulation (I of 2009)---

----Para. 10(8)---Civil Procedure Code (V of 1908), O.XLI, Rr. 20, 27 & 33---Appeal or revision---Appellate or revisional court to decide the appeal/revision within thirty days, without remanding it on any ground whatsoever [Paragraph 10(8) of the Shariah Nizam-e-Adl Regulation, 2009]---Scope---Present civil disputes were initiated during subsistence of the Shariah Nizam-e-Adl Regulation, 2009 ('the 2009 Regulation') and proceeded thereunder---Civil revisions were filed before the High Court, which remanded all matters to the Trial Court for de-novo trial and/or after recording the evidence to hand-down the judgment and decree---Legality---Examination of sub-clause. (8) of Paragraph 10 of the 2009 Regulation showed that neither the Appellate nor the Revisional Court had any jurisdiction to remand the matter---Both the appellate and the revisional Courts were mandated under the 2009 Regulations to decide the matter before them---Order XLI, R.27 of the C.P.C. empowered the Appellate Court to record and take evidence in cases under the 2009 Regulation---Moreover O.XLI, R.20 of the C.P.C., provided that any person who was a party to the suit in the Court from whose decree the appeal was preferred, but who had not been made a party to the appeal, and was interested in the result of the appeal, the Appellate Court may adjourn the hearing to a future date and direct that such person shall be made as respondent in the proceedings---Even otherwise, the Appellate Court in terms of R.33 of O.XLI of the C.P.C. enjoyed all the powers as may be possessed or exercised by the Court from which the appeal had originated except for imposing cost---In view of such enabling provision and jurisdiction of the Appellate Court, such jurisdiction and powers may also be exercised, within the bounds prescribed by law, by the Revisional Court i.e. the High Court in the present case---High Court was, thus, entrusted with the power and authority to take evidence itself instead of remanding the matter either to the Appellate Court or the Trial Court and/or where it was deemed appropriate, could add or join any party where it might considered it expedient to do so---Remand order should not have been made by the High Court (revisional Court) in the present case---Impugned judgments rendered by the High Court were set aside and the matters were remitted to the High Court to decide the same in accordance with sub-paragraph (8) of Paragraph 10 of the 2009 Regulation---Petitions for leave to appeal were converted into appeals and allowed.

Ghulam Mohyuddin Malik, Advocate Supreme Court for Petitioners (in C.P. No. 3923 of 2016).

Mazullah Barkandi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.Ps. Nos. 2875 and 4159-4161 of 2019).

Muhammad Arif Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.P. No.2875 of 2019).

Ghulam Mohyuddin Malik, Advocate Supreme Court for Respondents (in C.P. No. 2875 of 2019).

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court for Respondents (in C.Ps. Nos. 2875, 4159-4161 of 2019).

Shumil Butt, A.G., Khyber Pakhtunkhwa , Sohail Mahmod, Addl. A.G.P. and Wallayat Khan, S.O., Home Deptt. Khyber Pakhtunkhwa on Court Notice.

P L D 2021 Supreme Court 708

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Shahzada QAISER ARFAT alias QAISER---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 801-L of 2020, decided on 3rd February, 2021.

(Against the order of the Lahore High Court, Lahore dated 03.03.2020, passed in Crl. Misc. No.7155-B of 2020).

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

----S. 498---Pre-arrest bail, grant of---Grounds---Mala fides of complainant---Scope---Mala fide being a state of mind could not always be proved through direct evidence, and it was often to be inferred from the facts and circumstances of the case.

Khalil Ahmed v. State PLD 2017 SC 730 ref.

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

----S. 54---Police Order [22 of 2002], Art. 4(1)(j)---Police Rules, 1934, R. 26.1---Power of police to arrest an accused---Scope---Ordinarily no person was to be arrested straightaway only because he had been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer felt satisfied that sufficient justification existed for his arrest---Investigating officers should not mechanically make the arrest of a person accused of having committed a cognizable offence, rather they must exercise their discretion in making the arrest of such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question: what purpose would be served and what object would be achieved by arrest of the accused person.

Sughran Bibi v. State PLD 2018 SC 595 ref.

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

----S. 498---Constitution of Pakistan, Arts. 9, 10-A & 14(1)---Pre-arrest bail---Constitutional grounds for pre-arrest bail stated.

The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail was in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there was sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention was required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the police for granting pre-arrest bail did not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution. Protection against arbitrary arrest and detention was part of the right to liberty and fair trial.

2014 SCMR 1349 and A Basic Guide to Legal Standards and Practice, published by Lawyers Committee for Human Rights USA (2000) ref.

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

----S. 498---Pre-arrest bail, grant of---Grounds---Mala fides of complainant---Scope and proof---In many cases, accused persons were granted pre-arrest bail after the court found that there were no reasonable grounds for believing their involvement in the commission of the alleged offences and the court did not require independent proof of mala fide on part of the police or the complainant before granting such relief---Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him were the circumstances which by themselves indicated the mala fide on the part of the complainant and the police, and the accused need not lead any other evidence to prove mala fide on their part.

Muhammad Fayyaz v. State 1976 SCMR 183; Zakaullah v. State 1987 SCMR 1720; Zakia Begum v. State 1991 SCMR 297; Bashir Ahmad v. State 1993 SCMR 919; Muhammad Gul v. State 1998 SCMR 576; Dildar Ali v. State 1999 SCMR 1316; Rizwan Iqbal v. State 2007 SCMR 1392; Meeran Bux v. State PLD 1989 SC 347; Muhammad Firdaus v. State 2005 SCMR 784; Darbar Ali v. State 2015 SCMR 879 and Aqsa Safdar v. State 2019 SCMR 1923 ref.

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

----Ss. 109 & 120-B---Abetment and conspiracy---Proof---Court must base its conclusion as to involvement of an absentee accused as abettor or conspirator on some solid material collected during the course of investigation, and not on surmises or conjectures, either tentatively at bail stage or finally at judgment stage---Conspiracy to commit a crime by its very nature was usually secret, and could not be proved by direct evidence in most cases, however, it did not mean that the prosecution was absolved from its duty to prove the allegation of conspiracy, or that mere allegation of conspiracy was sufficient for holding the accused liable---In case of non-availability of direct evidence, the police must collect during investigation, and the prosecution must lead during trial, such circumstantial evidence from which a court could draw a legitimate inference of the existence of conspiracy and involvement of the accused in that conspiracy.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---Material available as to the alleged involvement of the accused in hatching alleged conspiracy of committing murder of the deceased persons, so far as the FIR was concerned, was confined to mere allegation of conspiracy/abetment without disclosing any details of such conspiracy/abetment, such as place and time of the alleged conspiracy/abetment and names of the persons who heard such conspiracy/abetment---However, later on the police recorded statements of certain persons, under S.161, Cr.P.C. wherein they had stated that while passing through the Bazar outside the house of the accused persons, they overheard the accused persons say that they would take revenge of the murder of their brother---Prosecution had not claimed that the accused was present at the spot or that he had caused any injury to any deceased or anybody else---In such circumstances there was no chance of any recovery at the instance of the accused if he was arrested---All the incriminating material against the accused was already with the prosecution---Present case was a fit case for exercise of discretion to admit the accused to pre-arrest bail to save him from unjustified arrest, consequent humiliation and the curtailment of his right to liberty---Petition for leave to appeal was converted into appeal and allowed, and accused was granted pre-arrest bail.

M. Sohail Dar, Advocate Supreme Court for Petitioners along with petitioner in person.

Respondent No.2 in person.

Khurram Khan, Addl. P.G. for the State along with Humayun Rashid, SI.

P L D 2021 Supreme Court 715

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

Mst. AKHTAR SULTANA ---Petitioner

Versus

Major Retd. MUZAFFAR KHAN MALIK through his legal heirs and others---Respondents

Civil Petition No. 3249 of 2015, decided on 12th April, 2021.

(Against the judgment dated 16.06.2015 passed by the Lahore High Court, Lahore in Civil Revision No. 428 of 2006)

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

----Arts. 38, 59, 71, 72, 75, 76, 79 & 88---Documentary evidence---Principles of law of evidence as to what material was “relevant”; when it was “admissible”; how it was to be “proved”; and, how its “evidentiary value” was determined stated.

Relevant and admissible evidence

The expression “relevancy” and “admissibility” had their own distinct legal implications under the Qanun-e-Shahadat, 1984 as, more often than not, facts which were relevant may not be admissible. On the one hand, a fact was “relevant” if it was logically probative or dis-probative of the fact-in-issue, which required proof. On the other hand, a fact was “admissible” if it was relevant and not excluded by any exclusionary provision, express or implied. What was to be understood was that unlike “relevance”, which was factual and determined solely by reference to the logical relationship between the fact claimed to be relevant and the fact-in-issue, “admissibility” was a matter of law. Thus, a “relevant” fact would be “admissible” unless it was excluded from being admitted, or was required to be proved in a particular mode(s) before it could be admitted as evidence, by the provisions of the Qanun-e-Shahadat, 1984. As far as the latter was concerned, and that too relating to documents, admissibility was of two types: (i) admissible subject to proof and (ii) admissible per se, that is, when the document was admitted in evidence without requiring proof.

Mode of proof

Mode of proof was the procedure by which the “relevant” and “admissible” facts had to be proved, the manner whereof had been prescribed in Articles 70-89 of the Qanun-e-Shahadat, 1984. In other words, a “relevant” and “admissible” fact was admitted as a piece of evidence, only when the same had been proved by the party asserting the same. In this regard, the foundational principle governing proof of contents of documents was that the same were to be proved by producing “primary evidence” or “secondary evidence”. The latter was only permissible in certain prescribed circumstances, which had been expressly provided in the Qanun-e-Shahadat 1984.

As a general principle, an objection as to inadmissibility of a document could be raised at any stage of the case, even if it had not been taken when the document was tendered in evidence. However, the objection as to the mode of proving contents of a document or its execution was to be taken, when a particular mode was adopted by the party at the evidence-recording stage during trial. The latter kind of objection could not be allowed to be raised, for the first time, at any subsequent stage. This principle was based on the rule of fair play. As if the objection regarding the mode of proof adopted had been taken at the appropriate stage, it would have enabled the party tendering the evidence to cure the defect and resort to other mode of proof. The omission to object at the appropriate stage became fatal because, by his failure, the party entitled to object allowed the party tendering the evidence to act on assumption that he had no objection about the mode of proof adopted.

Gulzar Hussain v. Abdul Rahman 1985 SCMR 301 ref.

The objection as to “mode of proof” should not be confused with the objection of “absence of proof”. Absence of proof went to the very root of admissibility of the document as a piece of evidence; therefore, this objection could be raised at any stage, as the first proviso to Article 161 of the Qanun-e-Shahadat commanded that “the judgment must be based upon facts declared by this Order to be relevant, and duly proved”. In other words, when the Qanun-e-Shahadat, 1984 provided several modes of proving a relevant fact and a party adopted a particular mode that was permissible only in certain circumstances, the failure to take objection when that mode was adopted, estopped the opposing party to raise, at a subsequent stage, the objection to the mode of proof adopted. However, when the Qanun-e- Shahadat, 1984 provided only one mode of proving a relevant fact and that mode was not adopted, or when it provided several modes of proving a relevant fact and none of them was adopted, such a case fell within the purview of “absence of proof”, and not “mode of proof”; therefore, the objection thereto could be taken at any stage, even if it had not earlier been taken (in trial, appeal or revision)

Municipal Corporation v. Gandhi Shantilal, AIR 1961 Guj 196 ref.

Evidentiary value

Once a fact crossed the threshold of “relevancy”, “admissibility” and “proof”, as mandated under the provisions of the Qanun-e-Shahadat, 1984 it would be said to be admitted, for its evidentiary value to be adjudged by the trial court. The evidentiary value or in other words, weight of evidence, was actually a qualitative assessment made by the trial judge of the probative value of the proved fact. Unlike “admissibility”, the evidentiary value of a piece of evidence could not be determined by fixed rules, since it depended mainly on common sense, logic and experience and was determined by the trial judge, keeping in view the peculiarities of each case.

R v. Madhub Chunder (1874) 21 W.R.Cr. 13; Lord Advocate v. Blantyre (1897) 4 App. Cas. 770, 792 and Sofaer v. Sofaer [1960] 1 W.L.R. 1173 ref.

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

----Art. 76---Certified copy of a document---Admissibility in evidence---When a party objected to the production of the certified copy of a document, as secondary evidence , the Court had to first consider and resolve the question: whether the loss of the original document had been proved, and if it found it so proved then to move on to examine the intrinsic worth of the secondary evidence produced---Failure on the part of the party tendering such evidence to prove the loss of the original would render the secondary evidence inadmissible.

Khurshid Begum v. Chiragh Muhammad 1995 SCMR 1237 ref.

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

----Arts.76, 85(2), 85(5) & 88---Registered document---Certified copy---Admissibility in evidence---Once the execution of a registered document was disputed, it did not remain a “Public Document” and became a “Private Document”; therefore, any form of its secondary evidence, including its certified copy, could not be produced in evidence to prove its existence, condition or contents without complying with the requirements of Art. 76 of the Qanun-e-Shahadat, 1984.

Imam Din v. Bashir Ahmed PLD 2005 SC 418 ref.

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

----S. 182---Power of Attorney---Interpretation---Authority of Attorney/ agent---Scope---For a valid Power of Attorney, it must expressly provide with particulars, not only the scope and extent of delegated power, but also the subject matter of delegation---Attorney could not assert any inherent or implied powers---Power of Attorney must clearly set out the purpose for which the same was executed---In cases, where such power was not clear and there was a ‘special’ and ‘general’ authority stipulated therein, then the ‘general’ powers following the ‘special’ power were to be construed as limited to what was necessary for the proper exercise of ‘special’ powers---Similarly, where the authority was given to do a particular act followed by general words, the authority was deemed to be restricted to what was necessary for the purpose of doing that particular act.

Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Imam Din v. Bashir Ahmed PLD 2005 SC 418 and Moiz Abbas v. Latifa 2019 SCMR 74 ref.

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

----S. 54---Sale and gift deed regarding immoveable property---Genuineness and validity---Petitioner-lady claimed that an Attorney of her late husband on the basis of a Power of Attorney, got the impugned sale mutations sanctioned, and also executed the impugned gift deed in her favour---Held, that statements of the two witnesses/Halqa Patwaris, who had entered the initial report of the impugned sale leading to the sanctioning of the disputed mutations, lost credibility when the petitioner/purported vendee failed to prove not only the transfer of possession but also the transfer of sale consideration, which they claim was effected---In fact, the petitioner was unable to satisfy all the courts below about her financial capacity to pay the stated sale consideration---Further, it was an admitted fact that the purported vendor did not appear before the Revenue Officer for sanction of the disputed mutations, rather his purported Attorney relying on an invalid and inadmissible copy of a Power of Attorney, appeared on his behalf---Legal position was much graver in the case of the disputed gift deed, when the essential consideration of a valid gift, that is, the love and affection of purported donor towards his recently divorced wife/purported donee was being conveyed through the same Attorney, and that too without any such authority expressly delegated to him in the disputed Power of Attorney---Thus, when admissibility, proof and evidential value of the disputed Power of Attorney, the very foundation of the disputed mutations and gift deed, was in serious peril, expecting for the superstructure built thereon to withstand the legal challenge would be jurisprudentially naive---Concurrent findings of three courts below as to the invalidity of the sale and gift of the disputed property in favour of the petitioner were correct---Petition for leave to appeal was dismissed and leave was refused.

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

----Arts. 123 & 124---Presumptions as to a person being alive or dead---Principles---Article 123 & Art. 124 of the Qanun-e-Shahadat, 1984 regulated rules of evidence relating to the presumption of a person, in given circumstances, to be alive or dead---Article 123 provided that where a person was shown to have been alive within thirty years, the burden of proof was on the party that sought to prove the contrary; this was subject to Art. 124, which provided that the burden of proof shifted on the party that claimed that the person not heard of for seven years was alive---Therefore, the party who asserted that a presumption of death as per Art. 124 should not apply, bore the burden of proving the same---Article 123 required a party to provide evidence of death, unlike Art.124, which raised a presumption of death---Article 124 only raised a presumption of death without actually determining the exact date of death which, if required to be proved, would have to be proved by positive evidence.

Mansoor Akbar v. Fazal-e-Rab 2012 SCMR 540; Perveen Shoukat v. Province of Sindh PLD 2019 SC 710 and Lal Hussain v. Sadiq Khan 2001 SCMR 1036 ref.

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

----Arts. 76(f), 85(1)(iii) & 89(5)---Foreign public document---Certified copy---Admissibility in evidence---In case, the foreign document fulfilled the essentials of a “Public Document” under sub-clause (iii) of clause (1) of Art. 85 of the Qanun-e-Shahadat, 1984 then a certified copy thereof would constitute “secondary evidence” within the contemplation of clause (f) of Art. 76---However, special conditions had been prescribed for the certified copy of the foreign public document to be admissible and proof of that document---Said conditions had been prescribed in clause (5) of Art. 89 of the Qanun-e-Shahadat, 1984 which in essence were that: first, the certified copy must have been issued by the legal keeper of the document; second, a certificate was to be provided on that certified copy by a notary public or Pakistan Consul/diplomatic agent under his seal to the effect that the copy was duly certified by the officer having the legal custody of the original; and third, the character of the document was proved according to the law of the foreign country.

Muhammad Usman v. Lal Muhammad PLD 1975 Kar. 352 and Lal Muhammad v. Muhammad Usman 1975 SCMR 409 ref.

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

----Arts. 72, 117 & 120---Document---Proof---Producing of document in statement of counsel---Disputed documents could not be tendered in evidence in statement of the counsel for a party, because such procedure deprived the opposing party to test the authenticity of those documents by exercising his right of cross-examination.

Manzoor Hussain v. Misri Khan PLD 2020 SC 749 and Hameeda Begum v. Irshad Begum 2007 SCMR 996 ref.

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

----O.VII, R. 7---Plaint---Relief not specifically sought in the plaint---Whether such relief could be granted by the Court---Courts were to look at the substance of the plaint not its form, and in appropriate cases the courts could mould the relief within the scope of the provisions of O.VII, R.7, of Civil Procedure Code, 1908 (“C.P.C.”)---Courts were empowered to grant such relief as the justice of the case may demand, and for purposes of determining the relief asked for or the relief to which the plaintiff was entitled, the whole of the plaint was to be looked---Provisions of O.VII, R.7 of the C.P.C. empowered the courts to grant an effective or ancillary relief even if it had not been specifically prayed for.

Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Samar Gul v. Central Government PLD 1986 SC 3; Javaid Iqbal v. Abdul Aziz PLD 2006 SC 66; Phool Badshah v. ADBP 2012 SCMR 1688 and Mushtaq Ahmad v. Arif Hussain 1989 MLD 3495 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Petitioner.

Wasim Sajjad, Sr. Advocate Supreme Court, Syed Nayyer Abbas Rizvi, Advocate Supreme Court and Osama Azeem Ch., Advocate for Respondents.

Date of hearing: 12th April, 2021.

P L D 2021 Supreme Court 738

Present: Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

MUHAMMAD SARFRAZ ANSARI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.435 of 2021, decided on 17th May, 2021.

(Against the order of Lahore High Court, Lahore dated 05.3.2021, passed in Crl. Misc. No.2378/B of 2020).

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

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 43---Bail---Accused implicated on basis of confessional statement of co-accused recorded under S. 164 of the Code of Criminal Procedure, 1898 (Cr.P.C)---Such confessional statement of a co-accused needed independent corroboration even at the bail stage.

Conviction of a co-accused could not be recorded solely on the basis of confessional statement of one accused unless there was also some other independent evidence corroborating such confessional statement. The principle ingrained in Article 43 of the Qanun-e-Shahadat was applied at the bail stage and the confessional statement of an accused could lead the court to form a tentative view about prima facie involvement of his co-accused in the commission of the alleged offence; but as in the trial, at the bail stage also, the prima facie involvement of the co-accused could not be determined merely on the basis of confessional statement of other accused without any other independent incriminating material corroborating the confessional statement.

Javed Masih v. State PLD 1994 SC 314; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Mushtaq v. State 2012 SCMR 109; Naseem Malik v. State 2004 SCMR 283; Muhammad Irshad v. Muhammad Bashir 2006 SCMR 1292 and Ghulam Ahmed v. State 2013 SCMR 385 ref.

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

----S. 497---Bail---Appreciation of evidence---Scope---At bail stage the court was not to make deeper examination and appreciation of the evidence collected during investigation or to conduct anything in the nature of a preliminary trial to determine the accused's guilt or innocence---However, for deciding the prayer of an accused for bail, the question whether or not there existed reasonable grounds for believing that he had committed the alleged offence could not be decided in vacuum---Court, for answering the said question, had to look at the material available on record when the bail was applied for and be satisfied that there was, or was not, prima facie some tangible evidence which, if left unrebutted, may lead to the inference of the guilt of the accused.

Khalid Saigol v. State PLD 1962 SC 495 and Muhammad Hanif v. Manzoor 1982 SCMR 153 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Bail, grant of---Further inquiry---Accused implicated on basis of confessional statement of co-accused---Co-accused stated in his confessional statement that the fake bills were prepared, and eighty percent of the withdrawn amount was taken by the accused---However, there was no sufficient material to corroborate the said statement---Recovered data from the mobile phone did not implicate the accused of the act besides it related to the sale tax invoices and contractor bills of a firm, which was different from the firms owned by the co-accused, in whose favour the alleged fake bills were encashed---Prosecution also failed to refer to any material to substantiate the finding recorded by the investigating officer that the accused , as a result of the fraud, had amassed wealth and purchased two apartments in a housing scheme---Accused being a former, and not a present, employee in the office of Controller Military Accounts prima facie had no control or influence on the matter of passing the alleged fake bills for encashment---Material currently available on record of the case was not sufficient to connect the accused with the commission of the alleged offences, and there were no reasonable grounds for believing that he had committed the alleged offences; but there were sufficient grounds for further inquiry into his guilt in terms of S.497(2) of Cr.P.C.---Petition for leave to appeal was converted into appeal and allowed, and accused was extended the concession of bail.

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

----S. 497---Bail, grant of---Discretion of Supreme Court---Scope---Practice of the Supreme Court was not to intervene in bail matters ordinarily, leaving them to the discretion of the courts inquiring into the guilt of the accused persons---However, in cases where the discretion was found to have been exercised arbitrarily, perversely or contrary to the settled principles of law, the Supreme Court did not hesitate to interfere with that wrong exercise of discretion, in the interest of justice.

Haider Mehmood Mirza, Advocate Supreme Court for Petitioner.

Moulvi Ijaz ul Haq, D.A.G. or the State.

P L D 2021 Supreme Court 743

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Qazi Muhammad Amin Ahmed, JJ

SHEHRI - CITIZENS FOR A BETTER ENVIRONMENT and others---Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.A. No. 549 of 2021 in Constitution Petition No.9 of 2010, decided on 14th June, 2021.

Constitution of Pakistan---

---Art. 184(3)---Matter regarding encroachment over Gujjar Nallah and Orangi Nallah (rain water drainage streams)---Removal of encroachments in and around the nallahs on the directions of the Supreme Court---Plea of interveners that they held leases for the land of nallahs and were not encroachers---Held, that the interveners failed to show under what authority of law and rules the purported leases had been given; they were also unable to establish from the record that any Scheme was floated by the Provincial Government or by relevant Development Authority or Metropolitan Corporation or by the City District Government making public announcement of allotment of nallahs' land to the people---Width of the nallahs had been critically diminished by making constructions---By doing so, whole area from which the nallahs were to receive the rain water had been blocked causing flooding/accumulation of water and secondly, the very capacity of the nallahs were brought to a state where there was no space for allowing the nallahs to drain the water---Provincial Government had already announced compensation for those ejected from nallahs' land and made a statement that the affectees would be accommodated in a Government Housing Scheme---Supreme Court observed that such statement of the Provincial Government was reasonable and should be accepted by the occupants, and that there was no reason anymore for the interim injunctions, stay and status quo orders passed by the Tribunal, Anti-Encroachment in favour of encroachers/occupants of nallahs' lands to continue---Supreme Court directed that all such interim injunctions, stay and status quo orders were recalled andvacated and suits filed in the Tribunal, Anti-Encroachment were accordingly disposed of---Order accordingly.

Faisal Siddiqui, Advocate Supreme Court for Applicants.

Nemo for Respondents.

P L D 2021 Supreme Court 745

Present: Umar Ata Bandial, Sajjad Ali Shah and Amin-ud-Din Khan, JJ

YASIR NAWAZ and others---Petitioners

Versus

HIGHER EDUCATION COMMISSION and others---Respondents

Civil Petitions Nos. 1925, 1975 and 1976 of 2020, decided on 5th April, 2021.

(Against the consolidated judgment dated 30.4.2020 passed by the Islamabad High Court in I.C.As. Nos. 265/2017, 2282/2019 and 3258/19).

(a) Educational institution---

----University located in Azad Jammu and Kashmir (AJ&K)---Unauthorized franchise campuses/unlawful affiliated institutions operating outside AJ&K---Degrees issued by such campuses/ institutions---Legality---Higher Education Commission (HEC) never granted any permission to the University for affiliate colleges/ institutions in Pakistan nor had it assured recognition of the degrees by the institutions/colleges affiliated by the University in AJ&K---Letter sent by the HEC to the University, which was available on record, specifically prohibited any campus in AJ&K and Pakistan; it further prohibited affiliation of colleges/institutions for AJ&K and Pakistan---Record further reflected that the HEC had issued sufficient alerts regarding the status of the institutions/colleges claiming affiliation with the University---In the circumstances, the HEC could not be burdened to recognize the degrees/awards conferred by the unauthorized franchise campuses and unlawful affiliated institutions whose education imparting qualities/capacity was never examined by the HEC---If anyone was to be blamed for playing havoc with the career of the students, it was either the University or its affiliated institutions---Higher Education Commission (HEC) had already taken a sympathetic approach and shown grace by providing a mechanism to recognize the degrees/mark sheets/awards granted by the institutions/colleges after testing the educational achievements of their students in the relevant disciplines---Petitions for leave to appeal were dismissed and leave was refused.

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

----O. XXXIX, Rr. 1 & 2---Interim order---Scope---Such order was always of a limited duration which legally did not control the final adjudication and, therefore, would not create any right in cases where the main action and/or the relief was found frivolous or was turned down unless for reasons specified, a protection was extended---In all other cases, the interim order was merged into the final order and lost its efficacy and operation instantly.

Federation of Pakistan v. Pervez Musharraf PLD 2016 SC 570 ref.

(c) Constitution of Pakistan---

----Arts. 184(3) & 199---Higher Education Commission Ordinance (LIII of 2002), S. 10---Educational institutions---Judicial review---Scope---Policy decisions taken by statutory bodies and authorities tasked with running the affairs of educational institutions and students, such as Higher Education Commission (HEC)---Courts should generally refrain from interfering in such policy decisions---Matters of academic nature necessitated the need for technical and professional expertise which may only be attained as a result of specialization and the experience of working with and in educational institutions---Courts were neither equipped with such expertise, nor did they possess the relevant experience that would allow for interference in such matters---However, it did not mean that the Courts would not step in at the request of the parties to ensure and ascertain whether or not minimum requirements of natural justice and principles of law had been complied with and whether a case of grave injustice had been made out---Also in cases where a principle of law had to be interpreted,, applied or enforced with reference to or connected with education, the Courts would not hesitate in stepping in.

Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Noor Muhammad Khan Marwat v. Vice-Chancellor PLD 2001 SC 219 and Maharashtra State Board v. Paritosh Bhupeshkumar Sheth and others AIR 1984 SC 1543 ref.

Munawar Iqbal Duggal, Advocate Supreme Court for Petitioners (in C.P. No. 1925 of 2020).

Malik Noor Muhammad Awan, Advocate Supreme Court for the Petitioners (in C.Ps. Nos. 1975 and 1976 of 2020).

Nemo for the Respondents.

P L D 2021 Supreme Court 752

Present: Mushir Alam and Sajjad Ali Shah, JJ

AIJAZ AHMED TUNIO---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 156-K of 2020, decided on 16th March, 2021.

(Against the order dated 14.09.2019 passed by learned Single Bench of High Court of Sindh, Bench at Sukkur, in Criminal Miscellaneous No. S-162 of 2019).

Constitution of Pakistan---

----Arts. 202 & 203---Judge/judicial officer of subordinate judiciary---Adverse remarks/strictures passed by the High Court on the judicial side---Propriety---High Court, under its judicial authority, should avoid passing strictures against a judicial officer of the District Judiciary, and any action if at all warranted must be done in accordance with law, namely by exercising the supervisory control vested in the High Court.

High Court must, when arriving at a contrary conclusion in a matter before it from the subordinate judiciary, tread with caution when commenting on the ability, competence, integrity, and behavior of the judge and, therefore, refrain from passing strictures. The High Court, no matter how unhappy with the quality of the judgment, should restrain itself from passing a personal remark against the judicial capabilities of a judge of the subordinate judiciary. Instead, the High Court was to exercise supervisory control over the district judiciary in accordance with Article 202 and Article 203 of the Constitution. The relevant service laws empowered the competent authority to initiate appropriate disciplinary proceedings against a Judicial Officer. Therefore, the High Court, under its judicial authority, should avoid passing strictures against a judicial officer of the District Judiciary, and any action if at all warranted must be done in accordance with law, namely by exercising the supervisory control vested in the High Court.

Miss Nusrat Yasmin v. Registrar, Peshawar High Court, Peshawar PLD 2019 SC 719; V.K. Jain v. High Court of Delhi through Registrar General and others (2008) 17 SCC 538; Awani Kumar Upadhyay v. The Hon'ble High Court of Judicature at Allahabad and others AIR 2013 SC 2189; Amar Pal Singh v. State of U.P. and another AIR 2012 SC 1995; Muhammad Mansha v. The State PLD 1996 SC 229 and Attorney-General v. B.B.C. ((1981) A.C. 303, 313) ref.

High Court directed that the judicial record of the order passed by judge of the subordinate judiciary shall be examined by the Member Inspection Team (MIT) without being influenced by any observation made against the said judge by the High Court in the impugned judgment. Petition was disposed of.

Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioner along with Petitioner.

Saulat Rizvi, Additional Advocate General, Sindh for Respondent.

P L D 2021 Supreme Court 756

Present: Umar Ata Bandial, Sajjad Ali Shah and Munib Akhtar, JJ

CIVIL PETITIONS NOS. 1128 TO 1135 OF 2020

(On appeal from the judgment/order dated 13.12.2019 of the High Court of Sindh at Karachi passed in C.Ps. Nos. D 2356, 2976, 6623,1850,1851,1776,2236,2235/19).

CIVIL PETITION NO. 1920 OF 2020

(On appeal from the judgment/order dated 28.02.2020 of the High Court of Sindh at Karachi passed in C.P. No.8474 of 2019).

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Petitioners

Versus

Agha SIRAJ KHAN DURRANI and 8 others---Respondents

Civil Petitions Nos. 1128 to 1135 and 1920 of 2020 decided on 17th March, 2021.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9(b)---Corruption and corrupt practices---Post-arrest bail, grant of---Scope---In National Accountability Bureau (NAB) references/cases the concession of post-arrest bail could be granted to an accused on the basis of principles applicable to S.497, Cr.P.C.

Olas Khan v. NAB PLD 2018 SC 40 ref.

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

----Ss. 497 & 498---National Accountability Ordinance (XVIII of 1999), S.9---Corruption and corrupt practices---Post-arrest and pre-arrest bail granted by High Court without considering the criteria under S.497(2), Cr.P.C.---Held, that rather than addressing the considerations/ criteria for bail provided under S.497(2), Cr.P.C, the High Court granted post-arrest bail to accused by focusing wholly on the alleged procedural and legal lapses committed by National Accountability Bureau (NAB) in the 'defective and perfunctory investigation' carried out against the accused---High Court ought to have perused the incriminating material, if any, on the record to evaluate whether the two-fold test for grant of post-arrest bail, provided in S.497(2), Cr.P.C, was satisfied---High Court failed to apply its judicial mind to the said applicable criteria and the relevant material, thereby committing a serious error---Similarly while granting pre-arrest bail to co-accused persons the High Court barely touched upon the case against them, and instead relief of anticipatory bail was predominantly granted to them because they were treated as the front men of accused, who had already been extended bail---Confirming the extraordinary relief of pre-arrest bail to co-accused persons on a cursory basis contravened the settled principles (on bail) laid down by the Superior Courts---Impugned judgments of the High Court, whereby post-arrest and pre-arrest bails were granted to accused and co-accused persons respectively, were set-aside and matter was remanded to the High Court for a fresh decision in accordance with the settled law of bail---Petitions for leave to appeal were converted into appeals and allowed.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), S. 9(b)---Corruption and corrupt practices---Pre-arrest bail, grant of---Scope---In National Accountability Bureau (NAB) references/cases an accused could only be granted pre-arrest bail if he demonstrated that his arrest was being sought for mala fide purposes for example to humiliate him.

The State v. Haji Kabeer Khan PLD 2005 SC 364 and NAB v. Murad Arshad PLD 2019 SC 250 ref.

Sattar Awan, Spl. Prosecutor NAB (video link Karachi) for Petitioners.

Shahab Sarki, Advocate Supreme Court, Altaf Hussain, Advocate Supreme Court and Aftab Alam Yasir, Advocate Supreme Court for Respondents.

P L D 2021 Supreme Court 761

Present: Umar Ata Bandial and Ijaz ul Ahsan, JJ

Rai MUHAMMAD RIAZ (decd) through L.Rs. and others---Petitioners

Versus

EJAZ AHMED and others---Respondents

Civil Petition No. 1260-L of 2020, decided on 24th December, 2020.

(Against judgment dated 04.06.2020 of Lahore High Court, Lahore, passed in Civil Revision No. 226132 of 2018).

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

----O. IX, R. 8---Non-appearance of counsel for plaintiff before Trial Court---Clerk appearing on behalf of counsel---Such appearance did not constitute ­appearance of counsel.

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

----O. IX, R. 8---Non-appearance of plaintiff and his counsel before Trial Court---Practice in Trial Courts of granting multiple "last and final opportunities"---Such practice was strongly deprecated by the Supreme Court with the observation that it must stop forthwith.

Moon Enterpriser CNG Station v. Sui Northern Gas Pipelines Limited 2020 SCMR 300 ref.

(c) Constitution of Pakistan---

----Art. 189---Judgments of the Supreme Court---Binding on all Trial Courts---Trial Courts must implement judgments of the Supreme Court in letter and spirit as the same were binding on them in terms of Art. 189 of the Constitution---Failing or refusing to follow and implement clear and categorical judgments and orders of the Supreme Court could entail serious penal consequences for judicial officers.

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

----O. IX, R. 9(1)---Non-appearance of plaintiff and his counsel before Trial Court on multiple dates of hearing---Suit dismissed for non-prosecution---Application for restoration of suit allowed with condition of payment of costs---Where revival of the suit was based upon a conditional order and such condition was not fulfilled by the applicant, for all intents and purposes the suit did not get restored.

Muhammad Arshad & Co. v. Zila Council 2006 SCMR 1450 ref.

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

----O. IX, R. 9(1)---Non-appearance of plaintiffs and their counsel on multiple dates of hearing before Trial Court---Suit dismissed for non-prosecution---Application filed by plaintiffs for restoration of suit---No 'sufficient cause' shown for non-appearance---Carelessness, negligence and lack of diligence on the part of the plaintiffs and their counsel---Suit of the plaintiffs was dismissed for non-prosecution and was conditionally restored on the basis of a conceding statement of the defendants---However, such restoration was conditional upon payment of costs which were admittedly never paid by the plaintiffs---Further, at no stage was any application moved seeking extension of time for payment of costs---Even if such lapse on part of the plaintiffs as well as the Trial Court, which failed to notice the non-fulfillment of the condition imposed in its order, was ignored, the lack of diligence on the part of the plaintiffs in pursing their suit was self-evident from the fact that the suit was dismissed for non-prosecution again, for the second time---Although the application for restoration of suit was filed within time but mere filing of a restoration application not sufficient---In the application for restoration of suit the cause for non-appearance of plaintiff and his counsel on date fixed for hearing was mentioned as some important business---Such reason was unspecific, vague and generalized which could not by any stretch of the language be termed as 'sufficient cause' to fulfill requirements of O. IX, R. 9, C.P.C.---Furthermore record showed that suit was filed in 2005, issues were framed in 2006 and for the next ten years not a single witness was produced by the plaintiffs notwithstanding the reasons for such delay which in any event did not furnish any justification for the litigation in question dragging on at a snail's pace---Such delay and lack of progress was largely attributable to the plaintiffs---Application for restoration of suit filed by the plaintiffs had been rightly rejected by the High Court---Petition for leave to appeal was dismissed and leave was refused.

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

----O. IX, R. 9(1)---Non-appearance of plaintiff and his counsel on multiple dates of hearing before Trial Court---Suit dismissed for non-prosecution---Application filed by plaintiff for restoration of suit---'Sufficient cause' for non-appearance---Scope---Term "sufficient cause" had not been defined in the Code of Civil Procedure, 1908 nor could a specific yardstick be put in place for determining what constituted "sufficient" cause and what did not; it always depended upon the facts and circumstances of each case, and it had to be left to the judicial conscience of the Court to make an informed assessment as to whether the cause disclosed by the plaintiff was a reason good enough to satisfy the Court that it was beyond the reasonable control of the party concerned to appear before the Court on the date fixed for hearing---Party seeking to claim benefit of O. IX, R. 9(1), C.P.C must establish "sufficient" cause, bona fides and due diligence.

Ata Ullah Malik v. Custodian Evacuee Property PLD 1964 SC 236 and Khadija Begum v. Yasmeen PLD 2001 SC 355 ref.

Rana Rashid Akram Khan, Advocate Supreme Court for Petitioners.

Ms. Ayesha Hamid, Advocate Supreme Court and Imran Muhammad Sarwar, Advocate Supreme Court for Respondents.

P L D 2021 Supreme Court 770

Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

ASAD ALI KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Government of Punjab and others---Respondents

Constitution Petitions Nos. 48 of 2019, 7 of 2020 and C.M.A. No. 6762 of 2020 in Civil Appeal No. 20 of 2014, decided on 25th March, 2021.

(a) Punjab Local Government Act (XIII of 2019)---

----S. 3---Constitution of Pakistan, Arts. 7, 17, 32, 140A & 184(3)---Dissolution of all local governments in Punjab constituted or continued under the Punjab Local Government Act, 2013---Constitutional petition under Art. 184(3) challenging the constitutionality of S.3 of the Punjab Local Government Act, 2019 ('Act of 2019')---Maintainability---Petitioners had raised the question of constitutionality of S.3 of the Act of 2019, being violative of Arts. 7, 17, 32 & 140A of the Constitution---Combined reading of said Articles showed that they weaved the very fabric of the local government system and Art. 17 provided the bedrock on which the local government system stood or rested---Infraction of Art. 17 fragmented and tore apart the whole local government system and the local governments established by it, thus, the very relevance of Art. 17 of the Constitution, which guaranteed to the citizen fundamental right, inter alia, to form and be a member of a political party, raised a question of public importance with reference to the enforcement of the fundamental rights, thus, the petitions before the Supreme Court under Art. 184(3) of the Constitution were maintainable.

(b) Punjab Local Government Act (XIII of 2019)---

----Ss. 3 & 233 [as amended by the Punjab Local Government (Amendment) Act (XI of 2020)]---Punjab Local Government Act (XVIII of 2013), S. 30---Constitution of Pakistan, Arts. 7, 17, 32 & 140A---Local governments in Punjab elected under the Punjab Local Government Act, 2013 ('Act of 2013') dissolved before expiry of their five year term by S.3 of the Punjab Local Government Act, 2019 ('Act of 2019')---Section 3 of the Act of 2019, vires of---Local government system established under Art. 140A of the Constitution through Provincial Legislation, when translated into an elected local government for a specified period of time by law, could not be dissolved before the period of its expiry, as such action would directly come in conflict with Art. 17 of the Constitution read with Arts. 140A, 7 & 32 of the Constitution---Local governments elected under the Act of 2013 were entitled to function for the duration of five (05) years as provided under the said Act itself---Supreme Court declared S. 3 of the Punjab Local Government Act, 2019 to be ultra vires the Constitution, and consequently held that the Local Governments as were existing in the Punjab prior to promulgation of the said section stood restored and shall complete their term in accordance with law.

Article 140A read with Articles 7, 17 and 32 of the Constitution were complementary to each other and worked as a syntheses for the establishment and functioning of the local governments.

Under Article 140A of the Constitution, the province of Punjab had promulgated the Punjab Local Government Act, 2013 ("Act of 2013') for the establishment of a local government system in province of Punjab and devolving of political, administrative and financial responsibility and authority to the elected representatives of the local governments. Under the Act of 2013, elections of the local governments were held in the province of Punjab in phases in the years -2015-2016, as a result of which local governments in the province of Punjab were elected and by Section 30 of the Act of 2013, a local government was to remain in office for a period of five years from the date it holds its first meeting. There is no dispute that the first meeting of the local governments in Punjab was held in January, 2017 and thus, the local governments were to remain in office until January, 2022.

The right to form or be a member of a political party (Article 17 of the Constitution) inherently implied in it right to form or be a member of a political party and to contest elections and in succeeding in such elections, to hold elected office for the duration provided by law. Therefore, the local government system established under Article 140A of the Constitution through Provincial Legislation, when translated into an elected local government for a specified period of time by law, could not be dissolved before the period of its expiry, as such action would directly come in conflict with Article 17 of the Constitution read with Articles 140A, 7 and 32 of the Constitution.

In the present case, the trampling of elected local governments under the Act of 2013, which had come with their mandate and with promise to the people of their constituencies, could not be dissolved by section 3 of the Punjab Local Government Act, 2019 ('Act of 2019'), for it was in direct conflict with Articles 17 read with Articles 140A, 7 and 32 of the Constitution. The dissolution of the local governments had also disenfranchised the people, who had voted for their representatives in the local governments.

Admittedly, the local governments' offices in Punjab were political Governments and had fundamental right as provided in the Constitution to run for their duration as provided by law. The Province had no power to cancel local governments created under Article 140A of the Constitution. The local governments as per law were entitled to function for the duration of five (05) years as provided in the Act of 2013 and implement the schemes, which they had promised to the voters from their constituencies.

Lahore Development Authority through its DG v. Imrana Tiwana and others 2015 SCMR 1739 ref.

The power of very dissolving the local governments was not possessed by the Province in the Act of 2013. Section 233 of the Act of 2019 made provision for suspension or dissolution of a local government and it provided for giving of reasons by the government, and manner and procedure to be adopted for this purpose. This very section itself admitted and recognized that the local governments could not be suspended or dissolved on mere desire of the Province

Supreme Court declared section 3 of the Punjab Local Government Act, 2019 to be ultra vires the Constitution, and consequently held that the Local Governments as were existing in the Punjab prior to promulgation of the said section stood restored and shall complete their term in accordance with law.

(c) Constitution of Pakistan---

----Part. II, Chap. 2---Principles of Policy---Scope---Although Principles of Policy were not enforceable by Court nor could they on their own be made basis for adjudging any law to be void but in making law, the State was required to be guided by the directives of the Principles of Policy and had to ensure that these directives were duly reflected in making of law, for they were pronounced objectives of the State for the socio-economic development of the citizens for the ultimate establishment of an egalitarian society---Said directives Principles of Policy of the State had a place in overall working of the State, and all acts of the State organs and the functionaries of the State had to be in consonance with these directives---No inconsistency in this regard could be made by the State or State Organs in performance of its functions.

M. Nawazish Ali Pirzada, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Petitioners (in Constitution Petition No. 48 of 2019).

Barrister Qasim Ali Chohan, Addl. A. G. Punjab. Ch. Abrar Ahmed, Director Law, Local Government, Punjab for Respondents (in Constitution Petition No. 48 of 2019).

Khalid Jawed Khan, Attorney General for Pakistan and Sohail Mehmood, Addl. AGP on Court's Notice.

Afnan Karim Kundi, Advocate Supreme Court, Sajeel Sheryar Swati, Advocate Supreme Court, Dr. Akhter Nazir, Secretary ECP., M. Arshad, D.G. Law ECP. and Ms. Saima Tariq Janjua, Deputy Director, ECP. for ECP.

Zahid Sultan Khan Minhas, Advocate Supreme Court for ECP (in Constitution Petition No. 7 of 2020).

P L D 2021 Supreme Court 784

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

NADIA NAZ---Petitioner

Versus

The PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN and others---Respondents

Civil Petition No. 4570 of 2019, decided on 5th July, 2021.

(Against the judgment dated 11.10. 2019 passed by Islamabad High Court, Islamabad in W.P. No. 2948 of 2018).

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

----Ss. 2(h), 4(4) & 8---Harassment---Scope---Meaning of the term 'harassment' as given in S.2(h) of the Protection against Harassment of Women at Workplace Act, 2010 was only restricted to conduct which was sexual in nature---All other acts of harassment that fell beyond the pale of restricted definition of actionable harassment under S.2(h), could neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman.

The Protection against Harassment of Women at Workplace Act, 2010 ('2010 Act') confines or limits its application to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization.

Any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer, in any organization, may it be generically classifiable harassment, is not actionable per-se under the 2010 Act unless such behavior or conduct is shown to be inherently demonstrable of its 'sexual' nature. Any other demeaning attitude, behavior, or conduct which may amount to harassment in the generic sense of the word, as it is ordinarily understood, howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of "harassment" under section 2 (h) of the 2010 Act. The aggrieved person under the provisions of the 2010 Act, had the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct. Shahina Masood and others v. Federal Ombudsman Secretariat for Protection against Harassment of Women at Workplace and others 2020 PLC (C.S.) 186 and Vishaka Guidelines formulated after the seminal decision in Vishaka v. State of Rajasthan by the Supreme Court of India, concerning the gangrape of Bhanwari Devi, a Dalit women, in 1992 ref.

The 2010 Act has specifically been legislated to protect not only working women but men as well but only against "harassment having sexual nature" at the workplace and, therefore, any conduct amounting to harassment of any other kind and nature, howsoever distasteful and injurious, is not made cognizable before the Federal Ombudsman. The meaning of the term 'harassment' as given in section 2 (h) of the 2010 Act, cannot be stretched to other conduct being not of sexual orientation.

Supreme Court observed that not only in the Preamble to the 2010 Act but also in its title, the term 'harassment' is used and not 'sexual harassment', but contrarily to the apparent intent, the meaning of the term 'harassment' has been explicitly given a restrictive meaning under section 2(h) of the 2010 Act; that regretfully all such acts of harassment that fall beyond the pale of restricted definition of actionable harassment under section 2(h), could neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman.

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

----Ss. 2(h), 4(4) & 8---Ombudsperson, powers of---Scope---None of the provisions of the Protection against Harassment of Women at Workplace Act, 2010 ('the 2010 Act') empowered the Federal Ombudsman to reinstate an aggrieved person/complainant back into service---Federal Ombudsman had no jurisdiction to enquire into and give findings as regard to the disciplinary proceeding against an employee of the organization, as disciplinary matters fell beyond the realm of the authority and jurisdiction of Federal Ombudsman under the 2010 Act.

Petitioner in person along with Nadeem A. Sh, Advocate Supreme Court (as probono).

Agha Muhammad Ali, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondent No.6.

M. Nazeer Jawad, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No. 11.

P L D 2021 Supreme Court 795

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

GUL REHMAN---Petitioner

Versus

The STATE through AG, KP, Peshawar---Respondent

Criminal Petition No. 624 of 2021, decided on 7th July, 2021.

(Against the order dated 04.06.2021 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous (Bail Application) No. 1665-P of 2021).

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

----Ss. 497(2) & 173---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss. 15 & 17---Unlicensed possession of arms and ammunition ---Bail, grant of---Delay in submitting investigation report (challan) before Trial Court---Investigation report (challan) had still not been submitted before the Trial Court despite the accused being in custody (for a period of over two months), and thus available for investigation---Accused was a local of a known address and the offence attracted a maximum punishment of seven years and the prohibitory clause (of S.497, Cr.P.C.) was not attracted---Trial had still not commenced and would not commence till the prosecution submitted the investigation report (challan)---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

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

----S. 173(1), proviso---Investigation report (challan)---Delay in the submission of investigation reports (challans) in the province of Khyber Pakhtunkhwa---Supreme Court recorded its observations deprecating such practice in the province and gave appropriate directions for redressing the same.

Section 173, Cr.P.C was repeatedly being disobeyed in the province of Khyber Pakhtunkhwa. Belated submission of investigation reports, and for no ostensible reason, undermined the rule of law and was a good indicator of bad governance.

Due to the neglect of the police and prosecution in not submitting investigation reports (challans) trials could not commence; trials which would probably conclude by the time the matter of bail came before the Supreme Court. Therefore, either the accused was kept from being punished for the crime committed by him or he was unable to secure his freedom on being acquitted; in either eventuality a wrong signal was sent out, which was that either the judiciary was unnecessarily releasing the accused on bail or keeping innocent persons incarcerated for no good reason. Moreover, the focus shifted away from the early conclusion of trials to incidental matters, such as pursuing the remedy of bail by the accused and the resources of the State and in most cases also those of the complainant's, expended in opposing bail. Court time was also wasted in attending to bail matters which would have been better spent in attending to the trial and appeals.

Supreme Court directed that Chief Secretary, Khyber Pakhtunkhwa shall arrange and chair a meeting in which the Provincial Police Officer, the Secretary, Home and Tribal Affairs Department, the Director, Public Prosecution and the Advocate General of the province participate to once and for all resolve the endemic problem of delayed submission of investigation reports (challans); that pursuant to such meeting, a report signed by all the said officers shall be submitted to the Supreme Court for consideration in Chambers within one month from the receipt of present order, and that failing to submit report or one which did not resolve the problem may constrain the Court to take notice and pass appropriate orders.

Malik Nasrum Minallah, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Shumail Aziz, Additional Advocate General, Khyber Pakhtunkhwa for the State.

P L D 2021 Supreme Court 799

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

IFTIKHAR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 529 of 2021, decided on 14th July, 2021.

(Against the order of Lahore High Court, Lahore dated 19.04.2021, passed in Criminal Miscellaneous No. 5350-B of 2021).

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

----S. 497(1)---Bail, grant of---Offences not falling within prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such offences was a rule and refusal thereof an exception.

Tariq Bashir v. State PLD 1995 SC 34; Imtiaz Ahmad v. State PLD 1997 SC 545; Subhan Khan v. State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 and Muhammad Tanveer v. State PLD 2017 SC 733 ref.

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

----S. 497(1)---Post-arrest bail---Offences not falling within prohibitory clause of S.497(1), Cr.P.C.---Principles relating to post-arrest bail in offences not falling within prohibitory clause of S.497(1), Cr.P.C. stated.

The main purpose of keeping an under-trial accused in detention was to secure his attendance at the trial so that the trial was conducted and concluded expeditiously or to protect and safeguard the society, if there was an apprehension of repetition of offence or commission of any other untoward act by the accused. Therefore, in order to make the case of an accused person fall under the exception to the rule of grant of bail in offences not covered by the prohibitory clause of section 497(1) Cr.P.C., the prosecution had to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person was released on bail. Some of the circumstances or conduct of the accused person that may bring his case under the exceptions to the rule of granting bail included the likelihood of: (a) his abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he had prima facie acted in the commission of offence alleged. A court which dealt with an application for grant of bail in an offence not falling within the prohibitory clause of section 497(1), Cr.P.C. must apply its judicious mind to the facts and circumstances of the case and to the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offence only when it found any of the noted circumstances or some other striking circumstance that impinged on the proceedings of the trial or posed a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above were not exhaustive and the facts and circumstances of each case were to be evaluated for application of the said principle.

Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 and Muhammad Tanveer v. State PLD 2017 SC 733 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Offences not falling within prohibitory clause of S.497(1), Cr.P.C.---Courts below had not mentioned any circumstance that may bring the case of the accused under the exception of declining bail in offences not falling within the prohibitory clause of S.497(1), Cr.P.C. nor the counsel for State or complainant could show any such circumstance or conduct of the accused that would bring his case under exception to the rule of granting bail in such offences---Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Rana Muhammad Zahid, Advocate Supreme Court for Petitioner.

Mirza Usman, DPG for the State.

Syed Farhad Ali Shah, Advocate Supreme Court for the Complainant.

P L D 2021 Supreme Court 804

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD RASHID---Petitioner

Versus

The STATE and others---Respondents

Crl. P. 457-L of 2021, decided on 19th July, 2021.

Supreme Court Rules, 1980---

----O. IV, Rr. 2, 17 & O.VII, R.1---Criminal Procedure Code (V of 1898), Ss. 154 & 197---Advocate-on-Record, duty of---Better copy of FIR, omissions in---In the present case, the better copy of FIR appended with bail petition was missing certain (important) lines---Better copy of FIR placed in judicial file which carried the same omission, had been duly attested by the Advocate-on-Record ("AOR"), while the copy placed in the paper books before the Supreme Court did not carry the said attestation---Held, that such grave omission could totally misdirect the course of justice and result in injustice---Under O. VII, R. 1 of the Supreme Court Rules, 1980 ("Rules) copies of documents, if not forming part of the record of the Court appealed from, filed for the use of the Supreme Court, shall be certified to be true copies by the AOR for parties presenting the same---Under O. IV, R. 17 of the Rules the AOR undertook to abide by the Rules---Under O. IV, R. 2 an AOR could be adjudged guilty of professional misconduct or otherwise be considered unfit to be enrolled or allowed to remain as an advocate---In the present case, the better copy of the FIR attested by the AOR carried serious omissions---Supreme Court issued notice to the AOR to furnish his explanation for filing the incomplete better copy of the FIR in question and directed that Office shall ensure that only better copy duly attested by the AOR must be placed before the Court and to avoid any confusion, the actual copy of the FIR must accompany the better copy; that similarly, in the case of the Medico legal Certificate ("MLC"), if a better copy of the MLC was placed on the record, it must be duly attested by the AOR as per the Rules and the actual copy of the MLC must accompany the better copy---Case was adjourned for next date of hearing with the counsel for accused undertaking to place complete better copy of the FIR, as well as, the medical evidence before the Court.

Ch. Ahmad Khan Gondal, Advocate Supreme Court for Petitioner.

Khurram Khan, Addl. P.G. along with Riaz Ahmed, S.I. for the State.

P L D 2021 Supreme Court 806

Present: Umar Ata Bandial, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ

FEDERATION OF PAKISTAN throughSecretary, Ministry of Industries and Production and another---Petitioners

Versus

HAMZA SUGAR MILLS LTD. and others---Respondents

Civil Petitions Nos. 4540 and 4541 of 2021, decided on 12th August, 2021.

(Against the order dated 3.8.2021 of the Lahore High Court, Lahore passed in W.P. No.48537 of 21 and W.P. No.48555 of 2021)

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Commercial and policy matters---Pricing mechanism of edible commodities---In the discharge of their duties and functions, the Courts did not supervise pricing nor monitor profit and loss dealings by or between the stakeholders.

Constitutional Courts of the country had a duty to resolve legal disputes coming before them in accordance with the Constitution and the law. In the discharge of their duties and functions, the Courts did not supervise pricing nor monitor profit and loss dealings by or between the stakeholders.

In the present case, the High Court entered the uncertain territory of monitoring commercial and policy terms regulating the supply of an edible commodity in the market. Such endeavour was far removed from its jurisdiction vested by Article 199 of the Constitution and was likely to involve technical details that were outside the realm of judicial adjudication.

Judicial consideration by the High Court ought to be devoted to resolving the legal dispute between the parties rather than the pricing mechanism regulating commercial and policy matters. Petitions for leave to appeal were converted into appeals and disposed of.

Ch. Aamir Rehman, Addl. A.G. and Asad Ali Bajwa, D.A.G. for the Petitioners.

Ali Sibtain Fazli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.1-8 (in C.P. No. 4541 of 2021).

Imtiaz Rashid Siddiqui, Advocate Supreme Court, Shehryar Kasuri, Advocate Supreme Court and Husnain Ibrahim Kazmi, Advocate Supreme Court for Respondents Nos.1-8 (in C.P. No. 4540 of 2021).

Salman Akram Raja, Advocate Supreme Court for Respondents Nos.5-6 (in C.P. No. 4540 of 2021)

P L D 2021 Supreme Court 809

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and others---Respondents

Crl. P. 1050-L of 2020, decided on 26th July, 2021.

(Against the order dated 16.09.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No.39205-B/2020)

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Jurisdiction of the Supreme Court and High Courts---Difference between the appellate jurisdiction of the Supreme Court under Art. 185(3) of the Constitution in bail matters and the original jurisdiction of the High Court under S.498, Cr.P.C. to grant bail highlighted.

Section 498, Cr.P.C. conferred original and concurrent jurisdiction on the High Court and Court of Session to grant bail, by stating that "the High Court or Court of Session may in any case…direct that any person be admitted to bail". That was why when a trial court, for instance, a Court of Magistrate, declined to grant post arrest bail under section 497, Cr.P.C. to a person accused of having committed a non-bailable offence, the accused filed a fresh petition under section 498, Cr.P.C. in the Court of Session and, in case of failure to obtain the relief once again approached the High Court. The Court of Session and the High Court had original jurisdiction to grant bail and they made their own independent orders on the said petitions without commenting upon and setting aside the order of the trial court. The power of the High Court and the Court of Session, under section 498, Cr.P.C., to grant post arrest bail was thus co-extensive and concurrent with that of the trial court under section 497 Cr.P.C., while the power to grant pre-arrest bail under the said section was exclusive to them.

Muhammad Ayoob v. Muhammad Yakoob PLD 1966 SC 1003 ref.

The appellate jurisdiction of the Supreme Court, under Article 185(3) of the Constitution, in bail matters was quite distinct from the original jurisdiction of the High Court and Court of Session under section 498, Cr.P.C. The essential criterion of appellate jurisdiction was that it examined and if required corrected the errors, if any, of a lower forum. That being the nature of appellate jurisdiction, the Supreme Court examined the legality of the orders passed by the High Court in bail matters and corrected those orders in appellate jurisdiction under Article 185(3) of the Constitution only when it found that the High Court had exercised the discretion in granting or declining bail arbitrarily, perversely or contrary to the settled principles of law, regulating bail matters.

Haq Nawaz v. State 1969 SCMR 174 and Zaro v. State 1974 SCMR 11 ref.

Ms. Tasnim Ameen, Advocate-on-Record for Petitioner along with Petitioner.

Khurram Khan, Addl. P.G. along with Akmal, S.I. for the State.

P L D 2021 Supreme Court 812

Present: Qazi Faez Isa and Yahya Afridi, JJ

GHULAM QASIM and others---Petitioners

Versus

Mst. RAZIA BEGUM and others---Respondents

Civil Petition No. 957 of 2020, decided on 25th June, 2021.

(Against the judgment dated 22.01.2020 passed by Lahore High Court, Multan Bench, Multan in C.R. No. 481 of 2012)

(a) Gift----

---Proof---Brothers depriving their sister of her share in inheritance through a purported gift of immoveable property made by their father---Witnesses were produced by the petitioners (brothers)/purported donees with regard to the purported gift and gift mutation, however both witnesses testified that they had no knowledge of the gift and also admitted that the purported donor (father of the parties) had never attended the offices of the concerned revenue department to record his statement; they had also contradicted themselves with regard to the gift mutation document as they testified that purported donor had thumb impressed it and mentioned the number of his national identity card thereon, but the said mutation document contained neither---Said witnesses did not assert that the purported donor had gifted the property in his lifetime---Respondent(sister)/plaintiff produced the death certificate of the father/purported donor which was issued by the concerned Union Council---Petitioners did not object to her producing the death certificate---Petitioners did not produce a contrary death certificate to establish that the purported donor was alive at the time the purported gift was made---Purported gift mutation was made after the death of the purported donor, who could not have gifted the property after his death---Supreme Court directed that the purported gift mutation was to be cancelled immediately, and that the concerned department shall promptly prepare the inheritance mutation of the deceased father of the parties and record the rights of his legal heirs in accordance with Muslim Personal Law and deliver possession to them as per their respective shares without further loss of time---Petition for leave to appeal was dismissed with costs throughout payable by the petitioners.

(b) Islamic law---

----Inheritance---Immediately on the death of a person, his/her legal heirs became owners of his estate under Islamic law.

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Reshman Bibi v. Amir 2004 SCMR 392; Mirza Abid Baig v. Zahid Sabir 2020 SCMR 601 and Farhan Aslam v. Mst. Nuzba Shaheen 2021 SCMR 179 ref.

(c) Islamic law---

----Inheritance---Legal heirs---Constructive possession of immoveable property ---Possession by an heir was considered to be constructive possession on behalf of all the heirs.

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Khair Din v .Salaman PLD 2002 SC 677 ref.

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

----S. 3---Inheritance dispute between legal heirs over immoveable property---Filing of suit---Limitation---Cause of action, accrual of---Scope---Cause of action would only accrue when a legal heir was denied his/her rights, and it would be from such date that the time would start to run---Burden to establish this would lay on the defendant-legal heirs---However, law of limitation would be relevant when the conduct of the claimant-legal heir demonstrated acquiescence and particularly when third party interest was created in the inherited property.

Mst. Grana v. Sahib Kamala Bibi PLD 2014 SC 167; Muhammad Rustam v. Mst. Makhan Jan 2013 SCMR 299; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657; Atta Muhammad v. Maula Bakhsh, 2007 SCMR 1446 and Aslam v. Mst. Kamalzai PLD 1974 SC 207 ref.

(e) Constitution of Pakistan---

----Arts. 23, 24, 25(3), 34 & 38(a)---Inheritance rights of females---Practice of male legal heirs depriving their sisters of their share of inheritance---Observations recorded by the Supreme Court deprecating such practice.

In Pakistan, male heirs continued to deprive female heirs of their inheritance by resorting to different tactics and by employing dubious devices. The shares in the property of a deceased Muslim were prescribed in the Holy Quran and Shariah. [p. 819] G

The Holy Qur'an, Text Translation and Commentary by Abdullah Yusuf Ali, Surah An-Nisa (4), verse 7; Surah An-Nisa (4), verse 11; Atta Muhammad v. Mst. Munir Sultan 2021 SCMR 73; 2016 SCMR 986 and PLD 2002 SC 677 ref.

To deny an heir his/her share in the property left by the deceased was disobedience to Almighty Allah's decree and those who did so, while they may obtain a temporary benefit in this world, left themselves accountable to divine punishment in the Hereafter.

Surah An-Nisa (4), verse 13 andSurah An-Nisa (4), verse 14 ref.

Despite the Supreme Court repeatedly pointing out (in its judgments) that effective measures must be put in place to protect the rights of inheritance of females, it had still not been done. Those few ladies who had the independence, determination and resources to take their brothers to court were left embroiled in slow grind litigation. The adage prevention was the best medicine was equally applicable when female rights were impaired. The State must ensure the protection of rights which was far easier, cheaper and less wasteful of public resources than restoring rights through the courts, which was laborious, expensive and needlessly wasteful of resources.

Constitution specifically protected property rights and enables the making of 'special provision for the protection of women and children' [Article 25(3) of the Constitution)]. Depriving females of their inheritance prescribed by Shariah violates the Principles of Policy set out in the Constitution. Denying females their inheritance also undermined their economic independence, prevented a rise in their standard of living and concentrates wealth in male descendants, which offended another three Principles of Policy [Article 38(a) of the Constitution)]. Economic deprivation of women prevented their full participation 'in all spheres of life' which was another Principle (Article 34 of the Constitution) which was violated.

(f) Constitution of Pakistan---

----Pt. II, Chaps. 1 & 2---Principles of Policy---Scope---Provisions relating to Fundamental Rights in the Constitution ought to be interpreted harmoniously with the Principles of Policy---Constitution required each organ or authority of the State to act in accordance with said Principles---Principles of Policy were the conscience of the Constitution and the basis of all executive and legislative action.

1994 SCMR 1548; 2015 SCMR 1739; PLD 2020 SC 508; 2001 SCMR 1161; Farhan Aslam v. Mst. Nuzba Shaheen 2021 SCMR 179 and PLD 1988 SC 416 ref.

(g) Constitution of Pakistan---

----Arts. 29(3)---Principles of Policy---President and Governors to submit annual reports on the observance and implementation of the Principles of Policy---Scope---Such reports to be submitted by the President and Governors were a mandatory duty akin to a performance audit of the Government---When the required reports were not submitted by the President and the Governors respectively to the Parliament and the Provincial Assemblies, then these legislative bodies may not possess information which would help them to legislate where there were weaknesses and disparities---Supreme Court observed that it was expected that the President and the Governors shall fulfil their constitutional duty, in such regard, under Art. 29(3) of the Constitution.

1981 SCMR 341 ref.

Aftab Alam Yasir, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Malik M. Latif Khokhar, Advocate Supreme Court for Respondents.

Respondents Nos. 2-3: Not represented.

P L D 2021 Supreme Court 822

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

AKASH MASIH---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 1079-L of 2020, decided on 30th July, 2021.

(Against the order dated 11.09.2020 passed by the Lahore High Court, Lahore in Crl. Misc. No.23063-B/2020).

Supreme Court Rules, 1980---

----O. IV, Rr.6, 15, 22 & 25 & Sixth Sched., Form 5---Advocate-on-Record---Duties of an Advocate-on-Record and importance of his/her role under the Supreme Court Rules, 1980 stated.

Role of an Advocate-on-Record (AOR) was pivotal in the dispensation of justice in the Supreme Court. Under Rule 6 of Order IV of the Supreme Court Rules, 1980 ("Rules"), no advocate other than an AOR could appear or plead in any matter unless he was instructed by an AOR. Under Rule 15 of Order IV of the Rules, no advocate other than an AOR was entitled to act for a party in any proceedings in the Court. Further, every AOR before acting on behalf of any person or party was to file in the Registry a power of attorney in the manner prescribed in Form 5 of the Sixth Schedule to the Rules. Under the terms of the prescribed power of attorney an AOR was, inter alia, authorized to appear and defend his or her client; to file and take back documents; to accept the processes of the Court; to appoint and instruct counsel; to represent his client in the matter and to do all things incidental to such acting for the client. Under Rule 25 of Order IV of the Rules, every AOR in the case was personally liable to the Court for due payment of all fees and charges payable to the Court. These provisions unambiguously showed the fundamental role played by an AOR in the life of a case filed before the Supreme Court.

Case and court management system at the Supreme Court was hugely dependent on the quality of professional services rendered by the AOR. Failure of the AOR to carry out his/her obligations as envisaged under the Rules or the terms of his/her Power of Attorney unnecessarily delayeda matter and seriously hampered the reduction of pendency of cases before the Supreme Court.

Mst. Tasneem Amin, Advocate-on-Record for Petitioner.

Rana Abdul Majeed, Addl. P.G. for the State.

P L D 2021 Supreme Court 825

Present: Gulzar Ahmed, C.J., Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Yahya Afridi, JJ

REFERENCE NO. 1 OF 2020: In the matter of

Reference No. 1 of 2020, decided on 1st March, 2021.

Per Gulzar Ahmed, CJ, Mushir Alam, Umar Ata Bandial and Ijaz ul Ahsan, JJ agreeing; Yahya Afridi, J. dissenting.

(a) Constitution of Pakistan---

----Arts. 59(1), 59(2), 186 & 226---Elections Act (XXXIII of 2017), S. 122(6)---Reference by the President under Art. 186 of the Constitution---Maintainability---Senate elections---Voting procedure---Secrecy of ballot---Question asked in the Reference was whether the condition of 'secret ballot' referred to in Art. 226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Art. 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017---Whether the question asked in the Reference was a political question and hence the Reference was not maintainable---Held, that the question that had been posed before the Court by the present Reference was more of interpretation of the Constitutional provisions, particularly, Art. 226 of the Constitution and in all circumstances, it was the exclusive domain of the superior Courts especially the Supreme Court, to interpret the Constitutional provisions---Present Reference and the question posed before the Court was within the domain of Art. 186 of the Constitution---Reference was held to be maintainable accordingly.

Survey of case law regarding References sent to the Supreme Court for its opinion showed that most diverse questions had been sent for opinion, which questions were of law and of public importance. The consensus of these opinions showed that whenever question or questions were sent to the Supreme Court for opinion, the Court had always given its opinion. However, where the question did not admit of opinion, the Court had answered it accordingly. As to what the opinion of the Court would be, the same could only be decided on examining the material placed before the Court for seeking of the opinion.

Reference by His Excellency the Governor-General PLD 1955 FC 435; Reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan PLD 1957 SC 219; Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by the President Zulfiqar Ali Bhutto PLD 1973 SC 563; Reference made by the President of Pakistan under Article 186 of the Constitution PLD 1989 SC 75; Al-Jihad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84; Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873 and Reference No.1 of 2012 (PLD 2013 SC 279) ref.

Broadly speaking, questions such as that of Foreign policy, Defence of the country from external threat, Monetary policy, making amendments in the Constitution, organizing the governments at the Federal and Provincial level apparently, were questions purely of political nature and the Courts always exercised restraint in entering upon such questions as these necessarily were best left to the people, subject, however to the law laid down by the Supreme Court in the case of District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)

District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 ref.

The question that had been posed before the Court by the present Reference was more of interpretation of the Constitutional provisions, particularly, Article 226 of the Constitution and in all circumstances, it was the exclusive domain of the superior Courts especially the Supreme Court, to interpret the Constitutional provisions.

Thus, the Superior Courts including the Supreme Court, being the exclusive forum for the interpretation of the constitutional provisions, conferred on it by the Constitution itself, and the question which was raised in the present Reference being primarily of interpretation of the constitutional provisions, particularly, its Article 226, the present Reference was maintainable. Present Reference and the question posed before the Court was within the domain of Article 186 of the Constitution.

(b) Constitution of Pakistan---

----Arts. 59(1), 59(2), 186 & 226---Elections Act (XXXIII of 2017), Ss. 81 & 122(6)---Reference by the President under Art. 186 of the Constitution---Senate elections---Voting procedure---Secrecy of ballot---Question asked in the Reference was whether the condition of 'secret ballot' referred to in Art. 226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Art. 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017---Held, that the election to the Senate were elections under the Constitution and they were to be held by secret ballot---However, the concept of secrecy of ballot was not absolute and need not be implemented in the ideal or absolute sense but had to be tempered by practical considerations necessitated by the processes of election.

Niaz Ahmad v. Azizuddin and others PLD 1967 SC 466 ref.

(c) Interpretation of Constitution---

----Constitution was an organic whole---No provision of the Constitution could be interpreted in isolation, rather the Constitution had to be read organically and holistically, and Articles and Clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the readers because the meaning of the Constitution had to be gathered from the Constitution as an integrated whole, not as a mechanical deduction but based on reasons.

(d) Interpretation of Constitution---

----Settled principle of interpretation of the constitutional provisions was that there was a possibility of restricting the meaning of certain words in the Constitution, to the situation provided by the Constitution itself---No different meaning could be assigned to specific words in a given provision of the Constitution for the reason that in other places the Constitution had used different terminologies---Even though there may be different terminologies used in the Constitution but until any nexus was found by those other terminologies to the terminology used in a specific provision of the Constitution, the very specific provision had to be given plain meaning to it without reading into it.

(e) Constitution of Pakistan---

----Arts. 51 & 59---Elections Act (XXXIII of 2017), S. 122---Elections for National Assembly and Senate---Scope---Elections to both the Houses (of Parliament) were provided by the Constitution itself---Such elections could not be taken out from the purview of the Constitution on basis of an interpretation to the effect that were held under the Elections Act, 2017---Such interpretation would not be harmonious and holistic construction of the Constitution.

(f) Constitution of Pakistan---

----Arts. 213(1), 218(3) & 222---Election Commission and Election Commissioner, powers of---Scope---Election Commissioner or the Election Commission had all powers vested in them to ensure that the elections were organized and conducted honestly, justly, fairly and in accordance with law and corrupt practices were guarded against---Furthermore, in order to achieve the mandate of the Election Commission in terms of Art. 218(3) read with Art. 220 and other enabling provisions of the Constitution and the law, the Election Commission was required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against.

Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 ref.

Per Yahya Afridi, J (Minority view)

(g) Constitution of Pakistan---

----Art. 186---Advisory jurisdiction of the Supreme Court---Reference by the President to the Supreme Court under Art. 186 of the Constitution - Pre-requisites and scope---Reading of Art. 186 of the Constitution highlighted three essentials: first, the President had the power to refer a 'question of law' to the Supreme Court for consideration and reporting its opinion thereon; second, the President must consider the said question to be of 'public importance'; and lastly, the Supreme Court was to consider and report its opinion on the referred 'question of law' of 'public importance'---Authority to determine, whether a particular 'question' was of 'public importance' was conferred by the Constitution on the President, but the determination, as to whether or not the same was a 'question of law', did not fall within his exclusive domain - but remained with the Supreme Court, and that too, as a jurisdictional fact, before the Supreme Court ventured to render its opinion on the question referred to it in the Reference---Thus, once the Court found that the 'question' referred to it was a 'question of law', only then would the Supreme Court consider the same, and report its opinion thereon to the President. [Minority view]

(h) Constitution of Pakistan---

----Arts. 48(1) & 186---Advisory jurisdiction of the Supreme Court---Principles relating to the nature and scope of Advisory jurisdiction of the Supreme Court under Art. 186 of the Constitution stated. [Minority view].

Following are the principles relating to the nature and scope of Advisory jurisdiction of the Supreme Court under Article 186 of the Constitution:

(i) Advisory jurisdiction of the Supreme Court could be invoked by the President on the advice of the Cabinet or the Prime Minister, as per Article 48(1) of the Constitution;

PLD 1997 SC 84 ref.

(ii) Advisory jurisdiction of the Supreme Court was comprehensive to cover both the questions of law, which had arisen or the question of law, which was likely to arise in the future;

PLD 2005 SC 873 ref.

(iii) Guidance of the Supreme Court was sought in advisory jurisdiction with the object to avoid controversies and to ensure that Constitutional provisions were fully enforced;

PLD 2005 SC 873 ref.

(iv) No one was strictly a party to the Reference and right of hearing could not be claimed by anyone as of right in advisory jurisdiction;

PLD 1973 SC 563 ref.

(v) The principles of law laid down by Supreme Court in adjudicatory jurisdiction could not be reviewed in advisory jurisdiction;

PLD 2013 SC 279 ref.

(vi) The Supreme Court sitting in advisory jurisdiction was not a factfinding Tribunal and the Reference had to be answered on the assumption of facts on which it had been made without entering into a fact-finding enquiry as to their accuracy;

PLD 1989 SC 75 ref.

(vii) Opinion of the Supreme Court given in advisory jurisdiction had the binding effect, when it was formed and delivered after undertaking an extensive judicial exercise of hearing, evaluating and appreciating the arguments advanced by the Advocates appearing on behalf of the parties summoned by the Court, and was to be esteemed utmost by all the organs of the State;

PLD 2005 SC 873 ref.

(viii) The Supreme Court was not bound to answer every question referred to it for opinion in advisory jurisdiction. The Court may return the question unanswered for some cogent reasons, like, if it found that the question was of a too general character, or the question was not suitable to be determined in advisory jurisdiction, or the question had already been decided by the Court in adjudicatory jurisdiction;

PLD 1955 FC 435 and PLD 2013 SC 279 ref.

(ix) Questions of law referred for advisory opinion must be cast in a precise and exact form, and it should not be too general. It should not be left to the counsel to supplement the Reference during the course of hearing of oral submissions;

PLD 1955 FC 435 and Reference of Estate Duty Bill AIR 1944 FC 73 ref.

(x) The Supreme Court could not, in advisory jurisdiction, decide the matter as a lis between the parties, wherein exercise of other powers were available to the Court including discretionary powers and pass consequential directions;

(xi) An 'opinion' recorded by the Supreme Court in its 'Advisory jurisdiction' conferred by Article 186 of the Constitution, was distinct from the 'judgment', 'decision' or 'order' rendered by the Supreme Court under its 'adjudicatory jurisdiction' conferred by Articles 184, 185, 187 and 188 of the Constitution; and

(xii) The Supreme Court cannot change, amend and rephrase the text of the question referred by the President or add any further question thereto. The 'Advisory jurisdiction' of the Supreme Court, under Article 186 of the Constitution, was restricted only to the text of the question referred by the President. Any change to the question referred could only be done in accordance with the procedure prescribed for referring the question, that is, by the President on advice of the Prime Minister. The Supreme Court could record its 'opinion' only on the question, which was referred, and not on the question, which could have been but had not been referred.

(i) Constitution of Pakistan---

---Arts. 59(1), 59(2), 186 & 226---Elections Act (XXXIII of 2017), S. 122(6)---Reference by the President under Art. 186 of the Constitution---Senate elections---Voting procedure---Secrecy of ballot---Question asked in the Reference was whether the condition of 'secret ballot' referred to in Art. 226 of the Constitution, was applicable only for the elections held 'under' the Constitution such as the election to the office of President, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate held under the Elections Act, 2017, enacted pursuant to Art. 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017---Whether the Reference lacked clarity and precision and whether it raised a political question, the determination whereof was to be left to the Parliament---Held, that the referred question failed to reveal, in what respect, with what object, or to avoid what controversy, guidance of the Court had been sought in its 'advisory jurisdiction'---In fact, it appeared to be a general question in abstract (lacking clarity and precision), and required one to guess the true purport thereof - the election of Senate---Articulation of the question could have been made simpler to avoid ambiguity and vagueness---Furthermore in present Reference the question referred had political implications---With a clear split between the ruling political parties and major opposition political parties (on how to resolve the issue of secrecy of ballot during the Senate elections), and the charged political atmosphere, the resolution of the question through intervention of the Court, and that too in its advisory jurisdiction, would be, inappropriate and invite untoward criticism on the Court---Opinion being sought in the present Reference was not a question of law within the contemplation of Art. 186 of the Constitution, thus, it was to be returned unanswered. [Minority view]

A careful reading of the question posed in the Reference revealed that it contained three statements: the first two statements were couched as instances by the use of expression 'such as'; and the third statement adjoined with the second statement of instance by the use of expression 'which'. To further clarify the point, and highlight the ambiguity in the actual question sought to be answered, one may segregate the three statements from the text of the question referred to the Court in the Reference. The said three statements were:

(i) the election to the offices of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies are held under the Constitution;

(ii) the election for the members of the Senate of Pakistan falls within the category of elections other than those held under the Constitution and is held under the Elections Act, 2017, enacted pursuant to Art. 222 read with Entry 41, Part 1, Fourth Schedule to the Constitution; and

(iii) the elections that are held under the Elections Act, 2017 may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017.

With the above statements separated, the actual question that remained to be answered by the Court was: Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution, was applicable only for the elections held 'under' the Constitution…and not to other elections…?

Upon a patient reading of the above actual question referred to the Court, the present Reference does not provide the essential clarity to be ascertained therefrom. Thus, the referred question failed to reveal, in what respect, with what object, or to avoid what controversy, guidance of the Court had been sought in its 'advisory jurisdiction'. In fact, it appeared to be a general question in abstract, and required one to guess the true purport thereof - the election of Senate. The composite form in which the question was referred to the Court in the Reference, remained a cause of concern. The articulation of the question could have been made simpler to avoid ambiguity and vagueness. More than one Reference questions could have been framed in clear, concise and precise terms, and referred to for opinion in a single Reference, as there was no legal compulsion to restrict a Reference to only one question.

In the present Reference, it was not in dispute that the question referred had political implications; the Federal Government earlier, unsuccessfully attempted to resolve it through a constitutional amendment; and all major political parties in opposition wanted resolution of the question through political and legislative process in Parliament. In such a clear split between the ruling political parties and major opposition political parties, and the charged political atmosphere, the resolution of the question through intervention of the Court, and that too in its advisory jurisdiction, would be, inappropriate and invite untoward criticism on the Court.

The question referred in the Reference by the President was vague, general, lacking the requisite clarity and precision, and therefore did not qualify to be a 'question of law' envisaged under Article 186 of the Constitution, thus, exercising discretion of abstention from expressing any 'opinion' thereon, it was to be returned unanswered.

His Lordship observed that democracy was never bereft of divide; that the very essence of the political system was to rectify such disagreements, but to take this key characteristic outside the realm of the political system and transfer it to the judiciary, threatened the very core of democratic choice - raison d'etre' of democracy; that there would always be crucial events in the life of a nation, where the political system may disappoint, but this could not lead to the conclusion that the judiciary would provide a better recourse; that in fact, the role of the courts ought not be expanded to entrench on other organs of the state, but must remain to function within the ambit of determining questions on the basis of legality alone, as otherwise the courts could pass findings on political issues, without being politically accountable or responsible to anyone; that careful judicial treading was needed to ensure that the courts were not indulging in decision-making to rectify moral wrongs, which should best be left in the hands of the elected majority.

Trials of the State Law and the Decline of Politics by Jonathan Sumption ref.

(j) Constitution of Pakistan---

----Arts.186(2) & 187(1)---Advisory jurisdiction of the Supreme Court---Scope---Directions, issuance of---Power of issuing such directions was not available to the Supreme Court, while answering a 'question of law' referred to it by the President under Art. 186 of the Constitution---'Advisory jurisdiction' of the Court, under clause (2) of Art. 186 of the Constitution, was restricted to consider the question referred and report its opinion only on that question to the President---Ancillary and inherent powers that the Court had under Art. 187(1) of the Constitution to issue such directions, orders or decrees as may be necessary for doing 'complete justice' in any case or matter pending before it, were not available to the Court while exercising 'advisory jurisdiction. [Minority view]

Reference No. 1 of 1988 (PLD 1989 SC 75) and Reference No. 1 of 2012 (PLD 2013 SC 279) ref.

(k) Constitution of Pakistan---

----Arts. 184, 185, 186, 187 & 188---'Adjudicatory jurisdiction' and 'Advisory jurisdiction' of the Supreme Court---Political questions---If the determination of any question raised before the Supreme Court required interpretation of any provision of the Constitution, the Court was obliged to 'adjudicate' upon the same, notwithstanding that the question raised had some political overtones---Supreme Court should not decline to adjudicate a case, or to answer a question of law involving interpretation of some provisions of the law or the Constitution raised therein, in its 'adjudicatory jurisdiction' merely because the decision of the case or the determination of the question would have some political repercussions---But the position would be different, when a 'question of law' that had, political implication was referred to the Supreme Court for its 'opinion', in its 'advisory jurisdiction' under Art. 186 of the Constitution---In such jurisdiction, the Court had the discretion not to answer the question; the only restraint was that, like all other discretions, the Court was to exercise this discretion judiciously for valid reasons and not arbitrarily---Involvement of the Court in political disputes in its advisory jurisdiction would also have, the effect of compromising the dignity and honour of the apex Court of the country. [Minority view]

Ishaq Khakwani v. Nawaz Sharif PLD 2015 SC 275; Nawaz Sharif v. Federation PLD 1993 SC 433; DBA, Rawalpindi v. Federation PLD 2015 SC 401 and Ismail Frauqui v. Union of India AIR 1995 SC 605 ref.

Khalid Jawed Khan, Attorney General for Pakistan, Sohail Mehmood, Addl. Attorney General for Pakistan, Ayaz Shaukat, D.A.G. [Assisted by Ms. Maryum Rasheed, Advocate] for the Federation (in Reference No. 1/2020) (in C.M.As. Nos. 127-128, 170, 989 and 1293 of 2021).

Abdul Latif Yousafzai, Senior Advocate Supreme Court, Muhammad Mushtaq, Addl. Secretary (Legislation), Muhammad Waqar, DPO (Lit.) for the National Assembly (in C.M.A. No. 278 of 2021).

Senator Muhammad Ali Khan Saif and Muhammad Javed Iqbal, DD for the Senate of Pakistan (in C.M.A.296 of 2021).

Sikandar Sultan Raja, Chief Election Commissioner, Justice (R) Muhammad Iltaf Ibrahim Qureshi, Member (Punjab), Mrs. Justice (R) Irshad Qaiser, Member (KP) Mr. Shah Mehmood Jatoi, Member (Balochistan), Nisar Ahmed Durrani, Member (Sindh), Sajeel Shehryar Swati, Advocate Supreme Court, Sana Ullah Zahid, Advocate Supreme Court, L.A., Dr. Akhtar Nazir, Secretary and Muhammad Arshad, DG (Law) for the Election Commission (in C.M.As. Nos. 210, 808, 880, 983 and 1010 of 2021).

Ahmed Awais, A.G., Barrister Qasim Ali Chohan, Addl.AG Ms. Imrana Baloch, Advocate-on-Record for Government of Punjab (in C.M.A. No. 95 of 2021).

Salman Talib ud Din, A.G. and Sibtain Mahmud, Addl. A.G., (via video link from Karachi) for Government of Sindh (in C.M.A. No. 386 of 2021).

Shumail Ahmad Butt, A.G., Atif Ali Khan, Addl. A.G. for Government of Khyber Pakhtunkhwa (in C.M.A. No.104 of 2021).

Arbab M. Tahir, A.G. Muhammad Ayaz Khan Swati, Addl. A.G. and Muhammad Fareed Dogar, A.A.G. for Government of Balochistan (in C.M.A. No. 185 of 2021).

Niazullah Khan Niazi, A.G. for ICT (in C.M.A. No. 149 of 2021).

Kamran Murtaza, Senior Advocate Supreme Court, Jehangir Khan Jadoon, Advocate Supreme Court for JUI (in C.M.As. Nos. 129 and 541 of 2021).

Salahuddin Ahmed, Barrister Omer Soomro, Advocates Supreme Court and Syed Riffaqat Hussain Shah, Advocate-on-Record (Assisted by Ravi Pinjani, Advocate Supreme Court) for SHCBA (in C.M.As. Nos. 297 and 1119 of 2021).

Hassan Irfan Khan, Advocate Supreme Court (in C.M.As. Nos. 130, 1201 and 1292 of 2021).

Mian Raza Rabbani, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for PPP (in C.M.As. Nos. 131, 704 and 1217 of 2021).

Malik Qamar Afzal, Advocate Supreme Court (in C.M.As. Nos. 154 and 1295 of 2021).

Ishtiaq Ahmed Raja, Advocate Supreme Court for JI (in C.M.A. No. 211 of 2021).

Syed Iqbal Hashmi, Advocate Supreme Court for JI (in C.M.A. No. 231 of 2021).

Barrister Zafar Ullah, Advocate Supreme Court for PML (N) (in C.M.As. Nos. 784 and 1231 of 2021).

Mansoor Usman Awan, Advocate Supreme Court for Pakistan Bar Council (in C.M.As. Nos. 807 and 1200 and 2021).

Farooq H. Naek, Senior Advocate Supreme Court for PPP (P) (in C.M.As. Nos. 872 and 1218 of 2021).

Khurram Shehzad Chughtai, Advocate, High Court, in person (in C.M.As. Nos. 908, 1008, 1026 to 1030 of 2021).

Azhar Iqbal, Advocate Supreme Court (in C.M.A. No. 1115 of 2021).

Waheed Ahmed Kamal, in person (in C.M.A. No. 1233 of 2021).

Dates of hearing: 4th, 11th, 13th, 14th January, 2nd, 3rd, 4th, 8th, 10th, 11th, 15th, 16th, 17th, 18th, 19th, 22nd, 23rd, 24th and 25th February, 2021.

OPINION

GULZAR AHMED, C.J.---This Reference No.1 of 2020 under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, has been received from the President of Pakistan, in which opinion of this Court has been sought on the following question:--

"Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017?"

1. Notices were issued to the Advocates General of all the Provinces including the Islamabad Capital Territory. Notices were also issued to the Speaker of the National Assembly, Chairman of the Senate of Pakistan and Speakers of all the Provincial Assemblies i.e. Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan, as well as the Election Commission of Pakistan. Notice was also published in newspaper so that any other person, who wishes to be heard in the matter, may do so.

2. Learned Attorney General for Pakistan has contended that the specific question on which opinion has been sought by the President of Pakistan is in respect of scope of Article 226 of the Constitution, as it presently stands and whether reference to 'election under the Constitution' made in this Article includes election for Members of Senate to be conducted under the Elections Act, 2017. He has made submissions regarding the maintainability and scope of reference under Article 186 of the Constitution and in this respect has relied upon opinion of a 12-Member Bench of this Court in Reference No.2 of 2005 by the President of Pakistan (PLD 2005 SC 873) with regard to Hisba Bill. He contended that once the President considers that the question of law of public importance has arisen, Reference under Article 186 of the Constitution could be sent and the Court will consider the same and give its opinion. He also referred to the case of Reference No.1 of 1973 reported as Special reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by President Zulfikar Ali Bhutto (PLD 1973 SC 563), regarding adoption of Resolution by the National Assembly for recognition of Bangladesh.

3. As regards the merit of the Reference, learned Attorney General opened his arguments by giving the scheme of the Constitution, where elections are to be conducted. He has contended that Constitution has provided Bodies and Offices to be filled through elections or appointments. He has referred to Article 41(3) read with Clause 12 of the Second Schedule of the Constitution, which provide for election of the President by secret ballot. He has referred to Articles 53 and 108 of the Constitution, which deals with the elections of the Speaker and the Deputy Speaker of the National and the Provincial Assemblies, Chairman and Deputy Chairman of the Senate, held under Article 60 of the Constitution by secret ballot. He has referred to the elections of the Prime Minister and Chief Ministers, which are conducted under Articles 91(3) and 130(3) of the Constitution. He has contended that Bodies created under the Constitution are National Assembly, Senate and Provincial Assemblies and their elections are held under the Elections Act, 2017.

4. The learned Attorney General dealt with the question of composition and the term of the National and the Provincial Assemblies and mode of elections provided in the Constitution and also the composition and term of Senate of Pakistan. He contended that the election is primarily about the machinery provisions and it is not merely about balloting, either secret or open. He contended that balloting is one aspect in the process of holding of elections, which the Court has construed broadly. He referred to Article 222 of the Constitution and contended that by this Article, Parliament has been given power to make laws for elections in the National Assembly, Senate and the Provincial Assemblies. He has contended that pursuant to this power, given to the Parliament, the Parliament has framed the Electoral Rolls Act, 1974, the Delimitation of Constituencies Act, 1974, the Senate (Election) Act, 1975 and the Representation of People Act, 1976. All the four above noted laws were repealed by the Parliament by making a new consolidated Elections Act, 2017, which is a complete code, providing for elections in the National Assembly, Provincial Assemblies and the Senate.

5. Learned Attorney General referred to Article 225 of the Constitution, which provides that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by the Act of Majlis-e-Shoora (Parliament) and noted that this Article only allows challenge to the elections of Senate, National Assembly and Provincial Assemblies by an election petition under the Elections Act, 2017. He contended that no such bar extends to elections held under the Constitution, i.e. of the President, the Prime Minister, the Chief Ministers, the Speaker and Deputy Speaker of National and Provincial Assemblies and the Chairman and Deputy Chairman, Senate.

6. While dealing with Article 226 of the Constitution, learned Attorney General referring to different terms or words used in different provisions of the Constitution and submitted that though the Houses are constituted by or under the Constitution, the elections to these Houses are elections under the Elections Act, 2017, and not under the Constitution and that the elections under Article 226 of the Constitution is only restricted to the elections held under the Constitution, that of the President, etc.

7. Learned Attorney General referred to the manner of holding of elections of the President provided in the Constitution and contended that if secret ballot was to be conducted for the elections in Senate, the word secret could have been added in Article 59(2) of the Constitution, which specifies the system of proportional representation by means of single transferable vote for election in Senate, under the Elections Act, 2017, but owing to the provision of Article 222 of the Constitution, the Parliament would have required to provide for election of Senate by secret ballot. He contended that in terms of section 81 of the Elections Act, 2017, elections of National and Provincial Assemblies are provided to be held by secret ballot and this law cannot be amended by changing it to open ballot and gave reasons for it. He also referred to an order of this Court dated 15.04.2016 passed in Civil Appeals Nos.760 to 765 of 2016, in the case of Province of Sindh v. Muttahida Qaumi Movement, where this Court has held that elections of the Local Governments are outside the ambit of Article 226 of the Constitution.

8. The learned Attorney General emphasized about the transparency and purity of elections for attainment of the Constitutional objectives and contended that heavy responsibility lies upon the Election Commission of Pakistan to ensure free, fair and transparent elections. In support of his submissions, the learned Attorney General has relied upon the cases of District Bar Association, Rawalpindi and others v. Federation of Pakistan and another (PLD 2015 SC 401), Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Sharif and others (PLD 2015 SC 275), People's Union for Civil Liberties and another v. Union of India and another ((2013) 10 SCC 1), Shailesh Manubhai Parmar v. Election Commission of India through Chief Election Commissioner and others (AIR 2018 SC 3918), Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2013 SC 406), Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others (PLD 2014 SC 531), Speaker, National Assembly of Pakistan, Islamabad and others v. Habib Akram and others and Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others (PLD 2018 SC 678 and 405), Muttahida Qaumi Movement (MQM) through the leader of the opposition and others v. Province of Sindh through Chief Secretary, Karachi and others (PLD 2017 Sindh 169), Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department through Secretary and another (PLD 2014 Balochistan 206), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Malik Ameer Haider Sangha and another v. Mrs. Sumaira Malik and others (2018 SCMR 1166), Sally Textile Mills Limited and another v. Collector of Customs, Customs House, Karachi (1991 SCMR 721), Begum B. H. Syed v. Mst. Afzal Jahan Begum and another (PLD 1970 SC 29), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), Reference by the President of India under Article 143 (1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement relating to Berubari Union and Exchange of Enclaves. (AIR 1960 SC 845), Kuldip Nayar v. Union of India and others (AIR 2006 SC 3127), Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), In the matter of: Reference No.2 of 2005 by the President of Pakistan (PLD 2005 SC 873), Abid Hussain v. Mst. Afsar Jehan Begum and others (PLD 1973 SC 1), Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602), The Commissioner of IncomeTax/Wealth Tax v. Messrs Engineering Cooperative Housing Society, Lahore (2000 PTD 3388), Dalco Engineering Private Ltd. v. Shree Satish Prabhakar Padhye and others. With Fancy Rehabilitation Trust and another v. Union of India and others (AIR 2010 SC 1576), Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808), Election Commission of Pakistan v. Asif Iqbal and others (PLD 1992 SC 342), Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others (2020 SCMR 1), Muhammad Akram Baloch v. Akbar Askani and others (2014 CLC 878), Hakam Qureshi, President, District Bar Association, Lahore and 2 others v. The Judges of the Lahore High Court through the Registrar and another (PLD 1976 SC 713) and S. Raghbir Sindh Gill v. S. Gurcharan Singh Tohra and others (AIR 1980 SC 1362).

9. Mr. Ahmed Awais, learned Advocate General, Punjab, adopted the arguments of the learned Attorney General. He additionally contended that the election to the Senate is held pursuant to the mandate given by the electorate and such mandate of the electorate cannot be stolen by indiscipline on the part of the elected representatives. He contended that the elections to the Senate are marred by corruption and corrupt practices and Article 59 of the Constitution does not speak of secret ballot for election to the seat of Senate.

10. Mr. Arbab Muhammad Tahir, learned Advocate General Balochistan also adopted the arguments of the learned Attorney General and referred to Quranic verse on corruption and Article 21 of the Universal Declaration of Human Rights. He contended that the Election Commission of Pakistan is empowered to make pre-pole and post-pole arrangements to ensure corruption free elections, Referring to section 238 of the Elections Act, 2017, he contended that the domestic and international election observers are allowed to observe the process of conduct of elections, access to Polling Stations, counting of votes and consolidation of results in the elections of National and the Provincial Assemblies and it should be extended to the elections of the Senate also. He has relied upon the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681).

11. Mr. Niaz Ullah Khan Niazi, learned Advocate General, Islamabad Capital Territory (ICT) also adopted the arguments of the learned Attorney General and while referring to Article 218(3) of the Constitution, contended that it is the function of the Election Commission of Pakistan to organize and conduct the elections and make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that the corrupt practices are guarded against. He in support of his submissions has relied upon the following cases of Niaz Ahmad v. Aiziuddin and others (PLD 1967 SC 466), S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others (AIR 1980 SC 1362), A. Neelalohithadasan Nadar v. George Mascrene and others (1994 SCC Suppl (2) 619), Nayini Narasimha Reddy v. Dr. K. Laxman and others [(2006) 5 SCC 239], Kuldip Nayar and other v. Union of India and others (2006) 7 SCC 1), Shailesh Manubhai v. ECL (2018) 9 SCC 100), Air Marshal (Retd). Muhammad Asghar Khan v. General (Retd). Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1) and Ch. Nasir Iqbal and others v. Federation of Pakistan through Secretary Law and others (PLD 2014 SC 72).

12. Mr. Shumail Ahmad Butt, learned Advocate General, Khyber Pakhtunkhwa has supported the Reference made by the President and adopted the arguments of the learned Attorney General. Additionally, he has contended that the Parliament, in terms of Article 222 of the Constitution, possesses the power to effect amendment in section 122(6) of the Elections Act, 2017, by changing the mode and manner of conduct of elections by secret ballot to that of open ballot. He contended that the elections 'under the Constitution' are those of the President, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Prime Minister, Speaker and Deputy Speaker of the Provincial Assemblies and the Chief Ministers of the Provinces. With the specific provision in Article 226 of the Constitution, the elections of the Prime Minister and the Chief Ministers have been excluded from being conducted by secret ballot. He has also contended that regarding secret ballot this Court has already given its judgment in the case of Niaz Ahmed v. Azizuddin and others (PLD 1967 Supreme Court 466), where it has been held that secrecy of ballot is not an absolute rule. He has relied upon the cases of District Bar Association, Rawalpindi and others v. Federation of Pakistan and another (PLD 2015 SC 401), Muttahida Qaumi Movement (MQM) through the leader of the opposition and others v. Province of Sindh through Chief Secretary, Karachi and others (PLD 2017 Sindh 169), Attaullah and another v. Government of Balochistan, Local Government Rural Development and Agrovilles Department through Secretary and another (PLD 2014 Bal. 206) and Kuldip Nayar v. Union of India and others (AIR 2006 SC 3127).

13. Mr. Salman Talib ud Din, learned Advocate General, Sindh, contended that Article 186 of the Constitution requires obtaining of opinion from the Supreme Court by the President on pure question of law. He contended that there is no proof of corruption in Senate election and it is all based upon hearsay. He further contended that the question raised in the Reference is a political question.

14. The learned Advocate General also contended that the Constitution provides machinery for holding of elections and imposes burden upon the Election Commission of Pakistan to hold the election honestly, justly, fairly and in accordance with law and the Election Commission should ensure that the elections are held accordingly. He further contended that Article 226 of the Constitution does not allow open ballot, in that, election of members of the Senate could not be allowed by open ballot. He has further referred to Articles 51 and 59 of the Constitution to contend that open ballot for election in the Senate is not allowed by the Constitution.

15. Mian Raza Rabbani, learned Sr. ASC appearing for himself and also for Pakistan Peoples' Party, has filed C.M.As. Nos.131/2021, 704/2021 and 1217/2021. He has raised an objection regarding the very maintainability of the Reference by contending that proceedings under Article 186 of the Constitution not similar to that of Article 184(3) thereof and the present Reference has ingredients of a petition under Article 184(3) ibid. He has taken us through the history of creation of Pakistan and evolution of Article 226 of the Constitution and contended that he does not stand to defend non-transparency in the electoral process and that the democratic culture evolved in Pakistan cannot be viewed in isolation to the society, and Pakistani society in all its spheres is corrupt to the core and democratic culture is the reflection of the same. He contended that in order to cleanse this very democratic culture, patchwork cannot solve the issue but requires a consolidated political package that will cover electoral reforms of Senate election to the General Elections and Local Governments' Elections.

16. He contended that though he and his party do not support horse trading but the present legal dispensation as per the Constitution, requires Constitutional amendment and an electoral reforms package is required. He made reference to the mala fide of the Cabinet and gave instances of the same and while referring to Article 172 of the Constitution of 1962, contended that this Article provides that all elections and referendums under this part shall be decided by secret ballots and Article 226 of the Constitution of 1973, has carried forward the intent of the framers of the Constitution, and Article 226 of the Constitution of 1973 is of wider scope than that of Article 172 of the Constitution of 1962, which includes all elections. He contended that the original Article 226 of the Constitution was amended by the Constitution (Third Amendment) Order, 1985, and subsequently through Constitutional (Eighteenth Amendment) Act, 2010, the original Article 226 of the Constitution was restored. He contended that the Senate is a House that represents Federation and protect the interest of the Federating units and not the political parties.

17. Mr. Farooq H. Naek, learned Sr. ASC on behalf of Pakistan Peoples' Party Parliamentarian filed C.M.A. No.872 of 2021. He has contended that the aim of the applicant is to build a progressive and democratic society in accordance with principles, philosophies and politics of Quaid-e-Azam Muhammad Ali Jinnah. He contended that it is evident from the bare reading of Article 186 of the Constitution that the President may obtain opinion of this Court on any question of law, whereas the question sent by the President is in essence a political question, especially in the given circumstances when the Government had already moved the (Twenty-sixth Constitution Amendment) Bill but after its failure to get the amendment, used the office of the President in shape of Reference under Article 186 of the Constitution. This Court has already decided that political questions are non-justiciable before the Courts of law.

18. With regard to the question whether the Senate Elections are held under the Constitution, he submitted that the Senate Elections are under the Constitution for the reason that Constitution of Senate, the number of its members, the electoral system of proportional representation by means of single transferable vote, the term of office, qualification and disqualification, the timing of election, the conduct of election, the method of challenging the elections are all laid down in the Constitution itself. The Reference concedes that the election of Chairman and Deputy Chairman of Senate, Speaker and Deputy Speaker of National Assembly are under the Constitution. The relevant Articles with respect to the said positions do not offer any more details when compared with relevant provisions of the Senate election, therefore, there is no reasonable differentia to take the Senate election out of the ambit of Article 226 of the Constitution. He further contended that the literal rule of interpretation is that the Legislature says what it means and means what it says. Applying this rule to Article 226 ibid the election to the Senate is to be held by the secret ballot.

19. Barrister Zafar Ullah Khan, learned ASC on behalf of Pakistan Muslim League (N) has filed C.M.A. No.1231 of 2021. He has argued that the question that Senate election should be through secret or open balloting is purely a political question, therefore, this Court may refrain from entering into political debate. Further contended that the doctrine of secrecy of ballot has a peculiar historical and philosophical background. Secrecy is linked with fundamental rights and international obligations and is ensured under the whole scheme of the Constitution. Without secrecy, representative democracy will be seriously damaged. The Constitution is binding social contract and its interpretation be in a way to integrate the nation and not to polarize it. Reference aims at a retrogressive step and also amounts to amending the Constitution.

20. Mr. Kamran Murtaza, Sr.ASC on behalf of Jamiatulema-e-Islam filed C.M.As. Nos.211 and 541 of 2021. He has submitted the instant Reference is not maintainable, inasmuch as, it raises a political question for which the Parliament is the appropriate forum. As the Government lacks sufficient number in the Parliament, it is trying to use this Court indirectly to make amendments in the Constitution. It is further submitted that the President before passing an Ordinance under Article 89, is bound to act on the advice of the Cabinet and the Prime Minister and the term "satisfaction" is dependent upon the mechanism referred in the Rules of Business, 1973. However, the Election (Amendment) Ordinance, 2021, has been issued on the behest of one political party hurriedly, without waiting the outcome of this Reference, which shows the contradictory and confused position of the Government.

21. Mr. Mansoor Usman Awan, learned ASC on behalf of Pakistan Bar Council has submitted C.M.As. Nos.807 and 1200 of 2021. He has contended that the language of Article 226 of the Constitution contains no qualifier which limits its application to only the Elections for which the procedure has been provided in the Constitution. In presence of clear and unambiguous language, chosen by the framers of the Constitution, any distinction falls foul of principle of 'causes omissus'. Reference in this behalf was made to the case of Reference No.1 of 2012 (PLD 2013 SC 279). He contended that the Constitution prescribe the procedure for only one election, namely, the election of President, in Second Schedule to the Constitution. If Article 226 of the Constitution is to apply only to the elections for which the procedure is provided in the Constitution, it would mean that sole purpose for enacting Article 226 ibid, was to apply it only to the election of the President, however, the use of phrase 'All Elections' further substantiates this argument. Further contended that the Senate elections are held pursuant to the provisions of Part VIII of the Constitution under which through Article 218 of the Constitution, the Election Commission of Pakistan has been created. This Article clearly specifies that the elections which are to be conducted under the Constitution, are the elections of both Houses of the Parliament and the Provincial Assemblies and all other elections, may be 'specified by Law', as contained in Article 218 of the Constitution. Further Contended that under Article 59(2) of the Constitution, elections are by way of 'system of proportional representation by means of the single transferable vote', which are distinct from the elections 'through proportional representation system of political parties' lists of candidates', as provided in Article 51(6) (d) of the Constitution. The requirement of guarding against the corrupt practices, under the Elections Act, 2017 and the law laid down by this Court, does not require the secrecy of the ballot to be breached. Thus, this Court may declare that the elections under the Constitution, including the Senate elections, may only be conducted by secret ballot pursuant to Article 226 of the Constitution.

22. Mr. Salahuddin Ahmed, learned ASC on behalf of the Sindh High Court Bar Association submitted C.M.A. No.297 of 2021. He has argued that the President has wrongly and prematurely invoked Article 186 of the Constitution and the necessary preconditions for the same are not met. Inasmuch as the Reference is purposely designed to indulge in a political question, and it is an attempt to effect a Constitutional Amendment under guise of an advisory Reference. Thus, this Court may decline to answer such Reference.

23. Learned counsel further contended that the Senate elections are the elections 'under the Constitution', as such the requirement of secret balloting, contained in Article 226 of the Constitution, is fully applicable and changing it to allow open balloting is not possible without a Constitutional Amendment. Thus, this Court may render opinion that the requirement of secret ballot in Article 226 of the Constitution is fully and squarely applicable to the Senate elections under Article 59 of the Constitution.

24. Mr. Khurram Shehzad Chughtai, learned ASC has filed C.M.A. No.908 of 2021. He has contended that the question framed in the Reference is not a question of law rather a political question for the simple reason that the whole set of assertions, grounds, contentions and arguments of the learned Attorney General are based on factual controversy that is buying of votes by the candidates in the election of Senate, which are result of secret ballot, therefore, the open ballot should be adopted. It is further submitted that the President has sent this Reference for advice of this Court to defeat the clear Constitutional provisions regarding 'secret ballot' contrary to his constitutional role and has also promulgated the Elections (Amendment) Ordinance, 2021. The actions in connection with the Reference and the said Ordinance are ex facie an attempt to disturb the legislative business regarding elections and also an attempt to cause harm to the constitutional mandate of Election Commission of Pakistan. Thus, the Reference and the said Ordinance are prima facie tainted with malice in Law and facts. Further contended that there is not a single election, which was unanimously accepted as free and fair by all the political parties and always challenged by loosing parties. In 2014, a Parliamentary Committee on Electoral Reforms was constituted, which after deliberations and considerations submitted its report, pursuant thereto the Constitution (Twenty-sixth Amendment) Bill, 2017, which is still under consideration. In January, 2020, a Cabinet Committee was constituted to formulate recommendations regarding electoral reforms to ensure free and fair elections in the country based upon the recommendations of the Committee. The Cabinet approved electoral reforms package, which is still under consideration. It is the fundamental duty and obligation of the Parliament to provide mechanism for free and fair election.

25. Mr. Qamar Afzal, learned ASC has filed C.M.As. Nos. 154 and 1295 of 2021 and has submitted that our Constitution is an instructive Constitution and not an exhaustive one, which is like a seed in womb to allow growth, therefore, it has provided Advisory Jurisdiction under Article 186 of the Constitution empowering this Court to exercise a sovereign inherent authority which is more than a report or opinion. The object of the Reference is to get an opinion from this Court that the Senate elections are not conducted "under the Constitution", and if this be so through an amendment in section 122(6) of the Elections Act, 2017, the Senate election could be held through open balloting. This Court has sovereign authority to discuss the merits and demerits of secret balloting vis-à-vis open balloting and may advise a solution finally to be undertaken by the Parliament. It was prayed that this Court may answer the Reference by declaring the Senate election "under the Constitution", with an exception to Article 59(b) and (c) of the Constitution and may advise that the secret vote cast shall be open for inspection after the expiry of the tenure of the public office for which the vote is cast.

26. Mr. Waheed Ahmed Kamal, Secretary General, Pakistan Tehreek-e-Insaf (Gulalai) has filed C.M.A. No.1233 of 2021. He has submitted that the danger in secret balloting is that the corruption will rank high and will damage the integrity of the country. There is allegation of buying of votes in the Senate election for handsome amount of money, which practice should be stopped.

27. Syed Iqbal Hashmi, learned ASC has filed C.M.A. No.231 of 2021. He has addressed on the history of Article 226 of the Constitution and prayed for allowing him to assist this Court.

28. Mr. Hassan Ifran Khan, learned ASC has filed C.M.A. No.1201 of 2021. He has submitted that the Senate election is clearly "under the Constitution", as provided by Article 59 of the Constitution. The procedure for election is provided under Article 59(1)(a) to (f) and Article 59(2) of the Constitution through proportional representation by means of the single transferable vote. The Elections Act, 2017 only provides various procedural steps to be adopted in the election process. Article 59 of the Constitution does not provide for secret ballot because under Article 226 of the Constitution, the secret ballot has to be adopted for all elections held under the Constitution, except the Prime Minister and the Chief Minister. The Senate elections are not separate from the elections of the Chairman and the Deputy Chairman of Senate but part and parcel of each other. There is no basis for the Reference to say that while the elections to the Office of the Chairman and the Deputy Chairman of Senate, fall "under the Constitution", the election for members of the Senate are not under the Constitution. Article 226 of the Constitution excludes only election of Prime Minister and Chief Minister and does not exclude the Senate elections. The issues of corrupt practices in the elections have already been addressed by the Elections Act, 2017. Thus, the Reference in question may be answered in negative.

29. Mr. Muddassur Hassan, Advocate High Court, has submitted C.M.As. Nos. 130 and 1292 of 2021. He has argued that the word "All" in Article 226 of the Constitution, was used to emphasize not to exclude any one of the elections mentioned in the Constitution from the application of Article 226 of the Constitution. If the intention of the legislation was to exclude the Senate election from the scope and application of Article 226 of the Constitution it could have clearly done so, in the same manner as was done in the case of Prime Minister and the Chief Minister.

30. Mr. Azhar Iqbal, learned ASC has submitted C.M.A. No. 111 of 2021. He has argued that in democracy there is no place for corrupt practices. In order to counter the rampant corruption in the Senate election, it is very important to make certain arrangements for guarding against the corrupt practices and the only mode is to print serial number on the counter file as well as on the ballot paper.

31. Mr. Sajeel Sheryar Swati, learned ASC has filed concise statements on behalf of the Election Commission of Pakistan, wherein it is submitted that Article 226 contains three phrases, 'all', 'under the Constitution' and 'other than', which are relevant for the purpose of this Reference. The Reference, primarily, rests on the interpretation of the term 'under the Constitution' and suggests that an election, which is not under the Constitution, could be conducted in a manner other than by 'secret ballot'. The most ordinarily and natural meaning elucidate by Article 226 ibid is that 'elections under the Constitution' are those elections, which are held by or under the authority of the Constitution. This Article provides only two exceptions, namely, election to the office of the Prime Minister and the Chief Minister. As per rules of statutory interpretation when exceptions to a general rule have been specified in the rule itself, those are the only exceptions and no other exception can be implied or read into the said provision.

32. We have considered the submission made by the learned counsel and have also gone through the record.

33. As the issue of very maintainability of the Reference has been raised, we take up this issue first.

34. The learned Advocate General, Sindh, has raised the objection that the Reference raises a political question and therefore, this Court may not give its opinion. Similar objection has also been raised by Mr. Farooq H. Naek, Mr. Zafrullah Khan, Mr. Kamran Murtaz, Mr. Salah-ud-Din Ahmed and Mr. Khurram Shahzad Chughtai, learned counsel. Mian Raza Rabbani, learned Sr. ASC has objected to the Reference on the ground that proceedings under Article 186 are not akin to that of Article 184(3) of the Constitution and the present Reference has ingredients of a petition under Article 184(3) of the Constitution.

35. The learned Attorney General has made submissions regarding the very maintainability of the Reference. He has contended that the Reference is very much maintainable and the President of Pakistan has rightly made the Reference in which opinion of this Court has been sought on the question of law, which the President has considered to be of public importance, and this Court has to consider such a question and report its opinion to the President. He has cited previous precedents on which the President has sought opinion from this Court and the Court has given its opinion.

36. Whether the question, as is posed by the President in the present Reference, is a question of law of public importance, learned Attorney General has contended that it is such a question and admitted that the question as to whether it is desirable to amend any provision of the Constitution or the law, including Article 226 of the Constitution, or whether there exists a consensus in the Parliament in that regard, are political issues which fall within the exclusive domain of the Parliament, however, as it is within the exclusive domain of this Court to interpret the Constitutional provision, the President has sought opinion of this Court, which necessarily requires interpretation of the Constitution with particular reference to Article 226 of the Constitution.

37. The Constitution of 1973 in its Article 186, has given Advisory Jurisdiction to this Court in the following terms:

"186. Advisory Jurisdiction (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President."

The plain reading of this Article shows that if at any time the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to this Court for consideration, and this Court shall consider a question so referred and report its opinion on the said question to the President. The underlined principle is that the question has to be of law and of public importance.

1. The first ever Reference under the Advisory Jurisdiction of this Court was filed by his Excellency the Governor General, which is reported as Reference by His Excellency the Governor-General (PLD 1955 FC 435). In this Reference, the Governor General has referred the following question to the then Federal Court:

"(1) What are the powers and responsibilities, of the Governor-General in respect of the Government of the country before the new Constituent Convention passes the necessary legislation?

(2) The Federal Court having held in Usif Patel's case that the laws listed in the Schedule to the Emergency Powers Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective effect given to them, and no Legislature competent to validate such laws being in existence, is there any provision in the constitution or any rule of law applicable to the situation by which the Governor-General can by order or otherwise declare that all orders made, decisions taken and other acts done under those laws shall be valid and enforceable and those laws which cannot without danger to the State be removed from the existing legal system shall be treated as part of the law of the land until the question of their validation is determined by the new Constituent Convention?

Subsequently as suggested in the course of this Court's order, dated the 18th April 1955, the following further questions were also referred for opinion:

(3) Whether the Constituent Assembly was rightly dissolved by the Governor-General?

(4) Whether the Constituent Convention proposed to be set up by the Governor-General will be competent to exercise the powers conferred by subsection (1) of section 8 of the Indian Independence Act, 1947, on the Constituent Assembly?

Question No. 4 was later modified and in the form in which it has now to be answered is:

Whether the Constituent Convention proposed to be set up by the Governor-General will be competent to exercise the powers conferred by section 8 of the Indian Independence Act, 1947, on the Constituent Assembly."

1. This Court extensively considered the question so posed before it and ultimately gave its opinion as follows:

"OPINION OF THE COURT

Question No. 1? What are the powers and responsibilities of the Governor-General in respect of the Government of the country before the new Constituent Convention passes the necessary legislation?

Answer-That this question is too general and need not be answered.

Question 2.-? The Federal Court having held in Usif Patel's case (PLD 1955 FC 387), that the laws listed in the Schedule to the Emergency Powers Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective effect given to them, and no Legislature competent to validate such laws being in existence, is there any provision in the Constitution or any rule of law applicable to the situation by which the Governor-General can, by order or otherwise declare that all orders made, decisions taken, and other acts done under those laws, shall be valid and enforceable and those laws which cannot without danger to the State be removed from the existing legal system shall be treated as part of the law of the land until the question of their validation is determined by the new Constituent Convention?

Answer.-That in the situation presented by the Reference the Governor-General has during the interim period that power under the common law of civil or state necessity of retrospectively validating the laws listed in the Schedule to the Emergency Powers Ordinance, 1955, and all those laws, until the question of their validation is decided upon by the Constituent Assembly are during the aforesaid period valid and enforceable in the same way as if they had been valid from the date on which they purported to come into force.

Question No.-3? Whether the Constituent Assembly was rightly dissolved by the Governor-General.

Answer.- That on the facts stated in the Reference, namely, (1) that the Constituent Assembly, though it functioned for more than 7 years, was unable to carry out the duty to frame a constitution for Pakistan to replace the transitional constitution provided by the Indian Independence Act, 1947 : (2) that in view of the repeated representations from and resolutions passed by representative bodies throughout the country the Constituent Assembly, in the opinion of the Governor-General, became in course of time wholly unrepresentative of the people of Pakistan, and ceased to be responsible to them ; (3) that for all practical purposes the Constituent Assembly assumed the form of a perpetual Legislature ; and (4) that throughout the period of its existence the Constituent Assembly asserted that the provisions made by it for the constitution of the Dominion under subsection (1) of section 8 of the Indian Independence Act were valid laws without the consent of the Governor-General, the Governor-General had under section 5 of the Indian Independence Act, legal authority to dissolve the Constituent Assembly.

Question No.4.- Whether the Constituent Convention proposed to be set up by the Governor-General, is competent to exercise the powers conferred by subsection (1) of section 8 of the Indian Independence Act, 1947, on the Constituent Assembly?

Answer.? That subject to this :

(1) that the correct name of the Constituent Convention it Constituent Assembly ;

(2) that the Governor-General's right to dissolve the Assembly can only be derived from the Indian Independence Act ;

(3) that the arrangements for representation of States and Tribal Areas can, under the proviso to subsection (3) of section 19 of the Indian Independence Act, be made only by the Constituent Assembly and not by the Governor-General ; and

(4) that the Governor-General's duty being to bring into existence a representative legislative institution he can only nominate the electorate and not members to the Constituent Assembly.

The new Assembly, constituted under the Constituent Convention Order, 1935, as amended to date, would be competent to exercise all the powers conferred by the Indian Independence Act, 1947, on the Constituent Assembly including those under section 8 of that Act."

1. In Reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan (PLD 1957 SC 219), the question for the court's opinion was as under:

"Is the Governor of a Province in Pakistan empowered under Article 83 or any other provision of the Constitution or any other principle of law to dissolve the Provincial Assembly of his Province functioning under Article 225 of the Constitution?"

The Court gave its opinion as follows:

"For these reasons, we are of the view that the Governor has no power to dissolve the Provincial Assembly functioning under Article 225, and in accordance with this opinion the reply to the Reference is in the negative."

1. In Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by the President Zulfiqar Ali Bhutto (PLD 1973 SC 563), the question for consideration, inter alia, was as under:

"Can the Resolution of the purport described in paragraph 6 above, and envisaging such constitutional measures as may be, necessary before the according of formal recognition be validly adopted by to National Assembly?

The question posed to the Court was with regard to the Government of Pakistan giving formal recognition to Bangladesh through a dissolution of the National Assembly of Pakistan. The Court gave its opinion, inter alia, that there is no bar to the National Assembly for considering or adopting the resolution of the purport described in Para-6 of the Reference.

1. In Reference made by the President of Pakistan under Article 186 of the Constitution (PLD 1989 SC 75), the President of Pakistan has sent the following question for opinion of this Court:

"In view of the aforementioned circumstances what measures may be adopted to enable the Federal and Provincial Governments to authorize incurring of expenditure out of the Federal and Provincial Consolidated Funds mentioned above in the absence of National and Provincial Assemblies after 31-10-1988 till the respective Budgets are passed by the new National and Provincial Assemblies to be elected in the ensuing general elections as aforesaid."

The Court gave its opinion as follows:

"In accordance with the majority opinion, the question referred is answered as follows:-

The question referred under Article 186(1) by the President of Pakistan is answered under Article 186(2) in the terms that the Federal and Provincial Governments can authorize incurring of expenditure out of the Federal and Provincial Consolidated Funds upto one month after the declaration of the results of the general election of the National and the Provincial Assemblies, scheduled for 16 and 19 November, 1988, respectively."

1. In Reference No.2 of 1996 reported as Al-Jihad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others (PLD 1997 SC 84) wherein petitions under Article 184(3) were also considered by this Court along with Reference, the question was whether or not the powers of the President to make appointment to the Supreme Court and the High Courts under Articles 177 and 193 of the Constitution are subject to provision of Article 48(1) of the Constitution. The unanimous opinion of the Court was as follows:

"For the reasons to be recorded later, we hold that for the appointments of Judges of the superior Courts under Articles 177 and 193, Article 48(1) of the Constitution is attracted and the President shall act in accordance with the same provided it is in accordance with the judgment in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324."

1. Another reference, Reference No. 2 of 2005 by the President of Pakistan (PLD 2005 SC 873) was in respect of constitutional validity of the Hisba Bill enacted by the Provincial Assembly of the then North-West Frontier Province (now Khyber Pakhtunkhwa). The Court not only found the reference to be maintainable but gave its opinion holding various provisions of Hisba Bill as ultra vires the Constitution.

2. Another reference, Reference No.01 of 2012 (PLD 2013 SC 279) was with regard to seniority of a Judge in the Islamabad High Court and his appointment as Chief Justice of that Court. This Court, inter alia, gave opinion that though it is desirable that the most senior Judge of the High Court should be appointed as Chief Justice of that Court, however, in view of clauses (2) and (3) of Article 175A read with clause (5) thereof, appointment of a judge not most senior judge as a Chief Justice of High Court is not violative of any provision of the Constitution.

3. The overall examination of the opinions rendered by this Court on the References made by the then Governor General and the President shows that most diverse questions have been sent for opinion of this Court, which questions were of law and of public importance. The consensus of these opinions show that whenever question or questions are sent to this Court for opinion, the Court has always given its opinion. However, where the question does not admit of opinion, the Court has answered it accordingly. As to what the opinion of the Court would be, the same can only be decided on examining the material placed before the Court for seeking of the opinion. In our view, the present Reference and the question posed before the Court is within the domain of Article 186 of the Constitution.

4. We may note that the very document of the Constitution of 1973, is a political document, which the people of Pakistan through their chosen representatives have given to themselves, in which limits of powers to be exercised by the State organs have been expressly laid down. The State and its organs have to function within those limits and all excesses of limits would be nothing but illegal. Broadly speaking, where the questions such as that of Foreign Policy, Defence of the Country from external threat, Monetary Policy, making amendments in the Constitution, organizing the governments at the Federal and Provincial level apparently, are the questions purely of political nature and the Courts always exercise restraint in entering upon such questions as these questions necessarily are best left to the people, subject, however to the law laid down by this Court in the case of District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401) which is a full Court decision.

5. The question that has been posed before the Court by the present Reference is more of interpretation of the Constitutional provisions, particularly, Article 226 of the Constitution and in all circumstances, it is the exclusive domain of the superior Courts especially this Court, to interpret the Constitutional provisions. In the District Bar Association, Rawalpindi's case ibid this Court has observed that in Pakistani Constitutional dispensation, the duty of the judiciary was to protect the Constitution as the embodiment of the will of the people. Failing to do so, would deny the role for which the Courts had been created. This important consideration must be factored into the role of the Courts and Judges while interpreting the Constitution. Powers vested in and exercisable by Courts were not a matter of Parliamentary grace or sufferance, but were granted to protect the people against the excesses, inter alia, of the State organs and functionaries. As such, these powers were to be guarded vigilantly against erosion and encroachment because the same were a grant of the Constitution for an important fiduciary purpose.

6. Thus, the superior Courts and this Court, being the exclusive forum for the interpretation of the constitutional provisions, conferred on it by the Constitution itself, and the question which is raised in the present Reference being primarily of interpretation of the constitutional provisions, particularly, its Article 226, we, in our opinion, find the Reference to be maintainable.

7. Now dealing with the question in the Reference, it is essential to read Article 226 of the Constitution, in the first place, which is as follows:-

"226. Election by secret ballot.---All elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot."

It is apparent from reading of Article 226 of the Constitution that it has made provision that all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot.

1. Before proceeding to interpret this Article of the Constitution, it is necessary to consider the scheme of the Constitution providing for the elections. The Constitution has provided Offices and Bodies, which are to be elected and those Offices are that of the President of Pakistan, the Prime Minister of Pakistan, the Speaker and the Deputy Speaker of the National Assembly, the Chairman and the Deputy Chairman of the Senate, the Chief Ministers of the Provinces and the Speaker and the Deputy Speaker of the Provincial Assemblies.

2. Article 41(3) of the Constitution provides that the President shall be elected in accordance with the provision of Second Schedule by the members of the Electoral College consisting of the members of both Houses, i.e. the National Assembly and the Senate and members of the Provincial Assemblies. The Second Schedule to the Constitution enjoins upon the Election Commission of Pakistan to hold and conduct the election of the Office of the President and whole procedure for the election and announcing of its result, has been laid down in the Second Schedule to the Constitution.

3. The election to the Office of the Prime Minister is provided under Article 91(3) of the Constitution and clause (4) thereof provides that the Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly. The election to the Office of the Speaker and the Deputy Speaker of the National Assembly is provided in Article 53(1) of the Constitution, while election to the Office of the Chairman and the Deputy Chairman of the Senate is provided in Article 60(1) of the Constitution. The election to the Office of the Chief Minister of the Province is provided under Article 130(3) of the Constitution and clause (4) thereof provides that the Chief Minister shall be elected by the votes of the majority of the total membership of the Provincial Assembly. The election to the Office of the Speaker and the Deputy Speaker of the Provincial Assembly is provided under Article 108 of the Constitution. Article 51(6) of the Constitution provides for the election of the National Assembly. Article 59(1) and (2) of the Constitution provides for the election to fill seats in the Senate.

4. As we are dealing with the matter of election to the Senate. Article 59(1) & (2) needs to be responded as under:-

"59. (1) The Senate shall consist of [ninety-six] members, of whom,-

(a) fourteen shall be elected by the members of each Provincial Assembly;

\ \ \ \ \ \ \

(c) two on general seats, and one woman and one technocrat including aalim shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe;

(d) four women shall be elected by the members of each Provincial Assembly;

(e) four technocrats including ulema shall be elected by the members of each Provincial Assembly; and

(f) four non-Muslims, one from each Province, shall be elected by the members of each Provincial Assembly:

Provided that paragraph (f) shall be effective from the next Senate election after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.

(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

Clause (1) of Article 59 of the Constitution provides that the Senate shall consist of ninety-six members and paragraphs (a) to (f) provide for election of the members of the Senate. Clause (2) of Article 59 of the Constitution provides that the election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.

1. The use of the word "elected", which is a second form of word elect of which noun is "election" will bring this very election within the term 'all elections under the Constitution', as provided in Article 226 of the Constitution and such elections are to be held by secret ballot. No other meaning to Article 226 of the Constitution can legitimately be given than the one that the election to the Senate are elections under the Constitution and they are to be held by secret ballot. No exclusion of elections either of the President, or that of the Speaker and the Deputy Speaker of the National as well as the Provincial Assemblies, and the Chairman and the Deputy Chairman of the Senate, from the ambit of Article 226 of the Constitution, which has itself excluded from its operation, the elections of the Prime Minister and the Chief Ministers.

2. Part VIII of the Constitution deals with the Elections. Chapter 2 thereof contains, inter alia, Article 222, which is as follows: -

"222. Subject to the Constitution, [Majlis-e-Shoora (Parliament)] may by law provide for-

(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election Commission [including delimitation of constituencies of local governments];

(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions the decision of doubts and disputes arising in connection with elections;

(e) matters relating to corrupt practices and other offences in connection with elections; and

(f) all other matters necessary for the due constitution of the two Houses [,] the Provincial Assemblies [and local governments];

but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or an Election Commission under this Part."

1. Pursuant to this very provision of the Constitution, the Majlis-e-Shoora (Parliament) has promulgated the Elections Act, 2017. Section 239 of the Act of 2017, gave powers to the Commission, by notification in the official gazette and published on the website of the Commission, to make rules for carrying out the purposes of the said Act. The Election Rules, 2017, have been made by the Election Commission of Pakistan, in the manner provided by section 239 of the Act of 2017.

2. Chapter VII of the Elections Act, 2017, deals with the subject of conduct of election to the Senate and it contains sections 105 to 131, where exhaustive manner has been provided for the conduct of election to the Senate. Section 122 thereof deals with the procedure of voting and subsection (6) thereof provides as follows:

"(6) The poll for election of Members of the Senate shall be held by secret ballot."

Though the above mention subsection (6) of section 122 of the Elections Act, 2017, has laid down that the poll for election of members of the Senate shall be held by secret ballot but making of this provision will not cast any shadow or doubt on provision of Article 226 of the Constitution, being a Constitutional provision which independently controls its own mandate being the supreme law of the land.

1. In section 81 of the Elections Act, 2017, provision has been made that elections shall be held by secret ballot and, subject to provisions of section 93 (Postal ballot), 94 (Voting by Overseas Pakistanis) and section 103 (Electronic voting and biometric verification). This provision is contained in Chapter V of the Elections Act, 2017, which provides for the conduct of elections to the Assemblies.

2. The learned Attorney General has contended that the elections to the Assemblies by direct and free voting is provided in the very Constitution. Such voting cannot be held by open ballot as the very principle of direct voting and free voting requires secret ballot. Thus, providing for secret ballot in section 81 of the Elections Act, 2017, does not change the very character of the elections, which are provided by the Constitution to be conducted through secret ballot. Same is the case with regard to the provision of subsection (6) of section 122 of the Elections Act, 2017, where it has provided for secret ballot in the election of the members of the Senate.

3. We may also make reference to the provision of Article 225 of the Constitution, which provides that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The learned Attorney General has contended that this very Article of the Constitution i.e. Article 225 only provides for challenge to elections for House, which is defined under Article 260 of the Constitution to mean the Senate or the National Assembly, and to the Provincial Assemblies, and this bar does not extend to the elections that of the President, the Prime Minister, the Chief Minister, the Speaker and the Deputy Speaker of the National Assembly, the Chairman and the Deputy Chairman of the Senate and the Speaker and the Deputy Speaker of the Provincial Assemblies.

4. We may not like to give any opinion on this very submission of the learned Attorney General for that while making interpretation of Article 226 of the Constitution, the construction and interpretation of Article 225 of the Constitution substantially may not be of much relevance, as no nexus, apparently, is found between the two Articles.

5. The learned Attorney General during the course of his arguments has greatly emphasized upon the provisions of paragraphs (d) and (e) of clause (6) of Article 51 of the Constitution, to contend that the reserved seats for women and reserved seats for non-Muslims in the National Assembly are not filled in by direct and free vote rather by the proportional representation system of political parties' lists of candidates. He has contended that no election to these seats are held, in that, no voting or polling for these seats are conducted, rather the names from the parties' lists for the seats provided in paragraphs (d) and (e) are accepted to be elected in the National Assembly. His contention was that this different manner of election of seats in the National Assembly, to be filled under paragraphs (d) and (e) will come in direct conflict with Article 226 of the Constitution but it can be reconciled, if it is accepted that Article 51 ibid only provides for composition and complexion of the National Assembly that is comprising of directly elected representative of the people on general seats, women seats and minority seats through method specified there, leaving the elections to be conducted in accordance with law.

6. We may note that such an interpretation as proposed by the learned Attorney General, apparently, does not read out from the Constitution as the elections to the National Assembly as a whole is provided in Article 51(6) ibid and a special method and manner of elections to the women seats and the minority seats has itself been provided in constitutional machinery, and these elections are to be held as elections under the Constitution, and cannot be legally and justifiably separated from the scheme of elections provided in the Constitution.

7. Paragraph (a) of clause (6) of Article 51 of the Constitution provides that the constituencies for the general seats shall be single member territorial constituencies and the members to fill such seats shall be elected by direct and free vote in accordance with law. This provision specifically deals with the manner in which constituencies for the general seats are to be voted and while election itself is to be conducted under the very Article 51(6) ibid, the manner of direct and free vote has been left to be in accordance with law. No such similar provision has been made in respect of the election to the seats reversed for women and seats reserved for non-Muslims, which are to be conducted in the manner as is provided in paragraphs (d) and (e) of clause (6) of Article 51 of the Constitution.

8. The learned Attorney General has contended that Article 226 of the Constitution does not use the term all elections, referred to in the Constitution, shall be by secret ballot or all elections, to the Offices and Bodies established under the Constitution, shall be by secret ballot.

9. We see no reason as to why Article 226 of the Constitution in any manner be read other than the language, which has been applied and used in the very Article and it plainly says all elections under the Constitution, other than those of the Prime Minister and the Chief Minister, shall be by secret ballot. Once the Article 226 itself uses the term 'all elections under the Constitution', it cannot be read in any other manner then that all elections under the Constitution, as stated and discussed in the preceding paras.

10. It is true that general principle of interpretation of the Constitution is that no specific provision of the Constitution has to be read in isolation. The Constitution is an organic whole. It is true that no provision of the Constitution could be interpreted in isolation, rather the Constitution has to be read organically and holistically, and articles and clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the readers because the meaning of the Constitution has to be gathered from the Constitution as an integrated whole, not as a mechanical deduction but based on reasons.

11. In this background, the learned Attorney General has read different provisions of the Constitution to demonstrate that in some of the provisions of the Constitution, the Constitution has used the words 'by the Constitution', 'under the Constitution', 'by or under the Constitution', 'by the Constitution or by Act of Parliament', 'by the Constitution or by or under any law', 'by the Constitution or by law made by Parliament', 'by, under, or by virtue of the Constitution', 'in accordance with the Constitution', 'by or under an Act of Parliament, 'by or under any law' and 'by virtue of'. He contends that by use of different terminologies in the constitutional provisions, each of such terminologies is to be given meaning in the context in which the same has been used and thus, in the present context it only means that the Houses have to be constituted by law and under the Constitution. The elections to these Houses are elections under the Elections Act, 2017 and not under the Constitution, and reference to election under Article 226 of the Constitution is only restricted to the elections held under the Constitution itself, such as, election of the President and not the election of the Houses, which are held under the Elections Act, 2017.

12. It is also settled principle of interpretation of the constitutional provisions that there is a possibility of restricting the meaning of certain words in the Constitution, to the situation provided by the Constitution itself. No different meaning could be assigned to specific words in a given provision of the Constitution for the reason that in other places the Constitution has used different terminologies. Even though there may be different terminologies used in the Constitution but until any nexus is found by those other terminologies to the terminology used in a specific provision of the Constitution, in our view, the very specific provision has to be given plain meaning to it without the reading into it.

13. As noted in the preceding discussion that the elections to the Houses are provided by the Constitution itself and we cannot see as to how the election, for Houses, which otherwise are to be held under the Constitution, could be taken out from the purview of the Constitution and hold that they are held under the Elections Act, 2017. Taking of the view, as propounded by the learned Attorney General, in our view, will not be harmonious and holistic construction of the Constitution.

14. Article 226 of the Constitution has its own characteristics and when read as a whole, leads to only one conclusion that the words 'all elections under the Constitution', are all those elections, which are provided in the Constitution including the elections to the Senate. The elections to the Senate are held under the Constitution and the procedure and machinery provision for conducting of the elections to the Senate is laid down in the Elections Act, 2017. The substantive provision of the elections to the Senate are contained in the Constitution while the Elections Act, 2017, only deals with the procedure and machinery provision for holding of such elections.

15. As regard the transparency and purity in the elections, Article 218(3) of the Constitution provides as follows: -

"218. Election Commission.---(1) ...........................……..

(2) ………………………………………………………………………….

(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."

In the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), this Court while interpreting Article 218(3) of the Constitution has observed as follows:

"40. A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to 'organize' and 'conduct the election'. The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), observed that "(g)enerally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, their scrutiny, the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election". It interpreted that the phrase 'conduct the election' as having "wide import" and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election Commission under Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively, against the standards enumerated therein.

41. The Election Commission may also exercise its powers in anticipation of an ill that may have the effect of rendering the election unfair. In the case titled as In Re: Petition filed by Syed Qaim Ali Shah Jellani (PLD 1991 Jour. 41) the Elections Commission exercised its powers under Article 218(3) pre-emptively, by making all necessary arrangements to ensure that a certain class of people would be allowed to vote. This case implies that where a violation of the standards mentioned in Article 218(3) has not as yet taken place, the Election Commission is legally empowered under Article 218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards. Furthermore, Mst. Qamar Sultana v. Public at Large (1989 MLD 360) and In Re: Complaint of Malpractices in Constituency No. NA-57, Sargodha-V (supra) both reinforce the argument that the Election Commission is fully empowered by Article 218(3) to make 'such orders as may in its opinion be necessary for ensuring that the election is fair, honest etc'. These decisions recognize that the Election Commission enjoys broad powers not only to take preemptive action but also to pass any and all orders necessary to ensure that the standards of 'honesty, justness and fairness' mentioned in Article 218(3) are met.

While dealing with the provision of Article 220 of the Constitution, this Court has observed as follows:

"42. ... Article 220 of the Constitution also directs the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities. The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process."

In the case of Ch. Nasir Iqbal and others v. Federation of Pakistan through Secretary Law and others (2013 SCMR 874), while considering the difficulties faced by the Election Commission of Pakistan regarding identification of Pakistani voters living abroad, this Court observed as follows:

" ... Firstly, amendment in the Representation of the People Act, 1976 and signing of MOUs with the countries where ECP proposed to extend the facility of voting to Overseas Pakistanis on the plea that in some of the countries such congregations are prohibited. Attending to this aspect of the case, we observe that as at present interim Government is functioning, the amendments so desired or required can be made by adhering to the procedure of temporary legislation, as provided under Article 89 of the Constitution. So far as signing of MOUs is concerned, no law has been cited, however, in this behalf if need be, the ECP can solicit opinion from the Ministry of Foreign Affairs;

Secondly, the issue of non-availability of software, which shall he used by the Overseas Pakistanis for the purpose of extending facility/benefit to cast their votes and if the Ministry of I.T. is taken into confidence or independently the I.T. experts are engaged with the mandate to prepare such software under the instruments as early as possible but in any case much before the date of polling this difficulty can also be overcome; and

Thirdly, the issue of identification of the voters/electors who are living in different countries. Again this issue relates to NADRA and on taking on board the authorities of NADRA, the issue being faced by the ECP can conveniently be resolved.

2. We are constrained to observe that these petitions are pending since 2011 onward and much time has already been given to the ECP to do the needful, but so far no progress in this behalf has been made except analyzing suggestions which were put forward by the Court itself and offering explanation to convince the Court that extending the right of franchise to the Overseas Pakistani Citizens is not possible this time but we are not persuaded because as has been observed time and again that these difficulties are not insurmountable and could conveniently be solved within a shortest possible time if there is a coordinated effort between the ECP, Ministry of Foreign Affairs, Ministry of Law and Justice, NADRA and other authorities relevant in this behalf in order to achieve the object and all possible efforts must be made to allow an opportunity to the Overseas Pakistanis so they may participate in the election of their representatives in National and Provincial Assemblies."

1. Article 222 of the Constitution while empowering the Majlis-e-Shoora (Parliament) to make laws, inter alia, providing for matters relating to corrupt practices and others offences in connection with elections but has provided that no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission. This very provision of the Constitution itself prohibits the Majils-e-Shoora (Parliament) from making of such law which shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission, thus, the Commissioner or the Election Commission has all powers vested in them to ensure that the elections are organized and conducted honestly, justly, fairly and in accordance with law and corrupt practices are guarded against.

2. Article 220 of the Constitution also provides that it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.

3. We may her make reference to the case reported as Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466), wherein there was a dispute for election to the Electoral College of Pakistan in Electoral Unit No.446, Garden Quarters, Karachi, in which some 48 votes where challenged. The Presiding Officer endorsed ballot papers, issued to the challenged voters, with the serial numbers of the Electors in the Voters' List and in some cases, the names of the voters and their parentage was also endorsed on the ballot papers. The Court dealt with the matter as follows:

"It will be seen that the majority judgment in the High Court turned on the true effect of Article 172 of the Constitution, which enjoins that all elections and referendums under Part VII of the Constitution shall be decided by secret ballot. The first question, therefore, that arises for consideration is whether this provision should be interpreted as implying that absolute and ideal secrecy is to be aimed at, during an election. If this had been the intention, however, one would have expected some further guide-lines to be given in the Constitution itself, on this point. On the contrary, the matter has been left to be regulated by sub-constitutional Legislation, as laid down in Article 164 of the Constitution. That Article reads as follows:-

"Elections and referendums required to be held under this Constitution shall, subject to this Constitution, be conducted and decided in such manner as may be provided by law."

The relevant provisions of the Act, therefore, are referable to this Article. Waheeduddin Ahmad, J., in support of his position that the Constitutional injunction regarding secrecy is an absolute one, referred to an English decision, reported as Woodward v. Sarsons and Sadler (32 L T R 867). In that case, which related to Municipal elections in England, the Presiding Officer at one of the polling stations had marked on the face of 294 ballot papers, the numbers on the burgess rolls, of the voters in question. The ballot papers so marked were rejected by the Returning Officer as invalid and his decision was upheld. It has, however, been pointed out by Anwarul Haq, J., and recognised by Farooqi, J that the case is distinguishable from the present one in so far as there was express provision in section 2 of the Ballot Act, to the effect that any ballot paper, which has not on its back the official mark or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything except the said number on the back is written or marked, by which the voter can be identified, shall be void and not counted. It cannot be said, therefore, that the decision in that case was based on any notion of absolute secrecy apart from the specific provision of the statute.

As has been noticed even in the High Court, some guidance could be obtained from the decision of this Court in Mir Ghulam Nabi Khan v. The Election Petitions Tribunal, on this point. The case dealt with a dispute about the election to the West Pakistan Interim Legislature. The arrangements made by the Governor for the conduct of elections under para. 10, Second Schedule, Establishment of West Pakistan Act, 1955, consisted of certain rules and notes of guidance issued to the Returning Officers. The rules, inter alia, provided that the poll shall be by secret ballot and that the ballot paper was to be deposited by the voter in the ballot box bearing the symbol or colour assigned to the candidate in whose favour the voter wished to vote. In addition to this, one of the directions in the notes of guidance was to the effect that the ballot boxes should be placed on the table of the Returning Officer. It was contended that the latter direction amounted to breach of the rule requiring secrecy of the ballot. It was held that in an election conducted by means of the coloured box system, it would be in the nature of things necessary that the ballot boxes were kept in the view of the Presiding Officer or some other officer appointed by him, so that foul play could be successfully averted and blind or colour blind voters could be helped to cast their votes. The reasonable interpretation of the relevant rule was that it required secrecy consistent with the supervision which was essential for a fair election to be held. It was further observed that even if absolute secrecy was contemplated by the arrangement, it did not seem fair or reasonable to disfranchise voters merely because a rule had been violated by the Returning Officer. Reliance was placed in that case on the following passage occurring in Vol. 18 of American Jurisprudence, Elections, 225:

"It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots, by the election officers charged with such responsibility, will not be held to disfranchise such voters, by throwing out their votes, on account of erroneous procedure had solely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of irregularities on the part of the election officials, unless it appears that such irregularities affect the result."

The secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election. Viewed in this light the question whether the provisions of Article 172 of the Constitution are to be regarded as mandatory or directory, would not apparently arise."

1. After we have heard the learned counsel for the parties, we have announced our opinion, which is as follows: -

OPINION OF THE COURT

For the detailed opinion to be recorded later, by majority of 4 against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is answered as follows:

(i) The Elections to the Senate of Pakistan are held "under the Constitution" and the law;

(ii) It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681);

(iii) The Election Commission of Pakistan is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission" under Part VIII, Chapter 1 of the Constitution;

(iv) Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution;

(v) As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that "the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election";

(vi) Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the

Constitution and the law, the Election Commission is

required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is "conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against".

1. Above are the reasons of the same.

Sd/-

CHIEF JUSTICE

Sd/- Sd/-

JUDGE JUDGE

Sd/- Sd/-

JUDGE JUDGE

I with respect differ with the above, and have noted my reasons for the dissent.

YAHYA AFRIDI, J.---The worthy President of the Islamic Republic of Pakistan ("President") has sought the opinion of this Court under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") on the following question:

Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017?

The Hon'ble Chief Justice of Pakistan was pleased to constitute a Bench of five Judges to consider, and report the opinion of the Court on, the question referred in the Reference. After thorough deliberation of all aspects of the question referred in the Reference, and considering the valuable submissions of the learned Attorney-General for Pakistan and all other learned counsel representing the persons, who had applied and were allowed by the Court to be heard in the present Reference, I came to the conclusion that:

"the opinion sought by the Worthy President, Islamic Republic of Pakistan in the instant Reference, is not [on] a question of law within the contemplation of Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973, accordingly, the same is returned unanswered."

Submissions

1. The learned Attorney-General for Pakistan ("Attorney-General") was first to address the Court. He commenced his submissions by adroitly submitting the concern of the worthy President regarding the state of political affairs in the then approaching Senate elections, which warranted an urgent opinion of the Court on the referred question. The core submission of the Attorney-General was that Article 226 of the Constitution requiring "secret ballot" is restricted to elections for offices and authorities, the procedure whereof is expressly provided under the Constitution and not under the Elections Act, 2017 ("Act"). He, thus, concluded that as the procedure for election to the Senate is not provided in the Constitution but in the Act, the requirement of "secret ballot" under Article 226 of the Constitution does not apply thereto. His stance was endorsed in unison by the Provincial Governments,1 where the political party that forms the Federal Government,2 or a political party in coalition with that party is in power, while the said stance was starkly opposed by the Government of Sindh, where the governing political position is otherwise.

2. Similarly, the position of the political parties who had applied and were allowed audience before the Court, also exposed a clear divide between the ruling and major opposition political parties in the Parliament. A brief resume of the stand taken by the said opposition parties is as follows:

Jamiat Ulema-e-Islam (F)

3.1. The learned counsel for Jamiat Ulema-e-Islam (F) contended that during the pendency of the present Reference, the Election (Amendment) Ordinance 2021 ("Ordinance of 2021") was issued which undermined the pending judicial proceedings of the present Reference; that different attempts are being made to ensure that the Senate elections are conducted by open ballot; and that the President cannot overreach legislative power which vests in Parliament. He prayed that the Ordinance of 2021 may be declared void and ultra vires to the Constitution as it undermines the judicial proceedings of the present pending Reference.

Jammat-e-Islami

3.2. The learned counsel for Jamaat-e-Islami contended that the present Reference is not maintainable and should be returned unanswered, as it raises a political question for which the appropriate forum would be the Parliament to amend section 122(6) of the Elections Act 2017; that the advisory jurisdiction of this Court under Article 186 of the Constitution is not binding on the other branches of government; and that, the Federal Government seeks to amend the Constitution indirectly by obtaining an opinion from this Court via the present Reference.

Pakistan People's Party (PPP)

3.3. The learned counsel for the Pakistan People's Party (PPP) contended that the present Reference should be returned unanswered, as it comprises of a political question, which is non-justiciable. Reference was made to the failure of the Federal Government to get the 26th Constitutional Amendment Bill passed through the National Assembly for amendment of Clause (2) of Article 59 and Article 226 of the Constitution, thereby submitting that the said Reference seeks to further political objectives. Without prejudice to the said contention, the learned counsel also contended that the elections to the Senate are held under the Constitution. Reliance was placed on various Articles of the Constitution to show that the Senate elections being under the Constitution are to be held by secret ballot as per Article 226 of the Constitution.

Pakistan Muslim League (N)

3.4. The learned counsel for Pakistan Muslim League (N) contended that, the question whether the election to the Senate should be by secret ballot or by open ballot is a political question, which the Court should refrain from answering, as the proper forum to address this question is the Parliament; that the present Reference is politically motivated to achieve an outcome, which could not be achieved by a constitutional amendment due to a failure of the Federal Government to pass the 26th Constitution Amendment Bill from the Parliament. Therefore, it was urged that the present Reference seeks to bypass the Parliament. It was finally prayed that the present Reference may be returned unanswered.

Article 186 of the Constitution - Advisory Jurisdiction

1. Before I attend to the submissions of the learned Attorney-General and other learned counsel for the persons that were allowed audience by the Court, it would be appropriate to first explain the import and extent of the 'Advisory Jurisdiction' vested in this Court under Article 186 of the Constitution.

2. The constitutional genesis of the 'Advisory Jurisdiction' of this Court originates from section 213 of Government of India Act, 1935 ("Act of 1935"). It was under the said provision that the Governor-General of India could send a 'question of law' to the Federal Court of British India for consideration, and that Court, after such hearing, as it thought fit, had the discretion to report its opinion thereon to the Governor-General. After independence and partition of British India, the Islamic Republic of Pakistan was governed in accordance with the Act of 1935 by virtue of section 8 of the Indian Independence Act, 1947 till promulgation of the Constitution of Pakistan, 1956 ("Constitution of 1956"). Therefore, the Federal Court of Pakistan possessed the 'Advisory Jurisdiction' under section 213 of the Act of 1935, and in fact, exercised that jurisdiction in the year 1955 in a Reference3 made by the then Governor-General of Pakistan. This Court was established under Article 148 of the Constitution of 1956, and it then replaced the Federal Court of Pakistan, as the apex court of the country. By Article 162 of the Constitution of 1956, this Court was conferred the same 'Advisory Jurisdiction'; the only difference was in the language of the provision, by substituting the words "Governor-General" and "Federal Court" with "President" and "Supreme Court", respectively. Article 59 of the Constitution of Pakistan, 1962 and later Article 187 of the Interim Constitution of Pakistan, 1972 provided for and carried on the 'Advisory Jurisdiction' of this Court. Finally, Article 186 of the present Constitution has retained the said jurisdiction of this Court, which is reproduced hereunder for reference:

186. Advisory Jurisdiction

(1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.

(Emphasis added)

A careful reading of Article 186 of the Constitution highlights three essentials: first, the worthy President has the power to refer a 'question of law' to the Supreme Court for consideration and reporting its opinion thereon; second, the worthy President must consider the said question to be of 'public importance'; and lastly, the Supreme Court is to consider and report its opinion on the referred 'question of law' of 'public importance'. The authority to determine, whether a particular 'question' is of 'public importance' is conferred by the Constitution on the worthy President, but the determination, as to whether or not the same is a 'question of law', respectfully stated, does not fall within his exclusive domain - but remains with this Court. And that too, as a jurisdictional fact, before this Court ventures to render its opinion on the question referred to it in the Reference. Thus, once the Court finds that the 'question' referred to it is a 'question of law', only then will this Court consider the same, and report its opinion thereon to the President.

1. It is noted that the opinions of this Court as well as of the Federal Court given in ten References are reported, the particulars of which are as under:

2. Reference No.1 of 1955 under section 213 of Government of India Act, 1935 (PLD 1955 FC 435).

3. Reference No. 1 of 1957 under Article 162 of the 1956 Constitution (PLD 1957 SC 219).

4. Reference No.1 of 1973 under Article 187 of the 1972 Interim Constitution (PLD 1973 SC 563).

5. Reference No. 1 of 1988 under Article 186 of the 1973 Constitution (PLD 1989 SC 75).

6. Reference No. 1 of 1996 under Article 186 of the 1973 Constitution.4

7. Reference No. 2 of 1996 under Article 186 of the 1973 Constitution (PLD 1997 SC 84).

8. Reference No. 2 of 2005 under Article 186 of the 1973 Constitution (PLD 2005 SC 873).

9. Reference No. 1 of 2006 under Article 186 of the 1973 Constitution (2007 SCMR 817).

10. Reference No. 1 of 2011 under Article 186 of the 1973 Constitution.5

11. Reference No. 1 of 2012 under Article 186 of the 1973 Constitution (PLD 2013 SC 279).

In the aforementioned References, this Court had the occasions to explore the nature and scope of its 'advisory jurisdiction', and the principles, which are relevant for the present Reference, are described succinctly, as under:

i. Advisory jurisdiction of this Court can be invoked by the President on the advice of the Cabinet or the Prime Minister, as per Article 48(1) of the Constitution.6

ii. Advisory jurisdiction of this Court is comprehensive to cover both the question of law, which has arisen or the question of law, which is likely to arise in the future.7

iii. Guidance of this Court is sought in advisory jurisdiction with the object to avoid controversies and to ensure that Constitutional provisions are fully enforced.8

iv. No one is strictly a party to the Reference and right of hearing cannot be claimed by anyone as of right in advisory jurisdiction.9

v. The principles of law laid down by Supreme Court in adjudicatory jurisdiction cannot be reviewed in advisory jurisdiction.10

vi. This Court sitting in advisory jurisdiction is not a fact-finding Tribunal and the Reference has to be answered on the assumption of facts on which it has been made without entering into a fact-finding enquiry as to their accuracy.11

vii. Opinion of this Court given in advisory jurisdiction has the binding effect, when it is formed and delivered after undertaking an extensive judicial exercise of hearing, evaluating and appreciating the arguments advanced by the Advocates appearing on behalf of the parties summoned by the Court, and is to be esteemed utmost by all the organs of the State.12

viii. This Court is not bound to answer every question referred to it for opinion in advisory jurisdiction. The Court may return the question unanswered for some cogent reasons, like, if it finds that the question is of a too general character,13 or the question is not suitable to be determined in advisory jurisdiction,14 or the question has already been decided by the Court in adjudicatory jurisdiction.15

ix. Questions of law referred for advisory opinion must be cast in a precise and exact form, and it should not be too general.16

x. This Court cannot, in advisory jurisdiction, decide the matter as a lis between the parties, wherein exercise of other powers are available to the Court including discretionary powers and pass consequential directions17

In particular, the last four principles stated above are relevant to the question referred in the present Reference, and therefore, are dilated upon in some detail, in seriatim:

Binding effect of the Opinion

1. An 'opinion' recorded by this Court in its 'Advisory Jurisdiction' conferred by Article 186 of the Constitution, is distinct from the judgment', 'decision' or 'order' rendered by this Court under its 'adjudicatory jurisdiction' conferred by Articles 184, 185, 187 and 188 of the Constitution. The distinction is apparent from the very meaning of the said relevant terms, as the same have been defined in Black's Law Dictionary:18

"Advisory Opinion. A formal opinion by judge or judges or a court or a law officer upon a question of law submitted by a legislative body or a governmental official, but not actually presented in a concrete case at law.

Judgment. The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.

Decision. A judgment or decree pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it.

Order. A mandate, precept; a command or direction authoritatively given; a rule or regulation.

Adjudication. The giving or pronouncing a judgment or decree in a cause; also the judgment given."

Apart from the stark difference in the meaning of the terms, the distinction between a 'decision' of a dispute between the contesting parties by this Court in its 'adjudicatory jurisdiction', and reporting an 'opinion' on a referred question by this Court to the worthy President in its 'advisory jurisdiction' is also accentuated by the variance in their respective procedures. In 'adjudicatory' proceedings, the Court is in substantial control of its proceedings: leave to amend the pleadings could be given at any stage, new parties may be added, and names of existing parties may be deleted; persons against whom no claim is made, but whose rights might be affected by the decision of the court, may be joined as proper parties; issues are framed by the court and may be amended at any time before judgement is delivered; if the correctness of facts is disputed, evidence must be led to prove the correct facts; further, an "ex -parte" decision of the court would bind the parties, if the party served with notice has chosen not to appear; and the judgment so recorded would operate as res judicata and equally operates as a binding precedent, if it lays down a principle of law.19 In contrast, in advisory proceedings of this Court under Article 186 of the Constitution, it is the President, and not the Court, who is in substantial control of proceedings: first, the President is to decide and formulate the 'question of law' of 'public importance', as he thinks fit for seeking an opinion of the Court; second, the Court must proceed on the facts, as stated in the Presidential Reference; and third, the Court must take, consider and report its opinion on the question referred in the Reference, as it is referred to it, lacking the legal mandate to amend the same.

1. It seems, the framers of the Constitution being cognisant of the intended legal efficacy of an 'opinion' of this Court given in its 'advisory jurisdiction' did not provide a forum of redressal to any person aggrieved thereof. This conspicuous omission of providing a forum of redressal against an 'opinion' of this Court rendered in its 'advisory jurisdiction' to an aggrieved person, becomes more distinct, when we note that the Constitution framers expressly provided the remedy of a 'review' against a judgment or an order of this Court passed in its 'adjudicatory jurisdiction', but not against the opinion given in its 'advisory jurisdiction', by enacting Article 188 in the Constitution, which is quoted below for ease of reference:

188. Review of Judgments or Orders by the Supreme Court.

The Supreme Court shall have power, subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.

1. The evolution of the judicial approach to the nature and status of the 'opinion' may be traced back to the celebrated judgment of the Privy Council in AG Ontario v. AG Canada (1912 AC 571), a Reference appeal from the Canadian jurisdiction, wherein it was held that:

"the answers [to the questions referred to for opinion of the Court] are only advisory and will have no more effect than the opinions of the law officers".

The Federal Court of British India reiterated this view of the Privy Council in the Reference of Estate Duty Bill (AIR 1944 FC 73), and the Supreme Court of India in the Reference on the matter of U.P. Legislative Assembly (AIR 1965 SC 745) and St. Xavier's College Society v. State of Gujarat (AIR 1974 SC 1389). Similarly, in our jurisdiction, a five-member Bench of this Court, while deciding two constitution petitions and answering a Reference together in Al-Jehad Trust v. Federation (PLD 1997 SC 84), observed that:

"[o]pinion of the Supreme Court [given in advisory jurisdiction under Article 186 of the Constitution] is just opinion with explanation on the question of law and is not of binding nature and it is up to the President or the Federal Government to act upon it or not."20

Without taking any judicial heed to the above stated principle of law enunciated by this Court exercising its 'adjudicatory jurisdiction', this Court later in the Hisba Bill Reference (PLD 2005 SC 873), declared the 'opinion' of the Court recorded in its 'advisory jurisdiction' to have binding effect. The nine-member bench unanimously observed:

"It is true that opinion by the Court on the reference by the President is not a decision between the parties but the Court undertakes an extensive judicial exercise during which the arguments advanced by the Advocates appearing on behalf of the parties summoned by the Court are evaluated and appreciated and then an opinion is formed, therefore, it has binding effect... [O]pinion expressed by the Supreme Court in a reference under Article 186 is required to be esteemed utmost by all the organs of the State, therefore, it would not be fair to say that the opinion expressed by the Supreme Court on Presidential Reference under Article 186 of the Constitution has no binding effect." (Emphasis provided)

It appears that this Court, while making the above finding, was influenced by the view so recorded by Chandrachud, C.J. of the Indian Supreme Court in Reference of Special Courts Bill (AIR 1979 SC 478) when he, speaking for the majority, observed:

"We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to over-rule, if necessary, the view earlier taken by it insofar as all other courts in the territory of India are concerned, they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution…….. It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all even if as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the Bill was urged before us and to think that our opinion is an exercise in futility is deeply frustrating."

We are not to lose sight of the fact that the above finding regarding the binding nature of the 'opinion' recorded by the nine-member Bench of this Court in Hisba Bill Reference, and by the Indian Supreme Court in Special Courts Bill Reference, were made by both the Supreme Courts in the course of exercising its 'advisory', not 'adjudicatory', jurisdiction. This subtle yet crucial aspect of the jurisdiction, whereunder the said finding has been recorded gives rise to a question, whether the very finding can be treated as a "decision", deciding a "question of law" or enunciating a "principle of law", and thus binding on all other courts in Pakistan, within the meaning of that expression used in Article 189 of the Constitution, which provides:

189. Decisions of Supreme Court binding on other Courts.

Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.

1. Keeping in perspective the above legal position, the finding of a nine-member bench of this Court in Hisba Bill Reference (PLD 2005 SC 873) declaring the 'opinion' recorded by the Court under Article 186 of the Constitution to be binding has, in my earnest view, disturbed the settled jurisprudential consensus on the status of 'opinion' recorded in exercise of its 'advisory jurisdiction'. Article 186 of the Constitution ordains an answer of the Court to the 'question of law' of 'public importance' referred to it, as a mere 'opinion' not a 'decision', yet the effect thereof with the pronouncement in Hisba Bill Reference (supra) is now held to be binding.

2. The declaration as to the binding nature of the 'opinion' reported by this Court in its 'advisory jurisdiction' has created grey areas in defining its jurisdictional contours. Nonetheless, I myself, also sitting in a Bench of this Court exercising its 'advisory jurisdiction' do not consider it judicially proper to take up and pass a finding on the said question, rather find it appropriate to leave this for an authoritative decision in an appropriate case by this Court in its 'adjudicatory', and not 'advisory', jurisdiction.

Discretion to decline answering the question referred

1. The discretion of this Court to answer or decline to answer the question referred by the worthy President is well established. Sir Zafrullah Khan J., while on the bench of the Federal Court of British India that was hearing the Reference of Estate Duty Bill (AIR 1944 FC 73), observed that the questions of law referred for advisory opinion must be cast in a precise and exact form, and it should not be left to counsel to supplement the Reference during the course of the hearing by oral submissions. His lordship, finding the material supplied in the Reference insufficient, declined to express any opinion on the questions referred. Following the cue, the Federal Court of Pakistan, also returned one question unanswered in Reference No.1 of 1955 (PLD 1955 FC 435)21 with the observation that the question is too general. In the Bangladesh Reference (PLD 1973 SC 563) this Court recognised the autonomy of the Legislature to freely legislate but reserved its opinion regarding any determination as to the constitutional validity of the legislative measures, which had yet to be adopted. The Court highlighted that though it chose to reserve its opinion at this stage, such legislative measures, once adopted, could be challenged before the Courts on valid grounds. Similarly, this Court in Reference No. 1 of 2012 (PLD 2013 SC 279) did not answer one question, considering it unsuitable to be determined in the advisory jurisdiction, essentially for the reason that the person whose rights were likely to be affected was not before the Court. The Indian Supreme Court also returned Reference No.1 of 1993 (AIR 1995 SC 605) unanswered, considering it not proper to answer mainly for the reason that it involved a religious dispute.

Lack of clarity and precision in the question referred

1. Given the judicial inclination to refrain from reporting its 'opinion' on a vague question, let us revisit the question referred in the present Reference, which is reproduced here again for better understanding of the discussion:

Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part I, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017?

(Emphasis added)

A careful reading of the above question reveals that it contains three statements: the first two statements are couched as instances by the use of expression 'such as'; and the third statement adjoined with the second statement of instance by the use of expression 'which'. To further clarify the point, and highlight the ambiguity in the actual question sought to be answered, we may segregate the three statements from the text of the question referred to the Court in the Reference. The said three statements are:

(i) the election to the offices of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies are held under the Constitution;

(ii) the election for the members of the Senate of Pakistan falls within the category of elections other than those held under the Constitution and is held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part I, Fourth Schedule to the Constitution; and

(iii) the elections that are held under the Elections Act, 2017 may be held by way of secret or open ballot, as may be provided for in the Elections Act, 2017.

With the said statements separated, the actual question that remains to be answered by the Court is:

Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution ... and not to other elections...?

Upon a patient reading of the above actual question referred to this Court, the present Reference does not provide the essential clarity to be ascertained therefrom. Thus, the referred question fails to reveal, in what respect, with what object, or to avoid what controversy, guidance of the Court has been sought in its 'advisory jurisdiction'. In fact, it appears to be a general question in abstract, and requires one to guess the true purport thereof - the election of Senate. The composite form in which the question referred to this Court in the Reference, in my opinion, remains a cause of concern. The articulation of the question could have been made simpler to avoid ambiguity and vagueness. More than one questions could have been framed in clear, concise and precise terms, and referred to for opinion in a single Reference, as there is no legal compulsion to restrict a Reference to only one question.

No power to dispute or amend the question referred

1. The learned Attorney-General and other learned counsel, who appeared before this Court in the present Reference have tried to contextualise the question and focused, in their arguments, on the procedure of the Senate election. However, the expression, 'question so referred', as provided in clause (2) of Article 186 of the Constitution, makes it clear that this Court cannot change, amend and rephrase the text of the question referred by the President or add any further question thereto. The 'Advisory Jurisdiction' of this Court, under Article 186 of the Constitution, is restricted only to the text of the question referred by the President.

2. There is also another strong reason for the Court not to amend the 'question so referred' by the President. The power of referring a question to this Court by the President involves the constitutional process of 'acting on' and 'in accordance' with the 'advice' of the Cabinet or the Prime Minister under the provisions of Article 48(1) of the Constitution, as earlier explained by this Court, while answering Reference No. 2 of 1996 and deciding connected constitution petitions in Al-Jehad Trust v. Federation (PLD 1997 SC 84). The relevant observations22 are reproduced hereunder for ready reference:

"19. [I]t is indisputable that advisory jurisdiction of the Supreme Court can be invoked by the President on the advice of the Prime Minister…….

20. Article 90 of our 1973 Constitution envisages that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 99 provides that all Executive actions of the Federal Government shall be expressed to be-taken in the name of the President. In exercise of powers conferred by both these Articles, the Federal Government has' made Rules of Business of 1973 under Schedule V-B, Rule 15-A(1), list is made of cases requiring orders of President on the advice of the Prime Minister. Entry No.54 specifically mentions Reference to the Supreme Court on any question of law to be filed under Article 186, which is to be done on the advice of the Prime Minister……"

This constitutional process of identifying and then referring the question by the President on advice of the Prime Minister cannot be circumvented by this Court, by amending or changing, or adding to, the question referred for its opinion. In Reference No.1 of 1955 (PLD 1955 FC 435), initially two questions were referred to the Federal Court of Pakistan for consideration and reporting its opinion but during pendency of the Reference, two more related questions were also referred to by the Governor-General on the Court's suggestion; the Court did not add those questions by itself. The Indian Supreme Court also held in the Kerala Educational Bill Reference (AIR 1958 SC 956) that it is for the President to determine, what question should be referred; the Supreme Court cannot go beyond the questions referred in the Reference and discuss other questions.

1. Thus, it can safely be concluded that this Court cannot change or amend the question referred; it can only be done in accordance with the same procedure, as prescribed for referring the question, that is, by the President on advice of the Prime Minister. This Court can record its 'opinion' only on the question, which is referred, and not on the question, which could have been but has not been referred.

2. As far as the contention of the learned Attorney-General, that the referred question, in fact, is: "whether the election for the members of the Senate is held under the Constitution, or not under the Constitution but under the law". I am afraid, that the said contention is beyond the text of the referred question. At best, the same can be an interpretation of the question referred, and that too of the learned Attorney-General, but no more. If the said interpretation of the learned Attorney-General on the question referred by the President is to be accepted, then it would amount to conferring the authority on the Attorney-General to amend the question referred by the President, which even this Court lacks. And, secondly, if the learned Attorney-General is correct in his interpretation of the question referred by the President, then the question so referred is, in fact, ambiguous and vague, and thus requires further explanation. In such circumstances, positive exercise of discretion by this Court to decline recording any opinion on the question referred in the Reference is warranted.

Directions in advisory jurisdiction

1. It may also be pertinent to mention here that that an attempt was made to persuade the Court during arguments, to issue appropriate directions to the Election Commission of Pakistan to perform its constitutional duty under Article 218(3) of the Constitution to ensure that the elections are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

2. I am of the considered view that the power of issuing such directions is not available to this Court, while answering a 'question of law' referred to it by the President under Article 186 of the Constitution. The 'advisory jurisdiction' of the Court, under clause (2) of Article 186 of the Constitution, is restricted to consider the question referred and report its opinion only on that question to the President. The ancillary and inherent powers that the Court has under Article 187(1) of the Constitution to issue such directions, orders or decrees as may be necessary for doing 'complete justice' in any case or matter pending before it, are not available to the Court while exercising 'advisory jurisdiction'. This principle has earlier been emphasised by Muhammad Afzal Zullah, J. (as he then was) in Reference No. 1 of 1988 (PLD 1989 SC 75), and approvingly quoted by the majority in Reference No. 1 of 2012 (PLD 2013 SC 279), by observing that this Court cannot, in 'advisory jurisdiction', decide the matter as a lis between the parties, wherein exercise of other powers are available to the Court including discretionary powers and taking other consequential actions.

Political question

1. Finally, I advert to the submissions of the learned counsel appearing for the major political parties seated on opposition benches in the Parliament. They all have in unison contended that the present Reference raises a political question, the determination whereof be best left to the Parliament. They further submitted that the present Reference is politically motivated to achieve an outcome, which could not be attained by the Federal Government due to its failure to obtain the requisite majority to pass the 26th Constitution Amendment Bill from the Parliament, therefore, the present Reference, in essence, seeks to bypass the Parliament. It was finally urged that the Court should, uphold the 'trichotomy of power' envisaged in the Constitution, and thereby exercise judicial restraint and return the Reference unanswered.

2. Learned Attorney-General, in rebuttal, by referring to the observations of this Court made in Ishaq Khakwani v. Nawaz Sharif (PLD 2015 SC 275) contended that it has been the consistent view of this Court that if the determination of any question raised before the Court requires interpretation of any provision of the Constitution, the Court is obliged to adjudicate upon the same, notwithstanding that the question raised has some political overtones. He submitted that this Court has earlier answered the References that involved political questions, and referred to the case of Reference No.1 of 1973, Recognising Bangladesh Reference (PLD 1973 SC 563), in support of his submission.

3. I am afraid, the submission of the learned Attorney-General is not correct and the reliance is not apt. In the Recognising Bangladesh Reference (supra), opinion of the Supreme Court was sought on the question:

"Can the Resolution of the purport described in paragraph 6 above [of the Reference], and envisaging such constitutional measures as may be necessary before the according of formal recognition [to Bangladesh], be validly adopted by the National Assembly?"

The Court gave the opinion that:

"there is no legal bar to the National Assembly considering or adopting a resolution of the purport described in Para. 6 of the Reference."

The Court, however, made it clear that it expressed:

"no opinion at this stage as to the constitutionality or the validity of the measures, legislative or executive, that may have to be taken before the according of formal recognition…… does not ... mean that the validity of the legislative measures and/or the Constitutional amendments, if and when made, will not be amenable to a challenge in the Courts of law upon valid grounds, if any available."

The political aspect of the matter, that is, whether Pakistan should or should not accord recognition to the new State of Bangladesh was neither considered by the Court nor was any opinion given thereon. More importantly, no opinion was expressed on the constitutionality or validity of the legislative measure, which were to follow the resolution.

1. There is no cavil to the contention of the learned Attorney-General and his reliance upon the observations of this Court made in Ishaq Khakwani case (supra) that it has been the consistent view of this Court that if the determination of any question raised before the Court requires interpretation of any provision of the Constitution, the Court is obliged to 'adjudicate' upon the same, notwithstanding that the question raised has some political overtones. The expression, 'adjudicate', used in the referred observations of this Court, however, makes the distinction. I am fully convinced and agree with the proposition that this Court should not decline to adjudicate a case, or to answer a question of law involving interpretation of some provisions of the law or the Constitution raised therein, in its 'adjudicatory jurisdiction' merely because the decision of the case or the determination of the question would have some political repercussions. The Court cannot abdicate performance of its constitutional duty. The following observations of this Court made in the case of Nawaz Sharif v. Federation (PLD 1993 SC 433) may also be cited in this regard:

The Courts' function is to enforce, preserve, protect and defend the Constitution. Any action taken, act done or policy framed which violates the rovisions of the Constitution or is not permissible under the Constitution or law, the Court irrespective of the fact that it is a political question, must exercise power of judicial review.

Similarly, this Court in the case of DBA, Rawalpindi v. Federation (PLD 2015 SC 401) held:

A matter pertaining to the Judicial Power of Interpreting the Constitution, identifying the limits of the Executive and the Legislature thereunder and enforcing such limits is the sole and exclusive jurisdiction of the Courts. While exercising such powers, the Court will not abdicate its jurisdiction merely because the issue raised, has a political complexion or political implication.

But the position would be different, when a 'question of law' that has, political implication is referred to this Court for its 'opinion', in its 'advisory jurisdiction' under Article 186 of the Constitution. In this jurisdiction, the Court has the discretion not to answer the question; the only restraint is that, like all other discretions, the Court is to exercise this discretion judiciously for valid reasons and not arbitrarily. The Indian Supreme Court returned Reference No. 1 of 1993, Ismail Frauqui v. Union of India (AIR 1995 SC 605), unanswered with the observation that the Reference favours one religious community and disfavours another; and the dignity and honour of the Supreme Court cannot be compromised because of it. Like the religious disputes, the involvement of the Court in political disputes in its advisory jurisdiction would also have, in my humble but considered view, the effect of compromising the dignity and honour of the apex Court of the country.23

1. In the present Reference, it is not in dispute that: the question referred has political implications; the Federal Government earlier, unsuccessfully attempted to resolve it through a constitutional amendment24; and all major political parties in opposition want resolution of the question through political and legislative process in Parliament. In such a clear split between the ruling political parties and major opposition political parties, and the charged political atmosphere, the resolution of the question through intervention of the Court, and that too in its advisory jurisdiction, would be, in my considered opinion, inappropriate and, to say the least, would invite untoward criticism on the Court.

2. We must not forget that democracy is never bereft of divide. The very essence of the political system is to rectify such disagreements, but to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice - raison d'etre' of democracy. We must also remain cognisant that there will always be crucial events in the life of a nation, where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse. In fact, the role of the courts ought not be expanded to entrench on other organs of the state, but must remain to function within the ambit of determining questions on the basis of legality alone, as otherwise the courts can pass findings on political issues, without being politically accountable or responsible to anyone. As a result, careful judicial treading is needed to ensure that the courts are not indulging in decision-making to rectify moral wrongs, which in my view should best be left in the hands of the elected majority25.

Conclusion

P L D 2021 Supreme Court 886

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

SHAZAIB and others---Petitioners

Versus

The STATE---Respondent

Crl. P. No. 1075-L of 2020, decided on 29th July, 2021.

(Against the order dated 28.09.2020 passed by the Lahore High Lahore in Crl. Misc. No.39004-B of 2020).Court, Criminal Procedure Code (V of 1898)---

----S. 498-A---Pre-arrest bail petition---Accused not present before the Court at the time of hearing of his pre-arrest bail petition---Effect---In case the petitioner-accused was not personally present in Court, the Court was not authorized to grant him (pre-arrest) bail and the petition was to be dismissed for his lack of presence in Court---However, in case some explanation was furnished for his non-appearance, the Court may, if it found that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period---Court could not, in the absence of the personal appearance of the petitioner, travel further into the case and examine the merits of the case---Abdul Rehman v. State 1981 PCr.LJ 61; Salima Bibi v. State 2000 PCr.LJ 138; Abdul Rashid v. State 2006 YLR 2058 and Tariq Hanif v. State 2021 PCr.LJ 250 not approved.

After the insertion of section 498-A of the Code of Criminal Procedure, 1898 ("Cr.P.C.") if the accused, seeking pre-arrest bail, was not present before the Court, the Court was not authorized to grant bail to such an accused and therefore, the (bail) petition was liable to be dismissed in the light of the said statutory provision.

Section 498-A, Cr.P.C. created a statutory fetter or a statutory precondition requiring the presence of the petitioner (accused) in person in Court for the exercise of jurisdiction by the court for granting pre-arrest bail. In case the petitioner was not personally present in Court, the Court was not authorized to grant him bail and the petition was to be dismissed for his lack of presence in Court. However, in case some explanation was furnished for his non-appearance, the Court may, if it found that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period. The Court could not, in the absence of the personal appearance of the petitioner, travel further into the case and examine the merits of the case. In fact the examination of the merits of the case in the absence of the accused totally defeated the intent and purpose of the section 498-A, Cr.P.C. This was because once the Court proceeded to examine the merits of the case, then the Court had the option to either dismiss or allow the bail petition, while under section 498-A, Cr.P.C. the Court was not authorized to admit the accused to bail in his absence.

Abdul Rehman v. State 1981 PCr.LJ 61; Salima Bibi v. State 2000 PCr.LJ 138; Abdul Rashid v. State 2006 YLR 2058 and Tariq Hanif v. State 2021 PCr.LJ 250 not approved.

Umra Khan v. State PLD 1980 Pesh. 145; Shabbir Ahmad v. State PLD 1981 Lah. 599 (FB); Kalan Khan v. State 1982 PCr.LJ 149 and Zeeshan Kazmi v. State 1997 MLD 273 approved.

In case the petition was dismissed for non-appearance of the accused in a pre-arrest bail matter under section 498-A, Cr.P.C., the petitioner could file a fresh bail petition before the same Court provided that he furnished sufficient explanation for his non-appearance in the earlier bail petition and the Court was satisfied with his said explanation. But if he failed to furnish any satisfactory explanation, his second bail petition was liable to be dismissed on account of his conduct of misusing the process of Court disentitling him to the grant of discretionary relief of pre-arrest bail.

Mukhtar Ahmad v. State 2016 SCMR 2064 ref.

Ad interim bail granted in a pre-arrest application on the first hearing was to simply ensure that the petitioner was present on all the subsequent dates of hearing in the pre-arrest bail matter. Petitioner's presence was, therefore, required throughout the proceedings of the pre-arrest bail petition and the fact that he appeared on the first date when ad interim bail was granted did not in any manner lessen the rigours of section 498-A, Cr.P.C. or absolve the responsibility of the accused from appearing in person before the court.

Syed Farhad Ali Shah, Advocate Supreme Court for Petitioner along with petitioners.

Humayoun Aslam, D.P.G. along with Muhammad Ashraf, S.I. for the State.

Raja Akhtar Nawaz, Advocate Supreme Court for Respondent No.2.

P L D 2021 Supreme Court 892

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

INAM ULLAH---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 39-L of 2021, decided on 13th August, 2021.

(Against the order dated 22.12.2020 passed by the Lahore High Court, in Crl. Misc. No.67963-B of 2020).

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Second pre-arrest bail petition filed after withdrawal of the first pre-arrest bail petition without satisfactory explanation for withdrawing the earlier petition---Maintainability---In case the accused failed to give satisfactory explanation for his withdrawal of the earlier pre-arrest bail petition and the need for filing the fresh one, his second or successive pre-arrest bail petition shall not be maintainable.

Filing a pre-arrest bail petition, enjoying the concession of ad interim bail granted therein and then simply withdrawing the petition in order to file another one after sometime and availing the same benefit of ad interim bail once again, in the absence of any lawful explanation or justification, was a sheer abuse of the process of the court.

Muhammad Sadiq v. State 2015 SCMR 1394 ref.

While the accused could approach the same court with a fresh pre-arrest bail petition if the earlier one had been withdrawn without advancing arguments on merits, the court must be watchful that the successive petition was not readily entertained or the concession of ad interim bail granted to the accused, unless he furnished satisfactory explanation for withdrawal of the first petition and filing of the second one; otherwise, an unscrupulous accused could abuse the process of court for ulterior purposes. Therefore, the accused must be required by the court to furnish satisfactory explanation for withdrawing the first pre-arrest bail petition at the time of entertaining the second pre-arrest bail petition. Unless there was satisfactory explanation, the second bail petition should not be entertained, because otherwise the accused would have an unchecked license to abuse the concession of ad interim pre-arrest bail by misusing the court-process, and hoodwink the police to prolong the investigation.

While the accused had access to courts to seek pre-arrest bail, even successively for justifiable reasons, he could not be permitted to abuse the concession of ad interim bail to stall the investigation and play hide and seek with the criminal justice system. In case the accused failed to give satisfactory explanation for his withdrawal of the earlier pre-arrest bail petition and the need for filing the fresh one, his second or successive pre-arrest bail petition shall not be maintainable.

Mian Subah Sadiq Wattoo, Advocate Supreme Court for Petitioner along with Petitioner.

Jaffar Addl. P.G. for the State along with M. Akhtar, ASI.

P L D 2021 Supreme Court 894

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

AZAM SALEEM and another---Petitioners

Versus

The STATE and others---Respondents

Crl. Ps. Nos. 797-L and 799 of 2021, decided on 6th August, 2021.

(Against the consolidated order dated 25.05.2021 passed by the Lahore High Court, in Crl. Misc. No. 16835-B of 2021 and Crl. Misc. No. 10047-B of 2021).

Criminal Procedure Code (V of 1898)---

----S. 498-A---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Maintainability---Second pre-arrest bail petition filed after dismissal of the first pre-arrest bail petition for non-appearance of the accused and lack of his satisfactory explanation for his non-appearance in the earlier pre-arrest bail petition---Such second pre-arrest bail petition was not maintainable.

Failure on the part of the accused to explain his absence in Court on the date fixed for hearing of his first pre-arrest bail petitions and his filing of second (bail) petition seeking the same relief amounted to playing hide and seek with the Court. Such conduct disentitled the accused from maintaining the second pre-arrest bail petition.

If a pre-arrest bail petition was dismissed for non-appearance of the accused under section 498-A, Cr.P.C, the second pre-arrest bail petition was maintainable only if the accused furnished satisfactory explanation for his absence in the first petition. Only if the explanation was found satisfactory could the Court proceed further and decide the second petition on merits. However, if the explanation was found to be unsatisfactory, the second petition was not maintainable and was liable to be dismissed without going into the merits of the case.

Shazaib v. State Crl. P. No. 1075-L of 2020, dated 29.07.2021 ref.

Muhammad Ijaz Janjua, Advocate Supreme Court for Petitioner (in Crl. P. No. 797-L of 2021).

Mian Ghulam Hussain, Advocate-on-Record along with Petitioner (in Crl. P. No. 799-L of 2021).

Khurram Khan, Addl. P.G. along with Abdul Ghafoor, S.I. Asghar Ali, S.I. for the State.

Ch. Abdul Razzaq Kamboh, Advocate Supreme Court for the Complainant.

P L D 2021 Supreme Court 898

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAJID HUSSAIN alias JOJI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 537 of 2021, decided on 6th September, 2021.

(On appeal against the order dated 07.05.2021 passed by the Lahore High Court, Multan Bench in Crl. Misc. No. 2846-B of 2021).

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

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Ad-interim pre-arrest bail, confirmation of---Belatedly recorded statement of witness basis of arraying accused in the case---Initially accused was cited as a prosecution witness while lodging the crime report with the role of facilitating the evacuation of the deceased to the hospital by calling the police and the rescue service---Admittedly the prosecution kept silent for almost one year where after a witness (sister of the deceased) was introduced by the prosecution who made a statement under S.161, Cr.P.C. claiming herself to be an eye-witness of the occurrence and levelled the allegation against the accused of causing two successive fire shots on the person of the deceased---Statement of said witness was supplemented by statement of another eye-witness recorded with an inordinate delay of 1 year and 4 months---Investigating Officer failed to substantiate any incriminating material qua the role of the accused except the bald statements made by two prosecution witnesses at a belated stage---Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to accused was confirmed.

Abdul Khaliq v. The State 1996 SCMR 1553 and Noor Muhammad v. The State 2020 SCMR 1049 ref.

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

----Ss. 497, 498 & 161---Constitution of Pakistan, Art. 185(3)---Bail---Belated recording of statement of prosecution witness under S. 161, Cr.P.C.---Value---Any such statement lost its sanctity.

(c) Administration of justice---

----Criminal law---Law was not static in any manner rather it had to grow while passing through the process of evolution which was an essential ingredient of safe administration of criminal justice.

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

----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Merits of the case---While granting extraordinary relief of pre-arrest bail, merits of the case could be touched upon. [p. 902] D

Miran Bux v. The State PLD 1989 SC 347 ref.

Kh. Qaiser Butt, Advocate Supreme Court for Petitioner along with Petitioner.

Mirza Abid Majeed, D.P.G. and Jam Saleem, D.S.P. for the State.

P L D 2021 Supreme Court 903

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 860-L of 2021, decided on 5th August, 2021.

(Against the order dated 26.05.2021 passed by the Lahore High Court, Lahore in Crl. Misc. No. 31719-B of 2021).

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

----S.497---Post-arrest bail---Offences not falling within the prohibitory clause of S.497(1), Cr.P.C (Non-prohibitory offences)---Denial of post-arrest bail in non-prohibitory offences---Principles.

For an offence which did not fall within the prohibitory clause of section 497(1), Cr.P.C, bail was a rule and refusal an exception. The grounds for the case to fall within the exceptions meriting denial of bail included (i) the likelihood of the accused's abscondence to escape trial; (ii) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (iii) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he had prima facie acted in the commission of offence alleged. The prosecution had to show if the case of the accused fell within any of these exceptions on the basis of the material on the record.

Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 and Muhammad Tanveer v. State PLD 2017 SC 733 ref.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Accused prone to repeating the offence and absconding---Record showed that the accused had been booked in as much as eight criminal cases under the same offence (S.489-F, P.P.C.) with different complainants and involving sizable amounts of money---Said cases spanned over the years 2018 to 2020 and three cases had been registered after the registration of the present case---Even though the accused had obtained bail in those cases, it did, prima facie, establish that the accused was prone to repeating the offence---Accused having been declared an absconder in the present case for over one and a half year generated the apprehension that he may avoid standing trial and hence delay the prosecution of the case---Material on record made the case of the accused fall under the exceptions to the rule of grant of bail in non-prohibitory offences---Petition for leave to appeal was dismissed and leave was declined.

Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 and Muhammad Tanveer v. State PLD 2017 SC 733 ref.

Sheikh Abdul Raheem v. The State and others 2021 SCMR 822 distinguished.

Malik Matee Ullah, Advocate Supreme Court for Petitioner.

Khurram Khan, Addl. P.G. along with M. Anwar, ASI. for the State.

Respondent No.2: in person.

P L D 2021 Supreme Court 906

Present: Syed Mansoor Ali Shah and Munib Akhtar, JJ

UNIVERSAL INSURANCE COMPANY and another---Appellants

Versus

KARIM GUL and another---Respondents

Civil Appeal No. 1280 of 2019, decided on 24th August, 2021.

(On appeal from the judgment dated 25.03.2019 of the Peshawar High Court, Peshawar passed in Civil Revision No. 129-P of 2013).

(a) Contract---

----Terms of contract---Interpretation---Reasonable person standard---Scope---Contract had to be interpreted objectively and not as per the subjective views of the parties---Terms of the contract were to bear that meaning as they would have for, or convey to, a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

The Interpretation of Contracts by Kim Lewison 5th ed., 2007, pg. 1 ref.

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

----S. 2(7)---Goods subject matter of the contract between the parties---Scope---Suit for recovery---Wreckage of an accidental vehicle sold by appellant-insurance company to the respondent as 'total loss'---"Total loss"---Interpretation---Respondent expended a substantial sum to repair the vehicle and bring it into usable condition, however, when he went to have its registration with the motor vehicle authority transferred to his name he was informed that there was already another vehicle registered with the same number and that the documents produced by him were not genuine---Respondent filed suit in the civil court claiming damages in the sum of Rs. 10,00,000/- (of which Rs. 600,000/- was the total of the sums expended by him and the balance was by way of compensation)---Question as to whether the subject matter of the contract between the parties, was a 'motor vehicle' in howsoever badly damaged a condition it may have been, making the appellant (Insurance Company) liable to the respondent, or was it only a 'wreck' which was not a motor vehicle in any meaningful sense, and absolutely no regard had to be given to what the respondent intended to, or could, or actually did with it---Held, that in the insurance business the thing insured could be declared to be a "total loss" in two different senses---One was of it being an "actual total loss"; here, the sense was that the insured property had been destroyed or damaged to such an extent that it could be neither recovered nor repaired for further use---In this sense the insured property was reduced to just wreckage and nothing more---Other sense in which total loss was used was "constructive total loss"; this was the situation where the repair cost of the damaged insured property exceeded its market value if the repairs were undertaken, meaning it was not worthwhile to pay for the repairs or have them undertaken---In the present case the words 'total loss' had been used in the contract---Since the contract was created by the appellant, hence following the contra proferentem rule, any ambiguity in its meaning had to be resolved against the appellant---Words "total loss" used in the contract ought to be construed to have the meaning of "constructive total loss" i.e. the vehicle in question retained its character as such, and did not cease to be a thing of the kind that had been insured---Wreckage sold to the respondent was not mere wreckage, rather it was a vehicle, howsoever badly damaged it may have been and notwithstanding that the cost of the repairs may have exceeded the market value of the vehicle when repaired---Since what was sold was a vehicle, the respondent had an enforceable expectation that he would be able to use it as such in a lawful manner, i.e., to have it registered in his own name, but as he was unable to do so and clearly suffered loss, the burden of that loss must fall on the appellant---Suit of respondent had been rightly decreed by the Trial Court and the High Court---Appeal was dismissed.

(c) Contract---

----Terms---Interpretation---Contra proferentem rule---Scope---When there was a doubt about the meaning of a contract, the words would be construed against the person who put them forward---Said rule was a principle not only of law but of justice.

Association of British Travel Agents Ltd. v. British Airways Plc (2000) 2 All ER (Comm) 24, (2000) 2 Lloyd's LR 209 and Co-operators Life Insurance Co. v. Gibbons (2009) 3 SCR 605, 2009 SCC 59 ref.

Rana Muhammad Arshad Khan, Advocate Supreme Court for Appellants.

Abdul Sattar Khan, Advocate Supreme Court for Respondent No.1.

P L D 2021 Supreme Court 913

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Mrs. SAMINA MEHR-UN-NISA MAZARI---Appellant

Versus

PUBLIC AT LARGE and others---Respondents

C.A. No. 184-L of 2010, decided on 3rd August, 2021.

(Against the order dated 02.04.2007 passed by the Lahore High Court, in C. R. No.716 of 2007).

(a) Provincial Insolvency Act (V of 1920)---

----S. 7 & Preamble---Provincial Insolvency Act, 1920 (the 1920 Act)---Scope and application---Said Act dealt with the insolvency of an individual, while corporate insolvency was dealt with separately under the company law---Therefore, insolvent companies were not amenable to the law of insolvency but underwent a separate process known as liquidation, or winding up, administered under separate law. (b) Provincial Insolvency Act (V of 1920)---

----Ss. 7 & 8---Insolvency petition---Exemption of corporation, etc., from insolvency proceedings---Scope---Appellant-lady filed an insolvency petition under S.7 of the Provincial Insolvency Act, 1920 ("the 1920 Act") to be declared insolvent; she arrayed all her institutional creditors as respondents in the petition---Petition was dismissed by the Trial Court on the basis of S.8 of the 1920 Act holding that no insolvency petition could be filed against any corporation or association or company registered under any enactment for the time being in force---Question as to whether S.8 of the 1920 Act barred an insolvency petition to be filed by the debtor seeking his own insolvency by arraying corporate banks as creditors to the petition---Held, that S.8 of the 1920 Act exempted corporations and companies from any insolvency proceedings against them, however, in the present case the insolvency petition filed by the appellant was not an insolvency petition filed against any corporate person but instead, was filed by the debtor (the appellant) to get herself adjudged as an insolvent---Arraying the creditor banks (corporations or companies) as respondents in the insolvency petition did not mean that an insolvency petition had been filed against corporate persons to seek their insolvency---Exemption contained in S.8 of the 1920 Act had no application to the present case---Orders of courts below were set-aside and Supreme Court directed that insolvency petition would be deemed to be pending before the Trial Court, which shall decide the same in accordance with law---Appeal was allowed.

Kazim Ali Shah v. United Bank Limited 1988 CLC 913 ref.

Muhammad Azeem Malik, Advocate Supreme Court for Appellant.

M. Naveed Sheikh, Advocate Supreme Court for Respondent No.2.

Ashar Elahi, Advocate Supreme Court for Respondent No.3.

Mian Azhar Saleem, AHC for Respondent No.7.

Shahnawaz Khan and Umer Qureshi Bank representatives for Respondent No.6.

Nemo for Respondents Nos. 4 and 8.

P L D 2021 Supreme Court 916

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD IQBAL KHAN NOORI and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

Civil Petitions Nos.3637 and 3638 of 2019, decided on 16th June, 2021.

(Against the order dated 26.6.2019 of the Islamabad High Court, passed in Writ Petitions Nos.2104 and 2105 of 2019)

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

----Ss. 9 & 10---Constitution of Pakistan, Arts. 4, 9, 10A, 14, 185(3) & 199---Criminal Procedure Code (V of 1898), S. 497---Person accused of an offence under the National Accountability Ordinance, 1999 ('NAB Ordinance')---Grant of bail in Constitutional jurisdiction of the High Court/Supreme Court---Scope---High Courts had the power to grant bail, under Art. 199 of the Constitution, to any person accused of an offence under the NAB Ordinance, independent of any statutory source of jurisdiction and notwithstanding the prohibition contained in S.9(b) of the NAB Ordinance---High Court, under Art.199 of the Constitution, had the power to judicially review an order passed by the Executive, viz, Chairman NAB or some other authorized officer of the NAB, regarding arrest and detention of a person---High Court while exercising its jurisdiction under Art. 199 of the Constitution for the enforcement of fundamental rights could pass appropriate orders, which included an unconditional release or release on bail, to grant the relief to the aggrieved person---For the enforcement of fundamental rights under the Constitution and not under the sub-constitutional statutory grounds provided in S.497, Cr.P.C., the Supreme Court had been granting bails to the accused persons in NAB cases in exercise of constitutional jurisdiction under Art. 199 read with Art. 185(3) of the Constitution, mainly on the grounds of: (i) delay in conclusion of the trial (ii) life-threatening health condition of the accused, and (iii) non-availability of sufficient incriminating material against the accused.

Asfandyar Wali v. Federation PLD 2001 SC 607; Manzoor Ilahi v. Federation PLD 1975 SC 66; Anwar Saifullah v. State 2001 SCMR 1040; Zulfiqar Ali v. State PLD 2002 SC 546; Arif Sharif v. Chairman, NAB 2004 SCMR 1805; Aga Jehanzeb v. National Accountability Bureau 2005 SCMR 1666; Himesh Khan v. National Accountability Bureau 2015 SCMR 1092; Zulfiqar Ali v. State PLD 2002 SC 546; Saeed Mehdi v. State 2002 SCMR 282; Nawaz Sharif v. State 2019 SCMR 734; Asif Zardari v. Federation 2005 SCMR 422 and Maqbool Ahmed v. National Accountability Bureau 2016 SCMR 154 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review of executive actions---Scope---Reasonableness and proportionality were recognized as established grounds of judicial review of executive action.

Salman Rafique v. National Accountability Bureau PLD 2020 SC 456 ref.

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

----Ss. 5(a), 9, 10, 12(a), 24(a) & 24(d)---Constitution of Pakistan, Arts. 4, 9, 10A, 14, 185(3) & 199---Person accused of an offence under the National Accountability Ordinance, 1999 ('NAB Ordinance')---Bail, grant/refusal of---Requirement of "sufficient material" against the accused---Scope---Law authorised proceedings against a person accused of an offence under the NAB Ordinance, and for the freezing of his property, only when there were reasonable grounds for believing that the accused had committed an offence triable under the Ordinance---In order to ascertain whether "reasonable grounds" existed or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution (NAB) to see whether some tangible material/evidence was available against the accused which may lead to the inference of his guilt---Mere accusation of an offence would not be sufficient to disentitle an accused from being bailed out; there should be "reasonable grounds" as distinguished from mere allegations or suspicion---Prosecution (NAB) had to show reasonable grounds to believe that the accused had committed the crime---If the Court was not satisfied that there existed reasonable grounds to believe that the accused was guilty, the Court was to grant bail in enforcement of his fundamental rights---Sufficiency of material/evidence connecting the accused with the crime must be viewed with utmost care and caution at the bail stage.

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

----Ss. 9 & 10---Constitution of Pakistan, Art. 185(3)---Corruption and corrupt practices---Bail, grant of---Material on the record indicated that the accused was the Director, while the co-accused was the Accountant, in company "P", the company which availed the financial facility (loan) from the Banks---However, they had no concern with the management of company "PLE", whose Directors were alleged to be the ultimate beneficiary of the loan---Banks had filed suits for recovery of their loan in the court of competent jurisdiction, which were pending adjudication---If, after the decree, their company failed to pay the decretal amount, the decree would be satisfied by auction of the mortgaged property---Neither the banks nor the National Accountability Bureau (NAB) had alleged that the property mortgaged against the loan did not exist or its ownership was disputed or forged---Counsel for NAB and representatives of the Bank were unable to show the court from the material available as to how the accused and co-accused had committed any fraud or forgery, or the offence of corruption or corrupt practices as defined in S. 9 of the NAB Ordinance, in obtaining the loan for the company they were working for---Material on record did not point out that there existed reasonable grounds to believe that the accused and co-accused had committed the offence alleged---Furthermore a period of more than two years has lapsed since their arrest in the present case, but the completion of the trial was not yet in sight, for no fault of theirs---Petitions for leave to appeal were converted into appeals and allowed, and accused and co-accused were granted bail.

(e) Jurisdiction---

----Objection as to jurisdiction of a Court/Tribunal---Such objection was to be taken first of all before the same Court or Tribunal for its decision.

Abbas Hussain v. State 1992 SCMR 320 ref.

Barrister Umar Aslam, Advocate Supreme Court for Petitioners (in both cases).

Imran-ul-Haq, D.P.G. along with Qasim, A.D. NAB for Respondents/NAB.

P L D 2021 Supreme Court 925

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhel, J

HUMAN RIGHTS COMMISSION OF PAKISTAN through Chairperson and others---Applicants

Versus

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

Civil Miscellaneous Application No. 4821 of 2018 in S.M.C. No.1 of 2014, decided on 13th October, 2021.

(For implementation of the judgment in Suo Motu No.1 of 2014).

Constitution of Pakistan---

----Art. 184(3)---Matter regarding reconstruction and restoration of Samadhi (shrine) of a Hindu saint in the Teri village---Costs incurred by the Provincial Government in reconstructing and restorating said Samadhi---Supreme Court directed that such costs were to be recovered equally as arrears of land revenue from the miscreants/accused identified and charged for causing desecration and destruction of the Samaadhi.

Matter regarding desecration and destruction of Samadhi (shrine) of a Hindu saint in the Teri village was addressed by the Supreme Court vide a previous order, wherein the Court had specifically noted and also directed the Provincial Government to recover the cost of the rehabilitation of Samaadhi at Teri from those who were responsible in causing its destruction. Although criminal cases had been registered against those miscreants/accused but through an agreement with the Hindu community and with the consent of the Hindu community all the miscreants/accused had been granted bail in the criminal cases, however, so far no recovery seemed to have been effected from them.

There were 123 persons identified and charged for causing of desecration and destruction of the Samaadhi at Teri and a cost of Rs.33.0669 million had been incurred in restoration and reconstruction of the Samaadhi. All this cost would have not been incurred by the Provincial Government had the Samaadhi not been desecrated and destroyed by the miscreants/accused. As the miscreants/accused had been well identified and also been charged and there was a possibility that they might again create issues with the Hindu community, they were to be burdened with the cost of reconstruction and rehabilitation of the Samaadhi. Supreme Court directed the Provincial Chief Secretary that within a period of one month the Provincial Government shall recover from all the miscreants/accused the amount of Rs.33.0669 million, dividing the said amount amongst the miscreants/accused and recover it as the arrears of land revenue from them; that such recovered amount from the miscreants/accused shall be utilized for the future maintenance and up-keep of the Samaadhi.

In attendance

Shumail Ahmed Butt, Advocate General, Khyber Pakhtunkhwa.

Mian Shafaqat Jan, Additional Advocate General, Khyber Pakhtunkhwa.

Atif Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa.

Moazani Jan Ansari, I.G. Khyber Pakhtunkhwa.

Ikram Ullah Khan, Secretary Home, Khyber Pakhtunkhwa.

Muhammad Javed, Commissioner, Kohat

Shafi Ullah Khan, DPO, Kohat, Tahir Ayub Khan, RPO, Kohat, Shoaib Suddle, Chairman, One man Commission.

Dr. Ramesh Kumar, MNA, Rohir Kumar, Deputy Administrator, Karak Mandar from Hindu Community.

Samual Payara, Chairman, IMRF.

Muhammad Saqib Jillani, Member of One man Commission

(via video link from Lahore).

P L D 2021 Supreme Court 927

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ARSHAD NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Petition No.408-L of 2021, decided on 13th July, 2021.

(Against the order of Lahore High Court, Lahore dated 14.12.2020, passed in Crl. Misc. No. 62691-B of 2020).

Per Syed Mansoor Ali Shah, J; Umar Ata Bandial, J agreeing; Qazi Muhammad Amin Ahmed also agreeing but with different reasons.

(a) Supreme Court Rules, 1980---

----O.XXIII, R. 2, Second proviso.---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal in a criminal matter filed before the Supreme Court---Condonation of delay---Sufficient cause, determination of---Sufficiency of the cause was to be determined in each case on the basis of its own peculiar facts and circumstances.

Sherin v. Fazal Muhammad 1995 SCMR 584 ref.

(b) Supreme Court Rules, 1980---

----O.XXIII, R. 2, Second proviso.---Constitution of Pakistan, Arts. 9, 10A, 14, 185(3)---Petition for leave to appeal in a criminal matter filed before the Supreme Court---Condonation of delay---Sufficient cause---In cases relating to imprisoned accused (seeking post-arrest bail) or convicted persons 'sufficient cause' for condoning delay was to be viewed through the lens of fundamental rights to liberty, dignity and fair trial, and determined with a lenient and liberal approach for providing such persons with equal access to court and proper opportunity to defend themselves---Person approaching a court of law for the redressal of his grievance from behind bars, suffered a disability in comparison to those who enjoyed liberty and freedom of movement---Incarceration of an accused seeking post arrest bail by itself constituted "sufficient cause" to allow condonation of delay, unless it was established that the delay was caused by the accused due to some ulterior motive.

Per Syed Mansoor Ali Shah, J [Majority view]

Consistent practice of the Supreme Court was to lean in favour of deciding on merits, the petitions including jail petitions, for leave to appeal and the appeals filed by or on behalf of the persons imprisoned against their convictions and sentences by condoning the delay with a lenient and liberal approach, in the interest of justice. The reason for taking such a permissive view of "sufficient cause" in the said cases appeared to be founded on the assumption that a person behind bars had a restricted access to the outside world; as a result he faced numerous impediments in pursuing his legal remedies before the courts. The delay, therefore, usually occurred due to constraints imposed on him for being in prison and not because of his contumacious conduct or some ulterior purpose.

Muhammad Bakhsh v. State 1968 SCMR 1269; Amjad Ali v. M.C.B. 2002 CLD 1143; Mureed v. State 2003 SCMR 64; Zafar v. Muhammad Abad 2011 SCMR 218 and Director FBR v. Akhtar Zaman 2011 SCMR 1951 distinguished.

Muhammad Nawaz v. State PLD 2002 SC 287; Qalab Ali v. Sipahia 2005 SCMR 1857; Badar Munir v. State 2009 SCMR 569; Razia v. State 2009 SCMR 1428; Muhammad Fayyaz v. State 2012 SCMR 522; Faiz-Ur-Rehman v. State 2012 SCMR 538 and Asia Bibi v. State PLD 2019 SC 64 ref.

In a criminal case where the liberty and freedom of a person was at stake, "sufficient cause" was to be viewed by the Court through the lens of fundamental rights guaranteed under the Constitution, in particular through the right to liberty, dignity and fair trial guaranteed to an accused under Articles 9, 14 and 10A of the Constitution, which primarily translated into providing the accused, behind bars, with equal access to court and proper opportunity to defend and avail remedies allowed by law, as were available to a free person.

The reasons to condone delay in jail petitions or criminal appeals filed against convictions applied with same force to matters of post-arrest bail, as it also attracted the right to liberty, human dignity and fair trial. A person approaching a court of law for the redressal of his grievance from behind bars, suffered a disability in comparison to those who enjoyed liberty and freedom of movement. Therefore, incarceration of the accused-petitioner seeking post arrest bail by itself constituted "sufficient cause" to allow condonation of delay, unless it was established that the delay was caused by the petitioner due to some ulterior motive.

Per Qazi Muhammad Amin Ahmed, J [agreeing with his own views]

Supreme Court being the highest Court of appeal ordinarily did not interfere with the discretion exercised by a High Court in bail matters, if found reasonably within the remit of law; it was only in those extraordinary situations, manifestly requiring "further probe" into the guilt of an offender that may represent a compelling option for the Supreme Court to substitute finding recorded by the High Court and in so doing the Supreme Court had shown a consistent generosity in condoning a belated approach beyond prescribed period of limitation. It was even more generous in examining the propriety of a conviction, impugned beyond the period of limitation.

Prosecution of offences was essentially a State attribute as well as a responsibility that it owed to its people to protect their life and liberty; it was also important to safeguard the society by placing an effective and meaningful control on criminal behaviour to deter the potential offenders and it was for this reason that right of freedom was subject to observance of laws as well as under the shadow of equal protection thereof. However, the forfeited freedom may be restored through recourse to mechanisms provided under the procedural law. Grant of bail, having regard to the categories of offences providing different sentences, was one form of restoration of interim freedom pending trial. Thus, in the given statutory framework, consideration of a motion warranted a dynamic and liberal approach being the only appropriate course to ensure a judicial oversight on an unjustified detention, though temporary, even beyond the prescribed period of limitation as it conferred no vested right on the prosecution.

Another reason for this latitude was that flux of time could not validate a flawed adjudication in criminal jurisdiction involving one sided irreversible corporeal consequences for an alleged offender and, thus, such a liberal approach was most essential to ensure safe administration of criminal justice.

Per Syed Mansoor Ali Shah, J [Majority view]

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal before the Supreme Court seeking bail---Bail, grant of---Scope---Practice of the Supreme Court was not to intervene in bail matters ordinarily, leaving them to the discretion of the courts inquiring into the guilt of the accused persons, unless it was found that those courts had exercised the discretion arbitrarily, perversely or contrary to the settled principles of law regulating bail matters.

Haq Nawaz v. State 1969 SCMR 174 and Zaro v. State 1974 SCMR 11 ref.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal before the Supreme Court seeking bail---Offence falling within prohibitory clause of S.497(1), Cr.P.C---Bail, grant/refusal of---Principles.

Bail was not to be withheld as a punishment. However, refusal of bail to an accused found prima facie involved in the commission of offences falling within the prohibitory clause of section 497(1), Cr.P.C. was not a punitive measure but was more of a preventive step, taking care of the bi-focal interests of justice towards the right of the individual involved and the interest of the society affected. The law presumed that the severity of the punishment provided for offences falling within the prohibitory clause of section 497(1), Cr.P.C. was such that it was likely to induce the accused person to avoid conviction by escaping trial or by tampering with the prosecution evidence including influencing the prosecution witnesses. The law allowed bail, in such cases, if there were no reasonable grounds for believing that the accused had committed a non-bailable offence, but there were sufficient grounds for further inquiry into his guilt. Otherwise by declining bail, the courts ensured the presence of the accused person to face trial and protect the prosecution evidence from being tampered with or the prosecution witness from being influenced. The courts attempted to balance the interest of the society in bringing the offenders to justice and the presumption of innocence in favour of the accused person, by determining whether or not there were reasonable grounds for believing that the accused person had committed the offence, in exercising their discretion to grant or decline the relief of bail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 477-A & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Preparing forged deed, managing fake Bank guarantees, and misappropriation of public money---Bail, refusal of---Allegation against the accused was that he along with the co-accused prepared forged deed of Joint Venture for a builder and contractor, obtained two construction contracts worth Rs.67,92,88,000/- on the basis of that deed for construction of the building of the government school, managed fake Bank guarantees, and misappropriated an amount of Rs.13,79,06,538/- of the Provincial Government paid for construction of the building of the school---Counsel for accused was unable to explain why the accused had been a beneficiary of Rs 20 million, in the absence of any construction supplies made to the contractors of the Joint Venture---Counsel although submitted that said payment was the "commission" due to the accused, yet remained unable to explain the nature of the said commission---In such background, the conclusion of the High Court that there were reasonable grounds for believing that the accused had committed the offences alleged was consistent with the incriminating material available on the record of the case, and was in no manner perverse or arbitrary---Petition for leave to appeal was dismissed, and accused was refused bail.

Zahid Saleem, Advocate Supreme Court for Petitioner.

Syed Nayab Hussain Gardezi, D.A.G. for the State with Aftab Gohar, S.I.

Syed Najaf Hussain Shah, Advocate Supreme Court for the Complainant.

P L D 2021 Supreme Court 937

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

Mst. KHAIRAN BIBI---Petitioner

Versus

Mst. HASEENA ATTA and others---Respondents

C. P.L.A. No. 279-Q of 2020, decided on 14th October, 2021.

(Against the judgment dated 15.10.2020 passed by the High Court of Balochistan, Sibi Bench in Civil Revision Petition No.(s) 13 of 2018).

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

----S. 5---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal before the Supreme Court barred by three days---Condonation of delay---Grounds---Ground mentioned in the application for condonation of delay that due to extreme cold weather and illness of the Steno typist he could not draft the petition within time, was hardly a ground for condonation of delay---Application for condonation of delay was dismissed.

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

----S. 5---Supreme Court Rules, 1980, O.XII, R.2---Constitution of Pakistan, Arts. 185(2)(d) & 185(3)---Condonation of delay---Grounds---Petition for leave to appeal filed before the Supreme Court instead of a direct appeal---In the present case, the value (of property) for the purposes of jurisdiction was Rs. 1,00,000/- as well as for possession was also fixed as Rs. 1,00,000/- which was the subject matter of the present petition for leave to appeal---In accordance with the Art. 185(2)(d) of the Constitution when the value of the subject matter before the Trial Court as well as before the Supreme Court was more than Rs. 50,000/- and the High Court had reversed the findings of the District Judge, therefore, a direct appeal (and not a petition for leave to appeal) was competent before the Supreme Court for which period of 30 days was provided---Supreme Court observed that it could have converted the present incompetently filed petition for leave to appeal into an appeal, if the same was filed within the limitation period, however, if the limitation of appeal was counted the incompetent petition became barred by 33 days---Thus, there was no ground for condonation of delay---Petition for leave to appeal was dismissed.

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

----S. 5---Condonation of delay---Grounds---Ill-advice by the counsel was not a ground for condonation of delay.

Muhammad Munir Paracha, Advocate Supreme Court for Petitioner.

Kamran Murtaza, Senior Advocate Supreme Court and Raja M. Rizwan Ibrahim Satti, Advocate Supreme Court for Respondents.

M. Ayaz Khan Swati, Addl. A. G. Balochistan for A.G. Balochistan (On Court Notice).

P L D 2021 Supreme Court 940

Present: Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

COMMISSIONER INLAND REVENUE, MULTAN ZONE, RTO, MULTAN---Petitioner

Versus

FALAH UD DIN QURESHI---Respondent

C. P. No. 159 of 2021, decided on 12th October, 2021.

(Against the order of Lahore High Court, Multan Bench dated 11.02.2020, passed in T.R. No.8 of 2019)

Supreme Court Rules, 1980---

----O. I, R. 2 & O. IV, Rr. 2, 6, 15, 22, 26, 30, 31 & 32---Advocate-on-Record ("AOR")---Responsibilities/duties towards the client and the Supreme Court stated.

Principal responsibility under the Supreme Court Rules, 1980 ('the Rules') to act, appear and plead on behalf of the party was that of the Advocate-on-Record ("AOR"). It was the AOR who engaged the Advocate Supreme Court ("ASC") and it on the instructions of the AOR that such ASC pleaded the case of the party. Engagement of the ASC did not absolve the AOR of his primary responsibility to attend to the case on behalf of the party before the Court, and in case the ASC was not available, it was the responsibility of the AOR to appear and plead the case of the party. It was, of course, the discretion of the Court to grant adjournment in any particular case if the ASC was not available, considering the nature and complexity of the case, but that did not relieve the AOR from his responsibility under the Rules to be fully prepared to act, appear and plead the case of the party, irrespective whether the ASC was present or not.

The concept of enrolling AORs at the Supreme Court, as the Rules signified, was to ensure that the cases filed in the Supreme Court were handled by certain designated lawyers called the AORs; this ensured proper management of cases, timely service of court-process to parties and certainty of representation before the Court leaving no margin for adjournments as was in other courts. All this was to achieve timely decisions of cases by the apex Court. Supreme Court observed that if the AORs were not performing their responsibility, it certainly begged the questions: whether the institution of AORs was required anymore?; had it outlived its utility and was causing more disservice to the litigants and the Court than achieving the benefits of this institution alluded to in the Rules?

Syed Rifaqat Husain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondent.

P L D 2021 Supreme Court (AJ&K) 1

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Civil Appeal No.587 and Civil P.L.A. 768 of 2019

M. TABASSUM AFTAB ALVI, CHIEF JUSTICE, HIGH COURT OF AJ&K, MUZAFFARABAD---Appellant

Versus

Raja WASEEM YOUNIS, ADVOCATE, EX-GENERAL SECRETARY, AZAD JAMMU AND KASHMIR, HIGH COURT BAR ASSOCIATION, MIRPUR and others---Respondents

(On appeal from the judgments of the High Court dated 01.11.2019 and 15.11.2019 in Writ Petition No. 1787 of 2018)

Civil Revision No. 47 of 2019

M. TABASSUM AFTAB ALVI, CHIEF JUSTICE, HIGH COURT OF AJ&K, MUZAFFARABD---Petitioner

Versus

Raja WASEEM YOUNIS, ADVOCATE, EX-GENERAL SECRETARY, AZAD JAMMU AND KASHMIR, HIGH COURT BAR ASSOCIATION, MIRPUR and others---Respondents

(In the matter of review of judgment of this Court dated 05.11.2019 in Civil Appeal No.327 of 2019).

Civil Appeal No. 587, Civil P.L.A. No.768 and Civil Review No. 47 of 2019, decided on 14th February, 2020.

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

----Art. 42-D---Supreme Court, Azad Jammu and Kashmir---Review, power of---Scope---Reopening and rehearing of a matter was out of the scope of a review petition and was not permissible.

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

----Art. 42-A---Issue and execution of processes of Supreme Court, Azad Jammu and Kashmir---Powers of the Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any "case or matter" pending before it---'Case or matter'---Meaning and scope---Term "case" related to a matter involved in the appeals, petitions etc. or any lis requiring action by the Supreme Court---Term "matter" was of more wider connotation which included the other incidental and ancillary matters arising in any proceeding or matter under consideration of the Supreme Court.

Adam Khan v. The State 2005 PCr.LJ 1988; Naeem Ahmed v. Additional District Judge 1983 CLC 113; Sardar Muhammad Ibrahim v. Azad Govt. and others PLD 1990 SC(AJ&K) 23 and Abdul Ghaffar Lakhani v. Federal Government of Pakistan and others PLD 1986 Kar. 525 ref.

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

----Art. 42-D---Supreme Court, Azad Jammu and Kashmir - Review, power of---Scope---Petitioner seeking review of a judgment/order after its implementation---Such review may be refused, however, it was not an absolute rule that after implementation of a judgment its review could not be sought---For review of a judgment an error or mistake apparent on the face of the record must be pointed out. [pp. 29, 30] D & E

Secretary AJ&K Council and another v. M. Munir Raja and others 2015 SCR 474 ref.

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

----Art. 43(2-A)---Judge of High Court Azad Jammu and Kashmir, appointment of --Appointment by President on the advice of the Council and after consultation with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court---Question as to whether such consultation with Chief Justices was to be made before the advice of the Council----Held, that for seeking the advice of the Council, the consultation of the appointing authority (i.e. the President) with the Chief Justices was the most basic pre-requisite---Chief Justices, in view of the practice and ground realities, were only the concerned persons who were best placed to judge the ability, neutrality and other required qualities of the person to be appointed as Judge of High Court---Neither the President nor the Council had other alternate or direct means or sources to judge the required abilities of a person for appointment as a Judge.

Al- Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324 and Muhammad Younis Tahir and another v. Shoukat Aziz and others PLD 2012 SC (AJ&K) 42 ref.

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

----Art. 43(2-A)---Judge of High Court Azad Jammu and Kashmir, appointment of---President to consult the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court---Consultation---Meaning---Requirement of consultation could only be fulfilled if the appointing authority (i.e. the President) had sought an effective, meaningful, purposive, consensus oriented and simultaneous consultation with both the Chief Justices---Consultation with the Chief Justices was not a mere formality rather it was the most basic requirement---For determination of the process of consultation, the basic requirement was reasonable passing of information on the matter in issue, between the authorities concerned, meaning thereby the appointing authority and the Chief Justices.

Muhammad Younis Tahir and another v. Shoukat Aziz and others PLD 2012 SC (AJ&K) 42 and M.D Tahir v. Federal Government 1989 CLC 1369 ref.

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

----Art. 43(2-A)---Appointment of appellant as Judge and thereafter as Chief Justice of High Court, Azad Jammu and Kashmir---Appointment process---Constitutionality---Consultation with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court---Held, that the President receiving advice of the Council without completion of the consultative process with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court was unconstitutional---On the basis of such advice no one could be validly appointed as a Judge of the High Court---For appointment of the appellant as Judge of the High Court, the advice of the Council was tendered without consultation of the Chief Justice of the High Court---Furthermore the record showed that when the Chief Justice of the High Court was consulted, he simply replied to the President that the appellant qualified for appointment as a Judge of the High Court and there was nothing against him in the official record---Such reply could not be termed as effective, meaningful, purposive and consensus-oriented consultation as it did not disclose whether the appellant was comparatively suitable or preferable or had such comparative qualities to be preferred among others---Appointment of the appellant as Judge of the High Court and thereafter as Chief Justice of the High Court was set-aside.

Official letters of correspondence between the President and the Chief Justice of the High Court and personal affidavit of the President available on record clearly established that prior to the advice of the Council, the President had not consulted with the Chief Justice of the High Court for appointment of the appellant as a Judge of the High Court. President received advice of the Council on 21-02-2011, and thereafter on 22-02-2011 consulted with the Chief Justice of the High Court, whereas the constitutional requirement of Article 43(2-A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was that consultation with the Chief Justice of High Court was a pre-requisite for seeking advice of the Council. Such practice of consultation with the Chief Justice of the High Court before receiving advice of Council was also a long-standing practice spreading over decades.

Muhammad Younis Tahir and another v. Shoukat Aziz and others PLD 2012 SC (AJ&K) 42 ref.

Advice of the Council without completion of the consultative process with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court was unconstitutional and unenforceable, hence, on the basis of such advice no one could be validly appointed as a Judge of the High Court. In the present case in view of undisputed facts and record it was proved that for appointment of the appellant as Judge of the High Court, the advice of the Council was tendered without consultation of the Chief Justice of the High Court.

Consultation must be effective, meaningful, purposive, consensus-oriented and simultaneous but in the present case the alleged communication between the Chief Justice of the High Court and President did not fulfill such requirements. When the President sent a letter to the Chief Justice of the High Court for consultation purposes, the Chief Justice replied back simply stating that the appellant, was qualified i.e. had got required length of practice, not crossed a certain age etc., but he did not disclose whether the appellant was comparatively suitable or preferable or had such comparative qualities to be preferred among others. Except said communication the President had not attempted to hold any meeting or adopted any other mode (including verbal) for having an effective, meaningful, purposive and consensus-oriented consultation with the Chief Justice of the High Court. Except the reply letter of the Chief Justice of the High Court, there was no other proof that there was any reasonable passing of the information on the matter in issue, between the President and the Chief Justice of the High Court.

Since appointment of appellant as Judge of High Court was defective, consequently, his elevation to the office of the Chief Justice of the High Court also became faulty. Appointment of the appellant as Judge of the High Court and thereafter as Chief Justice of the High Court had rightly been set aside by the High Court. Appeal was dismissed.

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

----Art. 43(2-A)---Judge of High Court Azad Jammu and Kashmir, appointment of---President to consult the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court ('the consultees')---Mode and manner of consultation---Scope.

For consultation, no specific mode had been prescribed in black and white but it depended upon the appointing authority (i.e. the President) and the consultees that in what manner and mode they fulfilled the ingredients of an effective, meaningful, purposive, consensus oriented and simultaneous consultation. Mere sending of a panel (of names) was not sufficient rather the appointing authority and the consultees in furtherance of the approved list or panel of nominated qualified persons may hold a joint meeting or adopt any other reasonable manner for passing and exchange of information. Even verbal mode of consultation could be adopted but there must be such practical steps proving that the appointing authority and the consultees had availed sufficient opportunity and adopted a mode of making the consultation effective, meaningful, purposive, consensus-oriented and simultaneous.

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

----Art. 43(2-A)---Judge of High Court Azad Jammu and Kashmir, appointment of---Consultation with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court---Difference of opinion between the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir ('the consultees')---Rule of Primacy i.e. primacy to be given to opinion of the Chief Justice of Azad Jammu and Kashmir---Scope.

According to the constitutional provisions the Chief Justice was the pater familias of the judiciary and his opinion had to be given due weightage, preference and deference. In case of difference between the consultees, the appointing authority (i.e. the President) after due comparison and appreciation, by applying the Rule of Primacy, may seek advice of the Council for appointment of Judge of High Court. The applicability of Rule of Primacy arose when during the process of consultation after reasonable passing of information between the consultees the consensus could not be developed. In such a situation, it was the prerogative of the appointing authority to apply the Rule of Primacy.

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

----Art. 2(1)---Judge of the High Court and Chief Justice of the High Court---Appointment of a Judge of the High Court as Chief Justice of the High Court was not an independent act rather it was continuation of his appointment as Judge of the High Court.

(j) Administration of justice---

----Every structure had to stand on its own foundation and when the foundation vanished no superstructure could exist.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 103; Karim Dad v. Member III Board of Revenue and others PLD 1985 Quetta 252;. Abdul Baseer Tajwar v. AJK Public Service Commission and others 2016 SCR 1599 and Molana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663 ref.

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

----Arts. 43(2-A) & 44(2)(b)(ii)---Writ of quo warranto---Scope---Pleadings in the writ of quo warranto were not like the pleadings in civil cases---Writ of quo warranto was not like a plaint of a civil suit rather the petitioner was a mere informer---Once it was determined by the High Court that the holder of the office had not been validly appointed then it was the duty of the Court to get the public office vacated and a usurper could not be protected merely on technical grounds relating to the contents of the writ petition.

Respondent had filed a writ petition before the High Court (Azad Jammu and Kashmir) challenging appointment of appellant as Judge and thereafter as Chief Justice of High Court, Azad Jammu and Kashmir. Mere non-mentioning in the memo of writ petition regarding the notification of appointment of the appellant as Chief Justice of the High Court did not debar the High Court to issue the writ of quo warranto. If the Court was satisfied that holding of public office by a person was against law or in violation of law, the writ of quo warranto could be issued. The respondent had clearly prayed in the writ petition for declaration of the office of the Judge/Chief Justice of the High Court as vacant. Moreover, the writ of quo warranto was not like a plaint of a civil suit rather the petitioner was mere a relator/informer and it was upto the Court to determine whether the concerned person was holding the office according to law or not and once it was proved that the holder of the office had not been validly appointed then it was the duty of the Court to get the public office vacated. A usurper could not be protected merely on technical grounds relating to the contents of the writ petition.

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

----Art. 44(2)(b)(ii)---Writ of quo warranto---Burden of proof---Scope---Once the writ of quo warranto was filed the burden shifted upon the holder of the office to justify that he was holding the office validly.

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

----Art. 44---Writ petition---Relief---Scope---High Court was competent to grant any sort of relief which was consequential upon the main relief.

Sharaf Faridi and others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Abdul Rasheed and others v. Board of Trustees and others 2008 SCR 417 and Muhammad Ramzan v. Muhammad Latif 2014 CLC 248 ref.

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

----Art. 44(2)(b)(ii)---Writ of quo warranto---Maintainability---Aggrieved person---In a writ of quo warranto the petitioner was just a relator/ informer and like other writ petitions it was not required that he must show that he had any personal interest or right or was an aggrieved person.

Abdul Rashid Abbasi, Advocate for Appellant (in Civil Appeal No. 587 and for Petitioner (in Civil P.L.A. No. 768 and Civil Review No. 47 of 2019).

Respondent No.1 in person (in all cases).