PLD 2022 Judgments

P L D 2022 Federal Shariat Court 1

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

FAROOQ OMAR BHOJA---Petitioner

Versus

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

Shariat Petition No. 10/I of 2020, decided on 25th October, 2021.

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

----Ss. 4, 5 & 6---Constitution of Pakistan, Art. 203-D---Shariat petition---Prohibition on child marriage---Repugnancy to Injunctions of Islam---Plea that Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929 ('the impugned provisions') were in contradiction with Islamic law and rules---Held, that the minimum age of girl for marriage was set at 16 years by the State through the Child Marriage Restraint Act, 1929---Majority of Muslim jurists are of the view that the Nikah of a minor girl is permissible, however there are some jurists having an opposing opinion too---Settled principle of Shariah was that if any 'Mobah' act appeared to be harmful to the society collectively or to a particular segment of a society, the State had power to make that act prohibited so that the society could be protected from a larger damage---Limitations could be set on a 'Mobah' act in a precautious way that it did not affect any other 'hukum' set out by Shariah---Setting a minimum age limit of 16 for girls to marry was one such example---Furthermore in Islamic law, there was a well-developed concept of 'Sad-uz-Zaraey' based on Quran and Sunnah, according to which it was also a duty of the State to control, curtail or curb any act in a society, which may lead to harmful consequences to society at large or to any of its segments, no matter how minor it was---According to this principle of 'Sad-uz-Zaraey' the "impugned provisions" were not against the Quran and Sunnah---When a rule was abused or misused then it could be defined clearly to protect it from being abused---Impugned provisions did the same thing---Law or principle of Shariah was defined in a more clear way, that minimized the chance of its abuse or misuse, i.e., a marriage should not be consummated before the attainment of the age of medical maturity by the girl---Setting an age of 16 years reduced the possibility of breach of this principle of Shariah to the maximum---Setting a threshold of minimum age at 16 years for a girl by law would also generally help the girls to get at least basic education---Need for education was equally important for everybody irrespective of gender, which is why Islam had made the acquisition of education mandatory for every Muslim---At a personal level, for a girl or for anybody irrespective of gender, the factor of getting education came under the concept of Hifz-ul-Aql i.e. protection and promotion of intellect, which was also one of the basic goals of Shariah---For a healthy marriage, not only physical health and economic stability etc. were necessary factors but mental health and intellectual development was equally important, which were achievable through education---According to the teaching of Islam providing the best education to a child girl or a daughter was one of the best deeds a person could do which guaranteed 'Jannah'---Shariat petition challenging Ss. 4, 5 & 6 of the Child Marriage Restraint Act, 1929, being misconceived was dismissed in limine.

Hadith No.3896 of Muslim Shareef;

Al-Mughni Ibn-e-Qudaima, Volume-7, Page-487 and Majmooa-i-Qawaneen-e-Islam, Volume No.1, Pages-214 and 215 by Dr. Tanzeel-ur-Rehman ref.

Sayyed Tanvir Sohail Shah for Petitioner.

P L D 2022 Federal Shariat Court 9

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

HAMMAD HUSSAIN and another---Petitioners

Versus

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

Shariat Petition No. 02/I of 2021, decided on 25th October, 2021.

Family Courts Act (XXXV of 1964)---

----S. 10(3)---Family Courts Act (XXXV of 1964), S. 10(3) [as amended for Punjab by the Family Courts (Amendment) Act (XI of 2015)]---Constitution of Pakistan, Art. 203-D---Shariat petition---Family Court, powers of---Pre-trial proceedings---Attempt to effect a compromise or reconciliation between the parties---Repugnancy to Injunctions of Islam---Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts---Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce---Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them---Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family---Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them---Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S.10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran---Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.

Petitioner No.2 in person.

P L D 2022 Federal Shariat Court 21

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

HAMMAD HUSSAIN and another---Petitioners

Versus

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

Shariat Petition No. 02/I of 2021, decided on 25th October, 2021.

Family Courts Act (XXXV of 1964)---

----S. 10(3)---Family Courts Act (XXXV of 1964), S. 10(3) [as amended for Punjab by the Family Courts (Amendment) Act (XI of 2015)]---Constitution of Pakistan, Art. 203-D---Shariat petition---Family Court, powers of---Pre-trial proceedings---Attempt to effect a compromise or reconciliation between the parties---Repugnancy to Injunctions of Islam---Plea that the Quran and Ahadith of the Prophet (pbuh) stressed upon the importance of making compromise (sulah) between any conflicting parties in general; that Islam also gave much importance to family system, therefore, in light of Ayat 35 of Surah Al-Nisa of the Holy Quran, the process of reconciliation referred to in S.10(3) of the Family Courts Act, 1964 must be made mandatory upon the Family Courts---Held, that the Quran and Sunnah stressed upon reconciliation and compromise to be made between the spouses in case any unpleasant rift occurred between them to avoid divorce---Quran put a moral and religious duty upon the elders and family members of the parties to put efforts for making a compromise between the spouses in case any unpleasant rift occurred between them---Ayat 35 of Sura Al-Nisa of the Holy Quran explained the manner in which such reconciliation efforts may be made between the parties within the family---Ayat 35 of Sura Al-Nisa was directed for the family members and elders of the conflicting spouses for making compromise or doing efforts for reconciliation between them---Even otherwise the jurisprudence of Federal Shariat Court was clear on the issue that the authority given to Family Court for reconciliation or compromise at pre-trial proceedings under S. 10 of the Family Courts Act, 1964 or after conclusion of trial under S.12 of the said Act, was adopted on the basis of Ayat 35 of Sura Al-Nisa of Holy Quran---Shariat petition challenging S.10(3) of the Family Courts Act, 1964 was dismissed accordingly.

Petitioner No.2 in person.

P L D 2022 Federal Shariat Court 25

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

(a) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---

(b) Islamic law---

(c) Constitution of Pakistan---

----Art. 227---

(d) Family Courts Act (XXXV of 1964)---

----Ss. 10(5) & 10(6) [as added by section 8(c) of the Punjab Family Courts (Amendment) Act (XI of 2015)]---Constitution of Pakistan, Art. 35---

P L D 2022 Federal Shariat Court 64

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

Mst. SAKINA BEGUM and 29 others---Petitioners

Versus

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

Shariat Petitions Nos.14-I, 15-I, 16-I and 17-I of 2020, decided on 7th February, 2022.

Martial Law Order No. 425, dated 19-04-1984, issued by Zone 'B'---

----Constitution of Pakistan, Art. 203-D---Property rights---Martial Law Order---Vires---Dispute was with regard to decision regarding suit land on the basis of Martial Law Order No. 425, dated 19-04-1984---Validity---Martial Law Administrator of NWFP did not offer or provide opportunity to petitioners to be heard, who were condemned unheard---Petitioners were interested party to a dispute directly related with the order so passed vide Martial Law Order No. 425, dated 19-04-1984---Act of Martial Law Administrator was against principles of Islamic Law---Federal Shariat Court declared that Martial Law Order No. 425, dated 19-04-1984 was against the injunctions of Islam---Shariat petition was allowed accordingly.

Hafiz Muhammad Ameen and others v. Islamic Republic of Pakistan and others PLD 1981 FSC 23; Qazalbash's case PLD 1990 SC 99 and Pakistan through Secretary Cabinet Division and others v. Nawabzada Muhammad Umar Khan and others C.As. Nos. 838 and 839 of 1984 rel.

Saeed Butt for Petitioners.

Ch. Ishtiaq Mehrban, Deputy Attorney-General for Pakistan for the Federal Government.

Malik Akhtar Hussain Awan, Additional Advocate-General, Khyber Pakhtunkhwa and Barrister Babar Shazad Imran, Additional Advocate-General, Khyber Pakhtunkhwa for the Provincial Government.

P L D 2022 Federal Shariat Court 73

Before Muhammad Noor Meskanzai, C.J., Dr. Syed Muhammad Anwer

and Khadim Hussain M. Shaikh, JJ

IRUM MALIK---Petitioner

Versus

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

Shariat Petition No. 01/I of 2022, decided on 2nd March, 2022.

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

----S. 5---Constitution of Pakistan, Art. 203-D---Shariat petition---Punishment of 'Rajm' provided under S. 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ('the 1979 Ordinance')---Repugnancy to Injunctions of Islam---Plea of petitioner that under Shariat punishment for offence of zina is 100 stripes, therefore, the sentence of 'Rajm' provided under S. 5 of 1979 Ordinance is contrary to the Injunctions of Islam---Held, that the question raised by the petitioner was a past and closed chapter as, it had, already been decided by the Federal Shariat Court in its judgment reported as Federation of Pakistan v. Hazoor Bakhsh and 2 others (PLD 1983 FSC 255), that the punishment of 'Rajm' under S. 5 of the Ordinance was in accordance with Shariah.

Legally, the question raised by the petitioner is a past and closed chapter as, it has, already been decided. In the year 1979 two Shariat Petitions were filed in the Federal Shariat Court, whereby different provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 ('the 1979 Ordinance'), including section 5, were challenged and the Federal Shariat Court by a Bench consisting upon five Members vide its judgment dated 21-03-1981 by a majority of four to one declared the provisions of sentence of 'Rajm' under Sections 5 and 6 of the 1979 Ordinance, repugnant to the Injunctions of Islam by holding that the sentence provided for the offence of Hadd is only 100 Stripes and directed for necessary amendments in the law.

Feeling dissatisfied and aggrieved, an appeal against the judgment dated 21-03-1981 was preferred by Federation of Pakistan before the Supreme Court. During the pendency of said appeal (Sh. Appeal No. 14 of 1981), a review Shariat Petition No. 13/I of 1981, was filed in the Federal Shariat Court, which was allowed and the Shariat Court recalled its judgment under review dated 21-03-1981, and dismissed the Shariat petitions. Said review Shariat Petition was reported as Federation of Pakistan v. Hazoor Bakhsh and 2 others (PLD 1983 FSC 255), wherein it was clearly held that the punishment of 'Rajm' under section 5 of the Ordinance was in accordance with Shariah.In the wake of the said review judgment passed by the Federal Shariat Court, the appeal against the judgment dated 21-03-1981 pending before the Supreme Court was withdrawn.

Since no appeal against the judgment reported as Federation of Pakistan v. Hazoor Bakhsh and 2 others (PLD 1983 FSC 255),has been filed before Shariat Appellate Bench of the Supreme Court, the said judgment has attained finality. The question pertaining to section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for all intent and purposes is a past and closed chapter and cannot be reopened through any fresh petition before the Federal Shariat Court. Hence, present petitionis not competent. Shariat petition was dismissed in-limine.

Petitioner in person.

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P L D 2022 High Court (AJK) 1

Before Sadaqat Hussain Raja, C J

Mian MUHAMMAD SHAFIQUE and others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Law and 10 others---Respondents

Writ Petitions Nos. 1736-A, 1793, 2055 and 2143 of 2021, decided on 16th June, 2021.

(a) Azad Jammu and Kashmir Elections Act (XVIII of 2020)---

----S. 31---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Arts. 44, 24 & 4(15)---Writ petition---Qualification of members of Assembly---Equality of State Subjects---Qualifications and disqualifications for being a member---Scope---Petitioners in order to contest election got retired earlier than their actual date of retirement, being cognizant of enforcement of Azad Jammu and Kashmir Elections Act, 2020, whereby they were fully qualified for contesting upcoming General Elections but after their retirement S. 31 of Azad Jammu and Kashmir Elections Act, 2020, was amended and a restriction was imposed which restrained the former civil servant from contesting the election unless a period of two years had elapsed since he ceased to be in such service---Validity---Legislature under Art. 24 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, was empowered to provide for "disqualifications" and not "qualifications"---Petitioners had failed to establish any substantial legal right on the basis of which they were legally entitled to file the writ petitions---Law in question was duly passed under the mandate of Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, a valid law could not be struck down on the whims and wishes of any person---Writ petitions were dismissed.

Mustafa Impex v. Government of Pakistan and others PLD 2016 SC 808; PLD 1985 AJK 95; 2002 CLC 1130; PLD 2005 Kar. 364; PLD 2012 Bal. 57; 2011 SCMR 1537; 2019 SCMR 859; 2018 SCMR 1885; 2013 SCMR 34 and 2016 SCMR 69 ref.

Aftab Hussain v. Azad Jammu and Kashmir Legislative Assembly through President of Azad Jammu and Kashmir and 3 others 1991 CLC 2026; Ch. Muhammad Yousaf v. The State and 4 others 2002 CLC 1130 and Hafiz Hamdullah v. Safiullah Khan and others PLD 2007 SC 52 rel.

(b) Azad Jammu and Kashmir Elections (Amendment) Ordinance (VIII of 2021)---

----S. 5---Azad Government of the State of Jammu and Kashmir Rules of Business, 1985, R. 23---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Arts. 44 & 41---Writ petition---Power to make Ordinance---Cases to be brought before the Cabinet---Scope---Question before High Court was whether the Azad Jammu and Kashmir Elections (Amendment) Ordinance, 2021, placed before the Legislative Assembly was valid or otherwise---Contention of petitioners was that the Ordinance was issued without approval of the Cabinet---Validity---Rule 23(2) of the Azad Government of the State of Jammu and Kashmir Rules of Business, 1985, showed that the Prime Minister in cases of urgency or other exceptional circumstances could give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case had to be reported to the Cabinet at the earliest opportunity thereafter---Matter was duly presented before the Cabinet, the Cabinet had approved the draft bills with the direction to place them before the Assembly and decision, hence the contention of petitioners was repelled---Writ petitions were dismissed.

(c) Administration of justice---

----Courts cannot interfere in the domain of other institutions or authorities, unless they travel beyond their constitutional or legal domain.

Muhammad Akhtar and 183 others v. Azad Government and 7 others 2016 SCR 853 rel.

(d) Interpretation of statutes---

----If any fault is found in the legislation, the Courts are not competent to rectify such fault, rather, it is the sole responsibility of Legislature to rectify the same.

Sm. Vidya Vati v. State of Punjab and others AIR 1968 SC 519 rel.

(e) Interpretation of statutes---

----Vires of statute---Scope---Court should lean towards the constitutionality of a legislative enactment instead of destroying it, keeping in view the rule of constitutional interpretation.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 rel.

(f) Jurisdiction---

----Legislature is competent to make a law and it has ample powers of legislation.

Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan and others 1993 SCMR 1905 rel.

Barrister Humayun Nawaz Khan for Petitioner (in Writ Petition No.1736-A of 2021).

Syed Shafqat Hussain Gardezi for Petitioner (in Writ Petition No.2055 of 2021).

Saqib Javed for Petitioner (in Writ Petition No. 2143 of 2021).

Kh. Muhammad Akbar and Syed Abdul Basit Gillani for Petitioner (in Writ Petition No. 1793 of 2021).

Raja Ayaz Farid, A.A.G. for the official Respondents.

Tahir Aziz Khan on behalf of the Election Commission.

P L D 2022 High Court (AJ&K) 18

Before Sadaqat Hussain Raja, C.J.

SAKINA---Petitioners

Versus

The STATE and through Advocate General AJ&K, Muzaffarabad another---Respondents

Criminal Revision Petition No. 299 of 2021, decided on 2nd December, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 297 & 34---Azad Jammu and Kashmir Arms and Ammunition Act (III of 2016), S. 15---Qalt-i-amd, offering indignity to human corpse and common intention---Bail, refusal of---Desperate and hardened criminal---Scope---First Information Report was lodged against some unknown persons, however, during investigation it was found that co-accused had suspicion that the deceased had committed zina with his wife (accused), on account of which he along with accused and other co-accused persons planned to commit murder---Both accused on the night of occurrence had gone to the residence of deceased, however, co-accused had come back while the accused had stayed over there and at about 1:30 a.m. she had asked the deceased to leave her at home, who went with her and did not come back---Accused was strangulated to death, some parts of his body were removed and his dead body was burnt---Murder was prima facie committed in a heinous brutal manner---Manner of occurrence was dangerous one and the role played by the accused during the occurrence did not seem ordinary, therefore, third proviso to S.497(1), Cr.P.C., was not applicable to her case---Petition for grant of bail on statutory ground of delay in conclusion of trial was dismissed, in circumstances.

1998 SCR 146 and 2015 PCr.LJ 134 distinguished.

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

----S. 497---Bail---Discretionary jurisdiction---Scope---Right of an accused to be enlarged on bail under the provisions of S. 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary powers of the Court, however, bail under the 3rd proviso to S. 497(1), Cr.P.C. can be refused to an accused by the Court only on two grounds that (i) if the delay in the conclusion of trial was occasioned on account of any act or omission of the accused or any other person acting on his behalf and (ii) if the case of the accused falls under the 4th proviso to S. 497(1), Cr.P.C.---Court has to determine the heinousness, gravity and brutality of offence while allowing bail to an accused.

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

----S. 497---Bail---Discretionary jurisdiction---Scope---Words "or to a person who, in the opinion of the Court, is a hardened, desperate, dangerous criminal" clearly show discretion of the Court to refuse bail to a hardened, desperate or dangerous criminal---Court can refuse bail to an accused whether he has suffered any previous conviction or not and whether he has been previously adjudicated to be guilty or not.

Qadir Bux v. The State 1986 PCr.LJ 2184 and Shaukat Aziz and another v. Ansar Ali and another 2015 PCr.LJ 134 rel.

Sardar Muhammad Ejaz Khan for Petitioner/Accused.

Sardar Nisar Khan for the Complainant-Respondent No.2.

P L D 2022 High Court (AJK) 25

Before Syed Shahid Bahar, J

GHOSIA RIAZ---Petitioner

Versus

JOINT ADMISSION COMMITTEE FOR ADMISSION IN MEDICAL COLLEGES OF AZAD JAMMU AND KASHMIR through Chairman and 4 others---Respondents

Writ Petition No. 4202 of 2021, decided on 8th February, 2022.

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

----Art. 44---Writ petition---Admission in medical college---Maintain-ability---Alternate remedy, availability of---Effect---Petitioner applied for admission in medical college on seat reserved for disabled candidates---Petitioner was denied the admission to the seat---Petitioner filed an appeal against the decision before the Secretary Health---Validity---Petitioner had already approached the appellate forum by preferring an appeal on almost same grounds agitated before the High Court---After institution of an appeal before an appellate forum petitioner's simultaneous approach to switch over from there by filing the writ petition for adjudication of technical matter was not tenable in toto---Only relief beseeched by the petitioner which seemed to be maintainable was the direction to the Secretary Health regarding deciding her appeal in accordance with the scheme of policy notification and principles of law---Writ petition was disposed of accordingly.

Muhammad Arshad Mirza v. DG LDA and 4 others 2004 YLR 2108; Maulana Ghulam-ud-Din v. Azad Government and others 1998 SCR 194 and Muhammad Riaz Khan v. IGP and others 2010 SCR 131 rel.

(b) Words and phrases---

----"Disability"---Meaning---Scope---Concept of disability means lacking one or more physical powers as the ability to walk or to coordinate one's movements, as from the effects of a disease or accident or through mental impairment.

Black's Law Dictionary 11th Edition rel.

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

----Arts. 4(4)(1) & 4(4)(15)---Security of person---Equality of State Subjects---Scope---Use of words such as disability, disorder, physically handicapped, etc. employed in different statutory rules and policy notifications/government circulars are directly in contravention to the constitutionally guaranteed rights under Arts. 4(4)(1) & 4(4)(15) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and the said unpleasant words sound unhealthy classification resulting mental agony to the people having different abilities---High Court directed the Government to do the needful regarding substitution of words "disability", "physically handicapped", "crippled" etc. with "differently abled persons" or "persons having different abilities" wherever it was written in rules and policy notification, etc. in order to mentally uplift people with different abilities in societal fabric and bring them at par with the general public.

Malik Ubaidullah v. Government of Punjab PLD 2020 SC 599 and Barrister Asfandyar Khan Tareen v. Government of Punjab and others PLD 2018 Lah. 300 rel.

Raja Nasir Latif Khan for Petitioner.

Ms. Kokab-al-Saba Rohi for Respondent No.5.

P L D 2022 High Court (AJK) 33

Before Sadaqat Hussain Raja, C J

MUHAMMAD WARIS and others---Petitioners

Versus

DISTRICT MAGISTRATE DISTRICT MUZAFFARABAD, AZAD JAMMU AND KASHMIR and 3 others---Respondents

Writ Petitions Nos. 1747 of 2020 and 138 of 2021, decided on 12th June, 2021.

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

----Art. 44---Writ petition---Cancellation of State Subject Certificates---Protection of ill-gotten gains---Scope---Petitioners assailed cancellation of their State Subject Certificates by the District Magistrate---Validity---State Subject Certificates showed that all the certificates were issued in different dates with same handwriting and pen, which made them suspicious---Prima facie, the certificates were not issued by the competent authority rather the same were prepared by the State Subject Certificate holders fraudulently---District Magistrate had adopted the process for cancellation of those State Subject Certificates which were illegally issued by the authority---Since the State Subject Certificates were not issued by the concerned authority, hence, the process for cancellation of the illegal State Subject Certificates was not required---Authority had categorically stated that the certificates were not issued from its office, therefore, authenticity and genuineness of the documents were not proved---Writ petitions were only filed to protect the ill-gotten gains---Law did not allow the petitioners to protect their illegal gotten gains by invoking writ jurisdiction---Writ petitions were dismissed.

Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139 rel.

Sh. Muhammad Saleem and Muhammad Faisal Turk for Petitioners (in Writ Petition No. 138 of 2021).

Mushtaq Ahmed Janjua for Respondent No.2 (in Writ Petition No.138 of 2021) Petitioner (in Writ Petition No. 1747 of 2020).

A.A.G. for the official Respondents.

P L D 2022 High Court (AJ&K) 40

Before Syed Shahid Bahar, J

GUL MUHAMMAD---Petitioner

Versus

JAN MOMAMMAD and 4 others---Respondents

Revision Petition No. 27 of 2021, decided on 22nd April, 2022.

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

----S. 42---Suit for declaration---Partition of joint property---Scope---All sharers have equal rights in joint property until and unless the same is partitioned by metes and bounds---Possession of one co-sharer is always deemed on behalf of the rest of the co-sharers upon the undivided joint property.

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

----O.I, Rr. 1 & 3---Suit by or against dead person---Scope---No suit can be filed on behalf of a dead person or against a dead person.

Ch. Mohammad Altaf and another v. Mohammad Sadiq and 9 others PLD 2004 SC (AJ&K) 45 fol.

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

---O.I, R.3---Suit against dead person---Scope---Appeal, revision or lis against a dead person is not competent.

Mohammad Ibrahim v. Custodian Evacuee Property and others 1999 YLR 2336 ref.

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

----O. XII, R. 1---No abatement by party's death, if right to sue survives---Scope---Factum of death of plaintiff or defendant is not sufficient to non-suit the party if the right to sue survives.

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

----O. XII, R. 1---No abatement by party's death, if right to sue survives---Actio Personalis Moritur Cum Persona---Scope---All right of action existing in favour or against a party survive but personal activities connected with the individuality of the deceased do not survive on the rational principle of law "Actio Personalis Moritur Cum Persona" i.e. personal rights of action dies with person.

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

----O. XII, R. 1---No abatement by party's death, if right to sue survives---Scope---Criteria to determine when abatement of suit occurs in totality and when in partiality, detailed.

Following criteria has been laid down to determine as to when abatement occurs in totality and when in partiality;

(a) The suit or appeal would be imperfectly constituted in the absence of the deceased party;

(b) A decision on merit may result in inconsistent decrees; and

(c) An effective decree cannot be passed against the living party. [p. 44] F

PLD 2004 SC 185 ref.

Syed Zulqarnain Raza Naqvi for Petitioner.

P L D 2022 High Court (AJ&K) 45

Before Sadaqat Hussain Raja, C J

SIDRA ALAM and others---Petitioners

Versus

STATE through Advocate-General and others---Respondents

Writ Petitions Nos. 3381, 2962, 1382 and 299 of 2021, decided on 11th December, 2021.

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

----Art. 44---Writ petition---Quashing of FIR by High Court---Instances detailed.

FIR can be quashed by High Court in its extraordinary constitutional jurisdiction in the following cases:

i. If it has been registered by unlawful authority and there is any jurisdictional defect.

ii. If from perusal of contents of FIR, no cognizable offence is constituted or made out.

iii. If the civil liability has been converted into a criminal liability and is being enforced through criminal machinery.

iv. If on the face of it, even remotely, there seems no connection of the alleged accused with the offence and there is no probability of the conviction of the accused and the criminal proceedings would be an abuse of the process of law or Court.

v. If there is a patent violation of any provision of law or gross misuse of powers of an authority and

vi. If the offender and victim arrived at a settlement.

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

----S. 154---Information in cognizable cases---Scope---Incharge of the concerned police station is duty bound to register FIR on receiving information of any cognizable offence and conduct investigation in accordance with law---Officer incharge of the police station is required by law to record the same in writing, irrespective of the fact that the information which he had received is correct or otherwise.

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

----Art. 44---Criminal Procedure Code (V of 1898), Ss. 561-A, 154, 169, 249-A, 265-K & 551---Police Rules, 1934, R. 24.7---Writ petition---Quashing of FIR---Information in cognizable cases---Release of accused when evidence deficient---Power of Magistrate to acquit accused at any stage---Power of Court to acquit accused at any stage---Powers of superior officers of police---Cancellation of cases---Scope---Several remedies have been provided to an accused if he is of the view that he has been involved in the case illegally with mala fide intention and there is no chance of his ultimate conviction---Accused can agitate the matter before the investigation agency---Accused can approach the superior officers under S. 551 of Cr.P.C.---Rule 24.7 of the Police Rules, 1934, provides for cancellation of cases under order of Magistrate---Section 169 of the Cr.P.C. relates to release of accused when evidence is deficient---Section 249-A of Cr.P.C. also provides power to Magistrate to acquit accused at any stage---Section 265-K of Cr.P.C. also provides power of Court to acquit accused at any stage---High Court has no role at investigation stage unless some glaring violation of law is pointed out---If quashing of every case registered under S. 154, Cr.P.C. was allowed whole scheme of law would be frustrated which should not be allowed at any cost.

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

----S. 156---Investigation into cognizable cases---Scope---After registration of the case/FIR, any Officer In-charge of the police station will investigate the matter according to S. 156 of the Cr.P.C.

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

----S. 156---Investigation into cognizable cases---Scope---Investigation regarding the commission of offence is the duty as well as the prerogative of the police whenever a report is made to it and it is for Investigating Officer to conclude the matter in view of oral and documentary evidence.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---Where a case requires detailed probe, High Court does not interfere into investigation proceedings and hamper the investigation agency to investigate into the matter.

Arsalan Raja and 5 others v. The State and 3 others 2020 SCR 336 rel.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---High Court is vested with powers to quash FIR if on the face of it no offence appears to have been committed or it appears that the FIR has been lodged with mala fide intention and there is no likelihood of conviction of accused.

Raja Asif Bashir, Syed Sharafat Husain Naqvi, Wajid Hussain Mirza and Saqib Javed for Petitioners.

P L D 2022 High Court (AJ&K) 52

Before Sadaqat Hussain Raja, C J

MUHAMMAD WARIS and others---Petitioners

Versus

DISTRICT MAGISTRATE, DISTRICT MUZAFFARABAD, AZAD JAMMU AND KASHMIR and 3 others---Respondents

Writ Petitions Nos. 1747 of 2020 and 138 of 2021, decided on 12th June, 2021.

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

----Art. 44---Writ petition---Cancellation of State Subject Certificates---Protection of ill-gotten gains---Scope---Petitioners assailed cancellation of their State Subject Certificates by the District Magistrate---Validity---State Subject Certificates showed that all the certificates were issued in different dates with same handwriting and pen, which made them suspicious---Prima facie, the certificates were not issued by the competent authority rather the same were prepared by the State Subject Certificate holders fraudulently---District Magistrate had adopted the process for cancellation of those State Subject Certificates which were illegally issued by the authority---Since the State Subject Certificates were not issued by the concerned authority, hence, the process for cancellation of the illegal State Subject Certificates was not required---Authority had categorically stated that the certificates were not issued from its office, therefore, authenticity and genuineness of the documents were not proved---Writ petitions were only filed to protect the ill-gotten gains---Law did not allow the petitioners to protect their illegal gotten gains by invoking writ jurisdiction---Writ petitions were dismissed.

Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139 rel.

Sh. Muhammad Saleem and Muhammad Faisal Turk for Petitioners (in Writ Petition No. 138 of 2021).

Mushtaq Ahmed Janjua for Respondent No.2 (in Writ Petition No.138 of 2021) for Petitioner (in Writ Petition No. 1747 of 2020).

A.A.G. for the official Respondents.

P L D 2022 High Court (AJ&K) 57

Before Syed Shahid Bahar, J

JAVED AHMED KHAN and 5 others---Appellants

Versus

Mst. NOREEN (WIDOW) and 8 others---Respondents

Civil Appeal No.82-A of 2021, decided on 1st March, 2022.

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

----Ss. 100, 104 & O. XLIII, R. 1---"Ex debito justitiae", doctrine of---Suit for declaration and perpetual injunction was filed by the respondents claiming that they were owners of the land and that appellants were forcibly trying to occupy the suit land and were inclined to raise construction upon the same---Appellate Court reversed the judgment of the Trial Court and granted an interim injunction for a period of 1 year---Appellant contended that respondents had no locus standi; that parties were co-sharers; that the rest of co-sharers had not been arrayed as parties---Validity---Contesting parties were admittedly co-sharers and the suit seemed to be a counterblast of the partition application previously filed by one of the appellants for partition of the suit land---Construction of the mosque over the suit land was corroborated by the copy of the revenue record (khasra gardawari)---Appeal under S. 100 of Civil Procedure Code from an order passed in appeal was not competent---Present case was not fit to exercise jurisdiction qua converting the appeal to revision or writ as the doctrine of "ex debito justitiae", as the appellants had not pleaded so, neither had they prayed for converting the lis---Appeal was dismissed accordingly.

Abdul Qudoos v. Abdul Rehman PLD 1970 AJ&K 21; Abdul Karim v. Sultan Buksh 2010 YLR 2596; AIR 1994 (Calcatta) 205 and Mohammad Saif-Ullah v. LDA. PLD 2021 Lah. 168 rel.

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

----Ss. 100, 114 & 115---Appeal, review and revision were substantive/ statutory remedies provided by law.

(c) Rules of equity---

----Maxim "ex debito justitiae"---Meaning and scope---Doctrine of Ex debito justitiae meant "as a matter of right or what a person is entitled to as of right"---Said doctrine was entrenched/engrained in the legal system but each case had to be decided in its peculiar circumstances---While applying the said doctrine, conduct of the parties was relevant---It would apply to the remedies that the Court was bound to give when they were claimed apart from those that it had discretion to grant---Power of Court to act ex debito justitiae was an inherent power of Court to fix the procedural errors if arising from Court's own omission/oversight.

Mohammad Salman v. Naveed Anjum 2021 SCMR 1675 ref.

Raja Zaigham Iftikhar for Appellants.

P L D 2022 High Court (AJ&K) 61

Before Syed Shahid Bahar, J

RIAZ FURNISHERS (PVT.) LTD. through Director/Primary/Authorized User---Petitioner

Versus

EXECUTIVE ENGINEER PHYSICAL PLANNING AND HOUSING DEPARTMENT MAINTENANCE DIVISION and 3 others---Respondents

Writ Petition No. 591 of 2022, decided on 3rd June, 2022.

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

----Arts. 44, 4(4)(1) & 4(4)(19)---General Clauses Act (X of 1897), S.24-A---Security of person---Right to fair trial---Reasons for decision---Audi alteram partem---Scope---Petitioner was awarded a contract by the Government (respondents) for furnishing the offices of the Government---Executive Engineer terminated the work order vide impugned order---Validity---Impugned order was bald, bereft of any reason and did not conform to mandatory requirements of law---Issuance of such an order in slipshod and sketchy manner mocked the concept of better government provided in the Preamble of the Azad Jammu and Kashmir Interim Constitution, 1974 as well as militated against the doctrine of administrative justice and due process of law besides flouted the principle of natural justice i.e. audi alteram partem---Writ petition was accepted and the impugned notification was set aside.

Zaib-un-Nisa v. Tahira Khanum 2015 SCR 860; 1993 SCR 88; 2021 SCR 665; 2019 SCR 703; 2020 SCR 361; 2019 YLR 725; 2011 CLC 469; 2007 SCMR 152; PLJ 2020 Lah. 488; 2003 PLC (C.S.) 490; 2019 CLC 1118 and 2003 YLR 63 ref.

1997 PLC (C.S.) 356 rel.

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

----Art. 44---General Clauses Act (X of 1897), S. 24-A---If the public functionaries fail to act within the parameters of S. 24-A of General Clauses Act, 1897, High Court has ample jurisdiction to give direction to the relevant authority to act strictly in accordance with law.

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

----Art. 44---Writ petition---Maintainability---Scope---Where allegations are based on statutory rules and other legal documents for enforcement of such contractual liabilities, constitutional petition is competent.

1996 MLD 1972 ref.

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

----Art. 44---Writ petition---Maintainability---Scope---Modern and progressive juristic approach regarding maintainability of constitutional petition pertaining to contractual liability seems to be tilting in favour of competence of writ petition rather to push back petitioner to resort to other alternate remedies by way of filing civil suit or arbitration.

1998 CLC 1178 rel.

(e) Public functionaries---

----Public functionaries are under legal obligation to decide controversies between the parties with reasons.

(f) Public functionaries---

----Public functionaries must act honestly, fairly in matters of contracts regarding public interest.

(g) Public functionaries---

----Law does not allow issuance of any rigmorale and zigzag issuance of orders.

(h) Administration of justice---

----Deviation of law gives birth to concept of club law and lawlessness.

(i) Administration of justice---

----Law requires performance of an act in a way as it is prescribed otherwise performance of the same is nullity.

(j) Administration of justice---

----Discretionary jurisdiction---Principles detailed.

Discretion to fulfill the following requirements:

i) open plans

ii) open policy statement

iii) open rules

iv) open finding

v) open reasons

vi) open precedent and fair procedure.

(k) Locus poenitentiae---

----Reversal of a validly issued legal instrument which creates certain rights in favour of other party and in furtherance of some decisive steps already taken could not be set at naught simply in the guise of discretionary powers, that too without disclosing any reason in this regard at the time of reversal of such like instrument.

(l) Public functionaries---

---Public functionaries dealing with rights and obligations of persons are required to give valid reasons in their orders which are likely to operate adversely against such persons.

(m) Administration of justice---

----Every citizen has to be dealt with in accordance with law and not on the basis of whims and caprice of the executive authorities.

(n) Public functionaries---

----Government functionaries have to act fairly, justly, equitably and reasonably.

Raja Muhammad Hanif Khan for Petitioner.

P L D 2022 High Court (AJ&K) 72

Before Syed Shahid Bahar, J

MOHAMMAD BASHIR KHAN and another---Appellants

Versus

MOHAMMAD AZAM KHAN and 21 others---Respondents

Civil Appeal No.257 of 2019, decided on 8th June, 2022.

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

----Ss. 42 & 39---Suit for declaration and cancellation---Cancellation of consent decree---Scope---Plaintiffs filed a suit for declaration and cancellation of consent decree obtained by defendants qua the un-partitioned suit land---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Plaintiffs, despite the fact that they were co-sharers (having possession over the suit land) were not arrayed as party in the suit---Suit was decreed in a summary manner within a short span of 6 days in the shape of consent decree---Decree obtained in collusive attempt by passing the necessary parties and in tricky manner, that too within few days in deviation of codal formalities could not be endorsed and allowed to remain in field when an aggrieved one had made a challenge to the same---Judgments of courts below suffering from mis-reading and non-reading of evidence were set aside and the suit was decreed---Second appeal was accepted.

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

----S. 100---Second appeal---Concurrent findings---Scope---Narrow corridors are provided to indulge and embark upon the findings concurrently recorded by the two courts below.

(c) Administration of justice---

----Preponderance of evidence---Scope---Courts of law in civil cases have to record findings in favour of the party in whose favour the material has been brought on record---Preponderance of probability in favour of a litigant party could be made base for adjudication and in such like circumstances, a party to lis who proved his stance with upper edge to other side qua evidence on record deserve decree in his favour as a fruit of his proof.

M. Aziz Khan and others v. M. Hanfi and others 2012 CLC 1521; Ghulam Mohammad v. Mohammad Ashraf PLD 1981 SC AJK 118; Aksar Ali v. Fazal Karim 1982 CLC 1309; Haji Mohammad Idrees v. Ch. Mehmood Ahmed and others 2000 MLD 1813 and Haji Nazir Ahmed v. Raja Mohammad Saeed PLD 2010 SC (AJ&K) 47 ref.

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

----O. VIII, R. 5---Specific denial---Scope---Every allegation of fact in the plaint, if not denied specifically or by necessary implication or not traversed (denied expressly) or stated to be admitted in the pleadings of the defendant, shall be construed to be admitted.

Bashir Ahmed and 3 others v. Mohammad Aslam and 6 others 2003 SCMR 1864 and Ghulam Rasool through L.Rs. and others v. Mohammad Hussain and others PLD 2011 SC 119 ref.

(e) Fraud---

----Fraud vitiates all solemn proceedings.

Mohammad Younis Khan and 12 others v. Government of NWFP through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618; Lal Din and others v. Mohammad Ibrahim 1993 SCMR 710 and Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862 ref.

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

----Arts. 113 & 133---Facts admitted need not be proved---Cross-examination---Scope---Admitted facts need not to be proved and material disposition remaining un-challenged in cross-examination amounts to admission.

Zaffar alias Mumtaz and another v. Mst. Sajjad Begum and others 2014 SCR 1549 and Azad Govt. and others v. Haji Abdul Rasheed 1999 YLR 1001 rel.

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

----O. VIII, R. 4, O. IX, R. 8, O. X, R. 1 & O. XII, R. 1---Evasive denial---Procedure where defendant only appears---Ascertainment whether allegations in pleadings are admitted or denied---Notice of admission of case---Scope---Courts are bound to dive deep into and be careful while deciding cases in which parties have compromised, evasively denied the facts or through un-registered documents admitted to get declaration of ownership through judgment to the detriment of other owners or parties having legal right.

Khalid Hussain and others v. Haji Mohammad Rafique and others 2008 CLC 1737 rel.

(h) Pleadings---

----Courts have to decide the cases on the basis of pleadings of the parties and material propositions raised, in the light of proof brought on record.

Mohammad Ayub and others v. Ali Zaffar and others 2018 YLR 1244 rel.

(i) Limitation---

----No limitation runs against a person who was not a party to the proceedings, which adversely affects his rights---Question of limitation is applicable against that party who is contesting the claim and despite knowledge of the adverse order fails to challenge the order in the Court of competent jurisdiction.

Muhammad Sultan v. Sardar Begum 2005 SCR 80 rel.

(j) Limitation---

----Void judgment---Scope---If the judgment and decree is void in the eyes of law then question of limitation can be ignored.

Khaliq Nawaz and others v. Azad Government and others 2017 SCR 1504 rel.

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

----S. 42---Suit for declaration---Co-sharer---Scope---Every co-sharer is deemed to be the owner of every piece and parcel of the land unless the same is regularly partitioned.

Abdul Sattar v. Tariq Aziz 1999 CLC 1146 ref.

Mohammad Yousaf Khan v. Board of Revenue 2002 CLC 739 rel.

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

----S. 12(2)---Bar to further suit---Scope---Where the fraud is apparent on the face of record and proceedings of suit, decree obtained as a result thereof is liable to be annulled.

Abdul Aziz Khan Niazi and others v. Mst. Salma Rehman and another 1992 CLC 777 rel.

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

----S. 107, O. XLI, Rr. 33 & 24---Powers of Appellate Court---Where evidence on record is sufficient, Appellate Court may determine case finally---Scope---Appeal is continuation of the suit and under S. 107, C.P.C.---Appellate Court has all powers which are vested in the Trial Court, such powers are adequately supplemented by the provisions of O. XLI, Rr. 33 & 24, C.P.C.

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

----S. 100---Second appeal---Concurrent findings---Scope---Concurrent findings of fact are open to attack if the same are not supported by any evidence or otherwise are unreasonable or perverse.

Akhtar Khan v. Sarwar Khan 2003 SCR 128 rel.

Mohammad Yaqoob Khan Mughal for Appellants.

P L D 2022 Islamabad 1

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

SHAH RUKH JAMAL---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others---Respondents

Writ Petition No. 2942 of 2021, decided on 15th November, 2021.

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

----S. 12---Freezing of property---Powers, exercise of---Term 'reasonable grounds for believing'---Applicability---Such power is discretionary in nature and it can either be exercised by Chairman or Court trying any offence under National Accountability Ordinance, 1999---Power of Court has nexus with trial against accused while Chairman of the Bureau is empowered to order freezing of a property at any time---Legislature has circumscribed the power by prescribing certain mandatory statutory safeguards---Required standard prescribed for justifying interference with right to property for Chairman or Court, as the case may be, to satisfy test of having 'reasonable grounds for believing' that accused has committed an offence under National Accountability Ordinance, 1999---'Reasonable grounds for believing' has reference to required evidentiary threshold---Such is legal standard and it has to be met as a precondition before exercising intrusive power under S.12 of National Accountability Ordinance, 1999---'Reasonable grounds' is must which manifests existence of certain essential facts, it essentially refers to existence of such facts and circumstances which would lead a reasonable prudent person to form a belief---Such belief would be relatable to the property being, directly or indirectly, owned and controlled by accused and the latter having committed one of the offences described under S.9 of National Accountability Ordinance, 1999---Requisite standard is higher than a reasonable suspicion but less than 'on balance of probabilities', which is distinct from conjecture, speculation or suspicion---Required standard is far less than proving something beyond a reasonable doubt---Threshold required for reasonable person to conclude and be satisfied on the basis of sufficient material to conclude deprivation of or interference with right to own, hold or control property.

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

----S. 23---Prohibition regarding property---Scope---Such prohibition extends to the property directly or indirectly owned by an accused.

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

----Ss. 12, 13 & 23---Criminal Procedure Code (V of 1898), Ss. 53, 88, 145, 146 & 516-A---Criminal proceedings---Dealing with property---Scope---Even if no order has been passed under S.12 of National Accountability Ordinance, 1999, there is a statutory prohibition under S.23 of National Accountability Ordinance, 1999, to deal with a property connected with one of the offences described under S.9 of National Accountability Ordinance, 1999---Special scheme provided under Ss.12, 13 & 23 of National Accountability Ordinance, 1999, to deal with a property owned or controlled by an accused and connected with offence allegedly committed by the latter is distinct from the powers under Criminal Procedure Code, 1898---Provisions under Cr.P.C. fall within the category of laws that are procedural and general in nature---Criminal Procedure Code, 1898, was promulgated to consolidate and amend law relating to criminal procedure and it contains general provisions which empower a police officer to detain, seize or take into possession any property suspected to be connected with the crime.

(d) Interpretation of statutes---

----Special law---Scope---When special statute confers special powers and jurisdiction and provides a special form of procedure then those prevail over the procedure or provisions of Cr.P.C.

Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Shujat Hussain v. State 1995 SCMR 1249; State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999 and Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

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

----Ss.12, 13 & 23---Criminal Procedure Code (V of 1898), Ss. 53, 88, 145, 146 & 516-A---Constitution of Pakistan, Art. 199---Constitutional petition---Case property---Scope---Petitioners claimed that vehicle seized from house of accused during raid belonged to them---Authorities denied return of the vehicles on the ground that those were case properties and could be seized---Validity---Case property in the context of offences described under S.9 of National Accountability Ordinance, 1999, could only be dealt with under Ss. 12, 13 & 23 of National Accountability Ordinance, 1999---National Accountability Bureau was bereft of jurisdiction to resort to powers vested under Criminal Procedure Code, 1898---Vehicles claimed by petitioners were neither registered in the name of accused nor any material was collected by the Bureau to indicate the latter's connection therewith---Nothing was on record to satisfy required threshold of having 'reasonable grounds to believe' that the vehicles were connected with offences alleged to have been committed by accused---Vehicles were taken into possession by the Bureau and detained/seized in disregard to statutory requirements and safeguards provided under Ss. 12 & 13 of National Accountability Ordinance, 1999---Powers were exercised by the Bureau unlawfully and arbitrarily under Cr.P.C. on mere suspicion as vehicles were found at the property---Petitioners were not accused of committing any offence under National Accountability Ordinance, 1999, nor any proceedings pending against them thereunder---Nothing was on record to show Benami ownership or control of respondent---Detention and seizure of vehicles was without lawful authority and jurisdiction and was an abuse of powers by officials of Bureau---Such was not to hand over temporary possession (Superdari) because vehicles could not have been treated as 'case property' in relation to alleged offences committed by accused---Powers exercised by the Bureau to the extent of vehicles in question were ultra vires the scheme of National Accountability Ordinance, 1999---High Court remanded the matter to Accountability Court for releasing the vehicles in question to their lawful owners---Constitutional petition was allowed, in circumstances.

(Moulvi) Fazlul-Qader Choudhury v. Crown PLD 1952 FC 19; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Husain v. The State 1995 SCMR 1249; Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Corporation (Pvt.) Ltd. and another 1993 SCMR 1533 and Pakistan Telecommunication Company Ltd. v. Directorate of Intelligence and Investigation and others 2018 PTD 946 rel.

Khawaja Haris Ahmed and Munawar Iqbal Duggal for Petitioners.

Rana Zain Tahir, Special Prosecutor NAB, Umair Majeed Malik for Respondents.

Mustansar Hussain, AD/IO/NAB for Respondents.

P L D 2022 Islamabad 13

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Mian MUHAMMAD NAWAZ SHARIF---Appellant

Versus

STATE through Chairman,National Accountability Bureau---Respondent

Criminal Appeal No. 121 of 2018, heard on 23rd June, 2021.

(a) Criminal trial---

----Absconsion---Right of appeal---Scope---Where the petitioner, as a fugitive from justice, presented himself before an attorney and signs a power of attorney in his favour for the presentation to the Court a petition for special leave to appeal and the same is duly filed, in such an eventuality, the court would not act in aid of a person who is a fugitive from justice and the petition was to be dismissed.

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

Chan Shah v. The Crown PLD 1957 FC 43 fol.

(b) Criminal trial---

---Absconsion---Right of appeal---Scope---Nothing exists in the Constitution or the Rules to compel the Court to decide on merits an appeal filed by an accused person who has chosen to be fugitive from justice and while remaining so decides to disobey or frustrate the orders, directions and process of the Court from which he seeks justice.

Ikramullah and others v. The State 2015 SCMR 1002 and Hayat Bakhsh and others v. The State PLD 1981 SC 265 rel.

(c) Criminal trial---

----Presence of accused---Scope---Essential condition of the administration of justice is that in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice.

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

----S. 497---Bail---Absconsion---Scope---Fugitive from law loses some of normal rights granted by procedural and also substantive law---Unexplained notice-able absconsion disentitles a person to concession of bail notwithstanding merits of case.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 fol.

Ikramullah and others v. The State 2015 SCMR 1002; Inam ul Rahiem v. Chairman, NAB, Islamabad and another PLD 2018 Isl. 251 and Lahore High Court Bar Association and others v. General (R) Pervez Musharraf and others (Civil Review Petition No.513 of 2014 in Constitution Petition No.14 of 2018) rel.

(e) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Article 10-A of the Constitution provides for the determination of civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

Nemo for Appellant.

Jahanzeb Khan Bharwana, Additional Prosecutor General, NAB, Imran-ul-Haq Khan, Deputy Prosecutor General, NAB, Sardar Muzaffar Abbasi, Deputy Prosecutor General, NAB, Naeem Tariq Sanghera, Special Prosecutor, NAB and Syed Jalal Hussain, Special Prosecutor, NAB for Respondent.

Azam Nazeer Tarar, Hassan Nawaz Makhdoom, Barrister Asad Ullah, Barrister Hammad Masood, Syed Faisal Qadir Shah and Usman Ghumman, Amicus Curiae.

P L D 2022 Islamabad 22

Before Babar Sattar, J

Raja ZAHOOR AHMED---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petitions Nos. 4126 to 4129, 4133, 3574, 3576 and 3578 of 2015, 1018 of 2019, Civil Revisions Nos. 315 and 423 of 2016, decided on 7th April, 2021.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Legitimate expectancy, doctrine of---Scope---Jurisprudence on doctrine of legitimate expectancy has evolved over the years---Even in a case where conduct of a public authority gives rise to legitimate expectation of an individual to be treated in a certain way, the onus merely shifts to public authority to establish that notwithstanding such expectation its decision to act contrary to such representation is driven by public interest---Doctrine of legitimate expectation is a consideration for decision maker and not an absolute bar against acting in a certain manner in such cases where such action promotes larger public interest---In case of any conflict between rights of an individual and rights of a community, Court has to undertake a balancing exercise so that interests of individual are not allowed to trump the interests of community.

Judicial Review of Public Actions (Volume 2 Page 1365); Council of Civil Services Union v. Minister for the Civil Services [1985] A.C. 374 and Food Corporation of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 rel.

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

----S. 11---Master plan---Compliance---Scope---Compliance with Capital Development Authority Ordinance, 1960, Master plan approved and rules and regulations framed, is mandatory---Capital Development Authority is not vested with power or mandate to frame regulations in breach of provisions of Capital Development Authority Ordinance, 1960 or in conflict with Master plan approved by Federal Government or prepare any schemes that are not in conformity with approved Master plan or exercise discretionary authority to take decisions such that they are in contradiction with Master plan or the regulations promulgated under Capital Development Authority Ordinance, 1960, whether in relation to development of schemes, authorization of construction or land and property use---Any decision of Capital Development Authority in breach of provisions of Capital Development Authority Ordinance, 1960, rules and regulations framed thereunder or in conflict with Master plan is devoid of legal authority and can neither be protected under doctrine of locus Poenitentiae nor can give rise a legitimate expectation on part of a resident to continue to be treated in accordance with such unlawful decision---Right to have zoning, building control and property use powers vested in Capital Development Authority exercised in accordance with Capital Development Authority Ordinance, 1960, rules and regulations framed thereunder and Master plan is a collective right of all residents of Islamabad and cannot be overridden by any contrary interest set up by an individual or a group of individuals---To ensure that properties are subjected only to such use as is authorized by regulations promulgated under Capital Development Authority Ordinance, 1960, is a mandatory obligation of Capital Development Authority.

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

----Ss. 11 & 51---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---Commercialization of property---Board of Directors, decision of---Locus Poenitentiae, doctrine of---Scope---Petitioners claimed that after declaring their area as commercial, no commercialization fee was required to be paid for conversion of their property---Validity---Decision of Board of Directors of Capital Development Authority was not a regulation for the purposes of S.51 of Capital Development Authority Ordinance, 1960---Decision of Capital Development Authority Board of Directors allowed conversion of residential property into commercial property, such decision was ultra vires Capital Development Authority Ordinance, 1960 and was in excess of authority rested in Capital Development Authority Board---Such decision of Board of Directors was illegal and void ab initio---Rescinding earlier decision of commercialization was the correct decision of Board of Directors and was in accordance with the scheme and provisions of Capital Development Authority Ordinance, 1960---Capital Development Authority rightly refused commercialization of property of petitioners and the same did not suffer from any legal infirmity---Petitioners had garnered no benefits under the decision of commercialization during the period it remained in filed, therefore, they could not claim any injury due to withdrawal of decision and doctrine of locus poenitentiae was of no help to them---Decision of commercialization created no vested rights for petitioners as the same was an illegal order, which was neither acted upon by petitioners nor Capital Development Authority---Any superstructure of expectations built upon an illegal order would come crumbling down along with its illegal foundation---Capital Development Authority was obliged to ensure that properties that fell within its regulatory domain in Islamabad Capital Territory were not employed in non-conforming use---Duty of Capital Development Authority to discharge its statutory obligation and ensure that no residential property was used for commercial purpose---High Court directed Capital Development Authority to stop any continuing non-confirming use of any property in the area---Constitutional petition was dismissed, in circumstances.

Col. (R) Javed Agha v. Arshad Mahmud 2017 MLD 627; Government of the Punjab, Education Department v. Muhammad Imran 2019 SCMR 643; Muhammad Sidiq through L.Rs v. Punjab Service Tribunal, Lahore 2007 SCMR 318; Human Right Case No.4668 of 2007; (PLD 2010 SC 759); Shahzada Sikandar ul Mulk v. Capital Development Authority PLD 2019 Isl. 365; Aslam and others v. Karachi Building Control Authority and others 2005 CLC 759; Zainab Garments (Pvt.) Ltd. through Chief Executive and others v. Federation of Pakistan through Secretary, Ministry of Housing and Works and another PLD 2010 Kar. 374; Amber Alibhai and 6 others v. Muhammad Ghulam Jan Muhammad and 10 others 2016 MLD 1208; Aftabuddin Qureshi and others v. Government of Sindh, Secretary, Housing and Town Planning and others 2003 MLD 661; Sheikh Naeem Ahmed and others v. Province of Sindh and others 2006 CLC 1231; Mst. Shamim Mazhar Abbasi v. Secretary Local Government and Community Development Department, Lahore and 2 others PLD 2012 Lah. 80; Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. and others 2009 YLR 1896; Government of Pakistan through Secretary Board of Revenue, Hyderabad v. Niaz Ahmed and others 1991 SCMR 2293; Makhdoom Muhammad Mukhtar, Member Provincial Assembly v. Province of Punjab through Principal Secretary to Chief Minister, Punjab and 2 others PLD 2007 Lah. 61; Isamdad Khan and another v. Muhammad Khurshid Khan and another 2012 MLD 1635; Dr. Mukhtar Ahmed Shah and others v. Government of the Punjab and others PLD 2002 SC 757; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad 2016 PTD 2269; Punjab Healthcare Commission v. Mushtaq Ahmed Ch. PLD 2016 Lah. 237; The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Deputy Controller of Customs (Valuation) and others v. Messrs Abdul Shakoor Ismail Kaloodi and others 2006 PTD 2142; Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347; Al-Safa Golden Co. (Pvt.) Ltd. v. Capital Development Authority 2016 CLC 210; Syed Waqar Hussain Gillani v. Capital Development Authority 2013 CLC 1095; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Muhammad Raza v. Jammu and Kashmir Cooperative Housing Society PLD 2013 Isl. 49; Ms. Shahnaz Butt v. Islamabad Bar Association through its President and others (W.P. No. 2906 of 2018); Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Nazir Ahmed Panhwar v. Government of Sindh 2005 SCMR 1814; Engineer-in- Chief Branch v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 ref.

Muhammad Saeed v. The Province of West Pakistan PLD 1964 SC 572 rel.

Mansoor Ahmed, Advocate for Petitioners (in Writ Petitions Nos. 4126, 4127, 4128, 4129 and 4133 of 2015).

Muhammad Ikram Chaudhry for Petitioners (in Writ Petitions Nos. 3574, 3576 and 3578 of 2015).

Mir Afzal Malik for Petitioner (in Writ Petition No. 1018 of 2019).

Syed Usama Shah for Petitioner (in Civil Revisions Nos. 315 and 423 of 2016).

Aamir Latif Gill, Reehan Seerat, Syeda Rida-e-Batool and Ch. Kamil Hayat for Respondents.

P L D 2022 Islamabad 54

Before Miangul Hassan Aurangzeb, J

Mst. ABIDA ZAKIR alias AUBAIDA ZAKIR through Attorney---Appellant

Versus

Raja AMAN ULLAH KHAN and another---Respondents

Execution First Appeal No. 1 of 2021, decided on 7th December, 2021.

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

----S.13---Conclusiveness of foreign judgment---Principle---Findings of foreign Court, question to---Binding character of judgment may be displaced only by establishing that case falls within one or more of the six clauses of S.13, C.P.C. and not otherwise---In considering whether a judgment of foreign Court is conclusive, the Courts in Pakistan cannot inquire whether conclusions recorded by foreign Court are supported by evidence or are otherwise correct.

Syed Jaffer Abbas v. Habib Bank Limited PLD 2014 Sindh 209 rel.

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

----Ss.13 & 44-A---Execution of foreign judgment---Non-freezing of assets---Petitioner was holder of decree issued by a Court in United Kingdom---Enforcement of final order was refused by Court on the plea that earlier Court in Pakistan declined to execute interim freezing order against assets of judgment debtor in Pakistan---Validity---Held, it was unlawful for Court below to have dismissed application of decree holder under S.44-A, C.P.C. for enforcement of final order passed by Court in the United Kingdom on the ground that earlier the decree holder had filed application for execution of an interim freezing order passed by foreign Court before District Court in Pakistan---Application under S.44-A, C.P.C. was filed before it for enforcement of final order which was an order for payment of money---Enforcement of freezing order, which had been made an integral part of that final order, was sought only to secure assets of judgment debtor, against which final order could be enforced---High Court set aside the order passed by Court below and remanded the matter for further proceedings on application under S.44-A, C.P.C. of applicants---Appeal was allowed, in circumstances.

Syed Jaffer Abbas v. Habib Bank Limited PLD 2014 Sindh 209; Oakwell Engineering Ltd. v. Enernorth Industries Inc. 2006 VII AD (Delhi) 836 and Goyal Mg Gases Private Ltd. v. Messer Griesheim Gmbh 211 (2014) DLT 481 rel.

Raja Muhammad Khan for Appellant.

Raja Abid Hussain Janjua and Rehmat Ali for Respondent No.1.

Ali Waqas for the C.D.A.

P L D 2022 Islamabad 64

Before Athar Minallah, C.J.

PAKISTAN MUSLIM LEAGUE (N) through Parliamentary Party Leader in Senate---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice and 3 others ---Respondents

Writ Petition No. 3503 of 2021, decided on 1st October, 2021.

Elections Act (XXXIII of 2017)---

----S. 72-A [as inserted by Elections (Third Amendment) Ordinance (XX of 2021)]---Constitution of Pakistan, Arts. 89 & 199---Constitutional petition---Vires of Ordinance---Political question---Petitioner was a political party and had sought setting aside of the provision inserted by Elections (Third Amendment) Ordinance, 2021---Validity---Involvement of High Court in matters which otherwise could be resolved by Majlis-e-Shoora (Parliament) was in violation of scheme of the Constitution, which was based on principle of trichotomy of powers---Political questions raised before Courts, by political parties having representation in Majlis-e-Shoora (Parliament) would undermine its sanctity and supremacy---If petitioner party and other opposition parties did not disapprove Elections (Third Amendment) Ordinance, 2021, then High Court had no reason to interfere and usurp Constitutional authority vested in forums representing people of Pakistan---Provision of S.72-A inserted in Elections Act, 2017, through Elections (Third Amendment) Ordinance, 2021, was in public interest because it intended to ensure that no elected office and electorate would remain vacant / unrepresented for an indefinite period---Any interference by High Court would be contrary to public interest and guaranteed fundamental rights of people---High Court declined to exercise its extra-ordinary discretionary jurisdiction in the matter---Constitutional petition was dismissed, in circumstances.

Riaz Hanif Rahi v. Federation of Pakistan through Secretary, Ministry of Law and Justice and 14 others PLD 2019 Isl. 230 and Secretary to the Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi PLD 2001 SC 415 rel.

P L D 2022 Islamabad 68

Before Babar Sattar, J

KHURRAM MANZOOR and another---Petitioners

Versus

SURIYA BEGUM (Late) through her legal heirs and others---Respondents

Civil Revision No. 388 of 2019, decided on 4th June, 2021.

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

----O. IX, R. 13---Setting aside ex-parte proceedings against defendant---Suit, not fixed for hearing---Scope---When the petitioners were put on notice that the Trial Court would hear two applications (identified in the order), then passing an order in the main suit was without notice and fell foul of Art. 10-A of the Constitution---Order passed by Trial Court initiating ex-parte proceedings against the petitioners was set aside---Petition was allowed accordingly.

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

----O. III, R. 1---Appearance, may be in person, by recognized agent or by pleader---Appearance of clerk in Court---Scope---No concept exists within the C.P.C. of a clerk appearing on behalf of a party and a Civil Court recording such appearance as the appearance of a party to the proceedings; unless such clerk is a duly authorized special attorney of the party.

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

----O. III, Rr. 1 & 2---Appearance, may be in person, by recognized agent or by pleader---Recognized agents---Appearance of clerk in Court---Scope---Either a party itself or a duly authorized attorney or pleader is entitled to appear before a Court on a date fixed for the hearing of a case---Practice of clerks appearing before Civil Courts and their presence being recorded and deemed as the presence of the party whom they purport to represent has no backing of law and needs to be deprecated---Thing that is required to be done in a certain way must be done in that way or not at all---Clerk of a counsel has no right of appearance or audience or advocacy before the Civil Court and has no authority to sign any pleadings---Appearance of clerks in place of parties and their counsel disables the Court from undertaking effective case management, as a clerk has no skin in the game: he neither has an interest to protect the party itself, nor is he bound by professional ethics prescribed for lawyer under the Legal Practitioners and Bar Councils Act, 1973---Care must be employed by the Civil Court not to allow appearance of a clerk of a counsel instead of parties or their counsel or mark their presence on order sheets, which unsanctioned and retrograde practice has culminated into the sorry state of affairs where clerks are now executing pleadings.

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

----S. 35-A---Costs of Litigation Act (XVII of 2017), Preamble---Adjournment costs---Scope---Provisions of the Costs of Litigation Act, 2017, are mandatory in nature and the Courts are under an obligation to give effect to them in order to ensure speedy adjudication of grievances---Pursuant to S. 35-A of C.P.C., introduced through the Costs of Litigation Act, 2017, a Civil Court is under an obligation to impose a minimum adjournment cost of Rs.5000/- per adjournment, unless the Court is convinced that the adjournment has been sought "on account of unavoidable reasons", and such reasons are then recorded by the Court in its order to explain the lack of imposition of adjournment costs---Legislative intent behind the promulgation of the Cost of Litigation Act, 2017, is to deter delaying tactics on behalf of parties who abuse the process of the Court to delay and pre-empt timely adjudication of cases---Imposition of adjournment costs also puts a party on notice that the Court will exercise its discretionary penal powers under the C.P.C. to discharge its obligation to adjudicate the case before it on merits in a timely fashion.

Raja Inam Amin Minhas for Petitioners.

Tahir Mehmood for Respondents.

P L D 2021 Islamabad 75

Before Athar Minallah, C.J.

NOMAN AHMED and 14 others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petition No. 244 of 2018 (and other connected Petitions), decided on 14th June, 2021.

(a) Constitution of Pakistan---

----Art. 24---Property right---Scope---Power of eminent domain is inherent attribute of sovereignty of a State, which derives such power because of its dominion over land within its jurisdiction---Private property rights are not absolute and based on principle that public rights take precedence over private rights.

Fauji Foundation and another v. Shamim ur Rehman PLD 1983 SC 457 rel.

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

----S. 4---Constitution of Pakistan, Art. 24---Expressions 'public purpose', 'public use' and 'public interest' are used interchangeably.

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

----S. 4---Constitution of Pakistan, Art. 24---Eminent domain---Good governance---Nature of power of eminent domain and its disruptive consequences make it a duty of State to inform each individual of the latter's rights---In case of abuse of power of eminent domain, it becomes duty of state to remedy loss and damage caused to affected citizen, rather than leaving the latter to mercy of costly and time consuming judicial process.

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

----S. 4---Constitution of Pakistan, Art. 24---Compulsory acquisitions---Pre-conditions---State is empowered to compulsorily acquire or to take possession of private property subject to fulfilling two fundamental conditions i.e. for public purpose and by authority of law which provides for compensation---Law has either fixed amount of compensation or has specified principles on and the manner in which compensation is to be determined and given.

(e) Federal Government Employees Housing Authority Act (IV of 2020)---

----S.5---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Art. 24---Acquisition of land---Scope---Acquisition for establishing housing societies by Federal Government Employees Housing Authority is a public purpose.

Federal Government Employees Housing Foundation, Islamabad and others v. Malik Ghulam Mustafa and others (C.As. Nos. 1476 to 1485/2018) rel.

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

----S. 25---Acquiring of property---Scope---Acquisition of property under Capital Development Authority Ordinance, 1960, is public purpose as it is to establish and develop capital of country.

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

----S.12---Constitution of Pakistan, Art.24---Expression 'compensation'---Determining factors---Power to compulsorily acquire property is subject to duty to 'compensate' affected owner---Compensation is based on principle of equivalence which essentially has meaning of restoring injured party to his/her former position or to give equivalent for the loss sustained---Neither should affected party be enriched nor impoverished---Duty of State is to put owner of condemned property in same position as the latter was before---Quantum of compensation must be equivalent to injury or loss suffered---In the context of eminent domain it is implicit in the expression 'compensation' that injured party is at least put in a position as the latter was before so that opportunity to rehabilitate or resettle is not lost---It is right of every person whose property is intended to be taken to be dealt with fairly, justly, equitably and in accordance with law---Such is implicit in the right that duty of public functionaries is to ensure that market value is determined in a transparent manner---Procedures and policies should be clear, predictable and enforceable---Adoption of principles of good governance is of paramount importance for ensuring that affected does not lose confidence in the system.

Blacks Law Dictionary (6th Edition); Hughson Condensed Milk Co. v. State Board of Equalization, 23 Cal.App.2d 281, 73 P.2d 290, 292; U.S. v. Reynolds, Ky., 397 U.S. 14, 90 S.Ct. 803, 805,25 L.Ed.2d 12; Jacobs v. U. S., Ala., 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142; Metropolitan Water Dist. of Southern California v. Adams, 16 Cal.2d 676, 107 P.2d 618, 621; U.S. v. Waterhouse, C.C.A. Hawaii, 132, F2d, 699, 703; Tennessee Valley Authority v. Indian Creek Marble Co., D.C. Tenn., 40 F. Supp. 811, 818, 819; State v. Hale, Tex. Civ. App., 96 S.W. 2d 135, 141; Cameron Development Co. v. United State, C.C.A. Fla., 145 F.2d 209, 210; U.S. v. 2.4 Acres of Land, More or Less, In Lake County, III., C.C.A., III., 138 F2d 295, 297; Danforth v. U.S., Mo., 308 U.S. 271, 60 S.Ct. 231, 236, 84 L.Ed. 240; Kieselbach v. Commissioner of Internal Revenue 317 U.S. 399, 63 S.Ct. 303, 305, 87 L.Ed. 358; Board of Water Supply of City of New York, 277 N.Y. 452, 14 N.E.2d 789; Los Angeles County Flood Control Dist. v. Hansen, 48 Cal. App. 2d, 314, 119 P.2d. 734, 735; Almota Farmers Elevator and Warehouse Co. v. U.S., Wash., 93 S.Ct. 791, 794, 409 U.S. 470; New Hampshire Water Resources Bd. v. Pera, 108 N.H. 18, 226 A.2d 774, 775, 776; State Highway Commission v. American Memorial Parks, Inc., 82 S.D. 231, 144 N.W.2d 25, 27; Enright v. U.S. 73 Ct. Cl. 416, 54, F.2d, 182, 190; De Laval Steam Turbine Co. v. U.S. 284 U.S. 61, 52 S.Ct. 78, 79, 76 L.Ed. 168; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) 9; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; NWFP through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Sarhad Development Authority NWFP (Now KPK) through COO/CEO (Officio) and others 2020 SCMR 265; Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16; Murad Khan v. Land Acquisition Collector 1999 SCMR 1647; Land Acquisition Collector, Abbottabad v. Gohar-ur-Rehman Abbasi 2009 SCMR 771; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 and Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 rel.

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

----S. 27---Constitution of Pakistan, Art. 24---Compensation---Determination of market value---Main criteria for determination of market value is the price which a willing buyer would pay to a willing seller if they were to enter the transaction voluntarily and at arms-length.

(i) Federal Government Employees Housing Authority Act (IV of 2020)---

----Ss.5 & 14(1)---Capital Development Authority Ordinance (XXIII of 1960), Ss. 25 & 27---Land Acquisition Act (I of 1894), S. 4---Constitution of Pakistan, Arts. 9, 23, 24 & 199---Constitutional petition---Acquisition of land---Duties and powers of authorities---Negotiated compensation---Delay in payment of compensation---Effect---Petitioners were owners of lands and their grievance was that after acquisition of their lands no compensations were paid to them---Validity---Negotiated settlement approved by Executive Board of Federal Government Employees Housing Authority (FGEHA) was binding and parties were committed to perform their respective obligations---Settlement agreement between the parties met the requirements of just compensation in the context of Art. 24 of the Constitution---High Court directed Federal Government to ensure implementation of settlement agreement---Power of compulsory acquisition or eminent domain was abused by Capital Development Authority (CDA) by denying to affected property owners their acknowledged vested rights---Such was a Constitutional and statutory duty of CDA and Federal Government to 'compensate' all affected citizens whose rights stood admitted and acknowledged---Every affected citizen who was subjected to power of compulsory land acquisition and whose right to either allotment of plot or payment in monetary terms was acknowledged by CDA had a Constitutional right to be 'compensated' without further delay based on the principle of equivalence, otherwise it would be confiscatory and in violation of fundamental rights guaranteed under Arts. 9, 23 & 24 of the Constitution---Such was a statutory and Constitutional duty of Federal Government to formulate a policy regarding enforcement of acknowledged vested rights of affected citizens who were subjected to the power of eminent domain but were not compensated despite lapse of inordinate delay---High Court directed Federal Government to give such directions to CDA as were necessary to enforce acknowledged vested rights---Market values determined through awards announced before year 2010 had lost their efficacy and payment made on the basis thereof was likely to have confiscatory effect even if it was in addition to 8% per annum---No property could be legitimately condemned by exercising the power of eminent domain if the owner was not 'compensated'---Such was mandatory for authorities to reassess market values in a fair and transparent manner to avoid likelihood of confiscatory effect, followed by prompt payment directly to the affected owner of the property---High Court directed Federal Government to formulate uniform policy regarding acquisition of land, determination of market value or giving rehabilitation benefit in case of exercise of power of eminent domain by CDA or FGEHA, as the case could be---High Court further directed Federal Government that while formulating policy it would ensure that the policy was in consonance with the rights of citizens likely to be affected and duties of public functionaries towards them---High Court also directed that Federal Government through its policy directions would ensure that procedures adopted while exercising the power of eminent domain was clear, predictable, transparent and fair so that opportunities for corruption were not created---Federal Government could also consider directing CDA and FGEHA, as the case could be, to issue awards for acquisition of land and built up properties so as to avoid insurmountable complications---Constitutional petition was allowed accordingly.

Zulfiqar Abbasi, Raja Inaam Amin Minhas, Muhammad Shoaib Shaheen, Ch. Afrasiab Khan, Adnan Haider Randhawa, Malik Nasir Abbas, Ghulam Murtaza Watto, Muhammad Shakeel Abbasi, Qazi Ghulam Dastagir, Ahsan Qureshi, Ch. Waqas Zamir, Ali Nawaz Kharal, Mansoor Ahmed, Muhammad Umair Baloch, Jahanzaib, Muhammad Rustum Malik, Qaiser Imam Chaudhry, Shaukat Hayat Khan, Muhammad Latif Saeed, Khalil ur Rehman, Shujaullah Gondal and Ch. Hasan Murtaza Mann for Petitioners.

Amir Latif Gill, Hafiz Arfat Chaudhry, Malik Javed Iqbal Wains, Muhammad Anwar Dar, Jahangir Khan Jadoon, Muhammad Nazir Jawad, Syed Muhammad Shah, Ghulam Shabbir Akbar and Hussain Haider Thaheem for Respondents.

Naveed Ellahi, Member (Estate) C.D.A.

Shafi Marwat, Director, C.D.A.

Dr. Satish Sharyar, DC, FGEHA.

Khan Zeb, AD, FGEHA.

P L D 2022 Islamabad 120

Before Babar Sattar, J

ABDUL FAROOQ and another---Petitioners

Versus

Mst. MARYAM FAROOQ and others---Respondents

Criminal Revision No. 54 of 2021, decided on 15th November, 2021.

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

----S. 491---Constitution of Pakistan, Arts. 9 & 199(1)(b)(i)---Constitutional petition---Habeas corpus, writ of---Custody of child---Scope---Jurisdiction of a Court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where focus of Court is on recovery of the person illegally detained in order to uphold his right to life under Art. 9 of the Constitution---In case of a minor, his rights to liberty under Art. 9 of the Constitution entails a right to be in the custody of the person who ought to have the custody of the minor in accordance with law, till such time the minor attains age of majority he/she has a right to be taken care of whether by parents or relatives or the State---Focus of Court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that interim custody of minor pending its determination by a Guardian Court is being dealt with in accordance with law.

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

----S. 491---Constitution of Pakistan, Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), S.25---Constitutional petition---Writ of habeas corpus---Custody of minor---Tender Years, doctrine of---Applicability---Petitioner and respondent were husband and wife inter se and petitioner sought recovery of his minor children who were with their mother i.e. the respondent---Validity---Habeas corpus petition filed for lawful treatment of a minor was not to be confused with abduction or illegal detention of an adult---Consideration in such matter was welfare of minor---Court could not turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody---For the purposes of S.491, Cr.P.C., it was not for the Court to sit in judgment over as to who was at fault in matrimonial dispute but how would welfare of a child was best preserved in interim when joint custody of child shared by both parents was not an option---"Tender Years, doctrine of" guided exercise of discretion by Courts in custody matters, where Courts assumed that healthy development occurred when young children were raised by their mothers---Contemporary psychological and sociologically research questioned assumption that mother was necessarily the best parent for raising a child in all circumstances---Guardian petition was filed by petitioner before Guardian Court and it was for such Court to determine wherein the welfare of children lied for granting custody in the event that petitioner and respondent were unable to resolve their matrimonial disputes---High Court directed Guardian Court to decide question of custody in accordance with law---Constitutional petition was disposed of accordingly.

Naziha Ghazali v. The State 2001 SCMR 1782; Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758; Mst. Seema v. Aftab Ahmed and others 2013 YLR 583; Jahan Ara v. Province of Sindh through Secretary Home Department, Karachi and others 2019 MLD 1722; Halsbury's Laws of England, Fourth Edition, Vol.24 (para 511); Habeas Corpus, Vol. I, (PP.581); McGrath, Re, (1893) 1 Ch 143; American Jurisprudence, Second Edition, Vol. 39 (para 148); Howarth v. Northcott (152 Conn. 460); Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1; Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others 2018 SCMR 427; Santrock and Warshak, Father Custody and Social Development in Boys and Girls, 35 J. Soc. Issues 112 (1979); Watts V. Watts, 77 Misc.2d 178, 181-182, 350 N.Y.S.2d 285, 289-90, (Fam.Ct.1973) and A. Freud and A. Solnit, Beyond the best interests of child (1979) ref.

Syed Javed Akbar Shah and Hafiz Syed Afzal Ahmed for Petitioners.

Raja Nisar ul Haq Abbasi for Respondents Nos. 1 and 2.

Parties in person.

P L D 2022 Islamabad 131

Before Babar Sattar, J

KHURRAM MANZOOR CH. and others---Petitioners

Versus

SURIYA BEGUM---Respondent

Review Application No. 15 of 2021, decided on 25th January, 2022.

Sindh Chief Court Rules (Appellate Side)---

----Rr. 191, 192 & 200---High Court (Lahore) Rules and Orders, Vol. V, Chap. 6, Part J, R. 8---Registered clerks---Clerks, even when registered in accordance with the procedure prescribed in the relevant Rules and Orders, have no right or authority or permission to engage with the Court or a judicial officer of the Court discharging judicial or quasi-judicial functions---Role of the clerks is strictly limited to undertaking ministerial acts while engaging with the administrative staff of the Courts---Functions of a clerk's profession does not include any right or entitlement to be granted audience by the Court or permission to appear before a judicial officer.

Rai Muhammad Riaz v. Ejaz Ahmed PLD 2021 SC 761 ref.

Aftab Rashid for Petitioners and Petitioner in person.

Raja Khalid Mehmood Khan, D.A.G. for the State.

Rabi Bin Tariq, State Counsel.

Arshad Mehmood for C.D.A. - Respondent.

P L D 2022 Islamabad 138

Before Athar Minallah, C.J.

Mrs. ZEENAT SALIM---Petitioner

Versus

PAKISTAN NAVAL FARMS through Director and 3 others ---Respondents

Writ Petition No. 1772 of 2020, decided on 7th January, 2022.

(a) Constitution of Pakistan---

----Art. 245(1)---Armed Forces---Functions---Constitution expressly describes two functions of Armed Forces---Primary function or Constitutional duty of Armed Forces is to defend Pakistan against external aggression or threat of war and that too under the direction of Federal Government---Direction of Federal Government is a precondition---Other function is to act in aid of civil power when called upon to do so---There could be multiple eventualities requiring the Armed Forces to act in aid of civil power e.g. internal security, natural calamities such as floods, earthquakes etc.---Secondary function of Armed Forces is to act in aid of civil power which is subject to law and can only be undertaken if 'called upon to do so'---In case of both of the functions, the Armed Forces cannot act on its own---Such are the only two Constitutional functions mandated to the Armed Forces.

(b) Pakistan Navy Ordinance (XXXV of 1961)---

----Preamble---Constitution of Pakistan, Art. 245(1)---Pakistan Navy---Duties and functions---Pakistan Navy nor its officers are authorized or mandated to undertake, directly or indirectly any activity in the nature of real estate development, trade or any other business---Doing so amounts to transgression from the Constitutional mandate and expose the responsible officials to disciplinary, civil and criminal liability under the law.

(c) Islamabad (Preservation of Landscape) Ordinance (III of 1966)---

----S. 4---Preservation of landscape---Rawal lake---Status---Environment, polluting of---Dispute was with regard to establishing a Sailing Club in Rawal lake by Pakistan Navy---Effect---Reservoir of Rawal lake is a precious source of supply of water to residents of Rawalpindi---Safety and security of Rawal Dam is responsibility of Small Dams Organization---Acquired area around the reservoir vests in Capital Development Authority---Land on which sailing club in question was constructed fell within the notified area of National Park---Pakistan Navy trespassed/encroached upon and was in illegal occupation of sizeable portion of land on the embankment of the lake in disregard to likely environmental pollution and threat to safety of the dam---All relevant departments / entities had their concerns from the inception of proposed water sports center---Consultant appointed by government had raised serious concerns regarding likely environmental pollution and threat to the reservoir because it was a precious habitat for migratory birds---Illegal activities undertaken by Pakistan Navy on the embankments of the reservoir were in violation of all enforced laws and were destructive of landscape---Establishing of sailing club in Rawal Lake was in contravention of Islamabad (Preservation of Landscape) Ordinance, 1966.

(d) Constitution of Pakistan---

----Art. 9---Right to life---Clean water and environment---Scope---Environmental degradation, impact on GDP---Availability of clean water and keeping environment free from pollution has a direct nexus with fundamental right guaranteed to every person under Art. 9 of the Constitution---Life is inextricably dependent on safeguarding atmospheric greenhouse---Environmental degradation and adverse impacts of climatic change inevitably causes loss of lives, disease and increase in poverty---World Bank study carried out in year 2015 has estimated that environmental degradation is costing Pakistan almost 9% of its GDP.

(e) Constitution of Pakistan---

----Art.245 (1)---Armed Forces, transgressing from their role---Effect---Armed Forces of Pakistan have a special status under the Constitution and transgressing therefrom is against public interest, such is a subversion and violation of fundamental rights guaranteed under the Constitution.

(f) Pakistan Navy Ordinance (XXXV of 1961)---

----Preamble---Islamabad (Preservation of Landscape) Ordinance (III of 1966), S. 4---Constitution of Pakistan, Arts. 173 & 245(1)--Constitutional petition---Unauthorized functions, performing of---Preservation of landscape---Holding of land---Procedure---Petitioner assailed establishing of a Sailing Club in Rawal Lake and establishing of Pakistan Navy Farms---Validity---Mutation of land in the name of an office of Headquarters of Pakistan Navy was unconstitutional, illegal and in violation of scheme of law---Ownership of land was to be dealt with by Federal Government as mandated under Art. 173 of the Constitution---Capital Development Authority was not empowered to issue no objection certificate in favour of an office of headquarters of Pakistan Navy, and the same was issued without lawful authority and jurisdiction---High Court directed Capital Development Authority to resume and take over land covered under purported 'no objection certificate' and thereafter proceed in accordance with the provision of Capital Development Authority Ordinance, 1960 and regulations made thereunder---Pakistan Navy Farms were governed under Capital Development Authority Ordinance, 1960 and regulations made thereunder---High Court declared Pakistan Navy Farm Byelaws as void having no legal sanctity---High Court further declared that Pakistan Navy trespassed on the land situated on the embankment of Rawal Lake and that too in a protected national park area and such occupation of land was illegal, without lawful authority and jurisdiction---High Court also declared that construction of Sailing Club on trespassed land was illegal and a grave violation of enforced laws---High Court directed Pakistan Navy to cease all its activities on Rawal Lake and hand over trespassed land to Small Dams Organization---High Court directed Board of Islamabad Wildlife Management constituted to restore habitat in surrounding areas of the lake in consultation with Capital Development Authority and Small Dams Organization subject to recommendations made by the Commission appointed for the purpose---Constitutional petition was allowed accordingly.

Justice Hassnat Ahmed Khan and others v. Federation of Pakistan/State PLD 2011 SC 680; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, former Chief of Army Staff and others PLD 2013 SC 1; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Shahzada Sikandarul Mulk and 4 others v. The Capital Development Authority and 4 others PLD 2019 Isl. 365; Sheraza Shakeel v. Capital Development Authority and others W.P. No. 1276 of 2011; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Suo Motu Case No.25 of 2009 2011 SCMR 1743 and General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development Punjab, Lahore 1994 SCMR 2061 ref.

Babar Sattar, Zainab Janjua, Syed Adil Safdar and Alia Zareen Abbasi for Petitioners.

Ashtar Ausaf Ali, Malik Qamar Afzal, Nayyab Hassan Gardazi, Raja Zahoorul Hassan, Asad Rahim Khan, Muhammad Usama Rauf,Misbahul Mustafa Safir, Muhammad Munir Paracha, Nauman Munir Paracha, Ahmed Iqbal Maken, Saad Khan, Muhammad Nazir Jawad for their respective Respondents.

Syed Muhammad Tayyab, Deputy Attorney General.

Irfan Inayat Illahi, Member CDA.

Malik Faraz, Director (Regional Planning) CDA.

Arshad Chohan, Director(Regional Planning), CDA.

Faisal Naeem, Director (Building Control) CDA.

Naeem Dar, Director (Law) CDA.

Aamir Abbas Khan, Dy. Director PEPRA.

Commander (Retd.) Arshad, representative for Respondent No.1.

P L D 2022 Islamabad 206

Before Miangul Hassan Aurangzeb, J

ASAD JAVED---Petitioner

Versus

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

Writ Petition No. 1060 of 2020, decided on 20th August, 2021.

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

----S. 9(2)---Criminal Procedure Code (V of 1898), S. 401---Remissions---Entitlement---Principle---Accused is entitled to benefit of remissions which are with respect to duration of his sentence served in Pakistan---Such accused cannot be given remission under the laws of Pakistan for the period of his sentence served abroad prior to his transfer to Pakistan.

(b) Good Conduct Prisoners' Probational Release Act (X of 1926)---

----S.4---"Release on parole"---Connotation---Convict who is released on parole does not have his sentence suspended or remitted but his custody is shifted from jail authorities to parole officer.

Black's Law Dictionary rel.

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

----Ss. 9(1) & 9(2)---Good Conduct Prisoners' Probational Release Act (X of 1926), S. 4---Release on parole---Convict transferred from abroad---Petitioner was convicted in United Kingdom and sentenced for 25 years of imprisonment---After serving six years and eight months in UK, petitioner was shifted to Pakistan to serve his remaining sentence---Petitioner sought his release on parole as he had served more than one half of the sentence awarded to him---Validity---Petitioner was well within his rights to have applied to Competent Authority (Secretary of Ministry of Interior) seeking his release on parole---High Court had earlier directed the Authority to decide application of petitioner by a speaking order---Competent Authority could not have washed his hands of his obligation to have referred his case to relevant Parole Officer along with necessary documentation received from Ministry of Foreign Affairs as well as authorities in UK regarding legal nature and duration of his sentence for a decision on application of petitioner for release on parole---High Court set aside order passed by Competent Authority to the extent whereby petitioner was left to approach relevant Provincial authorities through jail administration---High Court also set aside order passed by Parole Officer to the extent whereby assumption of jurisdiction for deciding application of petitioner for release on parole was declined on the ground that matters related to remissions/ release of prisoners transferred under Transfer of Offenders Ordinance, 2002, were not to be dealt by Parole Officer and petitioner's application for remissions/parole was to be dealt with by Provincial Government where petitioner was under detention---High Court directed the Competent Authority to reconsider petitioner's application---Petition was disposed of accordingly.

Asad Javed v. Federation of Pakistan 2015 PCr.LJ 1340; Federation of Pakistan v. Asad Javed PLD 2016 Isl. 53; Asad Javed alias Javed Akhtar v. Federation of Pakistan 2017 SCMR 1514; Muhammad Ismaeel v. Secretary Home Department, Government of Punjab PLD 2018 Lah. 114 and Salamatullah v. State 2019 PCr.LJ 1119 rel.

Sher Afzal Khan Marwat and Ch. Usama Tariq for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General for Respondents.

Iftikhar Ali Shalwani, Additional Secretary, Ministry of Interior and Nisar Ahmad, S.O.

Zohaib Hassan Gondal, State Counsel for Respondent No.2.

2022 P L D Islamabad 228

Before Babar Sattar, J

Mst. MUMTAZ BIBI---Petitioner

Versus

QASIM and 4 others---Respondents

Writ Petition No.4227 of 2021, decided on 9th February, 2022.

(a) Constitution of Pakistan---

----Art. 199---Islamic law---Marriage---Minor---Validity---High Court cannot pass declaration whether or not purported marriage contract between parties is valid or not---Doing so requires determining age of minor, which requires recording of evidence, and High Court in its Constitutional jurisdiction cannot undertake such exercise.

(b) Constitution of Pakistan---

----Art. 4---Rule of law---Object, purpose and scope---Foundational purpose of rule of law is to enable citizens to order their lives in accordance with provisions of law and to be able to understand which actions are permissible that citizens are free to engage in for not having been prohibited, and which actions are proscribed by law and consequently not to be undertaken.

(c) Interpretation of statutes---

----Harmony---Court, duty of---Scope---Courts are to accord meaning to provisions of a statute in a manner that they do not contradict intent and purpose of other statutes to the extent possible---If in view of clear text of a statute such interpretation is not possible, there are other principles of statutory interpretation (i.e. as a general matter the law later in time prevails as the latest expression of legislative intent) applied to lay down for the benefit of citizens the applicable requirements of law with clarity.

(d) Jurisprudence---

----Adults and minors, actions of---Distinguished---In any rule of law framework, a distinction is drawn between actions of adults versus actions of children---Adults are assumed to understand consequences of their actions and are accordingly held accountable for such consequences---Children are not assumed to have complete agency and law acknowledges that they may neither understand consequences of their actions nor can be held completely responsible for such actions---Every State through legislative enactment determines age at which a person is to be treated as an individual with autonomy and human agency for purposes of certain actions---Such is the age at which his or her actions are deemed valid and are to be given effect as he or she has capacity to understand their consequences and law accordingly holds such person accountable for them.

(e) Islamic law---

----Source of law---Commentary on Muslim Personal Law by Dinshaw Fardunji Mulla---Validity---Dinshaw Fardunji Mulla was not a Muslim scholar who can be accredited with religious expertise to interpret precepts of Islam---Dinshaw Fardunji Mulla, of Zoroastrian faith by descent, was a legal scholar who authored treatises on various subjects of law, including contract law and Muslim Personal Law---Treatise of Dinshaw Fardunji Mulla on Muslim Personal Law is like any other legal commentary by a scholar of law as opposed to the commentary by a Muslim jurist with expertise or authority to interpret primary sources of Islamic Law---Dinshaw Mulla's commentary can therefore not be treated as a source of law itself but like any other treatise commenting on a subject of law can be used as a reference and a commentary.

(f) Juvenile Justice System Act (XXII of 2018)---

----Preamble---Object, purpose and scope---Provisions of Juvenile Justice System Act, 2018 take into account principles of agency and autonomy---While holding children accountable for criminal conduct proportionally, Juvenile Justice System Act, 2018, creates a distinction between criminal liability attributable to actions of minors versus liability flowing from actions attributable to adults---Different set of policy objects have been provided under Juvenile Justice System Act, 2018, for initiating penal action against minors, driven by considerations of reform as opposed to deterrence.

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

----Ss. 375, 377-A & 377-B---Majority Act (XI of 1875), Ss. 3 & 4---United Nations Convention on Rights of Child (UNCRC), Arts. 1, 19 & 34---Sexual abuse against children---Remedies---Provisions of Ss.377-A & 377-B, P.P.C. have been enacted to discharge Pakistan's obligations under Arts. 19 & 34 of UNCRC---Object of Ss. 337-A & 337-B, P.P.C. is to criminalize act of exposing children to obscene or sexually explicit conduct---No act of a sexual nature involving a child is permissible even if it is with an explicit consent of such child---Child means a human being below the age of 18 years.

(h) Family Courts Act (XXXV of 1964)---

----Preamble---Marriage---Object, purpose and scope---Contract of marriage is a contract whereby parties agree to engage in sexual relations, recognized by the State and society as legitimate, for the purpose of procreation---Consideration and object of a marriage contract essentially entails two individuals agreeing to engage in legitimate sexual relations, transforming individuals into a family warranting state protection---Relationship of marriage does not just entail engagement in permissible sexual conduct---Purpose of marriage is to enter into a contract whereby two people agree to become a family and look after one another, and further agree to bring children into this world and are responsible for safety and physical and emotional well being of such offspring.

(i) Constitution of Pakistan---

----Arts. 10-A & 199---Habeas corpus, writ of---Plea of marriage---Attaining age of puberty---Petitioner sought recovery of her minor daughter, abducted by respondent who entered into marriage with her---Validity---Puberty has to do with physical aspects of growth of a female child---Merely because a child has grown physically and biologically to an extent that she can endure sexual activity or intercourse does not automatically mean that she has legal capacity to marry or agency to contemplate consequences that marriage entails i.e. that she has mental and psychological maturity to reach such decision in her own best interest---There are factors that contribute to a female child reaching puberty---Children as young as ten or eleven years of age can possibly reach puberty as timing of puberty has been found to be related to physical characteristics including height, weight and body mass, as well as diet of individual and her geography etc.---If puberty was to be applicable test, would that deem a 10-year-old to be competent to contract marriage and engage in sexual intercourse because she had attained puberty---Early maturing "adolescents" are at a higher risk for psychological and behavioural problems because they are not emotionally or formatively ready for major biological, social and emotional changes comprising puberty---Marriage contract involving a child under the age of 18 years was a contract prohibited by law, which, even if executed by a child, was void ab initio---High Court declined to treat purported Nikahnama between respondent and minor as a basis to release her in the custody of respondent---High Court declined to determine age of minor definitively and also did not make any observations as regard liability of respondent under the provisions of Penal Code,1860, in exercise of Constitutional jurisdiction as the same would fetter rights of parties involved to due process and fair trial as guaranteed by Art.10-A of the Constitution---High Court left determination of such questions to the court of competent jurisdiction before which such questions would be raised---High Court handed over custody of the minor to petitioner, who was her mother---Petitioner along with her husband (i.e. the father of the minor) were responsible to provide for the safety and well being of the minor---Constitutional petition was allowed accordingly.

Muhammad Safeer v. Additional Sessions Judge (West) Islamabad and others PLD 2018 Isl. 385; Mst. Alishba Bibi v. The State and 7 others PLD 2020 Isl. 28; Mst. Bakhshi v. Bashir Ahmed PLD 1970 SC 323; Muhammad Khalid v. Magistrate Ist Class and 2 others PLD 2021 Lah. 21; Muhammad Iqbal v. The State PLD 1983 FSC 9; Mauj Ali v. Safdar Hussain Shah 1970 SCMR 437; Rashad Nazir v. The State and 3 others 2000 SCMR 1179; Muhammad Bashir v. Muhammad Usman 2003 SCMR 1339; Muhammad Aslam v. State 2012 PCr.LJ 11; Mst. Shahida and another v. Province of Sindh through Home Secretary, Sindh and others 2016 PCr.LJ Note 61; Tariq Mahmood and another v. The State 2000 PCr.LJ 226; Ghulam Qadir v. The Judge Family Court, Muree and another 1988 CLC 113; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Shahab Saqib v. Sadaf Rasheed W.P. No. 2355 of 2015; Malik Mumtaz Qadri v. State PLD 2016 SC 17; Farooq Omar Bhoja v. Federation (Shariah Petition No. 1 of 2020) and The Hanover Fire Insurance Company v. Muralidhar Banechand PLD 1958 SC 138 ref.

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

----Ss. 375, 377-A & 377-B---Muslim Family Laws Ordinance (VIII of 1961), S. 5 ---Islamabad Capital Territory Child Protection Act (XXI of 2018), S. 3---United Nations Convention on Rights of Child (UNCRC), Arts. 1, 19 & 34---Constitution of Pakistan, Art. 9---Child marriage---Consent of child---Puberty, attainment of---Scope---Child is defined as a person who has not attained age of 18 years---Child is required to be placed in somebody's care whether it is a parent or guardian or other caregiver appointed on behalf of State---Complete agency to grant informed consent for purposes of entering into contract, including a marriage contract cannot be attributed to such child---Female child below the age of 18 cannot be deemed competent to freely grant her consent to enter into marriage contract merely because she manifests physical symptoms of having attained puberty---Test for legal agency and competence of a female child is her biological age and not her state of physical and biological growth---Provisions of Ss. 375 & 377-A, P.P.C. are mandatory provisions and any contract entered with the object of breaching such provisions or that has effect of breaching such provisions cannot be treated as a valid contract---Marriage contract in which one of the parties is a child under the age of 18 is therefore a contract executed for an unlawful purpose and is void ab initio---Such marriage contract can neither be registered under Muslim Family Laws Ordinance, 1961, nor can be given effect by a court, as that would tantamount to defeating provisions of law that have been promulgated to uphold rights of children guaranteed by Art. 9 of the Constitution read together with the provisions of United Nations Convention on the Rights of the Child---Child under the age of 18 years is a dependent of an adult whether such adult is a parent or guardian or other caregiver appointed by the State---State is under an obligation to uphold and guarantee rights of such child, who cannot be deemed to have competence or capacity to parent a child of his/her own and act as guardian endowed with primary responsibility to provide for his/her child while being a child himself/herself---No one can engage in sexual conduct in any form with a child and neither can any person invite or entice a child to engage in sexual conduct in any form, and any invitation or enticement provided to a child to engage in sexual conduct, even under the cloak of marriage, would fall within the definition of sexual abuse in terms of S.377-A, P.P.C.---Neither a child under the age of 18 can consent to engage in sexual conduct in any form, nor can a parent or guardian of a child, contract a child out to engage in sexual conduct---Child is not a chattel that can be contracted out by a trustee or guardian to engage in conduct that child himself/herself cannot grant consent for---No consent can be granted on behalf of a child by a parent or guardian involving discharge of personal service by the child or engagement in conduct that is unlawful and prohibited, such as that required to be performed under a marriage contract---Parent or guardian can deal with a child's property in his/her best interest but is not at liberty to contract out the child to engage in a contract of personal service or conduct otherwise prohibited by law---No exceptions or exclusions have been provided by Ss.375 & 377-A, P.P.C. to conduct that otherwise qualifies as rape or sexual abuse and would attract even where the offence is made out against a person who seeks to defend himself on the basis that such conduct was pursuant to a marriage contract executed by a child under the age of 18 years or his/her parent or guardian on his/her behest.

Ms. Sadaf Sehar Moon for Petitioner.

Shazeb Nawaz Khan, State Counsel.

Ms. Nosheen Gul Kharal for Respondents Nos. 1 to 3.

Talat Mehmood, S.I. Police Station Golra Sharif, Islamabad.

P L D 2022 Islamabad 273

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

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION and another---Appellants

Versus

EDNAN SYED and 10 others---Respondents

I.C.A. No. 527 in W.P. No. 2233 of 2016, decided on 3rd February, 2022.

(a) Federal Government Employees Housing Authority Act (IV of 2020)---

----Ss. 2(m), 3 & Preamble---Federal Government Employees Housing (FGEH) Authority---Object, purpose and scope---Acquiring of land for 'schemes'---Connotation---Federal Government Employees Housing Authority(FGEHA) Act, 2020 is a self-contained comprehensive statute---FGEH Authority has been established for specific purposes of planning and developing housing schemes for serving and retired Federal Government employees and other specified groups---Existence and jurisdiction of the Authority is confined to establishing housing schemes primarily for Federal Government employees---Functions of FGEH Authority are subject to compliance with Master Plan prepared for developing and planning of Islamabad Capital Territory as Capital of Pakistan---Master Plan has a statutory backing under Capital Development Authority Ordinance, 1960.

(b) Federal Government Employees Housing Authority Act (IV of 2020)---

----Ss. 2 (m) & 3---Acquiring of land for schemes---Jurisdiction---Expression 'scheme' as defined in section 2(m) of FGEHA Act, 2020, does not describe nature of undertaking except that it is restricted to Federal Government employees and specified groups approved under FGEHA Act, 2020---FGEH Authority is empowered to acquire land for its schemes through inherent power of the State i.e. eminent domain.

(c) Interpretation of statutes---

----Courts, duty of---Presumptions---Court is to discover legislative intent and interpret laws promulgated by Legislature---While interpreting a statute or discovering legislative intent, it is presumed by Court that mistake or absurdity cannot be attributed to Majlis-e-Shoora (Parliament)---No legislation can be interpreted in such a manner which has effect of defeating public interest or protecting personal interests of a few in disregard or derogation of interests of public at large.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy---Judicial review---Policy formulated by Federal Government or any Authority, as the case may be, if found to operate against public interest or detrimental to Constitutionally guaranteed rights of citizens, the same is void, illegal, unconstitutional, without lawful authority and jurisdiction. [p. 294] D

(e) Federal Government Employees Housing Authority Act (IV of 2020)---

----Ss. 2(j) & 3---Registered member of Federal Government Employees Housing Authority---Rights and entitlements---Allotment of plot---Pre-condition---No independent right or entitlement has been created under Federal Government Employees Housing Authority Act, 2020, in favour of registered members of the Authority to claim allotment of a plot at the expense of interest of public at large---Basis of allotment under FGEHA Act, 2020 is membership of FGEHAuthority on voluntary basis---Acquisition of land, launching a scheme and distribution of acquired land are solely governed and regulated under approved policy of Federal Government---Such policy has to meet threshold of public purpose and has to serve and be in conformity with public interest and cannot operate in derogation of fundamental rights of public at large.

(f) Words and phrases---

----"Public interest"---Connotation---Expressions "public good", "common interest" and "public interest" are synonymous---Public interest refers to a decision or determination that is in the best interest of wellbeing and welfare of community, society or public---Public interest is antitheses of private interest or the interest of a few.

London Artists Limited v. Littler (1969) 2 All ER 193; The Black's Law Dictionary, Sixth Edition; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 and Muhammad Yasin v. Federation of Pakistan and others PLD 2012 SC 132 rel.

(g) Administration of justice---

----Good governance---'Elite capture' phenomenon---Scope---Exercising disproportionate control over policy decisions at the expense of interests of public at large is essential attribute of phenomenon of elite capture---As such the phenomenon deprives people at large from equitable distribution of state assets---Consequently, a few elite enrich themselves at the expense of welfare and wellbeing of citizens.

(h) Administration of justice---

----Good governance---Conflict of interest---Scope---In "conflict of interest" existence of actual pecuniary gain or pecuniary loss is not essential, nor actual proof in this regard is required---Conflict of interest refers to a principle envisaging prevention of present or future or potential situation which may lead to extending benefit to oneself or to another person.

Model Rules of Prof'1 Conduct 1.7(a). [Cases: Attorney and Client - 20.1.] and Conflict of Interest in the Professions', edited by Michael Davis and Andrew Stark (New York: Oxford University Press, 2001) rel.

(i) Federal Government Employees Housing Authority Act (IV of 2020)---

----Ss. 2(o), 3 & Preamble---President's (Supreme Court Judges Leave, Pension and Privileges) Order (II of 1997)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Policy matter---Judicial review---Judges of Supreme Court and High Court---Entitlement of plot---Specified group---Question was with regard to Revised Policy with regard to allotment of plots to Judges of Supreme Court and High Court in Federal Government Employees Housing Schemes---Validity---Privileges and entitlements of judges of Supreme Court and High Courts were described in relevant Presidential Order---Like a civil servant or other Federal Government employee, a judge of Supreme Court or High Court had no right nor entitlement to a plot costing less than its market value---Judge of Supreme Court or High Court was not entitled under Federal Government Employees Housing Authority Act, 2020, to become beneficiary in a scheme unless such Constitutional bodies were declared and notified as one of the 'specified groups' by Executive Board or Federal Government---Participation of a Court or its judges in any scheme of FGEH Authority or accepting its benefits were contrary to public interest and not in conformity with impartiality and independence of judiciary as an institution---Inclusion of Supreme Court and High Courts and its judges by FGEH Authority, was inappropriate and not in conformity with the Constitutional status of exalted courts---Such was not permissible under the Constitution for a judge or a court to be seen as usurping fundamental rights of people at large and become complacent to a policy formulated in breach of public interest---FGEH Authority nor Federal Government was vested with power or jurisdiction under FGEHA Act, 2020 or Capital Development Authority Ordinance, 1960, to launch a scheme or frame policy contrary to public interest and violative of Constitutionally guaranteed rights of people at large---Scheme launched by FGEH Authority, pursuant to a policy framed by Federal Government, could withstand Constitutional scrutiny if it was to benefit people at large rather than benefiting and enriching a few powerful classes---Assets of State acquired through inherent intrusive power of eminent domain could only be used for benefit of people at large and in public interest---Revised Policy and scheme pursuant thereto, intended to be launched were in derogation of public interest and violative of the Constitutionally guaranteed rights of people at large---Division Bench of High Court declared revised policy in question as illegal, unconstitutional, void and without jurisdiction and declined to interfere in order passed by Judge in Chambers of High Court as revised policy was contrary to public interest, unconstitutional and violative of rights of public at large---Intra Court Appeal was dismissed in circumstances.

Human Rights Case No.5818 of 2006 in Re: action on Press Clipping 2008 SCMR 531; Malik Bashir Ahmed and others v. The Federal Government of Pakistan, through Secretary Cabinet Division, Pak Secretariat, Islamabad and others PLD 2018 Isl. 68; Federal Government Employees Housing Foundation v. Malik Bashir Ahmed and others (I.C.A. No.365 of 2017); Federal Government Employees Housing Foundation (FGEHF), Islamabad and others v. Malik Ghulam Mustafa and others 2021 SCMR 201; The State v. Maheen Zafar and another 2018 PCr.LJ 841; Noman Ahmad and 14 others v. Capital Development Authority and others Writ Petition No.244 of 2018; Punjab Public Service Commission and another v. Mst. Aisha Nawaz and others 2011 SCMR 1602; Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397; OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 SCMR 220; Watan Party and another v. Federation of Pakistan and others PLD 2012 SC 167; Government of Khyber Pakhtunkhwa through Secy. Agriculture and others v. Adnanullah 2017 PLC (C.S.) 307; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 PTD 243; Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and others 2011 SCMR 1864; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Suo Motu Case No. 10 of 2007 PLD 2008 SC 673 and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Appellant/FGEHA by

Muhammad Akram Sheikh, Senior Advocate Supreme Court.

Muhammad Munir Paracha, Senior Advocate Supreme Court.

Muhammad Nazir Jawad, Advocate Supreme Court.

Mansoor Ahmed, Advocate Supreme Court.

Malik Javaid Iqbal Wains, AHC.

Hafiz Arfat Ahmed Chaudhry, Advocate Supreme Court.

Ms. Kashifa Niaz Awan, AHC.

Tariq Zaman Ch., AHC.

Ms. Sitwat Jahangir, AHC.

Petitioners by

Shah Khawar, Advocate Supreme Court.

M. Ali Raza, Advocate Supreme Court.

Taimoor Aslam Khan, AHC.

Asad Iqbal Siddique, AHC.

Syed Mujtaba Haider Sherazi, Advocate Supreme Court.

Raja Zahoorul Hassan, AHC.

Yasir Rathore, AHC.

Shahid Mehmood Khokhar, Advocate Supreme Court.

Raja Muhammad Farooq, Advocate Supreme Court.

Zulfiqar Khalid Maluka, Advocate Supreme Court.

Ms. Samina Khan, Advocate Supreme Court.

Naseer Anjum Awan, Advocate Supreme Court.

Shair Bahadur Khan, AHC.

Sardar M. Ghazi, AHC.

Ms. Zainab Janjua, AHC.

Atif Khokhar, AHC.

Federation by

Qasim Wadud, Additional Attorney General.

Syed Muhammad Tayyab, Dy. Attorney General.

Imran Farooq, Assistant Attorney General.

Officials/representatives in attendance

Dr. Imran Zaib, Secretary, Ministry of Housing and Works.

Tariq Rasheed, Director General, FGEHA.

Muhammad Irfan Chaudhry, Director (Law), FGEHA.

Dr. Sataish Sharyar, Deputy Commissioner (LAC), FGEHA.

Kazim Abbas, Director (Estate), FGEHA.

Khan Zaib, Dy. Director (Law), FGEHA.

Rehan Cheema, Dy. Director (Estate), FGEHA.

Mohsin Pasha, Asstt. Director (Legal), FGEHA.

P L D 2022 Islamabad 314

Before Mohsin Akhtar Kayani, J

Messrs TULIP PROJECT, RIVERSIDE through Chief Executive---Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY through CHAIRMAN---Respondent

Writ Petition No. 331 of 2019, decided on 20th May, 2022.

(a) Constitution of Pakistan---

----Art. 24---Right to hold property---Acquisition of land---Principle---Any law providing acquisition of any class of property for purpose of education, medical aid, housing, public facilities and services, such as roads, is exempted and Art. 24 of the Constitution cannot affect validity of such action---State has provided mechanism to protect rights of individuals/citizens in the Constitution and at the same time, empowers State authorities to exercise their right for public welfare.

(b) National Highway Authority Act (IV of 1991)---

----S. 10(2)(ix)---National Highways and Strategic Roads (Control) Rules, 1998 [as amended in 2002], Rr. 3(i)(ii)(iii)(iv), 6(2) & 8---Constitution of Pakistan, Art. 199---Constitutional petition---Right of way---Charges, demanding of---Raising of new construction---Petitioner company was aggrieved with demand of payment raised by National Highway Authority---Plea raised by National Highway Authority was that additional amenities constructed in already running business place were in violation of S.10(2)(ix) of National Highway Authority Act, 1991, read with R. 3(i)(ii)(iii)(iv) of National Highways and Strategic Roads (Control) Rules, 1998 as amended in 2002---Demand raised by National Highway Authority was not legally valid as alleged construction or new businesses in already constructed building structure or non-structured concept was beyond building line---Authorities conceded that building line concept under law was developed to provide safety and security to pedestrian and people who were within that area from any untoward incident/accident from highways and for no other purpose---Provision of R.6(2) of National Highways and Strategic Roads (Control) Rules, 1998 [as amended in 2002] prohibited to construct or maintain any structure or to make any excavation between building line and right of way but R.8 of National Highways and Strategic Roads (Control) Rules, 1998 [as amended in 2002] provided power to the Authority subject to due consideration to highway safety and convenience of road user and if satisfied could grant permission to construct means of access to, or from, highway or to construct building, structure and other amenities within building line subject to such conditions as it could deem fit to impose on payment of such fee so fixed---Such discretion to National Highway Authority for grant of permission to raise construction or amenities within building line was based upon single criterion i.e. highway safety and convenience of road user, which was already in favour of petitioner company, as no adverse report or refusal was available on record to the extent of new amenities raised by petitioner within his own land---High Court set aside actions/demand for additional amenities claimed by National Highway Authority including decision passed by National Highway Authority by applying Consumer Price Index and calculation of any amount, in such type of facilities under the garb of amenities access, road network or NOC fee or approach rentals---High Court directed National Highway Authority to first draft their regulations in accordance with law before raising any demand---Constitutional petition was allowed accordingly.

Attock Petroleum Limited (APL) v. National Highway Authority 2022 PTD 222; Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence PLD 2020 SC 1 and Zaibtun Textile Mills LTD. v. C.B.R. PLD 1983 SC 358 ref.

Malik Qamar Afzal for Petitioner and Ch. Muhammad Sharif, representative of Petitioner.

Ms. Shahina Akbar for N.H.A.

Ahmed Hassan, Deputy Director (Rev.Row) and Asad Rehman, A.D (Legal), NHA for Respondent.

P L D 2022 Islamabad 326

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

Syed YOUSAF RAZA GILLANI---Appellant

Versus

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

I.C.A. No. 185 of 2021, decided on 21st March, 2022.

Constitution of Pakistan---

----Arts. 60, 69 (2) & 199---Rules of Procedure and Conduct of Business for Senate, 2012, R. 24 (1)---Chairman of Senate, election of---Proceedings of Senate---Decision of Presiding Officer---Remedy---Appellant was candidate for election to the seat of Chairman Senate who was aggrieved of decision of Presiding Officer declaring respondent as the Chairman---Single Judge of High Court declined to interfere in the decision of election---Validity---All other businesses were excluded when Senate was constituted and Chairman and Deputy Chairman were to be elected---Process of election of Chairman Senate was part and parcel of valid structuring of the Senate---Election process, under Rules of Procedure and Conduct of Business for the Senate, 2012, was not headed as business of Senate---Order to place in valid Senate, Chairman Senate and Deputy Chairman were to be elected and process of election, to such posts, tantamount to "proceedings"---No decision of Speaker of National Assembly or Chairman Senate or the Deputy Chairman Senate, could be assailed---Actions or inactions of such office bearers if were of administrative nature or did not fall within procedural irregularity in proceedings, could be judicially reviewed---It was only essential and proper that a resolution could be moved by appellant, if he felt that he had been declared an unsuccessful candidate through an erroneous ruling of Presiding Officer; making election or the process of election not fair, just and honest, which could be put to vote and whoever had the majority, should carry the day---Division Bench of High Court declined to interfere in the judgment passed by Single Judge of High Court regarding maintainability of Constitutional petition and alternate and adequate remedy as the same did not suffer from any error calling for interference---Intra Court Appeal was dismissed, in circumstances.

Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Sardar Farooq Ahmed Khan Laghari and others v. Federation of Pakistan and others PLD 1999 SC 57; Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Presiding Officer v. Sadruddin Ansari and others PLD 1967 SC 569; Javed Hassan v. Principal Bolan Medical College Quetta and 2 others PLD 1999 Quetta 25; 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; Salah udddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Muhammad Usman and PA and others v. The Province of East Pakistan and others PLD 1957 Dacca 424; R (on the application of Miller) (Appellant) v. The Prime Minister (Respondent) 2019 SCMR 1887; Asif Ali Zardari v. Federation of Pakistan and others PLD 1999 Kar. 54; Muhammad Azhar Siddqiui and others v. Federation of Pakistan and others PLD 2012 SC 774; Munir Hussain Bhatti Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Muhammad Naeem Akhtar and 2 others v. The Speaker Sindh Provincial Assembly and others 1992 CLC 2043; Mining Industries of Pakistan (Pvt.) Ltd. through Authorized Director v. Deputy Speaker, Balochistan Provincial Assembly, Quetta and 3 others PLD 2006 Quetta 36; Jamshed Ahmad Khan and 2 others v. The S.D.M/Assistant Commissioner, Garden Sub-Division Karachi and others PLD 1987 SC 213; Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987; Sahibzada Abdul Latif v. Sardar Khan and others 1996 SCMR 1496; Salah-ud-Din and another v. Abdul Khaliq and others 2004 SCMR 1899; District Bar Association Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Mukhtiar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178; Sohail Akhtar Abbasi v. Aamer Ali Shah 2007 SCMR 18; Nazir A.M. Joint Venture through Chief Executive v. The National Highway Authority through Chairman and 4 others PLD 2020 Lah. 801; Muhammad Anwar Durrani v. Province of Balochistan through Chief Secretary and 10 others PLD 1989 Quetta 25; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Corruption in Hajj Arrangments in 2010: In the matter of PLD 2011 SC 963; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Saradhakar Supakar, Petitioner v. Speaker Orissa Legislative Assembly and Secretary Orissa Legislative Assembly, Opposite Party AIR 1952 Orissa 234; Ram Dubey, Applicant v. The Government of the State of Madhya Bharat and another, Opposite Party AIR (39) 1952 Madhya Bharat 57; Raj Narain Singh, Petitioner v. Atmaram Govind and another, Opposite Party AIR 1954 Allahabad 319; C. Shrikishen v. State of Hyderabad and others 1956 Hyderabad 186; Hem Chandra Sen Gupta and others v. The Speaker of Legislative Assembly of West Bengal and others 1956 Calcutta 378; Sri Surendra Mohanty v. Sri Nabakrishna Choudhury and others AIR 1958 Orissa 168; Jagjit Singh v. State of Haryana and others AIR 2007 SC 590; Stoackdate v. Hansard (9. AD & E 207), Bradlaugh v. Gossett, Church of Scientology of California v. Johnson Smith, Queen's Bench Division, British Railways Board v. Pickin (House of Lords), Rost v. Edwards 1990 2 Q.B. 460; Pakistan v. Ahmed Saeed Kirmani and others PLD 1958 SC (Pak.) 397; Wasi Zafar v. Speaker Provincial Assembly PLD 1990 Lah. 401; BNP Pvt. Ltd. v. Capital Development Authority and others 2016 CLC 1169; Zia ur Rehman v. The State PLD 1973 SC 49; Bradlaugh v. Gosset 1884 QB 271 and Malik Ameer Haider Sangha and another v. Mrs. Humaira Malik and others 2018 SCMR 1166 ref.

Farooq H. Naek, Malik Javed Iqbal Wains and Aqeel Akhtar Raja for Appellant.

Khalid Javed Khan, Attorney General for Pakistan, Tariq Mahmood Khokhar, Additional Attorney General, Qasim Wadood, Additional Attorney General, Arshad Mahmood Kayani, Deputy Attorney General, Saqlain Haider Awan, Assistant Attorney General, M. Nadeem Khan Khakwani, Assistant Attorney General, Farrukh Shehzad Dall, Assistant Attorney General, Syed Nazar Hussain Shah, Assistant Attorney General and Attique-ur-Rehman Siddiqui, Assistant Attorney General, Barrister Muhammad Ali Saif with Muhammad Javed Iqbal, Deputy Director, Senate and M. Irfan Ch. Assistant Director, Senate, Syed Ali Zafar, Dr. Muhammad Zubair Sarfraz, Ch. Muhammad Ayyaz, Ms. Kalsoom Khaliq and Ghulam Umer for Respondents.

P L D 2022 Islamabad 346

Before Tariq Mehmood Jahangiri and Babar Sattar, JJ

ABDUS SALAM KHAN BARKI and another---Appellants

Versus

Mian PERVAIZ AKHTAR and another---Respondents

R.F.A. No. 51 of 2013, decided on 27th April, 2022.

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

----Ss. 12 & 22---Specific performance of agreement---Grant of relief---Pre-condition---Claim for specific performance of contract seeks grant of discretionary relief in terms of Ss. 12 & 22 of Specific Relief Act, 1877---Such relief has to be granted only in the interest of fairness and to dispense justice in accordance with law---One who seeks equity must do equity---Conduct of claimant before and after filing of suit should be such that it does not disentitle him from being recipient of equitable relief.

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

----S. 24(b)---Civil Procedure Code (V of 1908), O.VII, R. 11(d)---Specific performance of agreement---Outstanding obligations---Effect---Rejecting of plaint---In terms of S.24(b) of Specific Relief Act, 1877, it is essential for plaintiff to state unequivocally in plaint that he is in compliance of his obligation under contract he seeks to enforce---Plaintiff to the extent of obligation that remains outstanding, such as payment of balance consideration, is ready, willing and able to discharge the same---Failure of plaintiff to ensure that such representation is included in plaint could invite consequences under O.VII, R.11(d), C.P.C., with Trial Court finding that the suit is barred in view of S.24(b) of Specific Relief Act, 1877.

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

----Ss. 24(b) & 12---Specific performance of agreement to sell---Deposit of balance consideration amount---Principle---Where plaintiff is seeking enforcement of a contract in relation to immovable property and any consideration in lieu of such property remains outstanding, even if due to steps that remain to be taken on part of the counter party in such contract, it is for the plaintiff to seek permission to deposit balance consideration or valid financial security in lieu thereof to establish within the meaning of S.24(b) of Specific Relief Act, 1877, that he is not incapable of performing his/her end of the bargain---Non-deposit of balance consideration after seeking court permission would not result in automatically dismissal of suit.

Muhammad Asif Awan v. Dawood Khan 2021 SCMR 1270 rel.

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

----Ss. 12, 22 & 24(b)---Civil Procedure Code (V of 1908), O.XV-A & O. XVII, R. 3---Specific performance of agreement---Discretion, exercise of---Principle---Appellant/plaintiff sought specific performance of agreement to sell with regard to suit property---Trial Court dismissed the suit as appellant/plaintiff failed to deposit balance sale consideration as directed by Trial Court---Validity---Discretion was vested under Specific Relief Act, 1877, in Trial Court to determine whether or not a party was entitled to discretionary relief---Failure of appellant/plaintiff to seek to deposit balance consideration with Court upon filing suit, created rebuttable presumption against appellant/ plaintiff regarding his capability and willingness to perform contract at such time---In the event that appellant/plaintiff failed to seek permission to deposit balance consideration at the time of filing suit, a structured and judicious exercise of discretion by Trial Court, in terms of S.22 of the Specific Relief Act, 1877, required that Trial Court order appellant/plaintiff to deposit balance consideration or financial security in lieu thereof, to determine that grant of relief of specific performance was not barred under S.24(b) of Specific Relief Act, 1877, due to incapability of appellant/plaintiff to discharge his obligation under contract specific performance of which was sought---Appellant/plaintiff failed to comply within time fixed without justifiable cause to satisfaction of Trial Court, the Court was vested with authority under O.XV-A, C.P.C. to pass judgment or proceed to decide suit forthwith under O.XVII, R.3, C.P.C. read with S.24(b) of Specific Relief Act, 1877, without need to issue any additional warning to appellant/ plaintiff---Question of extension of time period for deposit of balance consideration did not however apply once Trial Court had issued decree coupled with condition requiring deposit of balance consideration within a certain prescribed period and had held that failing compliance with such condition suit would stand dismissed---Where contract prescribed penal consequences for failure of a contracting party to discharge his obligation within a period prescribed, it would be deemed that it was within the contemplation of parties in relation to sale of immovable property that time was of the essence for performance of obligation under the contract and penal consequences such as forfeiture of any earnest money paid by defaulting party would be given effect by Court if clearly provided in contract, performance of which was being sought---Appellant/plaintiff failed to abide by Court's direction, which established that he was not only in breach of his own obligations under the agreement but also exhibited his inability and lack of intent to discharge his obligations under the agreement---High Court declined to interfere in the judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR

953; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR

828; Muhammad Wahid v. Nasrullah 2016 SCMR 179; Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022; Mst. Waris Jan v. Liaqat Ali PLD 2019 Lah. 333 and Kuwait National Real Estate Company (Pvt.) Ltd. v. Educational Excellence Ltd. 2020 SCMR 171 ref.

Syed Tahir Hussain Mehmoodi v. Agha Syed Liaqat Ali 2014 SCMR 637 rel.

Muhammad Umer Raja for Appellants.

Zulfiqar Khalid Maluka and Raja Mazhar Ali for Respondents.

Date of hearing: 22nd February, 2022.

P L D 2022 Islamabad 360

Before Miangul Hassan Aurangzeb, J

SHEHNAZ AKHTAR and another---Appellants

Versus

Mst. ZEENAT TARIQ and others---Respondents

R.F.A. No. 619 of 2021, decided on 26th July, 2022.

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

----S.4---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, injunction, partition and mesne profit---Pre-deceased child---Right of inheritance---Dispute between the parties was with regard to right of widow of pre-deceased children of propositus and extending of benefit under S. 4 of the Muslim Family Laws Ordinance, 1961, by granting them rights of inheritance from estate of parents of their pre-deceased spouses---Held, that benefit under S.4 of Muslim Family Laws Ordinance, 1961, was not confined to children/offspring of pre-deceased children of propositus but also to widow or any other legal heir of such pre-deceased children---Words "legal heirs of such son or daughter" were not employed and instead "the children of such son or daughter" were used in S.4 of Muslim Family Laws Ordinance, 1961---Exception was created under S.4 of Muslim Family Laws Ordinance, 1961, by altering Islamic laws of inheritance applicable to orphaned grandchildren and the same was to be construed strictly---Meaning of the word "children" could not be stretched to include "widows" or "any other legal heir" of pre-deceased child of the propositus no matter which canon of statutory interpretation was adopted---High Court declared that contention of appellant that under S.4 of Muslim Family Laws Ordinance, 1961, children (i.e., sons and daughters only) in addition to the widows or any other legal heir of a predeceased child of the propositus would also inherit, was bereft of substance---High Court directed local commission to discharge its obligations in accordance with directions issued by Trial Court in its preliminary decree---Appeal was dismissed, in circumstances.

Mian Mazhar Ali v. Tahir Sarfraz PLD 2011 Lah. 23; Allah Rakha v. Federation of Pakistan PLD 2000 FSC 1; Saifur Rehman v. Sher Muhammad 2007 SCMR 387; Maqbool Begum v. Taj Begum PLD 1973 Note 128; Ghulam Haider v. Nizam Khatoon 2002 YLR 3245; Muhammad Hanif v. Muhammad Ibrahim 2005 MLD 1; Qutab-ud-Din v. Zubaida Khatoon 2009 CLC 1273; Shabi-ul-Hassan Khusro v. Asad Mustafa 2016 MLD 266 and Hassan Aziz v. Meraj-ud-Din 2021 CLC 1821 rel.

Asif Naseem Abassi for Appellants.

Asad Hussain Ghalib, Advocate for Respondents Nos.1 and 2.

M. Muzammil Hussain Shah for Respondents Nos.3 to 7, 7a(i) to (iv) and 7(c).

Daniyal Hassan for Respondent No.8.

P L D 2022 Islamabad 371

Before Mohsin Akhtar Kayani amd Babar Sattar, JJ

SAAD SUMAIR---Petitioner

Versus

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

Writ Petition No. 739 of 2021, decided on 7th July, 2021.

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

----Ss. 9 & 31-D---Anti-Money Laundering Act (VII of 2010), S. 3---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Offence of money laundering---Inquiry, investigation or proceedings in respect of imprudent bank loans---Pre-arrest bail, grant of---Accused sought pre-arrest bail in proceedings pending before the National Accountability Bureau (NAB)---Allegation against accused was that he was an associate of the main accused on whose behalf he was acting as Director of a company; that shares of the company were transferred in the name of accused in order to obtain a fraudulent finance facility from a bank; that the company misappropriated the amount of finance facility and the accused possessed the crime proceeds and subsequently transferred such proceeds in various other accounts---Contentions of accused were that the finance facility was a fully secured mortgage-backed facility; that the company and the bank had agreed in principle for a Debt-Property Swap agreement but freeze order passed by NAB relating to the properties owned by the company was in the way---Held that no material was available on record to establish that the finance facility was acquired in a fraudulent manner---Such allegation made little sense in view of the fact that the bank was issuing the finance facility backed by mortgage of valuable real estate---Had it not been for the present investigation and the freeze order, the bank and the company could have easily entered into the Debt-Property Swap agreement---Such agreement would have obviated the possibility of any loss being caused to the public exchequer---Nothing was placed on record to establish that acquisition and use of proceeds of the finance facility somehow constituted the offense of money laundering under S.3 of the Anti-Money Laundering Act, 2010---No reference was received by NAB from the Governor, State Bank of Pakistan to investigate the grant of finance facility as an imprudent loan within the meaning of S.31-D of the National Accountability Ordinance, 1999---Constitutional petition was allowed and the accused was admitted to pre-arrest bail, in circumstances.

Shahzada Qaiser Arfat v. State PLD 2021 SC 708 and Amjad Mustafa Malik v. Director General, National Accountability Bureau and 4 others Writ Petition No. 769 of 2019 rel.

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

----Ss. 9 & 5(da)---Benami Transactions (Prohibition) Act (V of 2017), S. 2(8)---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Benamidar---Benami transaction---Pre-arrest bail, grant of---Accused sought pre-arrest bail in proceedings pending before the National Accountability Bureau (NAB)---Allegation against accused was that he was an associate of the main accused on whose behalf he was acting as Director of a company; that shares of the company were transferred in the name of accused in order to obtain a fraudulent finance facility from a bank; that the company misappropriated the amount of finance facility and the accused possessed the crime proceeds and subsequently transferred such proceeds in various other accounts---Held that nothing was placed by the NAB on record to establish that the consideration for acquisition of shares of the company had not been paid by the accused or that such consideration had been paid by another person, bringing transactions in the shares of the company within the definition of 'benami transaction' under S. 2(8) of the Benami Transactions (Prohibition) Act, 2017---National Accountability Bureau had not even bothered to collect share-transfer deeds recording the trial of sale of shares from previous members of the company to present members, in order to determine whether or not such transactions were made subject to payment of consideration---Record did not reflect that the accused was a 'benamidar' within the meaning of S. 5(da) of National Accountability Ordinance, 1999---Constitutional petition was allowed and the accused was admitted to pre-arrest bail, in circumstances.

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

----Ss. 51 & 56---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 5(da)---Corruption and corrupt practices---Benamidar---Penalty for benami transaction---Benami Transactions (Prohibition) Act, 2017 to override other laws---Scope---Section 51 of the Benami Transactions (Prohibition) Act, 2017 defines entry in a benami transaction as an offense under the Benami Transactions (Prohibition) Act, 2017 and prescribes rigorous imprisonment for a term of one year for anyone guilty of the offense of benami transaction or holding benami property---Prosecution of such offense lies before a Special Court under S. 48 of the Benami Transactions (Prohibition) Act, 2017 and not before an Accountability Court---Section 56 of the Benami Transactions (Prohibition) Act, 2017 grants overriding effect to provisions of the Benami Transactions (Prohibition) Act, 2017, promulgated in 2017, over anything to the contrary in any other law for the time being in force, including the National Accountability Ordinance, 1999.

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

----S. 9---Securities and Exchange Commission of Pakistan Act (XLII of 1997), S. 41-B---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Inquiry, investigation and other proceedings in respect of regulated persons---Pre-arrest bail, grant of---Accused sought pre-arrest bail in proceedings pending before the National Accountability Bureau (NAB)---Allegation against accused, inter alia, was that he was an ostensible owner of a company---Held that matter was rooted in the sale-purchase transaction in the shares of a company---Sale-purchase of shares had taken place pursuant to provisions of the Companies Act, 2017---Companies Act, 2017, was an "administered legislation" as defined in S. 2(aa) of the Securities and Exchange Commission of Pakistan Act, 1997---Transactions involving sale and purchase of shares of companies were transactions undertaken pursuant to the Companies Act, 2017, administered by the Securities and Exchange Commission---Section 41-B(1) of the Securities and Exchange Commission of Pakistan Act, 1997, provided that no action, inquiry, investigation or proceedings in respect of any regulated activity, regulated securities activity, transaction, process or permission granted under the Securities and Exchange Commission of Pakistan Act, 1997, or administered legislation would be taken, initiated or conducted by any investigation agency without reference from the Commission---Nothing was placed on record to establish that investigation in the share purchase transactions of the company were initiated on a reference from the Commission---Constitutional petition was allowed and the accused was admitted to pre-arrest bail, in circumstances.

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

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Re-payment of finance---Pre-arrest bail, grant of---National Accountability Bureau (NAB) claimed that the funds from the finance facility were diverted to the use of third parties, which was not the purpose of such facility, as such, the accused was liable to be arrested for the purposes of investigation---High Court observed that flow of funds was fully documented and it was unclear how an offense of corruption or dishonesty was made out under the National Accountability Ordinance, 1999, even where a private company had utilized proceeds from a loan in a manner not contemplated at the time of acquisition of such loan, so far as such company was in a position to settle the loan---At best this would amount to a breach of the terms of the finance facility that would empower the bank to declare that a breach of the terms of the loan had taken place and demand that the loan be settled immediately---Accused was admitted to pre-arrest bail, in circumstances.

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

----Ss. 9 & 25---Constitution of Pakistan, Arts. 199 & 13---Corruption and corrupt practices---Protection against double punishment and self-incrimination---Voluntary return and plea bargain---Threat of arrest---Pre-arrest bail, grant of---Contents of the call-up notice reflected that National Accountability Bureau (NAB) authorities were seeking a plea bargain affidavit from the accused and his failure to provide the same might have resulted in the issuance of his warrant for arrest---High Court observed that this fell foul of the guarantee under Art. 13 of the Constitution, which provided that no person when accused of an offence would be forced to be a witness against himself---Use of threat of arrest to coerce an accused into admitting an offence was violative of Article 13 and a mala fide exercise of state's arrest power---Accused was admitted to pre-arrest bail, in circumstances.

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

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---White collar crime---Bail---Scope---Requirements of conducting an inquiry or investigation in relation to a violent crime versus a white-collar crime cannot be lost on a constitutional court exercising judicial review powers over the state's decision to arrest a citizen---Consequently, the distinction between pre-arrest and post-arrest bail as understood in relation to investigation of offences under the Pakistan Penal Code, 1860 might not be as pertinent in relation to the National Accountability Ordinance, 1999---Restraint applied by granting more leeway to the police in its exercise of arrest powers under S. 54 of Cr.P.C. is in consonance with the settled law that courts loath to interfere with the conduct of investigation, which falls within the domain of the executive, and the discretion exercised by the police in collecting evidence for purposes of prosecution or detention of an accused to prevent a repeat of the offence or destruction of evidence in the immediate aftermath of a crime having been committed---However, the concept of physical recovery of incriminating evidence, including weapon, or management of the crime scene does not equally apply to white-collar crime as it does to violent crime---As white-collar crime undertaken by public office holders largely involves documentary evidence, which is often in the custody of State or regulatory authorities or juristic persons, which cannot be easily destroyed by an individual accused, considerations such as preservation and collection of evidence or prevention of a repeat offence posing a threat to the public if the accused is not apprehended, are not fully attracted in the investigation of white-collar crime.

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

----S. 9---Constitution of Pakistan, Arts. 4, 9, 13, 14, 25 & 199---Corruption and corrupt practices---Offences under the National Accountability Ordinance, 1999---Principles governing grant of pre-arrest bail, provided.

Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 SC 427 ref.

Hidayat Ullah Khan v. The Crown PLD 1949 SC Lah. 21; Manzoor and 4 others v. The State PLD 1972 SC 81; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112; National Accountability Bureau through Chairman v. Murad Arshad and others PLD 2019 SC 250; Chairman, National Accountability Bureau, Islamabad v. Mian Muhammad Nawaz Sharif PLD 2019 SC 445; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Khalil Ahmed Soomro and others v. The State PLD 2017 SC 730; Shahzada Qaiser Arfat v. State PLD 2021 SC 708; Amjad Mustafa Malik v. Director General, National Accountability Bureau and 4 others W.P. No. 769 of 2019 and Anwar Ahmad Khan v. The State 1996 SCMR 24 rel.

Following are the principles of law guiding exercise of court's power while considering grant of pre-arrest bail for offences under the National Accountability Ordinance, 1999.

(1) The authority of the High Court in granting pre-arrest or post-arrest bail in relation to offences under the National Accountability Ordinance, 1999, emanates not from statute but from Article 199 of the Constitution, which power is exercised to judicially review a decision of the executive authorities, (i.e. Chairman NAB in relation to National Accountability Ordinance, 1999) to arrest a citizen and exercise of such judicial review power is subject to all guiding principles that otherwise guide High Court's exercise of its extraordinary constitutional jurisdiction under Article 199.

(2) The judicial review power is exercised to enforce the fundamental rights of a citizen and what is at stake is nothing less than the rights of liberty and dignity, and the right of equality and to be treated equally under law, which rights are guaranteed under Articles 4, 9, 14 and 25 of the Constitution, together form the foundation of the framework of fundamental rights guaranteed by the Constitution, upon which are assembled all other auxiliary fundamental rights.

(3) As the decision of the executive branch of the state to arrest a citizen involves curtailment of constitutionally-guaranteed fundamental rights of a citizen, the constitutional court denominated as the machinery for enforcement of fundamental rights undertakes strict scrutiny of such executive action.

(4) It is for the executive authority exercising its extraordinary statutory power to curtail the fundamental rights of a citizen by arresting him to establish before the court that such power of arrest is being exercised for the legitimate state purpose of furthering the ends of justice by investigating an individual in relation to an offense when there exists sufficient cause and material on record to link such individual to the offense in question.

(5) It is for the executive authority exercising arrest powers of the state to establish that such manner of exercise of power constitutes the means least restrictive of the fundamental rights of the citizen in question, while pursuing the legitimate state purpose of conducting an inquiry or investigation into an offence made out under a penal statute.

(6) While courts afford a wider berth to state authorities investigating violent crimes in view of the requirements of investigation in such cases while applying the principles of proportionality, the court would exercise stricter security in relation to white-collar crimes involving documentary evidence, and the executive needs to establish that exercise of arrest powers does constitute the least restrictive means if a balance is struck between the fundamental rights of the individual being investigated and the collective public interest in effective investigation of an alleged offence.

(7) The accused seeking pre-arrest bail need not establish mala fide on part of executive authorities, which can be inferred if state authorities fail to discharge the onus of establishing legitimate state purpose for exercise of arrest powers and further that such action constitutes the means least restrictive of fundamental rights while carrying out an effective investigation. The suggestion that a white-collar crime cannot be investigated without acquiring physical custody of the individual accused ought to be approached with skepticism.

(8) Exercise of arrest powers to seek admission of an offence from an accused (or voluntary return in the context of National Accountability Ordinance, 1999) or to coerce the accused into becoming an approver under threat of detention would fall afoul of Article 13 of the Constitution that provides a guarantee against self-incrimination, and such purpose of arrest would not constitute a legitimate state purpose for exercise of the state's power of arrest.

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

----S. 54---Constitution of Pakistan, Art. 199---When police may arrest without warrant---Judicial review of a person's arrest---Scope---State must not exercise its police powers to arrest a citizen merely because a report or complaint has been filed against him which is under investigation---Exercise of the power of arrest must neither be mechanical nor arbitrary, and if it is motivated by ulterior motives or collateral purpose not conceived by law and not in the interest of justice, such exercise of the State's police powers shall be deemed mala fide and is liable to be judicially reviewed.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.

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

----S.498---Pre-arrest bail---Consideration of Courts---Scope---Overtime, emphasis of the court's focus in considering grant of pre-arrest bail has been equally on (i) the entitlement of an accused to be released on bail, and (ii) the manner in which the decision to arrest an accused has been reached and powers of arrest have been exercised.

Shahzada Qaiser Arfat v. State PLD 2021 SC 708 rel.

Barrister Umer Aslam Khan for Petitioner.

Sardar Muzaffar Ahmed Khan Abbasi, Deputy Prosecutor General, NAB, Syed Ishfaq Hussain Naqvi on behalf of Sindh Bank, Mubashir Karim, A.D/I.O, NAB, Farhan Ashraf Khan, Group Business Head North, Sindh Bank for Respondents.

P L D 2022 Islamabad 398

Before Athar Minallah, C.J.

Prof. ZAHID BAIG MIRZA---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and others ---Respondents

Writ Petition No. 4245 of 2014, heard on 11th January, 2022.

(a) Constitution of Pakistan---

----Art. 9---Right to life---Good governance---Environmental degradation---Biodiversity, ecosystems and natural habitat---Scope---State has an inherent duty to have a proactive role in protecting living species because right to life guaranteed under Art. 9 of the Constitution is dependent on it---Beneficiaries are a few while victims of environmental degradation and destruction of natural habitats and ecosystems are the people, rather the human species---Violators are not ordinary citizens but institutions and public functionaries who exist solely to serve actual stakeholders i.e. the people and to safeguard their rights---Biodiversity, ecosystems and natural habitats are possessed of life and are thus living organisms---Life, whether that of human or other living beings, depends on the existence of biodiversity, ecosystems and natural habitats---Protection of ecosystems and natural habitats is inextricably linked to right to life guaranteed under Art. 9 of the Constitution---Protection of ecosystems and natural habitats is a constitutional obligation of the State, its institutions and every public functionary.

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

----S. 22---Specified Areas---Acquisition of land---Procedure---Entire land comprising "Specified Areas" has been declared as being liable to acquisition under S. 22 of Capital Development Authority Act, 1960 and it is a declaration made by the Legislature.

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

----S. 21(4)---Prohibited activities---National Park, area Margalla Hills---Status---Within National Park area, Margalla Hills have a special status in the context of its protection, preservation and management---Destruction of National Park is violative of fundamental rights of people of Pakistan and saving it from further harm is an inviolable duty of the State, its institutions and public functionaries.

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

----Ss. 2(l) & 22---Islamabad Capital Territory Zoning Regulation, 1992, Regln. 4 (3)(a-e) Zone III---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979), S. 21---Margalla Hills---Status---Capital Development Authority (CDA)---Jurisdiction---Margalla Hills has a distinct status within National Park as it falls in Zone III of Master Plan and is described as such under Islamabad Capital Territory Zoning Regulations, 1992---Margalla Hills area has been declared as a protected area and object and purpose is to protect, preserve and conserve native flora and fauna and to further ensure that its natural character should not harmed---Master Plan is a living document and no change in land use can be allowed---CDA is bereft of authority and jurisdiction under Capital Development Authority Ordinance, 1960 and cannot construct concrete buildings to be used as food outlets in area notified under S. 21 of Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance. 1979.

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

----S. 21(4)---Capital Development Authority Ordinance (XXIII of 1960), Ss. 2(l), 20 & 21---Specified area---National Park---Margalla Hills---Capital Development Authority, jurisdiction of---Scope---Dispute was with regard to change in use of land falling in National Park, Margalla Hills area---Validity---Jurisdiction of CDA was excluded to the extent of inconsistency or conflict with the provisions of Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 and rules made there under---Latter statute had status of a special law relating to preservation, protection and management of the area notified as Margalla Hills, and thus prevailed over other laws---High Court declared that Federal Government, Capital Development Authority and Islamabad Wildlife Management Board were severally and jointly liable for any further destruction of the National Park---High Court directed Federal Government, Capital Development Authority and Islamabad Wildlife Management Board to jointly ensure that no further unauthorized activity, construction or acts in any other manner would take place or were undertaken within the notified area of National Park---High Court also directed respective Secretaries of Ministry of Defence, Ministry of Interior and Chairman of Capital Development Authority to jointly conduct survey and demarcate unharmed area of notified National Park---High Court further directed that survey and demarcation to be completed within sixty days and no activity or construction was allowed within the notified National Park as mandated under MLR 82, Capital Development Authority Ordinance, 1960 and regulations made thereunder, Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, and the Islamabad (Preservation of Landscape) Ordinance, 1966---Constitutional petition was allowed accordingly.

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

----S.21(4)---Capital Development Authority Ordinance (XXIII of 1960), Ss.2(l), 20 & 21----Pakistan Environmental Protection Act (XXXIV of 1997), Ss. 5 & 6---Good Governance---Restoration of possession---Encroachment by officials---Effect---Dispute was with regard to establishing a golf course on land falling in Margalla Hills area falling under 'Specified area'---Plea raised by authorities was that land was taken into possession due to security reasons---Validity---No one could claim to be above the law nor could anyone be given license to violate enforced laws---Providing security was function of State and establishing a golf course in violation of law on the pretext of security could not be justified by any stretch of imagination---Authorities who chose to illegally encroach State land by brazenly violating enforced laws exposed themselves to disciplinary proceedings besides attracting criminal liability prescribed under Capital Development Authority Ordinance, 1960 or Pakistan Environmental Protection Act, 1997, as the case was---Far greater responsibility of the State institutions and its public functionaries to obey and respect the enforced laws---When State officials were involved in its abuse, it would become the worst form of undermining of rule of law and violation of rights guaranteed under the Constitution---Authorities encroached upon State land, including notified area of National Park by illegally establishing a golf course outside allocated sector---Construction on encroached land and establishing a golf course was illegal, without lawful authority and jurisdiction---High Court directed that Golf Course in question to be sealed and its possession handed over to Capital Development Authority and Islamabad Wildlife Management Board---High Court further directed that construction on encroached land of Golf Course would be demolished unless it could be utilized for an environmentally friendly activity---High Court directed the Capital Development Authority and Islamabad Wildlife Management Board to jointly restore encroached land of Golf Course as part of National Park---Constitutional petition was allowed accordingly.

(g) Constitution of Pakistan---

----Art. 245 ---Armed Forces---Role and functions---Business ventures---Scope---No provision existed under the laws which authorizes or empowers Pakistan Army to undertake, directly or indirectly, activities beyond its composition for the purposes of welfare, unless Federal Government has expressly granted permission to do so---Pakistan Army has no power nor jurisdiction to directly or indirectly engage in business ventures of any nature outside its composition nor to claim ownership of State land---Constitution expressly describes two functions of Armed Forces---Primary function or Constitutional duty of Armed Forces is to defend Pakistan against external aggression or threat of war and that too under direction of Federal Government---Direction of Federal Government is a precondition---Other function is to act in aid of civil power when called upon to do so---Multiple eventualities could be requiring Armed Forces to act in aid of civil power e.g. internal security, natural calamities such as floods, earthquakes etc.---Secondary function to act in aid of civil power is subject to law and can only be undertaken if 'called upon to do so'---In case of both the functions, Armed Forces cannot act on their own---Such are the only two Constitutional functions mandated to Armed Forces---Since command and control of Armed Forces vests in Federal Government, therefore, no branch can undertake any activity or perform functions outside their respective establishments unless expressly directed or called upon to do so---Pakistan Army nor its officers are authorized or mandated to undertake, directly or indirectly, any activity such as leasing government land for commercial purpose.

(h) Constitution of Pakistan---

----Art. 173---Federation, acquiring of property---Scope---Constitution mandate that property acquired for purposes of Federation exclusively vests in Federal Government.

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

----Ss. 2(l), 20 & 21---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979), S. 21(4)---Constitution of Pakistan, Arts. 173, 199 & 245---Constitutional petition---Property rights---Entitlement of Armed Forces---Use of land for the purpose other than the one for which it was allocated---Dispute was with regard to land falling in notified National Park area, which was in use of armed forces---Army authorities claimed ownership over area in question and had also been involved in commercial activities over that area at their own without any authority from Federal Government---Validity---Army authorities could neither own or acquire nor manage land given for its use otherwise than as provided under the Constitution and relevant laws---Land was allocated by Federal Government for a particular and declared use of branches of Armed Forces---Land remains the ownership of Federal Government or Provincial Government, as the case was---Nature or character of land allocated for use of Armed Forces could not be changed without express permission of Federal Government---After the land was no more used for the purpose for which it had been allocated then it would revert to Federal Government or Provincial Government, as the case was---Pakistan Army nor any other branch of Armed Forces could claim ownership of land allocated by Federal Government for its use---Army could not claim any compensation in the eventuality of reversion of allocated land when it was no more used for allotted purpose---Claim of Authorities regarding land in notified National Park area, was in violation of Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 read with Capital Development Authority Ordinance, 1960 and the Master Plan---Such claim was also not in conformity with enforced laws applicable to management of lands for use of Armed Forces---Federal Government was bereft of jurisdiction to allow Authorities to use land in notified National Park area---Authorities did not have jurisdiction nor any authority to own, use or keep in possession any land within notified National Park area---Authorities had no jurisdiction or authority to execute any agreement with a Restaurant and rent so recovered was also without lawful authority and jurisdiction---High Court directed Secretary, Ministry of Defenceto ensure that rent received by Authorities was recovered and deposited in exchequer---Lease agreement of Restaurant in question with Capital Development Authority had expired and its agreement with Army Authorities was void and without any legal effect---High Court directed Capital Development Authority and Islamabad Wildlife Management Board to take over possession of Restaurant in question---Constitutional petition was allowed accordingly.

Shahzada Sikandar Ul Mulk and 4 others v. Capital Development Authority and 4 others PLD 2019 Isl. 365; Justice Hassnat Ahmed Khan and others v. Federation of Pakistan/State PLD 2011 SC 680; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, former Chief of Army Staff and others PLD 2013 SC 1; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 ref.

(j) Constitution of Pakistan---

----Art. 9---Right to life---Flora and fauna, protection of---Scope---Flora and fauna are living organisms and human existence on this planet depends on their existence and wellbeing---As living organisms, flora and fauna have rights bestowed upon them by nature and it is their natural right not to be deprived of habitats created for them by nature---State is to protect rights of fauna and flora by protecting and preserving their habitats---It is an obligation of State to ensure that habitats created by nature are not disturbed nor interfered with unless there are compelling reasons to do so and that too after the State has exercised due diligence in order to ensure that such an interference does not contribute to environmental degradation.

(k) Constitution of Pakistan---

----Art. 9---Right to life---Duty of State---Constitutional obligation of the State to create necessary conditions and environment for its citizens to enjoy rights without causing environmental degradation---Duty is not restricted to preventing violation of right to life but to take effective measures to deter any threat to right to life---Exercising due diligence is a duty and it ought to be demonstrably reflected through actions and conduct of public functionaries.

Muhammad Afzal Siddiqui, Dr. Muhammad Aslam Khaki, Shuja Ullah Gondal, Ms. Nataliya Kamal, Raja Sohail Ibad, Ali Asghar Pasha, Barrister Saad Hashmi and Sajid Ur Rehman Mashwani for Petitioners.

Qasim Wadud, Addl. Attorney General, Imran Farooq, Asstt. Attorney General, Farrukh Dall, Asstt. Attorney General and Daniyal Hassan, State Counsel for Respondents.

Hafiz Arfat Ahmed Chaudhry, Ms. Kashifa Niaz Awan, Syed Muhammad Ali Bukhari, Syed Muhammad Shah, Mian Abdul Rauf, Ms. Misbah Gulnar Sharif, Amir Latif Gill and Usama Rauf for Respondents.

General (Rtd) Hilal, Secretary, Ministry of Defence.

Yousaf Naseem Khokhar, Secretary, Ministry of Interior.

Sikandar Qayyum, Secretary, Ministry of Climate Change.

Amir Ali Ahmed, Chairman, Capital Development Authority.

Ms. Farida Altaf Shah, Director General, Environmental Protection Agency.

Ms. Rina Saeed, Chairperson, Islamabad Wildlife Management Board.

Dr. Saima and Atif, Military Lands and Cantonments Department.

Yawar Hussain Rana, Section Officer (MCI), Ministry of Interior.

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

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

Ms. Tehmina Kausar, Section Officer, Ministry of Climate Change.

P L D 2022 Sindh 1

Before Ahmed Ali M. Shaikh, C J and Yousuf Ali Sayeed, J

ALI AZHAR---Petitioner

Versus

ARZOO FATIMA and 5 others---Respondents

Constitutional Petition No. D-2903 of 2021, decided on 7th October, 2021.

Sindh Child Marriage Restraint Act, 2013 (XV of 2014)---

----S. 2(a)---Constitution of Pakistan, Arts. 199 & 203-D & 203-G---Constitutional petition---Petitioner sought declaration that vires of Sindh Child Marriage Restraint Act, 2013, were against injunctions of Islam, the Holy Quran and Sunnah in view of Art. 203-D of the Constitution---Petitioner raised further plea that as Sindh Child Marriage Restraint Act, 2013, was passed by Provincial Assembly therefore, the same could be challenged under Constitutional jurisdiction of High Court as under Art.199 of the Constitution, High Court had inherent powers to declare vires of any Act, Ordinance or legislation repugnant to Injunctions of Islam, the Holy Quran and Sunnah---Validity---Federal Shariat Court, under Art. 203-D of the Constitution had the exclusive domain of the Shariat Court to examine and declare any provision of any statute as repugnant to injunctions of Islam, the Holy Quran and Sunnah---High Court declined to interfere in the matter in view of the provision contained under Art. 203-G of the Constitution---Constitutional petition was dismissed in circumstances.

Dossani Travels (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 and Pakistan Lawyers Forum v. Federation of Pakistan and others PLD 2004 Lah. 145 rel.

P L D 2022 Sindh 6

Before Muhammad Shafi Siddiqui, J

SOUTHERN NETWORKS LIMITED through Authorized Representative---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and another---Respondents

Miscellaneous Appeal No. 7 of 2017, decided on 2nd September, 2021.

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

----Ss. 30 (b) & 30-A---Pakistan Electronic Media Regulatory Authority Rules, 2009, R.16(2)---Appeal---Revalidation of licence---Directors, change of---Appellant company sought revalidation of its licence---Pakistan Electronic Media Regulatory Authority issued show-cause notice to company for change of its directors without prior permission---Validity---Held, there was no specific requirement of personal appearance of outgoing directors---Opinion of Council of Complaints under proviso to S.30(b) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was required and the same had already been rendered when a fine of Rs.1 million was suggested---Such was prima facie violation under S.30(d) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, read with R.16(2) of Pakistan Electronic Media Regulatory Authority Rules, 2009---Proportionality of penalty was not in balance---Object of adjudging eligibility of incoming directors, which criteria ought to have been prescribed in advance, could be adjudged conveniently as directors were available and in no way appellant company or any of the directors would come in that way as far as security clearance of those directors were concerned but suggested deficiency alone did not call for a maximum punishment of revocation of licence and principle of proportionality was violated---High Court set aside decision made by Pakistan Electronic Media Regulatory Authority and case of appellant company for change of directors be considered in such terms and physical appearance of outgoing director was dispensed with---High Court directed that eligibility criteria of directors be adjudged at the earliest to be followed by security clearance of directors, which was of prime consideration---High Court restrained the authorities not to take more than 60 days in the entire process---High Court further directed that licences would be subject to outcome of entire process and till such process was completed, appellant company could continue to operate---High Court directed Pakistan Electronic Media Regulatory Authority to consider fine for subject violation in terms of money---Appeal was allowed accordingly.

Independent Newspaper Corporation v. Chairman, Fourth Wage Board 1993 SCMR 1533; Abu Bakar Siddique v. Collector of Customs 2004 PTD 2187 and Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 rel.

Salahuddin Ahmed for Appellant.

Kashif Hanif for Respondents.

P L D 2022 Sindh 20

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

KHALID ALI DARS and 27 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

Constitutional Petition No. D-847 of 2020, decided on 26th August, 2020.

Sindh Irrigation Act (VII of 1879)---

----S. 62-C(1)---Water course---Encroachment of amenity plot---Dispute was with regard to encroachment of land in question which was natural or carved out land for flow of rain/flood water---Validity---Land of all natural or artificial depression courses meant for discharge of flood or rain water could not be used for any other purpose---Encroachment upon such courses could not be sustained in view of S.62-C(1) of Sindh Irrigation Act, 1879---High Court directed competent authority of Government of Sindh to look into the matter and to take appropriate action in the light of legal position---Encroachment of any amenity plot to another use was treated as an abuse of discretion and therefore, was unlawful---Paramount object of modern city planning was to ensure maximum comforts for residents of city by providing maximum facilities---Public functionary entrusted with work to achieve such object could not act in a manner which could defeat such objective---Deviation from planned scheme would result in discomfort and inconvenience to others---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Province of Punjab through Secretary Revenue and others v. District Bar Association Khanewal and others 2014 SCMR 1611 rel.

Rafiq Ahmed Kalwar for Petitioners.

Allah Bachayo Soomro Additional Advocate General Sindh for Respondents Nos. 1 to 4.

Muhammad Azhar Arain for Respondent No.5.

P L D 2022 Sindh 31

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

Dr. REHANA ALI SHAH---Petitioner

Versus

PROVINCE OF SINDH, SINDH LOCAL GOVERNMENT, DISTRICT CENTRAL through Deputy Director and 4 others---Respondents

Constitutional Petition No. D-3713 of 2018, decided on 8th October, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Genuineness of divorce deed---Scope---Petitioner sought direction from High Court to declare a divorce certificate/deed allegedly issued by Municipal Authority as fake and forged---Held, that subject matter of genuineness of divorce certificate/deed and its legal effect could not be conclusively adjudicated in the domain of Constitutional jurisdiction of High Court and fell to be considered by the competent civil court---Constitutional petition being not maintainable was dismissed, in circumstances.

Muhammad Ayaz Ansari for Petitioner.

Abdul Jalil Zubedi, Assistant Advocate General Sindh for Respondents Nos.1 to 5.

Zain A. Jatoi and Muhammad Mustafa for Legal heirs of deceased.

P L D 2022 Sindh 34

Before Aqeel Ahmed Abbasi and Zulfiqar Ahmad Khan, JJ

FARRUKH AFZAL MUNIF---Appellant

Versus

MUHAMMAD AFZAL MUNIF and 29 others---Respondents

High Court Appeal No. 328 of 2018, decided on 10th September, 2021.

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

----Ss. 29 & 30---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Mentally disordered person---Death of owner of properties---Effect---Appellant/plaintiff filed suit for declaration and injunction on the plea that defendants had wrongfully confined his father in their custody on the pretext of mentally disordered person and had fraudulently got valuable movable and immovable properties transferred in their favour---On application filed by defendants, Single Judge of High Court rejected the plaint---Validity---Primarily father of plaintiff had to seek a declaration to the effect that he was actual owner, whereas his wife was merely an ostensible owner (Benamidar) of such properties---Appellant/plaintiff had no right and authority to dispute or challenge nature of such transaction of ownership of such property on the allegation of fraud or Benami transaction---Any other legal presumption in respect of properties acquired and purchased by any person in the name of any other person, particularly in the name of wife or children, would lead to opening Pandora's box and would encourage frivolous litigation by unscrupulous persons, otherwise having no right or title upon such properties purchased or transferred by any person, particularly in the name of his wife or children---Division Bench of High Court maintained the findings of Single Judge of High Court in such regard---Division Bench of High Court declined to restore the suit to its original position as father of appellant/plaintiff had expired therefore, relief sought was no more available to appellant/plaintiff---Intra Court Appeal was dismissed accordingly.

Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and 9 others 2017 MLD 705; Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others 2017 YLR 1579; Searle IV Solution (Pvt.) Ltd. and others v. Federation of Pakistan and others 2018 SCMR 1444; Arif Majeed Malik and others v. Board of Governors Karachi Grammar School SBLR 2004 SINDH 333; Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365; Ghulam Haider v. The Settlement Commissioner, Peshawar and others 1972 SCMR 559; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Multan Electric Power Company Ltd. v. Muhammad Ashiq and others PLD 2006 SC 328; Sardar Muhammad and others v. Mst. Sharifan Bibi PLD 2006 SC 444; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Fazal-ur-Rahim v. Islamic Republic of Pakistan and others 2005 MLD 859; Noor Hussain and others v. Mst. Fatima and others 1984 MLD 438; Muhammad Zahid v. Mst. Ghazala Zakir and 7 others PLD 2011 Kar. 83; Saifullah Khan and others v. Mst. Afshan and others PLD 2017 Sindh 324; Sheikh Haroon Buksh v. Shaikh Tahir Buksh and 2 others PLD 2017 Sindh 563; Saeed Zehri v. Nabi Bux Zehri and another 1996 CLC 497; Muhammad Mansha and 5 others v. Muqadas Sultan and 6 others 2010 CLC 712; Mst. Shagufta Parveen v. Qaiser Ijaz and 2 others 2015 YLR 2550; Mst. Suriya Iqbal Chishti and another v. Mst. Rubina Majidullah and others 2019 CLC 211; Rizwan Ahmed v. Jameel

Ahmed and 9 others 2020 YLR 366; Sadbar Khan v. Amir Hussain PLD 1995 Pesh. 14; Maj. (Retd.) Pervez Iqbal v. Muhammad Akram Almas 2017 SCMR 831; Khadim Hussain and 12 others v. Gul Hassan Tiwano 2014 MLD 574; Ch. Ghulam Rasool v. Nusrate Rasool PLD 2008 SC 146 and Abdul Majeed v. Amir Muhammad 2005 SCMR 577 ref.

Khawaja Shams-ul-Islam along with Imran Taj for Appellant.

Muhammad Haseeb Jamali for Respondents Nos.1 and 2.

Umaima Mansoor Khan and Shumaila Saghir for Respondents Nos. 3 and 4.

Tahmasp Rasheed Razvi for Respondent No.5.

Ghulam Murtaza Malik for Respondents Nos. 7 and 8.

Abid Naseem for Respondent/CDC.

Ms. Naureen Saeed Rao for Respondent No.30.

P L D 2022 Sindh 47

Before Muhammad Shafi Siddiqui, Muhammad Junaid Ghaffar and Omar Sial, JJ

CHIEF REVENUE AUTHORITY/MEMBER (RS&EP) BOARD OF REVENUE SINDH, KARACHI: In the Matter of

Civil Reference No. 2 of 2018, decided on 16th November, 2021.

(a) Stamp Act (II of 1899)---

----Ss. 31, 40, 41, 56 & 57---Reference before High Court under S. 57 of the Stamp Act, 1899 ('the 1899 Act')---Pre-requisites---For maintaining a Reference the requirement of S.56 of Stamp Act, 1899 was such that if the Collector acting under S. 31 or 40/41 of the 1899 Act visualized a doubt as to the amount of duty with which any instrument was chargeable, he may draw up a statement of the case and refer it with its own opinion thereon for the decision of the Chief Revenue Authority---On receipt of such statement the Authority shall then consider the case and send copy of its decision back to the Collector who shall proceed to assess and charge the duty in conformity with such decision of the Chief Revenue Authority---Question could only arise for the purposes of a Reference if a Collector acting under S.31, or 40 or 41 of 1899 Act had any doubt as to the amount of duties with which any instrument was chargeable and in consequence whereof he would draw up statement of the case and refer it with his own opinion for an onward decision by the Chief Revenue Authority or in the alternate Chief Revenue Authority himself had taken a notice.

(b) Stamp Act (II of 1899)---

----Ss. 32 & 33---Examination and impounding of instruments---Scope---Complaint by a private person could not be made basis for impounding an instrument when a certificate to the effect i.e. order under S. 32 of the Stamp Act, 1899 had already been passed by the Collector/Chief Inspector of Stamps certifying/endorsing that proper stamp duty had been paid.

(c) Stamp Act (II of 1899)---

----S. 3---Property sold on the basis of a court decree---Value of property for purposes of calculation of stamp duty---Scope---Where an instrument was registered in performance of a court decree it ought to be on the basis of value determined in the decree and/or agreement entered into for which performance was to be made in terms of Court decree---Only in case when the property had changed its status lawfully i.e. from a built-up property to an open plot or from a semi-constructed property to a fully constructed property, the value of the property may be altered in instrument sought to be registered---Thus, when a property was sold out on the basis of a decree, which decree had valued the property in question, the right of valuing the property did not rest with the vendor and vendee and/or the concerned authority---Observations made in paragraph 13 of the judgment reported as Mrs. Nighat Saimi v Province of Sindh (PLD 2017 Sindh 596) held not to be good law.

Mrs. Nighat Saimi v Province of Sindh PLD 2017 Sindh 596 held not to be good law.

Jawwad Dero, Additional Advocate General.

Abdul Wajid Wyne along with Bilal Wajid Wyne for the Complainant.

Muhammad Aqil along with Arif Dawood for purchaser/vendee Farhana Zakai.

P L D 2022 Islamabad 51

Before Athar Minallah, C.J.

KULSUM KHALIQ---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE and others---Respondents

Criminal Original No. 314 of 2021, decided on 26th November, 2021.

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Scope---Criticism of judges---Bona fide criticism was an integral part of the accountability of judicial officers---Judges were not immune from public scrutiny nor criticism.

Judges were not above the law and they were accountable. Bona fide criticism was an integral part of the accountability of judicial officers.

The State v. Dr. Firdous Ashiq Awan PLD 2020 Isl. 109 and Ambard v. Attorney-General for Trinidad and Tobago [1936] 1 All ER 704 ref.

Power of contempt was exercised sparingly. It was not a power meant to protect a judge as an individual nor the latter's dignity. Judges were entrusted with an onerous duty to serve the people through the fountain of justice and they were, therefore, not immune from public scrutiny nor criticism. An independent judge would not be influenced nor affected in any other manner because of public criticism. The authority of a judge was not dependent on the words of the Constitution but, rather, rested on public respect and the confidence of the people. The exercise of the power of contempt would be justified only if it was in the public interest i.e. to protect the rights of the litigants during pending proceedings or when it appeared that an act or omission was calculated to interfere with the due administration of justice. Being magnanimous was an essential attribute of an independent and impartial judge because of the exalted position and the divine nature of judicial functions.

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

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court---Scope---Criticism of a retired judge---Offence of contempt (of court) was not attracted in the case of a retired judge because after retirement the latter attained the status of a private citizen.

Judge who ceased to hold a judicial office upon retirement instantly severed his or her connection with the judicial organ and the court. A judge after retirement, therefore, attained the status of a private citizen. Such a person was no more a member of the 'Court' in the context of Article 204 of the Constitution nor under the Contempt of Court Ordinance, 2003. However, a judicial officer, after his retirement, was not without a remedy in case the latter considered to have been maligned or his respect lowered in the eyes of the people. As a private citizen it remained open to a retired judicial officer to seek remedies available in a court of law. However, the offence of contempt was not attracted in the case of a retired judge because after retirement the latter attained the status of a private citizen.

P L D 2022 Sindh 52

Before Salahuddin Panhwar, J

MUHAMMAD RAHEEL KAMRAN---Petitioner

Versus

IST ADDITIONAL DISTRICT JUDGE, KARACHI (EAST) and 2 others---Respondents

Constitutional Petitions Nos. 157, 158 and 294 of 2010, decided on 28th September, 2020.

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

----S. 8(1)---Fair rent---Plain language of S.8 subsection (1) of the Sindh Rented Premises Ordinance, 1979 prima facie requires a Rent Controller to consider four aspects while determining fair rent---All the four aspects as mentioned in subsection (1) are independent in nature and character therefore, every independent aspect would be a factor affecting upon quantum of fair rent but failure of any of them would not result in rejection of the application.

Muhammad Farooq v. Abdul Wahid Siddiqui 2014 SCMR 630 rel.

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

----S. 8---Fair rent---Scope---Term "fair rent" is not available for multiplicity of the existing/agreed rent but a reasonable appreciation of all the given factors so as to fix the fair rent.

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

---S. 8---Fair rent---Advance amount or pagri, consideration of---Scope---Section 8 of the Sindh Rented Premises Ordinance, 1979, nowhere gives any importance to the 'advance money' nor the Ordinance has any room for 'pugri amount'.

Hasnat Ahmed Khan v. Institution Officer 2010 SCMR 354 rel.

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

----S. 8(1)---Fair rent---Scope---Balance is always to be appreciated by the Rent Controller while fixing the fair rent which must find strength with detailed factors as well as reasonable approach to available material and circumstances.

Amar Naseer for Petitioner (in C.Ps. Nos.S-157 and 158 of 2010) and for Respondent (in C.P. No.S-294 of 2010).

P L D 2022 Sindh 61

Before Muhammad Junaid Ghaffar, J

Mst. IFFAT through Attorney and another---Petitioners

Versus

UMAR FAROOQUE and 2 others---Respondents

Constitutional Petition No. S-255 of 2019, decided on 27th September, 2021.

(a) Family Courts Act (XXXV of 1964)---

----S. 14---Constitutional petition---Suit of petitioner was partly decreed and her appeal challenging decision of Family Court on certain issues was dismissed---Questions whether plaintiff was entitled for maintenance, and if yes, at what rate, and, upto what period; and whether defendant had paid dower amount to the plaintiff in shape of gold---Held, that petitioner had failed to lead proper evidence which could inspire the Courts to pass a decree in her favour to the extent of certain issues---Petitioner wife had returned to the house of respondent in his suit for conjugal rights on her own and finally took Khula'---No confidence inspiring evidence proving claim regarding dower---Petitioner was given option to withdraw the petition which was not exercised---Constitutional petition was dismissed with cost.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction under Art. 199 of the Constitution could be regarded as being on a higher pedestal as against the jurisdiction under S. 115 of Civil Procedure Code, 1908---To consider Art. 199 of the Constitution designed to empower the High Court to interfere with the decision of the Court or tribunal of inferior jurisdiction merely because in its opinion the decision was wrong was wholly wrong---Such wrong consideration would make High Court's jurisdiction indistinguishable from the exercise in a full-fledged appeal, which plainly was not the intention of the Constitution makers.

Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional and appellate jurisdictions---Scope---Court should always be slow in exercise of Constitutional jurisdiction where the statute had provided appeal and party had, either availed or declined to avail the remedy; unless it was shown that the action taken or order passed/intended to be passed was palpably without jurisdiction and was violative of the principles of justice.

Ali Muzafar v. Syed Muhammad Ali Abedi 2006 CLC 379 ref.

(d) Constitution of Pakistan---

----Art. 199---Concurrent findings by Court/Tribunal below---Constitutional jurisdiction---Scope---High Court could not go behind concurrent findings of fact unless it could be shown that the finding was on the face of it against evidence or so patently improbable or perverse that to accept it could amount to perpetuating grave miscarriage of justice or if there had been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible.

Federation of Pakistan v. Ali Hussain PLD 1967 SC 249 and Muhammad Shafi and others v. Sultan 2007 SCMR 1602 rel.

(e) Constitution of Pakistan---

----Art. 199--- No further remedy--- Constitutional and appellate jurisdiction---Scope---Practice to file Constitutional petitions on the ground that since no further remedy of appeal had been provided in law, hence such jurisdiction had to be exercised as a matter of right and in a manner of appellate jurisdiction---Such practice needed to be curbed/halted as it was burdening the Courts with unnecessary litigation; resultantly, delaying disposal and decisions of other cases involving statutory rights of litigants.

(f) Family Courts Act (XXXV of 1964)---

----S. 14---Constitution of Pakistan, Art. 199---Appeal under Family Courts Act, 1964---Restriction---Intention of Legislature---Constitutional petition---Scope---Legislature in its wisdom had restricted further appeal in family matters---Only in cases of exceptional nature and where apparently on the face of it, an order had been passed which lacked jurisdiction and was so patently illegal warranting correction, only then High Court under its constitutional jurisdiction could exercise discretion in favour of an aggrieved petitioner.

Asif Aman for Petitioner.

Fayyazuddin Rajper, Associate of Shamsuddin Rajper for Respondent No.1.

Saeed Ahmed Wassan, Assistant Advocate General Sindh.

P L D 2022 Sindh 69

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

IRFAN WAHID---Appellant

Versus

LUCKY CEMENT LIMITED and 9 others---Respondents

High Court Appeal No. 72 of 2020, decided on 12th October, 2021.

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

----Ss. 16, 17, & 120---Sindh Civil Courts Ordinance (II of 1962), S. 7---Sindh High Court and Civil Courts of Karachi District---Territorial jurisdiction---Suit for declaration, injunctions, recovery of possession---Respondent/plaintiff was granted three mining leases: "first lease" falling under the territorial limits of two districts (Karachi and Jamshoro); while "second lease" and "third lease" were falling under exclusive territorial limits of Karachi and Jamshoro, respectively---Single Judge of the High Court observed (vide impugned order) that suit regarding "first lease" could be filed at Karachi in view of S.17 of Civil Procedure Code, 1908---Single Judge had also partly returned the plaint of respondent/plaintiff regarding "third lease" for filing it before the competent Court at Jamshoro; and directedhim to amend plaint after deleting the irrelevant leases---Defendant filed appeal praying the said impugned order may be re-called/set aside, contending that according to S.7 of Sindh Civil Courts Ordinance, 1962, original jurisdiction of High Court at Karachi was confined to the Karachi District only---Validity---Single Judge had rightly returned the plaint under O. VII, R. 10 of Civil Procedure Code, 1908 in respect of "third lease" exclusively falling within territorial limits of District Jamshoro---Single Judge, regarding "first lease", opined that plaintiff was at liberty to choose any of the Courts where disputed land was situated for filing his suit---While entertaining a suit relating to immovable property emanating in Karachi having a value of more than pecuniary limit of ordinary civil Courts, the place of suing as determined under Ss. 16 & 17 of the Civil Procedure Code, 1908 would become immaterial and was not to be considered as under S.7 of Sindh Civil Courts Ordinance, 1962---Original side of Sindh High Court became the place of suing---Section 120 of the Civil Procedure Code, 1908 could be interpreted only in that manner---Impugned order did not require any interference---Appeal was accordingly dismissed.

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

----Ss. 16, 17, 18 & 120---Ordinarily, a suit relating to a dispute of immovable property situated in Karachi was to be brought in the Civil Court having jurisdiction under Ss.16 & 17 of Civil Procedure Code---If, however, suit was of the value which was more than the value of ordinary Civil Court then by virtue of Sindh Civil Courts Ordinance, 1962 the place of suing would shift to the original side of Sindh High Court---In order to overcome such overlapping of jurisdictions, provisions of Ss.16 & 17 were made inapplicable under S.120 of Civil Procedure Code, 1908.

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

----S. 5---Delay, condonation of---Sickness, plea of---Principle---Plea of party's sickness for condonation of delay had not been supported by medical certificate---Party did not disclose in affidavit that he was suffering from such a malady and was bedridden so as to be prevented being in a position to visit his lawyer---Plea of sickness could not be believed, in circumstances.

Syed Mureed Ali Shah and Fareeda Mangrio for Appellants.

Faiz Durrani for Respondent No.1.

Shaheryar Mahar, A.A.G. Sindh for Respondents Nos. 2-6 and 8-10.

P L D 2022 Sindh 78

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

DUR MUHAMMAD SHAH, ADVOCATE---Petitioner

Versus

AGA KHAN UNIVERSITY HOSPITAL through Management and 6 others---Respondents

Constitutional Petition No. D-4861 of 2017, decided on 27th October, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Charitable institution, affairs of--- Determination--- Petitioner assailed affairs of respondent Foundation on the plea that instead of running on charitable basis, it was running its hospital on commercial basis---Validity---Provincial Government exempted Property Tax in respect of respondent establishment, which was exempted under clause 61 of Part-I of Second Schedule to Income Tax Ordinance, 2001, from payment of income tax towards fulfillment of the very object of grants---Respondent foundation had constructed a medical college and a 750 beds hospital---Respondent foundation was a company not for profit, licensed under S.42 of Companies Ordinance, 1984---Generally non-profit organization operated on the principle that none of its member would receive profits from such organization and such organization had applied its surplus funds on the promotion of objects, rather than distributing it amongst its members---Income of respondent establishment was solely applied for promotion of its objects and no portion of such income was distributed, paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to the members of the Foundation---Healthcare facilities of the hospital were available to every citizen subject to charges on case to case basis---Hospital was acting within its aims and objects and was a non-profit organization whose earnings and income were utilized for the purpose of hospital and education etc. and had satisfied conditions of license/ sanad---High Court declined to interfere in the affairs of respondent Foundation---Constitutional petition was dismissed, in circumstances.

Black's Law Dictionary, Sixth Edition and Le Cras v. Perpetual Trusteee Co., Ltd. and others, Far West Children's Health Scheme and others v. Perpetual Trustee Co., Ltd. and others [1967] All E.R. 915 rel.

Dur Muhammad Shah, Advocate present in person.

Jam Zeeshan for Respondent No.1.

Abdul Jalil Zubedi, A.A.G. for Respondents Nos. 2 to 6.

P L D 2022 Sindh 84

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

AKHTAR MEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 787 of 2019, decided on 19th June, 2021.

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

----Ss. 7, 8, 9(c), 21 & 27---Criminal Procedure Code (V of 1898), S. 157---Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 (IX of 2010), S. 9---Police Rules, 1934, Rr. 24.5, 22.70 & 24.19---Constitution of Pakistan, Art. 4---Transportation of narcotics---Appreciation of evidence---Owner of vehicle, culpability of---Scope---Accused was alleged to have been apprehended while transporting 13 kilograms of charas---Only evidence available in the case was that of Investigating Officer and he had failed to produce the spy before the High Court despite being ordered---FIR was not registered by the SHO/Head Moharar of Excise Police Station---Nothing was mentioned about the proceedings required to be conducted by the S.H.O. under S. 157, Cr.P.C.---Perusal of challan revealed that it was submitted by the self-appointed Investigating Officer without the approval of his superior or District Public Prosecutor as required under S. 9 of the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009---Alleged recovered charas was never handed over by the Investigating Officer to the Incharge Malkhana---Investigating Officer had not seized the vehicle from which charas was recovered---Investigating Officer himself had disclosed name of the owner of vehicle in the challan but had not inquired from the owner that how and why his vehicle was found involved in an offence---Owner of the conveyance should have been included as co-accused for an offence under Ss. 7 & 8 of Control of Narcotic Substances Act, 1997---Investigating Officer after arresting the accused under S. 21 of Control of Narcotic Substances Act, 1997, ought to have dealt with him under S. 27 of Control of Narcotic Substances Act, 1997---Action taken by the Investigating Officer against the accused after his arrest and alleged seizure of charas while performing function under S. 21(1) of Control of Narcotic Substances Act, 1997, was illegal, void ab initio, without lawful authority and, therefore, the entire trial had vitiated---Director General of Excise and Taxation was directed by the High Court to take strict disciplinary action against the Investigating Officer for his failure to follow the basic criminal law---Appeal was allowed.

Haji Nawaz v. The State 2020 SCMR 687 rel.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Art. 8---Police Rules, 1934, R. 22.49---Information as to commission of offences---Matters to be entered in Register No. II (Daily Diary)---Scope---Mere statement of complainant (police official) that he has received spy information which was not incorporated in any daily diary of police station nor particulars of informer are disclosed anywhere, cannot have any evidentiary value unless the spy is called to support the version given by the complainant.

Islamic Republic of Pakistan through Secretary Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan M.N.A former President of Defunct Awami National Party PLD 1976 SC 57 rel.

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

----S. 21---Power of entry, search, seizure and arrest without warrant---Scope---SRO No. 787(I)/2004, dated: 16-09-2004 does not authorize Excise Police to conduct investigation of offences under Control of Narcotic Substances Act, 1997.

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

----S. 9---Police Rules, 1934, Rs. 22.49 & 22.70---Possession of narcotics---Daily diary---Malkhana Register No. XIX---Scope---Merely mentioning in Register No. II (Daily Diary) that the case property was deposited in Malkhana is not proof of deposit of case property unless Incharge Malkhana or at least copy of Malkhana Register maintained under Rule 22.70 of the Police Rules, 1934, is produced.

Haji Nawaz v. The State 2020 SCMR 687 rel.

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

----S. 21---Power of entry, search, seizure and arrest without warrant---Scope---Use of words/phrase "before or immediately" and "forthwith" by the lawmakers has made the provision of S. 21(2) of Control of Narcotic Substances Act, 1997 as compulsory and mandatory.

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

----S. 21---Power of entry, search, seizure and arrest without warrant---Scope---Power conferred on various Government Agencies by virtue of the notification SRO No. 787(I)/2004, dated: 16-09-2004 do not include power to investigate the offence and detain an accused in a police station under the control of any of the agencies---All the agencies mentioned in the notification under S. 21 of Control of Narcotic Substances Act, 1997, are creation of special law and in each case the policing powers given to the personnel of the agencies are limited to the offences defined in the respective Special Laws---Police stations established under the special laws are not meant to detain offender/criminal of any other law except the law under which such police stations are established nor the said agencies are supposed to register a case in their police station for an offence outside the scope of the said special law since such police stations are established only for the prosecution of specified offences under special laws.

Abdul Rehman son of Deen Muhammad Zahri Baloch v. The State through Pakistan Coast Guards (Criminal Jail Appeal No.144 of 2019) rel.

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

----S. 27---Disposal of persons arrested and articles seized---Scope---Words "nearest police station" as used in clause (a) of S. 27 of Control of Narcotic Substances Act, 1997, mean a police station under the local police and not the Excise Police Station having jurisdiction to detain persons arrested and things seized under Ss. 30, 37 & 40 of Sindh Abkari Act, 1878 for enforcement of Excise Law.

Nemo for Appellant.

Zafar Ahmed Khan, Additional Prosecutor General for the State.

P L D 2022 Sindh 106

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

CYRUS COWASJEE and 2 others---Petitioners

Versus

KARACHI METROPOLITAN CORPORATION through Administrator, Karachi---Respondent

Constitutional Petition No. D-3172 of 2016, decided on 12th October, 2021.

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

----S.5---Succession Act (XXXIX of 1925), 213(2)(b)---Sindh Peoples Local Council (Land) Rules, 1975, Rr. 27 & 36---Mutation fee---'Will' by Parsi---Probate grant of---Petitioners were Parsi by faith who were aggrieved of demand of mutation fee raised by authorities for the property transferred through inheritance on the basis of 'Will'---Validity---Immovable property in question stood evolved/transmitted by operation of law of inheritance ('Will') and did not involve any act of transfer as defined in S.5 of Transfer of Property Act, 1882---Immovable property was acquired from the estate left behind by deceased father of petitioners through inheritance ('Will')---Right and title in the inherited immovable property stood devolved automatically in petitioners as per their respective share by operation of law---No element of transfer of property as defined under S.5 of Transfer of Property Act, 1882, involved in such eventuality---No authority under Sindh Local Government Act, 2013, to charge or collect mutation charges/fee in respect of immovable property wherein right and title was acquired by way of inheritance through Will, as it did not involve any act by which a living person had conveyed property to one or more other living persons---Such transfer of property was not covered under S. 5 of Transfer of Property Act, 1882---High Court directed the authorities to refund mutation fee charged from petitioners---Constitutional petition was allowed accordingly.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Government of North-West Frontier Province through Secretary Agriculture and others v. Rahimullah and others 1992 SCMR 750; Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources and another's case 2014 SCMR 1630; Workers' Welfare Funds, Ministry of Human Resources Development, Islamabad through Secretary and others' case PLD 2017 SC 28; and Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad and 3 others 2017 PTD 1803 ref.

(b) Interpretation of statutes---

----Fiscal statutes---Charging provisions---Principle---Charging provisions, in fiscal statutes, are to be strictly construed---No tax, fee, charge or levy etc. can be imposed unless such authority is available under the Constitution and relevant statute in terms of clear and unambiguous language---No government or Authority can compulsorily extract money from any person or class of person either in the form of tax, fee, charge or levy, unless specifically authorized under the law---No room for any intendment or presumption in a fiscal statute and burden lies upon government or the authority to establish that there is a provision of statute, whereby, charge has been created for the purpose of collecting tax, fee, levy or any other charges from any person or class of persons in unequivocal and clear terms---In case of any ambiguity, benefit is to be extended to person or class of persons upon whom such incidence or charge is created.

Commissioner of Income Tax, Companies-II, Karachi v. Messrs Muhammad Usman Hajrabai Trust Imperial Courts, Karachi 2003 PTD 1803; Province of the Punjab through Secretary, Government of Punjab, Excise and Taxation Deptt. and others v. Muhammad Aslam and others 2004 SCMR 1649; Collector of Sales Tax and Federal Excise v. Messrs Abbot Laboratories (Pakistan) Ltd., Karachi 2010 PTD 592 and Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad and 3 others 2017 PTD 1803 rel.

M. Abdur Rahman for Petitioners.

Iqbal M. Khurram and Jawwad Dero, Addl. A.G. Sindh for Respondent.

P L D 2022 Sindh 116

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

Mrs. FARYAL TALPUR---Petitioner

Versus

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

Constitutional Petition No. D-6833 of 2021, decided on 26th November, 2021.

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

----S. 2---Constitution of Pakistan, Arts. 15 & 199---Constitutional petition---Interim permission, grant of---Freedom of movement---Exit Control List, removal of name from---Petitioner was facing trial under National Accountability Ordinance, 1999 and sought removal of her name from Exit Control List---Application was filed to allow one time permission to travel abroad till final determination of petition---Validity---Trial was no where in sight of completion and if petitioner was not given permission to travel abroad she would be denied such right for a period which could extend for at least further 3 years based on current progress of trial and its likely completion date in addition to her denial to travel outside of Pakistan for last 3 years making a minimum total of 6 years---Citizens were allowed under Art. 15 of the Constitution, a right to freedom of movement which was a fundamental right and could not be curtailed forever, especially in cases where an under trial person was concerned and the trial through no fault of their own was nowhere in sight of completion---High Court keeping in view the "no objection" of "National Accountability Bureau", allowed petitioner to travel one time basis subject to sufficient surety---Application was allowed, in circumstances.

Rafi v. Federation of Pakistan 2018 MLD 579 rel.

Abid S. Zuberi, Munir Khan, Ms. Sana Q. Valika and Barrister Agha Ali Durrani for Petitioner.

Zahid Hussain Baladi, Special Prosecutor NAB.

P L D 2022 Sindh 122

Before Muhammad Saleem Jessar, J

AIJAZ ALI---Applicant

Versus

ALI NAWAZ and another---Respondents

Criminal Revision Application No. S-164 of 2019 and Criminal Bail Application No. S-74 of 2020, decided on 15th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Compounding of offence---Legal heirs of deceased---Brother and sister of deceased---Scope---Brother and sister of the deceased, being not direct heirs of the deceased but heirs of an heir of the deceased, cannot resist a compromise arrived at between the accused and the direct legal heirs of the deceased---Such compromise is the exclusive right/authority of the widows and daughters of deceased to enter into compromise with the accused.

Muhammad Yousaf v. The State and others PLD 2019 SC 461 rel.

Dilbar Khan Leghari for Applicant.

Nazar Muhammad Memon, Addl. P.G. Sindh for the State.

Imam Bux Baloch for the Complainant.

P L D 2022 Sindh 131

Before Zafar Ahmed Rajput and Adnan-ul-Karim Memon, JJ

FAYAZ ALI MASTOI---Petitioner

Versus

ASSISTANT EXECUTIVE ENGINEER, IRRIGATION, SHAHDADKOT and 7 others---Respondents

Constitutional Petition No. D-166 of 2020, decided on 3rd August, 2021.

Constitution of Pakistan---

----Arts. 9 & 199---Right to life---Irrigating agriculture lands---Fundamental right, enforcement of---Petitioner was aggrieved of interference in right of flow of water to his agriculture lands---Validity---If any person was deprived of fundamental right, he could always approach High Court by invoking Constitutional jurisdiction with a rider that such right was not hampered with any law---Right to irrigate agriculture land was also governed and protected under irrigation laws and rules made thereunder---In case of infringement of such laws and rules the same could be examined by High Court---Petitioner had been supplied irrigation water to his land as per record since long, which fact was admitted by authorities---Watercourse in question was flowing from the land of respondents as per record of irrigation department, who had prima facie attempted to stop the same, compelling petitioner to approach High Court for redressal of his grievance---High Court directed the authorities to ensure supply of irrigation water to land of petitioner, as per share list and in accordance with irrigation laws, rules and regulations without any unwanted disturbance from any corner---If respondents had any objection to supply of irrigation water to land of petitioner from watercourse in question, they were to approach concerned authority under irrigation laws for cancellation of sanctioned watercourse of petitioner and authorities were to decide the matter in accordance with law---Constitutional petition was allowed accordingly.

2014 SCMR 353 rel.

Sarfraz Ali Abbasi for Petitioner.

Liaquat Ali Shar, Addl. A.G. along with Zirgham Ali Rajpar, Assistant Executive Engineer Irrigation, Sub-Division Shahdadkot and Muhammad Ali, Canal Assistant, Irrigation Sub-Division Shahdadkot for Respondents Nos.1 to 4 and 8.

Habibullah G. Ghouri for Respondents Nos.5 to 7.

P L D 2022 Sindh 135

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

Messrs ZAHIR KHAN AND BROTHERS (ZKB)---Appellant

Versus

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

High Court Appeal No. 181 of 2021, decided on 8th October, 2021.

Auction---

----Administration of justice---Interim order---Direction by Court---Appellant assailed order of Single Judge of High Court directing appellant to participate in auction---Validity---Order in question was not an appealable order, as it only contained certain directions issued by Single Judge of High Court during pendency of suit to regulate the process, without finally deciding fate of any pending application or relief sought in the suit---Division Bench of High Court depreciated tendency to challenge every order or direction of interim in nature which not only had started multiplying litigation but also caused delay in disposal of cases on merits---Order assailed was neither final nor any pending application was decided, which could give rise to a grievance to appellant or would have adversely affected case of appellant on merits before Single Judge of High Court, such order was not assailable in appeal---Division Bench of High Court declined to interfere in the matter as the appellant could raise any objection on the process of auction before Single Judge of High Court---Intra Court Appeal was dismissed, in circumstances.

Asim Iqbal for Appellant.

P L D 2022 Sindh 138

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

MUHAMMAD YOUSUF and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Mines and Mineral Development Department and 6 others---Respondents

Constitutional Petition No. D-787 of 2010, decided on 15th September, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy---Petitioners sought quashing of order passed by revenue authorities whereby their application was rejected---Validity---Petition filed against order of revenue authorities was not maintainable before High Court under Art. 199 of the Constitution as petitioners had remedy under revenue laws and it was for petitioners to take resort---Matter was pending before Supreme Court and at such stage no conclusive findings could be given by High Court on the issue involved in the matter---Petitioners had already sought declaration for their ownership over subject land which they failed to seek and their appeal too was dismissed, application of petitioner before revenue authority was also dismissed---Petitioners failed to resort appropriate remedy and exhaust remedy before Appellate forum under hierarchy of revenue authority or any Court of competent jurisdiction and had directly approached High Court---High Court declined to interfere in the matter as petition was misconceived and petitioners should approach proper forum---Constitutional petition was dismissed, in circumstances.

Jagdesh R. Mullani for Petitioners.

Rafiq Ahmed, Karim Bux and Abdul Majeed Khan for Private Respondents.

Allah Bachayo Soomro, Addl.A.G.

P L D 2022 Sindh 147

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

ALLAUDDIN MALIK---Petitioner

Versus

Late Dr. ABDUL JALIL through Legal Heirs and 5 others---Respondents

Constitutional Petition No. 2427 of 2021, decided on 25th May, 2021.

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

----S. 115---Revisional jurisdiction---Dismissal of petition in limine---Scope---Where revisional court had initially passed an order on both applications to issue notice to the other side but on the same day had passed another order "advocate to be heard", such order did not give any cause of action or trigger off any vested right to assail the order---Fact remained that maintainability of such applications was crucial, therefore, revisional court on the same day had reviewed its order before sending notice and in its proper application of mind had deemed it better to first hear advocate and after hearing reached to the conclusion that the applications were not maintainable and had finally dismissed the same---While doing so after hearing, the revisional court had fully followed the principles of natural justice and due process of law---Nobody could claim any vested right that on each and every application in routine the court was bound to issue notice to the other side, on the contrary, if the court deemed or reckoned that the application was not maintainable or having no worth or justification of issuing notice to the other side which, in fact, was moved to prolong or drag the proceedings with ulterior motives, the same could be dismissed without notice to the other side in order to save precious time of court and expeditious disposal of lis---Constitutional petition was dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Revisional jurisdiction only applies to the cases involving illegal assumption, non-exercise or the irregular exercise of jurisdiction which can be invoked in the cases in which no appeal lies and the case was decided by subordinate court and such court appeared to have exercised a jurisdiction not vested in it by law or have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity---Scope of entertaining the revision application is only when the applicant's case falls within the four corners of provisions of S. 115, C.P.C. in which the court has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of revision and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with the order---Court in its revisional jurisdiction cannot travel beyond the scope of S. 115, C.P.C. and cannot go into the matters not relevant for the purposes of testing the jurisdictional error committed by the court below.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 115---Constitutional petition---Revision petition---Scope---Whereas constitutional jurisdiction cannot be exercised to interfere with revisional order unless it is based on gross misreading or non-reading of evidence and the reasons given are absolutely perverse, not supported by law or evidence or the material available on record.

Muhammad Ramzan Tabassum for Petitioner along with Petitioner.

Mazhar Ali B. Chohan for the legal heir No.4 of deceased Dr.Abdul Jalil (Respondent No.1).

Amir Saleem for Respondent No. 3.

P L D 2022 Sindh 151

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

ANEES---Petitioner

Versus

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

Constitutional Petition No. D-1763 of 2016, decided on 30th August, 2021.

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

----S. 34---Sindh Healthcare Commission Act, 2013 (VII of 2014), S. 22---Constitution of Pakistan, Art. 199---Constitutional petition---Medical negligence---Constitution of enquiry committee---Alternate remedy, availability of---Scope---Petitioner sought direction to the Government to submit report/status of registration of degrees and entitlement for practice as orthopedic surgeon of the private respondent/doctor---Validity---Respondent as well as petitioner had filed civil suits before the courts below, therefore, in view of availability of alternate and efficacious remedy to the petitioner, which he had elected, the constitutional petition was liable to be rejected---After enactment of the Pakistan Medical Commission Act, 2020, Sindh Healthcare Commission Act, 2013 and its Rules, 2017, framed thereunder, remedy of petitioner for verification of degrees, constitution of enquiry committee to investigate the matter and physical inspection of Orthopedic Trauma Centre, could be laid before the said forums---Constitutional petition was dismissed, in circumstances.

Shahnawaz Khan for Petitioner.

Salman Talibuddin, Advocate General, Sindh.

M. Nadeem Khan, Assistant Attorney General.

P L D 2022 Sindh 155

Before Aftab Ahmed Gorar, J

RAMESH KUMAR---Appellant

Versus

The STATE and another---Respondents

Criminal Acquittal Appeal No. 402 of 2019, decided on 18th November, 2021.

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

----S. 265-K---Power of Court to acquit accused at any stage---Scope---Purpose of provision of S.265-K, Cr.P.C., is very much clear and it never prevents a court from acquitting an accused at any stage of the case---If, after hearing the prosecution and the accused and for the reason to be recorded, the court considers that there is no probability of the accused being convicted of the offence alleged against them no legal embargo for exercising of powers conferred under the said section, but even then the court cannot deprive the prosecution by giving an opportunity to produce tangible evidence under the garb of S.265-K, Cr.P.C.---Mandatory for the court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it is apparent from the record that there is no probability of the accused being convicted of the offence.

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

----Ss. 561-A & 265-K---Inherent powers of High Court---Power of Court to acquit accused at any stage---Trial Court recorded acquittal order of the accused under S.265-K, Cr.P.C.---Scope---In the impugned order, Trial Court had observed that the news published in newspapers were circulated at place "L" and "S" and the private complaint was filed at place "K" as such question of jurisdiction had arisen---Record showed that after examining the entire material, the Trial Court had observed that there would be no probability of conviction of accused in near future and acquitted the accused from the charge under S.265-K, Cr.P.C.---Complainant/appellant had failed to establish extraordinary reasons and circumstances, whereby the acquittal order recorded by the Trial Court might be interfered---No infirmity was found in the impugned order of acquittal recorded by the Trial Court---Appeal against acquittal was dismissed accordingly.

Muhammad Abdul Rauf Siddiqui v. Station House Officer Police Station Gulberg Karachi and others 2013 PCr.LJ 70 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

(c) Appeal against acquittal---

----Interference---Scope---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse and arbitrary in nature or based on misreading, non-appraisal of evidence or was artificial, arbitrary and led to gross miscarriage of justice.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

Merajuddin for Appellant.

Mukesh Kumar G. Karara for Respondent No.2.

P L D 2022 Sindh 160

Before Adnan Iqbal Chaudhry, J

Messrs FOREL INTERNATIONAL TRADING and others---Plaintiffs

Versus

WAQAS AHMED JAT and others---Defendants

Suit No. 308 of 2021, decided on 14th October, 2021.

(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 7---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 5---Civil Procedure Code (V of 1908), O.VII, R. 11---Specific Relief Act (I of 1877), S. 56(e)---Original civil jurisdiction---General and special law---Civil Court, jurisdiction barred---Hawala/hundi and money laundering, suspicion of---After conducting inquiry, Federal Investigation Agency ("FIA") had issued an order to freeze Bank accounts of the plaintiffs---Plaintiffs filed suit for declaration that such inquiry offended their fundamental rights; that notices under S.160, Criminal Procedure Code, 1898 and freezing of Bank accounts were mala fide/without jurisdiction; for injunction to set-aside freezing order; and for damages for loss caused to business/reputation/mental anguish---First Information Report was launched alleging that the accused had opened fake Bank accounts to route transactions which were offences under Pakistan Penal Code, 1860 and also scheduled offences under the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Validity---First Information Report was presented before Special Court and said Court had taken cognizance of the matter and the plaintiffs had also surrendered before the Court for pre-arrest bail---Freezing order passed by the "FIA" was subject to the orders of the Special Court---Bank accounts of the plaintiffs are movable property within the meaning of S.7 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Said Ordinance being special law, power to lift the freezing order of the plaintiffs' Bank accounts lay exclusively with the Special Court---Question whether the transactions in the Bank accounts of plaintiffs were unlawful, would squarely fall within the exclusive jurisdiction of the Special Court under the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Jurisdiction of Civil Court to grant relief against freezing of the plaintiffs' Bank accounts was impliedly barred---High Court rejected the plaint under R.11 of O.VII.

National Accountability Bureau v. Zahida Sattar PLD 2001 Kar. 256 rel.

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

----S. 8---Malicious prosecution---Damages, claim for---Suit for damages against Federal Investigation Agency ("FIA") for initiation of inquiry and passing order of freezing Bank accounts---Scope---Suit for damages could circumvent the bar of S. 8 of the Federal Investigation Agency Act, 1974---Cause of action for such a suit would only arise if and when the prosecution against the plaintiffs failed.

Khawaja Shams-ul-Islam for Plaintiffs.

Anwar Kamal, Assistant Attorney General for Pakistan along with Waqas Ahmed Jat, Enquiry Officer, FIA for Defendants 1-5.

Nemo for Defendants 6-10.

P L D 2022 Sindh 165

Before Fahim Ahmed Siddiqui, J

Mir HASSAN KALHORO---Applicant

Versus

MUHAMMAD CHUTTAL alias IMRAN and another---Respondents

Criminal Miscellaneous Application Nos. S-26 and S-34 of 2021, decided on 28th May, 2021.

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

----S. 197---Penal Code (XLV of 1860), S. 77---Judicial Officers' Protection Act (XVIII of 1850), S. 1---Prosecution of Judges and public servants---Act of Judge when acting judicially---Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders---Scope---Complaint was that complainant was called as an official witness for production of revenue record in respect of some property and when he could not produce certain documents, he sought time to bring the record but the Senior Civil Judge became furious, abused him, called the police and got him handcuffed and kept him in police custody for two hours---Complaint was dismissed by the Magistrate being coram non judice---Revisional Court allowed the revision and directed entertainment of complaint---Validity---No criminal case could be initiated against a judicial officer in discharge of his judicial duty, and if a criminal case was intended to be initiated against a judicial officer, the same could only be done with the previous sanction, which was never obtained by the respondent---Judicial officer enjoyed protection and immunity not only under the universal principles of jurisprudence but a thick blanket of cover was available to him under the Judicial Officer's Protection Act, 1850---High Court observed that action of complainant amounted to hindering the independence of judiciary, which itself was an offence---Higher authority of complainant was directed to initiate disciplinary proceedings against him and he was directed to be transferred from the district with immediate effect---Applications were allowed and the impugned order was set aside.

(b) Administration of justice---

----Act of judge---Scope---Judicial officers are discharging sacred duty of imparting justice and to achieve this noble task assigned to them, they have to enforce the law only with an aim to secure the ends of justice---High Court observed that being a fundamental principle of jurisprudence, it was felt necessary in the public interest that no action either of civil or criminal nature should lie against a judge, either of the statutory or constitutional court, for his judicial act---Judge is not a sacred cow that is why a proper mechanism has been designed for entertaining complaints against a judge---As to the judgment and order of a judge are concerned, remedy of the aggrieved person against such judgment or order is to approach the higher forum through the appropriate proceeding---Conversely; the action of a judge, while sitting under the canopy of court, cannot be questioned by initiating a civil or criminal proceeding against him---Such immunity is necessary for the independence of judiciary and to give confidence to the judges to discharge their duties without any fear and distress and provide justice within their jurisdiction---Such immunity from a civil or criminal action is essential for the strength of entire judicial process---Even the idea of providing such immunity to the judges of all cadre is more than that---Judges cannot be questioned regarding wrong or erroneous judgments, which are open to revision or appeal within the hierarchy of the judicial system and unless there is some malice or underhand issue in respect of such judgments and order, the immunity is extended up to the administrative action also.

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

----S. 77---Judicial act of Judge---Scope---No action of any sort lay against a judge for doing something in the exercise of his judicial powers within his jurisdiction except the same is done maliciously and contrary to good faith---Such universally accepted immunity enjoyed by judges has been beautifully incorporated in P.P.C. by inserting S.77.

Shabbir Ali Bozdar for Applicant (in Criminal Miscellaneous Application No. S-26 of 2021).

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

P L D 2022 Sindh 171

Before Muhammad Saleem Jessar, J

Syed REZA ALI SHAH---Petitioner

Versus

XII MODEL CIVIL APPELLATE COURT,DISTRICT SOUTH, KARACHI and 2 others---Respondents

Constitutional Petitions Nos. S-849 and S-850 of 2020, decided on 3rd March, 2021.

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

----Ss. 25 & 9---Family Courts Act (XXXV of 1964), S. 5, Sched.---Family Courts Rules, 1965, R. 6---Custody of minor---Territorial jurisdiction---Residing together---Minor, residing abroad---Scope---Petitioner (mother) filed a petition for custody of minor residing abroad---Respondent (father) filed application under S. 9 of Guardians and Wards Act, 1890---Trial Court allowed the respondent's application and returned that of petitioner---Appeals filed by petitioner were dismissed---Validity ---Case of petitioner was that respondent had gone abroad consequent upon mutual understanding to continue her education at a university and she had agreed to return to Pakistan after two years---Respondent had not denied the assertions of petitioner, as such, the petitioner's assertions would be deemed to have been admitted---Stay of respondent so also of the minor abroad was only of temporary nature, therefore, the Courts below had erred in holding that 'ordinary residence of minor' was abroad and not Pakistan---Such stay could not have been termed as 'residing together'---Orders passed by Courts below were set aside and the matter was remanded to the Trial court for decision afresh---Constitutional petitions were disposed of accordingly.

Major Khalid Karim's case PLD 2012 SC 66; Anne Zahra's case 2001 SCMR 2000; Scherazade Jamali v. Hisham Gillani and others PLD 2018 Sindh 377; PLD 2018 Sindh 377; 2017 YLR 994; 1999 CLC 1623; PLD 2020 Lah. 716; 1999 CLC 1137; 2011 CLC 146; 1998 MLD 1813; 2011 SCMR 1591; 2010 YLR 196; 2005 SCMR 1615; 1995 MLD 690; 2007 CLC 1885; 2013 CLC 131; 2011 SCMR 1591; PLD 1973 SC 24; 2020 MLD 42; 1990 MLD 2258; PLD 1958 SC (Pak) 437; 2020 YLR 196 and 2005 SCMR 1315 ref.

Scherazade Jamali v. Hisham Gillani and others PLD 2018 Sindh 377; 1999 CLC 1137 and Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others 2009 MLD 1274 rel.

(b) Jurisdiction---

----Incumbent upon the court that before proceeding on merits with any legal proceedings, it be a suit, appeal, petition or application, to first see and decide as to whether such application is maintainable or not, more particularly when the other side specifically raised legal objection regarding maintainability.

Major Khalid Karim's case PLD 2012 SC 66 rel.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Family Courts Rules, 1965, R. 6---Custody of minor---Territorial jurisdiction---Scope---Territorial jurisdiction in the matters regarding guardianship and custody of minor is to be determined under the provisions of Family Courts Act, 1964 and Family Courts Rules, 1965.

Anne Zahra's case 2001 SCMR 2000 rel.

(d) Family Courts Rules, 1965---

----R. 6---Territorial jurisdiction---Scope---Rule 6 of the Family Courts Rules, 1965, provides two grounds for determination of territorial jurisdiction and by conjoining the two grounds mentioned in clauses (a) and (b) by word "or", it has been made clear that either of two grounds could be pressed into service.

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

----S. 5---Citizenship by descent---Scope---All children, by virtue of S. 5 of the Pakistan Citizenship Act, 1951, wherever born of a Pakistani father, are deemed to be citizens of Pakistan by descent.

Sumayyah Moses v. Station House Officer, Faisalabad and 3 others PLD 2020 Lah. 716 rel.

(f) Administration of justice---

----Merely mistakenly mentioning wrong provision of law in the application is to be ignored and the contents of such application are to be taken into consideration.

Muneer A. Malik, Abdul Rahman along with Ahmed Madni for Petitioner.

Ms. Lamia Niazi along with Zia Ullah Khan for Respondent No.3.

P L D 2022 Sindh 186

Before Muhammad Faisal Kamal Alam, J

SHAHIMAH SAYEED---Plaintiff

Versus

BASE COMMANDER, PAF and 3 others---Defendants

Suit No. 436 of 1993, decided on 26th February, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Constitution of Pakistan, Arts. 23 & 24---Suit for declaration and injunction---Holding of property for defence purpose and National Security---Proof---Plaintiff claimed to be owner of suit land measuring 2.27 acres on the basis of allotment in her favour which allotment was regularized after receiving differential amount---Defendant authorities claimed to require suit land for defense purposes---Validity---Land measuring 5915.10 acres was under occupation of defendant authorities for which it had approached Provincial Government for transferring same either free of charge or on lease (against nominal charges)---Claim of authorities about land measuring 2.27 acres, which was part of suit land to be used for deployment of missiles was naïve---Such did not appeal to common sense that small area of 2.27 acres would be utilized to defend a huge area of 5915.10 acres---Though defense and security interest of country was the foremost priority, particularly considering geostrategic location but at the same time ownership rights, which were guaranteed as fundamental rights in the Constitution could not be sacrificed merely on a vague plea of National Security---In a Constitutional dispensation, ownership/proprietary rights of a genuine owner, could not be sacrificed at the altar of some vague plea of security issue---Authorities or officials taking the ground of national security in defense for their actions had to make out a tangible case---Balance was to struck in such cases between material aspect of National Security and fundamental rights of a citizen---High Court decled the plaintiff was owner of suit land and she was entitled to use and enjoy the same---Suit was decreed, in circumstances.

Power Grid Corporation of India Ltd., Nagpur v. State of Madhya Pradesh and others AIR 2015 Chhattisgarh 90; Delhi Golf Club Limited v. New Delhi Municipal Corporation AIR 1997 Delhi 347; The State of Madhya Pradesh v. Jhankar Singh AIR 1973 Madhya Pradesh 274; Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311; Messrs Ainy Builders and Company Hyderabad and 2 others v. Hyderabad Municipal Corporation, Hyderabad through Administrator/Mayor 1997 MLD 732; Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Echo West International (Pvt.) Ltd. v. Pakland Cement Ltd. 2008 YLR 206; Pak American Commercial (Pvt.) Ltd., through Director v. Humayoun Latif and 7 others PLD 2008 Kar. 540; Abdul Majid v. Syed Muhammad Ali Shahim and 10 others 2000 SCMR 1391; Messrs Metalex (Private) Limited v. Government of Sindh through Secretary, B.O.R. PLD 2010 Kar. 414; Sherry: CBE (Citizens for a better Environment) and another v. Government of Sindh through Secretary, Land Utilization Department Board of Revenue, Karachi and others 2009 YLR 955; Muhammad Saeed v. Mst. Nahid Shagufta and 3 others PLD 1990 Lah. 467; Syed Muhammad Khalid v. Province of Sindh through Secretary Land, Karachi and 2 others PLD 2009 Kar. 186; Ghulam Muhammad through Legal Heirs v. Mst. Naheed Qureshi 1991 CLC 1053; Kabir Ahmed v. Saudabad Trust through Administrator Deputy Commissioner Office, Karachi 2007 CLC 288; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Muhammad Munir v. Muhammad Saleem and others 2004 SCMR 1530; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Abbas Ali v. Liaqat Ali and another 2013 SCMR 1600 and The Commanding Officer National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719 ref.

Muhammad Vawda for Plaintiff.

Mohammad Asif Malik for Defendant No.1.

Ghulam Mohiuddin, Assistant Attorney General for Pakistan for Defendant No.3.

Ms. Saima Imdad Mangi, Assistant Advocate General Sindh for Defendants Nos. 2 and 4.

P L D 2022 Sindh 209

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MURAD alias MANN---Applicant

Versus

MANZOOR AHMED and another---Respondents

Criminal Revision Application No. D-01 of 2021, decided on 18th November, 2021.

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

----Ss. 6 & 23---Act of terrorism---Necessary ingredients---Accused sought transfer of his case to Court of ordinary criminal jurisdiction on the plea that it was not an act of terrorism---Validity---Fear or insecurity created actually or not as a result of an offence is not a decisive factor to qualify it as terrorism; it is only when intent and motive of such offence is to create fear or insecurity in society for achieving political, ideological and religious objectives, such act can be labelled as terrorism---Deceased were done away inside house and motive prima facie, from investigation report under S.173, Cr.P.C. besides being robbery was shrouded in mystery---Purpose to kill deceased was unrelated to objectives specified and detailed in S.6(1)(c) of Anti-Terrorism Act, 1997---Though death of deceased was horrific but design to assassinate them was not to create terrorism or to destabilize government for achieving political etc. objectives---Such situation, its effects and consequences did not align with terrorism---Case was transferred from the Court of Anti-Terrorism to Court of ordinary criminal jurisdiction---Revision was allowed, in circumstances.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 and Ali Gohar and others v. Pervez Ahmed and others PLD 2020 SC 427 rel.

Mian Taj Muhammad Keerio for Applicant.

Afzal Karim Virk for the Complainant.

Shahzado Saleem Nahiyoon, Additional P.G.

P L D 2022 Sindh 213

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

MUHAMMAD RIZWAN DALIA and 3 others---Petitioners

Versus

OMBUDSMAN (THE PROTECTION AGAINST HARASSMENT OF WOMEN AT THE WORKPLACE) SINDH and 2 others---Respondents

Constitutional Petition No. D-6107 and C.M.A. No.26254 of 2020, decided on 7th December, 2021.

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

----S. 8---Constitution of Pakistan, Art. 199---Constitutional petition---Complaint of ex-employee, assailed show-cause notice---Petitioner was alleged to have caused harassment to complainant at workplace when she was in service---Validity---Woman employed on contractual, daily, hourly or monthly basis including an interim / apprentice could prefer a complaint to Ombudsman or Inquiry Committee, if she was aggrieved by an act of harassment at workplace either in the shape of sexual advance or request for sexual favour or verbal or written communication or physical conduct of a sexual nature etc.---No bar existed in Protection Against Harassment of Women at the Workplace Act, 2010, that a woman only during her employment could file complaint regarding alleged sexual harassment at the workplace---Acts of harassment as claimed by complainant were allegedly taken place in office during the period when she was working there---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Mazhar Hussain v. President of the Islamic Republic of Pakistan 2018 MLD 327 distinguished.

Abid S. Zuberi for Petitioners.

Abdul Jalil Zubedi, A.A.G. for Respondents Nos. 1 and 2.

Raj Ali Wahid Kunwar for Respondent No.3.

P L D 2022 Sindh 222

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

MUHAMMAD YOUNUS ARAIN and others---Petitioners

Versus

STATE through D.G. NAB and another---Respondents

C.Ps. Nos. D-2119 of 2011, D-1640 of 2012 and D-4438 of 2014, decided on 15th October, 2021.

(a) Evidence---

----Document, tendering of---Effect---Tendering a document in evidence is wholly distinct rule, it concerns with mode of proving document itself---Existence and probative value of such document is different matter and involves assessment to be made by Trial Court of a fact it seeks to establish---For Court to look into document for deciding its probative or evidentiary value, it is necessary to tender the document legally first.

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

----Arts. 72, 73, 74 & 79---Document, tendering in evidence---Effect---Tendering of document in evidence does not imply that it has been accepted by Court as an admissible piece of evidence and its probative value has to be looked into and determined---To produce original document (primary evidence) or its certified copy etc. (secondary evidence) is basically mode of proving the document itself, its existence and not the contents it contains---Determination of evidentiary or probative value of contents of a document is the next stage which is undertaken only after existence or execution of a document has been established either through primary or secondary evidence as the case may be---First stage is to prove existence of a document itself, once it is past positively, second stage to prove the contents document seeks to convey comes into play.

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

----Arts. 75, 76 & 79---Photostat copy of document, tendering in evidence---Effect---When a photostat document is taken on record, subject to its admissibility and later no steps are taken to prove contents of document by leading primary or secondary evidence, such document cannot be taken into consideration for determining its evidentiary value---Merely by tendering a document in evidence, it gets no evidentiary value unless its contents are proved in terms of Art. 79 of Qanun-e-Shahadat, 1984.

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

----Art. 72---Documentary evidence---Inadmissible evidence---Effect---When a piece of evidence/document sought to be tendered is admittedly inadmissible, irrespective of mode of proof of such document, production of such document in evidence has to be denied---To hold or to view that a given piece of evidence is inadmissible, (its contents cannot be accepted or admitted to have probative value even if it is taken on record) has to involve presence of predetermination of such fact.

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

----Art. 72---Document tendered in evidence, objection to---Principle---When defence objects to tendering i.e. mode of proof of a document in evidence, it is duty of Court to decide it immediately and not defer it---When objection is not on existence or execution of document itself but on the contents, its evidentiary value, the fact it seeks to convey and there is a chance that primary or secondary evidence may be led to prove its contents, production of such document in evidence cannot be denied.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Arts. 78, 85,91 & 134---Criminal Procedure Code (V of 1898), Ss. 94, 340 & 540---Documentary evidence---Public document---Presumption---Photostat copies of document seized during investigation---Evidence in criminal and civil proceedings---Distinction---Petitioners facing trial objected to production of photostat copies of documents tendered in evidence by prosecution---Validity---Public document is presumed to be genuine and its attested or certified copy is relevant and admissible in evidence unless contrary is proved rebutting such presumption completely---No requirement of law exists to examine author or attesting witness to prove existence of a public document---Prosecution was not obliged to examine any such person in proof of an official document---Document in investigation is collected/obtained under a seizure memo and provision of S.94, Cr.P.C. is relevant in such respect, which empowers investigating officer to seize or collect a document required for investigation purpose---Document purporting to be record of memorandum of evidence can be produced under Art. 91 of Qanun-e-Shahadat, 1984, in Court by a witness and the same has a presumption of genuineness attached to it---To appreciate a document in a criminal case as an admissible piece of evidence could not be identified with regime applied to a document for such purpose in civil case in respect of a private document---Claim of a party in civil proceedings was decided on preponderance of probability and all that was necessary in a civil case was to show that proof adduced in support of a fact was such that it could make a prudent mind act upon it---In criminal case, prosecution had to prove guilt of an accused beyond a reasonable doubt, and his conviction could be recorded by Court only when it was satisfied that possibility of his innocence, on the basis of evidence adduced against him was completely ruled out---High Court declined to interfere in production of photostat copies of record during trial---Constitutional petition was dismissed, in circumstances.

PLD 2009 Lah. 254; 2018 SCMR 2092; PLD 2021 SC 715; 2017 PCr.LJ 854; PLD 2017 SC 265; PLD 1973 SC 160; PLD 1969 SC 477; 2003 PCr.LJ 1353; 2018 SCMR 2092; 1997 MLD 806; PLD 2011 SC 350; PLD 1998 Kar. 86; PLD 2021 SC 715; PLD 2000 SC 795; PLD 2007 Kar. 194; 2017 PCr.LJ 294; PLD 2009 Lah. 254; 2002 SCMR 468; Hyderabad Development Authority through MD Civic Center Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113; C.P. No.D-3045 of 2021 and Civil Petition No.4878 of 2021 ref.

Muhammad Rehman Gous for Petitioners (in C.P. No.D-2119 of 2011 and C.P. No.D-1640 of 2012).

Muhammad Ashraf and Irshad Ali Jatoi for Petitioner (in C.P. No.D-4438 of 2014).

Shahbaz Sahotra, Special Prosecutor NAB.

Syed Meeral Shah, Addl.P.G.

P L D 2022 Sindh 233

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

ABDUL REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 144 of 2019, decided on 13th February, 2021.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Mode of making search---Scope---Provisions of S. 103, Cr.P.C. have not been totally excluded from Control of Narcotic Substances Act, 1997---Only an exception has been provided in S. 25 of Control of Narcotic Substances Act, 1997 and does not exclude S.103, Cr.P.C. in all circumstances.

Niaz Muhammad v. State PLD 1983 SC (AJ&K) 211; Zardar v. The State 1991 SCMR 458; State v. Muhammad Amin 1999 SCMR 1367; Muhammad Aslam v. The State 2011 SCMR 820 and Haroon Rasheed v. The State 2020 PCr.LJ Note 172 rel.

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

----Ss. 9(c), 21, 25 & 76---Pakistan Coast Guards Act (XVIII of 1973), Ss. 2 (i), 14 (2) & First Sched.----Notification S.R.O. No. 787(I)/2004, dated 16-09-2004---Criminal Procedure Code (V of 1898), S.103---Narcotic substance, recovery of---Appreciation of evidence---Recovery proceedings---Pakistan Coast Guards, jurisdiction to investigate---Witnesses from public, non-associating of---Charas weighing 100 kilograms was recovered by Pakistan Coast Guards from the vehicle which was being driven by accused---Trial Court on the basis of investigation conducted by Pakistan Coat Guards convicted and sentenced the accused for imprisonment for life---Validity---Complainant did to give any explanation that why he did not request any official of Highway patrol to become witness to search and arrest of accused---Prosecution for protection of S.25 of Control of Narcotic Substances Act, 1997, was to give justified reasons, otherwise non-compliance of S.103, Cr.P.C. was fatal---Failure of prosecution to gather otherwise available independent witnesses created serious doubts in their case against accused---Inquiry was faulty and there was lack of corroborative evidence to connect accused with Charas allegedly recovered from truck---In presence of non-obstante clause in S.76 of Control of Narcotic Substances Act, 1997, anything done or purportedly to have been done by Pakistan Coast Guards in the name of powers already available to them under Pakistan Coast Guards Act, 1973, while performing functions under S.21(1) of Control of Narcotic Substances Act, 1997, was in excess of powers under notification S.R.O. No. 787(I)/2004, dated 16-09-2004---High Court directed the authorities to ensure that illegality committed by Pakistan Coast Guards in prosecution of cases under Control of Narcotic Substances Act, 1997, should be stopped forthwith---High Court further directed that investigations and prosecutions of all pending cases registered by Pakistan Coast Guards in exercise of powers and functions under S. 21(1) of Control of Narcotic Substances Act, 1997, should be assumed/transferred to other agencies authorized to deal with menace of narcotics and its trafficking strictly in accordance with the provisions of Control of Narcotic Substances Act, 1997---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed in circumstances.

Niaz Muhammad v. State PLD 1983 SC (AJ&K) 211; Zardar v. The State 1991 SCMR 458; State v. Muhammad Amin 1999 SCMR 1367; Muhammad Aslam v. The State 2011 SCMR 820; Haroon Rasheed v. The State 2020 PCr.LJ Note 172; Abdul Sattar v. The State 2002 PCr.LJ 51; Waris v. The State 2019 YLR 2381; Mst. Razia Sultana v. The State 2019 SCMR 1300; State v. Imam Bux 2018 SCMR 2039; Haji Nawaz v. The State 2020 SCMR 687; Muhammad Noor and others v. The State 2010 SCMR 927 and State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

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

----S.21(2)---Words "before or immediately" and "forthwith"---Effect---Use of words/phrases "before or immediately" and "forthwith" in S.21(2) of Control of Narcotic Substances Act, 1997, have made the provision as compulsory and mandatory instructions to be followed by seizing officer.

(d) Police Rules, 1934---

----R. 24.5(1)---First Information Report register---Use of computer---Effect---Computer in police station cannot be treated as a "printed book in Form 24.5 (1) of Police Rules, 1934, consisting of 200 pages, nor anything typed on computer "shall be written at the same time by means of carbon copying process" to be "preserved for sixty years".

(e) Interpretation of statutes---

----Policing powers---Principle---Whenever policing powers are conferred on any agency constituted under a special law, such power can be exercised by concerned agency only in relation to the functions assigned to them under special law---One special law cannot be merged into another special law by any notification for any purpose whatsoever, particularly when one of the two enactments carrying an overriding effect on any other law for the time being force.

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

----S.50---Prosecution, duty of---Counsel appointed by Pakistan Coast Guards---Scope---Lawyers representing Pakistan Coast Guards before Special Courts are not competent for trials of offences under Control of Narcotic Substances Act, 1997, before Special Court, unless appointed as Special Public Prosecutor under S.50 of Control of Narcotic Substances Act, 1997.

Mallag Assa Dashti for Appellant.

Ali Tahir, Special Counsel for Pakistan Coastguards, assisted by Ms. Rida Tahir for Respondent.

P L D 2022 Sindh 260

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

SHAHID HUSSAIN QURESHI---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 4 others---Respondents

Constitution Petitions Nos. D-634 and D-1420 of 2019, decided on 25th May, 2021.

Constitution of Pakistan---

----Arts. 187 & 199---Constitutional petition---Implementation of directions of Supreme Court---Petitioner sought implementation of directions of Supreme Court whereby it had directed that Dean Law Faculty/Head of Law Department/Principal of Law College shall be Ph.D. in law with 8 years law teaching experience/practice experience in High Court or Masters Degree in Law with 15 years law teaching experience/practice experience in High Court or a retired Judge of the Supreme Court or a High Court or a retired District and Sessions Judge having 5 years of judicial service to his credit---Existing Principal of a Law College was not holding the criteria as determined by the Supreme Court---Provincial Government as well as the Vice Chancellors and Registrars of the universities were directed not to appoint any person as Chairman, Dean Faculty of Law, Director of Law school or Principal of law colleges either personally or as incharge, who did not fulfil the criteria laid down by Supreme Court---All the persons who were holding such important positions and did not qualify the criteria were directed to be removed immediately---Constitutional petition was disposed of accordingly.

Pakistan Bar Council through Chairman and others v. Federal Government through Establishment Division and others 2019 SCMR 389; Pakistan Bar Council v. Federal Government and others PLD 2007 SC 394 and Pakistan Bar Council through Chairman and others v. Federal Government through Establishment Division and others 2018 SCMR 1891 ref.

Syed Muhammad Ali Shah for Petitioner.

Manzoor Hussain Larik for Respondent No.3/Respondent No.5 in person in (C.P. No.D-634 of 2019).

Ghulam Shabbir Shar for Respondent No.4 (in C.P. No.D-1420 of 2019).

P L D 2022 Sindh 264

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

Mst. ASMA NADEEM---Petitioner

Versus

FEDERATION OF PAKISTAN and 5 others---Respondents

Constitution Petition No. 2296 of 2015, decided on 13th April, 2021.

Constitution of Pakistan---

----Art. 9---Security of person---Missing persons---Scope---Right to life is the most precious of all Fundamental Rights of the citizens protected by the Constitution and it is the duty of the State to ensure that such rights are protected (namely the practice of missing persons/enforced disappearance is put an end to) as Pakistan is a democratic country which is governed by the Constitution, which is also blended with Islamic provisions which absolutely prohibit such illegal actions---State was duty bound to protect its citizens---State has the power and ability to prevent such practices as missing persons/enforced disappearances and to pass appropriate legislation to such effect---High Court observed the onus rests on the Federal Government to put an end to such illegal practices which cause nothing but heartburn and misery to the citizens whose loved ones have gone missing in some cases for years on end---Such practice greatly undermine the rule of law and the people's confidence in the State to ensure their constitutional guarantees.

Ch. Waseem Akhtar, Assistant Attorney General.

Talib Ali Memon, A.P.G.

Shamsher A. Khan Azeemi for Rangers.

Muhammad Khan Soomro, Addl. Secretary, Home Department.

Sajjad Ahmed, Law Officer, Rangers.

S.P. Shehla Qureshi.

P L D 2022 Sindh 267

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

NATIONAL BANK OF PAKISTAN---Petitioner

Versus

AUDITOR GENERAL OF PAKISTAN and 2 others---Respondents

Constitution Petition No. D-3328 of 2012, decided on 4th June, 2021.

(a) Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance (XXIII of 2001)---

----Ss. 8, 9 & 14---Constitution of Pakistan, Art. 170---Audit of National Bank of Pakistan---Auditor General, jurisdiction of---National Bank of Pakistan assailed order issued by Auditor General of Pakistan to submit record for audit---Validity---Auditor General of Pakistan is a Government organization and prime and supreme audit institution in the country for ensuring accountability and fiscal transparency and oversight in government operation---Auditor General was to audit all transactions of Federation and Provinces relating to public accounts---Petitioner/Bank could conduct an audit through a chartered accountant for satisfaction of its own private shareholders/accounts holders but once public money was involved role of Auditor General would start---Audit of accounts of Federal and Provincial Government and accounts of any authority or body established by or under the control of Federation or Provincial Government was to be conducted under Art. 170 (2) of the Constitution by Auditor General of Pakistan---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Printing Corporation of Pakistan v. Province of Sindh and others PLD 1990 SC 452; Shahida Khan v. Abdul Rehim Khan PLD 1984 SC 365; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823; Shahid Nabi Malik and others v. Chief Election Commissioner Islamabad and 7 others PLD 1997 SC 32; Salahuddin and 2 others v. Frontier Sugar Mills and Disthllery Ltds., Tokht and 10 others PLD 1975 SC 244; Sabiruddin v. Mushtaq Hussain Bhatti and 2 others PLD 1993 SC 412 and P.T.C.L and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 ref.

Sindh Rural Support Organization (SRSO) v. Federation of Pakistan and others 2018 SCMR 407; Hamid Mir and another v. Federation of Pakistan and others 2013 SCMR 1880 and Suo Motu case No. 12 of 2015 rel.

(b) Interpretation of statutes---

----Conflict in Constitution and subordinate legislation---Principle---In case of conflict between any provision of the Constitution and subordinate legislation on a subject, the Constitutional provision prevail over the latter---Subordinate legislation cannot run contrary to Constitutional provision.

Syed Qasim Ali Shah through Attorney v. Election Commission of Pakistan through Secretary and 3 others PLD 2015 Sindh 408 rel.

Ijaz Ahmed Zahid for Petitioner.

Kashif Sarwar Paracha acting Additional Attorney General along with Hussain Bohra, A.A.G.

Abdul Qadeer Ahmed, Director, Audit, Commercial Karachi.

P L D 2022 Sindh 278

Before Muhammad Shafi Siddiqui, J

SALEEM ISLAM---Petitioner

Versus

Syed ZAFAR-UL-ISLAM and another---Respondents

S.M.A. No. 394 of 2020, decided on 23rd February, 2022.

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

----Ss. 278, 300 & 372---Petition for grant of letter of administration and succession certificate----Office objection---Matter not falling in the prescribed pecuniary jurisdiction of the (Sindh) High Court---No exceptional circumstances for (Sindh) High Court to exercise concurrent jurisdiction---In the present case, after the petitioner removed an immoveable property from the list of properties mentioned in his petition, the Deputy Registrar of (Sindh) High Court submitted objections that on the exclusion of the said immovable property the (Sindh) High Court had no pecuniary jurisdiction left in the matter---Counsel for petitioner submitted that the jurisdiction of the (Sindh) High Court as well as that of the district judge in exercise of the powers under Succession Act, 1925 was concurrent in terms of section 300; that since the present matter was pending for quite some time, (Sindh) High Court could exercise its concurrent jurisdiction and proceed with the case---Held, that subject immovable property never stood in name of deceased parents of petitioner at any point of time---On the strength of an agreement of sale an attempt was made by the petitioner to include said property in the list of the immovable properties---Record reflected that a day after the present petition was filed objections regarding the original title documents were taken by the Deputy Registrar (O.S.)---Thus the petitioner was promptly informed and was very much aware that present petition was filed in the absence of title documents of an immovable property on the basis of which the pecuniary jurisdiction could be invoked by the (Sindh) High Court---However, it was also at the request of the counsel of petitioner that amended petition after excluding the subject immovable property was filed which took away the pecuniary jurisdiction of (Sindh) High Court---Concurrent jurisdiction could only be exercised in exceptional cases and any such circumstances did not exist in the present case---Office objections were sustained, as the matter did not fall under the prescribed pecuniary jurisdiction of the (Sindh) High Court and the circumstances were not such which could compel the (Sindh) High Court to exercise concurrent jurisdiction in terms of S.300 of Succession Act, 1925----Application was disposed of accordingly.

Idara-e-Noor-e-Haq's case PLD 2020 Sindh 563 distinguished.

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

----S. 15---Court in which suit is to be instituted---Concurrent jurisdiction---Scope---Section 15 of the C.P.C. provides that every suit shall be instituted in a Court of lowest grade competent to try it---Primary reason, amongst many, is that a right of appeal may be available before appellate forum, which forum is asked to exercise concurrent jurisdiction---Concurrent jurisdiction can only be exercised in exceptional cases; it could also be exercised when an appeal is being heard and orders are required to be passed as being from original court/forum, for exercise of concurrent jurisdiction.

Karachi Building Control Authority's case 1992 CLC 1904 ref.

Ms. Maria Ahmed for Petitioner.

P L D 2022 Sindh 282

Before Syed Hasan Azhar Rizvi and Rashida Asad, JJ

Messrs MURTAZA TOWN RESIDENCE SOCIETY ASSOCIATION through General Secretary and another---Petitioners

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY (NEPRA), ISLAMABAD and 2 others---Respondents

Constitution Petition No. D-1701 of 2021, decided on 4th November, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Locus standi---Representative capacity---Scope---Association of residents of housing society sought direction to Electricity Company to provide them permanent electric connections---Validity---Association could not file petition before High Court in representative capacity as it was not a Cooperative Housing Society having any interest in land or development of locality---Constitutional petition was not maintainable, in circumstances.

Erum Jafari v. KASB Bank through Manager and 10 others 2006 CLD 1370 and Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 rel.

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

----S.28 [as amended by Registration (Sindh Amendment) Act, 2013 (VI of 2014)]---Constitution of Pakistan, Arts. 9 & 199---Right to life---Electricity connections---Sale deed, place of registration---Jurisdiction---Dispute over title---Civil suit, pendency of---Petitioner was resident of housing society who sought directions for permanent electric connection---Validity---Sale deed relied upon by petitioner was executed during currency of interim orders passed in civil suit pending before High Court---False affidavit was given in the suit to procure registration of sale deed in question---Statements of officials in civil suit in question confirmed that defendants in that suit were encroachers who had conveyed title to petitioner---Revenue record declared title of land in question as fake by Board of Revenue and revenue officials were held responsible for falsifying the records who were dismissed from service---Sale deed in question was registered with Sub-Registrar having no jurisdiction over the subject property as the same fell within the jurisdiction of other Sub-Registrar---High Court declined to interfere in the matter but directed the authorities that till decision of title of subject plots/houses, temporary connections of electricity would be provided to them as the matter was already sub judice in civil suit---Constitutional petition was dismissed accordingly.

PLD 2014 Sindh 344; 2018 YLR 1391; 2001 CLC 321; 2001 CLC 252; 2010 YLR 2408; 2010 CLC 488 and 1999 SCMR 2550 distinguished.

Muntizma Committee, AL-Mustfa Colony (REGV.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others PLD 1992 Kar. 54; Democractic Workers' Union C.B.A. v. State Bank of Pakistan and others 2002 PLC 614; Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan and another 2010 PLC 306; Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan PLD 1964 Lah. 138; Kh. Muhammad Yousuf v. Kh. Abdur Rashid and others PLD 1967 Kar. 508; Muhammad Sharif and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Capt. Muhammad Iqbal v. Federation of Pakistan and another 2009 MLD 810; Habib Ullah Khan v. Election Tribunal and others 1985 CLC 2925 and Lt.-Col. (R.) Muhammad Aslam v. Defence Housing Authority (DHA) and 2 others PLD 2008 Lah. 261 ref.

Asim Iqbal, Farmanullah Khan and Syeda Khizra Fatima Chishti for Petitioners.

Ijaz Ahmed Zahid and Hashmatullah for Applicant/intervenor/ PTCL along with Raheel Zafar, Senior Manager (legal) and Rana Mehran Akram, Assistant Manager, PTCL.

Ayan Mustafa Memon and Mir Hassan Junejo for Respondent No.2/K-Electric along with Mansoor-ul-Hassan, Senior Associate Litigation, K-Electric.

P L D 2022 Sindh 304

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

MUHAMMAD SALEEM AHMED---Petitioner

Versus

INDUSTRIAL DEVELOPMENT BANK LIMITED and another---Respondents

Constitution Petition No. D-6023 of 2021, decided on 21st December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 265-K---Power of Court to acquit accused at any stage---Time of moving application---Scope---Accused assailed the dismissal of his application under S. 265-K on the ground that three of the co-accused persons having similar role were acquitted by the Trial Court but the application to his extent was dismissed for the reasons best known to the Presiding Officer of the Trial Court---Evidence of the prosecution witnesses had been recorded and the matter was fixed before the Trial Court for recording statement of accused in terms of S. 342, Cr.P.C.---Although there was no bar for an accused to file application for premature acquittal at any stage of the proceedings of the case yet the facts and circumstances of the prosecution would have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage---Special or peculiar facts and circumstances of a prosecution case might not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under S. 342, Cr.P.C.---Constitutional petition was dismissed, in circumstances.

1994 SCMR 798; 2000 SCMR 122; 2002 SCMR 1076 and PLD 2008 Kar. 567 distinguished.

State v. Abdul Rehman 2005 SCMR 1544 fol.

Hasan Arif for Petitioner.

Masood Anwar Ausaf for Respondent No.1

Khaleeq Ahmed, D.A.G.

P L D 2022 Sindh 308

Before Adnan-ul-Karim Memon, J

BAKAULLAH KHAN SAMOO---Petitioner

Versus

PROVINCE OF SINDH through Home Department and 9 others---Respondents

Constitution Petition No. S-275 of 2020, decided on 28th August, 2020.

(a) Constitution of Pakistan---

----Art.199---Habeas corpus---Power under Art.199 of the Constitution---Scope---Missing person---Scope---Habeas corpus writ is to be issued only when the person concerning whose liberty, the petition has been filed, is illegally detained by respondents in the petition---On the basis of a habeas corpus petition the power under Art. 199 of the Constitution is not to be exercised for tracing a missing person engaging an investigation agency empowered to investigate a case under the Code of Criminal Procedure---Investigation, if is in progress, is to be overseen by the criminal court.

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

----S. 154---Information in cognizable cases---Missing person report---Scope---When missing report is made, the police officials enter only a Daily Diary Report and not an FIR---Such practice is deprecated by the High Court as such procedure is not correct and justified---Whenever any report is made regarding missing of any individual, immediately an FIR should be registered.

Ashar Majeed Khokhar for Petitioner.

Gulzar Ali Almani for Respondents Nos. 7 and 10.

P L D 2022 Sindh 310

Before Mohammad Ali Mazhar and Amjad Ali Sahito, JJ

AYAZ ALI RAJPAR and another---Petitioners

Versus

ADVOCATE GENERAL SINDH and 3 others---Respondents

C. Ps. Nos. D-6592 and 6714 of 2020, decided on 13th August, 2021.

Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 25---Constitution of Pakistan, Arts. 199 & 204--- Election dispute---Contempt proceedings---Maintainability---Interim order merging in final order---Recounting of votes---Petitioner invoked contempt proceedings against Advocate General of Sindh for non-compliance of interim order passed by High Court---Plea raised by contemnor (Advocate General) was that interim order passed by High Court was finally merged into final order passed eight days later and there was no direction restraining him from exercising his powers---Validity---Contempt proceedings cannot be initiated at desire or whim of a litigating party---Before proceeding against alleged contemnor Court has to be satisfied as to whether alleged contemnor has done any act coming within the mischief of law of contempt---Contempt lies where there is deliberate act on part of contemnor which within judicial conscious of the Court itself falls within the meaning of a contempt---Interim order always merges in final order and does not survive after final verdict has been announced in the matter---Once name of winning candidate was declared and notified in gazette, any objection to Election could not be gone into by High Court in its Constitutional jurisdiction---Parties were left to seek remedy at the proper forum---Petitioner was at liberty to file proper application before Returning Officer for recounting of votes---Application was dismissed, in circumstances.

2002 CLC 310; 2005 CLC 650; 2006 MLD 43; 2002 SCMR 1632; PLD 2006 Lah. 29; 2017 MLD 1209; 2007 CLC 1275; 1986 CLC 1284; PLD 2008 SC 663; PLD 1960 W.P. 751; 2008 CLD 149; PLD 2003 Lah. 486; 1980 SCMR 89; 1991 SCMR 2457; PLD 2019 Sindh 624; PLD 2018 SC 538; 2015 SCMR 321; PLD 2008 SC 663; PLD 1958 SC 104 and 2013 CLC 792 ref.

Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389 rel.

Abid S. Zuberi for Petitioner (in C.P. No. D-6592 of 2020).

Salahuddin Ahmed for Petitioner (in C.P. No.6714 of 2020) along with Rizwan Ahmed, Nadeem Ahmed and Samil Malik Khan.

Salman Talibuddin, Advocate General Sindh.

Ms. Leela Kalpana Devi, A.A.G.

Ayaz Hussain Tunio, Advocate/Petitioner (in C.P. No.D-6714 of 2020).

Ayaz Ali Rajper, Advocate/Petitioner in person (in C.P. No.D-6592 of 2020).

P L D 2022 Sindh 319

Before Nadeem Akhtar, J

CHINA MOBILE PAKISTAN LIMITED (CMPAK LIMITED/ZONG) through Legal Advisor (South) and another---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information, Technology and Telecommunication and 3 others---Respondents

Suit No. 950 of 2021, decided on 8th November, 2021.

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

----O. VII, Rr. 10 & 11---Term 'cause of action'---Scope---'Cause of action' means totality of material facts which are necessary for plaintiff to allege and prove in order to succeed---Cause of action consists of every fact which if traversed would be necessary for plaintiff to prove in order to support his right to judgment and if not proven gives defendant a right to judgment---Expression 'cause of action' means bundle or totality of essential facts upon which plaintiff rests its claim against defendant---Cause of action is justification for instituting suit by plaintiff against defendant for seeking relief prayed for in the suit---Bundle or totality of essential facts, constituting cause of action, must be clearly pleaded in plaint because only facts stated in plaint are to be considered to determine whether such facts constitute cause of action or not---Plaintiff is required to show through his plaint that not only his rights has been infringed by defendant in a manner to entitle him to a relief against defendant but also when he approached Court, right to seek such relief was in existence---If cause of action accrued at more than one place or within territorial jurisdiction of more than one Court, suit can be instituted in any such Court having territorial jurisdiction in respect of such places---All such Courts have concurrent jurisdiction to entertain and adjudicate the suit---Question of maintainability of suit with reference to territorial jurisdiction vis-à-vis cause of action accrued to a party for institution of such suit is to be judged only on the basis of averments made in plaint of that suit---Only prayer made in plaint and facts pleaded therein are to be considered while applying Rr. 10 & 11, O. VII, C.P.C.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 20 (c) & O. VII, R. 10---Suit for declaration and injunction---Return of plaint---Territorial jurisdiction---Cause of action---Plaintiff company assailed at place "K" decision made by Federal Government imposing some conditions---Defendant authorities sought return of plaint to be filed in Court at place "I" having territorial jurisdiction over the matter---Validity---In addition to averments and prayer made in plaint, Court had to see dominant object of filing of suit---Facts relating of original interfered spectrum band, consequences of alleged interference therein, grant of additional frequency spectrum band F-7 and decision of Federal Government to withdraw additional spectrum F-7, pleaded in plaint were to be examined collectively for determining cause of action and places of its accrual---Such examination of averments and prayer made in plaint showed that cause of action alleged therein had accrued all across the country including place "K"---Institution of suit before High Court as place "K" was justified under S.20(c), C.P.C.---Application was dismissed, in circumstances.

Province of Sindh v. Haji Razzaq and others PLD 2017 SC 207; Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others 1998 SCMR 2389; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; WAPDA and 2 others v. Mian Ghulam Bari PLD 1991 SC 780; Muhammad Naved Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176; Rimpa Sunbeam Co-Operative Housing Society Ltd. through Managing Director v. Karachi Metropolitan Corporation through Administrator PLD 2006 Kar. 444; Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha and others 2005 MLD 1506 and Dr. Zahoor Ahmed Shah v. Pakistan Medical and Dental Council through Secretary and another 2005 MLD 718 distinguished.

Searle IV Solution (Pvt.) Limited and others v. Federation of Pakistan and others 2018 SCMR 1444; The Federal Government through Secretary Interior Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR Lahore and others 2017 SCMR 118; Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42; Qazi Abdul Jalil v. N.W.F.P. Forest Development Corporation through Chairman and others 2010 SCMR 1933; Province of Punjab through District Collector, Mianwali and others v. Mehmood-ul-Hassan Khan 2007 SCMR 933; State Life Insurance Corporation of Pakistan through its Chairman and another v. Director General Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 177; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Said and others v. Fazal Hussain and others PLD 1959 SC (Pak.) 356; Muhammad Usman Memon v. D.C.O. Hyderabad and others 2021 MLD 200; Muhammad Azeem v. Mst. Rani through Special Attorney and 2 others 2020 YLR 1932; Safe Mix Concrete Limited through Company Secretary v. Pakistan through Secretary (Revenue Division) and 4 others 2020 CLC 602; Mrs. Humera Imran through Attorney v. Government of Pakistan, Ministry of Defence and Production through Secretary and 3 others PLD 2019 Sindh 467; Telecard Limited through representative v. Federation of Pakistan through Secretary and 2 others 2019 MLD 1053; Habib Bank Limited and another v. Haji Riaz Ahmed and another 2017 CLC 1671; Miss. Ayyan Ali v. Federation of Pakistan and others 2017 PCr.LJ 920; Messrs MIA Corporation (Pvt.) Limited v. Pakistan PWD and others PLD 2017 Isl. 29; Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others 2016 CLC 1534; Ms. Namoos Zaheer v. Azfar Hussain and another 2016 CLC 1425; Karachi Electric Supply Company through Authorized Officer v. Karachi Water and Sewerage Board through Managing Director and 3 others 2015 YLR 967; Gen. (Retd) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; Muhammad Nawaz Khan through legal heirs and others v. Province of Punjab through Collector and others 2014 YLR 1222; Haji Riaz Ahmed through attorney and another v. Messrs Habib Bank Limited through President and 2 others 2012 CLD 491; Normeen Shafi v. Amjad Shafi and 5 others PLD 2011 Kar. 416; Digital World Pakistan (Pvt.) Limited through Chief Executive v. Samsung Gulf Electronics FZE through Managing Director/Chief Executive Officer and another PLD 2010 Kar. 274; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Minisry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha and others 2005 MLD 1506; Muhammad Tariq Mehmood and 2 others v. Anjuman Kashmiri Bardari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335; Pfizer Limited and another v. Wilson's Pharmaceuticals 2002 CLD 1653; Messrs Lucky Cement Limited v. The Central Board of Revenue and others PLD 2001 Pesh. 7; Haji Hafeezuddin and others v. Lucas Service Pakistan Limited PLD 2000 Kar. 58; Syed Muhammad Anwar Tobal v. Messrs Bangladesh Shipping Corporation 1991 CLC 473; West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. PLD 1964 (W.P.) Kar. 11; Abdul Ghafoor and Brothers Contractors v. Natural Food and Beverage (Pvt.) Ltd. and 2 others 2001 YLR 3243; Messrs Brady and Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 and Bank of Credit and Commerce and others v. Asrar Hassan and others 2007 SCMR 852 ref.

Salman Akram Raja for Plaintiffs.

Muhammad Omer Soomro along with Shah Bakht Pirzada for Defendants Nos. 3 and 4.

Muhammad Ahmer, Assistant Attorney General for Pakistan for Defendants Nos. 1 and 2 along with (1) Muhammad Khurram Siddiqui, Director Law PTA, (2) Ali Akbar Sahito, Dy. Director Law PTA and (3) Barrister Aamir Ali Qureshi, Assistant Director Law PTA.

P L D 2022 Sindh 336

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

BADAR EXPO SOLUTIONS through Managing Director---Petitioner

Versus

FEDERATION OF PAKISTAN through Chief Executive Trade and Development Authority of Pakistan and 12 others---Respondents

Constitution Petition No. D-3216 of 2021, decided on 14th October, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Decisions of the Executive---Principle---Courts do not sit in appeal over decisions of executive authorities or instrumentalities---Constitutional Court is essentially concerned with only lawfulness of a decision and not its soundness---Allegations of illegality, irrationality and/or procedural impropriety constitute grounds for a Court to assume jurisdiction---Decision making process comes under inquiry and that does mean that aggrieved person can by-pass adjudicatory process prescribed under statute.

Maa Binda Express Carrier v. North East Frontier Railway (2014) 3 SCC 760; Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 and Raunaq International Ltd. v. IVR Construction Ltd. (1999) 1 SCC 492 rel.

(b) Public Procurement Rules, 2004---

----R. 36(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Public procurement---Open competitive bidding---Single Stage---Two Envelope Procedure---Petitioner company was aggrieved of bid invited for event management services to be rendered during Expo-2020---Validity---Held, there was no cogent material from which it could be gathered or ascertained that procurement proceedings were marred by any procedural lapses on the part of authorities or Grievance Redressal Committee---Petitioner failed to make out any case as to arbitrariness or contravention of Public Procurement Rules, 2004, which could require remedy by way of judicial review---Bare allegations that proper right of audience was not affording in the matter by Grievance Redressal Committee was not a factor that could be agitated by petitioner for seeking a writ to set aside procurement process---Element of public interest was lacking from challenge mounted by petitioner company---High Court declined to interfere in the matter keeping in view the scope of Request for Procurement and time sensitive nature of works to procure any undue interference that could hamper if not cripple national participation in the Expo---Constitutional petition was dismissed, in circumstances.

Anjum Hameed, Javed Akhtar Rind and Ali Ahmed for Petitioner.

Khaleeque Ahmed, D.A.G. for Respondent No.1.

Syed Abrar Ahmed Bukhari for Respondents Nos. 2 to 5.

Nemo for Respondents Nos. 6 to 8 and 13.

Respondent No.9: Public Procurement Regulatory Authority, Pakistan.

Maria Ahmed for Respondent No.12.

P L D 2022 Sindh 354

Before Salahuddin Panhwar, J

SALAH UDDIN---Applicant

Versus

The STATE and 3 others---Respondents

Criminal Revision Application No. 20 of 2021, decided on 15th February, 2021.

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

----Ss. 193 & 195---Criminal Procedure Code (V of 1898), S. 340---False evidence---Giving or fabricating false evidence with intent to procure conviction of offence---Right of person against whom proceedings are instituted to be defended and his competency to be a witness---Scope---Marked difference exists between objective(s) of Ss.193 & 195 of P.P.C.---Section 193, P.P.C. speaks of all those who give false evidence for purpose of being used thereof at 'any stage of a judicial proceeding' while the later speaks about those who give false evidence with an intention to get any person 'convicted' for an offence which, per law, is not 'capital'---Section 195, P.P.C., is not applicable to the accused because an accused never acts as a witness for prosecution unless wears the status of 'approver'---Section 340 of Cr.P.C. does recognize the competency of accused to be a witness because purpose thereof is confined to give evidence on oath in 'disproof of the charges or allegations', hence can't be given the status of a witness in support of allegations (prosecution witness)---Such however, alone is not sufficient to allow an accused to cause prejudice to administration of justice which, never, appreciates false witnesses or false evidences, therefore, if he makes a false statement, he will be liable to be prosecuted under S. 193, P.P.C.

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

----S. 191---Giving false evidence---Scope---If a false statement is a result of some bona fide belief or bona fide mistake, it would be sufficient for causing a cut at roots of the charge.

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

----S. 195---Prosecution for certain offences---Scope---Procedure for trial of offences against public justice mandatorily requires the Court itself to become complainant, therefore, it should always be the judicial conscious of the Court concerned alone that whether such offence is committed or not---Parties to the judicial proceedings, at the most, can point out happening of the offence only but this would not allow such party to challenge the order of the Court concerned if it (concerned court) does not find the offence to have been committed.

Shahid Orakzai v. Pakistan Muslim League 2000 SCMR 1969 rel.

P L D 2022 Sindh 359

Before Kausar Sultana Hussain, J

IMAMUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-120 of 2020, decided on 29th March, 2021.

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

----S. 345---Compounding offences---Non-compoundable offences---Scope---If the main offence is compoundable and parties have compromised against such offence, then rest of the offences are to be treated as compromised though under statute same are not compoundable.

2007 MLD 1269 and PLD 2008 Kar. 420 ref.

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

----S. 345---Compounding offences---Scope---Where compromise is likely to promote harmony between the parties and peace in the society, then there is no impediment legal or otherwise in accepting the compromise between the parties.

Hameedullah Dahri and Sher Muhammad Dahri for Appellant.

Ms. Sana Memon, Assistant P.G. Sindh.

P L D 2022 Sindh 362

Before Zulfiqar Ahmad Khan, J

DANISH ELAHI and 2 others---Plaintiffs

Versus

MARIAM KAMRAN and 3 others---Defendants

Suit No. 758 of 2020 and C.M.A. No. 5467 of 2020, decided on 14th December, 2021.

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

----Ss.140, 141 & 145---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877) Ss.12, 42, 54---Suit for specific performance of agreement, declaration, injunction, recovery of money and damages---Interim injunction, refusal of---Surety's rights---Implied promise to indemnify---Pre-conditions---Principle of beneficium ordinis seu excussionis---Scope---Plaintiffs under a family agreement, voluntarily paid liabilities of deceased predecessor-in-interest of defendants towards Bank and different individuals---Plaintiffs claimed that after paying the debts, they stood in place of creditors and entitled to same rights including any pledge/lien or other security over any property which financial institutions/creditors held before receiving their payments---Validity---Cycle of settlement of deceased debtor's obligations by surety was blessed with statutory sanctions under Ss. 140, 141 & 145 of Contract Act, 1872, only on happenings of either (a) guaranteed debt had become due, or (b) principal debtor had defaulted in performing a guaranteed duty---It was only upon happening of any of the two pre-requisites that S.140 of Contract Act, 1872, could permit surety to make payment or perform all that he was liable for---Upon such payment/performance, surety was "invested with" all rights which creditor had against principal debtor---Principle of beneficium ordinis seu excussionis which meant that benefit was to protect the surety by compelling creditor to first proceed against principal debtor---Such legal principle ensured that creditor must first of all should obtain all that's possible from debtor's estate before proceeding against surety---Acts of plaintiffs aimed to throttle livelihood of defendants who were legal heirs of deceased debtor---High Court declined to put legal heirs of deceased debtor to caprice of plaintiffs, which could be an act of offensive to dignity of human---Family Agreement was to upkeep family's honour which was a sophisticated form of honor killing, tossing the widow (alongside her children) to the dust of injustice---Plaintiff failed to make out a prima facie case, neither balance of convenience was in their favour, nor they would suffer any irreparable losses as their claim was only for money---Application was dismissed, in circumstances.

PLD 2018 SC 322; PLD 2013 SC 641; PLD 1973 Lah. 77; PLD 2011 SC 241; 2017 CLD 1752; 2015 CLD 848; PLD 1959 (W.P.) Karachi 465; 2017 CLD 1497; 2000 YLR 2407; PLD 2018 Sindh 303; Muhammad Sattar and others v. Tariq Javaid 2017 SCMR 98; Alavi Sons Ltd. v. The Government of East Pakistan and another PLD 1968 Kar. 222 and Davies v. London Provincial, Marine Insurance 1878 - 8 CHD 469 ref.

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

----Ss. 140, 141 & 145---Subrogation, right of---Object, purpose and scope---Right of a volunteer---Law permits a person to be substituted in place of another so as to have all rights and obligations pertaining to lawful claim, demand, or right against third party under right of subrogation---One can satisfy his loss that is created by wrongful act or omission of another person by stepping into the shoes of another and recovering on the claim from wrongdoer---Subrogation is not free from judicial control---In statutory or legal subrogation it is an established position that right of subrogation is not applicable to "volunteer" who pays debt of another at the back of the debtor---When a person pays debt of another he is called a "volunteer" and when a person pays debts of another by mistake, he is in the same position as that of a volunteer---Person claiming to be equitably subrogated to the rights of a secured creditor must satisfy the prerequisites or conditions: (i) Payment must be made by subrogee to protect his own interest; (ii) Subrogee must not have acted as a volunteer; (iii) Debt paid must be one for which subrogee was not primarily liable; (iv) Entire debt must have been paid; and (v) Subrogation must not work any injustice to rights of others.

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

----Ss. 140, 141 & 145---"Volunteer"---Rule of subrogation, invoking of---Principle---"Volunteer" includes a person who makes payment upon request or as a surety, or under some compulsion---Such person cannot invoke rule of subrogation successfully without a contract of subrogation, unless fraud, mistake or some other consideration is evident.

(d) Maxim---

----Beneficium ordinis seu excussionis---Scope---Principle requires creditor to first proceed against principal debtor.

Haider Waheed and Ahmed Masood for Plaintiffs.

Ravi R. Pinjani, Hamza Hussain Hidayatallah and Ghulam Akbar Lashari for Defendants.

Ms. Heer Memon for the Intervener/Bank Al-Falah.

P L D 2022 Sindh 378

Before Muhammad Shafi Siddiqui, J

TENEDOS DENIZCILIK VE TIC. LTD. through Attorney/Representative---Plaintiff

Versus

MAKHAMBET and another---Defendants

Admiralty Suit No. 2 of 2020, decided on 4th March, 2022.

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

----S. 3(2)(m)---Civil Procedure Code (V of 1908), Ss.11, 13 & 44-A---Suit for recovery of claim---Res judicata, principle of---Applicability---Foreign judgment---Plaintiff sought recovery of its claim under admiralty jurisdiction---Defendant resisted the claim on the ground that the matter in issue had already been adjudicated and decided in a foreign Court---Validity---Conclusiveness of a judgment was determined under S.13, C.P.C., subject to conditions as structured therein whereas its executability was under S.44A, C.P.C.---If judgment was conclusive for its implementation and execution, then it was conclusive for giving effect to doctrine of res judicata, provided it had crossed prerequisites of S.11, C.P.C.---Such was plaintiff's choice not to enforce foreign judgment in terms of Ss.13 & 44A, C.P.C., as he opted to initiate fresh proceeding for recovery of same claim---Provision of S. 11, C.P.C. was universal doctrine so it did not matter if judgment was of a foreign Court or of a Court beyond territorial limits of High Court---Subject claim was a tried and adjudicated issue (within competent jurisdiction) so principle of res judicata was applied---No legislation was enacted contrary to acceptance of such rule except as provided in S. 11, C.P.C.---Prima facie case was not made out and suit itself suffered under doctrine of res judicata---Suit was dismissed, in circumstances.

K. B. Walker v. Mrs. Gladys AIR 1935 Rangoon 284 ref.

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

----S. 11---Maxim "res judicata pro veritate accipitur"---Res judicata, doctrine of---Scope---Doctrine ofres judicata is conceived unanimously in general interest or public policy which requires that all litigation must come to an end at a point of time and parties must live in peace---Old Latin maxim "res judicata pro veritate accipitur" is actively enforceable in a case when a decision has already been rendered by a Court of competent jurisdiction on a matter in issue between same parties and decided on merit---Such issue should not be allowed to be agitated again before Courts of law as rule of res judicata prevents any party to such suit/ proceedings which has been agitated upon by competent Court, from disputing or questioning decision on merit in subsequent litigation.

Hari Singh v. Muhammad Said AIR 1927 Lahore 200; Syed Jaffer Abbas v. Habib Bank Ltd. PLD 2014 Sindh 209; Secretary Local Government v. Muhammad Tariq Khan 2021 SCMR 1433; Sawta Singh v. Ralla Sugar (1919) PR 14; AIR 1973 Madras 141 1972 2 MLJ 468; International Woolen Mills v. Messrs Standard Wool (UK) Ltd. AIR 2001 SC 2134 and R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid AIR 1963 SC 1 rel.

Ishrat Zahid Alvi for Plaintiff.

Aga Zafar Ahmed for Defendants.

P L D 2022 Sindh 388

Before Adnan Iqbal Chaudhry, J

MENA ENERGY DMCC---Decree-Holder

Versus

HASCOL PETROLEUM LIMITED---Judgment-Debtor

Foreign Execution Application No. 51 of 2019, decided on 12th October, 2021.

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

----S. 13(b)---Words "merits of the case"---Scope---Words "merits of the case" in S.13(b), C.P.C., are not intended to require discussion of evidence in a case where defendant accepts liability and concedes judgment.

Satya Narain v. Balachand AIR 1955 Rajasthan 59 rel.

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

----Ss. 13, 44-A, O. XXI, Rr. 46 (2) & 54 (2)---Foreign Exchange Regulation Act (VII of 1947), S.5---Execution of foreign decree---Objections---Money decree or settlement in Court---Determination---Permission of State Bank of Pakistan---Judgment debtor resisted execution of foreign decree on the plea that foreign judgment was not a money decree and was in fact a Settlement Agreement between parties---Validity---Foreign decree did not require payment to be made as per Settlement Agreement but it was a money decree---Execution was brought to enforce money decree and not Settlement Agreement---Commitment of Judgment Debtor under Settlement Agreement that it would obtain State Bank of Pakistan approval, was no impediment to Execution of foreign decree---Provisions of Foreign Exchange Regulation Act, 1947 were not ignored by foreign decree but only that Decree Holder was left to law that was applicable to enforce the decree---When there was no amount available for remitting to Decree Holder abroad, provisions of S. 5 of Foreign Exchange Regulation Act, 1947 were to be triggered---Recovery of amount was sought by attachment and sale of local assets of Judgment Debtor, which proceeds, if any, were to materialize in Pakistani Rupee with Executing Court---Decree Holder to obtain approvals required under Foreign Exchange Regulation Act, 1947 read with Protection of Economic Reforms Act, 1992 for converting and transferring that money abroad---Foreign decree was conclusive between parties within the meaning of S. 13, C.P.C. and was executable under S. 44-A, C.P.C.---High Court dismissed objections of Judgment Debtor---High Court directed that order of attachment of movables assets of Judgment Debtor would be transmitted to companies and Banks concerned as per O.XXI, R. 46(2), C.P.C.---High Court directed those companies and Banks to report compliance to High Court---High Court further directed relevant compliance of O.XXI, R. 54(2), C.P.C., and attachment order of immovable properties was to be communicated to concerned authorities---Execution application was allowed, in circumstances.

Rimpa Sunbeam Cooperative Housing Society v. Karachi Metropolitan Corporation PLD 2006 Kar. 444; Gudemetla China Appalaraju v. Kota Venkata Subba Rao AIR (33) 1946 Madras 296; Peer Dil v. Dad Muhammad 2009 SCMR 1268; Abdul Wahid v. Abdul Ghani PLD 1963 Kar. 990; Ghulam Hussain v. Fatima Bibi PLD 1975 Lah. 95; Montgomery Flour and General Mills v. MCB Bank Ltd. 2015 CLD 1590; Samba Bank Ltd. v. Syed Bhais 2013 CLD 2080; Grosvenor Casino Ltd. v. Abdul Malik Badruddin 1997 SCMR 323; Muhammad Ramzan v. Nasreen Firdous PLD 2016 SC 174; R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid AIR 1963 SC 1 and Karachi Gas Company Ltd. v. Hasham Issaq PLD 1981 Kar. 197 ref.

Mohammad Abdulla v. P.M. Abdul Rahim AIR 1985 Madras 379 and Mena Energy DMCC v. Hascol Petroleum Ltd., [2017] 1 Lloyd's Law Reports 607 ref.

Ijaz Ahmed Zahid for Decree Holder.

Arshad M. Tayebaly for Judgment Debtor.

P L D 2022 Sindh 403

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

RASHEED A. RAZVI---Appellant

Versus

Mrs. SAKINA SULEMAN and another---Respondents

H.C.As. Nos. 85 and 92 of 2021, decided on 14th October, 2021.

Sindh Chief Court Rules (O.S.)---

----R.10---Constitution of Pakistan, Art. 270-AA (3) (b)---Retired Judge of High Court---Practice as lawyer in the same High Court---Special Bench, constitution of---In suit for possession, injunction, recovery of mesne profit and damages, objection was raised on appearance of advocate for defendant who was a retired judge of High Court---Single Judge of High Court referred the matter to Chief Justice of High Court to constitute Special Bench to decide the issue---Intra Court Appeal was filed by the advocate of defendant in his personal capacity---Validity---Reference to the provisions of R. 10 of Sindh Chief Court Rules (O.S.), whereby Single Judge of High Court had referred the matter for constituting special Bench to examine the issue of eligibility of appellant / advocate for defendant, to appear before High Court as counsel---Rule 10 of Sindh Chief Court Rules (O.S.) did not allow formulation of a question, which was neither subject matter of the suit nor part of issues framed by Court---No evidence was recorded on questions so formulated which otherwise required formulation of entirely separate issues of facts and law both---Division Bench of High Court set aside order passed by Single Judge of High Court and remanded the matter for decision on merits as per pleadings of parties---Intra Court Appeal was allowed in circumstances.

Mr. Justice (Retired) Shahid Anwar Bajwa v. S. M. Asif and others PLD 2018 SC 337; Gul Taiz Khan Marwat v. Registrar, Peshawar High Court PLD 2021 SC 391; Mian Irfan Bashir v. The Deputy Commissioner (D.C), Lahore and others PLD 2021 SC 571; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Pakistan through the Secretary, National Assembly v. (1) Khondkar Ali Afzal and (2) Speaker, National Assembly of Pakistan PLD 1960 SC 1 and Chief Executive Officer, Multan Electric Power Company Ltd, Khanewal Road, Multan v. Muhammad Ilyas and others 2021 SCMR 775 ref.

Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others PLD 2004 Kar. 492; Mian Irfan Bashir v. The Deputy Commissioner (D.C), Lahore and others PLD 2021 SC 571; Prof. Muhammad Usman and others v. Punjab University Academic Staff Association 1991 SCMR 320 and Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900 rel.

Anwar Mansoor Khan and Salahuddin Ahmed along with Tahmasp Razvi, Abbas Rasheed Razvi, Umaimah Anwar Khan, Haider Imam Rizvi, Syed Ahsan Imam, Farhatullah, Zia-ul-Haq Makhdoom, Jeehand Khan, Iqbal Ansari and Assadullah Shar for Appellants.

Ikram Ahmed Ansari along with Rehan Ansari for Respondent No.1.

Salman Talibuddin, Advocate General Sindh along with Jawwad Dero, Additional Advocate General Sindh for Respondents.

Mukhtiar Ahmed Junejo, Assistant Attorney General for Respondents.

P L D 2022 Sindh 423

Before Zafar Ahmed Rajput, J

Syed TARIQ MUSTAFA---Plaintiff

Versus

TAUQIR JAHAN MUSTAFA and others---Defendants

Suit No. 419 of 2014, decided on 26th May, 2021.

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

----S. 2(2)---Decree---Types---In general there are three types of decrees (i) Preliminary decree, (ii) Final decree, and (iii) Partly preliminary and partly final decree---Decree is final decision given by Court after determining rights of parties in a dispute.

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

----O.XX, Rr.12, 13, 14, 15, 16, 18 & O.XXXIV, Rr. 2, 3, 2, 5, 7 & 8---Preliminary decree---Court, jurisdiction of---Type of decree---Determining factors---When preliminary decree is passed, Court does not become functus officio and retain control over action even after decree---Suit remains pending till such time a proper final decree is passed and right of parties are determined---If a question arises as to whether a decree is preliminary or final, it has to be decided by a reference to decree itself---Decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of, it is final where such adjudication completely disposes of the suit.

Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande AIR 1995 SC 1212; Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar. 527 and Syed Abdul Majid v. Chaudhry Manzoor 1987 CLC 617 rel.

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

----O.XX, R.13 & O.XXIII, R.3---Suit for administration---Preliminary decree and consent decree---In suit for partition earlier a preliminary decree was drawn and in compliance of that order Official Assignee was appointed as administrator of properties left by deceased owner---Thereafter a settlement decree was drawn in terms of settlement reached between the parties and the same was forwarded to Official Assignee for further compliance---Effect---Direction of Court for "further compliance" denoted that further proceedings i.e. transfer of suit property and distribution of sale proceeds amongst legal heirs of deceased in accordance with Sharia, were required to be taken effect before the suit could be completely disposed of---Compromise decree in continuation of earlier preliminary decree embodying terms of compromise as its part in the suit for administration, was in the nature of preliminary decree and it was required to be made final in due course---No execution application was required to be filed by parties to execute the later decree, in respect thereof Court had already directed Official Assignee for compliance of that decree---Application was allowed accordingly.

Sohail Ahmed Rana v. Munir Ahmed Rana and 3 others 2019 CLC Note 7 and Muhammad Talib v. Muhammad Sarwar Naz and another 2019 CLC 623 ref.

Phoolchand v. Gopal Lal AIR 1967 SC 1470; Ganduri Koteshwaramma v. Chakiri Yanadi 2011 9 SCC 788; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291 and Nutan Chandra Mahajan v. Srimati Charu Bala and others PLD 1965 Dacca 557 rel.

Khawaja Shams ul Islam and Shahzad Mehmood for Plaintiff.

Asim Iqbal and Farmanullah Khan for Defendants Nos.2, 4 and 5.

Muhammad Nouman Jamali, for Defendant No.3.

Masood Ahmed for Defendant No.6 (KDA).

Chaudry Wasim Iqbal, Official Assignee.

P L D 2022 Sindh 430

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

Dr. MUHAMMAD ASIF OSAWALA---Petitioner

Versus

Mrs. QAMAR-UN-NISA HAKRO through Attorney and another---Respondents

C.P. No. D-2753 of 2021, decided on 14th February, 2022.

(a) Sindh Consumer Protection Act, 2014 (XVII of 2015)---

----S. 2(q)---Term "service"---Scope---Definition of "service" as per S.2(q) of Sindh Consumer Protection Act, 2014, can be split into different parts---First and inclusionary part defines a service to generally include provision of any kind of facilities, then specifically envisaging provision of advice or assistance, such as the provision of medical, legal or engineering services---Exclusionary part omits rendering of any service under a contract service or a service, the essence of which is to deliver judgment by a Court of law or Arbitrator.

(b) Jurisdiction---

----Exclusion of---Principle---Exclusion of jurisdiction of Court or Tribunal cannot be readily inferred---Exclusion of jurisdiction should be explicit---Jurisdiction may be excluded by necessary implication if there are clear unambiguous indicia or determining parameters in statute governing establishment, duties, functions and powers of Court or Tribunal.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of Prohibition---Scope---Writ of Prohibition cannot be granted except in a clear case of want of jurisdiction in Court whose action is sought to be prohibited---To warrant issue of Writ of Prohibition a petitioner must clearly show that an inferior Court is set to proceed in a matter over which it has no jurisdiction.

(d) Sindh Consumer Protection Act, 2014 (XVII of 2015)---

----Ss. 2 (q), 13, 14, 29 (4) & 36---Sindh Healthcare Commission Act, 2013 (VII of 2014), S. 29---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art. 199---Medical negligence---Forum---Jurisdiction---Petitioner was medical practitioner and respondent filed complaint against him before Consumer Court alleging medical negligence---Consumer Court declined to reject the complainant---Petitioner's contention was that Consumer Court lacked necessary expertise and it was Healthcare Commission that was to make assessment in that regard in view of standards envisaged under Sindh Healthcare Commission Act, 2013, and for the jurisdiction of Consumer Court to be triggered/attracted there had to be a prior determination of culpability on the part of the practitioner by that quarter---Validity---Ouster of jurisdiction in terms of a provision in special law could at the best operate to the extent of a subject co-extensive to powers of forum under that enactment---Scope of S.29 of Sindh Healthcare Commission Act, 2013, was to be construed accordingly with reference to the powers of the Commission---For a claim for medical/clinical negligence to be established, a medical practitioner was to be found to have breached a duty of care to a patient, who in turn had suffered injury as a result of that breach---Demonstrating that a doctor breached duty of care was the first major hurdle in any negligence case but such was not always clear cut---Scope exists for genuine differences of opinion when it had come to diagnosis and treatment---Liability claims for defective services, as envisaged under S.13 of Sindh Consumer Protection Act, 2014, would similarly entail a breach of a duty to be determined with reference to the parameters laid down in S.14 of Sindh Consumer Protection Act, 2014, where quantum of damages, if any, would be circumscribed by restriction imposed in terms of S.15 of Sindh Consumer Protection Act, 2014---Provision of S.14 Sindh Consumer Protection Act, 2014, did not require prior determination to that effect be made by Commission for Consumer Court to be able to proceed on a medical negligence claim---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Dr. Riaz Qadeer Khan v. Presiding Officer PLD 2019 Lah. 429; Bolam v. Friern Hospital Management Company [1957] 2 All ER 118 and Bolitho v. City and Hackney Health Authority (1997) ref.

Kashif Hanif for Petitioner.

Rajesh Kumar Khagaija for Respondent No.1.

Abdul Jaleel Zubedi, Assistant Advocate General, Sindh for Respondent No.2.

P L D 2022 Sindh 440

Before Muhammad Iqbal Kalhoro, Shamsuddin Abbasi and Adnan Iqbal Chaudhry, JJ

AMIR AKBER KHAN and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Constitutional Petitions Nos. D-1914 of 2020, D-1911, D-1912, D-1991, D-2357, D-2500 of 2017, D-5429, D-6336, D-6387 of 2018, D-3677 of 2019, D-1543, D-1655, D-2163 and D-5802 of 2020, decided on 26th April, 2021.

Per Muhammad Iqbal Kalhoro, J.; Adnan Iqbal Chaudhry and Shamsuddin Abbasi, JJ. disagreeing - [Minority view]

(a) Interpretation of Constitution---

----Scheme of Constitution---Trichotomy of powers---Scope---Constitutional scheme is based on trichotomy of powers shared between the Legislature, the Executive and the Judiciary---Each has its distinct and separate role to play and to act as a check and balance on the others while operating within its own defined sphere of power.

(b) Interpretation of statutes---

----Duty of Court---Principle---If a statute has expressly provided for something without any ambiguity and is being applied accordingly, there would hardly be any question of interpreting the same by the courts---Role of the Judiciary of interpretation of a statute or any provision thereof arises only when it is to a certain extent either unclear or vague or uncertain or is prima facie opposed to the Constitution---Effect has to be given to the intent of framers of law and of people adopting it---To interpret what does not need to be interpreted is not permissible---When it is found that background of a certain provision is such that intended meaning is different than words of a provision seem to convey, the courts intervene and interpret the same as per intent of the Legislature---Courts have absolutely no authority or power to substitute their views for those intended by the Legislature on any ground which may include their reservation about a particular law.

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

----Ss. 18(e) & 24(a)---Custody of accused---Object, purpose and scope---Custody of accused in investigation is mainly sought for collection of evidence from him, which otherwise he is not willing to offer or produce or which he may otherwise attempt to tamper with---In trial, custody of accused, subject to law including bail provisions, is on the grounds of public policy, such as to ensure fair trial, or to prevent possibility of commission of further offence by accused. [Minority view]

Abdul Shakoor v. The State and 5 others PLD 1987 Lah. 225 rel.

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

----S. 17(c)---Words "follow such procedure as it may deem fit in the circumstances of a case"---Scope---Said words do not signify a permission to Accountability Court to assume a jurisdiction, not conferred on it expressly by National Accountability Ordinance, 1999---Expression essentially lends a legal cover to any procedure adopted by Court in trial to expedite pace of proceedings before it and dispense with any procedural hiccup causing hindrance in achieving such object. [Minority view]

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

----S.204---Issuance of process---Words "if in opinion of a Court taking cognizance of an offence"---Scope---Provision of section 204 Cr.P.C. is not applicable to a case filed on a private complaint only---Words "if in opinion of a Court taking cognizance of an offence"signify focusing on Court's satisfaction about presence of sufficient material against accused warranting trial rather than source providing such material. [Minority view]

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

----S.91, Part-III---Bond for appearance---Scope---Provision of S. 91, Cr.P.C. is twofold, first to empower Court to seek undertaking through a bond from a person present for his future appearance before it---Second to enforce such scheme equally not only in respect of a witness but for an accused, etc. required to appear in Court---Provision of S.91 is in Part-III, Chapter VI of Criminal Procedure Code, 1898, which covers only general provisions relating to process and largely speaks of overall powers given to Court to cause appearance of any person before it and related matters---Part-III, Cr.P.C. caters exclusively to a standard approach to be had by court for seeking attendance of a person, who may be an accused, required in case.

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

----S. 496---Bailable offence---Words "shall be released"---Scope---Words "shall be released" have been used in S.496, Cr.P.C., which imply that in a bailable offence accused has to be released on bail as of a right---If Court thinks it fit may instead of taking bail from such person discharge him on his executing a bond without sureties for his appearance.

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

----S. 497(1)---Expression "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years"---Applicability---When an accused against whom there are no reasonable grounds to believe he is involved in an offence punishable with 10 years or above appears or is brought before the court in such case, Court is bestowed with a kind of intemperate discretion to release him on bail---When there are reasonable grounds to believe involvement of accused in such an offence (within prohibitory clause), no such discretion is available to the Court---Whether case of accused falls within ambit of first category or the second one, if he is brought arrested, or appears on his own would be set at liberty only after the court has exercised discretion in his favour by giving bail through a judicial order under S.497, Cr.P.C.

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

----Ss. 496 & 497---Appearing of accused before Court---Exercise of discretion---Principle---Right of accused to be released on bail under Ss. 496 & 497, Cr.P.C., one thing is common and sine qua non in both the provisions, that is, the court exercising discretion through a judicial order granting bail to him when he either appears himself or is brought before it---Under S.496, Cr.P.C. dealing with bailable offences, such discretion is exercised in favour of accused under the influence of law itself---In non-bailable offence, such discretion, be it the first category or the second one, is not automatically generated in favour of accused on account of his right to it but is contingent upon fulfillment of certain conditions, which include, among others, a compulsory notice to prosecution, resultant adjudication to determine existence or otherwise of reasonable material/grounds against him, exercise of discretion by Court in favour of accused in the form of judicial order, reasons for doing so, and its compliance by accused.

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

----Ss. 91, 496 & 497---Bond, execution of---Distinction---General and special provisions---Scope---Provisions of S.496 or 497, Cr.P.C. are special provisions in that they are exclusively designed to respectively regulate accused's appearance or his release in bailable and non-bailable offence---Provision of S.91, Cr.P.C. is applicable to all persons i.e. a witness, complainant, accused or any other person who is required by the court to appear is a general provision.

(k) Interpretation of statutes---

----General and special provisions---Applicability---if a statute contains special and general provisions on the same subject, the special ones prevail over the general ones.

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

----S. 86---Warrants issuance of---Principle---Court exercising powers under S.86, Cr.P.C. has no concern with the matter, does not require custody or presence of accused and is only acting upon warrants issued by Court outside of its district or jurisdiction.

(m) Constitution of Pakistan---

----Arts. 185 (3) & 189---Leave refusing order by the Supreme Court---Scope---Such order of Supreme Court not spelling out any principle of law does not constitute any binding force on High Court---Such orders are mostly issued, on the basis of pleadings filed by parties, without any appraisal of underlying factual or legal aspect of the case---Leave refusing orders are not to be considered as definitive and conclusive declaration of law.

Muhammad Tariq Badar v. National Bank of Pakistan 2013 SCMR 314; Gulstan Textile Mills Ltd. v. Soneri Bank Ltd. 2018 CLD 203; Muhammad Jibran Nasir v. The State PLD 2018 SC 351 and Province of Punjab v. Muhammad Rafique PLD 2018 SC 178 rel.

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

----Ss. 9(b), 18(e) & 24(a)---Criminal Procedure Code (V of 1898), Ss. 91, 204 & 497---Constitution of Pakistan, Art. 199---Release of accused on bail---Warrants of arrest, non-issuance of---Execution of bond to appear---Scope---Petitioners were accused persons facing proceedings under National Accountability Ordinance, 1999, who sought their release on bail after execution of bond under S.91, Cr.P.C. for their appearance in Court---Validity---Process to cause attendance of accused after filing of Reference was issued in terms of S.204, Cr.P.C.---Offences under National Accountability Ordinance, 1999,were non-bailable and Court had no authority to attend to a question of bail and consider existence or otherwise of reasonable grounds against accused for such relief---Court was to issue warrants in first instance and on appearance of accused commit him to custody---In certain cases Court could incline to think it fit to adopt different course in non bailable offences and issue summons instead to secure attendance of accused---In NAB cases with sufficient material connecting accused with alleged offence, were at least not the ones justifying approval of such a step to seek his presence through---After accused appeared voluntarily or in compliance of such process, Accountability Court could not release him on his mere willingness to execute a bond under S.91, Cr.P.C. undertaking to appear on next date---Court was to commit accused to custody till his acquittal by it or till in his favour a bail granting order was delivered by High Court or by Supreme Court---Non-issuance of a direction/warrants against accused by Chairman NAB, for any reason including his being on pre-arrest bail granted to him during enquiry or investigation (subsequently recalled), whose authority was to last only till filing of the reference, was not a legal bar for Accountability Court to exercise jurisdiction otherwise bestowed on it by Criminal Procedure Code, 1898, to regulate appearance of accused accordingly---High Court directed the office to fix Constitutional petitions filed by petitioners seeking bail in circumstances. [Minority view]

C.P. No. D-7235 of 2018; C.P. No.D-5271 of 2019; C.P. No.D-7275 of 2019; W.P. No.3765 of 2017; Civil Petition No.1435 of 2018; C.P. No. D-7465 of 2019; 2017 SCMR 1218; PLD 2016 Pesh. 298; 2016 PCr.LJ 27; 2015 SCMR 56; 2014 SCMR 1762; PLD 2018 SC 595; 2015 SCMR 1724; PLD 2007 SC 539; PLD 2005 Lah. 470; PLD 2018 SC 40; 1990 MLD 1161; PLD 2018 Kar. 724; 2016 MLD 1902; 2005 PCr.LJ 1889; PLD 2010 SC 483; 1986 PCr.LJ 2359; PLD 2006 Lah. 227; PLD 2006 SC 249; PLD 1996 SC 77; PLD 2001 Kar. 344; 2002 PCr.LJ 310; 2018 PCr.LJ 1694; Asfandyar Wali Khan's case PLD 2001 SC 607; Abdul Aziz Memon v. The State PLD 2013 SC 594; Rai Mohammed Khan v. NAB 2017 SCMR 1152 and Abdul Shakoor v. The State and 5 others PLD 1987 Lah. 225 ref.

Per Adnan Iqbal Chaudhry, J. Shamsuddin Abbassi, J. agreeing [Majority view]

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

----S. 17(a)---Criminal Procedure Code (V of 1898), Ss. 90, 91 & 204---Warrants or summons issuance of---Determination---Mmutatis mutandi"---Scope---By virtue of S.17(a) of National Accountability Ordinance, 1999, provisions of Ss. 204, 90 & 91, Cr.P.C. apply "mutatis mutandi" to proceedings under National Accountability Ordinance, 1999---Words "mutatis mutandi" entail that when Second Schedule of Criminal Procedure Code, 1898, is not relevant to offences under National Accountability Ordinance, 1999, it is for Accountability Court to determine whether to issue summons in the first instance or a warrants, whether bailable or non-bailable---Such determination by Accountability Court is not to be arbitrary but is to be guided by opinion it forms on taking cognizance on Reference that there is sufficient ground for proceeding against accused; and in given facts it may be fit to issue warrants in first instance instead of a summons, including but not limited for reasons set-out in S.90(a), Cr.P.C. [Majority view]

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

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss. 204, 496, 497 & 498---Bail---Court, jurisdiction of---Provisions of "bail" contained in the Cr.P.C. has been ousted by S.9(b) of National Accountability Ordinance, 1999, but does not oust provisions of "process" contained in Cr.P.C.---Accountability Court cannot grant bail under S.496, 497 or 498, Cr.P.C. when it issues process under S.204, Cr.P.C. to call or compel appearance of accused in Court to answer case against him---If Accountability Court has to issue process in form of summons or a bailable warrants, prohibition against bail in S.9(b) National Accountability Ordinance, 1999, remains intact. [Majority view]

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

----Ss. 18(e) & 24(a)---Criminal Procedure Code (V of 1898), Ss. 56 & 75---Warrants of arrest, issuance of---Jurisdiction---Provisions of Ss.18(e) & 24(a) of National Accountability Ordinance, 1999, do not mention word "warrants"---Permission to arrest under S.18(e) of National Accountability Ordinance, 1999, or "direction" to arrest under S.24(a) of National Accountability Ordinance, 1999, is not a "warrants"---Warrants is a process issued by a Court as prescribed in S.75, Cr.P.C.---Such permission or direction to arrest given by Chairman NAB is akin to the one granted by Officer in charge of a Police Station to a sub-ordinate officer under S.56, Cr.P.C. for making an arrest without warrant in a cognizable case. [Majority view]

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

----S. 18 (e)---Arrest---Scope---Arrest under S.18(e) of National Accountability Ordinance, 1999, is for the purposes of an inquiry or investigation and can be of "any person" including accused. [Majority view]

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

----S. 24 (a)---Arrest---Words "if not already arrested, shall be arrested"---Pre-conditions---Provision of S.24(a) of National Accountability Ordinance, 1999, deals only with arrest of "accused"---Words "if not already arrested, shall be arrested" denote that arrest envisaged under S. 24(a) of National Accountability Ordinance, 1999 is at that stage of inquiry or investigation when Chairman NAB forms opinion that custody of accused is now necessary for completing inquiry/investigation, or that there is sufficient evidence to tie accused to a non-bailable offence---Provision of S.24(a) of National Accountability Ordinance, 1999, is also testament of the intent that it is not mandatory to arrest a person straightaway solely because he is accused of a non-bailable offence. [Majority view]

Khan Asfandar Wali v. Federation of Pakistan PLD 2001 SC 607; Dr. Ghulam Raza v. Director General (Sindh Region) National Accountability Bureau 2019 MLD 433; Dr. Majid Naeem v. National Accountability Bureau PLD 2012 Lah. 293; Muhammad Akbar v. The State 1972 SCMR 335; Aftab Ahmed v. Hassan Arshad PLD 1987 SC 13 and Bahadur Khan v. Muhammad Azam 2006 SCMR 373 rel.

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

----S. 24(c)---Criminal Procedure Code (V of 1898), S. 170---Arrest---Custody, forwarding to Court---Scope---Arrest, under S.24(c) of National Accountability Ordinance, 1999, is to take and forward custody of accused to Accountability Court for the purposes of taking cognizance of offence which is akin to procedure in S.170, Cr.P.C. [Majority view]

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

----Ss. 9(b), 18(e) & 24(a)---Criminal Procedure Code (V of 1898), Ss.91, 204 & 497---Release of accused on bail---Warrants of arrest, non-issuance of---Execution of bond to appear---Scope---Petitioners were accused persons facing proceedings under National Accountability Ordinance, 1999, who sought their release on bail after execution of bond under S.91 Cr.P.C. for their appearance in Court---Validity---Accused under National Accountability Ordinance, 1999, against whom Chairman NAB did not issue any permission/direction to arrest, but against whom reference was filed, when such accused had appeared or was brought before Accountability Court pursuant to a process issued under S.204, Cr.P.C., whether summons, bailable warrants or non-bailable warrants, such accused was required by the Court to execute a bond with or without sureties under S.91, Cr.P.C. to assure his appearance before the Court---Power under S.91, Cr.P.C. was not available for an accused who appeared before Accountability Court on bail, except where he was on bail against warrants issued to compel his appearance in Court---If accused under National Accountability Ordinance, 1999,was denied pre-arrest bail, such accused was exposed to arrest by NAB either under S.24(a) National Accountability Ordinance, 1999, if such direction had been issued prior to the Reference, or under S.24(c) National Accountability Ordinance, 1999, if a direction for his arrest was given after the Reference---If accused was so arrested then S.91, Cr.P.C. was not available when accused was brought before Accountability Court---On rejection of petition for pre-arrest bail, if there was no direction for arrest pending under S.24(a) National Accountability Ordinance, 1999, nor was one subsequently issued under S.24(c) National Accountability Ordinance, 1999, such accused was required by Accountability Court to execute a bond with or without sureties under S.91, Cr.P.C. to assure his appearance before the Court. [Majority view]

W.P. No. 3765 of 2017; 2014 SCMR 1762; PLD 2007 SC 539; 2018 PCr.LJ 1694; Asfandyar Wali Khan's case PLD 2001 SC 609; Muhammad Tariq Badar v. National Bank of Pakistan 2013 SCMR 314; Khan Gul Khan v. Daraz Khan 2010 SCMR 539; The Crown v. Khushi Muhammad PLD 1953 Federal Court 170; Sadiq Ali v. The State PLD 1966 SC 589 and Jamaluddin v. The State 1985 SCMR 1949 rel.

Farooq H. Naik for Petitioners (in C.P. No. 6336 of 2018).

Raghib Ibrahim Junejo and Muhammad Rahman Ghous, for Petitioner (in C.P.No.D-1914 of 2020).

Raj Ali Wahid for Petitioner (in C.Ps. Nos.D-1543, 1655 and 5802 of 2020).

Rizwan H. Nadeem for Petitioner (in C.P.No.D-1991 of 2017).

Irfan Ahmed Memon for Petitioner (in C.Ps. Nos. D-1911 and 1912 of 2017).

Mutti Ali for Petitioner (in C.P. No. D-6387 of 2018).

Mian Ali Ashfaq for Petitioner (in C.P. No. D-5429 of 2018).

Naveed Ahmed Khan for Petitioner (in C.P. No. D-3677 of 2019).

Syed Arif Raza for Petitioner (in C.P. No. D-2163 of 2020).

Amjad Ali Shah and Shahbaz Sahotra, Special Prosecutors NAB.

Mukesh Kumar Khatri, Assistant Attorney General.

Hakim Ali Shaikh, Addl. A.G.

P L D 2022 Sindh 499

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

KANWAR NAVEED JAMEEL and 5 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and another---Respondents

Constitutional Petition No. D-23 of 2022, decided on 1st June, 2022.

(a) Code of Conduct for Judges of the Supreme Court and High Courts---

----Art. IV---Constitution of Pakistan, Art. 209(8)---Recusal of a Judge from a case---Principles---Judge based on his own conscience had to decide whether to hear a case or not---Judge himself had to decide whether to recuse from a case or not---Recusal is discouraged where it is apparent that the perception of bias/impartiality is being created by a litigant or a counsel to divert a case from the Bench which he perceives as unfavorable to a Bench which he perceives as more favorable---To succumb to such tactics would not only send the message that the judges can be cowed into submission by such tactics, it would also erode public confidence in the courts and at the same time it would increase the work load of the bench to whom the case is passed on to.

Independent Media Corporation v. Federation of Pakistan PLD 2014 SC 650 and General R. Parvez Musharraf v. Nadeem Ahmed Advocate PLD 2014 SC 585 ref.

(b) Sindh High Court Rules (Original Side)---

----Pt.1, Chap. II, R.10---Constitution of Pakistan, Art. 199---Constitutional petition before the (Sindh) High Court---Request for formation of a larger Bench---Petitioner contended that the present case was a particularly complex case and required formation of a larger bench of ten (10) Judges of the (Sindh) High Court, and the present bench should make such a request to the Chief Justice of (Sindh) High Court---Validity---Brief review of the present Constitutional petition showed that there were no undue legal complexities or other compelling reasons which would justify the petition being referred to the Chief Justice to establish a larger bench of the (Sindh) High Court to hear the petition especially given the back log of cases in the (Sindh) High Court which need to be attended to---Notably request for a larger bench was not made when the petition was filed but instead had been made after 8 separate hearing dates, which indicated that it was an afterthought prima facie with the intention of delaying the hearing of the present petition for which the counsel for the petitioners obtained an ex-parte stay order on the first day of hearing---Statement/application requesting to ask the Chief Justice of the (Sindh) High Court to form a larger ten member bench was dismissed.

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

----S. 3---Constitution of Pakistan, Art. 204(2)(b)---Contempt of Court---Making scandalous, offensive and insulting remarks against a bench of the High Court and the judiciary---Judicial restraint, exercise of---Counsel for petitioner was asked to make his submissions on the maintainability of the petition but rather than doing so he started to make scurrilous, scandalous, offensive and insulting remark against the present bench and the judiciary which tirade continued unabated for about 15 to 20 minutes despite the counsel being asked on numerous occasions to leave the rostrum (which he refused to do) and the reader of the court calling other cases listed for hearing which lead to the dismissal of his petition for non-prosecution---Even the Advocate General was unable to persuade the counsel to leave the rostrum and on the bench's query as to the conduct of the counsel, the Advocate General advised the bench that such conduct prima facie amounted to contempt on the face of the court---However showing maximum judicial restraint largely on account of the young age of the counsel and with a view to avoid potentially damaging his career present bench decided against initiating contempt proceedings---High Court deprecated the misbehaviour on the part of the counsel and observed that it was not expected of an advocate of the High Court and as such cautioned him as to his future conduct when appearing before the High Court lest he might face appropriate proceedings in accordance with law.

M. Tariq Mansoor and Ahmed Zameer for Petitioners.

Salman Talibuddin, Advocate General Sindh along with Muhammad Yousuf Rahpoto, Assistant Advocate General.

Munir Ahmed for the Intervenor No.1

Mukesh Kumar G. Karara along with Nabi Bux Laghari for Respondents Nos. 6 and 7.

P L D 2022 Sindh 505

Before Salahuddin Panhwar, J

IJAZ GHANI KHAN---Appellant

Versus

DISTRICT JUDGE KARACHI CENTRAL and 4 others---Respondents

Miscellaneous Appeal No. 20 of 2020, decided on 6th October, 2020.

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

----Ss. 270 & 271---When probate or administration may be granted by District Judge---Disposal of application made to District Judge in which deceased had no fixed abode---Scope---Where it was claimed that the deceased had a fixed abode within jurisdiction of the lower court, High Court observed that the order of returning the petition by the District Judge did not appear to be justified when the same was not backed with reasons that how the just disposal of the application would be convenient at another place---Order whereby petition for probate was returned was set aside with direction to the District Judge to proceed further.

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

----S. 270---When probate or administration may be granted by District Judge---Scope---Bare reading of S. 270 of Succession Act, 1925, makes it clear and obvious that such application can competently be filed by the applicant either at the place where the testator/intestate, at the time of his death, had a fixed place of abode or where any property is situated---Competent court of such both places shall have the competence and jurisdiction to grant such letter of administration or probate---Such discretion, provided by law itself for convenience of the parties, legally cannot be prejudiced; any other view would frustrate the provision.

PLD 2016 Bal. 39 ref.

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

----Ss. 271 & 270---Disposal of application made to Judge of District in which deceased had no fixed abode---When probate or administration may be granted by District Judge---Scope---Section 271 speaks about a situation where the deceased had no fixed abode, therefore, it would not prejudice the scope and application of S. 270---Section 271 does not prejudice the competence of the court but the discretion may be exercised by such court when such court itself is of the view that convenience for disposal of such application is with another district---Prima facie, S. 271, is also to advance convenience without prejudicing the jurisdiction and competence of the court so provided in the earlier provision i.e. S. 270.

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

----Ss. 273 & 381---Conclusiveness of probate or letters of administration---Effect of succession certificate---Scope---Issuance of letter of probate or succession certificate cannot be treated as declaration with regard to legal heirship or title of the parties but purpose and scope thereof is always limited for specified purpose.

Iftikhar Ahmed Shah for Appellant.

P L D 2022 Sindh 508

Before Nadeem Akhtar and Zafar Ahmed Rajput, JJ

SAEED AHMED and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-622, D-623, D-626, D-628, D-633 and D-678 of 2022, decided on 22nd June, 2022.

(a) Interpretation of statutes---

----Rules---Scope---Rules made under any statute, being statutory in nature, have force of law---If rules are intra vires and are validly made by rule-making authority, the same are to be treated as a part of that statute.

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

----S.23 (1)---Sindh Local Councils (Election) Rules, 2015, Rr. 16 & 18---Election dispute---Nomination papers---Mandatory requirements---Declaration of assets, non-filing of---Joint nomination papers---Effect---Petitioners were aggrieved of rejection of their nomination papers for failure to file their declarations of assets and filing of joint nomination papers---Validity---Non-compliance of mandatory provision of R.16(3) of Sindh Local Councils (Election) Rules, 2015 and non-filing of declaration of assets on solemn affirmation by petitioners, was defect of substantial nature that could not be remedied under proviso to R.18(3) of Sindh Local Councils (Election) Rules, 2015---Nomination papers of petitioners were liable to be rejected under R.18(3)(c) of Sindh Local Councils (Election) Rules, 2015, as it specifically provided such consequence in case of non-compliance of R.16 of Sindh Local Councils (Election) Rules, 2015---In absence of name of candidate and signature of his seconder, his nomination form could not be deemed to have been filed in prescribed form and such was a substantial defect---Joint nomination could not be filed independently or singly which was liable to be rejected under R.18(3)(c) of Sindh Local Councils (Election) Rules, 2015---Candidate contesting Local Government Elections under Sindh Local Government Act, 2013 was required to disclose/declare his assets on solemn affirmation in prescribed form at the time of filing his nomination papers---Such requirement was mandatory and in case of non-compliance nomination papers were liable to be rejected---High Court declined to interfere in orders passed by Returning Officers---Constitutional petition was dismissed, in circumstances.

Khalid Ahmed Memon v. Deen Muhammad Talpur and 2 others 2016 MLD 1527; Tariq Hussain v. Subhan Ali and 6 others 2019 CLC 1592; Aitbar and another v. Provincial Election Commission through DEO, District N/Feroze, through A.A.G. Sindh and 5 others 2017 CLC Note 179; (Agha Abdul Naeem and another v. Federation of Pakistan through Chief Election Commissioner, Islamabad, and others) C. P. No. D-596 of 2022; Nida Khuhro v. Moazzam Ali Khan and others 2019 SCMR 1684; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70; Sardar Saeed Ahmed Khan and others v. Appellate Authority and others 2017 CLC Note 158; Ch. Asif Ali and others v. Muhammad Mehmood and others 2019 CLC 920; Muhammad Jamil v. Munawar Khan and others PLD 2006 SC 24; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 531; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Ms. Shamuna Badshah Qaisarani v. Khuwaja Muhammad Dawood and others 2016 SCMR 1420; Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70 and Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan PLD 2017 SC 692 ref.

Nisar Ahmed Bhanbhro for Petitioner (in C.P. No. D-622 of 2022).

Mukesh Kumar G. Karara for Respondent No.6 (in C.P. No. D-622 of 2022).

Habibullah G. Ghouri for Respondent No.12 (in C.P. No. D-622 of 2022).

Nisar Ahmed Bhanbhro for Petitioner (in C. P. No. D-623 of 2022).

Ghulam Asghar Khichi for Respondents Nos. 3 and 4 (in C. P. No. D-623 of 2022).

Skandar Ali Junejo for Petitioners (in C. Ps. Nos. D-626 and 628 of 2022).

Dareshani Ali Haider 'Ada', Ali Gul Abbasi and Muhammad Zuhaib Azam for Respondent No.5 (in C. Ps. Nos. D-626 and 628 of 2022).

Nisar Ahmed Bhanbhro, Sheeraz Fazal and Irfan Mehdi Soomro for Petitioners (in C. P. No. D-633 of 2022).

Dareshani Ali Haider 'Ada', Ali Gul Abbasi and Muhammad Zuhaib Azam for Respondents Nos. 3 and 4 (in C. P. No. D-633 of 2022).

Habibullah G. Ghouri and Muhammad Iqbal Chaudhry for Petitioner (in C. P. No. D-678 of 2022).

Agha Atta Muhammad Khan for Respondent No.8 (in C. P. No. D-678 of 2022).

Muhammad Hamzo Buriro, Deputy Attorney General and Ali Raza Pathan, Assistant Attorney General for Federation of Pakistan (in all petitions).

Ali Raza Baloch, Ahmed Ali Shahani and Asfandyar Kharal, Assistant Advocates General Sindh for Province of Sindh (in all petitions).

Zeeshan Haider Qureshi, Law Officer for Election Commission of Pakistan and others (in all petitions).

P L D 2022 Sindh 521

Before Adnan Iqbal Chaudhry, J

SEAMAX MARINE SERVICES through Authorized Attorney/Partner---Plaintiff

Versus

MINISTRY OF MARITIME AFFAIRS through Secretary and 2 others---Respondents

Suit No. 1608 of 2020, decided on 14th April, 2022.

(a) Public Procurement Rules, 2004---

----R. 48---Civil Procedure Code (V of 1908), S. 9 & O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42, 54 & 55--- Courts to try all civil suits unless barred---Rejection of plaint---Redressal of grievances by the procuring agency---Scope---Plaintiff filed a suit for declaration, permanent and mandatory injunction against the award of contract by the procuring agency---Defendants moved an application for rejection of plaint---Validity---Procuring agency had not constituted the grievance redressal committee despite the plaintiff's letter to constitute the same, rather the agency had proceeded to pass a Board Resolution on the very next day whereby contract was awarded to the other bidder; hence the suit was filed---Grievance redressal committee was constituted by the procuring agency much later, after the suit was filed---In such circumstances where the remedy of a complaint under R. 48 of the Public Procurement Rules, 2004 before a grievance redressal committee was not made available to the plaintiff by the procuring agency itself, the question of any bar to the suit by reason of R. 48 did not arise---Jurisdiction of the High Court as a civil court was not ousted when the suit was filed---Application for rejection of plaint was dismissed.

Hamid Hussain v. Government of West Pakistan 1974 SCMR 356 and Samiullah v. Fazale Malik PLD 1996 SC 827 ref.

Maqbool Associates (Pvt.) Ltd. v. Pakistan Power Park Management Company Ltd. 2015 MLD 1790 distinguished.

(b) Public Procurement Rules, 2004---

----R. 48---Redressal of grievances by the procuring agency---Scope---Rule 48 of Public Procurement Rules, 2004 does not expressly bar the jurisdiction of a civil court, let alone a High Court.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 rel.

(c) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 23---Civil Procedure Code (V of 1908), S. 9---Courts to try all civil suits unless barred---Indemnity---Scope---Public Procurement Regulatory Authority Ordinance, 2002, does not infer any ouster of the jurisdiction of a civil court---Section 23 of the Ordinance is also not an ouster clause but an immunity clause from legal proceedings and that too for the Public Procurement Regulatory Authority, its Board and officers, not for the procuring agency.

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

----S. 9---Courts to try all civil suits unless barred---Scope---Under S. 9 of C.P.C., civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

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

----S. 9---Courts to try all civil suits unless barred---Scope---Ouster of the jurisdiction of civil courts is not to be inferred lightly.

Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus PLD 1997 SC 3 rel.

Omair Nisar for Plaintiff.

Nemo for Defendants Nos. 1 and 3.

Badar Alam for Defendant No. 2.

P L D 2022 Sindh 527

Before Nadeem Akhtar, J

ABDUL KADER through Attorney---Appellant

Versus

SULEMAN and others---Respondents

Miscellaneous Appeals Nos. S-27 to S-36 of 2021, decided on 29th June, 2022.

Succession Act (XXXIX of 1925)---

---Ss. 278, 299 & 384---Civil Procedure Code (V of 1908), O. VII, R. 10---Letter of administration---Pecuniary jurisdiction---Return of application---Scope---Appellants assailed order passed by District Judge whereby applications filed by them were returned to them under O. VII, R. 10, C.P.C. for presentation before the Court having pecuniary jurisdiction---Validity---Appellants had filed separate applications and not a joint application, and the entire subject property was not the subject matter of any of the applications as the appellants had sought the Letters of Administration only in respect of the share left by each of the deceased---Every deceased having a separate and distinct share in the subject property falling within the pecuniary jurisdiction of the Trial Court, each of their respective legal representatives was entitled to file a separate application, particularly when there was no bar in law that separate applications in respect of separate and distinct shares or portions in the same property could not be filed---Separate applications could be filed before the Court having the pecuniary jurisdiction to the extent of the said shares of each of the deceased---Impugned orders were set aside and the applications were remanded to the Trial Court with the direction to decide the objections filed therein by all the objectors.

Fateh Muhammad v. Mst Arshad Afza 1999 MLD 1481 ref.

Zafeer Gul v. Dr. Riaz Ali and others 2015 SCMR 1691 rel.

Abdul Naeem A. Qureshi for Appellants.

Imran Ali Jatoi, A.A.G. Sindh for Respondent No.1.

Malik Khushhal Khan for Respondent No.2.

Tasawur Ali Hashmi for Respondent No.3.

P L D 2022 Sindh 532

Before Salahuddin Panhwar, J

Syed MUHAMMAD ASIF SULTAN and 4 others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Ministry of Culture, Tourism and Antiquities and 2 others---Defendants

Suit No. 1418 of 2021, decided on 16th November, 2021.

Sindh Cultural Heritage (Preservation) Act (XII of 1994)---

----S. 6---Ancient Monument Preservation Act (VII of 1904), S. 3---Antiquities Act, 1975 (VII of 1976), Ss. 10 & 19---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Declaration of protected heritage---Antiquity declaration---Protected monuments---Plaintiff was aggrieved of declaring his property as an antiquity without providing him opportunity of hearing---Validity---No one can take an exception to historical value of all 'protected sites/ monuments', declared/notified under Ancient Monument Preservation Act, 1904 and subsequently notified under Antiquities Act, 1975---Culture, Tourism, Antiquities and Archives Department was established with the sole purpose to ensure protection/preservation of such properties with their "antiquity"---Such was not sufficient to give such properties in relevant list or notification but it required much more including, but not limited to:- (a) continuous control and management of such properties; (b) managing such properties in such manner and fashion that none trespass into such properties; (c) assuring that none cause any harm or damage to 'antiquity' thereof in any manner including removing/damaging anything from such properties---Properties under Ancient Monument Preservation Act, 1904 and Antiquities Act, 1975 were not owned by any private person---Matter of ancient properties could not be equated as private properties under Heritage Act, 1994 but that of antiquities---High Court directed District and Sessions Judges all over Sindh to depute Magistrates of concerned jurisdiction to visit sites in question, as Judicial propriety demanded serious attention on properties so reflected---High Court further directed that deputed Magistrates would be competent to call any respective authority to restore and preserve dignity as well antiquity value of ancient property within their territorial jurisdiction---High Court also directed Deputy Commissioners to visit ancient properties in their respective areas on quarterly basis and ensue that same remain alongwith Antiquities Department and no damage/loss would be caused to such properties---High Court directed Provincial Government to submit detail report regarding creation of endowment fund and restoration of referred properties in their original form---High Court also directed authorities to hear plaintiff and pass appropriate order in accordance with law.

Mujtaba Raja for Plaintiffs.

Sheharyar Qazi, Additional A.G., Sindh along with Abdul Raheem Soomro, Secretary, Zahid Abbas Akhund, Director and Abdul Fateh Shaikh, Director, (A&M), Culture, Tourism, Antiquities and Archives Department.

P L D 2022 Sindh 542

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

ADNAN AHMED---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary to the Government of Sindh and 8 others---Respondents

Constitutional Petition No. D-2095 of 2018, decided on 17th March, 2022.

Sindh Permanent Residence Certificate Rules, 1971---

----Rr. 5, 7(2), Forms "C" & "D"---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---Locus poenitentiae, doctrine of---Applicability---Verification of domiciles and testimonials---Petitioners assailed merit list on the plea that the same was not prepared after verification of persons who belonged to other provinces---Validity---Certificate of Permanent Residence in Province of Sindh, under R. 5 of Sindh Permanent Residence Certificate Rules, 1971 for the purpose of (a) admission to education institution was to be issued in Form "C" and (b) recruitment to Public Service was to be issued in Form "D"---Certificate was to specify district or other local area in Sindh of which holder of Certificate was a permanent resident---Person who was domiciled in or had acquired domicile of another province, under the provisions of R.7(2) of Sindh Permanent Residence Certificate Rules, 1971, was not to be granted certificate in Form "D" unless he had renounced such domicile and produced satisfactory evidence before District Magistrate of such renunciation---High Court declined to interfere in the matter, as there was no illegality or infirmity committed by Public Service Commission in appointments of respondents, who had received letters for their appointments and were working on their respective posts after completing formalities which included verification of their testimonials, domicile and Permanent Residence Certificates---Once a right was accrued by issuance of appointment letters after complying with all codal formalities, such right could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary---Such right once vested, could not be destroyed or withdrawn as legal bar would come into play under doctrine of Locus poenitentiae well recognized and entrenched in our jurisprudence---Constitutional petition was dismissed, in circumstances.

Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 and Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418 rel.

Fidaullah Qureshi and Badaruddin Memon for Petitioner.

Malik Naeem Iqbal, Muhammad Nasir and Deedar Ali M. Chohan for Respondents Nos. 5 to 9.

Muhammad Yousuf Alvi, Law Officer for SPSC/Respondents Nos. 2, 3 and 4.

Zulfiqar Ali Naich, A.A.G. for Province of Sindh.

P L D 2022 Sindh 552

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

ARY COMMUNICATIONS LIMITED through duly Authorized Officer---Petitioner

Versus

COUNCIL OF COMPLAINTS, ISLAMABAD through Secretary and 2 others---Respondents

Constitutional Petitions Nos. D-5558, D-5559 and D-5560 of 2016, decided on 17th March, 2022.

(a) Interpretation of statutes---

----Statutory powers, exercise of---Principle---Where a statutory power vests in a particular authority and discharge of reciprocal duty is its responsibility, that authority cannot merely rubberstamp an action taken elsewhere or simply endorse or ratify decision of another.

Messrs H. M. Abdullah v. The Income Tax Officer, Circle V, Karachi and 2 others 1993 SCMR 1195; De Smith's, Judicial Review, 8th Edition, 2018 and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 rel.

(b) Maxim---

----Delegatus non potest delegare---Scope---Delegated power---Acting under dictation is against unsanctioned delegation, derived from maxim delegatus non potest delegare, which lays down that a delegate cannot further delegate power to someone else---Such is to ensure that when a specific person or body is given a statutory discretion, the discretion is exercised by that very person or body and not by someone else.

Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others 1995 CLC 369 rel.

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

----S. 26---Pakistan Electronic Media Authority (Council of Complaints) Rules, 2010, R.8---Electronic Media (Programmes and Advertisements) Code of Conduct, 2015---Council of Complaints (COC)---Duties and functions---Petitioner was media house and aggrieved of decisions made by Pakistan Electronic Media Regulatory Authority (PEMRA)---Contention of petitioner was that PEMRA failed to appreciate that COC was only empowered to make a non-binding recommendation and was required to determine whether those recommendations were to be adopted or not---Validity---Decisions were bereft of findings of COC as to how allegations underpinning the complaints constituted violations of Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, and did not even disclose rationale for COC making particular recommendations---Decisions in question did not possess quality of a reasoned or speaking order---Decisions reflected that the "Authority" acted in cursory and mechanical manner in purported exercise of its adjudicatory function without any perceptible independent application of mind, contrary to intent and design of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010---Such approach to adjudication was unsound and it manifested that decisions in question were not sustainable in law---Decisions in question suffered from basic errors and lacked quality of a legally valid decision, resort to a broader enquiry as to correctness of decisions through appeal was not necessitated---Constitutional petition was allowed, in circumstances.

World Call Cable (Pvt.) Ltd. through Chief Executive Officer v. Federation of Pakistan through Secretary and another 2020 CLC 534 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial review---Substitute of appeal---Scope---Judicial review is not a substitute for an appeal, the same lies within its own parameters in cases where a statutory authority uses its power in a manner not provided for in statute or passes an order without application of mind, or commits an error of law apparent on the face of the record.

Ayan Mustafa Memon and Umair Nabi for Petitioner.

Manzar Bashir Memon for Respondents.

P L D 2022 Sindh 565

Before Aqeel Ahmed Abbasi andRashida Asad, JJ

Mrs. SARDAR BEGUM FAROOQUI through Legal heirs and another---Appellants

Versus

Dr. AZHAR MASOOD AHMED FAROOQUI and another---Respondents

High Court Appeal No. 195 of 2021, decided on 25th November, 2021.

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

----Art. 128---Constitution of Pakistan, Art. 35---Birth during marriage conclusive proof of legitimacy---Protection of family---Scope---Plaintiff assailed the dismissal of her application for direction to the defendant to get his DNA test conducted for ascertainment of his parentage---Contention of plaintiff was that the defendant was not entitled to the legacy of her predecessor-in-interest as he was an adopted son---Validity---Application was filed after a period of more than 10 years from the date of filing the suit when evidence had already been concluded---No valid grounds had been raised nor any tangible evidence or material to support the allegation regarding parentage of defendant had been produced by the plaintiff before the Single Judge in the suit, nor any request seeking amendment in the pleadings, particularly, in the prayer clause had been made for seeking a declaration relating to parentage of defendant---Parents of the defendant had never disputed the paternity of defendant---Defendant was prima facie a biological son of the predecessor-in-interest of parties---Impugned order did not require any interference by the High Court---Appeal was dismissed, in circumstances.

Mst. Laila Qayyum v. Fawad Qayyum and others PLD 2019 SC 449 and Ghazala Tehseen Zohar v. Mehr Ghulam Dastagir Khan PLD 2015 SC 327 rel.

Yaseen Azad and Mehreen Ibrahim for Appellant.

Mansoor-ul-Arfin for Respondent No.1.

P L D 2022 Sindh 572

Before Zulfiqar Ahmad Khan, J

MUHAMMAD AIJAZ---Appellant

Versus

MUHAMMAD AZAM and 3 others ---Respondents

2nd Appeal No. S-18 of 2019, decided on 26th May, 2022.

Specific Relief Act (I of 1877)---

----S.12---Agreement to sell---Balance consideration paid---Appellant filed suit for specific performance of agreement to sell against respondents---Respondents filed their joint written statement while sale agreement was admitted by them with the condition mentioned in the plaint----Trial Court partially decreed the suit of appellant---Respondents filed appeal which was allowed and the judgment and decree of Trial Court was dismissed---Held, that relationship between the parties started when they signed an agreement to sell, where all four parties of contract agreed to sell four plots to appellant---Appellant was given four months time to make the payment of balance sale consideration whereafter the sellers were to appear before the Registrar to conclude the transaction according to agreement to sell---Out of four sellers, one seller "S" expired few days after the agreement, so the transaction was restricted in respect of three plots only---Seller/respondent had only approached the concerned Mukhitiarkar for sale certificate---Admitted position that the appellant paid two sums of money to cater for the expenses incurred in obtaining the sale certificate on the request of the seller---Trial Court decreed the suit and directed the appellant to deposit the balance sale consideration with the Nazir of the Trial Court within two months---Such payment was also made in the form of pay order, which sum was available with the Nazir of the Trial Court---Upon an execution application Nazir was directed to proceed with the formalities of executing the transfer in favour of appellant in respect of three plots---When Executing Court initiated the final act, first Appellate Court delivered its judgment which had been objected by both the appellant and respondents---Respondents had the stance that appellant did not perform his part of contract within the stipulated time---Trial Court considered the aspect that since price of the properties mentioned in agreement to sell had been increased and gave direction to the appellant to add sum to the agreed price which was complied with by the appellant and respondents and balance was deposited with the Nazir of Trial Court----Appellant made substantial payment to the seller in respect of three plots of the suit property and delay was solely attributed to the seller as thus took un-necessary time to obtain sale certificate and even asked for some advance in respect of such certificate ,which was not provided for in the sale agreement---Appeal was allowed and judgment and decree of appellate Court was set-aside and judgment and decree of Trial Court was upheld and the Executing Court was directed to proceed with the matter in accordance with law.

Muhammad Saleem Ansari for Appellant.

P L D 2022 Lahore 1

Before Jawad Hassan, J

Ch. FAYYAZ HUSSAIN---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 29668 of 2021, heard on 13th September, 2021.

(a) Punjab Government Rules of Business, 2011---

----R. 2(d)---Constitution of Pakistan, Arts. 115 & 199---Provincial Government's consent required for financial measures---Bill---Maintainability---Locus standi---Scope---Petitioner sought the Punjab Emergency Service (Amendment) Act, 2011 to be declared ultra vires of the constitutional provisions on the ground that the respondents were making the Punjab Emergency Service (Rescue 1122) an independent administrative department without obtaining requisite consent from the Provincial Government in violation of Art. 115 of the Constitution---Validity---Bill with respect to amendment in certain provisions of the Punjab Emergency Service Act, 2006 was presented by respondent before the Provincial Assembly---Word "Bill" had been defined under R. 2(d) of the Punjab Government Rules of Business, 2011, which meant a motion for making law---Bill was passed by the Provincial Assembly on 03.03.2021 and assented to by the Governor of the Punjab on 16-03-2021 and it was published in the Gazette of Punjab on 17.03.2021 pursuant to which the Rules of Business were also amended in terms of notification dated 23-06-2021---Stance of petitioner regarding financial implications and violation of Art. 115 of the Constitution did not hold water---Language of Art. 115(4) of the Constitution was very clear and unambiguous about the question whether a Bill was a money Bill or not, the decision of the Speaker of the Provincial Assembly thereon shall be final---Provision of Art. 115 were not attracted to the case in hand---Petitioner had invoked the constitutional jurisdiction of High Court under Art. 199 of the Constitution; therefore, it was incumbent upon him to establish that his legal or fundamental rights guaranteed under the Constitution had been violated---Similarly, he had to prove his locus standi to strike down the amendments in that regard on the pretext of denial of his legal rights, if any---Sine qua non for initiation of proceedings under Art. 199 of the Constitution that the Petitioner should have a locus standi to institute such proceedings or in other words the petitioner should be an aggrieved party from the action of the respondents---When the State was providing the basic necessities to fulfil the fundamental rights of health by providing an independent and more efficient emergency services through the Rescue 1122 then it was not to be restrained or hindered to do so under the constitutional jurisdiction without any justiciable and justifiable reasons to substantiate such intervention ---Constitutional petition was dismissed.

PLD 2012 SC 923; Lahore Development Authority through D.-G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Muhammad Yousaf v. The Secretary Finance and others PLD 2021 Lah. 156; Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223 and Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P) Lah. 914 ref.

Dr. Imran Khattak and another v. Messrs Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52; N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Judicial Review of Public Actions" by Justice (R.) Fazal Karim at page-977 Volume-2 and Muhammad Yousaf v. The Secretary Finance and others PLD 2021 Lah. 156 rel.

(b) Punjab Government Rules of Business, 2011---

----R. 2(j)---"Department"---Meaning---Scope---Word "department" is defined under R. 2(j) of the Punjab Government Rules of Business, 2011, which means a self-contained administrative unit in the Secretariat responsible for the conduct of business of the Government in a distinct and specified sphere, and declared or constituted.

(c) Interpretation of statutes---

----Preamble---Scope---Preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the Legislature aimed to secure through the introduction of such law---Preamble of a statute, therefore holds 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 rel.

(d) Constitution of Pakistan---

----Art. 139---Punjab Government Rules of Business, 2011, R.3(3)---Conduct of business of Provincial Government---Scope---All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor while Art. 139(2) of the Constitution demonstrates that the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor---Likewise, Art. 139(3) of the Constitution empowers the Provincial Government to make rules for the allocation and transaction of its business---Under the R. 3(2) of the Punjab Government Rules of Business, 2011, the Chief Minister is empowered to constitute new departments or the composition or number of the Departments and business of the Government shall be distributed amongst several departments in the manner indicated in the Second Schedule under R. 3(3) of the Punjab Government Rules of Business, 2011.

(e) Constitution of Pakistan---

----Art. 69---Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Scope---Article 69 of the Constitution specifically bars any person to approach the Courts of law for calling into question any of the proceedings regardless of the fact that it carries any irregularity in the procedure.

(f) Constitution of Pakistan---

----Art. 8---Laws inconsistent with or in derogation of Fundamental Rights to be void---Scope---Presumption exists in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two---Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity---Statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt.

Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 and Dr. Khushnood Ali Baz and 111 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others 2018 YLR 512 rel.

(g) Mala fides---

---Mala fides will not be attributed to the Legislature.

Rana Zia Abdul Rehman, Advocate Supreme Court along with Rana Fahad Zia for Petitioner.

Naveed Suhail Malik, Additional Attorney General for Pakistan, Barrister Umair Khan Niazi, Additional Advocate General, Barrister Syed Ali Noman Shah, Assistant Advocate General with Ali Hassan, Head of Law and Admin Wing, Rescue 1122 for Respondents.

Hamid-ul-Rahman Nasir, Civil Judge/Research Officer LHCRC.

Date of hearing: 13th September, 2021.

"How can our work better reflect several basic tenets of modern public life; first, the fact that, in our democracy, power flows from the people; second, the need to resist the technical, atomizing forces that divide us and to encourage those forces that unify and bring us together as community; and third, the effort to prevent our government from being perceived as a hostile alien entity, but rather to emphasize through participation that it can and should amount to no more than our nation's individual citizens themselves each showing a 'civic' face as each acts in his or her public capacity. Government officials and public architects alike are trying to rise to this challenge".1

P L D 2022 Lahore 18

Before Tariq Saleem Sheikh, J

Lady Dr. NAFEESA SALEEM and another---Petitioners

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others---Respondents

Writ Petition No. 16562 of 2020, decided on 26th July, 2021.

(a) Words and phrases---

----"Healthcare", meaning of---"Healthcare" was the field concerned with the maintenance or restoration of the health of the body or mind and covered a broad spectrum---"Healthcare" has come to mean every aspect, service, and device for taking care of the people's health; and signified a system which was efficient, effective, responsive, and accountable.

Dr. Waldman writes: "Health care -- two words -- refers to provider actions. Healthcare -- one word -- is a system. We need the second in order to have the first." (source: arcadia.io/final-word-healthcare-vs-health-care); Dictionary. com/ browse/ healthcare; Medicaleconomics.com/view/what-healthcare and Punjab Healthcare Commission v. Mushtaq Ahmad Chaudhry and others PLD 2018 Lah. 762 rel.

(b) Tort---

----Negligence, concept of---Negligence as a tort was the breach of a duty caused by omission to do something which a reasonable man, guided by such considerations which ordinarily regulated conduct of human affairs would do, or doing something which a prudent and reasonable man would not do---Actionable negligence consists in neglect of the use of ordinary care or skill towards a person to whom a defendant owed duty of observing ordinary care and skill, by which neglect plaintiff had suffered injury to his person or property---Three constituents of negligence were, one a legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; and second, the breach of the said duty; and thirdly, consequential damage---Cause of action for negligence arose only when damage occurred because such damage was a necessary ingredient of such tort.

Halsbury's Laws of England, Fourth Edition, Volume 30, para 34; Proclaimed by Babylonian King Hammurabi who reigned from 1792 to 1750 B.C. and B. Sonny Bal, An Introduction to Medical Malpractice in the United States, DOI 10.1007/s11999-008-0636-2 rel.

(c) Negligence---

----Medical negligence---Constituent elements to establish medical negligence---"Bolam test", concept and application of---Criminal liability for medical negligence---Concepts and comparative jurisprudence, discussed. [pp. 25, 27, 28, 29, 30] C, D, E, F & G

Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 583; Bolitho v. City and Hackney Health Authority, [1998] AC 232; Ratanlal and Dhirajlal, Law of Torts, Twenty-Fourth Edition (2002), edited by Justice G.P. Singh, p. 441-442. Also see: Blyth v. The Company of Proprietors of the Birmingham Waterworks [1856] EWHC Exch J65; Michelle Robson et al, Doctors Are Aggrieved -- Should They Be? Gross Negligence Manslaughter and the Culpable Doctor, The Journal of Criminal Law, (2020) Vol 84(4) 312-340, DOI: 10.1177/0022018320946498; Ash Samanta and J. Samanta, Legal standard of care: A shift from the traditional Bolam test (2003), available at: https://www.researchgate.net DOI: 10.7861/clinmedicine, 3-5-43; Margaret Brazier and Jose Miola, Bye-Bye Bolam: A Medical Litigation Resolution? Medical Law Review, 8, Spring 2000, pp. 85-114; R v. Bateman, [1925] All ER 45; Andrews v. Director of Public Prosecutions [1937] AC 576; V. Kishan Rao v. Nikhil Super Specialty Hospital and another (2010) 5 SCC 513; R v. Caldwell, [1981] 1 All ER 961; R v. Lawrence, [1981] 1 All ER 974; R v. Prentice and another, [1993] 4 All ER 935; R. v. Adomako [1995] 1 AC 171; Martin F D'Souza v Mohd. Ishfaq [(2009) 3 SCC 1; Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited and another (2019) 7 SCC 401; Dr. Suresh Gupta v. Government of NCT of Delhi and another AIR 2004 SC 4091 and Jacob Mathew v. State of Punjab and others AIR 2005 SC 3180 rel.

(d) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss.29, 30, 26, 2(xvii) & 2(xii)---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Medical negligence---Criminal liability for medical negligence---Healthcare service providers---Punjab Healthcare Commission---Exclusive jurisdiction of Punjab Healthcare Commission to adjudicate upon and prosecute (criminally) in matters of criminal medical negligence---Bar on jurisdiction against initiation of any other legal proceedings by S.29 of Punjab Healthcare Commission Act, 2010---Scope---Petitioners impugned order of Justice of Peace made under S.22-A, Cr.P.C., whereby it was directed that FIR be registered against petitioners---Contention of petitioners, inter alia, was that respondents had made complaint to the Punjab Healthcare Commission alleging medical negligence/malpractice by petitioners and such allegations against petitioners were found to be correct by said Commission, against which order petitioners had appealed against, and as such Punjab Health Commission had exclusive jurisdiction in the matter---Validity---Inquiry of the Punjab Healthcare Commission, in the present matter, established various commissions and omissions by petitioners, which fell within ambit of Punjab Healthcare Commission Act, 2010 and a decision against them was handed over by said Commission---Per S.29 of Punjab Healthcare Commission Act, 2010, a healthcare provider was to be held accountable only under said Act, and Punjab Healthcare Commission had exclusive jurisdiction to adjudicate upon complaints relating to provision of healthcare services and subject to S.26(2) of said Act, all other legal proceedings, civil or criminal, in respect thereof were barred---Justice of Peace was therefore not competent to entertain application of respondents under S.22-A, Cr.P.C.---Impugned order was set aside---Constitutional petition was allowed, accordingly.

https://www.refworld.org/pdfid/4538838d0.pdf; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1; Naimatullah Khan Advocate and others v. Federation of Pakistan and others 2020 SCMR 622; Sadaf Aziz and others v. Federation of Pakistan and others 2021 PCr.LJ 205; Mrs. Alia Tareen and others v. Amanullah Khan and 3 others PLD 2005 SC 99; Hatcher v. Black (1954); Sajid v. The State and another 2000 SCMR 167; Muhammad Aslam v. Dr. Imtiaz Ali Mughal and 4 others PLD 2010 Kar. 134; Craies, Statute Law, Seventh Edition, p. 213 (1971); D.P. Mittal, Taxmann's Interpretation of Statutes, ISBN: 81-7496-730-3, p. 774; Dr. Riaz Qadeer Khan v. Presiding Officer, District Consumer Court, Sargodha and others PLD 2019 Lah. 429; Abdur Rehman v. The State 1998 SCMR 1778 and Sikandar v. The State and another 2006 SCMR 1786 rel.

Rana Asif Saeed for Petitioners.

Waseem-ud-Din Mumtaz, Assistant Advocate General, with Sadiq Khan/SI. for Respondents Nos.1 and 2.

Rao Jamshaid Ali Khan for Respondent No.3.

Research assistance: Sher Hassan Pervez and Muhammad Shafiq, Research Officers, Lahore High Court Research Centre.

P L D 2022 Lahore 39

Before Muhammad Shan Gul, J

ZARMEEN ABID---Petitioner

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY, ISLAMABAD through Chairman and 5 others---Respondents

Writ Petition No. 7102 of 2020, decided on 22nd September, 2021.

(a) Constitution of Pakistan---

----Arts. 9, 10A, 13 & 25(2)---National Database and Registration Authority Ordinance (VIII of 2000), S. 18---Orphans with unknown parentage---Imaginary parentage---Petitioner (orphan girl with unknown parentage)was adopted and her foster mother remarried with 'B' after divorce from 'A'---B's name (Abid-ur-Rehman) was entered in National Database and Registration Authority (NADRA) record as father of the petitioner in adopted capacity---Form 'ب', childhood testimonials, educational degrees and cards carry name of 'A' as her father---Petitioner's National Identity Card was cancelled by NADRA on application of 'B' because she was not his daughter---Held, that it was serious violation of fundamental rights of persons if their identities were blocked on the ground of suspicion without giving them opportunity of hearing---Policy dated 21.08.2017 titled "Issuance of Computerised National Identity Card (CNIC) to Eunuchs" had recognised orphans with unknown parentage---Director General, National Database and Registration Authority was sensitized to follow the judgment passed in case of Mian Asia v. Federation of Pakistan through Secretary Finance and 2 others (PLD 2018 Lahore 54) in which eunuchs with unknown parentage had been ordered to be granted identity cards by filling in their parentage columns with random names culled from National Database and Registration Authority database---Endorsement of the name of "B" in the column of parentage in her identity card was quite meaningful in more ways than one for the petitioner---Said name in the column of parentage of the petitioner would not be of the 'A' being previous husband of petitioners' foster mother, but was rather in the nature of the imaginary 'Guru'---Denial of a CNIC is a blatant violation of the right to identity as such denial is an unlawful interference with the said right---Constitutional petition was allowed accordingly.

Mian Asia v. Federation of Pakistan through Secretary Finance and 2 others PLD 2018 Lah. 54 and Muhammad Umar v. Federation of Pakistan, through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2017 Sindh 585 rel.

(b) Constitution of Pakistan---

----Art. 9---National identity, guaranty---Vulnerable population, protection of---Guaranteeing a national identity document to those aged 18 and above was integral to ensuring protection from criminal activity like human trafficking, forced prostitution, bonded labour, etc.; and general menaces which tend to benefit from the lack of identity documentation of individuals, especially vulnerable population groups like women, persons with disabilities, indigenous people, transgender persons etc.

(c) Constitution of Pakistan---

----Arts. 14 & 25---International law---Dignity of girls/women---Duty of State---Scope---State, due to its commitments under International Law, has the duty/obligation to ensure dignity of a girl/woman.

(d) Constitution of Pakistan---

----Part II, Chapter 1---Fundamental Rights---Fundamental rights, kinds of---"Positive rights" and "negative rights"---Connotation---Positive rights are those that provided something to people and require action to ensure provision of the right (for example the right to education)---Negative rights are free from interference and thus limit the ability of other people/governments from taking action toward/against the right holder.

(e) Constitution of Pakistan---

----Arts. 9, 13 & 25---Right to identity---Scope---Right to identity is a fundamental, non-derogable, independent and autonomous right which is rooted in human dignity and preserves each human's distinct existential interest---Immaterial whether the national framework expressly includes said right---Constitution of Pakistan does not expressly include a 'right to identity', as such it is deduced from a range of positively recognised rights and principles of policy; including, inter alia, right to life, inviolability of dignity, and equality of citizens.

(f) Constitution of Pakistan---

----Arts. 9 &14---Respect for identity---Identity document, denial of---Duty of State---Scope---State must refrain from actively interfering with the individual's identity---Such responsibility encompasses protection from arbitrary denial of identity documents, as that directly violates the individual's right to identity and interferes with her name and ties to family, place and nation---State must promote the dynamic development of an individuals' identity by providing them with the right to change/ rectify collected personal data.

Ms. Farah Sharif Khosa for Petitioner.

Mian Faraz Samad, Legal Advisor-National Database and Registration Authority, Azhar Saleem Kamlana, Addl. Advocate General and Maj. (R) Imran Ali Khan, Director General, National Database and Registration Authority, Multan for Respondents.

P L D 2022 Lahore 46

Before Ch. Muhammad Iqbal, J

Mian ZAHID DAULTANA---Appellant

Versus

Begum TEHMINA DAULTANA and 5 others---Respondents

F.A.O. No. 51220 of 2021, decided on 24th August, 2021.

Punjab Mental Health Ordinance (VIII of 2001)---

----Ss. 37, 41, 46 & 52---Civil Procedure Code (V of 1908), S.22---Mentally disordered person, death of---Proceedings against manager, abatement of---Appellant was appointed as manager by Court of Protection but he was removed on the charges of embezzlement---Plea raised by appellant was that after death of mentally disordered person, all proceedings emerging out of guardianship of mentally disordered person's assets and properties stood abated---Validity---Where right to sue was still in existence as enunciated under S.41(2) of Punjab Mental Health Ordinance, 2001, read with S.22, C.P.C., proceedings remained continue and did not abate---Guardian/manager of mentally disordered person was under inescapable bounded obligation to tender complete statement of accounts of assets, income and expenditure etc. of mentally disordered lady as required under law as well as orders of Court---Court of Protection was competent under Ss.37, 41(2) & 52 of Punjab Mental Health Ordinance, 2001, to direct guardian/manager to furnish requisite detail or appoint any commission/expert to obtain correct information regarding fulfilment of obligations by appellant---Any defiance found on the part of guardian / manager was to invite invocation of penal provisions of law---High Court declined to interfere in order passed by Court of Protection as there was no illegality, material irregularity or jurisdictional defect in the order---Appeal was dismissed in circumstances.

P L D 2022 Lahore 55

Before Safdar Saleem Shahid, J

SAJID ALI---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Miscellaneous No. 50971-M of 2021, decided on 23rd August, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 174, 176 & 561-A---Cause of death, inquiry into---Locus standi---Sanctity of grave---Concurrent findings of facts by two Courts below---Petitioner was aggrieved of concurrent orders passed by Magistrate and Lower Appellate Court for exhumation/disinterment of dead body to determine cause of death---Plea raised by petitioner was that complainant had no locus standi to file such application and it would disgrace grave of the deceased---Validity---For passing order on application filed under S.176, Cr.P.C. nothing was necessary except that of satisfaction of Magistrate only to the extent that 'exhumation was necessary for knowing cause of death'---Such order was for the purpose to remove clouds of suspicion---Discretion needed to be exercised even if single reasonable circumstance/suspicion so justified---Determination of 'cause of death' would do nothing except setting criminal machinery into motion or otherwise---Such discretion should not be denied merely on account of request made by a stranger---Legal heirs were custodian of grave but when they themselves had come in sphere of suspicion, they would lose their such right---High Court declined to interfere in orders passed by two Courts below as disinterment of dead body of deceased was inevitable to determine cause of her death in order to inquire into allegations and suspicions levelled by complainant---Petition was dismissed, in circumstances.

Iqbal Bibi v. Additional Sessions Judge and others PLD 2017 Lah. 435; Ghulam Mustafa v. The State and 5 others 2015 YLR 2230; Muhammad Akram v. Additional Sessions Judge, Depalpur and 3 others 2014 PCr.LJ 1030; 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; Mst. Iqra Faisal and 5 others v. Zubair Khan and 7 others PLD 2021 Sindh 118; Faryad Ali v. The State 2008 SCMR 1086; Mst. Shama v. The State and 3 others PLD 2017 Lah. 337; Syed Riaz-ul-Hassan Shah v. Additional Sessions Judge, Vehari and 3 others 2006 YLR 2953 and Begum Ali v. Additional Sessions Judge and others PLD 2020 Lah. 394 ref.

P L D 2022 Lahore 61

Before Tariq Saleem Sheikh, J

AMEER HUSSAIN---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 48765 of 2021, heard on 1st October, 2021.

(a) Constitution of Pakistan---

----Art. 10---Safeguards as to arrest and detention---Preventive detention/administrative detention, concept of---"Arbitrary arrest/ detention"---Deprivation of liberty---Circumstances in which preventative detention was permissible---Concepts, comparative jurisprudence, and scope of international conventions, discussed.

Messrs Mustafa Impex, Karachi, and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Choi, Naomi. "Rule of law". Encyclopedia Britannica, https://www.britannica.com/topic/rule-of-law; Derek P. Jinks, The Anatomy of an Institutional Emergency: Preventive Detention and Personal Liberty in India, 22 Mich. J. Int'l L 311 (2001); Fazal Karim, Judicial Review of Public Actions, First Edition, 2006 p. 630; Elias, Stella Burch, Rethinking 'Preventive Detention' from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects (May 18, 2009). Columbia Human Rights Law Review, Vol. 41, 2009. Available at SSRN:https://ssrn.com/abstract=1406814;https://www.icrc.org/eng/assets/files/other/icrc_002_0892.pdf; R v. Halliday, [1917] AC 260; Union of India v. Paul Manickam and another AIR 2003 SC 4622; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 1981 SC 746; Anukul Chandra Pradhan v. Union of India and others AIR 1997 SC 2814; Diane Webber, "Extraordinary measures - A comparative approach to crafting a new legal framework for preventive detention of suspect edterrorists". Available at:https://repository.library.georgetown.edu/bitstream/handle/10822/1047843/webber_diane_dissertation.pdf?sequence=1&isAllowed=y; Hugo Van Alphen v. The Netherlands; Claire Macken, "Preventive Detention and The Right of Personal Liberty and Security under the International Covenant on Civil and Political Rights, 1966." Available at: http://classic.austlii.edu.au/au/journals/ AdelLawRw/ 2005/1.pdf; General Comment No.35 dated 16 December 2014 on Article 9 (Liberty and security of person). Available at: https:// www.icj.org/wp-content/uploads/2015/04/ General-Comment-CCPR-35-2014-eng.pdf; Van Alphen v. The Netherlands (Communication No. 305/1988) CCPR/ C/39/D/305/1988, UN Human Rights Committee (HRC), 23 July 1990, available at https://www.refworld.org/cases.HRC. 525414304.html [accessed 2 October 2021]; UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No.26, The Working Group on Arbitrary Detention, May 2000, No.26, available at http://www. refworld.org/docid/479477440.html [accessed 2 October 2021]; A v. Australia, HRC Communication No.560/1993, (April 30, 1997)CCPR/C/59/D/560/1993,¶9.2.; Case of Lopez-Alvarez, Inter-Am.Ct.HR, Judgment of Feb. 1, 2006, ¶¶67,68 (Honduras). Available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_141_ing.pdf; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Amatul Jalil Khawaja and others PLD 2003 SC 442; Paper on Preventive Detention in Pakistan, available at: rsilpak.org/ wp-content/uploads/2019/01/Preventive Dentetion-Maria-Article-ICRC.pdf; The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286; Kamleshkumar Ishwardas Patel v. Union of India and others (1995) 4 SCC 51; Ram Narayan Singh v. The State of Delhi and others (AIR 1953 SC 277) and Union of India v. Paul Manickam and another AIR 2003 SC 4622 and Maqbool Hussain v. State of Bombay AIR 1953 SC 325 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy/exhaustion of statutory remedies before invoking Constitutional jurisdiction of High Court---Cases of habeas corpus---Scope---While doctrine of "exhaustion of statutory remedies" was recognized in Constitutional law, however, courts were generally to distinguish between cases seeking enforcement of Fundamental Rights and those in which no such issue was involved---Constitutional petitions which were in nature of habeas corpus were not part of judicial review procedure, although grounds of issuing such writ were probably the same as of judicial review, and habeas corpus was not a writ "of right", not a writ "of course" and neither was a discretionary writ---Court was bound to issue writ of habeas corpus if on return, no cause or sufficient cause appeared and could not refuse it on ground of existence of alternate remedies---Where impugned order for detention was without jurisdiction, coram non judice, and mala fide, then same fell within exceptions to the concept of exhaustion of statutory remedies.

Union of India v. Paul Manickam and another AIR 2003 SC 4622; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Amatul Jalil Khawaja and others PLD 2003 SC 442; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140; Fazal Karim, Judicial Review of Public Actions, Second Edition, Vol III, p. 1457; Durga Das Basu, Commentary on the Constitution of India, 9th Edition, Vol. 10 page 10389 and Sheikh Rashid Ahmad v. D. M. Rawalpindi and others PLJ 2004 Lah. 1221 rel.

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

----Ss. 11-EEE, 2(i) & 33---Punjab Government Rules of Business 2011, Rr. 25, 26, 27 & 28---Punjab Maintenance of Public Order Ordinance (XXXI of 1960) S. 3---Constitution of Pakistan, Arts. 10 & 199---Constitutional jurisdiction of High Court---Power to arrest and detain suspected person---Preventive detention under Anti-terrorism Act, 1997---Power of Provincial Government to order such preventive detention---Violation/non-conformation to Punjab Government Rules of Business 2011 in procedure issuing notification for such preventive detention---Approval of Provincial Cabinet---Scope---Petitioner impugned order issued by Provincial Government whereby his detention under S. 11-EEE Anti-terrorism Act, 1997 was ordered, and sought immediate release---Validity----Keeping in view definition of "government" in S.2(i) of Anti-terrorism Act, 1997, there was nothing in S.11-EEE of said Act to restrict power to order preventive detention to just Federal Government and same could be legitimately exercised by Provincial Government in its own right without any delegation from Federal Government under S.33 of said Act---In the present case, Deputy Commissioner had issued impugned order purportedly in exercise of powers conferred on him by Home Department of Provincial Government vide a letter that was issued, and it was to be determined whether such conferment was valid---Provincial Government delegated its powers to the concerned Deputy Commissioner vide a notification which per Punjab Government Rules of Business 2011 needed to have Provincial Cabinet approval---Perusal of documents revealed that said Punjab Government Rules of Business 2011 had not been followed in the present case---Said matter was disposed of by Provincial Cabinet non-chalantly and no reasons as mandated by R. 27 Punjab Government Rules of Business 2011 were recorded by Cabinet Ministers in the approval for the summary, while date of said notification was prior to date of the Cabinet Decision communicated wide R. 28(15) of said Rules---Constitutionally mandated rules of business were twined with concept of good governance and were mandatory and Provincial Government had committed gross violations of said Rules in the present case which rendered the entire exercise nugatory---Petitioner was earlier detained under S.3 of Punjab Maintenance of Public Order Ordinance, 1960 and his release was directed by the Provincial Review Board and only upon failure of to keep him detained under said Ordinance, the Provincial Government detained him under S.11-EEE of Anti-terrorism Act, 1997, and legally speaking person released from preventive detention under a Provincial law could not be taken into custody under a Federal law provided that it could be justified---Impugned order was founded on same grounds which were rejected by Provincial Review Board formed under Punjab Maintenance of Public Order Ordinance, 1960---High Court observed that preventive detention was limited by principles of legality, need and proportionality and in present case, such balance tilted in favour of petitioner---Impugned order was set aside, and petitioner was ordered to be released---Constitutional petition was allowed, accordingly

https://www.mlaw.gov.sg/news/speeches/keynote-address-by-dpm-prof-s-jayakumar-at-the-iba-rule-of-law-symposium; Qari Muhammad Arif v. Secretary Home Department and others PLD 2021 Lah. 499 and Messrs Mustafa Impex, Karachi, and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 rel.

Burhan Moazzam Malik, Mian Pervaiz Hussain, Mian Tabbasum Ali and Ms. Saima Arif for Petitioner.

Ahmad Awais, Advocate General Punjab; Malik Javed Akhtar, Additional Advocate General; Zafar Hussain Ahmad, Additional Advocate General, Rai Shahid Saleem, Assistant Advocate General with Zahoor Hussain, Special Secretary (Home Department) and Irshad Ahmad, Section Officer (Internal Security) for Respondents Nos. 1 and 2.

Asad Ali Bajwa, Deputy Attorney General and Muhammad Haider Kazmi, Assistant Attorney General for Respondent No.3.

Date of hearing: 1st October, 2021.

"The Rule of Law concept, in essence, embodies a number of important interrelated ideas. First, there should be clear limits to the power of the State. A government exercises its authority through publicly disclosed laws that are adopted and enforced by an independent judiciary in accordance with established and accepted procedures. Secondly, no one is above the law; there is equality before the law. Thirdly, protection of the rights of the individual."1

P L D 2022 Lahore 84

Before Raheel Kamran, J

MERCK SHARP AND DHOME CORPORATION---Petitioner

Versus

HILTON PHARMA (PRIVATE) LIMITED and another---Respondents

Civil Revision No. 589 of 2013, decided on 2nd November, 2021.

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

----O.XXV, R.1---Security for costs, imposition of---Principle---Court can make an order for security of costs at any stage of the suit---Such order can be made either on application of defendant or of its own motion by Court and the same is to cover all costs incurred and likely to be incurred by any defendant but not the amount of any claim or decree---No amount is to be paid to defendant and all that O.XXV, R. 1, C.P.C. does at such stage is to secure costs incurred and likely to be incurred by defendant in defending a claim filed by a foreign plaintiff who does not possess any sufficient immovable property within Pakistan---Provision of O.XXV, R.1(1), C.P.C. applies to all kinds of suits and not just a suit for payment of money, which restriction has been imposed by Legislature under O.XXV, R.3, C.P.C. in relation to suits where plaintiff is a woman---Whether or not to make an order for security of costs under O.XXV, R. 1, C.P.C. is a discretion of Trial Court---In every case where defendant has to defend with no real prospect of being able to recover costs in the event of success, an order of security for costs has to be passed as a general rule and an exception with reason to be recorded.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Khursheed Ahmed Niaz Fareedi v. Bashir Ahmed and others 1993 SCMR 639; Ikram Hassan Khan v. Sajjad Aziz Bhatti and another 1997 MLD 3025; Naraindas v. Muhammad Ali Chand 1992 MLD 515 and Mst. Sakina and others v. Muhammad Akram and others 1991 MLD 1891 rel.

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

----O. XXV, R. 1---Security for costs---Quantum, determination of---Suit for permanent injunction was filed by petitioner/plaintiff to restrain defendants/respondents from committing any infringement/ counterfeiting/imitating its rights in its registered Patent---Trial Court directed petitioner/plaintiff to deposit in cash or furnish bank guarantee equivalent to the same amount as security for costs under O. XXV, R. 1, C.P.C.---Validity---Respondent/defendant claimed in its application Rs. 1.5 million i.e. equivalent to partial claim for damages in the suit without providing any particulars of the total cost incurred and likely to be incurred by it in defending proceedings in the suit---No determination of costs incurred and likely to be incurred by respondent/ defendant was made by Trial Court---Respondent/defendant had a right to defend itself in suits filed by petitioner/plaintiff as relief sought posed serious risks to its business, which entailed incurring of costs that could not be left unsecured following the general rule---No peculiar facts and circumstances were pointed out by petitioner/plaintiff to treat its cases as an exception to general rule to avoid an order of security for costs---Application of respondent/defendant could not be outrightly dismissed in entirety---Amount of security for costs claimed by respondent/defendant in each suit instituted by plaintiff had been found to be illusory and arbitrary, however same did not preclude Trial Court from securing them under O.XXV, C.P.C. for such part of claimed amount as would reasonably cover total costs for defending such claims---High Court set aside order passed on application under O. XXV, C.P.C. and case was remanded to Trial Court for decision afresh by determining proper amount of security for costs in each case---Revision was allowed accordingly.

Saqib Asghar Baig for Petitioner.

M. Shakil Abid and Ms. Nazima Kiran Chohan for Respondents.

P L D 2022 Lahore 92

Before Jawad Hassan and Sultan Tanvir Ahmad, JJ

Sheikh AZFAR AMIN---Appellant

Versus

Chaudhary ASIF ALI and 4 others---Respondents

Regular First Appeal No. 172 of 2016, decided on 6th September, 2021.

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

----S. 91, O.VI, Rr. 2 & 5, O.VII, R. 11---Public and private nuisance---Institution of suit without prior permission of Advocate-General in writing---Suit for permanent/mandatory injunctions---Alleged illegal construction of marriage-hall and parking on public playground of housing society---Grounds of public and private nuisance---Suit was rejected under O.VII, R.11 of Civil Procedure Code, 1908---Contentions of respondents/defendants that requirement of S. 91 of C.P.C. was not fulfilled; that public nuisance and private nuisance could not be complained against at the same time; and that suit had rightly been rejected according to law---Validity---Requirement of obtaining consent of Advocate-General and leave of the Court was limited to the cases where no special damage was caused to more than one person but nothing limited the right to sue that otherwise accrued or was available under the law to a person---Failing to resort to provision of S. 91(1) of C.P.C., was not terminal for a case when the conduct complained was also allegedly resulting into private cause of action or private nuisance---Appellant's plaint had contained a bunch of grievances, some pertaining to public nuisance and others relating to private nuisance/cause in individual capacity---Case was still at the initial stage and factors like (i) level of interference (ii) public utility/benefits, tendency of harms, suffered loss (iii) original utility of land, and (iv) nature of locality etc., were yet to be seen through evidence---Not justified to non-suit the petitioner straight-away by applying O. VII, R. 11 of C.P.C., despite injury/loss---Appellant was only required to give material facts in the plaint as per O. VI, R. 2 of C.P.C. and the further and better particular of the claim could have been ordered under O.VI, R.5 of C.P.C.---Rejection of plaint was declared by High Court as unjustified---Appeal was accepted accordingly.

Abdul Rashid through Legal Heirs and 6 others v. Mahmood Ali Khan 1994 SCMR 2163; Muhammad Rafique v. Tehsil Municipal Administration Chakwal and others 2020 MLD 1360; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others 2011 CLC 1866 and Muhammad Issa Abbasi through Legal Representatives and others v. Abdul Qadir through Legal Heirs and others PLD 2013 Sindh 60 rel.

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

----S. 91---Criminal Procedure Code (V of 1898), S. 133---Public and private nuisance---Cause of action---Special damage---Scope---One act that was crime under S. 133, Code of Criminal Procedure, 1898 and civil wrong under S. 91, Code of Civil Procedure, 1908, as public nuisance, could possibly provide a cause for an action as private nuisance to an individual---Section 91 of the Code of Civil Procedure, 1908, allowed the action for public nuisance even in the absence of proof of special damages, however, where an individual could prove the special damage, could maintain the action as private nuisance for the same act---Damage would qualify as special if it was particular and direct.

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

----Preamble & S. 151---Civil court, power of---Complete justice---Scope---Civil Procedure Code, 1908 was enacted to regulate the proceedings and mainly contained procedural laws, which were subservient to the cause of justice---Such laws would neither limit nor control the power of the Court to pass an Order/Decree, which was necessary to do complete justice in the facts and circumstances of the case.

Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 rel.

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

----S. 91---Suit with consent of Advocate-General---Scope---Suit by Advocate-General or with his consent was primarily a representation of people in the locality or people concerned.

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

----S. 91---Private nuisance---Scope---If complained conduct amounts to private nuisance, the permission of Advocate-General was immaterial.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 and Muhammad Ibrar Khan and another v. Deputy Commissioner and another 2017 CLC 635 rel.

(f) Torts---

----Private/public nuisance---Distinction---Right protected by the tort of 'private nuisance' was the right to enjoy one's property---Essence of the right that was protected by the crime/tort of 'public nuisance' was the right not to be adversely affected by an illegal act/omission that was jeopardizing the life, safety, health of public etc.---Unlike a private nuisance, a public nuisance would not necessarily involve interference with use/enjoyment of land---Both the torts were separate from each other and the rights protected by the said torts were also dissimilar, hitherto it was true that same act/omission might have given rise to both public and private nuisance---Same conduct could amount to both private and public nuisance---When an individual had suffered more particular damage greater than that suffered by the public, he could maintain the action as an individual.

The American Law Institute, Restatement of the Law, Torts, 2d (1979), Section 821B(h); Halsey v. Essco Petroleum Co. Ltd. [1961] All ER 145; Southport Corpn. v. Essco Petroleum Co. Ltd. [1954] 2 QB 182 and Re Corby Group Litigation [2009] QB 335 ref.

(g) Torts---

----Nuisance---Permission from local authorities---No justification---Scope---Subsequent permissions from the local authority could not always justify nuisance nor could it be taken as a licence to create nuisance, especially when it was done in a wrongful/negligent manner---Any damage to private individuals caused by the unreasonable method/manner of operation entailed liability notwithstanding permission of local authority.

Sh. Azfar Amin for Appellant (Appellant in person).

Syed Qalb-i-Hassan for Respondents Nos.1 to 3.

Raja Waqar Ilyas for Respondent No.5.

P L D 2022 Lahore 108

Before Shahid Jamil Khan, J

MUNIR AHMAD---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and 19 others---Respondents

Writ Petition No. 3834 of 2020 and (connected petitions), heard on 29th September, 2021.

Price Control and Prevention of Profiteering and Hoarding Act (XXIX of 1977)---

----Ss.3 & 6---Punjab Foodstuffs (Control) Act (XX of 1958), S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Price control---Object, purpose and scope---Essential commodities---Petitioners were aggrieved of rise in price of sugar in market---Validity---Price control are restrictions, set in place and enforced by government to manage affordability of certain goods and services---Such are imposed in two primary forms, 'price ceiling'; maximum price of commodities essential for living a respectable life and 'price flooring'; minimum price like limiting increase in rent, minimum 'living wage' and minimum 'support price' for growers of an essential crop---In open markets, prices are controlled by ensuring free competition---Government keeps check on potential anti-competitive behaviors like cartelization, hoarding etc.---Conversely imposition of restrictions to control prices of essential commodities is necessary to ensure respectable living for lower income class---After fixing minimum living wage, the government is under an obligation to bring essential commodities within fixed purchasing power---High Court declined to indulge itself in technicalities of price fixation as legal issues were already resolved or settled and a competent forum for such purpose had already been created under law---Constitutional petition was disposed of accordingly.

Regarding Enormous Increase in the Price of Flour 2014 SCMR 329 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others 2021 CLD 214 ref.

Muhammad Azhar Siddique, Mian Ali Asghar, Ali Mohsin Qazilbash, Naila Iqbal, Imtiaz Rashid Siddiqui, Salman Akram Raja, Ali Sabtain Fazli, Shahzad Ata Elahi, Shazib Masud, Chaudhary Ishtiaq Ahmad Khan, Barrister Haroon Dugal, Barrister Shehryar Kasuri, Raza Imtiaz Siddiqui, Nasir Javed Ghumman, Hasham A. Khan, Wajid Fareed, Ishtiaq Ahmad Khan, Rizwan Afzal Tarrar, Naila Iqbal, Salman Zaheer Khan, Imtiaz Ahmad Lona, Malik Umer Awan, Qadeer Ahmad Kalyar, Muhammad Hamza, Khurram Riaz Kahloon, Javed Abbas Sial, Qasim Raza Chadhar, Sohail Anjum Virk, Asad Abbas Raza, Muhammad Irfan and Imran Khan Klair for Petitioner (in connected Petitions).

Malik Naveed Sohail, Additional Attorney General for Pakistan.

Asad Ali Bajwa, Deputy Attorney General for Pakistan.

Monim Sultan, Assistant Attorney General for Federation of Pakistan.

M. Saad Bin Ghazi, Assistant Advocate General Punjab.

Hamid Attiq Sarwar, Federal Secretary, Ministry of Industries, Islamabad.

Wasif Khurshid, Secretary Industries, Punjab.

Ijaz Mehmood Chaudhary, Legal Advisor for FBR.

Ali Sarfraz, Secretary, Food, Punjab.

Ch. Muhammad Hammad for Competition Commission of Pakistan.

Waqar Latif and Ahsan Masood for PEMRA.

Ruman Bilal for SECP.

Umer Hayat, Law Officer on behalf of Commissioner, Lahore Division.

Muhammad Amin, Chief Agriculture Policy Institution, Ministry of National Food Security and Research, Islamabad.

Zaman Wattoo, Cane Commissioner, Punjab.

Nauman Ali Dogar, Assistant Commissioner, Tandlianwala.

Ahmad Qayyum and Chaudhary Sultan Mehmood, Amici curiae.

P L D 2022 Lahore 119

Before Abid Hussain Chattha, J

FARAH MAZHAR and 3 others---Petitioners

Versus

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

Writ Petition No. 14226 of 2019, decided on 19th July, 2021.

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

----S. 2---Exit from Pakistan (Control) Rules, 2010, R. 2(1)---Exit Control List---Civil disputes---Petitioners were family members of CEO of a company working at stock exchange, who was alleged to have embezzled invested amounts of his clients---Names of petitioners were placed on Exit Control List and they were prohibited from going abroad---Validity---Petitioners' case fell in none of the grounds listed in R.2(1) of Exit from Pakistan (Control) Rules, 2010---Dispute between CEO and clients of the company was essentially a private dispute---Petitioners were not directors or shareholders of the company---Case of petitioners did not fall under R.2(1)(b)(d) & (e) of Exit from Pakistan (Control) Rules, 2010---None of the petitioners was nominated by National Accountability Bureau (NAB) in Reference filed before Accountability Court and no role whatsoever was attributed to them---Benamidar accused as defined in National Accountability Ordinance, 1999, did not incur any penal liability who was entitled to show cause notice by Accountability Court during trial to afford opportunity to explain sources of income---If Benamidar failed to satisfy Accountability Court, the property was liable to be forfeited---High Court set aside order of placing names of petitioners on Exit Control List as there was no cogent or substantive reason to place names of petitioners on Exit Control List---Mere relationship of petitioners with CEO of the company was not a valid legal basis---Constitutional petition was allowed in circumstances.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others 2017 PCr.LJ 1569; Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570; 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; Riaz Ahmed v. Government of Pakistan and others PLD 2014 Isl. 29; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Ali Muhammad Turab v. Federation of Pakistan and 2 others PLD 2020 Isl. 454; Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others 2016 CLC 1534; Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others PLD 2008 Lah. 341; Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2016 Sindh 388; Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; Sh. Muhammad Mansoor v. Government of Pakistan through Secretary, Ministry of Interior and 3 others 2008 MLD 955; Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior through Secretary and others PLD 2010 Lah. 697; Masood Ahmed v. Federation of Pakistan through Secretary, Ministry of Interior Islamabad and another 2010 YLR 28; Mian Munir Ahmed v. Federation of Pakistan and others 2008 YLR 1508; Syed Masood Hussain Shah v. Federation of Pakistan through Secretary, Ministry 2015 MLD 124; Muhammad Sadiq v. Federation of Pakistan through Secretary Interior and 2 others PLD 2016 Sindh 263; Miss Ayyan Ali v. Federation of Pakistan and others 2017 PCr.LJ 920; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan and 4 others 2019 PCr.LJ 1123 and Chairman NAB through P.G., NAB, Islamabad v. Mian Muhammad Shahbaz Sharif and others, Order dated 27.10.2020 in C.P. No. 2082 of 2019 rel.

(b) Constitution of Pakistan---

----Art. 15---Magna Carta Libertatum, clause 42---Universal Declaration of Human Rights, Arts.3 & 13---International Covenant on Civil and Political Rights, Art.12---Convention on Rights of Person with Disability, Art.18(1)---International Convention on the Elimination of all Forms of Racial Discrimination, Art.5(d)(i) & (ii)---Convention on the Elimination of all Forms of Discrimination Against Women, Art.15(4)---African Charter on Human and Peoples' Rights, Art.12 (1) & (2)---Convention on the Rights of the Child, Art.10(1) & (2)---International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art.5---Freedom of movement---Scope---Right to movement has always been regulated by the State and is used a double edged weapon---Such right has to be liberally construed and granted subject to reasonable restrictions imposed by law---Discretion exercised by the executive is subject to judicial review---Provision of Art.15 of the Constitution is no exception and it recognizes the right to movement as fundamental right subject to restrictions imposed by law in public interest---Such right is not limited to movement within Pakistan but extends and includes right to leave and enter Pakistan---Right to movement is an inseparable part of right to life---Exercise of executive authority is subject to judicial review---State must come forward with legitimate and lawful cogent, reasonable, justifiable and substantive reasons to clog the right to movement of a citizen---If action taken speaks of malice or is based on mala fide or is otherwise taken arbitrarily and capriciously or without hearing or is unreasonable or without any substantive reason or is based on irrelevant, extraneous and presumptive considerations, the same is liable to be struck down.

U.S. Supreme Court in the case of Kent v. Dulles, 357 U.S. 116 (1958); Paul v. Virginia, 75 U.S. 168 (1869) and Corfoeld v. Coryell, 6 Fed. Cas 546 (1823) rel.

Muhammad Amjad Pervaiz, Barrister Muhammad Momin Malik, Muhammad Aurangzaib, Muhammad Nawaz Ch., Anwar Hussain, Muhammad Adil Chattha and Mian Nasim Saqlain for Appellants.

Hafiz Tallal, Legal Advisor for SECP.

Azmat Ali Khanzada, Deputy Attorney General for Respondents.

Assisted by: Ms. Uzma Zahoor, Research Officer, Lahore High Court, Lahore.

P L D 2022 Lahore 138

Before Muzamil Akhtar Shabir, J

SAGHIR AHMED---Petitioner

Versus

AMBASSADOR USA EMBASSY, ISLAMABAD PAKISTAN---Respondent

Diary No. 139270 dated 20th September, 2021, decided on 21st September, 2021.

(a) Constitution of Pakistan---

----Art. 199---Vienna Convention on Diplomatic Relations (1961), Art. 31---Civil Procedure Code (V of 1908), S. 86-A---Diplomatic and Consular Privileges Act (IX of 1972), S. 2---Constitutional jurisdictional of the High Court---Scope---Embassy/Ambassador of a foreign country---Issuance of visa---High Court in its constitutional jurisdiction cannot issue direction to an Embassy/Ambassador of a foreign country being sovereign entity to issue visa and air ticket to a citizen of Pakistan.

Petitioner, who was a citizen of Pakistan, invoked the Constitutional jurisdiction of the High Court seeking a direction to the Ambassador of USA Embassy, Islamabad, to issue visa and air tickets to the petitioner, to reach USA for attending to his application for asylum.

Neither the Ambassador nor the Embassy of USA fell in any category of 'person' provided under Article 199(5) of the Constitution that was subject to writ jurisdiction of the High Court.

With regard to the question as to whether the Embassy/ Ambassador of USA satisfied the function test to be amenable to writ jurisdiction of the High Court, it was clear that Ambassador of USA and its Embassy (which was the premises of foreign diplomatic mission of USA and was to be treated/deemed to be part of USA under the International Law) being representatives of another sovereign country and enjoying diplomatic immunity and protection under the Vienna Convention on Diplomatic Relations 1961 ("Vienna Convention") were not working in connection with the affairs of the Federation, Province or Local Government in and for Pakistan to perform function of the state of Pakistan involving exercise of its sovereign or public power or functioning as an authority under its control in a substantial matter and were not being supplied with funds provided by State of Pakistan. Hence, they could not be treated as performing functions in connection with the affairs of Federation of Pakistan, and consequently could not be held to be 'person' amenable to constitutional jurisdiction of the High Court.

Pakistan Defence Officers Housing Authority and others v. Lt.-Colonel Syed Jawaid Ahmed 2013 SCMR 1707 and Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676 ref.

High Court could not issue a direction in the nature of mandamus to the Embassy/Ambassador of USA as the court could only issue a direction to a respondent to do something when the said respondent was required by law to do the same, whereas no law of Pakistan could compel the Embassy/Ambassador to issue visa or air tickets to the petitioner and his family especially when it was the discretion of every sovereign country or its diplomatic mission to issue or refuse visa to the residents of other countries keeping in view their own laws, rules and regulations, policy, etc., from which the said missions drew their enabling powers, which were part of their domestic laws. Processing of application for visa had to conform to their pre-requisites on the basis of their domestic laws, which questions could be better decided by the authority vested with such duties under the sovereign authority of their respective country.

Page 1038 in Encyclopedia of Public International Law; Volume One published in 1992 by Elsevier Science Publishers B.V.SARA Burgerhartstraat, Amsterdam the Netherlands and International Law Sixth Edition published in 2008 by Cambridge University Press and authored by Malcolm N Shaw QC Sir Robert Jennings ref.

Furthermore section 86-A of C.P.C, provided immunity to diplo-matic agents against legal proceedings subject to certain exceptions and the same immunity was also provided under Article 31 of the Vienna Conven-tion on Diplomatic Relations, 1961. Said immunity provided by Article 31 had been recognized as having force of law in Pakistan vide section 2 of the Diplomatic and Consular Privileges Act, 1972

Petitioner's claim of infringement of fundamental rights could be made for seeking a remedy against State of Pakistan in the courts working in Pakistan but that claim could not be extended to pass a direction to an Ambassador/ Embassy of a foreign country to issue a binding direction for issuance of visa to the petitioner, which even otherwise was not his fundamental right.

Constitutional petition filed by the petitioner against the Ambassador, Embassy of USA was not maintainable.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Principles of the C.P.C., unless specifically barred, were applicable to constitutional petitions before the High Court as well.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 and Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70 ref.

Petitioner in person.

Barrister Hassan Khalid Ranjha, Assistant Advocate General for Punjab.

P L D 2022 Lahore 148

Before Jawad Hassan, J

MUHAMMAD UMAIS---Petitioner

Versus

CANTONMENT BOARD RAWALPINDI and others---Respondents

Writ Petition No. 1355 of 2021, heard on 9th June, 2021.

(a) Constitution of Pakistan---

----Arts. 9, 14, 15, 26 & 199---Security of person---Inviolability of dignity of man---Freedom of movement---Non-discrimination in respect of access to public places---Reasonable restriction---Scope---Petitioner claimed that the closure of a section of road by the respondents during peak hours of the evening for vehicular traffic had infringed his fundamental rights of dignity, movement, right to life and access to public places---Validity---Restriction imposed by authorities had not negated the right of movement rather it had regulated its exercise and the area still remained open and accessible for general public but only vehicular access was restricted for certain definite amount of time and pedestrian access through walking was available to the general public for that particular time---Freedom of movement was not infringed or denied in that limited area of sit out cafes rather the mode of moving freely through that specific portion of the area for specific amount of time was restricted only to the extent of vehicular access and not of the person himself---Petitioner had remained unable to point out any violation of fundamental rights, justiciable within the ambit of Art. 199 of the Constitution---Constitutional petition was dismissed accordingly.

Sheikh Asim Farooq v. Federation of Pakistan and others PLD 2019 Lah. 664; Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary v. Federation of Pakistan PLD 2012 SC 681; Jurist Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence PLD 2020 SC 1; Muhammad Ashraf and another v. Faisal Cantonment Board and another 2017 YLR 2091; Roshan Khan and 2 others v. Karachi Cantonment Board and 3 others 2007 CLC 693; Sajjad Ullah Qureshi v. Taluka Municipal Officer, Sukkur PLD 2012 Sindh 250; Ch. Muhammad Ishaque Advocate v. Cantonment Executive Officer, Chunian, District Kasur and another PLD 2009 Lah. 240; Madina Electric Market v. City District Government, Karachi PLD 2009 Kar. 309 and Ghulam Hussain v. Government of Sindh 2004 MLD 1936 ref.

Muhammad Tahir Jamal v. Government of Pakistan and others PLD 2020 Lah. 407 and Begum Khurshida Shorish and another v. Province of the Punjab PLD 2004 Lah. 744 rel.

(b) Constitution of Pakistan---

----Art. 201---Decision of High Court binding on subordinate Courts---Scope---Article 201 of the Constitution states that a decision of High Court if it decides a question of law or is based upon or enunciates a principle of law be binding on subordinate Courts---Decision on a question of law can only be made if question of law is framed and highlighted from the pleadings.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Scope---Petition filed pro bono publico to raise an issue relating to violation and enforcement of fundamental rights of the public is maintainable.

Muhammad Tahir Jamal v. Government of Pakistan and others PLD 2020 Lah. 407; Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229; Province of Sindh and others v. Lal Khan Chandio and others 2016 SCMR 48; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Mian Shabir Asmail v. Chief Minister of Punjab and others PLD 2017 Lah. 597; District Bar Association, Rawalpindi v. Federation of Pakistan and others PLD 2015 SC 401; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236; Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others 2014 CLC 1348 and Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary, Islamabad and others 2014 YLR 2571 ref.

Moulvi Iqbal Haider v. Capital Develoment Authority and others PLD 2006 SC 394; State v. M.D., WASA and others 2000 CLC 471; Government of The Punjab through Secretary Food, Punjab Secretariat, Lahore and 4 others v. Naeem Sarwar 2011 YLR 3087; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482 and Sheikh Asim Farooq v. Federation of Pakistan and others PLD 2019 Lah. 664 rel.

(d) Constitution of Pakistan---

----Art. 15---Freedom of movement---Reasonable restriction---Scope---General right of way in all its forms whether being an outcome of custom, a product of easement, a contract and as a creation of legislative instrument has always been subjected to certain limits and bounds.

Black's Law Dictionary (Tenth Edition, page 1522) and Halsbury's Laws of England Volume 87, Para 949, page 656 rel.

(e) Fundamental right---

---Legal right---Fundamental rights---Scope---Legal right is an interest recognized and protected by the rule of legal justice---Fundamental rights are those rights which are recognized, provided and pledged by the State to its citizens regardless of their colour or creed and beliefs or believes---However, each fundamental right is attached to a corresponding responsibility i.e. the right to be recognized equally before the law implies the responsibility to abide by the laws.

(f) Constitution of Pakistan---

----Art.15---Freedom of movement---"Reasonable" restriction---Scope---Article 15 of the Constitution makes it abundantly clear that it is a fundamental right of every citizen to move freely throughout Pakistan---However, reasonable restriction can be imposed to further the public interest by law on the exercise of such right of free movement---Word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reasons dictate---Concept of reasonableness is nothing but that of harmonizing individual right with collective interest---However, for the sake of determining reasonableness of a restriction so imposed, the basic principle must be kept in mind that the power to impose restriction granted under Constitution does not mean or include the power to destroy the very right, which is the subject matter of such regulatory dominion because the existence of right cannot be undone to nihility by way of authority to administer its exercise---Right is basic and fundamental whereas the power to administer the same is auxiliary and supplemental---Right is independent whereas the power to regulate the same does not exist independently and always dependent and contingent to the right so attached with.

Advance Law Lexicon, 4th Edition, Volume 4, Page 4070; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan Through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; 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; D.G. Khan Cement Company Ltd. through Chief Financial Officer v. Federation of Pakistan through Secretary Ministry of Law and 3 others PLD 2013 Lah. 693 and Judicial Review of Public Actions by Justice Fazal Karim, Second Edition, at Page 1123-1124 rel.

(g) Constitution of Pakistan---

----Art. 15---Freedom of movement---Scope---Freedom of movement of a citizen of Pakistan or any other person who is within Pakistan for the time being within the territorial bound of the country is his fundamental right as provided under Art. 15 of the Constitution---Nevertheless, said fundamental right is not absolute rather it is qualified and reasonable restriction can be imposed in the exercise of this right through law in public interest---However, it is the duty of the Court to examine, that if any restriction is imposed by law or by an authority established under the law, whether such restrictions advance the public interest is within the judicious bound of 'reasonableness' or not and whether the imposed restriction only regulates and not totally negates the freedom of movement on the touchstone and pretext of public interest.

(h) Constitution of Pakistan---

----Art. 26---Non-discrimination in respect of access to public places---Scope---In the absence of any glaring illegality or violation of fundamental rights, it is imperative that the Courts should exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any initiative taken by government or any statutory body/board to encourage and promote the business activities and to ensure the provision of places of public entertainment for the general public as mandated by Art. 26 of the Constitution.

Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others PLD 2020 Lah. 407 rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial restraint---Scope---Judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the statutory bodies/board having financial perspective and outcome and exercise.

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Judicial Review of Public Actions (Second Edition p. 639) by Justice (R.) Fazal Karim rel.

(j) Constitution of Pakistan---

----Art. 15---Freedom of movement---Reasonable restriction---Scope---Right to movement is not an absolute rather a qualified right, which can be subject to reasonable restriction to further the public interest.

(k) Administration of justice---

----Primary purpose of the law and duty of Courts to strike a balance between individual rights of a citizen and collective rights of the general public.

(l) Constitution of Pakistan---

----Arts. 15 & 26---Freedom of movement---Non-discrimination in respect of access to public places---Scope---Article 26 of the Constitution commands that there must not be any discrimination to access the places of public entertainment or resort---However, the manner to access such places can be regulated for the purposes of managing the flow of traffic, which ultimately is a thing directly related to the interest and convenience of the public as required by Art. 15 of the Constitution---For purposes of regulating traffic flow and to avoid traffic jams and gridlock situations, entry of vehicular access on a particular road can be controlled and regulated.

Haris Bin Hassan Jang v. Federation of Pakistan and others 2021 CLC 413 ref.

Petitioner by:

Kashif Ali Malik, Advocate Supreme Court, Qaisar Abbas Gondal, Basit Hassan Sheikh, Muhammad Umair Khan and Gulsher Ali.

Respondents by:

Waqar-ul-Haq Sheikh, Advocate Supreme Court and Ch. Muhammad Yaqoob, Legal Advisor for Rawalpindi Cantonment Board.

Tahir Malik, Assistant Attorney General.

Shaukat Rauf Siddiqui, Additional Advocate-General with Naveed Nawaz, Additional Executive Officer and Sajjad (S.I.) for City Traffic Officer, Rawalpindi.

Ahmad Zia Ch. and Haimd-ur-Rehman Nasir, Research Officers, Lahore High Court, Research Centre.

Date of hearing: 9th June, 2021.

What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.

P L D 2022 Lahore 177

Before Muhammad Shan Gul, J

MUHAMMAD HAMMAD UR REHMAN ZAFAR---Petitioner

Versus

DIRECTOR, FEDERAL INVESTIGATION AGENCY, LAHORE and another---Respondents

Writ Petition No. No.52390 of 2021, decided on 2nd September, 2021.

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

----Ss. 160 & 161---Term "any person"---Scope---Term "any person" includes an accused person or a person who is suspected of either having role in crime in question or who has with him some information which is relevant to crime in issue---Any person supposed to be acquainted with facts and circumstances of alleged crime includes accused person or even a suspect, as such person is acquainted and familiar with facts of crime in question.

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

----S.160---"Prematurity and ripeness", doctrine of---Notice of appearance---Petitioner was aggrieved of notice under S.160, Cr.P.C. issued in connection with criminal inquiry against him---Validity---Doctrine of prematurity and ripeness suggested that a matter was not amenable to adjudication in Constitutional jurisdiction, if it was either premature or not ripe for adjudication---Act complained of by petitioner did not give rise to any tangible grievance that could be addressed in law---Time of challenge coincided with yet not complete intervening process leading up to final act---Opportunity or chance, besides resort to Constitutional jurisdiction was still available to petitioner---To entertain judicial review at such incipient stage would tantamount to somewhat retarding statutory duties and obligations---High Court declined to interfere at inquiry stage as statutory responsibilities of Federal Investigation Agency to inquire into a crime which fell within its jurisdictional competence would be offended---Constitutional petition was dismissed, in circumstances.

Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, Islamabad and 2 others PLD 2007 Kar. 469; Niaz A. Baloch v. Chairman, National Accountability Bureau and 2 others 2008 PCr.LJ 1463; Maqbool Ahmed v. Station House Officer, Police Station Changa Manga, District Kasur and another 1999 PCr.LJ 1198; Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154; Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development 2002 SCMR 805; Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 1984 CLC 142; Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC (C.S.) 939; Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others 2011 PTD 2260; Messrs Chakwal Textiles Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others 2012 PLC 270; Abdul Raheem Khan, Executive Manager (Operation) MEPCO 1st Division, D.G. Khan v. Managing Director PEPCO, WAPDA House, Lahore and 2 others 2011 PLC (C.S.) 1551; Mst. Zahida Shama v. Secretary Education and others PLJ 2002 Lah. 1479; Tariq Mehmood v. Air Cdre. (R) Nayyar Q. Khawaja and 4 others 2003 PCr.LJ 1512; R v. Secretary of State for Foreign Affairs, ex. P. Rees Mogg (1994) QBD 552; R v. Chief Constable, ex. P. Merrill (1989) 1 WLR 1077 and R v. Commissioners of Inland Revenue, ex. P. Ulster Bank Limited (1997) STC 832 rel.

Malik Azhar Iqbal Khokhar for Petitioner.

Usman Arif, Deputy Attorney General on Court call with Ume Salma, Investigation Officer, CCRC FIA, Lahore for Respondents.

P L D 2022 Lahore 183

Before Tariq Saleem Sheikh, J

SAJIDA REHMAT ULLAH---Petitioner

Versus

GUARDIAN JUDGE-II and others---Respondents

Writ Petition No. 15203 of 2021, decided on 10th December, 2021.

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

----S. 17---Appointment of guardian of minor---Matters to be considered by Guardian Court in appointing guardian---Concept of "welfare of minor"---Scope---"Welfare" was an all-encompassing word and included material welfare, both in sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and also in sense of an adequacy of care to ensure that good health and due personal pride of minor were maintained---"Welfare" also signified stability and security; loving and understanding care; guidance, and warm and compassionate relationships that were essential for full development of a child's character, personality and talents---"Welfare" was a question of fact and had to be determined on basis of material placed before a Judge and not on presumptions.

Walker v. Walker and Harrison 1981 N.Z. Recent Law 257 and Rahimullah Choudhury v. Sayeda Helali Begum and others 1974 SCMR 305 rel.

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

----Ss. 17 & 7---Constitution of Pakistan, Art. 199---Constitutional petition---Appointment of guardian of minor---"Adoption" of minor by paternal aunt---Contest between biological parents and paternal aunt---Recording of statement of minor to determine minor's intelligent preference---Scope----Petitioner (paternal aunt) impugned order of Guardian Court whereby her application for recording of statement of minor to determine minor's preference was dismissed---Contention of petitioner, inter alia, was that recording of such statement was vital to determine question of minor's welfare---Validity---Minor's interview may help in a decision of a case as it may bring certain facts to guardian court's notice which may have been concealed or overlooked by parties during recording of evidence and thus it was preferable that Guardian Court should quiz such minor in detail---Ascertaining preferences of a minor and weight to be attached to same, however, were two different things and while questioning a minor, Guardian Court should not only consider minor's age and maturity but also see whether such minor had been tutored or was under undue influence of person with whom such minor was living for the time being---In the present case, minor was old enough to form an intelligent preference so petitioner was justified in invoking S.17(3) of the Guardians and Wards Act, 1890 however, perusal of impugned order showed that Guardian Court had declined petitioner's request not on ground that it was contrary to law but for reason that Guardian Court had already conducted such interview of minor, which was also reflected in the record---High Court observed that there existed no necessity for another application by petitioner for conducting such interview again, therefore, impugned order was justified---Constitutional petition was dismissed, in circumstances.

Rahimullah Choudhury v. Sayeda Helali Begum and others 1974 SCMR 305; Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others 1985 SCMR 1367; Nil Ratan Kundu and another v. Abhijit Kundu (2008) 9 SCC 413 and Muhammad Afzal v. Parveen Bibi 2017 MLD 1116 rel.

Syed Mujahid Naqvi for Petitioner.

P L D 2022 Lahore 188

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

THREE STARS HOSIERY MILLS LIMITED and others---Appellants

Versus

FEDERATION OF PAKISTAN and another---Respondents

I.C.As. Nos. 66182 and 66178 of 2021, heard on 17th November, 2021.

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

----Ss. 7 & 8(3)---Natural Gas Tariff Rules, 2002, R. 3(1)---Notification dated 18-7-2006, Item No.9 category A---Late Payment Surcharge (LPS)---Maxim 'actus curiae neminem gravabit' (act of the Court shall prejudice no man)---Applicability---Appellants were consumers of natural gas supplied by respondent company---Grievance of appellants was that respondent company could not charge Late Payment Surcharge as the matter was pending before Court---Validity---Liability to pay Late Payment Surcharge was imposed under item No.9, category A of Notification dated 18-7-2006, in the event of any bill not paid by due date---Whether the delay in making payment within time was deliberate and conscious or not was not relevant as liability to Late Payment Surcharge was attracted immediately after due date for payment expired---Reasons for non-payment by consumers were not relevant---Appellants were ongoing business concerns and had utilized money saved on account of interim order, gainfully in their commercial activities---Respondent company had to suffer financial loss because of the interim order---Respondent company required funds to meet its expenses for supply of gas---Appellants were consumers of respondent company and were required to pay bills promptly any delay in making payment caused loss to the company---Interim order was granted by Single Judge of High Court and by that order respondent company could not get payment of gas as per revised tariff from appellants by due date---After the petition was dismissed and Notification in question was upheld by High Court, respondent company was entitled not only to balance of gas charges but also to Late Payment Surcharge to meet its financial commitments---Maxim actus curiae neminem gravabit could not be pressed into service in favour of appellants, rather it was to be applied to protect interest of respondent company---Intra Court Appeal was dismissed, in circumstances.

Messrs Suraj Cotton Mills Ltd. through Mr. Adil Bashir and others v. Federation of Pakistan and others PLD 2021 Lah. 483; Kanoria Chemicals and Industrial Ltd. and others v. U.P. State Electricity Board and others (1997) 5 SCC 772; Messrs R.C.D. Ball Bearing Ltd. v. Sindh Employees Social Security Institution, Karachi PLD 1991 SC 308; Quinn v. Leathem (1901 AC 495); Style (Dress Land) v. Union Territory, Chandigarh (1999) 7 SCC 89 and Baz Muhammad Kakar and others v. Federation of Pakistan PLD 2012 SC 870 rel.

(b) Maxim---

----Actus curiae neminem gravabit (act of the Court shall prejudice no man)---Connotation---Factor attracting applicability of restitution is not the act of being wrongful or a mistake or error committed by Court---Test is whether an act of party persuading Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party---Nothing is wrong in parties demanding to be placed in the same position in which they would have been, had the Court not intervened by its interim order, when at the end of the proceedings, Court pronounces its judicial verdict which does not match with and countenance its own interim order---Injury, if any, caused by act of Court then the same has to be undone and gain which the party would have earned unless it was interdicted by the order of Court would be restored to or conferred on the party by suitably commanding the party liable to do so, otherwise party would continue to get benefit of interim order even after losing the case in Court.

Rodger v. Comptoir D' Escompte de Paris (1871) LR 3 PC 465; Peel (Regional Municipality) v. Canada (1992) 3 SCR 762 and Kingstreet Investments Ltd. v. New Brunswick 2007 SCC 1 rel.

Anis-ur-Rehman for Appellants.

Usman Arif, Deputy Attorney General and Khawar Bashir, Assistant Attorney General for Pakistan for Respondent No.1.

Imran Khan Klair for Respondent No.2.

P L D 2022 Lahore 197

Before Jawad Hassan, J

RIDA FATIMA---Petitioner

Versus

PAKISTAN MEDICAL COMMISSION and others---Respondents

Writ Petitions Nos. 56763, 57244, 57471, 58846, 59646, 61055, 61086, 61614, 62356, 62533, 63968, 64758 and 64870 of 2021, heard on 20th October, 2021.

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

----S. 18---National Medical and Dental Colleges Admission Test, 2021---Medical and Dental Colleges Admission Test---Scope---Expression "on a date"---Expression "single admissions test"---Scope---Petitioners called in question the procedure of National Medical and Dental Colleges Admission Test, 2021 (MDCAT) being contrary to S. 18(1) of the Pakistan Medical Commission Act, 2020---Contention of petitioners was that the Pakistan Medical Commission had conducted MDCAT, 2021 from 30th August, 2021 to 30th September, 2021 on daily basis whereas the words "a date" and "single admission test" were used in S. 18(1)---Validity---Expression "single admission test" referred to the fact that every student would only be allowed to appear and sit for one MDCAT and the context and object of the Act shed light on the purpose underlying behind the condition laid down under the Act, which clearly suggested that the emphasis was on substance and not on form, which meant that all the students must be adjudged on a single standard of testing and on a similar pattern of scoring with equal number of opportunity to participate in the examination in a single year and no preferential discrimination would be done in that regard---Words "on a date" and the expression "a single admission test" contained in S. 18(1) did not imply that the same must be read conjunctively---Words "a single admission test" clearly denoted a single attempt by every applicant; and, the words "on a date" undoubtedly meant the date approved by the Council---Constitutional petitions were dismissed.

ABWA Knowledge Pvt. Ltd. through Director and another v. Federation of Pakistan, through Secretary, National Health Services and another 2021 MLD 1455; Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islamabad and 22 others 2012 CLC 1071 and Hubdar Hussain Malik v. Deputy Commissioner Chakwal and another 2020 SCMR 1507 ref.

ABWA Knowledge Pvt. Ltd. v. Federation of Pakistan and others PLD 2021 Lah. 436 and Syed Ahmed Maaz and others v. Federation of Pakistan and others 2021 CLC 937 rel.

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

----S. 18---Pakistan Medical Commission Conduct of Examination Regulations, 2021, Reglns. 3 & 4---General Clauses Act (X of 1897), S. 13---Medical and Dental Colleges Admissions Test---Eligibility for MDCAT and attempts---Scope---Regulations 3 & 4 of Pakistan Medical Commission Conduct of Examination Regulations, 2021, when read in juxtaposition to S. 18 of the Pakistan Medical Commission Act, 2020, do not portray any of the violations, which are necessary to strike down a piece of delegated legislation---Regulations are well within the object and purpose of the Act and do not deviate or run contrary or beyond the mandate of S. 18 of the Act nor are they inconsistent or derogatory to the fundamental rights as guaranteed under the Constitution---Expression "single admission test" as used in S. 18 does not mean that such examination is to be conducted on a single day throughout the country rather the context of the provision clearly spell out the object of such condition as to enable an eligible candidate to participate in such an annually conducted examination only "single time in a year" and not specifically " on a single day throughout the country" because the intent and context of S. 18 provides the principle which is more of a substance and less of a form---Even otherwise, S. 13 of the General Clauses Act, 1897, also states that unless the subject or context dictates otherwise, the words used in singular shall include the plural and vice versa.

Government of Pakistan and others v. Messrs Saif Textile Mills Ltd. and 6 others 2003 SCMR 265 and Haq Nawaz and another v. Bashir Ahmad and 2 others 2006 YLR 3024 rel.

(c) Interpretation of statutes---

----Delegated legislation---Scope---Question before High Court was as to under what circumstances a delegated legislation or any part thereof can be put under judicial scrutiny to be followed by declaratory dictum of its being illegal and ultra vires---Held; if delegated legislation is directly repugnant to the general purpose and object of the very Act, under which such powers were created and passed on, or if it is repugnant to any settled and well established principle of statute or result of excessive delegated legislation then it can be declared ultra vires---Delegated legislation cannot be questioned on the ground of mala fide or unreasonableness because there is a strong general presumption attached to its legality and the onus to prove otherwise will be on the person who asserts it to be against the statute.

Suo Motu Case No.11 of 2011 (PLD 2014 SC 389) rel.

(d) Interpretation of statutes---

----Delegated legislation---Scope---Delegated legislation forms an important part of the statutory law, which expounds and explains the skeleton principles of the parent statute in order to achieve the purpose of the said legislation.

Jurisprudence, 12th Edition p. 116; Major Law Lexicon 4th Edition, 2010 page. 1890; M P Jain and S N Jain's Principles of Administrative Law (6th Edition at page 43) and Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630 rel.

Agha Intizar Ali Imran, Advocate Supreme Court for Petitioner (in W.P. No.56763 of 2021).

Ishtiaq A. Chaudhry, Advocate Supreme Court (in W.P. No.61614 of 2021).

Muhammad Shaukat Ali Khan for Petitioner (in W.P. No.61086 of 2021).

Mushtaq Ahmad Mohal, Advocate Supreme Court for Petitioner (in W.P. No.61055 of 2021).

Mian Bilal Bashir, Advocate Supreme Court and Mian Muhammad Aslam, Advocate Supreme Court for Petitioner (in W.P. No.62356 of 2021).

Ms. Sadia Malik, Assistant Attorney General for Pakistan for Respondents.

Barrister Ch. Muhammad Umar for PMC assisted by Mufti Ahtsham-ud-Din Haider and Rana Muhammad Ansar for Respondents.

Imran Muhammad Sarwar for the Respondent No.3/UHS.

P L D 2022 Lahore 214

Before Ahmad Nadeem Arshad, J

SAIMA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 17355 of 2019, decided on 23rd September, 2021.

Divorce Act (IV of 1869)---

----Ss. 7, 10 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Divorce and judicial separation---Allegation of adultery---Proof---Petitioner/plaintiff was Christian by faith who sought dissolution of marriage from respondent/defendant---Both the Courts below dismissed her suit on the ground that she had failed to prove allegation of adultery against respondent/defendant---Validity---Besides allegation of adultery, petitioner/plaintiff also alleged that respondent/ defendant had behaved in such a way that she could not reasonably be expected to live with him---Petitioner/plaintiff levelled allegation of cruelty and sought judicial separation on such ground also---Provisions of Ss.7 & 10 of Divorce Act, 1869 were to work together to make them Constitutionally compliant---High Court set aside judgments and decrees passed by two Courts below as petitioner/plaintiff had claimed judicial separation and ground of cruelty in the light of S.22 of Divorce Act, 1869, was available to her, resultantly petitioner/plaintiff was judicially separated from respondent/defendant---Constitutional petition was allowed, in circumstances.

Mst. Parveen Amanual v. Additional District Judge-III, Rahimyar Khan and 2 others PLD 2009 Lah. 213 and Pervaiz Afzal v. Mehwish and 2 others PLD 2020 Lah. 160 ref.

Ameen Masih v. Federation of Pakistan and others PLD 2017 Lah. 610 rel.

Junaid Ahmad Khan for Petitioner

Muhammad Khalid Khattak for Respondent No.3

P L D 2022 Lahore 224

Before Muhammad Tariq Nadeem, J

Qari MUHAMMAD ATTA ULLAH---Petitioner

Versus

DISTRICT POLICE OFFICER, SIALKOT and another---Respondents

Criminal Miscellaneous No. 52238-H of 2021, decided on 1st September, 2021.

(a) Police Rules, 1934---

----R. 25.55(3)---Police Order, 2002, R. 155(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Case dairies---Maintenance---Misconduct---Detenu was recovered from police station and his arrest was not mentioned in Roznamcha (daily dairy) of the police station---Contention of authorities was that the detenu was arrested in investigation of a criminal case but no case dairy could be produced in support of such plea---Validity---Case diary was not personal property of investigating officer---On returning of investigating officer from investigation of case at police station, he under R. 25.54(3) of Police Rules, 1934, was to number and date each case diary mentioned at the back side of FIR available at police station in relevant FIR register---Station House Officer and investigating officer exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of offence under S.155 (c) of Police Order, 2002---High Court directed police authorities to register FIR against the two officials---Constitutional petition was disposed of accordingly.

Asmat Parveen v. The State PLD 2021 Lah. 105 rel.

(b) Police Rules, 1934---

----R. 25.55(3)--- Investigation--- Case dairies--- Maintenance---Procedure---To curb illegal practice of police officials regarding arrest and production of accused before Area Magistrate, High Court issued directions:--

Following directions were issued by the High Court:--

i) Whenever, a person is arrested in any case, his arrest be incorporated forthwith in computerized as well as manual roznamcha with date and time;

ii) Similarly, when an accused is taken out from the police station for any purpose, a rapat should be written in this regard, vice versa on his return this practice should be adopted;

iii) To make the process of entry in roznamcha transparent, it is ordered that entries in manual roznamcha (register No. 2) be made through ball-point.

iv) Moreso, when the accused will be produced before the learned Area Magistrate for the physical or judicial remand, date and time of arrest must has been mentioned in the application for obtaining remand and in case of failure, learned Area Magistrate should refuse to entertain request of remand.

v) Police file/case diaries should be retained at police station as provided in Rule 25.55(3) of Police Rules, 1934 and whenever the investigating officer will proceed along with police file of case from police station for the purpose of investigation or any other purpose that facts should be incorporated in the roznamcha (register No. 2) and on return the same practice be also adopted, other than this, police file must be retained at police station.

Shafiq Ahmad Bhutta for Petitioner.

Nisar Ahmad Virk, DPG with Imran SHO concerned.

P L D 2022 Lahore 235

Before Anwaarul Haq Pannun and Muhammad Amjad Rafiq, JJ

ABDUL REHMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 19 and 78 of 2008, decided on 23rd June, 2021.

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

----S. 59---Gathering of evidence---Foreign requests---Object---Provision of S.59 of Control of Narcotic Substances Act, 1997 is to protect basic right of fair trial and due process in offences which are disclosed and reported beyond the limits of territory of a sovereign state---Non-observance of process contaminates and maligns whole process of inquiry, registration of FIR and investigation which renders the process as unfair, unjust and unlawful---On the basis of such unlawful foundation, trial cannot be held legal by stretching some provision of Cr.P.C. or Control of Narcotic Substances Act, 1997 for taking except to it.

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

----S.66---Extradition---Aut dedre, aut judicare, principle of---Applicability---Principle of aut dedre, aut judicare, finds its place in international criminal law ad is core principle in extradition offences---Such principle is usually applied in transition offences particularly organized one which affect more than one sovereign states---Principle of double criminality pushes such principle on the ground that if an act or omission is offence under laws of both or more sovereign states, offender should be tried and punished in either of the states and both sovereign states can ask to each other 'either to prosecute or to extradite 'which is called 'aut dedre, aut judicare'.

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

----Ss. 58 & 59---Qanun-e-Shahadat (10 of 1984), Arts. 89 (3) & 96---Criminal investigation in foreign country---Principle---Presumption cannot be imported from foreign jurisdiction about documents which are not admissible in evidence in legal system of Pakistan---Foreign documents which are not subject of criminal investigation can be admitted into evidence if certified as per law---Criminal investigation process has no scope for its admission in evidence unless it has undergone judicial scrutiny---Report of expert is per-se admissible but proceedings of recovery and affidavit of any witness is always subject to judicial scrutiny and contest thereof are to be proved by its maker---All such foreign documents without legal translation from High Commission, Embassy and Ministry of Foreign Affairs are not admissible in evidence.

Syed Hamid Saeed and others v. The State 2017 PCr.LJ 854; Mst. Mangti v. Mst. Noori and others 1995 CLC 210 and Mst. Moselle Eelias v. Kh. Ahmed Said PLD 1959 (W.P.) Kar. 760 rel.

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

----Ss. 9(c), 58, 59 & 60---Recovery of narcotic substances---Appreciation of evidence---Foreign assistance---Aut dedre, aut judicare, principle of---Applicability---Narcotics in heavy quantity was recovered in a foreign state alleged to have been shipped from Pakistan---Accused persons were employees of cargo services who were convicted by Trial Court and sentenced to imprisonment for fifteen years---Validity---Prosecution failed to prove that narcotics was impounded in container within the territory of Pakistan---Official who initiated inquiry and submitted investigation report did not appear in court as prosecution witness---None of the documents were signed or provided by accused persons---Such was a case of circumstantial evidence and no direct evidence was available---Role of accused persons discovered during inquiry was of a lethargic attitude whether intentionally or un-intentionally on the part of accused---Prosecution did not take central authority into picture to legalize initiation of inquiry, nor correspondence was made with respect to permission for aut dedre, aut judicare---Permission of High Court under S.59 of Control of Narcotic Substances Act, 1997, was not obtained for evidence gathering process and affidavit of foreign official was inadmissible in evidence---No commission was issued for recording of evidence of foreign police officials, nor any effort was made to record their statements through live link or Skype---Documents brought on record were not certified as per law---High Court set aside conviction and sentence awarded to accused persons as no case was made out by prosecution---Appeal was allowed, in circumstances.

Muhammad Munir v. State 1995 PCr.LJ 1255; Javaid Iqbal v. State 1995 PCr.LJ 1838; Liaqat Ali v. State 1995 MLD 1254;Sarfraz Ahmad v. State 1986 PCr.LJ 2965; The State v. Saleem Khan PLD 1985 Lah. 345 and Abdul Majid v. State PLD 1984 Lah. 450 rel.

Muhammad Ahsan Bhoon (in Criminal Appeal No. 19 of 2008) for Appellants.

Muhammad Shahbaz Rana (in Criminal Appeal No. 78 of 2008) for Appellants.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State/Complainant.

P L D 2022 Lahore 263

Before Ali Zia Bajwa, J

YASIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 43708-B of 2021, decided on 6th August, 2021.

(a) Anti-Rape (Investigation and Trial) Ordinance (XVI of 2020)---

----Preamble & S. 9---Investigation in respect of Scheduled offences---Scope---Rape and other forms of sexual assault are a life devastating and traumatic tragedies for any woman, equally burdensome is the process to bring the culprits of such incidents to book---Rape survivors immediately, after the misfortune, face an ill-disposed criminal justice system which encompasses rigors of medical examination, untrained investigation officers, less equipped prosecutorial system, scandalous/ embarrassing cross-examinations, agony of prolonged trial, threats to life and a social stigma of being a "rape victim".

(b) Anti-Rape (Investigation and Trial) Ordinance (XVI of 2020)---

----S. 9---Investigation in respect of Scheduled offences---Scope---Investigation of cases pertaining to sexual assault always remains focal point for the reformers of criminal justice system, as investigation of a criminal case is bedrock for carrying out successful prosecution of a criminal case, therefore flawed investigation often results in miscarriage of justice---Police officers are the "gatekeepers" of the criminal justice system and are usually the first to come into contact with crime victims---As such, they exert major influence on both the victim and the case---Under S. 9 of the Anti-Rape (Investigation and Trial) Ordinance, 2020, special procedure for investigation of cases pertaining to sexual assault has been provided to ensure a fair and impartial investigation through competent and senior police officers.

Salman Akram Raja's case 2013 SCMR 203; Irfan Ali Sher's case PLD 2020 SC 295 and Babar's case 2020 SCMR 761 ref.

(c) Anti-Rape (Investigation and Trial) Ordinance (XVI of 2020)---

----Preamble & S. 9---Investigation in respect of Scheduled Offences---Scope---Anti-Rape (Investigation and Trial) Ordinance, 2020 was promulgated to cater the shortcomings and failings of investigation procedure and of trials in cases of sexual assaults.

(d) Anti-Rape (Investigation and Trial) Ordinance (XVI of 2020)---

----Ss. 9 & 22---Investigation in respect of Scheduled offences---False investigation or complaint---Scope---If Anti-Rape (Investigation and Trial) Ordinance, 2020, requires investigation to be carried out in accordance with S. 9, it has to be conducted accordingly, or it shall amount to non-compliance of law and would carry penal consequences as provided in S. 22 of Anti-Rape (Investigation and Trial) Ordinance, 2020 and under the provisions of Police Order, 2002---Section 22 of Anti-Rape (Investigation and Trial) Ordinance, 2020, clearly provides that a police officer entrusted with investigation of Scheduled Offences can be punished with imprisonment of either description which may extend to three years and with fine, if he does not carry out investigation properly or diligently and it goes without saying that any investigation in violation of law cannot be termed as proper and diligent.

(e) Administration of justice---

----Selective justice itself is biggest injustice.

Noise Pollution's case AIR 2005 SC 3136 rel.

(f) Interpretation of statutes---

----Directory or mandatory statute---Scope---Legislative intention and object to make a law is main determinative factor to treat the provision of such law as mandatory or directory.

Javed Iqbal's case 2021 SCMR 328 rel.

Mudassar Ali Kamboh for Petitioner.

Mirza Nassar Ahmed, Additional Attorney General and Asad Ali Bajwa, Deputy Attorney General for the State.

Hafiz Asghar Ali, Deputy Prosecutor General with Dr. Moeen Masood, DIG (Legal), Muhammad Saleem Chughtai, AIG (Legal), Mian Tanveer Ahmed, D.S.P. (Legal), Sadia, Sub-Inspector/Investigating Officer.

Mian Faiz Ali and Asif Mehmood Khan for the Complainant.

Barrister Muhammad Ahmed Pansota and Barrister Azka Wahid, Amici Curiae.

Dates of hearing: 3rd, 4th, 5th and 6th August, 2021.

P L D 2022 Lahore 271

Before Muhammad Tariq Nadeem, J

ABDUL RASHEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, ARIFWALA, DISTRICT PAKPATTAN and 5 others---Respondents

Criminal Miscellaneous No. 49423-M of 2021, decided on 9th August, 2021.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Open letter transfer document---Scope---Grievance urged through the petition under S.561-A, Cr.P.C. was that the petitioner was entitled for superdari of the vehicle being its bona fide purchaser and in that regard he produced its transfer letter but the Revisional Court allowed the criminal revision filed by respondent on the wrong premise of law, therefore, the impugned order was liable to be set aside---Validity---Petitioner was only in possession of a photocopy of an undated transfer letter---Open letter was not a valid document of title and it did not transfer ownership of a vehicle in terms of the Provincial Motor Vehicles Ordinance, 1965---Registration certificate of the vehicle showed that the original owner of the vehicle was Bank---Petitioner had failed to establish his ownership of the vehicle, the application made by him for release of the vehicle was not maintainable and was wrongly allowed by the Judicial Magistrate---Property could be given on superdari under S. 516-A, Cr.P.C., if some offence appeared to have been committed or which appeared to have been used for commission of any offence---Ingredients of S. 516-A, Cr.P.C. were lacking in the case as no case was registered in respect of the vehicle---Petition was dismissed, in circumstances.

Amjad Ali Khan v. The State and others PLD 2020 SC 299 rel.

Muhammad Yousaf v. Muhammad Ramzan and 6 others 1999 PCr.LJ 968; Jam Sher Muhamamd v. Manzoor Amad and another 2006 PCr.LJ 311; Ali Muhammad v. Additional Sessions Judge and others 2007 MLD 1096 and Mst. Humera Arshad v. The State and another 2011 MLD 704 ref.

Syed Wali Anjum v. Muhammad Abdul Hussain and another 1999 PCr.LJ 1167; Mst. Manzoor Begum v. Station House Officer, Police Station City, Bahawalnagar and another 2002 YLR 868; Haseeb Akram v. District Magistrate Mirpur (A.K) and 3 others 2012 MLD 1718; Rafiullah v. Additional, Advocate-General, Peshawar High Court Bench Mingora/Darul Qaza, Swat and another 2016 PCr.LJ 437 and Jamal-ud-Din Ahmed v. Muhammad Maqbool and 2 others 2011 PCr.LJ 1513 distinguished.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---In statutes governing criminal administration of justice, the words "superdari" has not been used---Same was to be defined in its practical prospect as the interim custody of seized property connected with an offence, or suspected to have been stolen or found under circumstances which create suspicion of any offence, to the person entitled to its possession in lieu of furnishing a surety bond by the order of the Court for its production whenever necessary.

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

----Ss. 516-A, 517 & 523---Order for custody and disposal of property pending trial in certain cases---Order for disposal of property regarding which offence committed---Procedure by police upon seizure of property taken under S.51 or stolen---Scope---Word which has been used in the criminal procedural law to cater for the concept of superdari is "interim disposal"---Disposal of any seized property under the provisions of Cr.P.C. may be either interim or final---Interim disposal is grant of custody of a seized property pending the conclusion of investigation or inquiry or trial whichever the case may be whereas the final disposal is ordered after investigation, inquiry or trial---In fact, interim disposal of a seized property has been named and called by Courts as "superdari"---Superdari continues till the seized property is finally disposed of under S. 517 or 523, Cr.P.C.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---Conditions for passing an order regarding superdari of property, detailed.

Order regarding superdari of a property is made when the following essential conditions are present;

1. There must have been investigation, inquiry or trial.

2. The property in respect of which the order is to be made must be one regarding which any offence appears to have been committed or which has been used for commission of any offence.

3 It is alleged or suspected to be stolen or when it is found in circumstances which give rise to a suspicion that an offence has been or is about to be committed.

4 It has been taken into custody.

5 It is produced in the Court.

6 Its seizure is reported to the Magistrate.

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

----Ss. 516-A & 523---Order for custody and disposal of property pending trial in certain cases---Procedure by police upon seizure of property taken under S.51 or stolen---Scope---After seizure of the property by police an order for its superdari (interim disposal) can be passed by the Court and police is expected to hold this property subject to the order of the Court which may be passed either under S.516-A, Cr.P.C. or under S.523, Cr.P.C.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---Superdari order was to be passed in favour of a person entitled to its possession or from whom it was recovered unless there are strong reasons against it.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---Property can be given on superdari under S.516-A, Cr.P.C., if some offence appears to have been committed or which appears to have been used for the commission of any offence.

P L D 2022 Lahore 278

Before Jawad Hassan, J

AZHAR ABBAS HAIDERI---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 55467 of 2021, decided on 5th October, 2021.

(a) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 5---Constitution of Pakistan, Arts. 20 & 199---Freedom to profess religion and to manage religious institutions---Power to control suspected persons---Discretionary jurisdiction of Deputy Commissioner---Judicial review, non-availability of---Availability of alternate remedy---Scope---Grievance of the petitioner pertained to an order passed by the Deputy Commissioner whereby he was barred to enter in a district to take part in any majlis and making any speech there because according to the respondents the previously registered FIR against the petitioner for making derogatory/objectionable speech was clearly reflective of the fact that his speech could cause serious prejudice to the law and order of the society and pose a potential threat to the peace and tranquility of the area---Validity---Deputy Commissioner was competent under S. 5(1) of the Punjab Maintenance of Public Order Ordinance, 1960, to pass an order directing that a person shall not enter, reside or remain in any area as specified therein in order to prevent him from acting in any manner prejudicial to public safety or public interest or the maintenance of public order---Executive functionaries had to be given autonomy of discretion with enough space to carry out their job without let or hindrance as it was essential as well as expedient that exercise of freedom was to be reasonably regulated on administrative considerations on the paramountcy of larger public interest because the public functionaries and executive authorities were the best judges to evaluate the nature and magnitude of threats so as to take all appropriate remedial measures/steps required to obviate impending disasters and these were not justiciable issues---Order passed by the Deputy Commissioner was well within his competence and defined domain---Constitutional petition was dismissed.

Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Departtnent, Government of East Pakistan PLD 1957 SC (Pak.) 9; Suo Motu Actions regarding suicide bomb attack of 22.09.2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral PLD 2014 SC 699; Hubdar Hussain Malik v. Deputy Commissioner Chakwal and another 2020 SCMR 1507; Manzoor Hussain v. Government of Punjab through Chief Secretary, Punjab Lahore and others 2021 LHC 3498; 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.

Hubdar Hussain Malik v. Deputy Commissioner Chakwal and another 2020 SCMR 1507 rel.

(b) Constitution of Pakistan---

----Art. 20---Freedom to profess religion and to manage religious institutions---Scope---Article 20 of the Constitution forms the part of Chapter 1, Part-II of the Constitution comprising of fundamental rights pledged to the citizens that every citizen shall have the right to profess, practice and propagate his religion---However, it was imperative to note that the recognition of right of religion, professing and propagation thereof was not unbounded and absolute rather Art. 20 of the Constitution had unequivocally stipulated that the exercise of said right was always dependent and contingent on three basic requirements/ factors i.e., subject to law, public order and morality---Significance of said three qualifying criterions could be best understood from the fact that from all other Articles of Part-II, Chapters 1 & 2, which dealt with the Fundamental Rights, Art. 20 was the only one which began with the phrase "subject to law, public order and morality"---Qualifier phrase used in the beginning of the Art. 20 of the Constitution, further laid stress on the point that the given right to profess, practice and propagate religion was guaranteed and available to such an extent that did not run contrary or cause prejudice to all the said three determinatives, which in fact struck a balance between individual freedom and collective liberties on the touchstone of mutual respect, forbearance, peace and tranquility---It was otherwise open to the Constitution to say that a power granted by it might be regulated by a validly and competently enacted law by the Legislature.

Zaheeruddin and others v. The State and others 1993 SCMR 1718; Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra and others AIR 1954 SC 282 at p. 291; Agha Abdul Karim Shorish Kashmiri and others v. Province of West Pakistan PLD 1969 Lah. 289 and Dewan Hamid Masood Chishti and others v. Province of Punjab and others 2020 CLC 1885 rel.

(c) Constitution of Pakistan---

----Art. 19---Freedom of speech---Scope---Article 19 of the Constitution, which provides freedom of speech, is subject to any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency and morality.

Pakistan Broadcaster Associations v. Pemra and others PLD 2016 SC 692 rel.

Muhammad Yousaf Javaid Phaphra for Petitioner.

Barrister Syed Ali Nouman Shah, Assistant Advocate General Punjab with Jaweria Maqbool, Additional Deputy Commissioner, Lahore for Respondents.

P L D 2022 Lahore 288

Before Shahid Waheed, J

INDEPENDENT MEDIA CORPORATION (PVT.) LTD. and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos. 100 and 1524 of 2022, decided on 24th January, 2022.

(a) Constitution of Pakistan---

----Art. 199---Writs of mandamus and certiorari---Government corporations and agencies---Factors that determine whether such a corporation or agency was a person performing functions in connection with affairs of the Federation or Province against which writs of mandamus or certiorari could be issued stated.

For determining whether a Government corporation or agency is a person performing functions in connection with affairs of the Federation or Province against which writs of mandamus or certiorari could be issued, the diagnostic tool is functional realism and not facial cosmetics.

It is immaterial whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry is not as to how the juristic person is born but why it has been brought into existence. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not. Notwithstanding the above, few things are clear, firstly, if the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government; secondly, if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government; thirdly, where the financial assistance of the Government is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character, and fourthly, existence of deep and pervasive Government control may afford an indication that the corporation is a Government agency or instrumentality.

The Constitutional Law of the "Security State" by Arthur S. Miller (10) Stanford Law Review 620 at 664; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; R.D. Shetty v. The International Airport Authority of India and others (1979) I S.C.R. 1042 and Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others PLD 2009 SC 406 ref.

(b) Constitution of Pakistan---

----Art. 199---Writs of mandamus and certiorari---Pakistan Television Corporation Limited ('the PTVC')---Instrumentality or agency of the Government---Pakistan Television Corporation Limited performed functions in connection with affairs of the Federation against which a writ of mandamus or certiorari can be issued.

Perusal of the Memorandum and Articles of Association of the Pakistan Television Corporation Limited ('the PTVC') showed that its Board of Directors are appointed by the Government of Pakistan. The PTVC is a public limited company with an authorized capital of Rs.3.000 billion and the Government holds entire paid up share capital of Rs.1529.300 million. The objective of the PTVC is to establish a network of television stations in Pakistan by erecting, constructing, maintaining and improving television stations at places approved by the Government of Pakistan, and to carry out instructions of Government of Pakistan with regard to general pattern of policies of programmes, announcements and news etc. It will thus, be seen that the Government of Pakistan has full control of the working of the PTVC and it would not be incorrect to say that in the affairs of the PTVC, the voice and hands are of the Government of Pakistan. The PTVC is an instrumentality or agency of the Government and qualifies as a person performing functions of the Federation against which a writ of mandamus or certiorari can be issued.

(c) Constitution of Pakistan---

----Art. 199---Government instrumentalities or agencies---Commercial and contractual transactions and administrative decisions---Judicial review---Principles governing judicial review of commercial/contractual transactions and administrative decisions undertaken by Government instrumentalities or agencies stated.

Following are principles governing judicial review of commercial/contractual transactions and administrative decisions undertaken by Government instrumentalities or agencies stated:

(i) The basic requirement is fairness in action by the Government, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to judicial review only to the extent that the Government must act validly for a discernible reason and not whimsically for any ulterior purpose. If the Government acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(ii) In the matter of awarding a contract, greater latitude is required to be conceded to the Government. Unless the action of the Government is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;

(iii) If the Government or its instrumentalities act reasonably, fairly and in public interest in awarding a contract, interference by Court is very restrictive since no person can claim a fundamental right to carry on business with the Government;

(iv) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made;

(v) The Court does not have the expertise to correct an administrative decision. If a review of an administrative decision is permitted the court will be substituting its own decision, without the necessary expertise which itself may be fallible, and;

(vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1947) 2 All ER 680; Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141; Regina v. Monopolies and Mergers Commission, Ex parte ARGYLL GROUP PLC (1986) 1 W.L.R 763; Regina v. Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd. (1988) AC 858; Regina v. Secretary of State for the Home Department, Ex parte Brind and others (1991) AC 696; Tata Cellular v. Union of India (UOI) (AIR 1996 SC 11); Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47 and Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others 2018 SCMR 365 ref.

(d) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 5(1)---Public Procurement Rules, 2004, R. 4---Constitution of Pakistan, Art. 199---Partnership/joint venture agreement between Pakistan Television Corporation Limited ('the PTVC') and two private entities, ARY Communications Limited (the ARY) and Group M Pakistan Private Limited ('Group M') for broadcasting rights of a cricket league---Legality---Plea of petitioner-company that PTVC without asking it or other broadcasters whether they were interested in collaborating with the PTVC, could not contract directly with ARY/Group M---Validity---Petitioner-company has a personal interest in the present litigation as it is motivated purely by its own economic interest, which fact was evident from its own letter asking the Managing Director, PTVC to cancel the agreement with the ARY/Group M and enter into partnership with it on the same terms---Petitioner-company has no cause of complaint and since it was not treated unfairly, there was no need to comment upon the application or otherwise, of the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Rules made thereunder, to the present case---Decision of the PTVC relating to execution of agreement forming business partnership/joint venture with the ARY/Group M, is bona fide and in public interest.

Pakistan Television Corporation Limited ('the PTVC') is a State-owned corporation and in order to bring transparency in its commercial affairs, it is imperative that it should provide a level playing field to all public and private entities. Looking at the record of the present case, it is clear that the PTVC, complying with the said requirement of law, had solicited proposals for public-private partnership through a newspaper advertisement. This was a sufficient notice to the public at large.

The petitioner-company should have been vigilant for the growth of its business and taking advantage of this opportunity, should have submitted its proposal to the PTVC. It did not do so and wasted its time and thus is protesting at a belated stage. It is also on record that in response to newspaper advertisement, four companies ventured their proposals and the PTVC entered into business agreement with the ARY/Group M through a competitive bidding process and thus, the complaint of the petitioner-company is not justified and as a result, it also cannot be permitted to invoke the discretionary power of the High Court for the grant of an order in the nature of a writ of certiorari or mandamus as it has failed to show that the agreement forming business partnership/joint venture between the PTVC and ARY/Group M, has occasioned some injustice to it.

The Queen v. Lord Newborough (1869) LR 4 Q B 585 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

On the contrary, in the present case, the petitioner-company has a personal interest in the present litigation as it is motivated purely by its own economic interest and this is evident from its own letter asking the Managing Director, PTVC to cancel the agreement with the ARY/Group M and enter into partnership with it on the same terms. It means that the terms on which the PTVC has agreed to form partnership/joint venture with the ARY/Group M are flawless and financially sound, and that the present petition is not in the public interest but for personal economic interest of the petitioner-company. Petitioner-company just wants the entire process reversed so that it can get the contract of broadcasting rights for the cricket league. By all means, this is a malicious attack, and given such circumstances, the exercise of constitutional jurisdiction would amount to allowing the petitioner-company to throw spanner in the economic affairs of the PTVC. The petitioner-company has no cause of complaint and since it was not treated unfairly, there was no need to comment upon the application or otherwise, of the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Rules made thereunder, to the present case.

Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others PLD 2009 SC 406; Petrosin Corporation (Pvt.) Ltd., Singapore and 2 others v. Oil and Gas Development Company Ltd. through Managing Director, Islamabad 2010 SCMR 306; Muhammad Shafique Khan Sawati v. Federation of Pakistan through Secretary Ministry of Water and Power, Islamabad and others 2015 SCMR 851 and Premier Battery Industries Private Limited v. Karachi Water and Sewerage Board and others 2018 SCMR 365 ref.

It is clear that the decision of the PTVC relating to execution of agreement forming business partnership/joint venture with the ARY/Group M, is bona fide and is in public interest. Constitutional petitions were dismissed.

(e) Constitution of Pakistan---

----Art. 199---Public interest litigation---"Aggrieved person"---Scope---'Public spirited person' litigating in public interest---Meaning of "aggrieved person" included a public spirited person who brings to the notice of the High Court a matter of public importance requiring enforcement of Fundamental Rights---Public interest litigation undertaken by a person must in the first place clearly demonstrate its complete bona fide that such litigation is not being undertaken to serve a private interest but is aimed at serving a public interest, good or welfare---Judicial review cannot be permitted to be invoked to protect private interest at the cost of public interest.

Bahzad Haider and Salman Faisal for Petitioners (in Writ Petition No. 100 of 2022).

Khawar Bashir, Assistant Attorney General for Pakistan (in Writ Petition No. 100 of 2022).

Ahmad Pansota, Shah Jahan Khan and Ahtasham Mukhtar for Respondent No.2/PTV (in Writ Petition No. 100 of 2022).

Aitzaz Ahsan and Shahid Saeed for Respondent No.3/ARY (in Writ Petition No. 100 of 2022).

Taffazal Haider Rizvi and Haider Ali Khan for Respondent No.4/PCB (in Writ Petition No. 100 of 2022).

Mehmood Ali and Farah Malik for Petitioners (in Writ Petition No. 1524 of 2022).

Khawar Bashir, Assistant Attorney General for Pakistan for Respondent No.1 (in Writ Petition No. 1524 of 2022).

Ahmad Pansota, Shah Jahan Khan and Ahtasham Mukhtar for Respondent No.2/PTV (in Writ Petition No. 1524 of 2022).

Aitzaz Ahsan and Shahid Saeed for Respondent No.3/ARY (in Writ Petition No. 1524 of 2022).

Taffazal Haider Rizvi and Haider Ali Khan for Respondent No.4/PCB (in Writ Petition No. 1524 of 2022).

P L D 2022 Lahore 302

Before Abid Aziz Sheikh, J

Dr. MUHAMMAD AZEEM KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another---Respondents

Writ Petition Nos. 26387, 27255 and 30330 of 2021, decided on 21st December, 2021.

(a) Constitution of Pakistan---

----Arts. 199 & 112---Civil Servants Promotion (BPS-18 to BPS-21), Rules, 2019, Rr. 8 & 10(5)---Promotion---Constitutional petition---Maintainability---Fitness for promotion, determination of---Exclusive jurisdiction of Authorities---Exception---Officers of Police Service including Petitioners were considered for promotion from BPS-20 to BPS-21---Officers Central Selection Board (CSB) recommended "supersession" of petitioners in a meeting and did not promote them---Petitioners contended that after supersession instead of waiting for full one year, another CSB meeting was held in which petitioners were again superseded through impugned orders; that in CSB meeting only one year PER was considered whereas other PERs in which petitioners were found to be excellent" were not considered; that no adverse material was there in PER, but the same was found from somewhere by CSB; that High Court had concurrent jurisdiction in the matter; that petitioners challenged the impugned orders being against Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019, hence constitutional petition was maintainable---Held, that meeting of CSB took place and impugned order/letter communicated in Federal Capital Territory, but the Federal Government was functioning all over the country, and petitioners being residents of the province could agitate their grievance within the territorial jurisdiction of High Court of said province in which the impugned orders had affected them---High Court had concurrent jurisdiction of adjudicating the matter---Matters being for determination of fitness of civil servants for promotion, Service Tribunal had no jurisdiction in the matter and bar of Art. 112 of the Constitution was not applicable---Under R. 10(5) of the Rules, 2019 civil servant once superseded for promotion under R. 8 of the Rules, 2019, would be eligible for reconsideration only after earning one more PER of full year---Once the petitioners were superseded by CSB in its meeting under R.8(a), their cases could only be reconsidered for promotion after they earn one more PER of full one year as required under R.10(5) of the Rules, 2019---Argument made by Law Officer that in decision of CSB , PERs of 2018 were considered, whereas in CSB meeting , 2021, the PERs of 2019 were considered---Such an argument had no legs to stand in view of said R.10(5)---Question of fitness/ suitability for promotion had always been considered to be exclusively within the jurisdiction of the competent authority not shared by Courts/ Tribunals, exercising supervisory jurisdiction in respect of eligibility/ qualification---However, said principle was not attracted to cases where question was not substitution of an opinion of the competent authority but the vires of orders passed by CSB and competent authority were in question being against R.10(5) of the Rules, 2019---All the instant Constitutional petitions were allowed and respondents/authorities were directed to reconsider cases of petitioner for promotion.

Muhammad Iqbal and others v. Executive District Officers (Revenue), Lodhran and another 2007 SCMR 682 rel.

Sikandar Hayat Maken v. Federation of Pakistan, (W.P. No. 8 of 2020 passed by Islamabad High Court dated 06.08.2020 distinguished.

(b) Constitution of Pakistan---

----Arts. 198 &199---Territorial jurisdiction of High Court---If an authority was established under federal law and performing functions in connection with affairs of Federation, then regardless of where the authority was situated, if it passed any order/undertook any proceedings in relation to any person living/posted in any of the provinces, the High Court of that province in whose territory, the order would effect that person, would be competent to exercise jurisdiction in the matter.

LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others 2009 CLD 1498; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messers AL-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 and Messrs Jet Greet (Pvt.) Limited v. Federation of Pakistan and others PLD 2021 Lah. 770 rel.

(c) Civil Servants Promotion (BPS-18 to BPS-21) Rules (2019)---

----R. 10(5)---Superseded officer---Promotion---Mere fact that Central Selection Board (CSB) in its two different meetings considered two different years' PERs, would not absolve it from following the mandatory requirement of R.10(5) of Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019---Obvious purpose of said R.10(5) was to give sufficient opportunity/time to the superseded officer to improve and bring to an end the reason on basis of which the deferment took place---Such time must commence from the date of supersession decision by CSB, so that he/she could know the reasons for supersession and might improve in one year if possible for his/her promotion innext meeting of CSB.

Muhammad Ahsan Bhoon, Shah Khawar, Barrister Haris Azmat, Naveed Ahmad Khawaja, Barrister Hamid Azim Leghari, Muhammad Qasim Tarar, Rafae Naguib Saigal and Barrister Maryam Hayat for Petitioners.

Malik Khalid Shafique, A.A.G.-Pk. along with Ali Raza, Section Officer, Establishment Division for Respondents.

P L D 2022 Lahore 313

Before Anwaarul Haq Pannun and Abid Hussain Chattha, JJ

AHMAD WAQAS and others---Appellants

Versus

ISHTIAQ ALI and others---Respondents

R.F.A. No. 114 of 2017, heard on 20th September, 2021.

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

----S. 53A---Constitution of Pakistan, Arts. 5 & 24---Civil Procedure Code (V of 1908), S. 144---Penal Code (XLV of 1860), S. 441---Respondent's suit for recovery of possession and mesne profit was concurrently decreed---Said suit was preceded by dismissal of appellant's suit for specific performance by High Court in appellate jurisdiction---Appellant contended that they were in possession of the suit property since long on the basis of agreement to sell; that suit of the respondents was hit by the principle of acquiescence; that their appeal with regard to the suit property was pending before the Supreme Court; and that possession of the appellants over the suit property was protected on the basis of equitable doctrine of part performance---Validity---Agreement to sell on the basis of which appellants sought transfer of title over the suit property was not accepted by High Court being invalid and accordingly their suit (for specific performance) was dismissed---Since the said disputed agreement itself remained legally unproved, therefore, appellants were not entitled to claim the benefit under the same document and no protection as envisaged by S.53A of Transfer of Property Act, 1882, could be extended to their possession---If there was no sale, then S.53A of Transfer of Property Act, 1882, would not be helpful---Causing annoyance by retaining possession over a property owned by others without any lawful excuse would amount to committing a continuous offence---Appellants had no authority or claim to retain possession of property merely on the ground that they had filed an appeal before the Supreme Court wherein no injunctive order had been passed in their favour---Section 144 of Civil Procedure Code, 1908 was the complete answer to the submission/apprehension as to 'irreparable loss' in delivering possession of suit property---Obedience to the Constitution and law is the inviolable obligation of every citizen---Appeal was accordingly dismissed.

Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367; Noor Muhammad v. Abdul Ghani 2002 CLC 88 and H. M. Fazil Zaheer v. Kh. Abdul Hameed and others 1983 SCMR 906 rel.

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

----S. 53A-Part performance---Possession---Section 53A of the Transfer of Property Act, 1882, will come into play for protection of the buyer only when the buyer had performed his commitments substantially and was willing to perform the remaining part of his promise, if any---No other way existed in which the buyer could be considered to have committed breach or there was indication of the buyer breaching his promises required to be met as per contract---Benefit of the part performance doctrine was not available to a person who sought to acquire a valid title to the property dealt with under a transaction which remained inchoate.

Muhammad Yousaf v. Munawar Hussain and 5 others 2000 SCMR 204 rel.

(c) Constitution of Pakistan---

----Art. 24---Protection of property---Remedies against violation---Scope---No person should be deprived of his property save in accordance with law---Creating hindrances in the way of owner of the property debarring him from enjoying the benefits with regard to possession/use of the property amounts to clear breach of Art. 24 of the Constitution---Owner of property had right not only to recover possession of the property through Civil Court but also to seek the offender punished for committing such continuous offence by setting the machinery of criminal law into motion.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 rel.

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

----S. 441---"Annoyance"---Connotation---Word "annoyance" means "nuisance" and has been defined as "a condition that interferes with the use or enjoyment of property, especially a non-transitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways".

Black's Law Dictionary, 9th Edition rel.

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

----Ss. 268 & 441---"Nuisance" and "trespass"---Distinguished---General distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not.

(f) Constitution of Pakistan---

----Arts. 186 & 188---Injunction/restraint order to be express---Mere filing of appeal/revision would not operate as stay order---Prohibition/restraint could not be implied but must be clearly expressed/communicated.

Messrs Agro Dairies (Pvt.) Limited through Director and 2 others v. Messrs Agricultural Development Bank of Pakistan through Branch Manager and 3 others 2004 CLD 232 rel.

Muhammad Naveed Farhan for Appellants.

Muhammad Farooq Warind and Dr. Malik M. Hafeez for Respondents.

Muhammad Javed Khan, Civil Judge 1st Class/Research Officer, Lahore High Court, Legal Assistance.

P L D 2022 Lahore 319

Before Muhammad Amjad Rafiq, J

WAQAS alias KASHI and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Revisions Nos. 71763 and 68819 of 2021, decided on 13th December, 2021.

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

----S. 540---Constitution of Pakistan, Art. 10-A---Summoning of witness---Object and scope---Due process and right of fair trial---Provision of S.540, Cr.P.C. is an exception to adversarial system and attempt to make inroads through inquisitorial system amid such system---Object and purpose of S.540, Cr.P.C. is to get a status of overarching component of criminal justice system which is a brain child of inherent right of fair trial and due process and is now part of Constitutional regime for fundamental rights.

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

----Ss. 540 & 439---Qanun-e-Shahadat (10 of 1984), Art. 150---Revision---Witness, summoning of---Word 'may' and 'shall'---Scope---Witness, status of---Question to own witness---Principle---Accused was aggrieved of summoning of two prosecution witnesses not included in calendar of witnesses by investigating officer---Validity---Trial Court was authorized under S. 540, Cr.P.C. to use discretion for summoning of any person as witness at any stage of an inquiry, trial or other proceedings---For stages, the Legislature used the word 'may' which meant that an essential witness whose summoning, the Court had considered was not appropriate at any preliminary or intermediate stage, the Court could decline to issue process for his appearance---Such order could be reviewed at a later stage if evidence of such witness had become essential for just decision of the case and in such case it was imperative on the Court for which the word 'shall' had been used in later part of S.540, Cr.P.C.---Witness called and examined or recalled or re-examined under S.540, Cr.P.C. was to retain his character as a prosecution or defence witness and he would be a Court witness simpliciter if he was cited neither a prosecution witness nor a defence witness---If any given up prosecution witness or defence witness was recalled, Court could allow respective party to put question to their own witnesses under Art. 150 of Qanun-e-Shahadat, 1984, which was not meant for asking questions only to hostile or resiled witnesses---High Court declined to interfere in order in question as Trial Court adopted right course by summoning related witnesses to decide actual fact in issue---High Court directed that it was duty of Trial Court to supply copies of statements of such witnesses to accused and complainant for the purposes of cross-examination on such witness so as to avoid bring on record any evidence by surprise---Revision was dismissed, in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Ram Jeet and others v. The State AIR 1958 All 439; Muhammad Ibrahim and others v. Qudarat Ullah Ruddy and others PLD 1986 SC 256; Muhammad Jawad Hamid v. Mian Muhammad Nawaz Sharif 2019 PCr.LJ 665; Muzaffar Khan v. The State and others 1977 PCr. LJ 937; Aziz-ur-Rehaman v. The State PLD 1987 Lah. 245; Muhammad Ashiq and 2 others v. Muhammad Anwar and 2 others 2005 YLR 933; Qamar Mukhtar Khan v. The State 2007 PCr.LJ 149; Jewan and 9 others v. The State 1980 PCr.LJ 570 and Tahir Waheed and others v. The State and another 2005 PCr.LJ 1022 ref.

Malik Muhammad Afzal Khokhar for Petitioner (in Criminal Revision No. 71763 of 2021).

Muhammad Tariq Zafar for Petitioner (in Criminal Revision No.68819 of 2021).

Miss Noshe Malik, Deputy Prosecutor General for the State.

Muhammad Najeeb Faisal Chaudhry for Respondent.

P L D 2022 Lahore 328

Before Tariq Saleem Sheikh, J

Mehr ASHRAF and another---Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 66032 of 2021, heard on 17th December, 2021.

(a) Mental Health Ordinance (VIII of 2001)---

----S. 29---Criminal Procedure Code (V of 1898), S. 491---Habeas corpus---Detenu sought to be declared mentally disordered---Scope---Petitioners and one of the respondents were real brothers and sister---Petitioners alleged that their father who was residing with respondent for the last 34 years lost his mental balance, as such, respondents illegally confined him and even stopped them from meeting him---Petitioners filed a habeas corpus petition before Sessions Judge---Sessions Judge, after recording statement of the alleged detenu, dismissed the petition while observing that the detenu was enjoying good physical and mental health---Petitioners were aggrieved of said observation and sought its expunction---Validity---High Court observed that Mental Health Ordinance, 2001, was a special law and its application was limited to the subjects dealt by it---Court of Protection might not necessarily have jurisdiction over every matter involving a mentally disordered person---No exception could be taken to the impugned observations of the Sessions Judge for two reasons: firstly, the Mental Health Ordinance, 2001, did not apply to the present case as the proceedings were under S. 491, Cr.P.C. and not under S. 29 of the Mental Health Ordinance, 2001; proceedings did not involve question of appointment of guardian of detenue or any other matter covered by the Mental Health Ordinance, 2001; secondly, petitioner had taken a specific plea in his habeas corpus petition that the detenu was mentally disordered and respondents had wrongfully confined him---Sessions Judge was under bounden duty to decide both the issues and for that purpose he was required to engage with the detenu when he was brought before him to form an opinion about his mental health and then record his statement---Sessions Judge adopted the very course and the impugned observation was a part of those proceedings--Documents produced by the respondents show that the petitioners were in a dither ever since he transferred one of his properties to his daughter and were going all out to get him declared paranoid so that he could be stopped from making further alienations---Constitutional petition was dismissed with costs.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble is a part of a statute though not its operative part---Nevertheless, it provides a useful guide to find out the legislative intent.

(c) Interpretation of statutes---

----Preamble---Scope---Preamble of the statute is a good means to find out the meaning of the statute, as it is a key to open the understanding thereof.

Craies on Statute Law, 7th Edition, p. 200 rel.

(d) Interpretation of statutes---

----Preamble---Scope---Preamble is a key to open the minds of the makers of the Act, and the mischief which they intend to redress.

Bennion, Bailey and Norbury on Statutory Interpretation, 8th Edition rel.

(e) Interpretation of statutes---

----Preamble---Scope---Preamble is a legitimate aid in discovering the purpose of a statute.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 rel.

(f) Interpretation of statutes---

----Preamble---Scope---Preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object to any statute.

Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236 rel.

(g) Interpretation of statutes---

----Preamble---Scope---Preamble is a window to the main statute---Although the preamble does not control the main enactment, it certainly gives an inkling of the intention of the Legislature and as to the policy of the Act---Concept relating to the policy of the Act is of paramount importance and interpretation must be done in accordance with the policy and the intention found therein.

Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699 rel.

(h) Mental Health Ordinance (VIII of 2001)---

----Preamble---Scope---Mentally disordered persons are the weakest members of the society and are prone to all types of abuse---According to its preamble, the Mental Health Ordinance, 2001, aims to protect these people to provide for heath care and management of their affairs, including property matters---Mental Health Ordinance, 2001, has 11 chapters comprising 61 sections which seek to attain these objectives.

(i) Mental Health Ordinance (VIII of 2001)---

----S. 29---Judicial proceedings---Consent---Scope---Consent of the Advocate General required under S. 29 of the Mental Health Ordinance, 2001, is a substantive function in order to ensure that the objectives of the Ordinance are achieved---Legislature in its wisdom has created a first level of inquiry through the Advocate General's office to ensure that the application as well as the fact that prima facie there is a case to be placed before the Court of Protection---Such heightened protection is given to protect a person who cannot coherently protect his or her rights or property.

Ahsin Arshad and others v. Advocate General Punjab and others PLD 2018 Lah. 9 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---General rule is that "costs follow the event" which connotes that the court will order the party losing the case to pay the costs of the winner---Theory upon which they are allowed to a plaintiff is that the default of the defendant made it necessary to sue him, and to the defendant, that the plaintiff sued him without a fault.

Manindra Chandra Nandi v. Aswini Kumar Acharjya ILR (1921) 48 Calcutta 427 and Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 rel.

(k) Words and phrases---

----"Costs"---Meaning---Scope---"Costs" is a pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceedings within an action.

Black's Law Dictionary, Sixth Edition, p. 346 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Costs is the sum of money which the court orders one party to pay another party in an action as compensation for the expense of litigation incurred---Costs are awarded as compensation (i.e. reimbursement); there is, unlike damages, no restitutio in integrum, there is no concept in costs as there exists in damages, that the injured person should be placed, in so far as money can do so, in the same position as he occupied before the injury was suffered.

Cited in 240th Report on Costs of Civil Litigation, Law Commission of Pakistan. Available at: https://indiankanoon.org./doc/ 185277830 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Discretionary jurisdiction---Scope---Costs are in the discretion of the court, however, such discretion should be exercised judicially, properly and on sound legal principles---Court also has the power to determine by whom, out of what property and to what extent they are to be paid---Court should have regard to circumstances that while deciding the question of costs; (i) conduct of all the parties; (ii) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (iii) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention---Conduct of the parties include; (a) conduct before as well as during the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

Halsbury's Laws of England, 10th Volume, 4th Edition, para 17 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Every case filed that is dismissed is not frivolous and does not mean that it was instituted with mala fide intention---Cases were there which involve intricate questions of law requiring interpretation of the Constitution or a statute---Sometimes civil disputes also have grey areas---Courts are to adjudicate the frivolity on certain touchstone---Claim or defence is frivolous if its proponent can present no rational argument based upon evidence or law in support of it, based on an objective standard---Motion is frivolous and in bad faith where any reasonable attorney would agree that it is totally devoid of merit---Party acts in bad faith, warranting sanctions, when it acts vexatiously, for the purpose of harassment or unreasonable delay, or for another improper reason ---Pattern of delay and filing repetitious and irrelevant documents may establish bad faith and warrant sanctions.

Corpus Juris Secundum, Volume 20, pages 24-25 rel.

(o) Words and phrases---

----Frivolous---Definition---Scope---Frivolousness is a legal position wholly without merit, that is, without rational argument based on law and evidence to support litigant's position.

U.S. West Communications Inc. v. Taborski, 572 N.W.2d 81 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Frivolous claim---Scope---Claim or defence is frivolous (a) if it is taken primarily for the purpose of harassing or maliciously injuring a person, or (b) if the lawyer is unable to make a good faith and rational argument on the merits of the action, or (c) if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification or reversal of existing law.

Kahn v. Cundiff, 533 N.E.2d 164 (Ind. Ct. App. 1989) rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Frivolous claim---Scope---Frivolous lawsuit is one for which there is no genuine basis either in law or fact, or good faith argument for a change in the law.

Michael Costanza v. Jerry Seinfeld et al., 693 N.Y.S. 2d 897, 181 Misc. 2d 562 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Proceedings are vexatious if they are instituted with intent to annoy or embarrass the opposite party.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Vexatious claim is one that is brought or maintained in 'bad faith', which may include conduct which is arbitrary, vexatious, abusive or stubbornly litigious, and may also include conduct aimed at unwarranted delay or disrespectful of truth and accuracy---Vexatious litigation is a type of malicious prosecution.

Board of Commissioners, County of Boulder v. Eason, 976 P. 2d 271 and West's Encyclopedia of American Law, Second Edition rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Frivolous claim---Scope---Imposition of costs on the losing party is one of the effective means to curb frivolous and vexatious litigation.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Purpose of imposition of costs---Scope---Provision of costs is intended to achieve the following goals; (a) it should act as a deterrent to vexatious, frivolous and speculative litigations or defences---Spectre of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence; (b) costs should ensure that the provisions of C.P.C., the Qanun-e-Shahadat, 1984 or other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court; (c) costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation, which necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs; and (d) the provision of costs should be an incentive for each litigant to adopt alternate dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases.

Vinod Seth v. Devinder Bajaj and another (2010) 8 SCC 1 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Provision of costs should not obstruct access to courts and justice---Costs should not be deterrent for the people with genuine claims and for those members of the weaker sections of the society whose rights have been affected to approach the courts.

Vinod Seth v. Devinder Bajaj and another (2010) 8 SCC 1 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Costs are granted to a person who succeeds in litigation---Such costs are to be paid by the unsuccessful party---Object of granting such costs may be two-fold, one, to compensate the aggrieved party, who, in successful assertion/defence of his right, has been put to unnecessary litigation and harassment; the other object is to penalize a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive.

Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others 1993 SCMR 639 rel.

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

----Ss. 35 & 35-A---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Section 35, C.P.C., deals with actual costs while S. 35-A with compensatory costs---Actual costs reimburse the expenses incurred by the successful litigant in asserting his rights/claim but the court's discretion in awarding them is subject to certain limitations---Section 35 aims at reimbursement of reasonable litigation expenses to the successful party, the costs awarded under said section should be realistic---In contrast, the compensatory costs envisaged by S. 35-A are a compensation for false and vexatious claims and defences and are in addition to the actual costs---In awarding them the court does not take into account the actual injury to the person or property of party which can be claimed in a separate suit for damages.

Kawas B. Aga and another v. City District Government, Karachi (CDGK) PLD 2010 Kar. 182 ref.

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

----Ss. 35, 35-A & 95---Costs---Compensatory costs in respect of false or vexatious claims or defences---Compensation for obtaining arrest, attachment or injunction on insufficient grounds---Scope---Costs are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party---Costs are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him---Even under S. 35-A costs are compensatory and are not awarded as penalty against an unsuccessful party which shows that though the costs awarded under S. 35-A can be taken into account when awarding 'damages', they are not even by statutory dispensation, the same as the 'damages'---Conditions for application of S. 35-A are different and much less than the elements set out earlier for an action for malicious prosecution---Actual costs of the suit under S. 35 are at a much lower level when considered in such behalf---Combined reading of subsection (4) of S. 35-A and subsection (2) of S. 95 which deal with the effect of the orders under these provisions on actions for 'damages' are clear indication of the legislative intent; that unless a case is fully covered by S. 95(2), the award of costs under Ss. 35 & 35-A, instead of barring a suit for damages, supports the right for such an action.

Muhammad Akram v. Mst. Farman Bibi PLD 1990 SC 28 rel.

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

----Ss. 35 & 35-A---Constitution of Pakistan, Art. 199---Costs---Compensatory costs in respect of false or vexatious claims or defences---Scope---Court dealing with civil suits are bound by the provisions of C.P.C. and must award costs in accordance with them---Discretion of Court is circumscribed by these provisions---However, while exercising constitutional jurisdiction, the High Court may invoke its inherent powers to impose (special/exemplary) costs over and above the amount stipulated in S. 35-A, C.P.C.

Mehr Atta-ur-Rehman for Petitioners.

Mukhtar Ahmad Ranjha, Assistant Advocate General, with Sarfraz/ASI for Respondents Nos. 1 and 2.

Adnan Naseer Chohan for Respondents Nos. 3 and 4.

Mian Muhammad Hussain Chotya for Respondent No.5.

P L D 2022 Lahore 346

Before Jawad Hassan, J

Mst. SANA KHURSHEED---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and 9 others---Respondents

Writ Petition No. 30364 of 2021, decided on 17th December, 2021.

(a) Constitution of Pakistan---

----Arts. 3, 9, 14, 25 & 35---UN Convention on the Rights of Persons with Disabilities, 2008, Arts. 9, 13 & Preamble---Persons with Different Abilities (PWDs)---Duty of State to protect rights of PWDs---Scope---When the State fails to protect rights of PWDs, it amounts to defiance and failure from its pledge made through a social contract with the citizens---State must distinguish and address the abilities and inabilities of citizens to obliterate the challenges which hamper their meaningful exercise of Fundamental Rights as provided and guaranteed to them by the Constitution---State being provider, the Government being executor and the Judicature being custodian of the Fundamental Rights cannot absolve themselves of their responsibilities towards the PWDs.

When a State is making laws under the Constitution and taking actions in furtherance of that to protect the rights and dignity of Persons with Different Abilities (PWDs), it is actually fulfilling its promise towards that individual to whom it has made a pledge through a social contract. When the State fails to protect these rights in the way that it should, it amounts to defiance and failure from its pledge. While examining Articles 3, 9, 14, 25 and 35 of the Constitution, the State should embrace its citizens like a mother; guardian and protector who does not apply unified standards to provide all the children with similar kind of things but diversifies the provisions with respect to particular requirements of each child.

A ladder might be helpful for an (abled) person to climb up a building but giving the same ladder to a person with an impaired ability to walk to reach the top of very same building does not amount to equal treatment, and such an approach, is neither sanguine nor justified rather depicts a modus operandi, which is improper and indifferent at the same time. The State must therefore, distinguish and address the abilities and inabilities of citizens to obliterate the challenges which hamper their meaningful exercise of Fundamental Rights as provided and guaranteed to them by the Constitution.

The Constitution does not classify or make any distinction on the basis of ability of a person or class to which it belongs but it vouches for the protection of the Fundamental Rights to every mother's child because there is no child from a lesser God and all are equivalent, creation of the same Creator and citizens of equal status, whether a PWD or any other person.

Persons with Different Abilities (PWDs) require special attention of the State and its institutions in order to claim equal protection of law, which is their fundamental right.

The State being provider, the Government being executor and the Judicature being custodian of the Fundamental Rights cannot absolve themselves of their responsibilities towards the PWDs.

(b) Constitution of Pakistan---

----Arts. 4 & 37(d)---Persons with Different Abilities (PWDs)---Access to justice---Scope---Foundation of rule of law is the access to justice and the dispensation of justice as provided under Art. 4 & 37(d) of the Constitution---Citizens/persons, who cannot walk to justice, the justice can walk to them.

Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others 2020 SCMR 1713 and Paulley v. Firstgroup PLC 2017 SCMR 407 = (2017) UKSC 4 ref.

(c) Constitution of Pakistan---

----Arts. 14 & 26---Persons with Different Abilities (PWDs)---Access to public places---Scope---Government, government agencies, regulatory bodies and other establishments are duty bound to provide adequate means to PWDs for accessing places of entertainment, shopping, eating, recreation etc.---Under Art. 14 of the Constitution, PWDs have an inviolable right to have dignified access to public places.

(d) Constitution of Pakistan---

----Art. 37(f)---Persons with Different Abilities (PWDs)---Right to employment---Scope---Under Art. 37(f) of the Constitution it is the duty of State to enable PWDs, like all other citizens, through education, industrial development and all other methods to participate fully in all forms of national activities, including employment in the service of Pakistan.

Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others 2020 SCMR 1713 ref.

(e) Constitution of Pakistan---

----Arts. 3, 4, 9, 14, 25, 26, 35, 37(d) & 37(f)---UN Convention on the Rights of Persons with Disabilities, 2008, Arts. 9 & 13 & Preamble---Persons with Different Abilities (PWDs)---Draft Bill of the Punjab Empowerment of Persons with Different Abilities Act, 2021 ('the Draft Act')---His Lordship expressed his satisfaction with the Draft Bill made by the Provincial Government and observed that said Bill was in line with the judgment of the Supreme Court reported as Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713)---Constitutional petitions were allowed with relevant directions to Government departments performing their functions within jurisdiction of the (Lahore) High Court, in connection with the affairs of the Province and other local authorities under the respective laws.

After expressing his satisfaction with the Draft Bill of the Punjab Empowerment of Persons with Different Abilities Act, 2021 ('the Draft Act'), His Lordship issued the following directions to the Government departments performing their functions within jurisdiction of the (Lahore) High Court, in connection with the affairs of the Province and other local authorities:

(i) The Draft Bill of Punjab Empowerment of Persons with Different Abilities Act, 2021 ('the Draft Act'), once enacted and notified by the (Provincial) Assembly, shall be implemented in letter and spirit in order to protect the fundamental rights of Persons with Different Abilities (PWDs);

(ii) All the respondent departments and functionaries shall take steps to protect, manage and provide all facilities to the PWDs in accordance with the Draft Act;

(iii) The Departments shall inform the public and create awareness regarding the rights of the PWDs through the media and other means;

(iv) The directions issued by the Supreme Court of Pakistan in paragraphs Nos.11(ii) and (iii) of the judgment reported as Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713) shall be strictly followed; and

(v) The Provincial Government shall revise and amend such laws where clear direction and command is not entrusted to any authority, as under the Punjab Government Rules of Business, 2011, the Secretary Social Welfare and Bait-ul-Maal Department has clear mandate to make laws and policies, under Schedule-II of the said Rules.

Ali Rasheed Chughtai, assisted by Ms. Areej Yawar, with Petitioner / Ms. Sana Khursheed and Barrister Maryam Hayat for Petitioner.

Muhammad Azhar Siddique, Advocate Supreme Court, Abdullah Malik, Munir Ahmad, Mian Shabbir Ismail, Shehbaz Khan, Mian Imran Ali, Naila Iqbal, Mian Ali Asghar, Ahmad Imran Ghazi, Muhammad Irfan Mukhtar and Ali Abbas for Petitioner (in connected W.P.No.22253 of 2021).

Barrister Umair Khan Niazi, Additional Advocate General, Waqar Saeed Khan, Assistant Advocate General, Osman Khan, Assistant Advocate-General Punjab, Barrister Tayyab Jan, Assistant Advocate-General Punjab with Syed Yawar Abbas Bukhari, Minster for Social Welfare and Bait-ul-Maal/Chairman PAC, Muhammad Hassan Iqbal, Secretary Social Welfare and Bait-ul-Maal Department, Government of the Punjab, Lahore, Muhammad Irfan, Director PCRDP, Tariq Ismail, Litigation Officer, Social Welfare Department, Lahore, Ms. Iram Shahzadi, Law Officer, Home Department, Government of the Punjab, Lahore, Um-e-Umair, Law Officer, Social Welfare Department, Ahmad Mudasir Khan, Director Architecture, Shahid Irfan, Law Officer, Punjab Architecture Department, Lahore and Mostafa Khan, Superintendent, PAD, Lahore, Sahibzada Muzaffar Ali Khan, Waseem Badar, Ch. Waseem Arif and Hannan Masood, Advocates for the Respondents Nos.3-4 with Ayesha Mutahir, Director Town and Planning, LDA and Qasim Abbas Bhatti, Deputy Director (Law), LDA for Respondents.

Dr. Rizwan Naseem, Secretary Punjab Emergency Services (1122) for Respondents.

Ali Awais for Respondents Nos.5 and 6/DHA assisted by Waheed Ahmad for Respondents.

Naveed Sohail Malik, Additional Attorney General with Sadia Malik, Assistant Attorney General for Pakistan and Ms. Rukhsana Shah, former Federal Secretary for Respondents.

Abu Bakar Aslam, Law Officer, Special Education Department, Government of the Punjab, Lahore for Respondents.

Kh. Issam Bin Haris, Advocate/Amicus Curiae.

Abuzar Salman Khan Niazi, Advocate with Syed Muhammad Ghazanfar for Respondents.

Hamid-ul-Rahman Nasir, Civil Judge/Research Officer LHCRC for Research Assistance.

Dates of hearing: 7th, 29th September, 4th, 15th October, 2nd, 9th November, 3rd and 17th December, 2021.

"Those who are weak have great difficulty finding their place in our society. The image of the ideal human as powerful and capable disenfranchises the old, the sick, the less-abled. For me, society must, by definition, be inclusive of the needs and gifts of all its members. How can we lay claim to making an open and friendly society where human rights are respected and fostered when, by the values we teach and foster, we systematically exclude segments of our population? I believe that those we most often exclude from the normal life of society, people with disabilities, have profound lessons to teach us. When we do include them, they add richly to our lives and add immensely to our world."

P L D 2022 Lahore 372

Before Shahid Karim and Rasaal Hasan Syed, JJ

IRFAN RASHEED---Petitioner

Versus

MUHAMMAD MUAZIM and others---Respondents

R.F.A. No. 9641 of 2020, decided on 16th September, 2021.

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

----S. 24---Balance sale consideration, deposit of---Suit for possession through specific performance---Appellant/plaintiff had allegedly paid earnest money at the time of execution of agreement---Specific notice was assertedly issued to respondents/defendants notifying that balance sale consideration had been arranged---Civil Court granted status quo which was ordered to be maintained subject to payment of remaining sale consideration---Appellant was also directed to affix proper court fee---Appellant failed to deposit remaining sale consideration----To meet the ends of justice one "absolute" "last opportunity" was being provided to the appellant---Direction to deposit the balance sale consideration, failing which no further opportunity shall be given and "order shall be passed in accordance with law"---Appellant had not deposited the remaining sale consideration nor any plausible reason was brought on record---Suit was consequently dismissed---Validity---[Per Rasaal Hasan Syed J.; Shahid Karim J. dissenting]---Repeated caution and last opportunity given by the Civil Judge to the appellant on non-deposit of the balance sale consideration, were couched in general terms of reiterating that in case of failure to deposit, "an order would be passed in accordance with law"---Such expression could be interpreted to entail the vacation of the status quo order qua alienation granted in favour of appellant----No explicit/ unequivocal warning of dismissal of suit as specific penal consequence of non-deposit of balance sale consideration was recorded by putting appellant on notice nor could anything to that effect be shown by respondents---Dismissing the suit itself on non-deposit of the balance sale consideration did not appear to be readily covered by the phrase "order shall be passed in accordance with law" repeatedly used by the Civil Judge---Suit could not be dismissed on non-deposit unless the Trial Court had specifically directed deposit of remaining sale consideration and put the plaintiff on explicit notice to such effect bearing clear warning that non-deposit of balance sale price should be deemed to be his inability of performing his part of contract---No such clear/unambiguous and pointed warning was ever issued to the appellant in the case as to explicitly notify the appellant of the penal effect of dismissal of suit---Appeal was allowed; undertaking was taken that appellant should deposit the balance sale consideration within 7 days; and appellant was put on notice that in case of failure to deposit the said amount within seven days of the date of appearance immediately, his suit would be deemed to be automatically dismissed.

Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 rel.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 distinguished.

Per Shahid Karim, J.---

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

----S. 24---Balance sale consideration---High Court laid down guidelines for the lower courts to follow in all matters relating to suit for specific performance.

At the time of taking cognizance of the suits by the civil courts, while issuing notice to the defendants, an order shall be made for the deposit of the balance sale consideration by the vendee (if he is a plaintiff in the suit) within a stipulated time. In sum, not more than two opportunities for making the deposit shall be given by the court. At the time of granting the second and last opportunity (if requested by the vendee), the civil court shall specifically mention the consequences that will visit the failure to deposit viz. that the suit shall be dismissed on that account. It is made clear that this order shall be passed separately and will not be made part of any other order passed for a different purpose. The amount so deposited as balance sale consideration shall be invested, pendente lite, in a profit bearing scheme with a high rate of return.

Notwithstanding the above, it is felt that a permanent solution to this problematic area lies in the legislature stepping in to clear the muddled subject. The superior courts have merely grafted a condition on to a statute. This condition, however, ought to be part of the statute brought about by making the amendments to the law in such a manner that this pre-condition becomes a statutory requirement to maintain the suit. This judge-made rule ought to be given statutory recognition.

Per Rassal Hasan Syed, J.

(c) Constitution of Pakistan---

----Art. 189---Leave to appeal---Scope---Order granting and/or refusing leave was not a judgement that would decide a question of law and it should not be followed necessarily/imperatively.

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

----S. 24---Relief of specific performance could be extended only on equitable grounds; it could be declined if the court arrived at the conclusion that it was unjust to do so or where the circumstances showed that performance of contract could be given an unfair advantage to a plaintiff over the defendant or all necessary particulars entitling the specific performance of the contract could not be established and in such context the rule consistently observed was that the party seeking specific performance of the sale agreement needed not only allege but also prove readiness/willingness to perform his part of obligation under agreement from the date of agreement till the passing of decree and that with a view to demonstrate his readiness, willingness, capacity to pay and intentions to pay needed to offer the payment of balance consideration to the vendor or on his refusal, to tender the same in the Court; failing which adverse consequences would follow while determining the main suit and the entitlement of the plaintiff to seek decree in equitable/discretionary jurisdiction.

Messrs Kuwait Nation Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7; Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686; Muhammad Shafiqullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108 and Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241 rel.

Mian Tariq Ahmad for Appellant.

Kashif Ali Chaudhry for Respondents Nos. 1, 3 and 4.

Kamran Ali Khan for Respondent No. 5.

P L D 2022 Lahore 384

Before Ch. Muhammad Iqbal, J

Ch. MUNIR AHMAD---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab Lahore and others---Respondents

Writ Petition No. 18583 of 2018, heard on 16th March, 2021.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Contract Act (IX of 1872), S. 23---Constitution of Pakistan, Arts. 3, 37, 38 & 199---Constitutional petition---Army Welfare Scheme---Allotment in violation of Scheme---Void agreement---Locus standi---Aggrieved person---Petitioner assailed allotments made under Army Welfare Scheme to civilian officers---Plea raised by authorities was that petitioner did not have locus standi to file petition as he was not an aggrieved person---Validity---Any citizen as a part of society had interest in public assets/property which was disposed of arbitrarily or in violation of law/policy by public functionaries---Such person owed bounded obligation to agitate issue and also to inform legally established fora to take judicial review of such executive order on the touchstone of Constitutionality/legality of such order of the executive---Petitioner a citizen of Pakistan was considered as an aggrieved person and he may assail the adverse order of the authority---Once sufficient tangible affirmative information or record was brought before Constitutional Courts, who are mighty guardians of fundamental rights of citizens as well as of public assets, were placed under unalienable sacred bounded duty to eliminate illegality and perversity on the order of the executive authority---According to S.23 of Contract Act, 1872, if any order was passed by any authority beyond its jurisdiction and against public policy, such order in the very inception was nullity in the eye of law and never conveyed any title in favour of the beneficiary---High Court set aside order or allotment in favour of respondents/civil officials/officers as the same was null and void and was obtained in violation of Army Welfare Scheme---High Court directed Provincial Board of Revenue to resume land in question and restore it to concerned authority of General Head Quarters---Constitutional petition was allowed accordingly.

Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510; Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others PLD 2010 Lah. 605; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Moulvi Iqbal Haider v. Capital Development Authority and others 2012 SCMR 455; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Hameedullah and 9 others v. Headmistress, Government Girls School Chokara, District Karak and 5 others 1997 SCMR 855; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Muhammad Arshad Khakwani v. I.U.B. and another 2011 MLD 322 and Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172 rel.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10 & Preamble---Government lands---Board of Revenue, role of---Provisions of Colonization of Government Lands (Punjab) Act, 1912, are to make better administration of Government lands in the province of Punjab---Board of Revenue under S.10 of Colonization of Government Lands (Punjab) Act, 1912, may grant land in a colony areas to eligible persons on such described written statement of condition of lease.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Government lands, allotment of---Chief Minister---Role---Chief Minister is shown nowhere competent under any provision of Colonization of Government Lands (Punjab) Act, 1912, to pass any order for allotment of valuable state land to any private un-eligible individual or to validate a patent void order of his subordinate authority.

Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 and (H.R.C. Nos.7581-P and 9059-P of 2009) rel.

Haji Muhammad Tariq Aziz Khokhar for Petitioner.

Ahmad Nadeem Gehla, A.A.G. along with Rana Younas, Tehsildar, Ameer Hussain, Colony Clerk and Abdul Malik, Patwari for Official Respondents.

Syed Athar Hassan Shah Bukhari and Rana Luqman Ali Khan, for Respondents Nos.12 to 14.

Sajjad Hussain Tangra for Respondent No.15.

Abdul Rehman Khan Laskani for Respondent No.19.

Ahmad Raja, Law Officer, NADRA.

P L D 2022 Lahore 409

Before Muhammad Sajid Mehmood Sethi, J

Rai MUHAMMAD ASHRAF---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, NANKANA SAHIB and 6 others---Respondents

Writ Petition No. 44985 of 2021, decided on 30th September, 2021.

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

----S. 26A & O. XVIII, R. 3---Petitioner's right to file written statement was concurrently closed---Petitioner contended that Trial Court did not provide sufficient opportunity---Held, that the petitioner was afforded five opportunities including last opportunity---Petitioner had failed to do the needful despite lapse of more than three and half months, hence his right to file written statement was closed---Where law prescribed a time for doing a certain act, the same should ordinarily be adhered to unless cogent reasons/lawful justification was presented before the Court justifying an extension of such time---In the Provision of S.26A of Civil Procedure Code, 1908 not only the word "shall" has been used, but penal consequences for failure of the defendant to file the written statement within the specified period have been prescribed---Legislative intent behind the provisions of S.26A of Civil Procedure Code, 1908 appeared to cut short the unnecessary delay that would occur at the time of submission of written statement---Provisions of S.26A, C.P.C. being mandatory in nature, were required to be complied with---Constitutional petition was dismissed accordingly.

The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd. (MBCL) Sindh Wine Merchants Welfare Association 2021 SCMR 305 and Sheikh Shahid Jamal v. National Accountability Bureau and others PLD 2021 Lah. 411 rel.

(b) Constitution of Pakistan---

----Art. 37(d)---Expeditious justice---Limitation period---Scope---State is bound to ensure inexpensive/expeditious justice---Provisions requiring a party to lis to do certain act within a prescribed limitation are introduced in order to curb long standing litigation, save precious public time and inconvenience to the parties.

(c) Administration of justice---

----Expeditious justice---Conduct of a party is a relevant fact in the administration of justice---Parties cannot be allowed to play hide and seek with the Court and to prolong the matter unnecessarily as well as to engage the machinery of the State department unnecessarily as per their whims and caprice besides wasting precious time of the Court---Rules of Procedure are enacted to regulate the safe administration of justice in accordance with law and to check unnecessary delay in resolving the dispute between the parties.

(d) Administration of justice---

----Maxim "law aids the vigilant and not the indolent" provides that helpful hand cannot be extended to a litigant having gone into deep slumber on having become forgetful of his/her rights---Those who sleep over their rights, stand estopped from getting their enforcement though their right continues.

Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560; Muhammad Javed v. Managing Director Sui Northern Gas and others 2013 CLC 1276, Mian Abdul Karim v. Province of Punjab through District Officer (Revenue) Lodhran and 5 others PLD 2014 Lah. 158; Gaman and others v. Mureed Hussain and others 2020 MLD 1211 and Rana Muhammad Ilyas v. Lahore Electric Supply Company and others 2021 PLC 75 rel.

Muhammad Naeem Mehar for Petitioner.

Mian Muhammad Saeed for Respondent No.3.

Muhammad Imran Sh., Addl. District Judge /Senior Research Officer, LHCRC.

Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.

2022 P L D Lahore 414

Before Anwaar Hussain, J

MUHAMMAD ASHRAF---Appellant

Versus

Sh. MUHAMMAD AKRAM and others---Respondents

F.A.O. No.50 of 2013, heard on 14th December, 2021.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 28---Limitation Act (IX of 1908), S. 19---Settlement of claims---Limitation---Effect of acknowledgment in writing---Scope---Appellant got booked his commodities through cargo service of respondents---Cargo of the respondents was stolen away---Respondents admitted the claim of appellant and issued a cheque, which was dishonoured on its presentation---Legal notice was served upon the respondents that was followed by filing of the claim in the Consumer Court---Consumer Court dismissed the claim on the ground that it was barred by time in terms of subsection (4) of S. 28 of Punjab Consumer Protection Act, 2005---Appellant claimed extension in period of limitation on the ground that when the respondents were approached, without issuing a formal written notice, they solicited time from the appellant to trace the goods but later on admitted the claim and handed over a cheque---Validity---Even if the cheque was taken as an acknowledgment, it was issued after expiry of the specified period of thirty days---Fresh cause of action on the basis of acknowledgment would have come into play had the cheque been issued before the expiration of the thirty days---Appeal was dismissed.

M.S. Port Services (Pvt.) Ltd. v. Port Qasim Authority PLD 2012 Sindh 182 ref.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 28---Settlement of claims---Limitation---Scope---Punjab Consumer Protection Act, 2005, has been enacted with an avowed aim to protect the consumers and their rights as is evident from the reading of the preamble of the Act, the businesses and the interest of the society are also required to be safe-guarded---Both the rights of the consumers and those of society and/or businesses have to be protected simultaneously---Under the Act, on one end of the fulcrum is the objective to provide a speedy and effective remedy to the consumer and on the other end is the consideration to ensure that the businesses are not burdened by the time barred cases---Scheme of law envisaged under the Act is unequivocal in this regard.

(c) Punjab Consumer Protection Act (II of 2005)---

----S. 28(1)---Settlement of claims---Limitation---Scope---Legislature in terms of S. 28 of the Act has provided the entire mechanism, along with time-limit of thirty days from the accrual of cause of action, for filing the claim before the Consumer Court---Time-limit of thirty days has been provided for filing of the claim with the condition that prior to filing of the claim and after the accrual of cause of action, a written notice is to be sent to the manufacturer of goods or service provider, as the case may be, requiring him to rectify the breach and compensate the claimant.

(d) Punjab Consumer Protection Act (II of 2005)---

----S. 28(2)---Settlement of claims---Notice---Limitation---Scope---Subsection (2) of S. 28 obligates manufacturer and/or provider of services to reply the notice within fifteen days from receipt of the notice---Claimant, in a case under the Act, has to put forth his claim in a written notice within such period of time that enables the manufacturer of goods or the service provider, as the case may be, to respond within fifteen days thereafter so that in case of default on part of the said manufacturer or the service provider to respond within said period of fifteen days, the claimant can approach the court within thirty days commencing from the date of accrual of cause of action.

(e) Punjab Consumer Protection Act (II of 2005)---

----Ss. 28(1) & 28(2)---Settlement of claims---Cause of action---Notice---Limitation---Scope---Cause of action accrues in favour of a claimant, the moment goods or services provided turn out to be defective and/or in violation of the provisions of the Act---Service of written notice upon the manufacturer or provider of service, envisaged under the Act, is a mechanism and procedure set out by the Legislature for the redressal of such cause of action prior to approaching the judicial forum i.e. Consumer Court---If the manufacturer and/or provider of services admits the claim of the claimant on receiving the written notice and compensate the claimant to the satisfaction of the latter, the cause of action, as a natural corollary, comes to an end---Conversely, the denial of the claim or no response to the written notice keeps the limitation running.

(f) Punjab Consumer Protection Act (II of 2005)---

----Ss. 28(1) & 28(4)---Settlement of claims---Cause of action---Limitation---Scope---Argument that as no limitation is provided for issuance of written notice under subsection (1) of S. 28 of the Act, the same could be issued at any time and limitation of thirty days provided under subsection (4) of S. 28 starts running only after issuance of the written notice since the cause of action is recurring in such like cases had no force---Such an argument is misconceived and if accepted, would defeat the purpose of time-limitation provided by the legislature under subsection (4)---While the remedy to the consumers for their protection has been provided under the Act, the legislature could not have left it open-ended at the will of the claimant to serve written notice whenever he feels convenient---Rather, the written notice is to be served immediately on the accrual of cause of action.

(g) Punjab Consumer Protection Act (II of 2005)---

----S.28(4)---Settlement of claims---Limitation---Condonation of delay---Scope---Given the nature of the Act, as a special statute, the legislature has not only provided special limitation period for filing claim under the Act, but has also vested jurisdiction in the Consumer Court to condone delay in filing the claim in cases where sufficient cause for such delay is established to the satisfaction of the Consumer Court.

(h) Punjab Consumer Protection Act (II of 2005)---

----S. 28(4)---Settlement of claims---Limitation---Scope---In terms of second proviso to subsection (4) of S. 28 of the Act, delay can be condoned for a period of sixty days beyond period of warranty/ guarantee provided under the contract between the parties or deemed to be one year from the date of purchase of product or provision of services where no such warranty or guarantee is provided and for this purpose filing of formal application for condonation of delay is not required---Unless the Consumer Court is approached by a claimant with the application for condonation of delay or extension of time period specified in subsection (4) of S. 28 of the Act, a time barred claim cannot be entertained---Second proviso to subsection (4) vests discretion in the Consumer Court to extend time limit but the said proviso cannot and should not be read in isolation from the first proviso---Provisos to subsection (4) cannot be so interpreted as to make subsection (4) itself redundant, which provides limitation period of thirty days as 'the specified period' for filing of the claim---Natural interpretation is that the first proviso modifies the scope and effect of subsection (4) to the extent that the general period of limitation provided under subsection (4) may be relaxed/extended/modified in cases where the Consumer Court is satisfied that there was sufficient cause for not filing the complaint within the specified time and the second proviso to subsection (4) of S.28 of the Act is a qualifying provision, which limits the discretion vested in the Consumer Court through first proviso qua 'the specified period' and gains traction from the use of words "such extension" in the second proviso---Proviso is applicable only to such provision which precedes it, thus, it is subsection (4) which precedes the provisos and therefore, both the provisos have to be read in conjunction with the main provision i.e., subsection (4).

Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196; Tanvir Ahmad Butt v. The Director, Oratier Technologies (Pvt.) Ltd. 2018 CLD 1064 and Al-Ghazi Tractor Limited through Manager and 2 others v. Peer Muhammad Ali 2019 CLC 580 ref.

(i) Punjab Consumer Protection Act (II of 2005)---

----S. 28(4)---Settlement of claims---Limitation---Scope---Subsection (4) of S. 28 stipulates limitation period of thirty days, the first proviso provides for situation in which such limitation period may be relaxed and delay can be condoned and refers back to limitation period by using the words 'the specified period' whereas the second proviso places an embargo on the maximum time for which 'the specified period' could be extended under first proviso by use of words "such extension" in the second proviso.

Coca-Cola Beverages Pakistan Limited v. Ashiq Ali PLD 2014 Lah. 196; Tanvir Ahmad Butt v. The Director, Oratier Technologies (Pvt.) Ltd. 2018 CLD 1064 and Al-Ghazi Tractor Limited through Manager and 2 others v. Peer Muhammad Ali 2019 CLC 580 ref.

(j) Interpretation of statutes---

---Proviso---Scope---Proviso is applicable only to such provision which precedes it.

(k) Interpretation of statutes---

----Proviso---Scope---Proviso in a statute by no means can be construed in a manner so as to make the main section redundant.

Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531 ref.

Enmay Zed Publications (Pvt.) through Director-General v. Sindh Labour Appellate Tribunal through Chairman and 2 others 2001 SCMR 565 and Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560 rel.

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

----S. 19---Effect of acknowledgement in writing---Scope---Bare reading of the subsection (1) of S. 19 of the Limitation Act, 1908, leads to the ineluctable conclusion that fresh cause of action on the basis of acknowledgment comes into play only if such acknowledgement is made before the expiration of the period prescribed for a suit or application.

M.S. Port Services (Pvt.) Ltd. v. Port Qasim Authority PLD 2012 Sindh 182 ref.

(m) Limitation---

----Condonation of delay---Scope---Delay of each and every day has to be explained by filing an appropriate application while seeking condonation of delay.

Syed Athar Hassan Shah for Appellant.

Syed Fayyaz Hussain Naqvi and Syed Sibt-e-Nabi Abidi for Respondents.

P L D 2022 Lahore 427

Before Muhammad Amjad Rafiq, J

Malik MUHAMMAD EJAZ CHANNAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No. 161 of 2014, decided on 7th October, 2021.

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

----S. 3---Criminal Procedure Code (V of 1898), S. 248---Prevention of illegal possession of property---Withdrawal of complaint---Scope---Offence under Illegal Dispossession Act, 2005, shall be tried by Court of Session, but it does not specify the application of Chap. XX or XXII-A, Cr.P.C. for the purpose of trial as usually supplied through legislation for courts which work under special laws---Under S. 5 of Illegal Dispossession Act, 2005, mode of inquiry and investigation is entirely different as to one mentioned under S. 202, Cr.P.C., therefore, when there is contrast which principle is to be followed, either principle of specific prohibition or principle of express provision, the circumstances always lean toward specific prohibition---As there is no specific prohibition with respect to application of S. 248, Cr.P.C., to a complaint under Illegal Dispossession Act, 2005; therefore, such provision shall be available to the court trying such complaint---Section 9 of the Illegal Dispossession Act, 2005, also supports what has been discussed above.

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

----S. 3---Criminal Procedure Code (V of 1898), S. 345---Prevention of illegal possession of property---Compounding of offence---Scope---Offence under S. 3 of Illegal Dispossession Act, 2005, is not compoundable.

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

---S. 345---Compounding of offence---Offences against other laws---Scope---Until the legislature makes offence in special law compoundable, it would be considered as non-compoundable---Entries in Second Schedule of Cr.P.C. can only be surpassed if the special law gives a different status to the offences punishable under that law.

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

----S. 345---Compounding of offence---Scope---Compromise in non-compoundable offence is considered only a mitigating circumstance for reduction in sentence.

Muhammad Nawaz v. The State PLD 2014 SC 383; Muhammad Rawab v. The State and another 2006 SCMR 1703; Javed Iqbal and another v. The State 2012 SCMR 140 and Muhammad Akhtar alias Hussain v. The State PLD 2007 SC 447 ref.

Ghulam Farid alias Farida v. The State PLD 2006 SC 53 and Muhammad Rawab v. State 2004 SCMR 1170 rel.

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

----S. 345---Compounding offence---Scope---Acquittal on the basis of compromise can only be allowed if the prosecution is withdrawn with the consent of the court by public prosecutor or by the complainant.

(f) Criminal trial---

----General and special law---Scope---Institution of criminal proceedings is mainly controlled by the provisions of Code of Criminal Procedure, 1898; development in stages up to logical conclusion is too regulated through similar law subject to any criteria set through General Clauses Act, 1897 or a special procedure introduced by any special law---General application of Code of Criminal Procedure on a special law for procedures not 'specified or prohibited' is the principle of law embodied in two philosophies under the touch of "express provision and specific prohibition" which leads when the court finds no other way to advance the cause of justice in any given circumstances---It equally carries weight that if the provision of law which rails the proceedings during trial can also be stretched at the level of appellate stage to give effect to the contentions of the respective parties.

(g) Criminal trial---

----Termination of proceedings---Scope---Criminal trial though is controlled by the court yet the parties are also authorized to terminate the same at any stage, requesting the court to stop the prosecution---Criminal trial is concluded/terminated with three main results; 1st, either the accused earns premature acquittal under Ss. 249-A, 265-K of Cr.P.C. or acquittal after full dressed trial under Ss. 245, 265-H, Cr.P.C. or convicted under S. 243/245(2) or 265-H(2), Cr.P.C.; 2nd, when parties enter into compromise and the accused is acquitted; because effect of such compromise is acquittal as embodied in S. 345(6), Cr.P.C.; 3rd, when the public prosecutor opts to withdraw from prosecution which is regulated under S. 494, Cr.P.C. read with S. 10(3)(e) & (f) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and such withdrawal during trial amounts to acquittal of accused from the charges.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451 and Saad Shibli v. The State and another v. Puttan and others PLD 1981 SC 617 ref.

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

----S. 248---Withdrawal of complaint---Effect---Complaint processed under S. 190 read with Ss. 200/202, Cr.P.C., can be withdrawn under S. 248, Cr.P.C., during the trial and it also results in acquittal of accused---No further trial can be conducted later as it amounts to double jeopardy.

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

----S. 203---Dismissal of complaints---Scope---Section 203, Cr.P.C., reflects that it applies at the stage preliminary to the commencement of trial; therefore, if complaint is withdrawn during that stage, result shall not be in acquittal of accused.

Azmat Bibi v. Asifa Riaz PLD 2002 SC 687 and Arshad Ali v. Liaqat Dhudhi 2008 MLD 816 ref.

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

----S. 248---Withdrawal of complaint---Scope---If the complaint is withdrawn during the trial, the complaint shall not be dismissed rather accused would stand acquitted. [p. 434] I

Muhammad Ayub Awan v. Muhammad Yaqub 1994 SCMR 1137 ref.

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

----S. 248---Withdrawal of complaint---Scope---Section 248, Cr.P.C., ordains two preconditions for permission to withdraw the complaint, which are, firstly, before the final order is passed and secondly, there are sufficient grounds---Final order, obviously means an order of acquittal or conviction upon conclusion of trial whereas sufficient grounds may entail out of court settlement for any consideration, or demise of the parties or the loss is made good or any alternate dispute resolution---Depending upon the circumstances of case, court can either grant or withhold the permission---Withholding of permission may amount to continuation of prosecution even through any other person.

Nisar Ahmad v. The State PLD 1976 Lah. 1354 ref.

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

----S. 248---Withdrawal of complaint---Withdrawal of complaint at appellate stage---Expression "final order"---Scope---Word "final order" in S. 248, Cr.P.C. connotes the culmination of proceedings up to the last remedy available to the parties to overturn the decision of Trial Court because final order of acquittal or conviction can be passed on an appeal before the superior courts; therefore, S. 248, Cr.P.C. would be available during proceedings before appellate court as well.

Muhammad Hanif and others v. The State and others 2001 SCMR 84; Mujahid Hussain v. The State 2004 PCr.LJ 874; Nazeer Ahmed and another v. The State 1999 MLD 1374; Raza Hussain v. The State 1989 MLD 3967; State and 5 others v. Muhammad Akram and 5 others 1987 PCr.LJ 1728; Asghar Hayat and others v. The State 1985 PCr.LJ 2638; Mst. Said Bibi v. The State 1971 PCr.LJ 39 and Parvaiz Khan v. The State through Additional Advocate-General K.P.K. Peshawar and another 2018 YLR Note 99 ref.

Ch. Riaz Ahmad for Appellant.

Malik Muhammad Latif, Additional Prosecutor General for the State.

S. M. Areeb, Advocate for the Complainant.

P L D 2022 Lahore 437

Before Anwaarul Haq Pannun, J

MUHAMMAD ARSHAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 132466 of 2018, decided on 29th June, 2021.

(a) High Court (Lahore) Rules and Orders---

----Volume V (Revised Edition 2010), Chapter-3, Part-B, R. 2(1)(ii)(b)---Criminal Procedure Code (V of 1898), Ss. 417, 422 & 426---Division Bench---Jurisdiction---Principle---Suspension of sentence---Pendency of appeal against acquittal---Except where it has been provided either by law or by rules or by a special order, it is an exclusive prerogative of Chief Justice that all cases have to be heard and disposed of by a Judge sitting alone/Single Bench----Word 'a case' includes a motion application, petition, reference, suit, appeal, revision or other proceedings to be heard and disposed of by High Court under any law in exercise of its extra ordinary, original or appellate jurisdiction---Unless Division Bench of High Court passes an order in terms of S.422, Cr.P.C. read with R. 2 of Chapter 3 of Part-B of Volume V of High Court (Lahore) Rules and Orders, by issuing notice to acquitted accused, mere filing of appeal against acquittal has no bearing upon maintainability of such appeal or application seeking suspension of sentence, before Single Bench of High Court.

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

----S. 426 (1-A) (c)---Penal Code (XLV of 1860), Ss. 302 (b) & 324---Qatl-i-amd, attempt to Qatl-e-amd---Suspension of sentence---Statutory delay---Applicability---Accused persons were convicted by Trial Court and sentenced to imprisonment for life, who sought suspension of their sentences on statutory delay in conclusion of appeal---Validity---Accused persons had been behind the bars since date of their arrests i.e. 14.4.2012 and they were awarded sentence vide judgment dated 22.12.2017---Accused persons had undergone 8 years of sentence and disposal of appeal was not within sight in near future---Liberty of a person was precious right and the same was also safeguarded/guaranteed under the Constitution---Ground of statutory delay was available to accused persons as provided under S.426(1-A)(c), Cr.P.C.---High Court suspended sentences of accused persons on the ground if after suffering incarceration in jail the accused persons were ultimately acquitted, there would be no compensation for their incarceration---Sentence was suspended, in circumstances.

Muhammad Zubair Khalid Chaudhry for the applicants assisted by Muhammad Imran Chaudhry and Muhammad Arfan Chaudhry for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

P L D 2022 Lahore 445

Before Jawad Hassan, J

MUHAMMAD ZAWAR HUSSAIN---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 63655 of 2021, decided on 13th April, 2022.

(a) Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974)---

----S. 9---Restriction of hunting---Term "Fair Chase"---Connotation---Term "fair chase" can be defined as "the ethical, sportsman like, and lawful pursuit and taking of any free-ranging wild, big game animal in a manner that does not give the hunter an undue advantage over the game animals---With the passage of time, fair chase has become a code of conduct for new hunters to complete mandatory certification courses---Despite its long history and widespread acceptance, fair chase is not as clearly understood by hunters or non-hunting public as it should be---Such is because social values, conservation practices, and hunting technologies are constantly evolving---Fair chase is more a matter of the "spirit of the hunt" than a set of written rules---Such is shaped, in part, by an individual's motivations for hunting and their personal sense of right and wrong---Meaning of "fair chase" can vary to some extent from one person to the next---Most important is that hunters recognize and embrace the ideal of fair chase and use it individually to measure their hunting decisions and experiences.

(b) Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974)---

----Preamble---Principle of "fair chase"---Applicability---Hunting ethics and fair chase policy of hunting are important if maintained a tradition of successful wildlife conservation and management.

(c) Constitution of Pakistan---

----Arts. 30 & 199---Constitutional jurisdiction of High Court---Policy matters---Principle---Under the Constitution a well-structured system of trichotomy of power is provided, which serves dual purposes---Such system defines scope and functions of each organ of the State that it is empowered and required to perform under the scheme of Constitution but most importantly it envisages that the powers and functions of the other limb of the trio must not be interfered and encroached upon by any single limb of the State---Theory of separation of power is hallmark of the Constitution and therefore a policy decision chalked out by the Executive limb of the State must not be interfered with by the Judicature unless it is evident that the same is illegal, unconstitutional, mala fide, discriminatory or in violation of fundamental right as provided and guaranteed under the Constitution.

Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat And Ushr through Secretary and others 2011 SCMR 1621; Province of Punjab through Secretary Schools Education Department, Punjab Civil Secretariat, Lahore and 2 others v. Muhammad Amir Hayat and 4 others 2021 PLC (C.S.) 245; Muhammad Khalid and others v. Province of Punjab through Chief Secretary, Punjab and others 2020 PLC (C.S.) 867; Muhammad Iqbal Shah v. Federation of Pakistan and others 2019 MLD 1087; Advocate Mian Asif Mehmood v. Federation of Pakistan through Principal Secretary and 2 others 2019 MLD 1210; Awais Saeed and others v. Government of Punjab and others 2018 PLC (C.S.) 1135; Pakistan Engineering Council v. Federation of Pakistan and others 2021 MLD 453; Sher Zaman and 4 others v. Government of Balochistan, Secondary Education Department Civil Secretariat, Quetta through Secretary and 2 others 2021 CLC 532; LESCO v. Muhammad Shoaib and others 2020 PLC (C.S.) 654; Asmatullah Janejo v. Federation of Pakistan through Secretary and others 2020 PLC (C.S.) 1196; Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others 2017 PLC (C.S.) 1085; Messrs Baloch Distillery and Sugar Mills through Chief Executive v. Secretary Industries and Commerce Department, Government of Sindh and another PLD 2017 Sindh 313; Sharafuddin v. The Executive Engineer and 6 others 2017 CLC Note 227; Muhammad Iqbal v. Government of Punjab through Chief Secretary, Punjab and another 2015 PLC (C.S.) 1503; Messrs Alzair Travel and Tours (Pvt.) Ltd. through Chief Executive and 10 others v. Federation of Pakistan through Ministry of Religious Affairs and 16 others 2014 CLC 1766; Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others 2014 CLC 600; Safdar Jamil and others v. Vice-Chancellor and others 2011 CLC 116; Syed Ali Abbas Gardezi and another v. Government of Pakistan through Secretary Establishment Division, Islamabad and 3 others 2010 PLC (C.S.) 478 and Aqsa Manzoor v. University of Health Sciences, Lahore through Vice-Chancellor and 3 others PLD 2006 Lah. 482 rel.

(d) Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974)---

----S. 9---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition---Restriction of hunting---Term "Fair Chase"---Applicability---Electronic decoys, ban on use---Right to life of animals and birds---Petitioner was hunter / short-gunner and assailed notification issued by Provincial Government imposing ban on use of electronic calls, decoys and PCP air guns during hunting of waterfowl/upland birds---Validity---Animals and birds have also some emotions and can feel pain or joy, they have legal rights, which also includes the Right to Life---Statutory duty of State to ensure that such rights are not infringed in any manner---Main purpose of enacting Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974, was to protect, preserve, conserve and manage wildlife in Province of Punjab---Provincial Government, under Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974, and other respective (related) provincial legislation, had discretionary power to take steps/adopt measures for protection of life of wild animals and birds, in addition to advancing the objective of Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974---High Court declined to interfere in the notification issued by Provincial Government as there was no illegality---Provincial Government was justified in imposing additional restriction/condition, about use of electronic devises/gadgets, battery-operated decoys/moju and pre-charged pneumatic air-guns---Use of such electronic devices/gadgets were against the norms of hunting and principle of fair chase whereby the animal or bird had a fair chance to escape---Protection of wildlife animal from being hunted down in an unfair manner against the concept of fair-chase principle was a job, which must be done by the relevant authorities and by the Courts not only to safeguard and uphold the right of life of the wildlife animals but most importantly to preserve and protect equilibrium of ecosystem for the sake of present and future generation of the country---Constitutional petition was dismissed, in circumstances.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Government of Punjab and others v. Aamir Zahoor-ul-Haq and others PLD 2016 SC 421; Province of Sindh and others v. Lal Khan Chandio and others 2016 SCMR 48; Islamabad Wildlife Management Board through Chairman v. Metropolitan Corporation, Islamabad through Major and 4 others PLD 2021 Isl. 6; Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Centre for Environment Law, WWF-I v. Union of India and others (Writ Petition (Civil) No. 337 of 1995); Narayan Dutt Bhatt v. Union of India and others (Writ Petition (PIL) No. 43 of 2014); Chenab Flour and General Mills v. Federation of Pakistan and others 2021 PTD 892; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; (Suo Motu Case No.11 of 2011) PLD 2014 SC 389; D. G. Khan Cement Company Ltd. v. Government of Punjab through Chief Secretary, Lahore and others 2021 SCMR 834 and Azra Jamali and others v. Federation of Pakistan through Secretary, Ministry of Commerce and another 2017 PLC (C.S.) 533 ref.

(e) Interpretation of statutes---

----Purposive approach---Scope---Statutory provisions of a statute can be interpreted liberally in a manner so that purposive approach keeping in mind the legislative intent and purpose of the statute cannot be discerned from mere recital of the Preamble because whole statue has to be read out to find out the legislative intent.

Major (R) Farooq Ahmed Ali, Fazal Abbas Kamyana and Mian S. Fahim Kamyana for Petitioners.

Barrister Umair Khan Niazi, Additional Advocate General Punjab, Waqar Saeed Khan, Barrister Tayyab Jan and Muhammad Osman Khan, Assistant Advocate Generals Punjab, Malik Naveed Sohail, Additional Attorney General and Ms. Sadia Malik, Assistant Attorney General along with Junaid Nadeem, Assistant Director, Wildlife Lahore Division and Junaid Alam, Assistant Director, Wildlife (Management) for Respondents.

Barrister Sameer Khosa, Advocate Supreme Court and Barrister Hira Jaleel, Advocates/Amici Curiae assisted by Maheer Irshad and Momal Malik for Research Assistance.

Dates of hearings: 13th, 25th, 29th October, 2nd November, 2021 and 13th April, 2022.

P L D 2022 Lahore 469

Before Shujaat Ali Khan and Jawad Hassan, JJ

PAKISTAN MUSLIM LEAGUE---Petitioner

Versus

Sardar DOST MUHAMMAD MAZARI and others---Respondents

I.C.A. No. 23122 of 2022, heard on 15th April, 2022.

(a) Rules of Procedure of the Provincial Assembly of Punjab, 1997---

----R. 2(dd)---Constitution of Pakistan, Art. 260---Term 'Speaker'---Scope---"Speaker", according to Art. 260 of the Constitution, read with R. 2(dd) of Rules of Procedure of the Provincial Assembly of Punjab, 1997, includes Deputy Speaker---Deputy Speaker of Provincial Assembly of Punjab can preside over Session of the Assembly, irrespective of any authorization by High Court or delegation of powers by the Speaker.

(b) Rules of Procedure of the Provincial Assembly of Punjab, 1997---

----Rr. 2 (dd), 13 & 25---Constitution of Pakistan, Art. 130---Deputy Speaker---Jurisdiction---Election for Chief Minister---Presiding of Session---Question was with regard to presiding Session of Provincial Assembly to conduct election of Chief Minister---Appellants assailed jurisdiction of Deputy Speaker to preside such session instead wanted any member among Panel of Chairmen to preside the Session---Validity---Question relating to conduct of the Session of the Assembly through Panel of Chairmen could only had arisen when Speaker or Deputy Speaker were not present due to any reason---Speaker, Provincial Assembly was present but he could not preside over Session of the Assembly to be conducted, as he himself was candidate against the portfolio of Chief Minister---During presence of Deputy Speaker, matter could not be referred to Panel of Chairmen at the whims of appellants---On one hand appellants were of the view that High Court could not intrude into internal affairs of Assembly but on the other were pressing hard for passing an order in violation of Rules of Procedure of the Provincial Assembly of Punjab, 1997---Deputy Speaker, Provincial Assembly had right to preside over the Session of House scheduled to be held for election of Chief Minister---High Court directed Deputy Speaker to abide by his oath and to ensure conduct of elections for the portfolio of Chief Minister in a fair, transparent and impartial manner, strictly under the Constitution and Rules of Procedure of the Provincial Assembly of Punjab, 1997, specifically Second Schedule thereof (Procedure for Recording of Votes in the Case of Chief Minister), without being influenced by any proceedings before High Court---High Court further directed Deputy Speaker to facilitate National/International observers, media persons, representatives of PILDAT, FAFEN and other national/international organizations etc. during the election for the portfolio of Chief Minister---Intra Court Appeal was disposed of accordingly.

Pakistan v. Ahmad Saeed Kirmani, (2) Ch. Fazal Elahi, (3) Secretary, West Pakistan Legislative Assembly, (4) Mumtaz Hassan Qizalbash PLD 1958 SC (Pak) 397; Riaz Hanif Rahi v. Federation of Pakistan through Secretary, Ministry of Law and Justice and 14 others PLD 2019 Isl. 230; BNP (Pvt.) Ltd. v. Capital Development Authority and others 2016 CLC 1169; Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others PLD 2014 Lah. 670; Wasi Zafar v. Speaker Provincial Assembly PLD 1990 Lah. 401; Gen. (R.) Parvez Musharraf v. Nadeem Ahmad (Advocate) and another PLD 2014 SC 585; 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; Muhammad Azhar Siddique v. Federation of Pakistan PLD 2012 SC 774; Hakim Khan v. Government of Pakistan through Secretary Interior PLD 1992 SC 595; Asif Ali Zardari v. Federation of Pakistan PLD 1999 Kar. 54; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161;

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul- Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; 7C's Corporate Services v. Oil and Gas Development Company Limited and others PLD 2017 Isl. 115 and Mining Industries of Pakistan (Pvt.) Ltd. through Authorised Director v. Deputy Speaker, Balochistan Provincial Assembly, Quetta and 3 others PLD 2006 Quetta 36 ref.

(c) Rules of Procedure of the Provincial Assembly of Punjab, 1997---

----R. 12(4)---Motion of No-Confidence---Presiding of Session---Principle---Speaker or Deputy Speaker under R.12(4) of Rules of Procedure of the Provincial Assembly of Punjab, 1997, cannot preside over a Session of the Assembly wherein a resolution for his removal is being considered---Where motion of "No Confidence" is not being considered against Deputy Speaker, in a Session, therefore, he cannot be considered incompetent to preside over such Session, as R. 14(5) of Rules of Procedure of the Provincial Assembly of Punjab, 1997, mandates him in such regard.

Appellants by:

Senator Barrister Ali Zafar, Advocate Supreme Court assisted by Zahid Nawaz Cheema, Talib Hussain and Rana Mudassar Umar (in I.C.As. Nos.23123 and 23124 of 2022).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court assisted by Barrister Shehryar Kasuri Advocate Supreme Court, Raza Imtiaz Siddiqui, Muhammad Humzah Sheikh, Jamshaid Alam, Qadeer Ahmad Kalyar and Sabeel Tariq Mann.

Ch. Azhar Siddique Advocate Supreme Court assisted by Naila Iqbal, Ali Shehbaz Khan, Mian Shabeer Ismail, Munir Ahmad and Abdullah Malik.

Safdar Shaheen Pirzada, Advocate Supreme Court assisted by Aamir Saeed Rawn, Nasir Mehmood Ch., Ch. Taseef Ahmad Bajwa and Ali Shahzad.

Respondents by:

Ahmad Awais, Advocate General Punjab, Umair Khan Niazi, Anees Ali Hashmi and Rai Shahid Saleem Additional Advocate Generals, Punjab and Mohammad Osman Khan, Assistant Advocate General along with Kamran Ali Afzal, Chief Secretary, Punjab, Rao Sardar Ali, Inspector General of Police, Ahmad Raza Sarwar, Secretary (Law), Government of the Punjab, Muhammad Khan Bhatti, Secretary Provincial Assembly, Punjab, Inayat Ullah, Secretary (Coordination), Punjab Assembly and Malik Khalil Ahmad, Deputy Director (Law), Punjab Assembly.

Barrister Umer Riaz Sheikh, Advocate Supreme Court representing Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly Punjab, assisted by Usama Khawar, M. Idrees Bhatti, Rana Rehan, Ch. Imtiaz Ali, Muhammad Amin, Mahid Ghafar, Muhammad Zulfiqr and Waqas Umer Sial.

Senator Azam Nazir Tarrar, Advocate Supreme Court for Muhammad Hamza Shahbaz Sharif, assisted by Khalid Ishaq, Advocate Supreme Court, Muhammad Javed Kasuri, Advocate Supreme Court, Ch. Muhammad Sarwar, Muhammad Nasir Chohan, Imtiaz Elahi, Sardar Tahir Khalil Sandhu, Pir S.M. Shahid Nasim Chishti and Rafaqat Ali Dogar.

P L D 2022 Lahore 488

Before Ch. Muhammad Masood Jahangir and Jawad Hassan, JJ

Messrs BAHRIA TOWN (PVT.) LTD. through Manager (Operations)---Petitioner

Versus

DISTRICT CONSUMER COURT, RAWALPINDI and 2 others---Respondents

Writ Petition No. 3642 of 2019, heard on 12th January, 2022.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 35, 2(c), 2(j) & 2(k)---Sale of Goods Act (III of 1930), S. 2(7)---Dismissal of frivolous or vexatious claims---Consumer---Services---Product---Scope---Petitioner assailed the dismissal of its application under S. 35 of Punjab Consumer Protection Act, 2005 read with O. VII, R. 11 of C.P.C.---Validity--- Respondent had admittedly purchased plots from the petitioner and paid certain payments but controversy arose when the petitioner refused to deliver their possession due to non-payment of possession charges---Purchasing of plots could neither be termed as 'product' as defined under S. 2(j) of the Act nor could be termed as 'services' as per S. 2(c)(ii) of the Act---Joint analysis of S. 2(j) of the Act and S. 2(7) of the Sale of Goods Act, 1930, clarified that 'land' could not be termed as a 'product'---Present case purely related to rights and liabilities of the parties out of sale/purchase of plots in lieu of consideration shaping up under a contract as well as non-fulfillment of contractual obligation---Respondent had to approach Civil Court of competent jurisdiction under the Specific Relief Act, 1877 and he, by no means, could have approached the Consumer Court for performance of contractual obligation---Application filed by petitioner before Consumer Court was allowed and the complaint was rejected.

Yasir Chaudhry v. Faisalabad Development Authroity through Director General and another PLD 2021 Lah. 713; Muhammad Ameer Qazi v. Muhammad Asif Ali and others PLD 2015 Lah. 235 and Defence Housing Authority Islamabad through Secretary and another v. Malik Khalid Mehmood PLJ 2014 Lah. 24 ref.

(b) Punjab Consumer Protection Act (II of 2005)---

----Ss. 25, 2(c), 2(j) & 2(k)---Consumer---Product---Services---Filing of claims---Scope---Clause (i) of subsection 2(c) of the Act deals with the 'product' which is defined under S. 2(j) of the Act and has been given synonymous status of the term 'goods' under the Sale of Goods Act, 1930---While clause (ii) of subsection 2(c) of the Act states about 'services' which is defined under S. 2(k) of the Act---In order to bring a claim under S. 25 before the Consumer Court, a person must qualify to be a 'consumer' having been suffered damage due to defective or faulty product hired from a service provider and for this purpose, he has to qualify that he has purchased or obtained on lease any product for a consideration or hired any services for a consideration from service provider---'Services' mentioned under S. 2(k) includes provision of facilities or advice or assistance of medical, legal or engineering related services but S. 2(k)(i) specifically put a restriction on a consumer to bring his claim before the Consumer Court if the services relate to a contract of personal nature---Under S. 2(j) of the Act, the word 'immovable' is mentioned but it is clearly restricted to 'product'.

(c) Punjab Consumer Protection Act (II of 2005)---

----Ss. 25 & 28---Filing of claims---Settlement of claims---Scope---Claim by a consumer with regard to damages is to be filed under S. 25 of the Act while S. 28 of the Act which starts with words 'who has suffered damages'---Combined reading of both the said provisions makes it clear that a claim for damages can only be filed by a consumer when the products hired from a service provider for consideration are defective or faulty and the conduct of manufacturer for rectifying such defects or faults has caused mental torture, loss of money and wastage of time.

(d) Punjab Consumer Protection Act (II of 2005)---

----Preamble---Scope---Punjab Consumer Protection Act, 2005, provides for protection and promotion of the rights and interests of the consumers facing risks and failures in the yards of their desired necessities and demands---Preamble of the Act aims at safeguarding and promoting rights and interests of consumers by affording a medium and platform for redressal of their grievance in a speedy manner without loss of time.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

(e) Interpretation of statutes---

----Preamble--- Scope--- Preamble to a statute is though not an operational part of the enactment but it is a gateway to open before Court the purpose and intent of the legislature necessitating the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble of a statute, therefore, holds 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 rel.

Muhammad Ilyas Sheikh, Advocate Supreme Court for Petitioner.

Raja Muhammad Tariq Khan for Respondents.

P L D 2022 Lahore 495

Before Shahid Waheed and Faisal Zaman Khan, JJ

YASMIN JANG---Appellant

Versus

ADVOCATE GENERAL, PUNJAB and others---Respondents

Intra Court Appeals Nos. 37924 and 42321 of 2021, decided on 18th April, 2022.

(a) Mental Health Ordinance (VIII of 2001)---

----S. 29---Consent Application---Applicant, residence of---Scope---Applicant of Consent Application does not have to be a resident of area which falls within the jurisdiction of Court---Place of residence is one of the factors on which Court, determines suitability of a person, including applicant, and appoints him/her as guardian or manager of mentally disordered person.

Ahsin Arshad and others v. Advocate General, Punjab and others PLD 2018 Lah. 9 distinguished.

(b) Mental Health Ordinance (VIII of 2001)---

----S. 29---Advocate General, consent of---Object, purpose and scope---Advocate General is the highest law officer at the level of Province, who is virtually interested in the purity of administration of justice and preserving dignity of courts---With such presumption in mind and also that swift dispensation of justice is one of the essential elements of a fair trial, which gets more importance when the matter is connected with the person and property of a mentally disordered person, the legislature has made it a condition of obtaining consent of Advocate General in S.29 of Mental Health Ordinance, 2001---Advocate General acts as a medium, to filter out cases which are found to be vexatious, malicious or motivated by personal vendetta and not in the interest of mentally disordered person, and also saves the Court time squandered in handling such type of case, so that the Court can conveniently focus on the serious issues.

(c) Mental Health Ordinance (VIII of 2001)---

----S. 29---Appointment of administrator/manager---Proceedings---Consent of Advocate General---Function, nature of---Appellant was aggrieved of appointment of administrator/manager to look after the affairs of person and properties of the patient through a law firm appointed in that respect---Mother of the patient assailed judgment of Single Judge of High Court directing Advocate General to give his consent to approach Court of Protection---Validity---Granting or refusing consent by Advocate General under S. 29 of Mental Health Ordinance, 2001,was no judicial determination of any legal rights of parties to intended action---All questions relating to appointment of guardian of person and manager of property of mentally disordered had to be decided only by Court which was to entertain petition---Even if Advocate General was to hold an enquiry, he was merely to see whether there was a prima facie case that should be allowed---Appointment of an advocate through a Wakalatnama gave him power to appear and act for any person in any Court, but not before any office such as Advocate General---Application made by law firm/advocate to Advocate General without signature of respondent was not proper and competent, nor the same could be considered that it was filed by any relative of the patient---Petition of respondent under Art. 199 of the Constitution, was not rightly allowed by Single Judge of High Court and Constitutional petition filed by respondent was dismissed---Intra Court Appeal was allowed accordingly.

Ahsin Arshad and others v. Advocate General, Punjab and others PLD 2018 Lah. 9; Padfield and others v. Minister of Agriculture, Fisheries and Food and others (1968) AC 997; The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras (1890) 24 QBD 371; Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1947) 2 ALL England Law Reports 680; Swami Shantanand Sarswati v. Advocate- General, U.P.,Allahabad and others AIR 1955 Allahabad 372; Miss. Anita Ghulam Ali and 2 others v. Abdul Rehman and 4 others PLD 1972 Kar. 649; Mayer Simon Parur v. Advocate General of Kerala and others AIR 1975 Kerala 57; Raju and another v. Advocate- General H.C. Buildings, Madras and others AIR 1962 Madras 320; Pitchayya and another v. Venkatakrish Namacharlu and others AIR 1930 Madras 129; Managing Committee of Syed Salar Endowment Bahraich, through Sardar Ali and others v. Hakim Mohd and others AIR 1947 Oudh 22; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; A.Razzak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another 2005 SCMR 142 and Dhian Das v. Jagat Ram [(1910) 8 Indian case 1160 (Lahore)] ref.

(d) Administration of justice---

----"Executive" and "judicial" acts---Distinction---Executive act with trappings of a judicial procedure is still an executive act, though overlaid with a judicial cover and it cannot be invested with judicial character.

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

----S. 22 (3)---Civil Procedure Code (V of 1908), O.III, R.4---Appointment of advocate---Power of attorney (Wakalatnama)---Scope---Provisions of R. 4 of O. III C.P.C. read with S.22(3) of Legal Practitioners and Bar Councils Act, 1973, power of attorney (Wakalatnama) is a document in writing signed by a person or by his recognized agent or some other person duly authorized by him appointing an advocate to appear or act on his behalf in any Court.

Hfeez Saeed Akhtar for Appellant (in Intra Court Appeal No.37924 of 2021).

Jam Khalid Farid, Assistant Advocate General, Punjab for Respondent No.1 (in Intra Court Appeal No.37924 of 2021).

Muhammad Haroon Mumtaz and Shehryar Khurram for Respondent No.2 (in Intra Court Appeal No.37924 of 2021).

Jam Khalid Farid, Assistant Advocate General, Punjab for Appellant (in Intra Court Appeal No.42321 of 2021).

Muhammad Haroon Mumtaz and Shehryar Khurram for Respondent No.1 (in Intra Court Appeal No.42321 of 2021).

Hfeez Saeed Akhtar for Respondent No.2 (in Intra Court Appeal No.42321 of 2021).

P L D 2022 Lahore 504

Before Jawad Hassan, J

MUHAMMAD HAMZA SHAHBAZ SHARIF---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

Writ Petition No. 27186 of 2022, decided on 29th April, 2022.

Constitution of Pakistan---

----Arts. 189, 199 (1)(c) & 255---Constitutional petition---Enforcement of fundamental right---Oath of Chief Minister, administering of---Word 'impracticable'---Scope---Petitioner was elected as Chief Minister but Governor was not taking oath from him---Validity---Word 'impracticable' used in Art. 255 of the Constitution made it clear that oath was to be made before a specific person---If it was impracticable for the reason, oath could be made before such person as nominated by that person---Earlier decisions of High Court despite having binding effect were ignored deliberately by President of the country as well as by Governor of the province concerned---Governor of the province through his conduct had also himself made it impracticable for the oath to be made before him---Directions / suggestions given by High Court in earlier judgments and law laid down by Supreme Court were binding on the Courts under Art. 189 of the Constitution---High Court nominated Speaker National Assembly to administer oath to newly elected Chief Minister of the province---Constitutional petition was allowed, in circumstances.

Watan Party and others v. Federation of Pakistan and others 2012 SCMR 584; President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784; Mian Ali Asghar v. Government of The Punjab and others 2021 MLD 370; Hakim Ali Zardari v. The State and another PLD 1998 SC 1; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another PLD 2010 SC 483; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservative of Forest, Development Circle, Lahore PLD 1960 (W.P.) Lah. 751 and Syed Ghulam Moin ul Haq Gillani v. Province of Punjab and others 2021 CLC 1286 rel.

Ashtar Ausaf Ali, Senior Advocate Supreme Court with Khalid Ishaq, Sardar Akbar Ali Dogar and Ch. Sultan Mahmood, Advocates Supreme Court for Petitioner.

Mirza Nasar Ahmad, Additional Attorney General for the Federation.

Barrister Umair Khan Niazi and Anees Ali Hashmi, Additional Advocates General for Province of Punjab with Fiaz Basra, AAG.

Muhammad Azhar Siddique, Advocate Supreme Court for the Applicants (in C.M.No.03 of 2022 under Order I, Rule 10, C.P.C.).

P L D 2022 Lahore 512

Before Muhammad Amjad Rafiq, J

QUDRAT ULLAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 9264-B of 2021, decided on 9th February, 2022.

Criminal Procedure Code (V of 1898)---

----S. 466---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Release of lunatic, pending trial---Scope---Application filed by the petitioner under S. 466(1), Cr.P.C. for his release till he recovered from his unsoundness of mind, was dismissed---Scope---In Section 466, Cr.P.C., the words"whenever an accused was found to be unsound mind and incapable of making his defence" were of worth value because an accused could be found as such only if the Court had tried the fact of his unsoundness and incapacity during the trial as mentioned in S.465, Cr.P.C.---Thus, Court of Session or the High Court shall only be authorized to release the accused on bail under S. 466, Cr.P.C. if they were the Trial Courts and in no other case High Court could exercise powers under said section---In the present case, such was not the situation though the petitioner had approached the Trial Court but not on the ground of his unsoundness or incapacity to stand trial due to disease of Schizophrenia which recourse was still open for the petitioner---In such circumstances, bail of the petitioner could not be entertained or on the ground of medical evidence when a special procedure had been prescribed in the Cr.P.C. for such like cases and even provision of bail was also available in said chapter---Petition was dismissed, in circumstances.

Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Imtiaz Jawed v. The State PLD 2008 Kar. 522; Muhammad Riaz v. The State 2006 PCr.LJ 1459; Imtiaz Ahmed v. The State through Special Prosecutor , ANF 2017 SCMR 1194; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Sardar Amjad Ali Khan v. The State 2009 SCMR 425; Asif Ali Zardari v. The State 1993 PCr.LJ 781 and Yasir v. The State and another 2018 YLR 379 ref.

Yasir v. The State and another 2018 YLR 379 and Mst. Safia Bano and another v. Home Department Government of Punjab through Secretary and others PLD 2021 SC 488 rel.

Ch. Imran Khalid Amratsari for Petitioner.

P L D 2022 Lahore 516

Before Muhammad Shan Gul, J

MUHAMMAD SAEED AKHTAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, DISTRICT MULTAN and 4 others---Respondents

Writ Petition No. 17996 of 2021, decided on 17th November, 2021.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---Powers of Ex-officio Justice of Peace---Dishonestly issuing a cheque---Cheque drawn by father of accused persons---Scope---Petitioner filed an application for registration of a criminal case against respondents---Petitioner claimed that the respondents were known to him and they had purchased agricultural machinery from him and had issued a cheque but when the petitioner deposited the cheque in his account the same was dishonoured thrice---Bank account was in the name of deceased father of respondents---Justice of Peace noted that the dishonoured cheque was drawn by the late father of respondents---Application was dismissed---Validity---Respondents might have inherited the business of their late father and while they might have inherited his estate, it did not mean that they became criminally liable for actions or activities allegedly undertaken by their late father---While a suit for recovery from the estate or inheritance might be in order, if at all, an application for registration of a criminal case against respondents could not be countenanced---Constitutional petition was dismissed.

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

----S. 489-F---Dishonestly issuing cheque---Term "whoever"---Scope---Term "whoever" appearing at the start of S. 489-F, P.P.C. is important and it is obvious that unless and until an application for registration of a case is filed against a person who is the account holder and who has himself issued a cheque which has been dishonoured, no criminal liability is attracted.

Muhammad Abaid Ullah v. Ateeq-ur-Rehman and 8 others 2015 CLD 307 and Syed Shan Abbas v. The State and another 2014 YLR 882 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Aim behind insertion of S. 489-F, P.P.C. is not to encourage or precipitate recovery of monies but to punish the person "who" dishonestly issued a cheque.

Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others PLD 2009 Lah. 401 and Girga v. K. Vinay 2004(1) Recent Criminal Cases 458 (Kerala) rel.

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

----S. 489-F---Dishonestly issuing cheque---Scope---One of the basic ingredients of the offence contemplated by S. 489-F, P.P.C. is that a person must have drawn and issued the cheque himself in respect of an account maintained by him in a bank and that cheque is dishonoured---Person liable in respect of said penal provision is only the person who has drawn the cheque.

Bhupinder Lima v. State of Andhra Pradesh 1999 (6) ALD 143 ref.

(e) Criminal trial---

----Legal heirs, liability of---Scope---Penal or criminal liability does not devolve upon legal heirs.

(f) Constitution of Pakistan---

----Art. 3---Elimination of exploitation---Criminal liability---Liability of legal heirs---Scope---Article 3 of the Constitution, clearly provides safeguards against exploitation and persecution of citizens---Article 3 protects individual citizens from exploitation inasmuch as all citizens are only liable for what they have done themselves and they are not liable for acts of others---Almost all legal systems in the world recognize that criminal liability can only be imposed on an individual for the acts and omissions for which such individual is personally responsible---Concept of substitution of accused/convict is alien to criminal jurisprudence---Offences involving common object or common intention apart, a person is only liable for an offence that he commits himself---Such person can never be substituted or booked for the fault of some other person even if that person be his father or mother.

Salik Aziz v. Muhammad Emad and others 2020 YLR 147 ref.

Rana Muhammad Ibrahim for Petitioner.

Malik Shoukat Mahmood Mahra, Asstt. Advocate General for Respondents.

P L D 2022 Lahore 524

Before Sultan Tanvir Ahmad, J

TCS (PRIVATE) LIMITED---Appellant

Versus

Mst. HASEENA BEGUM---Respondent

F.A.O. Nos. 101 and 128 of 2012, decided on 21st October, 2021.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 13---Liability for faulty or defective services---Scope---Respondent filed a claim pleading therein that she obtained courier services of appellant for purposes of delivering admission form of her son to a medical college---Courier was delivered by the appellant at another medical college, which was later on traced and delivered to the correct addressee but not before expiry of admission phase---Consumer Court awarded damages to the appellant---Validity---Respondent in her claim had complained about the purported faulty courier services and neglect of responsibility of delivering the consignment by specific date at a particular address---Though the liability as well as damage done to the respondent was denied but throughout the trial, nothing was brought on record to show that how fault at the part of the appellant had not caused the damage for which the compensatory award was granted to the respondent by the Consumer Court---Losses capable of calculation with reasonable certainty being special damages could only be allowed when not just explicitly pleaded but proof of each item of such claimed losses was given with reference to the evidence on record, whereas inexact losses like pain, suffering etc. could be compensated as general damages, which could be assessed by the Court in its discretion, required to be exercised according to the facts and circumstances of each case---Award of certain amount of damages in addition to return of charges of disputed shipment, costs and loss of amount deposited in Bank allowed by Consumer Court was reasonable compensation---Appeals were dismissed.

Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 SCMR 507 ref.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 rel.

(b) Punjab Consumer Protection Act (II of 2005)---

----Ss. 13 & 15---Liability for faulty or defective services---Restriction on grant of damages---Scope---Respondent filed a claim pleading therein that she obtained courier services of appellant for purposes of delivering admission form of her son to a medical college---Courier was delivered by the appellant at another medical college, which was later on traced and delivered to the correct addressee but not before expiry of admission phase---Consumer Court awarded damages to the appellant---Contention of appellant was that under S. 15 of the Punjab Consumer Protection Act, 2005, service provider's responsibility was limited to return of consideration---Validity---Service provider's responsibility was limited to return of consideration or a part thereof and costs in addition thereto, when no damage was suffered by consumer, however where the faulty service had caused damage to the consumer, the restriction in the section did not apply---Examination of Ss.15 & 13 as well as its surrounding provisions reflected that a consumer who had suffered a damage and had met the criteria that the claimed damages had proximate relationship with the faulty service was entitled to seek damages---Objection of appellant was turned down.

(c) Punjab Consumer Protection Act (II of 2005)---

----Ss. 13 & 2(c)(iii)---Liability for faulty or defective services---Consumer---Scope---Respondent filed a claim pleading therein that she obtained courier services of appellant for purposes of delivering admission forms of her son to a medical college---Courier was delivered by the appellant at another medical college, which was later on traced and delivered to the correct addressee but not before expiry of admission phase---Consumer Court awarded damages to the appellant---Contention as to the respondent falling out of the categories of permissible claimant(s) being not directly affected from the service as the claimant was not the one who actually lost admission due to purported faulty service, was not inspiring---Both the hirer who paid consideration for the services and beneficiary of such service were covered within the definition of the consumer as provided in S. 2(c)(ii) of the Punjab Consumer Protection Act, 2005---Definition was comprehensive enough to include the one who hired the service for consideration and at the same time in view of the broad definition even other beneficiaries could not be denied the action, provided the same was brought due to damage caused by any faulty service and it was not permissible for a service provider to take a position that there was no privity of contract---Respondent being direct hirer and her son being another beneficiary could have maintained the claim, subject to fulfilment of remaining conditions---Objection of the appellant was turned down.

(d) Punjab Consumer Protection Act (II of 2005)---

----S. 13---Liability for faulty or defective services---Scope---Word "proximity" is normally used as a convenient label to describe a relationship between the parties by virtue of which the defendant can reasonably forsee that his act or omission is liable to cause damage to the claimant.

Muirhead v. Industrial Tank Specialties Ltd. (1985) 3 All ER 705 ref.

(e) Punjab Consumer Protection Act (II of 2005)---

----S. 13---Liability for faulty or defective services---Scope---Word "proximate" used in S. 13 of Punjab Consumer Protection Act, 2005, has been used to describe not only the relationship between the parties, but the connection between service provider's negligence or faulty service and the customer's damage.

(f) Punjab Consumer Protection Act (II of 2005)---

----Preamble---Scope---Preamble of the Punjab Consumer Protection Act, 2005, reflects that the legislature has promulgated the Act for protecting interest of the consumers, to promote their rights and to provide speedy remedy for the redressing of their complaints---To achieve the purpose wide range of powers are given to the authority and forum of counsel for consumers in Part-IV of the Act---At the same time, duties have been imposed upon service provider including the duty to give proper disclosure in terms of S. 16 of the Act---Restrictions are imposed from making any false, deceptive or misleading statement by way of Part-V of the Act---Detailed reading of the Act in the light of the Preamble as well as the long title reflects that the legislation is beneficial in the sense that it tends to protect public from exploitation and the acts of individuals by imposing obligations, with whom they stand in relationship of customer---Legislation is required to be construed in correct perspective to fructify the legislative intent underlying the enactment and its beneficial provisions are to be interpreted liberally to extend the benefit upon whom it is conferred by the legislature.

Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others PLD 2000 SC 207; Charan Singh v. Healing Touch Hospital and others AIR 2000 SC 3138 and Spring Meadows Hospital and another v. Harjol Ahluwalia through K.S. Ahluwalia and another (1998) 4 Supreme Court cases 39 ref.

(g) Punjab Consumer Protection Act (II of 2005)---

----S. 31---Order of Consumer Court---Scope---Legislature, while giving substitute system of consumer justice by way of speedy trial, required to be concluded within six months, provides extensive range of remedies starting from damages, compensatory awards, costs, recovery of prices for individual sufferer, at the same time aims to bring about a quality improvement in the approach of the service provider and services through the Act.

(h) Punjab Consumer Protection Act (II of 2005)---

----S. 31---Order of Consumer Court---Scope---Remedies detailed in S.31 of the Punjab Consumer Protection Act, 2005, can be granted in addition to each other and in appropriate cases more than one direction or remedy can be granted---Not merely the harm or mental pain, agony, discomfort, losses suffered by individual customer but it is quality of the services and conduct of its provider upon which concentration is also required in the cases of established negligence---To achieve required standards and quality service the Consumer Courts are also empowered to issue direction of ceasing to provide faulty service, for the welfare of the consumers, until the service provider achieves the required standards.

(i) Damages---

----General damages---Scope---Failure to quantify damages does not mean that a claimant is not entitled to general damages under the rule of thumb when sufficient material is brought on record.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 rel.

Syed Hurr Ali Shah for Appellant.

Mirza Muhammad Irfan Baig for Respondent.

P L D 2022 Lahore 539

Before Ali Baqar Najafi and Farooq Haider, JJ

Syed GHAZI SHAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 62165 of 2021, decided on 10th February, 2022.

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

----S. 11-F---Membership, support and meetings relating to a Proscribed Organization---Scope---Accused was convicted for collecting funds for a proscribed organization---No evidence was available on record to show that the accused was a member of proscribed organization or had any link with the same---Prosecution was silent about the modus operandi of such fund raising for the proscribed organization---Any person from whom the accused had demanded funds was not joined into investigation---Receipt book recovered from the accused was secured through sealed parcel, similarly signatures of the accused were secured through sealed parcel, however, report of Forensic Laboratory did not reflect that the referred articles were sealed---Carbon copies of receipts neither contained name, flag or any other distinguished mark of any proscribed organization nor showed that figure mentioned in the same was about any amount "given or taken" as fund for any proscribed organization---Prosecution had failed to prove its case against the accused beyond shadow of doubt and in such state of affairs there was no need to discuss defence version---Appeal filed by accused was allowed, in circumstances.

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

----S. 11-H---Funding arrangements---Scope---Person commits an offence under S. 11-H of Anti-Terrorism Act, 1997, who provides fund as well as who receives such fund likely to be used for terrorism.

(c) Criminal trial---

----Prime object of every law dealing with crime is always to prevent the crime in society and of course to have reformation/cure by awarding punishment.

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

----Ss. 11-H & 27---Funding arrangements---Punishment for defective investigation and reward for successful investigation---Scope---Intention of legislature behind Anti-Terrorism Act, 1997, is crystal clear i.e. to prevent/crush the terrorism---Any Terrorist Organization cannot run without economical support/finance and fund raising is back bone of the same, hence S. 11-H was incorporated/added in Anti-Terrorism Act, 1997 and both acts i.e. giving and receiving of fund were made offences---No two ways about it that if no one will give fund then there will be no question about receiving the same and both acts i.e. giving and receiving fund are inter-connected, bonded, co-related and in-severable---With justified wisdom, act of giving the fund was also made an offence---If following the true spirit of legislation, fund givers are apprehended, taken to task and punished then of course one will think before giving such fund and buying worry of facing prosecution as well as getting punishment and ultimately back bone of terrorist organization would be crashed, therefore, catching fund donor first is more necessary than fund receiver---When it is not the case of prosecution that someone was forcibly collecting fund then both i.e. fund donor as well as collector were to be jointly booked---Omission on part of Investigating Agency in this regard i.e. not apprehending the person who gives such fund is punishable under S. 27 of Anti-Terrorism Act, 1997.

Barrister Salman Safdar for Appellant.

Arshad Ali Farooqi, Deputy Prosecutor General for the State.

P L D 2022 Lahore 545

Before Muhammad Amjad Rafiq, J

Mst. HIRA BIBI---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 1556 of 2022, decided on 24th January, 2022.

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

----S. 164---Power to record statements and confessions---Scope---Word "any Magistrate" means as explained in S. 164, Cr.P.C. includes Judicial Magistrate and Special Judicial Magistrate as per definition of "Magistrate" given in S.4(ma), Cr.P.C. even if they have no jurisdiction in the case---Such Magistrates are authorized to record any statement or confession during investigation or afterwards before the commencement of the inquiry or trial.

Mst. Amna Shaheen v. State and others PLJ 2021 Lah. 645 and Mst. Asma Bibi v. State and others (Writ Petition No. 2335 of 2021) ref.

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

----Ss. 164, 36 & 37---Power to record statements and confessions---Ordinary powers of Magistrates---Additional powers conferrable on Magistrates---Scope---Investigation is a process of collection of evidence wherever it may be found, a recurring offence in more than one jurisdiction supply part evidence in a place and pieces are brought together to complete the picture---Authorized Criminal Courts are competent to inquire or try an offence as per scheme regulated under Ss.177 to 189 of Cr.P.C.---Magistrates were given ordinary and special powers to play a role in the processes like remand, issuance of arrest warrants, search warrants, proclamation, inquest, bails, recording of statements and confessions---Such ordinary and special powers are entrusted under Ss. 36 & 37 of Cr.P.C.

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

----Ss. 164, 6, 12 & 17---Power to record statements and confessions---Classes of Criminal Courts---Subordinate Magistrates---Limits of their jurisdiction---Subordination of Magistrates and Benches to District Magistrate---Scope---Section 164, Cr.P.C. falls in Chap. XIV of Cr.P.C. which encompasses Ss. 154 to 176, Cr.P.C., it entails steps relating to investigation in which Magistrate performs different functions---Under S. 6 of Cr.P.C. there are different classes of Magistrates under Code of Criminal Procedure and such Magistrates can be appointed by the Provincial Government in any district whose local areas are defined within which they may exercise all or any of the powers they are invested with under the Code---Under S. 12 of Cr.P.C. local limits of their jurisdiction can also be defined which shall extend throughout any district where they are posted---Sessions Judge of the area under S. 17 of Cr.P.C. can also frame rules or give special orders consistent with the Code as to the distribution of business among such Magistrates because they are subordinate to the Sessions Judge by virtue of said section.

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

----Ss. 36, 37, 39 & 40---Ordinary powers of Magistrates---Additional powers conferrable on Magistrates---Mode of conferring powers---Powers of officers appointed---Scope---Ordinary powers of Magistrates which they can exercise by virtue of their office as a Magistrate are mentioned in S. 36 of Cr.P.C. and such powers are listed in the Third Schedule of Cr.P.C.---Similarly, under S. 37, Cr.P.C., Magistrates can be conferred upon additional powers as mentioned in Fourth Schedule of Cr.P.C. and mode of conferring powers as mentioned in S. 39 of Cr.P.C. is reflective of the fact that powers can be conferred by the Provincial Government either by name or in virtue of their office or classes of officials generally by their official title---Once the power is given, the Magistrate shall unless the Provincial Government otherwise directs or has otherwise directed, exercise the same powers in the local area in which he is so appointed---Until the Provincial Government withdraws all or any powers once conferred under the Code on any Magistrate, he shall continue exercising such powers wherever he is appointed as a Magistrate as ordained in S. 40 of Cr.P.C.

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

----Ss. 164 & 12---Subordinate Magistrates---Local limits of jurisdiction---Power to record statements and confessions---Scope---Ordinary Powers of Magistrate as enumerated in Third Schedule of Cr.P.C. include power to record statement and confession under S. 164, Cr.P.C. which fact is listed at Serial No. '7a' of said Schedule under ordinary powers of a Magistrate of the First Class---Magistrate appointed in a district is whenever approached for the purpose of recording statement of a witness he cannot refuse recording thereof on the ground that case is one which has not been registered in his local district---Section 12(2) of Cr.P.C. means that a Magistrate working in a district can act as a trial court and exercise ordinary powers as Magistrate within the precincts of that district only---Magistrate appointed in a District 'A' and he while posted as such cannot be called to District 'B' for exercising his ordinary powers as Magistrate but if somebody approaches him from any other district and solicits to exercise his ordinary powers like recording of statement or confession, he cannot refuse to honour such request when S. 164, Cr.P.C. authorizes him to forward such statements or confessions to the Magistrate by whom the case is to be inquired into or tried---Such is also in consonance with the Explanation attached to S. 164, Cr.P.C. which says that it is not necessary that Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.

Mst. Amna Shaheen v. State and others PLJ 2021 Lah. 645 ref.

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

----S. 164---Power to record statements and confessions---Scope---Scope of investigation in a case usually extends to collection of different pieces of evidence which can be gathered from wherever they may be found either within the district or out of district---Some of the offences have a recurring effect which starts in one district but ensued in another; in such eventuality if a witness is found out of district or an accused is arrested as such and police, in order to secure the evidence cannot take risk of their transportation before the concerned district, can produce them before the nearest Magistrate, so that evidence may be recorded at every early possibility, that is the reason S. 164, Cr.P.C., contains word "any Magistrate", even if he has no jurisdiction at all---Statements and confessions promptly recorded carry comparably more evidentiary value because there remain remote chances to think, concoct or fabricate the facts, even influence of external factors are ruled out.

Lal Singh v. Emperor AIR 1938 All 625 and Mst. Amina Bibi v. Sessions Judge Layyah, District Layyah and others 1999 PCr.LJ 2044 ref.

Muhammad Sarfraz Khan v. The Crown PLD 1953 Lah. 495 rel.

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

----Ss. 82, 84, 85, 86, 99 & 186---Where warrant may be executed---Warrant directed to police-officer for execution outside jurisdiction---Procedure on arrest of person against whom warrant issued---Procedure by Magistrate before whom person arrested is brought---Disposal of things found in search beyond jurisdiction---Power to issue summons or warrant for offence committed beyond local jurisdiction---Magistrate's procedure on arrest---Scope---Some of the functions, Magistrate performs during investigation, like when an accused is required to be removed to tribal area for the purpose of investigation where the FIR is registered; Magistrate, in whose district such accused is available, is authorized to inquire and then order for removal out of jurisdiction---Likewise, when a warrant is issued to a police officer, he is authorized to execute it throughout Pakistan as per S. 82 of Cr.P.C. and if he arrests the accused out of the district, he is required to produce him before the Magistrate of that district as per Ss. 84 & 85 of Cr.P.C. in order to regulate his custody so as to take security or release him on bail as mentioned in S. 86 of Cr.P.C. or authorize his removal to district concerned---If at that time police officer considers that statement of accused or confession is to be secured, he can request that Magistrate and it is not expected that Magistrate should refuse to record his statement or confession simply on the ground of lacking territorial jurisdiction---Under S. 99 of Cr.P.C. when in pursuance to a search warrant, anything is found beyond jurisdiction, police officer is required to produce that thing before the Magistrate of that jurisdiction who authorizes its removal to the court concerned---Even under S.186, Cr.P.C., when any person is arrested in his local jurisdiction, Magistrate can attend to the case for transportation of accused to the respective district for the purpose of trial. All such functions are to facilitate the investigation of a case and not to deflect it.

Shabina Naz v. Special Judicial Magistrate and another 2011 MLD 722; Fozia Shabbir v. Additional Sessions Judge, Lahore and 8 others PLD 2006 Lah. 304; Fozia Perveen v. Judicial Magistrate Section 30, Khushab 2007 YLR 2919; Manzoor Hussain v. Special Judical Magistrate and 2 others 2008 YLR 2679; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203; Fateh Shah v. Muhammad Hassan and 2 others 1983 PCr.LJ 1893 and Mst. Kalsoom Bibi v. District and Sessions Judge, Bahawalpur and another 2009 MLD 421 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art. 102---Power to record statement and confession---Evidence of terms of contracts, grants and other disposition of property reduced to form of document---Scope---No prejudice is caused nor statement recorded becomes useless because when any such statement or confession is recorded by a Magistrate out of the district, he is required to forward the same to the Magistrate by whom case is to be inquired into or tried and it is not necessary to call such Magistrate as witness in the trial in support of statement recorded by him.

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

----Arts. 102 & 91---Criminal Procedure Code (V of 1898), Ss. 164, 364 & 533---Evidence of terms of contracts, grants and other disposition of property reduced to form of document---Presumption as to documents produced as record of evidence---Non-compliance of provisions of S.164 or 364---Scope---Article 102 of Qanun-e-Shahadat, 1984 provides that anything that is required under the law to be reduced to the form of a document, no witness is required to prove it but the document itself---Statement of an accused or his confession, though is admissible without calling the person who recorded it, but if it has not been recorded as per provisions of S.164 or 364 Cr.P.C., then, court shall take evidence that such person duly made the statement recorded and may call the Magistrate but if confession or statement of accused has been taken down in accordance with law, court shall presume its genuineness under Art. 91 of Qanun-e-Shahadat Order, 1984.

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

----Arts. 91 & 102---Presumption as to documents produced as record of evidence---Evidence of terms of contracts, grants and other disposition of property reduced to form of document---Scope---Presumption under Art. 91 of Qanun-e-Shahadat, 1984, unless rebutted shall be a proof of fact contained in the statement or confession---Such document shall not preclude the admission of oral evidence as to the same fact as mentioned in Explanation 3 of Art. 102 of Qanun-e-Shahadat, Order, 1984.

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

----S. 164---Power to record statement and confession---Presence of accused---Scope---Objection is usually taken that statement of a witness recorded out of district deprives the accused to cross-examine the witness as per provision (1-A) of S. 164, Cr.P.C., because an opportunity to cross-examine the witness is mandatorily to be given to him---Word "may" used in the section makes it optional to record the statement in the presence of accused or not.

Mst. Zainab Bibi v. S.H.O. and others 2003 YLR 3191 and Muhammad Yousaf v. State and 12 others 2002 YLR 397 ref.

Rana Ali Imran Khan for Petitioner.

Muhammad Amjad Ansari, Assistant Advocate General.

P L D 2022 Lahore 559

Before Ali Baqar Najafi, J

ALI IKRAM---Petitioner

Versus

Mian MUHAMMAD IKRAM and 3 others---Respondents

Criminal Revision No. 55303 of 2021, decided on 17th December, 2021.

(a) Protection of Parents Ordinance (XII of 2021)---

----S. 4---Parents' right to evict children---Pendency of civil litigation---Scope---Father (respondent) filed application before the Deputy Commissioner alleging therein that the son (petitioner) forcibly stopped his entry in the house owned by the former---Petitioner appeared before the Deputy Commissioner; contended that the respondent used to live separately in another house and that civil litigation in respect of the house was pending adjudication---Deputy Commissioner notwithstanding the availability of registered gift deed in favour of respondent directed the parties to seek remedy from concerned court of law---Appellate Court remanded the case and directed the Deputy Commissioner to follow the procedure prescribed in Chap. XX of the Code of Criminal Procedure, 1898---Validity---Order passed by the Deputy Commissioner was under subsection (5) of S. 4, therefore, it was an order on the civil side and Chap. XX of Code of Criminal Procedure, 1898, was not attracted---Deputy Commissioner had failed to exercise his jurisdiction on the pretext of pendency of civil litigation---Order was based on misinterpretation of subsection (5) of S. 4 wherein the word "irrespective of any defence put up by the child" was mentioned with further words "including the defences that the house was constructed or purchased through the funds of the child"---Said words excluded the pendency of civil suit---Protection of Parents Ordinance, 2021 was a special law which had to be given special status, therefore, the jurisdiction of Deputy Commissioner was well intact---Criminal revision was allowed, orders passed by forums below were set aside and the Deputy Commissioner was directed to exercise his jurisdiction on the basis of the Protection of Parents Ordinance, 2021.

(b) Protection of Parents Ordinance (XII of 2021)---

----S. 3---Punishment for eviction of parents---Scope---Eviction of parents by child from a house, owned or rented by child, or in his possession by any other means, has been described as an offence, which may attract rigorous imprisonment for a term up to one year or with fine or with both.

(c) Protection of Parents Ordinance (XII of 2021)---

----S. 4---Parents' right to evict children---Scope---Parent may evict a child, his spouse or offspring, from a house owned or rented by such parent---If a child, his spouse or offspring, had failed to vacate the house after seven days of service of written notice of eviction by the parent, he may be punished with simple imprisonment for a term which may extend to thirty days or with fine of Rs. 50,000/-.

(d) Protection of Parents Ordinance (XII of 2021)---

----Ss. 4, 6 & 7---Parents' right to evict children---Trial---Appeal---Scope---Under subsection (2) of S. 4, if a child had failed to vacate the house a written complaint can always be filed before the Deputy Commissioner by such parent and upon receipt of such complaint, the Deputy Commissioner after his satisfaction and hearing the parties to the effect that ownership vests with parent shall pass an order of eviction of the house by a child, irrespective of the defence put up by the child including defence that he had constructed the house or purchased through funds of the child---Said order passed under subsection (5) as well as under subsection (2) of S.4 is appealable under S. 7---Order passed under subsection (5) does not need any recording of evidence as envisaged under Chap. XX of the Code of Criminal Procedure, 1898 but an order under subsection (2) which is a penal provision, the said procedure relatable to trial under Chap. XX of Code of Criminal Procedure, 1898 will be attracted---Under S. 6 the trial is to be conducted of a person who has been arrested or appeared or is brought before the Magistrate.

(e) Protection of Parents Ordinance (XII of 2021)---

----S. 4---Parents' right to evict children---Scope---Complaint under subsection (2) of S.4 can be filed by parent before the Deputy Commissioner---Neither the word "complaint" has been defined nor provisions of Ss. 200 to 240 of Cr.P.C. are made applicable, meaning thereby that the procedure of complaint will not be followed.

Muhammad Maqsood Buttar and Mazhar Farooq for Petitioner.

Abdul Samad, A.P.G.

P L D 2022 Lahore 564

Before Mirza Viqas Rauf and Jawad Hassan, JJ

The BANK OF PUNJAB---Petitioner

Versus

Messrs SUPER TRUNK HOUSE through Proprietor and another--Respondents

Regular First Appeal No. 72 of 2017, decided on 24th January, 2022.

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

----S. 5---Condonation of delay---Scope---Applicant sought condonation of delay occasioned due to negligence of its counsel but when the applicant was confronted with query as to whether any action was taken against the said counsel on account of such default, the applicant conceded that no action whatsoever was taken in this regard---Applicant was obliged to explain delay of each and every day---Incumbent upon the applicant to establish sufficient cause for the same---Application of condonation of delay being devoid of merits was dismissed.

Abdul Majid and others v. Mst. Zubeda Begum and others 2007 SCMR 866 ref.

Rai Muhammad Riaz (deceased) through L.Rs. and others v. Ejaz Ahmed and others PLD 2021 SC 761 rel.

(b) Limitation---

----Justice, equity and good conscience do not override the law of limitation---Object of law of limitation is to prevent stale demands and it ought to be construed strictly---Hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court---Ignorance, negligence, mistake or hardship do not save limitation, nor does poverty of the parties.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi PLD 2016 SC 872 ref.

(c) Limitation---

---Void order---Scope---Hurdle of limitation cannot be softened merely on the ground that order under challenge in appeal is illegal or unlawful order---Even if order under challenge is void the person challenging such order has to explain the delay in filing the proceedings.

Abid Hussain v. Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff Islamabad 2021 SCMR 645; Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 ref.

(d) Limitation---

---Question of limitation cannot be termed as mere technicality---Such has paramount importance, as with the afflux of time certain rights do accrue in favour of the adversary, which cannot be taken away in a slipshod manner---Object of framing the law for the purpose of regulating the limitation was to push the parties to file their respective claims within stipulated period---Time period provided for filing the proceedings in terms of suit, appeal, review or revision petition cannot be lightly ignored or brushed aside---Question of limitation is as important as jurisdiction of the Court.

(e) Limitation---

----Every litigant is expected to prosecute his cause with all diligence and hilt and if somebody opts to thwart the process of law, he is liable to face the penal consequences provided therein---Courts cannot sit as silent spectators in such circumstances and shut their eyes on the flagrant violation of law.

Muhammad Kamal Hassan for Applicant/Appellant.

Usama Mehboob for Respondent No.1 .

P L D 2022 Lahore 569

Before Asim Hafeez, J

Messrs OHAD MOTORS (PVT.) LTD.---Petitioner

Versus

GOVERNMENT OF PUNJAB and 4 others---Respondents

Writ Petitions Nos. 64587 and 49076 of 2021, heard on 4th March, 2022.

Punjab Motor Vehicles Rules, 1969---

----Rr. 197-A, 197-B & 197-C---Provincial Motor Vehicles Ordinance (XIX of 1965), S. 119---Punjab General Clauses Act (VI of 1956), S.22---Notification No. SO(P-I)/2-34/2016(M/C)P-1 dated 01-09-2020---Licence for manufacturing or assembling of engine or chassis of motor cab rickshaw/motor cycle rickshaw---Vires and legality of Rr. 197-A, 197-B & 197-C of the Punjab Motor Vehicles Rules 1969 ('Rules, 1969')---Rules 197-A, 197-B & 197-C of the Rules, 1969 ('the impugned rules') were put into practice without their re-publication in the Official Gazette, after the publication of the draft rules---Whether the previous publication (of draft rules) constituted substantial compliance of the requirements of S.119 of Provincial Motor Vehicles Ordinance, 1965 ('Ordinance, 1965') and S.22 of Punjab General Clauses Act ('Act, 1956') when no objections were raised qua the legality, reasonability and competency of the impugned rules, upon publication of draft rules---Held, that the validity and enforceability of the impugned rules was being questioned after two decades of successful enforcement and implementation - where under numerous licences were issued and are regularly renewed on annul basis---Draft rules were published in the Official Gazette through Notification No. SO(TR-I)/2-10/2000 dated 05-06-2002 for calling objections; no objections were raised to the draft rules, which were duly published and no licensee, to date, has objected to their enforceability---Impugned rules established a licensing regime for the manufacturing and assembling of motor cab rickshaw/motorcycle rickshaw and they did not suggest imposition of any fiscal obligation or any condition prejudicial to the public---No specific injury, prejudice or harm was alleged by the petitioner, except raising objection to the conditionalities prescribed for regulating the licensing regime---No case of any alleged discrimination, specific to the petitioner, was made out---Impugned rules were further amended through Notification No. SO(P-I)/2- 34/2016(M/C)P-1 dated 01-09-2020, which amendment fulfilled the condition of publication of draft rules for soliciting objections and thereafter amended rules were again published in the official gazette - where draft rules and re-published rules were not similar but amendments were made in the draft rules---Fresh publication or re-publication was missed inadvertently and without any element of mala fide---Persons affected by the impugned rules could not claim absence of knowledge as licences were issued under the impugned rules---Mere inadvertent mistake on the part of the department did not constitute sufficient ground to declare the Notification No. SO(TR-I)/2- 10/2000 dated 05-06-2002 void and ineffective and consequently declaring all actions taken, licences issued and renewed, solely because impugned rules were not re-published after draft rules being published earlier---Plausible and rational option in the circumstances of the present case was to save the impugned rules to avoid spilling chaos and confusion---High Court declared that issuance of Notification SO(TR-I)/2-10/2000 dated 05-06-2002 in the official gazette was treated as sufficient compliance of the law, which shall be deemed effective from the date of publication of draft rules in the official gazette---Constitutional petition was dismissed with the observation that the Court's declaration was only to the extent of present case, and the Government in future shall adhere to the requirements of previous publication accordingly, as prescribed in law.

Nazir Ahmad v. King Emperor AIR 1936 Privy Council 253; Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others 2001 SCMR 838; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Manzur-ul-Haq v. Controlling Authority, Local Councils, Montgomery and others PLD 1963 SC 652 distinguished.

Muhammad Siddique v. The Market Committee, Tandlianwala 1983 SCMR 785; Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others PLD 2004 SC 261; Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others" 2017 SCMR 2066 and Pakistan through Secretary, Ministry of Defence, and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180 ref.

Afzaal Ahmad Butt for Petitioner.

Zafar Rahim Sukhera, A.A.G. for Respondents.

Khalid Iqbal, Law Officer on behalf of Provincial Transport Authority for Respondents.

P L D 2022 Lahore 580

Before Sultan Tanvir Ahmad, J

Mst. AKBARI BEGUM and another---Petitioners

Versus

Mst. ISHRAT BANO (deceased) through L.Rs.---Respondents

Civil Revision No. 1156-D of 2018, decided on 13th January, 2022.

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

----O. XIV, R. 3---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Additional issues---Independent decision/findings, absence of---Pensionary benefits---Legal heirs, entitlement/share of---Suit for declaration was filed by respondents (legal heirs, i.e. widow/two children of the deceased/servant) claiming their entitlement of their respective shares in the pensionary benefits of the deceased---Additional issue regarding forgery in nikahnama was framed by the Trial Court on application of the petitioners/officials---Suit was concurrently decreed---Petitioners contended that Courts below had failed to discuss the additional issues; that in absence of the separate findings on the additional issue the impugned judgments/decrees were not tenable; that the Courts below caused prejudice by placing burden to prove the fraud with respect to the Nikahnama on the shoulders of the petitioners---Validity---Respondent claimed to be the widow of the deceased/servant which fact was denied by the petitioners---Trial Court framed issue in that regard which was comprehensive enough to cover the proposition/ dispute and wraped ancillary question of genuineness of Nikahnama---Both parties led their respective evidences by producing witnesses and documentary evidences regarding Nikahnama---While giving final judgment, Trial Court did not mention the additional issue and rather framing of this additional issue was mentioned nowhere in the judgment---Language of the Trial Court's judgment would suggest that it had given its conscious decision as to proving /disproving of the Nikahnama after considering the same and being fully cognizant of the fact that the genuineness of Nikahnama was also in dispute---Appellate Court had also given details/sound reasons regarding the same issue---Failure to caption/reproduction of issue in the body of the judgment was barely important as long as judgment contained findings on material points in controversies, after application of judicial mind and resolution of the questions considering evidence and based on logical reasoning---Where both parties had led sufficient/relevant evidence, allocating onus of proof had no bearing---Revision petition was dismissed accordingly.

Muhammad Ibrahim (Deceased) through LRs and another v. Taza Gul and others 2020 SCMR 2033; Mian Muhammad Mehfooz and 2 others v. Mian Muhammad Sarfraz and 43 others 2018 YLR 872; Durga Prasad and another v. Ghanshiam Das and others PLD 1948 Privy Council 171; Mst. Qaisa'r Khatoon and 12 others v. Maulvi Abdul Khaliq and another (both represented by heirs) PLD 1972 SC 334 and Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389 rel.

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

----O. XIV, R. 3---Issues, non-framing of---Scope---When one party affirmed material proposition of fact/law and the other denied, Court ought to frame issue as to disputed material proposition---Duty would also be imposed on parties to get proper issues framed and come forward with relevant objection/suggestions with respect to disputed material propositions that required formulation of issues---If a composite issue was framed that encompassed more than one contradictory stance, interconnected to each other, the same did not per se vitiate the trial---Party challenging a stance had to show some serious prejudice caused by not framing independent issues---When composite issues was framed and parties had led evidence accordingly, contention qua the non-framing of issue would fade as inconsequential, as long as judgment fulfilled the requirement of law.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Amir through L.Rs. v. Muhammad Sher and others 2006 SCMR 185 and Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 rel.

Raja Naveed Azam for Petitioners.

Rao Muhammad Arif Khan and Sumaira Hashmi for Respondents.

P L D 2022 Lahore 589

Before Masud Abid Naqvi, JJ

SALMA BIBI and others---Appellants

Versus

Rana SAGHEER HUSSAIN---Respondent

Regular Second Appeal No. 76527 of 2017, heard on 21st April, 2022.

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

----Ss. 9, 54 & 55---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit by person dispossessed of immovable property---Perpetual injunction when granted---Mandatory injunction---Proof of execution of document required by law to be attested---Secundum allegata et probata---Consensus ad idem---Scope---Plaintiff filed suit for possession, permanent and mandatory injunction against the defendants claiming therein that he had purchased the disputed plot from the predecessor of defendants but the defendants took over illegal possession of the plot---Trial Court and Appellate Court concurrently decreed the suit---Validity---Plaintiff had failed to plead about the existence or execution of the alleged sale deed in his plaint---Plaintiff could not establish consensus ad idem having failed to prove the execution of first and second page because these pages were not signed by the parties---Neither the name nor signature of second marginal witness was available on the disputed sale deed---Plaintiff had produced his brother while portraying him as scribe of sale deed but the deposition of a scribe could not be equated with deposition of an attesting witness---Courts below had fell in error by not properly appreciating the questions of facts and law and ignored the material piece of evidence on record while passing the impugned judgments and decrees---Impugned judgments were set aside and the second appeal was allowed, in circumstances.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Sultan Mahmood Shah through L.Rs. and others v. Muhammad Din and 2 others 2005 SCMR 1872; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 and Mst. Arshan Bi (deceased) through Mst Fatima and others v. Maula Bakhsh (deceased) through Mst. Ghulam Safoor and others 2003 SCMR 318 ref.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others 2021 SCMR 415 distinguished.

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

----Arts. 117 & 118---Burden of proof---Scope---Initial burden of proof is on the plaintiff to substantiate his claim by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness and the weakness in the defense evidence, if any, would not relieve a plaintiff from discharging the above burden of proof.

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

----S. 12---Cases in which specific performance enforceable---Each page to be signed---Scope---If the document is written on more than one page, then the parties must sign or put their thumb impressions on each page of document.

Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70 and Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386 ref.

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

----Art. 79---Proof of execution of document required by law to be attested---Scope---Deposition of a scribe cannot be equated with deposition of an attesting witness and equating the testimony of a scribe with that of an attesting witness would defeat the letter and spirit of the Art. 79 of the Qanun-e-Shahadat, 1984.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

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

----Ss. 100 & 103---Second appeal---Power of High Court to determine issues of fact---Scope---High Court normally does not interfere in second appeal under S. 100 of C.P.C., unless the decision of courts below is contrary to law or is based on failure to determine material issue of law---However, once the High Court entertains a second appeal, it can determine an issue of fact provided the conditions mentioned in S. 103, C.P.C. are fulfilled as the concurrent findings of facts recorded by the courts below cannot become sacrosanct.

Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 rel.

Mian Tariq Ahmad and Rana Qaisar Ali Khan for Appellants.

Qazi Ghulam Mohayudin, M.Safdar Shaheen Gill and Mrs. Falak Naz Gill for Respondent.

P L D 2022 Lahore 596

Before Muzamil Akhtar Shabir, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

MUHAMMAD ARIF AND COMPANY---Respondent

Civil Revision No. 24022 of 2020, heard on 20th December, 2021.

(a) High Court (Lahore) Rules and Orders---

----Vol. V, Ch. 1, Part A, R. 9---Civil Procedure Code (V of 1908), S. 115---Power to return petition for amendment---Limitation---Scope---Revision petition was filed within time, when objections were raised and file was returned by the office on the same day directing the petitioners to re-file the same within 3 days, which direction was not adhered to by the petitioners, who re-filed the same after 2 and half months, which was clearly barred by time---Petitioners' case was not that they did not have notice of the office objection or the revision petition had been retained by the office of the court to allow concession of time by concluding that the same time would not run against the petitioners---Petitioners were required to file application for seeking condonation of delay by providing a plausible reason for filing the revision petition with delay in order to proceed further with the same---However, no such application was filed by the petitioners---Civil revision, being barred by time, was dismissed.

(b) High Court (Lahore) Rules and Orders---

----Vol. V, Ch. 1, Part A, R. 9---Power to return petition for amendment---Limitation---Scope---Where petition was initially filed within time but office returned the same by raising certain objections and giving specified timeframe to remove such objections and re-file the same but the objections were not removed within the timeframe allowed/provided by the office and in the meanwhile the limitation period for filing petition had expired, the petition would become barred by time.

Asad Ali and 9 others v. The Bank of Punjab and others PLD 2020 SC 736 rel.

(c) High Court (Lahore) Rules and Orders---

----Vol. V, Ch. 1, Part A, R. 9---Power to return petition for amendment---Limitation---Scope---Where the civil revision was filed within time and office raised objection that it was incomplete and returned it on the same day for re-filing after removing objections within 3 days but the same was re-filed without plausible reason after more than 60 days of its return and in the meanwhile the limitation for filing revision had expired, High Court observed that the petitioners were required to re-file the civil revision within 3 days and the civil revision re-filed after said period without explaining any possible reason, when limitation for filing revision had also expired, was barred by time---Had the office retained the file with it, this situation would have been different and in that case the office would have been responsible for issuing notice to the petitioners.

Khalid Meer and others v. Faqeerullah Minhaj and others PLD 2018 Lah. 697 rel.

(d) Limitation---

----Person seeking condonation of delay must explain delay of each and every day to the satisfaction of the court and should also establish that delay had been caused due to reason beyond his control and mere involvement of valuable rights would not furnish a proper ground for condonation of delay in a civil matter as door of justice is closed after the prescribed period of limitation has elapsed and no plea of injustice, hardship or ignorance would be of any avail unless the delay of each day was properly explained and accounted for.

Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 rel.

Barrister Hassan Khalid Ranjha, A.A.G/Government Pleader for Petitioners.

Ch. Muhammad Akbar Gill, Riaz Kareem Qureshi and Ch. Riaz Hussain for Respondent.

P L D 2022 Lahore 600

Before Shahid Bilal Hassan, J

SAWERA IKRAM---Applicant

Versus

AMIR NAVEED---Respondent

Transfer Application No. 71691 of 2021 (and connected T.As.), decided on 15th December, 2021.

(a) Family Courts Act (XXXV of 1964)---

----Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---Application was disposed of accordingly.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

Moazzam Saleem for Petitioner.

P L D 2022 Lahore 607

Before Jawad Hassan, J

TARIQ IQBAL---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No. 20507 of 2022 and other connected Petitioners, decided on 28th April, 2022.

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

----S. 19---Punjab Local Government Act (XXVII of 2021), S.10---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Delimitation of constituencies---Jurisdiction of High Court---Scope---Constitutional courts do not, with ease, abdicate or surrender their jurisdiction to exercise judicial power, if the Court is of the view that order under challenge is illegal and outside the four corners of law and no other alternate or special remedy has been prescribed by law---No decision within the meaning of statute if there were anything done contrary to the essence of justice---Constitutional jurisdiction of High Court to judicially review orders, notifications and acts of Executive i.e. Delimitation Authority and Delimitation Committee is not barred.

Muhammad Umais v. Rawalpindi Cantonment Board and others PLD 2022 Lah. 148; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; The State v. Zia-Ur-Rehman and others PLD 1973 SC 49; Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486; The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738 and Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407 rel.

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

----S. 19---Punjab Local Government Act (XXVII of 2021), S. 10---Constitution of Pakistan, Art. 222---Electoral process---Delimitation---Object, purpose and scope---Delimitation is a vital and indispensable milestone in electoral process as it defines and fashions strength and weight of a vote---Fair and transparent delimitation of constituencies is pivotal for holding honest, fair and just elections---Central focus of any fair and just electoral system is to ensure that right to vote is properly guarded against scourge of vote dilution or discrimination during process of delimitation---Any electoral system must, therefore, be designed to protect right to vote---Any step or stage in process which has bearing on the right to vote is an indispensable part of electoral process---Delimitation, means demarcation of boundaries of electoral constituency in order to ensure fair, just and proportional representation of people in elections---Basic object of delimitation is to secure, so far as practicable, equal representation for equal segments of population in legislative bodies---Delimitation is usually done with regard to stated constraints of administrative convenience, contiguity, geographical, and communication factors; and unstated influences of party-political advantage---Principles of delimitation include having regard to distribution of population in geographically compact areas, existing boundaries of administrative units, facilities of communication and public convenience and other cogent factors to ensure homogeneity in creation of constituencies---Other equally important aim of delimitation is to divide geographic areas into territorial constituencies so fairly that no party or candidate may legitimately have grievance that there has been "gerrymandering" of constituencies in favour of or against interests of any particular party or candidate---Right to cast a ballot is meaningless if ballot is undervalued relative to a ballot cast by a voter in a less populated district---Gerrymandering is "drawing of district boundaries so as to favour one's own chances in future elections---Strategies for gerrymandering have been characterized as 'stacking', 'packing', and 'cracking', each of which seeks to minimize influence of those likely to vote for opponents"---Process of delimitation has to ensure that voting equality is not disturbed and vote of one citizen must in no manner be less than vote of another citizen---Other than population parity, geographical compactness, homogeneity of interest of community need to be factored in setting parameters of delimitation---Delimitation is not a mere drawing of boundaries with a stroke of pen---Delimitation is a judicious exercise of delineating electoral areas, vigilantly guarding against any possible fear of vote dilution, disenfranchisement or corrupt practices---Unfair or partisan delineation can lead to skewed results, tarnishing electoral integrity---Foundations or rules of game for a fair and just election are laid down at the time of delimitation of constituencies---Delimitation must be a neutral exercise, conducted by a neutral body---Any partisan political intervention and drawing up of political constituencies under dictates of political party in power is bound to lead to gerrymandering and unjust political windfall, tarnishing sanctity of elections and crippling faith of an ordinary man in the system of democracy.

Jamshed Iqbal Cheema v. Election Appellate Tribunal and others 2022 CLC 463 and Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranawala and others PLD 2014 Lah. 221 rel.

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

----Ss. 19 & 223---Election Rules, 2017,R.21---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Art. 199---Constitutional petition---Election process---Alternate and efficious remedy---Delimitation Authority---Objections, decision of---Duties and functions of Authority---Petitioners were aggrieved of orders passed by Delimitation Authority on objections filed by them on delimitation of their constituency---Validity---Authority was to decide objections within thirty days after holding inquiries, summoning witnesses and recording of evidence---Although the Authority decided objections but were not in accordance with Election Rule, 2017---No justification or reasoning was mentioned in orders of Delimitation Authority---Such was not a speaking order rather based on evasive grounds---Incumbent upon the Authority to decide objections of each objector separately on its own merits but decided multifarious objections raised by petitioners evasively in a single order---Such order was not sustainable under the law---Such order as well as proceedings were also a gross violation of S.24-A of General Clauses Act, 1897 which manifestly impressed upon Authorities/public functionaries to decide cases after application of mind on the touchstone of reasonableness, which otherwise was lacking in the present case---Delimitation Authority while conducting delimitations in question, failed to act reasonably, fairly and justly as required under S. 24-A of General Clauses Act, 1897---Election Commission of Pakistan was apex, independent and neutral Constitutional authority to hold, organize and conduct elections in Pakistan---After Local Government elections were recognized as Constitutional elections [(18th Constitutional Amendment (2010)], role of Election Commission of Pakistan fully extended to all stages of electoral system envisaged under Elections Act, 2017, including preparation of electoral rolls and delimitation of constituencies as was the case with the other Constitutional elections---High Court set aside orders and notifications issued by Delimitation Authority---Election Commission of Pakistan under provisions of Elections Act, 2017, Election Rules, 2017 and the Constitution had mandate to make amendments, alteration or modification in final list of constituencies---Remedy provided under S.22 of Elections Act, 2017, could be deemed to be made as representation to Election Commission of Pakistan against decision of the Authority---High Court referred petition to Election Commission of Pakistan as representation against decision of the Authority to decide it, as per law---High Court directed the petitioners to appear before Election Commission of Pakistan---Constitutional petition was allowed accordingly.

Fasih-Ud-Din Khan v. Government of Punjab 2010 SCMR 1778; Chairman, State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 and United Woollen Mills Ltd. Workers' Union v. United Woollen Mills Ltd. 2010 SCMR 1475 rel.

(d) Constitution of Pakistan---

----Arts. 218 & 219(a)---Election Commission---Electoral roles, preparing of---Scope---Election Commission prepares electoral roles under Art. 219(a) of the Constitution which includes electoral roles of Local Government to hold general elections---In order to hold general elections and to prepare electoral roles, onus is on the Commission to provide an opportunity to deal with objections raised therein---Duty upon Election Commission is caste under Art. 218 of the Constitution to ensure and conduct elections, justly, fairly and in accordance with law---Election Commission is responsible not only for conducting election itself, but also for making all necessary arrangements for such purpose, prior to Election Day---By conferring such responsibility on Election Commission, the Constitution ensures that all activities both prior, and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness, fairness and in accordance with law.

Workers 'Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Reference No. 1 of 2020, decided on 1st March, 2021 PLD 2021 SC 825; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Fundamental Law of Pakistan by A.K. Brohi; Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and The Controlling Authority, Montgomery PLD 1962 Lah. 421 and Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others PLD 2014 SC 668 rel.

Petitioner(s) by

Mubeen Uddin Qazi, Advocate Supreme Court with Ch. Tahir Mahmood and Ahmad Sardar Khan (in this petition and W.P.No.24862 of 2022).

Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza Naqvi (in W.P. No.26439 of 2022).

Zohaib Ali Chishti (in W.P.No.24200 of 2022).

Sardar Akbar Ali Dogar and Sardar Daud Aslam Dogar (in W.P.No.24654 of 2022).

Rana Nadeem Haider (in W.P.No.26801 of 2022).

Mudassir Abbas Maghiana (in W.P.No.26163 of 2022).

Khawar Mehmood Khatana and Kiwan Hassan Khatana (in W.P.No.25192 of 2022).

Rana M. Arshad Khan (in W.P.No.25337 of 2022).

Sajjad Ahmed Malik (in W.P.No.24286 of 2022).

Rai Usman Ahmad (in W.P.No.24434 of 2022).

Mian Arshad Ali Mahar (in W.P.No.25166 of 2022).

Muhammad Azam Zafar (in W.P.No.24582 of 2022).

Muhammad Tariq Basheer Awan (in W.P.No.24886 of 2022).

Muhammad Ehsan Bhatti and Muhammad Azeem Altaf Bajwa (in W.P.No.25287 of 2022).

Muhammad Ehsan Bhatti and Muhammad Azeem Altaf Bajwa (in W.P.No.25288 of 2022).

Rana Abdul Sattar Khan (in W.P.No.24945 of 2022).

Muhammad Ehsan Bhatti and Muhammad Azeem Altaf Bajwa (in W.P.No.25296 of 2022).

Ch. Rab Nawaz, Muhammad Athar Aftab and Qasim Zia Ranjha (in W.P.No.24560 of 2022).

Muhammad Ehsan Bhatti and Muhammad Azeem Altaf Bajwa (in W.P.No.25340 of 2022).

Muhammad Ehsan Bhatti and Muhammad Azeem Altaf Bajwa (in W.P.No.25374 of 2022).

M. Javaid Iqbal Qureshi and Waqas Arfaq Sandhu (in W.P.No.25035 of 2022).

Rai Wali Muhammad Kharal (in W.P.No.25308 of 2022).

M. Shabir Hussain (in W.P.No.24647 of 2022).

Mian Javaid Zafar (in W.P.No.25090 of 2022).

Mian Arshad Ali Mahaar (in W.P.No.25175 of 2022).

Rana Sufyan Mahmood (in W.P.No.25225 of 2022).

Mian Mujahid Hussain (in W.P.No.24925 of 2022).

Ch. Iqbal Ahmad Khan Dhengal (in W.P.No.25115 of 2022).

Mujataba Hassan Tatla and Aftab Ahmed Toor (in W.P.No.26307 of 2022).

Rana Abdul Sattar Khan (in W.P.No.26317 of 2022).

Mudassir Abbas Maghiana (in W.P.No.26501 of 2022).

Luqman Ayub (in W.P.No.26406 of 2022).

Rana Shahid Mahmood (in W.P.No.26628 of 2022).

Ch. Imtiaz Ahmed Kamboh (in W.P.No.21859 of 2022).

Rana Taimoor (in W.P.No.25454 of 2022).

Imran Ahmed Malik (in W.P.No.25617 of 2022, W.P.No.25606 of 2022 and W.P.No.25622 of 2022).

Muzamil Hussain Virk (in W.P.No.25539 of 2022).

Abdul Khaliq Safrani (in W.P.No.25767 of 2022).

Mian Shahid Amin (in W.P.No.25559 of 2022).

Waqas Qadeer Shaikh (in W.P.No.19150 of 2022 and Criminal Original No.24552-W of 2022).

Malik Hafiz Muhammad Arshad (in W.P.No.18894 of 2022).

Muhammad Saleem Mirza (in W.P.No.19348 of 2022).

Sardar Akbar Ali Dogar (in W.P.No.20756 of 2022).

Zeeshan Ghani Sulehria (in W.P.No.21052 of 2022).

Rana Shahid Mahmood (in W.P.No.22657 of 2022).

Malik Saleem Iqbal Awan (in W.P.No.22729 of 2022).

Arshad Mahmood Asim Warraich (in W.P.No.23503 of 2022 and W.P.No.23497 of 2022).

Ch. Awais Ahmed (in W.Ps. Nos. 23889 of 2022 and 23900 of 2022).

Ch. Muhammad Sarwar (in W.P.No.25032 of 2022).

Shahid Mahmood Aleem (in W.P.No.25026 of 2022).

Kashif Ali Chaudhary (in W.P.No.25662 of 2022).

Mian Muhammad Ismail Thaheem (in W.P.No.25635 of 2022 and W.P.No.25629 of 2022).

Shahrukh Mehboob (in W.P.No.21253 of 2022).

Rizwan Mohsin Joya (in W.P.No.25671 of 2022).

Maqbool Hussain Sheikh (in W.P.No.25529 of 2022).

Respondent(s) by

Barrister Ahmad Pervaiz, Advocate Supreme Court/Legal Advisor, Barrister Saffi-ul-Hassan and Barrister Ahtasham Mukhtar, with Khurram Shahzad, ADG Legal, Ch. Umar Hayat, Director Legal, Hafiz Adeel Ashraf and Hafiz Muhammad Bilal Azhar, Legal Assistants, Imran Arif Ranjha, Legal Advisor and Waqar Ahmad, E.O. for Election Commission of Pakistan.

Barrister Umair Khan Niazi, Additional Advocate General.

Ms. Sadia Malik, Assistant Attorney General.

Waqar Saeed Khan, Assistant Advocate General.

P L D 2022 Lahore 628

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

SEPCOIII ELECTRIC CONSTRUCTIONS CO. LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others--Respondents

I.C.A. No. 68823 of 2021, decided on 13th December, 2021.

(a) Tender---

----Bank guarantee---En-cashment of---Principle---Appellant company executed Bank Guarantee in favour of respondent Authority---Grievance of appellant was that en-cashing of Bank guarantee was in direct contradiction of provisions of tender---Validity---Bank Guarantee was an independent/autonomous contract between Bank and Customer---Bank authorities were to construe it independent of principle/primary contract---Bank Guarantee furnished by the Bank contained undertaking and had imposed absolute obligations on the Bank to pay the amount, irrespective of any dispute between the parties to the principle contract---Absolute obligation existed upon the Banker to comply with terms as enumerated in Bank Guarantee and to pay amount stipulated therein---Bank could not be prevented by the party at whose instance Guarantee was issued, from honoring the credit guaranteed---Respondent Authority vide a letter conveyed to the Bank about intentional failure/alleged violation of appellant/bidder, as per tender-document clauses during validity of bid with the request to en-cash Bank Guarantee---Bank issuing Guarantee was not concerned with underlying contract between the parties as obligations arising under the Bank Guarantee were independent of the obligations arising out of specific contract between parties---Division Bench of High Court declined to interfere in the matter---Intra Court Appeal was dismissed in circumstances.

2010 SCMR 523; PLD 2012 Lah. 503; PLD 2010 Pesh. 110; 2012 CLD 1734; 2017 CLC 178; 2014 SCMR 676; PLD 2017 SC 83 and 2016 CLD 1833 ref.

Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 and Atif Mehmood Kiyani and another v. Messrs Sukh Chain Private

Limited, Royal Plaza, Blue Area, Islamabad and another 2021 SCMR 1446 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Contractual rights, commitments, undertakings and obligations---Scope---Contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction and should not be interfered with by High Court while exercising its constitutional jurisdiction especially in those matters arising out of contractual obligations---Violation of contract or failure to abide by terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of Constitutional jurisdiction---High Court observed that Superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence---Such can more appropriately be done in ordinary civil procedure for litigation by a suit---Extraordinary jurisdiction under Art. 199 of the Constitution is intended primarily, for providing expeditious remedy in a case where illegality of action of executive or other Authority can be established without any elaborate enquiry into complicated or disputed facts.

Salman Aslam Butt, Shoaib Rashid and Ahmad Raza for Appellant.

Ahmad Pervaiz and Saffi ul Hassan along with Ghulam Nabi Ch., Chief Law Officer, NTDC for Respondent No.2.

Mustafa Ramday for Respondent No.3.

Adnan Ahmad Ch., A.A.G. for Respondent No.1.

P L D 2022 Lahore 635

Before Shahid Waheed, J

ZAINAB UMAIR and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petitions Nos. 34648 and 34645 of 2022, decided on 27th June, 2022.

(a) Constitution of Pakistan---

----Arts. 63, 63-A, 106, 199 & 224 (6)---Election dispute---Reserved seats---Quota, determination of---Disqualification---Connotation---Petitioner assailed de-notifying of 5 Members of Provincial Assembly on reserved seats by Election Commission along with denotification of 20 Members of Provincial Assembly on the basis of defection clause and all 25 Members belonged to same political party---Validity---Calculation of quota for seats reserved for women and non-Muslims was made on the basis of total number of general seats secured by each political party in general election to Provincial Assembly---Members to fill seats reserved for women and non-Muslims were elected through proportional representation system of political parties' lists of candidates---When seat reserved for women or non-Muslims in Provincial Assembly fell vacant, on account of death, resignation or disqualification of a member, such seat was to be filled by next person in order of precedence from party list of candidates, submitted to Election Commission in terms of Art.106(3)(c) of the Constitution upon compilation of results of general seats secured by each political party in general election, whose member had vacated such seat---Mention of three things in the Constitution necessarily implied that due to subsequent variation in strength of a political party on general seats, recount or recalculation of quota at any later stage was excluded---Word 'disqualification' was not defined in the Constitution, and thus, it must be given simple, natural, general, and grammatical meaning consistent with the purpose of the Constitution and also to bring harmony in its all clauses---Word "disqualification" was a noun and it simply meant, act of preventing somebody from doing something because he had broken a rule or was not suitable---Person stood disqualified to act as a member of Assembly either on the basis of matters listed in Art. 63 of the Constitution or on the ground of defection provided in Art.63-A of the Constitution---When reserved seat had become vacant on account of any kind of such disqualifications, it was to be filled in accordance with the procedure laid down in Art.224(6) of the Constitution---High Court set aside order passed by Election Commission as the same was passed without lawful authority and was of no legal effect---Constitutional petition was allowed, in circumstances.

R v. Somerset County Council ex p Fewings (1995) 1 All ER 513; The Constitutional Balance by John Laws, Edition 2021, Page 80; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, PWR Lahore PLD 1962 SC 142; R (Veolia ES Nottinghamshire Ltd.) v. Nottinghamshire County Council (2010) EWCA Cir 1214; Construction of Statutes by Earl T. Crawford, section 195; Ripon (Highfield) Housing Conformation Order, 1938; White & Collins v. Minister of Health (1939) 2 KB 838; Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others AIR 1943 Lah. 65; Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495; (Cannons of Construction) by S.M.Zafar, Edition 2016, Page 88; Oxford Advanced Learner's Dictionary of Current English, Seventh Edition, Page 441 and Cambridge International Dictionary of English, Edition 1995, Page 397 rel.

(b) Constitution of Pakistan---

----Arts. 63 & 63-A---Retrenchment, principle of---Applicability---Principle of retrenchment does not apply to members of Assembly---Constitution does not support idea that any member should be de-seated before end of tenure of Provincial Assembly when he or she does not exhibit any of the conduct that falls under the provision of Art. 63 or 63-A of the Constitution.

(c) Interpretation of Constitution---

----Harmony and completeness, principles of---Applicability---Constitution is to be construed in a manner which may give effect to each and every word of the same and which may harmonize working of the same and which may achieve object underlined in relevant provisions---Such is rule of harmony, rule of completeness and exhaustiveness and rule of paramountcy of written Constitution.

D. Ginsberg & Sons v. Popkin 285 US 204; Canada Sugar Refining Co. Ltd. v. R (1898) AC 735; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

M. Azhar Siddique, Ahmad Imran Ghazi, Fareeha Arif, Barrister Nudrat B. Majeed and Dr. Ali Qazalbash for Petitioners (in Writ Petition No. 34648 of 2022).

Nasar Ahmad, Additional Attorney General for Pakistan, Khawar Bashir, Assistant Attorney General for Pakistan for Federation Pakistan (in Writ Petition No. 34648 of 2022).

Muhammad Shahzad Shaukat, Advocate General, Muhammad Arif Raja, Additional Advocate General for Province of Punjab (in Writ Petition No. 34648 of 2022).

Barrister Haris Azmat, Barrister Mariam Riaz and Sarim Shahid, Imran Arif Rnjha, Legal Advisor of ECP with Umar Hayat, Director (Legal) and Hafiz Adeel Ashraf, Legal Assistant, ECP for ECP (in Writ Petition No. 34648 of 2022).

Khalid Ishaq for PML(N) (in Writ Petition No. 34648 of 2022).

Syed Ali Zafar, Amir Saeed Rawn, Zahid Nawaz Cheema and Fareeha Arif for Petitioners (in Writ Petition No.34645 of 2022).

Malik Zeeshan Ahmad and Rao Zafar Iqbal for Petitioner No.2 (in Writ Petition No.34645 of 2022).

Nasar Ahmad, Additional Attorney General and Khawar Bashir, Assistant Attorney General for Pakistan for Federation of Pakistan (in Writ Petition No.34645 of 2022).

Muhammad Shahzad Shaukat, Advocate General and Muhammad Arif Raja, Additional Advocate General, Punjab for Province Punjab (in Writ Petition No.34645 of 2022).

Barrister Haris Azmat, Barrister Mariam Riaz and Sarim Shahid, Imran Arif Rnjha, Legal Advisor of ECP with Umar Hayat, Director (Legal) and Hafiz Adeel Ashraf, Legal Assistant, ECP for ECP (in Writ Petition No.34645 of 2022).

Khalid Ishaq for PML(N) (in Writ Petition No.34645 of 2022).

P L D 2022 Lahore 645

Before Muhammad Amjad Rafiq, J

KAMRAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 38038, 30076 and Criminal Revision No. 30079 of 2019, heard on 23rd December, 2021.

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

----S. 376---Qanun-e-Shahadat (10 of 1984), Art. 19---Rape---Relevancy of facts forming part of some transaction---Res gestae---Scope---Accused, a security guard at school, was indicted for rape with a six years' old student---Victim had made her statement with innocent precision and sequence by explaining as to when, where, how and what had happened to her---Victim had exhibited noticeable maturity---Cross-examination by defence had not been able to shatter the testimony of the victim on material aspects---Victim had categorically denied the suggestions about nominating the accused on the asking of her father and also concoction of story---Mother of victim, though, was not the witness of the crime but she had toed the line of victim about commission of rape with her---Mother's statement had relevance and could be considered as res gestae evidence per force of Article 19 of the Qanun-e-Shahadat, 1984---Medical evidence was also a part of res gestae under the principle of contemporaneous physical condition which was first observed by mother of the victim and then by doctor whose statement was admissible with respect to injury and not for identifying accused---Defence though keeping the accused aside threw a hint of consented act by someone else---Factor of consent was immaterial when the victim was below the age of consent as mentioned in S. 375 of P.P.C.---Prosecution had proved its case against the accused beyond shadow of reasonable doubt, a standard requisite to sustain a criminal charge---Appeal against conviction was dismissed, in circumstances.

Umar v. The Crown 1969 PCr.LJ 1154 and Amjad Javed v. The State 2002 SCMR 1247 ref.

Atif Zareef and others v. The State PLD 2021 SC 550 and Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 rel.

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

----S. 376---Qanun-e-Shahadat (10 of 1984), Art. 19---Rape---Relevancy of facts forming part of some transaction---Res gestae---Spontaneous declaration---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Accused objected that deposing the fact of rape by the victim to her mother was not spontaneous because such statement was made after about three hours of the occurrence and there was sufficient time to concoct the story---Held; in order for the statement to be sufficiently 'spontaneous' it had to be so closely associated with the event which had excited the statement that it could be fairly stated that the mind of the declarant was still dominated by the event---Court must be satisfied that the event which provided the trigger mechanism for the statement was still operative---Moment victim had reached the home, she had expressed the trauma to her mother which was still alive and dominating her thoughts---Appeal against conviction was dismissed, in circumstances.

Ratten v. R [1972] AC 378 and R v. Andrews [1987] 281 fol.

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

----S. 376---Rape---Attempted rape---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Defence alleged that the doctor had wrongly observed that hymen was freshly torn; reason for objection, the counsel unfolded, that medical examination was conducted after three days of the occurrence, that hymen in children was very deep and in such an haphazard or chance occurrence it was not believable that penal insertion could be possible up to vaginal canal attracting the very requirement of penetration; therefore, it could at the most be regarded as an attempt to commit rape---Medical jurisprudence on the subject revealed that soon after the act, the torn margins are sharp and red, and bleed on touch---Even when examined after 3 to 4 days of offence, the edges of laceration are congested and swollen---Surrounding tissues are also swollen and tender---In case of incomplete penetration, the only signs which may be seen are reddening and inflammation of vestibule within the labia or a small tear of the posterior fourchette---There may also be contusion of the hymen---Findings of doctor tallied with Medical Jurisprudence, therefore, full penetration was not necessary, a laceration 1 × 1 cm reddish in colour on right labial fold was sufficient to attract the offence of rape on the touchstone of penetration---Such was a case of complete rape and not an attempted rape as alleged by the defence, in circumstances.

SIMPSON FORENSIC MEDICINE (Tenth Edition) and Madan Gopal Kakkad v. Naval Dubey and another 1992 SCR (2) 921, 1992 SCC (3) 204 rel.

R v. Andrews [1987] 281 and H M V Cox Medical Jurisprudence and Toxicology (Seventh Edition) fol.

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

----S. 376---Criminal Procedure Code (V of 1898), S. 154---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape---Information in cognizable cases---Delayed FIR---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---Contention of accused was that matter was reported to the police with a delay of three days---Parents of the victim after knowing about the occurrence definitely would have been under mental stress and it was also quite normal that they would have given deep thought to all pros and cons, and ultimately when they got the victim medically checked up and the doctor also opined that the victim had been raped and it was a police case, only then as a last resort they would have approached the police to lodge the complaint---As such, in the peculiar facts and circumstances of the case, the argument of accused with regard to delay in reporting the matter to the police, had no worth to be considered or to draw an inference adverse to the prosecution case.

Irfan Ali Sher v. The State PLD 2020 SC 295 ref.

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

----S. 376---Qanun-e-Shahadat (10 of 1984), Art. 22---Rape---Facts necessary to explain or introduce relevant facts---Identification parade---Scope---Accused, a security guard at school, was indicted for rape with a six years' student---There was a stern stance that victim did not know the name of accused nor she told his name to her mother, therefore, identification of accused was a challenge for prosecution particularly when no identification parade was held---Held; it was not a case where such exercise would have been necessary, because the victim had nominated two specific persons including accused by stating that he committed rape with her, whereas, co-accused (since acquitted) was also named with a role of standing outside the washroom, both were admittedly the employees of the same school and further it was brought on record during cross-examination of victim's mother that victim had also identified them in the school---Victim was well aware that the accused was employee of school and the man who succeeded to come so close to her body, notching and ravishing her could not expected to be forgotten by the victim, for which a formal identification was not necessary.

R v. Turnbull [1977] Q.B. 224 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

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

----Art. 22---Facts necessary to explain or introduce relevant facts---Identification parade, requirement of---Scope---Difference exists between identification and recognition; to acknowledge acquaintance with or perceive someone previously known are the forms of recognition---Such is common understanding and acknowledgement that many people in life by their profession or the act they perform at work place or in neighbourhood but their names or parentage, is not known, however, they are well canvassed in mind for whose identification a formal parade is unnecessary---Identification is proved from the evidence of link of witness with such person.

R v. Turnbull [1977] Q.B. 224 rel.

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

----S. 376---Rape---Force---Threat of injury---Scope---Meaning of force in relation to rape need not necessarily indicate physical restraint by the man, though this is most common; even the fear of such violence is sufficient for an act of rape to succeed.

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

----S. 376---Rape---Scope---Absence of sperms does not mean that rape has not been committed.

R v. Andrews [1987] 281 rel.

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

----Art. 19---Relevancy of facts forming part of some transaction---Scope---Res gestae rule in sex crimes is the same as in other criminal actions, the rule should be applied more liberally in the case of children.

Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 fol.

(j) Punjab Forensic Science Agency Act (XIII of 2007)---

----S. 11---Clarification in case of certain opinion---Scope---Where prosecution feels any doubt, it should immediately resort to calling the concerned expert as witness before the court for explanation or apply to the court under the provisions of Punjab Forensic Science Agency Act, 2007 for clarification of report.

Mehram Ali Bali and Muhammad Arif Rana for Appellant.

Naveed Umar Bhatti, Deputy Prosecutor General for the State.

Rana Shahid Mahmood and Rana Adeel Anjum for the Complainant.

P L D 2022 Lahore 664

Before Tariq Saleem Sheikh, J

MUNIR AHMAD BHATTI---Petitioner

Versus

DIRECTOR, FIA CYBER CRIME WING, LAHORE and 3 others---Respondents

Writ Petition No.65490 of 2021, decided on 15th March, 2022.

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

----S. 22-A(6)---Federal Investigation Agency Act, 1974 (VIII of 1975), S.5---Ex-officio Justice of Peace---Expression "the police authorities"---Applicability---Members of Federal Investigation Agency have been invested under S.5(1) of Federal Investigation Agency Act, 1974 with all powers that provincial police have in relation to search, arrest of person and seizure of property and investigation of offences---Such member, subject to any order of Federal Government, may exercise them throughout the country---Members of Federal Investigating Agency, not below the rank of a Sub-Inspector, are empowered under S.5(2) of Federal Investigation Agency Act, 1974 to exercise any of the powers of an officer in-charge of a police station for the purposes of any inquiry or investigation under Federal Investigation Agency Act, 1974---Federal Investigation Agency is fully covered by the expression "the police authorities" occurring in S.22-A(6), Cr.P.C. and amenable to the jurisdiction of the Ex-officio Justice of Peace.

Ch. Abdur Rehman v. Deputy Director, FIA, Faisalabad and 19 others 2010 MLD 1346; Mushtaq Hussain Shah v. Additional Sessions Judge, Islamabad and 6 others PLD 2013 Isl. 26 and National Bank of Pakistan and another v. The State and 4 others PLD 2021 Lah. 670 rel.

(b) Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---

----Rr.3 & 4---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Cyber crime---Offences against dignity of natural person---Commencement of action---Procedure---Registration of FIR is not a condition precedent for commencement of investigation---Cyber crimes required some preliminary inquiry to justify prosecution of accused.

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

----S. 154---Registration of case---Preliminary inquiry---Scope---Provision of S. 154, Cr.P.C. does not permit police officer to hold a preliminary inquiry before it to ascertain whether information communicated to him is authentic.

(d) Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---

----Rr.3 & 4---Prevention of Electronic Crimes Act (XL of 2016), Ss.20 & 43---Criminal Procedure Code (V of 1898), Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Initiation of action by Federal Investigation Agency---Cyber crime---Non-cognizable and compoundable offence---Petitioner was aggrieved of dismissal of his application by Ex-officio Justice of Peace declining direction to Federal Investigation Agency for registration of FIR---Validity---Provision of R. 7(5) of Federal Investigation Agency (Inquiries and Investigations) Rules, 2002 ordained that non-cognizable offences were to be dealt with according to S.155, Cr.P.C., and permission of competent Court was necessary for investigation---Some preliminary inquiry was permissible even in such category of cases---Allegation levelled by petitioner against respondent attracted S.20 of Prevention of Electronic Crimes Act, 2002, which was a non-cognizable and compoundable offence in terms of S.43 of Prevention of Electronic Crimes Act, 2002---Federal Investigating Agency initiated inquiry on the complaint of petitioner which was pending---Ex-officio Justice of Peace rightly directed Inquiry Officer to conclude it expeditiously and asked the parties to wait for its outcome---Alleged offence was non-cognizable and FIR could not be ordered to be registered in any eventuality---High Court declined to interfere in order passed by Ex-officio Justice of Peace, as petitioner failed to point out any legal infirmity in order---Constitutional petition was dismissed, in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; PLJ 2003 Fed. St. 281; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Black's Law Dictionary 11th Edition, p.946; Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Al-Arabia Sugar Mills Limited and 3 others v. Federal Investigation Agency, Government of Pakistan and 3 others PLD 2021 Lah. 226; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; Commandant, Frontier Constabulary, KPK, Peshawar v. Gul Raqib Khan 2018 SCMR 903; Oxford Advanced Learner's Dictionary, 8th Edition, p.62; Ghulam Abbas v. The

State PLD 1968 Lah. 101; Faiz Muhammad v. The State PLD 1979 Kar. 513 and Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 ref.

Azhar Siddique for Petitioner.

Asad Ali Bajwa, Deputy Attorney General and Syed Muhammad Haider Kazmi, Asisstant Attorney General for Respondents Nos. 1 to 3.

Muhammad Adnan Ramay for Respondent No.4.

Barrister Waqqas Ahmad Mir, Amicur Curiae.

P L D 2022 Lahore 676

Before Sohail Nasir, J

SHAMIM HAIDER and 6 others---Petitioners

Versus

ADDITIONAL CHIEF SECRETARY (HOME), GOVERNMENT OF PUNJAB and 5 others---Respondents

Writ Petition No. 1915 of 2022, heard on 19th July, 2022.

Punjab Civil Administration Act (III of 2017)---

----S. 16---Police Order (No. 22 of 2002), Art. 120(3)---Police Act (V of 1861), S. 30(3) [since repealed]---Constitution of Pakistan, Art. 20---Regulation of public processions and licensing of the same---Scope---Procession of 'Shahbeeh-e-Alam Mubarak'---Section 16 of the Punjab Civil Administration Act, 2017 ('PCAA') has an overriding effect over provisions of Art. 120 of the Police Order, 2002 ('PO')---Under S. 16 of the 'PCAA' for any kind of gathering or procession a permission from the Deputy Commissioner is required---For discharge of religious obligations, as there is a constitutional guarantee under Art. 20 of the Constitution, moving an application (for permission) appears to be a formality therefore the Authority concerned must give it positive consideration unless there are compelling circumstances to hold otherwise.

Careful study of Section 30(1) of the Police Act, 1861 ('PA') [since repealed] and Article 120(1) of the Police Order, 2002 ('PO') makes it clear that a Police officer may if an occasion requires, direct the conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe the routes by which and the times at which, such processions may pass.

The directions to conduct the assembly by prescribing the routes can be only when there is an application by the person concerned. The question of issuance of license shall arise only when a procession in the judgment of police officer, if uncontrolled, be likely to cause a breach of the peace, and in that eventuality the application for issuance of a license shall be made under section 30(3) of the 'PA' and Article 120 (3) of the 'PO' and simple permission shall not suffice. In both the provisions of 'PA' and 'PO' only the word 'procession' has been used without any further classification as 'Traditional Procession' or 'Licensed Procession' After promulgation of the Punjab Civil Administration Act, 2017 ('PCAA') the ultimate powers are vested with the Deputy Commissioner who while considering the request for any public meeting, procession, assembly or gathering has to consult with head of the District Police and the heads of the respective local government. Section 16 of the 'PCAA' in the given circumstance has an overriding effect to the provisions of Article 120 of the 'PO'.

Under Section 16 of the 'PCAA' for any kind of gathering or procession a permission from the Deputy Commissioner is required and the rationale behind it is obvious that it will not only facilitate the participants to perform their religious obligations in a protected environment but it will also ensure that no untoward incident takes place or there may not be disturbance of peace and public tranquility and that the law and order are not compromised. By adopting this lawful procedure, the district administration too will be in a position to make proper security arrangements. However, in case of discharge of religious obligations, as there is a constitutional guarantee under Article 20 of the Constitution, moving an application undoubtedly appears to be a formality therefore the Authority concerned must give it positive consideration unless there are compelling circumstances to hold otherwise.

Hakim Sher Ahmad Chishti v. Syed Abbas and 2 others PLD 1976 Lah. 85; Sharafat Hussain v. Deputy Commissioner, Kasur and another 1983 PCr.LJ 1485; Syed Sarfraz Hussain Bokhari v. District Magistrate Kasur and others PLD 1983 SC 172 and Mst. Faiz Mai v. Home Secretary and others PLD 2017 Lah. 896 distinguished.

Constitutional petition was dismissed with the directions that the petitioners shall be at liberty to submit an application to the Deputy Commissioner, seeking permission under section 16 of the 'PCAA' for taking out the 'Traditional Procession' of 'Shahbeeh-e-Alam Mubarak' and if such an application is made by them, then considering the sensitivity of the matter and the fundamental rights of petitioners to discharge their religious obligations, the same shall be decided with kind heart by the Deputy Commissioner, and in accordance with law after giving a proper right of hearing to them.

Muhammad Zahid Aman for Petitioners.

Razzaq A. Mirza, Additional Advocate General and Sardar Tariq Anees, Assistant Advocate General for Respondents.

Fazal-ur-Rehman, Special Secretary (Home) Department Punjab, Hakim Ullah, Assistant Commissioner Jhelum and Khalid Mehmood Malik, DSP Sadar Jhelum in person.

P L D 2022 Lahore 684

Before Sardar Ahmed Naeem, J

MUHAMMAD WAJID and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos. 2876-B, 3973-B, 3972-B and 3971-B of 2021, decided on 15th June, 2021.

(a) Criminal trial---

----White collar crimes---Scope---Victim, in cases of white collar crime, comes to surface about the commission of crime after its accomplishment and primary instrument for the commission of crime is creation of false documents which usually comes to the surface after completion of task---Such offences are made possible by the use of some form of technical or inside knowledge, which may be an awareness of how to use the organizational routine to conceal offending or may involve the abuse of special expertise---Such makes many offences complex and the extent, duration and details of offending are difficult to determine.

(b) Criminal trial---

----White collar crime---Scope---Essential elements of white collar crimes, detailed.

a) The breach of trust by the offender and such trust may be expressed, implied, delegated, presumed or even undeclared trust expected of the position and role of the offender and the relationship that he has with the victims;

b) Unlike other conventional street crimes, criminality of the offender is normally concealed and not known to the public or the victim. The perpetrator is often in a position to conceal his criminality and it is very difficult for the investigators to probe into whole of the spectrum of criminal activities of the offender and work out unfair gains that he has accumulated by way of his criminal posture;

c) The offence is committed by the offender in course of his ordinary occupational/ professional activities and he does not consider himself to be a criminal. He often proposes to himself and to others such justifications for his wrongdoings that insinuate legitimacy and innocence of his doings.

d) The crime is committed by a person having social position and ultimate role in sub-cultural settings in which he is connected in ordinary course of his occupational engagements.

e) The offence committed is ordinarily non-violent although consequences may be violent;

f) The wrongful act committed by perpetrator of white collar crimes essentially has some sort of undeserved gains by him. This gain may not essentially be a pecuniary gain. However, it is often some sort of gain that brings prosperity or pleasure for the perpetrator or to someone ostensibly related or connected with him in some way.

(c) Criminal trial---

----White collar crimes---Scope---White collar crimes are not always planned and organized act of deception and fraud because it may be committed by a person where he draws an impulse from an easy and sudden opportunity---Literature and scholarly work on the subject has shown that concept of white-collar crime has now travelled beyond the spectrum of respectability and high social status and has entered into realm of occupational activity---Occupational crimes are illegal acts made possible through ones lawful employment or occupational engagements---Such is the secretive violation of norms, laws and societal codes connected with occupational role of individuals---Fraud, deceit, exploitation and secrecy are the essential of such occupational deviance and the motive is only to make money in ordinary course of occupational activity---Whereas, professional white collar crimes are crimes committed by those who are trained in specialized field of occupation to pursue a career as professional in that field---Professional involves an individual creativity, more in mental rather than physical labour.

(d) Criminal trial---

----Occupational crimes---Scope---Occupational crimes are illegal acts made possible through ones lawful employment or occupational engagements---Such is the secretive violation of norms, laws and societal codes connected with occupational role of individuals---Fraud, deceit, exploitation and secrecy are the essential of such occupational deviance and the motive is only to make money in ordinary course of occupational activity.

(e) Criminal trial---

----White collar crime---Explained---Corruption is defined and described in many ways and the term corruption is a general household term having different meanings for different people---In legal context, the shortest, simplest and widest definition of corruption is the abuse of public office for private gains---Legal definition will vary from those applied by sociologist, economist and political scientist---Difficult to define corruption in general terms and the focus has to be the specific conduct such as bribery, fraud, theft and even things offending public morality---White Collar crimes, on the other hand, is a generic term incorporating the concept of breach of trust and deception of fraud and deviation from legitimate occupational activity---In legal parlance, corruption may be taken with a restricted scope and connotation as category of white collar crime wherein every act of corruption may not be a white collar crime and every type of white collar crime may necessarily be an act of corruption---Both these terms may, therefore, be used interchangeably as these two concepts overlap within the scope of criminal activity involving fraud and deception or breach of trust.

(f) Criminal trial---

----White collar crime---Scope---Moral element in white collar crime is absent and it must not be forgotten that white collar crimes are of such nature which affect the whole society, even though they may not have any immediate victims.

Imtiaz Ahmad v. The State PLD 1997 SC 545 fol.

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

----S. 497---Bail---White collar crime---Scope---Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail---Bail in such like cases even can be denied in those cases, which do not fall under the prohibitory clause of S. 497, Cr.P.C.

Imtiaz Ahmad v. The State PLD 1997 SC 545 and Dr. Mubashar Hassan's case PLD 2010 SC 265 rel.

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

----S. 497---Bail---White collar crime---Scope---High Court observed that pragmatic approach should be adopted by the Courts at the investigation as well as bail stage in cases involving white collar crime---No leniency should be shown to the people involved in such like cases because then it would be impossible to successfully investigate and help bring the culprit to book or check the ever increasing cancer of corruption.

Dr. Mubashar Hassan's case PLD 2010 SC 265 fol.

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

----S. 497---Bail---Tentative assessment---Scope---Deep scrutiny of evidence at the stage of bail is not permissible nor is the requirement of law; however, at the same time the Court of law is not precluded from tentative assessment of the material collected during the investigation and the plea of defence, if any, and to form a tentative opinion as to whether the accused is prima facie connected with the commission of offence(s).

Imtiaz v. Azam Khan and others 2021 SCMR 111 rel.

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

----S. 497---Bail---Tentative assessment---Scope--- Court needs not to enter upon a detailed appreciation and examination of the evidence while deciding a bail application, however, the question cannot be decided in vacuum and Court has to look at the material available.

Imtiaz v. Azam Khan and others 2021 SCMR 111 fol.

Shakil Javed Chaudhry for Petitioner (in Criminal Miscellaneous No.2876-B of 2021).

Syed Fayaz Hussain Bukhari for Petitioner (in Criminal Miscellaneous No.3973-B of 2021).

Muhammad Umair Mohsin for Petitioners (in Criminal Miscellaneous No.3972-B of 2021 and Criminal Miscellaneous No.3971-B of 2021).

P L D 2022 Lahore 694

Before Muhammad Waheed Khan and Muhammad Amjad Rafiq, JJ

QASIM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.363 of 2020, heard on 15th February, 2022.

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

----S. 9(b)---Probation of Offenders Ordinance (XLV of 1960), S. 8---Criminal Procedure Code (V of 1898), S.412---Possession of narcotics---Appreciation of evidence---No appeal in certain cases when accused pleaded guilty---Scope---Accused was booked in the case on recovery of 680 grams of charas from his possession---Record showed that no such perversity in the findings of conviction/sentence recorded by the Trial Court was found which could warrant interference therein, as the recovery of contraband was established, the chain of safe custody remained intact and the Forensic Science Agency Report was also supporting the prosecution case---Conviction/sentence had been passed on the basis of confession voluntarily made by the accused, therefore, on merits no weakness in the prosecution case was found to justify interference---Even otherwise, under S.412, Cr.P.C. after confession, a sentence could only be challenged "to the extent or legality"---Period of imprisonment for one year and nine months in case under S.9(b), Control of Narcotic Substances Act, 1997, was justified and no illegality was found in the impugned judgment as such---Yet right of appeal granted under S.8 of Probation of Offenders Ordinance, 1960, was obviously to assail any terms of probation that affects the right of accused---Said section dealt with conviction one passed on merits and not on the basis of confession; therefore, legal position would stand as incorporated under S. 412 of Cr.P.C.---When appeal was barred, remedy of revision was available to the affected person---In the present case right to file revision against the conviction passed on the basis of confession would remain available; therefore, appellant can file a revision petition instead of appeal---Court was not precluded to exercise revisional jurisdiction when sitting as a court of appeal and could pass any incidental order except to enhance the sentence---Same was the legal position as set out in S. 8 of the Probation of Offenders Ordinance, 1960---Conviction/sentence of the accused as imposed by the Trial Court was upheld---Appeal was dismissed, in circumstances.

Muhammad Sadiq for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

P L D 2022 Lahore 700

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

ANF---Appellant

Versus

MUHAMMAD FAIZAN and 2 others---Respondents

Criminal Appeal No 206 of 2021, heard on 22nd February, 2022.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 353 & 186---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, possession of narcotic substance---Prosecution case was that accused was apprehended from the house by the officials of ANF and one of the accused was given a chase by the personnel of ANF but he responded with a straight fire hitting one of the officials; accused made a successful escape and from the blue sack thrown by him 15-packets of charas, weighing 16.875 kilograms were recovered---Case was thoroughly investigated by ANF and on the conclusion of the investigation, report under S.173, Cr.P.C. only to the extent of Ss.9(c), 15 & 17 of Control of Narcotic Substances Act, 1997 was submitted in the court of CNS---To the extent of offences under P.P.C. and Anti-Terrorism Act, 1997 a separate report under S.173, Cr.P.C. was proposed to be submitted in the Anti-Terrorism Court---Special Judge (CNS) Court, held that he lacked jurisdiction and both the reports under S.173, Cr.P.C., were to be submitted before the Court constituted under ATA, 1997---Validity---Record showed that the raid though led to the recovery of a consignment comprising upon 16.875 Kilograms of charas but also culminated into the death of one ANF personnel, who statedly was gunned down by one of the accused while decamping from the spot so as to avoid his arrest---Language of S.235, Cr.P.C. is explicit in sense and enables a Court to charge an accused in one trial for multiple offences comprising upon different acts but committed during same transaction---Term "same transaction" used in S.235, Cr.P.C., was of dominant importance and called for indulgence---Offences, though, committed not at same place and time but if were stemming from common motivation, intent, design or in continuity with each other, still could be described as forming same transaction---For the determination of question about the offences having been committed during same transaction, the root cause of the crime or the motive was to be considered along with proximity of time and distance between the different events---If the different events forming basis of a crime could not be bisected in reference to the motive, design, concert and reasons rather were strongly interwoven with each other by common thread of background, it could inexorably be held that offences were committed during same transaction within the meaning of S. 235, Cr.P.C.---In the present case, all the accused named in the crime report prima facie, were found concerned in drugs trafficking and one out of them committed the murder of a person hailing from raiding party to make an escape and to avoid arrest---All the offences were committed in one transaction, thus were to be tried through a common charge under S. 239(d), Cr.P.C. by the same Court in a single trial---According to the Preamble, CNS Act, 1997, was enacted to consolidate and amend the laws relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of drugs and substances---Chapter II deals with certain prohibitions and provide punishments for their violations---Inexorably, all the penal provisions contained in Chapter II of CNS Act, 1997, deal with offences relating to narcotic drugs, psychotropic and controlled substances---For trial of cases arising out of CNS Act, 1997, Special Courts were notified and established under S.45, which also specified the sphere of their jurisdiction---Section 45 of CNS Act, 1997, signified that the jurisdiction of Special Court was restricted only to the extent of offences mentioned in CNS Act, 1997, and did not go beyond---Tenor of S. 45 CNS Act, 1997, made it unambiguously clear that jurisdiction of Court established under CNS Act, 1997 though was exclusive but limited in nature---Alluded from the Preamble that ATA, 1997, was enacted to cater the need of countering the menace of terrorism, sectarian violence and heinous offences---Preamble extended the scope of ATA, 1997 even to the offences which were connected with terrorism etc. or were incidental thereto---Word "incidental" used in the Preamble of ATA, 1997, is of higher import and stand for acts and results attached with the main transaction---Use of word "incidental" that matters ancillary or connected with the principal misdeed of terrorism and heinous offences come within the scope of ATA, 1997---Anti-Terrorism Court besides taking cognizance of terrorism, sectarianism and heinous offences could also extend jurisdiction to offences which were their fall out or by-products---Under S. 12(1) of Anti-Terrorism Act, 1997, Special Court were constituted with exclusive domain to take cognizance of scheduled offences as was evident from its S.12(1) Anti-Terrorism Act, 1997---After dilating in-depth upon the Preamble, Ss.12(1), 17 & 21-M of ATA, 1997, it was concluded that all those provisions were required to be read in conjunction with each other for determining the jurisdiction of Special Court constituted under ATA, 1997---Non-obstante clause of S. 12(1) when read continently with other provisions of ATA, 1997, it becomes abundantly clear that the jurisdiction of Special Court is extended to other offences as well if committed along with scheduled offences during same transaction as continuity of actions---Canvassed allegations give rise to different offences committed by same set of accused and in the manner that they could not be bisected---Similarly, the same set of persons were proposed to stand as witnesses along with common documents like FIR, inspection notes, recovery memos etc. to prove the charge of possession of narcotics and committing the murder of deceased---If the allegations were placed before two different courts through separate 173, Cr.P.C reports, there would be a possibility of conflicting decisions and above all it would put in peril both the sides for undergoing the ordeal of separate trials regarding the same transaction---Appeal was dismissed accordingly.

MD. Mosaddar Hoque and another v. The State PLD 1958 SC 131; Dinkarray Raghnath v. The State AIR 1963 Gujarat 15; Modan Gopal Dey and another v. State and another AIR 1968 Cal. 79 and Montagu (1897) LR 1 CD 1897 at page 693 rel.

Tauqeer Ahmed Satti, Special Prosecutor, ANF for Appellants.

Shujah Ullah for Respondents.

P L D 2022 Lahore 715

Before Raheel Kamran, J

Syed AHMAD SHER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 1787 of 2022, decided on 8th March, 2022.

(a) Family Courts Act (XXXV of 1964)---

----S. 17A(1)---Suit for maintenance---Interim monthly maintenance---Striking off defence of defendant---Interpretation and connotation of the word 'shall' used in S. 17A(1) of the Family Courts Act, 1964 stated.

On perusal of section 17A(1) of the Family Courts Act, 1964 ('the Act'), it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word "shall", on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression "the defence of the defendant shall stand struck off". The expression "defence struck off" means the defendant would not be entitled to rely on any defence set up by him in his written statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed , therefore, the decree passed in terms of section 17A(1) of the Act is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.

Messrs Maple Leaf Cement Factory Ltd. v. The Collector of Central Excise and Sales Tax (Appeals), Lahore and 2 others 1993 MLD 1645 and Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 ref.

(b) Administration of justice ---

----Relief---Effective date---Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action---Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications---Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit---If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant.

Abdul Ghafoor v. Mahmood Ahmad alias Asghar and others 2003 SCMR 764 ref.

(c) Family Courts Act (XXXV of 1964)---

----S. 17A(1)---Decree for maintenance of minor---Whether such decree would take effect from date of institution of suit or from date of decree---Held, that there is nothing in the language of S. 17A(1) of the Family Courts Act, 1964 that suggests expressly or by necessary implication that after striking off defence of a defendant the decree passed by the Family Court for the recovery of maintenance allowance shall be restricted or limited to the period commencing the date of decree and not before that---In the absence of any such restriction or limitation in S. 17A(1) of the Act, a claimant/wife is entitled to the maintenance when the husband/defendant fails to maintain his wife or minor child even for the period prior to the date of institution of the suit.

Abdul Ghafoor v. Mahmood Ahmad alias Asghar and others 2003 SCMR 764 ref.

P L D 2022 Lahore 721

Before Tariq Saleem Sheikh, J

AFZAL AHMAD---Petitioner

Versus

CITY POLICE OFFICER, FAISALABAD and 3 others---Respondents

Writ Petition No. 21663 of 2021, heard on 21st March, 2022.

(a) Police Order (22 of 2002)---

----Art. 18-A---Criminal Procedure Code (V of 1898), S. 551---Transfer of investigation---Powers of superior officers of police---Transfer of Investigating Officer---Scope.

Article 18A(1) stipulates that the first application for transfer of investigation should be made to the Head of District Police. He shall seek opinion of the DSB (District Standing Board) thereon within seven working days and then pass an appropriate order giving reasons therefor. Article 18A(2) provides that if the Head of District Police has decided an application for transfer of investigation, the Regional Police Officer may, within seven working days of the filing of an application, after obtaining opinion of the Regional Standing Board (RSB) and for reasons to be recorded in writing, transfer the investigation of a case to another officer or a team of officers who are equal to or higher than the rank of the previous officers. Article 18A(3) states that when the Regional Police Officer has decided an application as aforesaid, the Provincial Police Officer would be the final authority. He may, within thirty days of filing of an application, after obtaining opinion of the Standing Review Board, transfer the investigation if he deems fit. Article 18A(4) enjoins that a case under investigation with a District Investigation Branch may only be transferred to another officer or a team of officers of the District Investigation Branch, Regional Investigation Branch or Provincial Investigation Branch. Article 18A(5) describes the composition of the DSB, RSB and the Review Board.

It is important to note that Article 18A only prescribes three forums before which an application for transfer of investigation may be made. It is a separate matter whether the authority accepts or rejects it. Article 18A does not talk of "first", "second" and "third" change of investigation as generally heard. High Court observed that it is a misnomer which must be avoided.

Re-investigation or further investigation may bring on record conflicting evidence and contradictory opinions of the police officers. In such eventuality it is the duty of the court to evaluate them in accordance with the established principles of criminal jurisprudence and rules of evidence to reach a correct decision.

Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924 rel.

Even though investigation or further investigation is permissible, subject to Article 18A of the Police Order 2002, the first rider is that it cannot be done after the case has been decided by the Trial Court.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

Re-investigation cannot be ordered in routine.

Abid Hussain v. The State and others 2022 PCr.LJ 83 rel.

High Court does not sit in appeal over the decision of the authorities under Article 18A. As such, it cannot substitute its opinion for their holding though in appropriate cases it can exercise power of judicial review in accordance with the settled legal principles.

Repeated use of the words "filing of an application" in Article 18A clearly suggests that it provides a remedy to the parties who are not satisfied with the investigation for any reason. It does not apply to the cases in which the change is necessitated by the transfer of the Investigating Officer. They are to be dealt with under section 551, Cr.P.C.

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

----S. 173---Constitution of Pakistan, Arts. 4 & 9---Report of police officer---Scope.

Section 173, Cr.P.C. mandates that every investigation should be completed without unnecessary delay. It further states that as soon as it is done the officer in-charge of the police station shall forward a report (through the Public Prosecutor) in the prescribed form to the Magistrate empowered to take cognizance of the offence. If the investigation is not finalized within 14 days from the date of registration of the FIR, the officer in-charge of the police station shall, within three days of the expiration of the period, forward an interim report (through the Public Prosecutor) to the Magistrate in the prescribed form stating the result of the investigation made until then. Immediately thereafter the court should commence the trial unless there are reasons to postpone it.

Provisions of section 173, Cr.P.C. are mandatory as their non-compliance constitutes violation of Articles 4 and 9 of the Constitution.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 rel.

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

----S. 173---Police Rules, 1934, R. 25.2---Report of police officer---Power of investigating officers---Scope---Rule 25.2(3) of the Police Rules, 1934, enjoins that it is the duty of the Investigating Officer to dig out the truth and bring it before the court of justice.

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

---S. 173---Report of police officer---Re-investigation---Scope---Nothing is in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, either on his own initiative or on the direction of the superior police officer.

National Bank of Pakistan v. Nasim Arif Abbasi and others 2011 SCMR 446 and Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499 ref.

Muhammad Akbar v. The State 1972 SCMR 335 rel.

(e) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Fair investigation in a criminal case---Scope---Fair investigation is concomitant to the right to fair trial guaranteed under Article 10-A of the Constitution.

Babubhai v. State of Gujarat and others (2010) 12 SCC 254 rel.

(f) Constitution of Pakistan---

----Art. 189---Decisions of Supreme Court binding on other Courts---Scope---Where there are two streams of decisions of Supreme Court on a point then in such eventuality the one rendered by the Larger Bench prevails.

Fazal Muhammad Chaudhari 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 v. Nasim Arif Abbasi and others 2011 SCMR 446 ref.

Syed Hammad-ul-Hassan for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General, with Atta-ur-Rehman/DSP and Shahid/SI for Respondents Nos.1-3.

Abid Saqi for Respondent No.4.

P L D 2022 Lahore 730

Before Shahid Jamil Khan and Ahmad Nadeem Arshad, JJ

PERVAIZ AKHTAR and others---Appellants

Versus

LAND ACQUISITION COLLECTOR and others---Respondents

R.F.A. No. 75623 of 2019, decided on 19th January, 2022.

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

----S. 18---Reference to Court---Scope---Land of the appellants was acquired through acquisition proceedings---Rate of the acquired land was fixed at Rs.4,00,000/- per acre---Appellants claimed rate of the acquired land at the rate of Rs.35,00,000/- per acre---Referee Court dismissed the reference---Validity---Document prepared by Patwari revealed that average sale price was Rs.35,00,000/- per acre---Several earlier sale mutations, produced by appellants, had substantiated the version of appellants---Report of local commission revealed that the acquired land was situated at the main road; that the acquired land was situated near populated area as well as commercial area; that due to acquisition, the land of appellants was bifurcated into different parts and was no longer cultivable and that the rent of land was Rs. 50,000/- per acre---Girdwar of the procuring agency during cross-examination had admitted that the land of the appellants was situated at the main road---Land Acquisition Collector and Land Acquisition Officer had also admitted that the acquired land was one kilometer away from Abadi Deh---Evidence produced by appellants was enough to shift the onus on the procuring agency---Procuring agency had failed to justify their stance by necessary proof---Referee Court had failed to discharge its function in accordance with law---Appellants were declared entitled to get compensation at the rate of Rs.35,00,000/- per acre along with 15% compulsory charges and simple interest @ 8% from the date of possession till payment of compensation---Appeal was allowed.

Abdur Rauf Khan v. Land Acquisition Collector/DC 1991 SCMR 2164 rel.

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

----Preamble---Scope---Land Acquisition Act, 1894, is founded upon the doctrine that the interest of the public is supreme and that the private interests are subordinate to the interest of the State---Land Acquisition Act, 1894, is promulgated for the purpose of compulsory acquisition of land needed for the public purpose and for determination of amount of compensation to be made on account of such acquisition---Although the Land Acquisition Act, 1894, is devised to deprive citizens of their valuable rights in property through somewhat coercive measures by State exercising authority under a Statute but such exercise can only be for public purpose---However, bare reading of the Land Acquisition Act, 1894 leaves one with the strong impression that prime intent of the legislature is to ensure the protection of the rights of the citizens whose property is being acquired---Land owner are to be given gold for gold and not copper for gold---Scheme of law under the Land Acquisition Act, 1894 is complete and exhaustive, which apart from mode of acquisition of land, provides a scheme containing mechanism for measurement of land, assessment of its value, payment of compensation to the affected persons and remedy in case of any dispute.

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

----Ss. 4, 5-A, 6, 11, 12, 18 & 23---Publication of preliminary notification and powers of officers thereupon---Hearing of objections---Declaration that land is required for a public purpose---Enquiry and award by Collector---Award of Collector when to be final---Reference to Court---Matters to be considered in determining compensation---Scope---Scheme of the Act is very simple as it consists of fifty five sections divided into eight parts---Procedure of acquisition starts when a notification under S. 4 is issued notifying the land required for a public purpose and inviting objections---Objection to such acquisition may be made by any person having interest in the property and the hearing is granted on the objections, if any, raised under S. 5-A whereas the determination that the land is required for public purpose is done by issuing declaration in the notification in terms of S. 6---Section 11 postulates the enquiry and passing of the award by the Collector and while doing so, it requires the Collector to determine (i) the true area of the land (ii) the compensation which in his opinion should be allowed for the land and (iii) the apportionment of the said compensation amongst all the persons known or believed having interest in the land, of whom or of whose claim, he has information, whether or not they have respectively appeared before him---Section 12 states that the award of the Collector shall be final and conclusive evidence as between the Collector and the person interested, in respect of the amount of compensation---Award is merely an offer to tender the compensation to the owner of the property and if the offer is not acceptable, S. 18 of the Act grants the owner of the land a statutory remedy for seeking determination of the amount of compensation from the Court by filing reference before the Collector---Assessment of compensation is made in the light of S. 23 which stipulates guiding principles for the Courts to consider the compensation on the move of a person who has an interest in the acquired land and is aggrieved of the compensation determined and settled through award.

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

----S. 23---Matters to be considered in determining compensation---Scope---Land owner is entitled for compensation at the market value of the land so acquired coupled with the amount of damages sustained due to acquisition proceedings---Land owner is entitled to compensation in view of its future potential value and additional compensation for reverence, injurious affection and disturbance---Landowner is entitled to compensation and not just market-value, hence, loss or injury occasioned by its severing from his property by change of residence or place of business and loss of profits are also relevant---Delay in the conclusion of the acquisition proceedings cannot be lost sight of---While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account.

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

----S. 23---Matters to be considered in determining compensation---Expression "Market-value"---Defined.

Murad Khan v. Land Acquisition Collector 1999 SCMR 1647; Land Acquisition Collector v. Mst. Surraya Mahmood Jan 2015 SCMR 28; Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Mustaza and others 2016 SCMR 1141 and Air Weapon Complex through D.G. v. Muhammad Aslam and others 2018 SCMR 779 rel.

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

----S. 23---Matters to be considered in determining compensation---Scope---Land owner is entitled for compensation and not the market value.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 rel.

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

----S. 23---Matters to be considered in determining compensation---Future value---Scope---Court while determining the compensation was to consider the potential and future prospective of land in addition to one year average.

Malik Hadi Husain and others v. Land Acquisition Collector and another PLD 2008 SC 386 and Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 rel.

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

----S. 23---Matters to be considered in determining compensation---Future value---Scope---While determining the quantum of compensation the exercise may also not be restricted to the time of notification but its future value may be taken into account.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

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

----S. 23---Matters to be considered in determining compensation, detailed.

Following principles were to be followed while determining the compensation of the acquired land:-

a) The best method to work out the market value is the practical method of a prudent man as laid down in Qanun-e-Shahadat, 1984, to examine and analyze all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.

b) The Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under S. 6 of the Act and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.

c) The phrase "market value of the land" as used in S. 23(1) of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be no subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its future potential value must be taken into consideration.

d) While determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;

e) Consideration was to be taken in view all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners.

f) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The previous sales of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.

g) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they had voluntarily entered into the transaction. The assumption being that sale is being taken place in open market as if notification of acquisition did not exist.

h) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.

i) When the market value is to be determined on the basis of the instances of sale of land in the neighboring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.

j) An entry in the Revenue Record as to the nature of the land should not be considered conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land;

k) It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefits.

l) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration.

m) In determining the quantum of compensation, the exercise may not be restricted to the time of the aforesaid notification but its future value may be taken into account and

n) The sale-deed and mutation entries do serve as an aid to the prevailing market value.

Murad Khan v. Land Acquisition Collector 1999 SCMR 1647; Land Acquisition Collector v. Mst. Surraya Mahmood Jan 2015 SCMR 28; Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Mustaza and others 2016 SCMR 1141 and Air Weapon Complex through D.G. v. Muhammad Aslam and others 2018 SCMR 779 rel.

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

----S. 18---Reference to Court---Scope---Section 18 provides an opportunity to a person to raise grounds and objections with regard to award and cast duty upon the Referee Court to determine the compensation of the land which is subject matter of the acquisition---To achieve such purpose the evidence as a whole of both the parties should be considered.

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

----S. 18---Reference to Court---Scope---Reference application is an independent, original proceeding for determination of the compensation afresh on the basis of the material produced and proved before the Referee Court by the parties---After institution of the reference application it is duty of the procuring agency to provide information on the basis of which the compensation was determined and then to prove it through confidence inspiring evidence---Referee Court does not act as an Appellate Court charged with the function of affirming or reversing the findings of the Acquisition Collector which form the basis of the award rather it has to apply its independent mind while determining the amount of compensation to be awarded to the complaining party.

Nadeem Babar for Appellants.

Akhtar Ali Monga for Respondents.

P L D 2022 Lahore 756

Before Tariq Saleem Sheikh, J

Hafiz AWAIS ZAFAR---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and 2 others---Respondents

Writ Petition No. 21987 of 2022, heard on 10th May, 2022.

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

----S. 18---Constitution of Pakistan, Arts. 199 & 175---Power to cancel, impound or confiscate cards---Jurisdiction of Courts---Scope---Petitioner assails order passed by Executing Court whereby National Database and Registration Authority (NADRA) was directed to block his Computerized National Identity Card (CNIC)---Validity---Section 18(1) of the National Database and Registration Authority Ordinance, 2000 stipulates that all the cards issued by NADRA, including CNIC, shall be the property of the Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to the holder---Section 18(2) enumerates the circumstances in which it may take such an action---Provisions of S. 18 must be strictly construed and scrupulously followed as cancellation, impounding or confiscation of CNIC impacts the fundamental rights of a person---Executing Court had passed the impugned order without taking action under S. 18 into consideration---Section 18 does not allow blocking/digital impounding of the CNIC of a person to compel him to appear before the court---Constitutional petition was accepted, the impugned order was declared to be without legal authority and set aside.

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

----S. 18---Constitution of Pakistan, Art. 175---Power to cancel, impound or confiscate cards---Jurisdiction of courts---Scope---Digital impounding/blocking of CNIC by courts cannot be permitted because it does not have the sanction of law---Such orders are contrary to Art. 175(2) of the Constitution and concept of rule of law.

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

----Ss. 18 & 19---Constitution of Pakistan, Arts. 9, 14 & 10-A---Power to cancel, impound or confiscate---Cards necessary for certain purposes---Security of person---Inviolability of dignity of man---Right to fair trial---Scope---Subsections (1) and (2) of S. 19 of the National Database and Registration Authority Ordinance, 2000, specify a few circumstances when the National Identity Card is compulsorily required---Such include grant of passport, permit or other travel documents for going out of Pakistan and identification of a voter at various elections---Section 19(3) empowers the Federal Government specify any other purpose for which the production of any card issued as aforesaid shall be necessary---However, the need for the CNIC has increased manifold during recent years---Now almost every government and private organization requires CNIC from a person before they attend him---Not possible to get higher education, apply for a job, open a Bank account, get a driving license or arms license, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceedings and enter in certain buildings and premises without production of CNIC---CNIC is essential for enjoyment of a number of fundamental rights, hence, a person cannot be deprived of it without due process.

Muhammad Umar v. Federation of Pakistan, through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2017 Sindh 585 rel.

(d) Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Courts have expanded the right to life over time and held that it includes the right to legal aid; the right to speedy trial; the right to bare necessities of life; protection against adverse effects of electro-magnetic fields; the right to pure and unpolluted water; the right to access to justice; the right to livelihood; the right to travel; the right to food, water, decent environment, education and medical care---Right to identity as concomitant to the right to lifeis protected under Arts. 9 & 14 of the Constitution.

Fazal Karim, Judicial Review of Public Actions, Second Edition, Vol. 2, p. 804 (internal citation omitted); Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Nestle Pakistan v. Director Pessi and others PLD 2019 Lah. 515 rel.

(e) Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Personal identity of a person comprises all those aspects of his profile which are significant to him---Personal identity begins from the moment of conception and going beyond the information such as date of birth, encompasses his personal attributes like biographical data, physical traits and significant social relations, such as ties to family members, cultural or religion---Right to identity is associated with several other rights, e.g., the rights to a name, nationality, juridical personality, family and culture---Some legal experts consider it a part of the right of life while others posit that it is rooted in human dignity and thus fundamental and non-derogable.

Theodore McCombs et. al., Right to Identity (2007); Universal Declaration of Human Rights (1948); UN Convention on the Rights of the Child; The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (1993) and United Nations Strategy for Legal Identity for All. rel.

(f) Constitution of Pakistan---

----Art. 9---Security of person---Scope---Article 9 of the Constitution guarantees the right to life and liberty and enjoins that no person shall be deprived of it save in accordance with law.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

(g) Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people, they must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice---Such vibrance and vitality is the hall mark of a living Constitution in a democracy.

Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 rel.

(h) Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights in a living Constitution are to be liberally interpreted so that they can continue to embolden freedom, equality, tolerance and social justice.

Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others PLD 2020 SC 1 rel.

(i) Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Not imperative that every right should be enumerated as a fundamental right in the Constitution---Such can be claimed that even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective.

Maneka Gandhi v. Union of India AIR 1978 SC 597 rel.

(j) Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights call for a generous interpretation avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

In The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher (1979) 3 All ER 21 rel.

Allah Nawaz Nasir for Petitioner.

Muhammad Akhtar Rana for Respondent No.2.

Syed Muhammad Haider Kazmi, Assistant Attorney General, with Imran Muhammad Naeem, Law Officer NADRA for Respondent No.3.

P L D 2022 Lahore 766

Before Safdar Saleem Shahid, J

ABDUL HAQ---Appellant

Versus

AKRAM-UL-HAQ and others---Respondents

Civil Revision No. 137 of 2017, decided on 26th October, 2021.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 10---Civil Procedure Code (V of 1908), O. XXVI, R. 1---Private partition---Internal auction---Suit for declaration/partition---Privately partitioned property between the parties was prayed to be declared final---Respondent/plaintiff also filed a suit for partition of the disputed shop asserting that he and the petitioner were joint owners of the said shop and that the same shop be partitioned---Suit was concurrently decreed---Local Commission submitted his report proposing that the suit property was not partitionable and the same should be disposed of through auction---Both parties objected to the said report and Trial Court called for second report which was not objected to by the respondent but petitioner filed objections thereon which were declined by the Court---Trial Court decreed suit observing that the suit property was to be partitioned as per second report of the Local Commission---Petitioner filed appeal which was dismissed by the District Court---Validity---Second local commission was also appointed before the enactment of the provision of referee in Partition Act, 2012, therefore, the order of the Trial Court for the appointment of commission on second time was valid and legal---Admittedly, the suit property had been partitioned through family settlement 20 years ago, therefore, said private partition be declared final and the possession of the disputed property be handed over to the parties in accordance with the private partition---Report of local commission showed the disputed property as partitionable whereas Oversee Building Department (technical person) had submitted his independent report proposing the auction of the suit property for having found it not partitionable---Trial Court had not considered the objections raised by the petitioner and simply declined the objections without assigning any reason---Trial Court also did not consider the report of Overseer Building Department (technical person)---Courts below failed to appreciate the point that due to undividable partition, the value of the property in dispute and shares of the co-sharer would be diminished---Principles of natural justice/equity including easement rights were not considered in view of the Arts. 4, 8, 9, 18, 23, 24 & 38 of the Constitution---High Court allowed revision petition and remanded the matter to Trial Court to decide the objections to the report of Local Commission.

Muhammad Ramzan v. Mst. Aisha and others 2014 SCMR 151 and Muhammad Ibrahim and others v. Muhammad Ismail and others 2002 MLD 879 rel.

(b) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 4---Nature of proceeding---Duty of Court---Scope---Partition suits were different from the other civil suits as in partition suits parties had already established their right of ownership in the property---Main purpose of partition suit was to settle down the certain part/share of each sharer, according to their entitlement---Civil Court was responsible to see that nobody/share-holder be deprived in any way from his/her legal right.

(c) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Preamble---Main purpose of enactment was to permanently settle the share of each sharer according to their entitlement---Such proceedings were to be processed speedily.

(d) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Preamble---Essential considerations for passing a decree for partition of partitionable property---Court, in case of partitionable property, is bound to see that the proposed shares are equal in all respect: (i) Valuation of the property is equal of each sharer, accordingly to his/her share. (ii) Right of easement are equally available to all sharers. (iii) All sharers have the equal opportunity to utilize theirs shares. (iv) The future aspect of each sharer is equal in all respect.

Gulzar Ahmed Khan Durrani, Malik Shah Nawaz Kalyar, Mian Muhammad Shahid Akhtar and Mian Kashif Saleem for Petitioner.

Aejaz Ahmad Ansari for Respondents.

P L D 2022 Lahore 773

Before Tariq Saleem Sheikh, J

MEERA SHAFI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 24397 of 2021, decided on 24th December, 2021.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 265-K---Constitutional jurisdiction---Quashing of FIR---Alternate remedy, availability of---Effect---Jurisdiction of the High Court under Art. 199 of the Constitution is extraordinary and should be invoked only when there is no adequate and efficacious alternative remedy---Generally speaking, S. 249-A, Cr.P.C. and S. 265-K, Cr.P.C. in the cases triable by the Sessions Court) is considered to provide such remedy as it empowers the court to acquit the accused at any stage of the trial if it thinks that the charge is groundless or there is no probability of his being convicted of any offence---High Court would not interfere in the normal course of the trial and quash the criminal proceedings while exercising powers under Art. 199 of the Constitution or S. 561-A, Cr.P.C.---Argument that some authorities hold that the bar is not absolute---Held, every case has its own facts and in exceptional circumstances the High Court can intervene.

Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Mst. Parveen Akhtar v. Muhammad Yousaf Zahid and another 2002 PCr.LJ 1593; Mst. Shamim v. District Police Officer, District Khanewal and 2 others 2004 PCr.LJ 606; Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others 2012 PCr.LJ 638 and Mumtaz Hussain v. The State and 2 others PLD 2017 Lah. 889 ref.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 249-A---Constitutional jurisdiction---Power of Magistrate to acquit accused at any stage---Quashing of FIR---Vires of statute, challenge to---Maintainability---Scope---Where the accused persons while seeking quashing of FIR had assailed the vires of a statutory provision and had raised other questions involving interpretation of the Constitution and statutory law, High Court observed that such questions could not be decided by the Magistrate and that too in an order on the application under S. 249-A, Cr.P.C.---Constitutional petition was held to be competent and was disposed of accordingly.

(c) Constitution of Pakistan---

---Art. 19---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Freedom of speech---Offences against dignity of a natural person---Scope---Petitioners attacked the constitutionality of S. 20 of Prevention of Electronic Crimes Act, 2016, (PECA) on the ground that defamation is not among the restrictions imposed by the legislature in Art. 19 of the Constitution and does not have even a proximate connection with any of them---Petitioner also pointed out that the original Art. 19 (as it stood in the 1973 Constitution) included defamation in the list but it was omitted later on---Validity---Fundamental rights essentially afford protection against contraventions by the State and its instrumentalities---Wrong of defamation is not a public but a private wrong---Legislature is competent to make a law relating to defamation even under the amended Art. 19---Section 20 of Prevention of Electronic Crimes Act, 2016, may also be justified on the ground that defamation and libel may endanger public order and incite an offence-the interests expressly protected under Art. 19 of the Constitution---Parliament was competent to enact S. 20 of Prevention of Electronic Crimes Act, 2016.

Fazal Karim, Judicial Review of Public Actions, Second Edition, Vol.2, p. 1237; Ramesh Lawrence Maharaj v. The Attorney General of Trinidad and Tobago (1978) 2 All ER 670; Majid Nazami and another v. Sheikh Muhammad Rashid PLD 1996 Lah. 410 and Sheikh Muhammad Rashid v. Majid Nizami PLD 2002 SC 514 rel.

(d) Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 20, 28 & 50---Penal Code (XLV of 1860), Ss. 499 & 500---Constitution of Pakistan, Art. 25---Offences against dignity of a natural person---Defamation---Relation of Prevention of Electronic Crimes Act (XL of 2016) with other laws---Scope---Petitioners' claim was that S. 20 of PECA was discriminatory vis-a-vis Ss. 499 & 500 of P.P.C., so it is liable to be struck down---Validity---Pakistan Penal Code is the general Penal Code for Pakistan---Section 499, P.P.C. defines "defamation"---Section 500, P.P.C. criminalizes defamation---In contrast, S. 20 of PECA relates to offences against dignity of a natural person and defamation is one of the acts that it criminalizes---Prevention of Electronic Crimes Act is lex specialis which aims to check cybercrimes and provide a legal framework for their investigation, prosecution and trial and for international cooperation to that end---Prevention of Electronic Crimes Act does not override P.P.C.---Section 28 of PECA rather says that the provisions of the P.P.C. shall apply to the offences provided in the PECA unless they are inconsistent with it---Language of S. 28 is perspicuous but S. 50 presents some difficulty because of the expression "not in derogation of"---Prevention of Electronic Crimes Act has to be read in tandem with the laws mentioned in S. 50(1) thereof---Sections 499 & 500, P.P.C. apply to ordinary situations while S. 20 of the PECA is invoked where defamation is committed in the cyberspace through the computers---Cybercrimes are a category apart by their very nature as they may extend beyond the local and provincial boundaries and even national frontiers; they require special expertise for investigation which is generally not available with the local police---For all these reasons S.20 of the PECA and Ss. 499 & 500, P.P.C., do not overlap but stand the test of reasonable classification envisaged by Art. 25 of the Constitution.

Waris Meah v. The State and others PLD 1957 SC (Pak) 157 ref.

(e) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 20---Penal Code (XLV of 1860), S. 499---Offences against dignity of a natural person---Defamation---Scope---Explanations and the exceptions set out in S. 499, P.P.C. would be read into S. 20 of the PECA by virtue of Ss. 28 & 50 of PECA.

(f) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 20---Offence against dignity of a natural person---Use of offensive and derisive language---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 shows that it encompasses a wide range of objectionable/offensive acts and "harm to reputation" or to put it in another way, defamation - is only one of them---Petitioners' contention that it stifles free speech is misconceived---Nobody can be given a license to defame another or do anything that may impinge on his dignity---Phraseology of S. 20 is broad enough to cover not only defamation but also the use of offensive and derisive language.

Chaplinsky v. New Hampshire (1942) 315 US 568 ref.

(g) Prevention of Electronic Crimes Act (XL of 2016)---

----S. 20---Offence against dignity of a natural person---Defamation---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016 sanctions attacks on the dignity of a natural person---Defamation is one of the things that violates it.

(h) Constitution of Pakistan---

----Art. 14---Prevention of Electronic Crimes Act (XL of 2016), S. 20---Inviolability of dignity of man---Offences against dignity of a natural person---Scope---Section 20 of the Prevention of Electronic Crimes Act, 2016, is not unconstitutional---Act is rather in conformity with Art. 14 of the Constitution and promotes the right to dignity enshrined therein.

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

----Ss. 155 & 154---Prevention of Electronic Crimes Investigation Rules, 2018, Rr. 6 & 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Rule 6(3) of Prevention of Electronic Crimes Investigation Rules, 2018, (PECIR) stipulates that a complainant may file his complaint in-person, via e-mail, fax, telephone or other available digital means to a Cybercrime Reporting Centre---Rule 7 retains the distinction between cognizable and non-cognizable offences---However, it is not happily worded and appears to be incoherent---Rule 7(1) lays down that the Circle in-charge may allow registration of a case on the complaint received under R. 6(3) and nominate an investigation officer while R. 7(4) enjoins that if the offence alleged in the complaint is cognizable, the Circle in-charge shall order registration of case after seeking legal opinion and approval of the Additional Director in the zone---On the other hand, R. 7(5) ordains that non-cognizable offences are to be dealt with according to S. 155, Cr.P.C. and permission of the competent court is necessary for their investigation---Tension between different provisions of R. 7 can be resolved by holding that when a complaint is received at the Cybercrime Reporting Centre the Circle in-charge may allow it to be registered for further processing and nominate an officer therefor---First Information Report is to be lodged only if it is found that a cognizable offence has been committed under the PECA and that too after completing the requirements of R. 7(4) but in the case involving non-cognizable offence the Circle in-charge should seek permission of the competent court for investigation.

Ghulam Abbas v. The State PLD 1968 Lah. 101; Faiz Muhammad v. The State PLD 1979 Kar. 513 and Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921 ref.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 rel.

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

----Ss. 155 & 537---Prevention of Electronic Crimes Investigation Rules, 2018, R. 7---Information in non-cognizable cases---Investigation and case procedure---Scope---Petitioners claimed that R. 7(5) of the Prevention of Electronic Crimes Investigation Rules, 2018, has not been followed---Validity---Even if it is assumed that the petitioners' stance is correct, they cannot get any benefit because there is nothing on the record which may suggest that they have been prejudiced or the officers of investigating authority were dishonest or had malice against them---Any irregularity or defect in investigation stands cured under S. 537, Cr.P.C.

Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 rel.

(k) Constitution of Pakistan---

----Art. 19---Freedom of speech---Freedom of expression---Restrictions---Reasonableness of restrictions---Defamation---Qualified privilege.

Freedom of speech is understood as a wider concept of 'freedom of expression' that also includes freedom of press, the right to petition government and freedom of political association. Freedom of speech is characterized as the indispensable condition of nearly every other form of freedom and is, therefore, regarded as a fundamental international human right.

Palko v. Connecticut (1937) 302 US 319, 327 ref.

Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers.

Article 19 of the Universal Declaration of Human Rights (1948) rel.

Freedom of expression is intrinsically important; it is valued for its own sake. But it is well recognized that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society; Secondly, the best test of truth is the power of the thought to get itself accepted in the competition of the market; Thirdly, freedom of speech is the life-blood of democracy. The free flow of information and ideas informs political debate. It is a

safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the government and administration of justice of the country.

R v. Secretary of State, ex.p. Simms, (1999) 3 All ER 400, 408 rel.

Albeit freedom of speech and expression is fundamental, it cannot be unfettered. There is a general consensus that some limits must be placed on what can be said because unlimited speech can cause immense harm and offence. The right to freedom of speech and expression must be balanced with other societal interests. High Court was to decide how much value we place on speech in relation to other important ideals such as privacy, security, democratic equality and the prevention of hram. Speech is a part of a package deal of social goods and there is nothing inherent to speech which may suggest that it must always win out in competition with other values.

Article 19 of the Universal Declaration of Human Rights (1948) and Brown v. Entertainment Merchants Association (2011) 131 S.Ct. 2729 rel.

Article 19 guarantees not only freedom of speech but also of expression. 'Expression' seems to be wide enough to embrace 'expressive conduct'. Article 19 expressly allows imposition of restrictions to protect certain interests, viz., the glory of Islam, the security of Pakistan, friendly relations with other countries, public order, decency, morality, and in relation to contempt of court, commission of or incitement to an offence.

Fazal Karim, Judicial Review of Public Actions, Second Edition, Vol.2, p.1188 rel.

No straitjacket formula exists to determine reasonableness of restrictions. Legislative view of what constitutes reasonable restriction is not conclusive and the Superior Courts have the final word. Restriction in order to be reasonable should neither be arbitrary nor beyond what is required in the public interest. Reasonableness should be determined on the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

Chintaman Rao v. State of Madhiya Pradesh AIR 1951 SC 118; Harkchand Ratanchand Bantia v. Union of India AIR 1970 SC 1445; Shreya Singhal v. Union of India (2015) (5) SCC 1 and Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57 rel.

It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that 'reasonable' implies intelligent care and deliberation, that is, the choice of reason dictates. For any action to be qualified as reasonable, it must also be just, right and fair, and should neither be arbitrary nor fanciful or oppressive.

Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692 rel.

Defamation is an injury to a man's reputation. The freedom of speech or expression does not authorize one person to lower another in the esteem of his peers or to expose him to hatred, ridicule or contempt. The wrong of defamation, which includes both libel and slander, protects reputation while the defences to that wrong, viz., truth and privilege, protect the freedom of speech. No one has a right to injure reputation of others with mala fide intention.

Durga Das Basu, Commentary on the Constitution of India, 9th Edition, p. 3859 and Ratanlal and Dhirajlal, The Law of Torts, 28th Edition, p. 269 rel.

In order to determine whether the words are defamatory they should be given their natural, normal, ordinary, plain, usual, fair and obvious meaning and be construed in the sense understood by an ordinary and reasonable person, i.e. someone who is not naturally inclined to attribute the best or worst meaning to them.

Taseko Mines Limited v. Western Canada Wilderness Committee 2017 BCCA 431 rel.

It is in public interest to allow debate on the policies and acts of politicians but the person making the allegations must have a positive belief that they are true. [p. 803] S

Indifference to the truth of what the publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more.

Horrocks v. Lowe (1974) 1 All ER 662 rel.

Critics are instruments of reforms but not those actuated by malice but those who are inspired by public weal. Bona fide criticism of any system or institution, including judiciary, is aimed at inducing the administration of the system or institution to look inward and improve its public image. Healthy and constructive criticism are tools to augment its forensic tools for improving its functions. Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions.

Dr. D.C. Saxena v. Hon'ble Chief Justice of India AIR 1996 SC 2481 rel.

Defence of qualified privilege should be extended to mass media with respect to publication of information, opinion and arguments concerning Government and political matters that affect the public---Following is a non-exhaustive list of the criteria against which the defence of qualified privilege should be adjudged: (a) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (b) The nature of the information, and the extent to which the subject-matter is a matter of public concern. (c) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (d) The steps taken to verify the information. (e) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (f) The urgency of the matter. News is often a perishable commodity. (g) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (h) Whether the article contained the gist of the plaintiff's side of the story. (i) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (j) The circumstances of the publication, including the timing.

Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127 at 201 and Jameel v. Wall Street Journal Europe, [2006] UKHL 44 rel.

(l) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man---Right to reputation explained.

Concept of human dignity envisages that human beings possess a special value that is intrinsic to their humanity owing to which they are worthy of respect whatever may be their race, colour, creed gender or personal qualities or abilities. The right to reputation, the right to possession of a good name, is acknowledged as an inherent personal right of every person and considered as an integral part of his dignity.

Ratanlal and Dhirajlal, The Law of Torts, 28th Edition, p. 269 ref.

Right to the enjoyment of a private reputation, un-assailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution, equally with the right to the enjoyment of life, liberty and property.

Marion v. Davis, 217 Ala. 16 (Ala. 1927) and Ratanlal and Dhirajlal, The Law of Torts, 28th Edition, p. 269 rel.

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.

Reynolds v. Times Newspapers Ltd., [2001] 2 AC 127 at 201 rel.

Dignity of man is a cherished value under Constitution of Pakistan and Article 14 thereof not only declares it as such but also enjoins that it is inviolable. It includes the right to reputation.

(m) Constitution of Pakistan---

----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental rights---Interpretation of fundamental rights---Scope---Fundamental rights enumerated in a written constitution are not mutually exclusive---Provisions conferring those rights have to be harmoniously and purposively interpreted in order to give full measure of the freedoms to the people to which they are entitled.

(n) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt in accordance with law---Scope---Article 4 of the Constitution ordains that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being in Pakistan, to enjoy the protection of law and to be treated in accordance with law.

(o) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---Article 25 recognizes that all citizens are equal before law and have a fundamental right to equal protection of law.

(p) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial review---Doctrine of judicial review postulates that the courts exercise judicial power of the State and are entitled to examine and decide: (a) the constitutional validity of any law whether it is primary or subordinate legislation; and (b) the constitutionality or lawfulness of a decision, action or inaction of a person or body exercising public functions.

(q) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Vires of statute, challenge to---Principles to be applied by court while examining the statute stated.

Following are the principles that the courts are required to apply when an enactment is questioned:

a) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;

b) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity;

c) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

d) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;

e) The Court will not decide a larger constitutional question than is necessary for the determination of the case;

f) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;

g) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

h) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution;

i) Mala fides will not be attributed to the legislature.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(r) Words and phrases---

----"Derogation"---Meaning.

An occasion when a rule or law is allowed to be ignored.

Words or actions which show that somebody or something is considered to have no worth.

Oxford Advanced Learner's Dictionary rel.

(s) Words and phrases---

----Phrase "and not in derogation of"---Meaning---"And not in derogation of" means the same thing as "in addition to".

State of Mysore v. P.K. Atre AIR 1959 Kant 65 rel.

(t) Interpretation of statutes---

----Words "by" and "under"---Scope---When a statute provides something in its main text, it can be said to be something prescribed "by" the law---However, if secondary legislation envisaged by the parent law prescribes something (e.g. through statutory rules) it is "under" the parent enactment---Use of the word "under" in a parent law clearly suggests that the legislature left it open for something to be provided either through an amendment in the main statute or the rules framed thereunder.

Commandant, Frontier Constabulary, KPK, Peshawar v. Gul Raqib Khan 2018 SCMR 903 ref.

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

----S. 154---Information in cognizable cases---Scope---Registration of FIR is not a condition precedent for commencement of investigation.

Ghulam Abbas v. The State PLD 1968 Lah. 101; Faiz Muhammad v. The State PLD 1979 Kar. 513 and Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921 ref.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 rel.

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

----Ss. 154, 156 & 157---Information in cognizable cases---Investigation into cognizable cases---Procedure where cognizable offence suspected---Scope---Receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation---Criminal prosecutions are undertaken as a result of information received and recorded but there is no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged---Section 157, Cr.P.C., when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S. 156 has been committed shall proceed to investigate the facts and circumstances, supports this view---In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons---Object is to obtain early information of the alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished.

Ghulam Abbas v. The State PLD 1968 Lah. 101; Faiz Muhammad v. The State PLD 1979 Kar. 513 and Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921 ref.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18 rel.

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

----Ss. 155 & 190---Information in cognizable cases---Cognizance of offences by the Magistrate---Scope---Police officers are not competent to investigate an offence which is non-cognizable and require permission from a competent Magistrate before the commencement of investigation---However, if through bona fide error or misconception of facts and law a police officer has undertaken investigation of a crime in which he is not authorized to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of S. 190(1)(a) & (b), Cr.P.C., cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice---No blanket exits for the acts committed dishonestly or malafidely by police officers who inherently are otherwise not empowered to submit reports for trial in non-cognizable offences and courts should not normally encourage the acts of police agencies without proper scrutiny---If a court otherwise competent in appropriate case has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused---Indeed, on the one hand police officers are duty bound to ensure the rule of law whereas on the other hand courts can exercise jurisdiction only subject to law and the assumption of jurisdiction which otherwise is barred can hardly be justified on the plea of bona fide cognizance of a case or lack of prejudice to the accused.

Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 rel.

(x) Administration of justice---

----Civil and criminal litigation proceeding simultaneously---Scope---Object of civil proceedings is to enforce civil rights of the people while the purpose of criminal proceedings is to punish the offender for committing an offence.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Majid v. Nawab Din 1973 SCMR 373; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; Maqbool Rehman v. The State and another 2002 SCMR 1076; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Sheraz Ahmad and others Fayyaz-ud- Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Zafar and others v. Umar Hayat and others 2010 SCMR 1816; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Sameen Jan (Naib Tehsildar and others v. The State and others PLD 2011 SC 509; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Muhammad Aslam v. The State and others 2017 SCMR 390 ref.

(y) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional jurisdiction---Civil and criminal litigation proceeding simultaneously---Scope---High Court has jurisdiction under Art. 199 of the Constitution and S. 561-A, Cr.P.C. to stay criminal proceedings to meet the ends of justice where civil litigation is pending.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Majid v. Nawab Din 1973 SCMR 373; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; Maqbool Rehman v. The State and another 2002 SCMR 1076; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Sheraz Ahmad and others Fayyaz-ud- Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Zafar and others v. Umar Hayat and others 2010 SCMR 1816; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Sameen Jan (Naib Tehsildar and others v. The State and others PLD 2011 SC 509; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Muhammad Aslam v. The State and others 2017 SCMR 390 ref.

(z) Administration of justice---

----Civil and criminal litigation proceeding simultaneously---Scope---No universal principle exists to the effect that whenever the subject-matter of a civil suit and a criminal case is the same or similar the proceedings before the criminal court must necessarily be stayed.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Majid v. Nawab Din 1973 SCMR 373; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; Maqbool Rehman v. The State and another 2002 SCMR 1076; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Sheraz Ahmad and others Fayyaz-ud- Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Zafar and others v. Umar Hayat and others 2010 SCMR 1816; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Sameen Jan (Naib Tehsildar and others v. The State and others PLD 2011 SC 509; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Muhammad Aslam v. The State and others 2017 SCMR 390 ref.

(aa) Administration of justice---

----Civil and criminal litigation proceeding simultaneously---Scope---Decision to stay criminal proceedings is purely a matter of discretion---However, the guiding principle is whether the accused is likely to be prejudiced if the proceedings continued---If his criminal liability is dependent on the result of civil litigation or is so intimately connected with it that there is a danger of grave injustice if there is a conflict of decisions, criminal proceedings must be held in abeyance.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Majid v. Nawab Din 1973 SCMR 373; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; Maqbool Rehman v. The State and another 2002 SCMR 1076; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Sheraz Ahmad and others Fayyaz-ud- Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Zafar and others v. Umar Hayat and others 2010 SCMR 1816; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Sameen Jan (Naib Tehsildar and others v. The State and others PLD 2011 SC 509; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 and Muhammad Aslam v. The State and others 2017 SCMR 390 ref.

(bb) Criminal trial---

----Ipse dixit of police--- Scope--- Opinion of the police is not binding on the court and it has to decide the case on the basis of evidence produced before it, evidence that is admissible and reliable.

(cc) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Factual controversy---Scope---Question as to whether a particular act is mala fide requires factual inquiry which cannot be undertaken by the High Court in constitutional jurisdiction.

Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others 1979 SCMR 484; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through legal heirs v. Muhammad Salim 2001 SCMR 1493; Secretary to Government of the Punjab, Forest Department, Punjab, Lahore, through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Wazir Ali Soomro v. Water and Power Development Authority and others 2005 SCMR 37 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Ms. Hina Jillani, Advocate, assisted by Muhammad Saqib Jillani for Petitioners.

Asad Ali Bajwa, Deputy Attorney General, and Syed Muhammad Haider Kazmi, Assistant Attorney General, with Shafqat/SI for Respondents Nos.1-4.

Ali Sibtain Fazli, assisted by Hasham Ahmad Khan for Respondent No.5.

P L D 2022 Lahore 817

Before Jawad Hassan, J

MUBASHAR JAVED and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petitions Nos. 51104 and 55485 of 2021, heard on 17th December, 2021.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court cannot assume jurisdiction in a matter already pending before the Supreme Court.

Water and Sanitation Agency, Lahore through M.D. v. Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others 2019 SCMR 1146 ref.

(b) Judicial estoppel, doctrine of---

----Scope---When a party takes an inconsistent position in the same case or in a prior case, the principle of judicial estoppel applies---Judicial estoppel is an equitable doctrine which precludes a party from taking inconsistent positions before the Court---Under the doctrine of judicial estoppel a court can stop a party from taking up contradictory stances if it is clearly inconsistent with the previous position taken by that party before another Court---When a party puts forth a position, as a matter of fact in one case and is successful in that assertion, that party is estopped from asserting a different position on the same facts in the second case.

JDW Sugar Mills Ltd. and others v. Province of Punjab and others PLD 2017 Lah. 68 ref.

(c) Public office---

----Phrases "term of office" and "tenure of office"---Distinction---In political theory, "term of office" and "tenure of office" are terms often times contrasted with each other---Term of office refers to the period, either fixed by the Constitution or a statute, within which a public official may hold office---Tenure of office, on the other hand, is the period within which a public official actually held office within a prescribed term---In other words, term of office is fixed, while tenure of office is variable.

Youssouf Shaheen v. Election Commission of Pakistan through Secretary, Islamabad and 8 others 1994 SCMR 1500; Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Prof. Dr. Asad Aslam Khan and others v. Government of Punjab through Secretary Specialized Health Care and Medical Education Department, Civil Secretariat, Lahore and 11 others 2021 PLC (C.S.) 304; State Ex Rel. Morgan v. Knight, 245 P.267 Mont. 1926 and P. Venugopal v. Union of India 2008 5 SCC 1 ref.

(d) Punjab Local Government Act (XVIII of 2013)---

----Ss. 30(1) & 126---Elected representatives of the local government elected on 01-01-2017 under the Punjab Local Government Act, 2013 ('Act of 2013') for a period of five years---Term of office---Scope---Word 'term' mentioned in S. 30(1) of the Act of 2013 is fixed and definite in its nature---Said word has to be read with other provisions of the Act of 2013---Time for holding an office for a period of five years is not extendable by any means which would commence on a date on which the members / representative of local government hold their first meeting which in the case of the present petitioners was held on 01-01-2017 and the same would expire on 31-12-2021.

A combined reading of section 30(1) and section 126 of the Punjab Local Government Act, 2013 ('Act of 2013') makes it quite clear that if any local government is elected for a period of five years, the said period would be governed by section 30(1) of the Act of 2013 and it would start on the date when first meeting of the elected local government was held and that too is subject to other provisions of the Act of 2013 which empowers the Government to dissolve the local government under Section 126 of the Act of 2013.

In the present case admittedly the first meeting of the elected local governments under the Act of 2013 was held on 02-01-2017 in terms of Notification issued on 01-01-2017 and the term of holding office for five years started from that date which would expire after completing five years.

Admittedly, the local government constituted under the Act of 2013 was dissolved on 04-05-2019 due to promulgation of Punjab Local Government Act, 2019, but the same was restored by the Supreme Court on 25-03-2021 pursuant to which, the previous local governments were restored in terms of Notification issued on 17-10-2021 by the Local Government & Community Development(LG&CD) Department and they started performing their functions.

Asad Ali Khan and others v. Province of Punjab through Secretary Government of Punjab and others PLD 2021 SC 770 rel.

Word 'term' mentioned in Section 30(1) of the Act of 2013 is fixed and definite in its nature. For getting benefits of said term, it has to be read with other provisions of the Act of 2013 and the time for holding an office for a period of five years is not extendable by any means which would commence on a date on which the members/representative of local government hold their first meeting which in the case of the petitioners was held on 01-01-2017 and the same would expire on 31-12-2021.

Muhammad Nawazish Ali Pirzada, Advocate Supreme Court with Muhammad Abbas Azeem for the Petitioners along with Petitioner No.1.

Dr. Khalid Ranjha, Senior Advocate Supreme Court with Rana Khizer Hayat, Waseem Khalid Chatha, Malik Ahmad Faraz for Petitioner No.21.

Ashtar Ausaf Ali, Senior Advocate Supreme Court with Barrister Asad Rahim Khan and Nimra Arshad for Petitioner No.23.

Malik Muhammad Awais Khalid, Advocate Supreme Court and Sadiq Ameen Cheema for Petitioner (in connected W.P. No.55485 of 2021).

Akhtar Javed and Rai Shahid Saleem Khan, Additional Advocates General, Waqar Saeed Khan and Barrister Tayyab Jan, Assistant Advocates General with Noor ul Amin Mengal, Secretary LG&CDD, Ch. Abrar Ahmad, Director Legal and Muhammad Fahad, Law Officer, LG&CD Department for Respondents.

Imran Arif Ranjha, Legal Advisor for Election Commission of Pakistan along with Hafiz Adeel Ashraf, Legal Assistant, ECP.

P L D 2022 Lahore 833

Before Safdar Saleem Shahid, J

SAFIA BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 7155 of 2021, decided on 3rd September, 2021.

Mental Health Ordinance (VIII of 2001)---

----Preamble & S. 37---Guardian certificate of person/property of mentally disordered child---Inventory of moveable and immovable properties, furnishing of---Petitioner/widow of police officer was declared by District Court as guardian of her daughter's person and property---Pension of petitioner's husband was allegedly sanctioned and in the total amount of Rs.32,67,678/-, share to her extent (25%) was lying in the bank account---Petitioners filed two applications: first for grant of permission to withdraw Rs.20,00,000/- from Bank Account for the purpose of construction of house and for medical treatment of her disabled daughter; and second, for submission of return/financial statement---Both applications had been dismissed by District Court on ground that petitioner had failed, even after lapse of two years, to furnish an inventory of all the properties/assets received on behalf of mentally disordered daughter together with statement of all claims/debt/liabilities due without any plausible excuse, which she had to submit within a period of three months---Held, that at the time of issuing guardian certificate, Court did not pass any order regarding submission of inventory of the movable/immovable property belonging to the ward/disabled daughter---Surety required by Court through the said order was submitted by the petitioner---Court did not issue any notice to the petitioner for filing of any statement/return---Mental Health Ordinance, 2001, was purely enacted for the welfare of the disabled person---Mere word 'shall' had been used in Ordinance, 2001, without recommending any penal clause---Court was under obligation to see the intent of the legislation---Court, being guardian of the minor/disabled persons, had not only to see/supervise but to take care of the rights of the minors/disabled persons---Court had to take into account the reason/need mentioned in the application by the petitioner for withdrawal of amount---No complaint was on record against petitioner/guardian that she was not taking care of her disabled daughter's person/property---Constitutional petition was allowed and District Court was directed to entertain the inventory/statement of accounts and decide the application afresh.

Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305; Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328; State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din & sons and others 2017 SCMR 1427; Adeel Ahmad Gaba v. Special Judge Rent and another PLD 2019 Lah. 268; Messrs Wazir Khan Store and others v. United Bank Limited through Authorized Attorney 2015 CLD 1729 and Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. 2012 CLD 337 rel.

Ch. Dilshad Ahmed for Petitioner.

P L D 2022 Lahore 840

Before Jawad Hassan, J

MARRIAM BIBI and others---Petitioners

Versus

AZHAR IQBAL and others---Respondents

Writ Petition No. 359 of 2022, heard on 7th September, 2022.

(a) Family Courts Act (XXXV of 1964)---

----S. 17-A(1)(4)---Final and interim maintenance, fixation of---Duty of Family Court---Family Court to adopt objective approach and broadly look into social status of parties, earning of husband / father, his capacity to pay and most importantly, requirements of claimants while fixing the maintenance.

Section 272 of Mohammdan Law by Mullah and "HIDAYA" translated by Charles Hamilton in Chapter XV such as "Nafqa" rel.

(b) Islamic law---

----Maintenance---Scope---In Islamic law, father is under legal, moral and religious obligation to maintain his children till the age specified by law/sharia---Such obligation originates from dictates of the Holy Quran.

Al-Baqarah, 233; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another 2010 YLR 3275 and Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821 rel.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5 & 17-A(1)(4)---Maintenance, fixation of---Preconditions---Question was with regard to fixation of maintenance allowance for minor child by Family Court and maintained by Lower Appellate Court---Validity---Family Court to keep in consideration following aspects and legal requisites before passing interim and final maintenance allowance under S.17-A(1)(4) of Family Courts Act, 1964: viz: (i) basis of averments in plaint; (ii) other supporting documents on record; (iii) summoning all relevant documentary evidence; (iv) determining the estate; and (v) determining resources of the defendant---Judicial resources needed to be promptly and consistently available to litigants for core functions of fact finding, particularly when law itself was available for rescue---In all cases where occupation, job or source of income of the person was definite and identified and of such a nature remuneration, income or earnings wherefrom could be traced in a documented form then by all extent and measures, it was duty of Family Court to ascertain 'estate' and 'resources' of defendant---In all such cases where the same stood undetermined or pleadings were evasive or just formal without substantive or believable proof in such regard and by way of summoning relevant documentary evidence instead to settling with sole reliance upon pleadings / averments of parties without due application of mind and exercise of its powers specifically conferred by way of legislation---Such course was neither unusual nor was it whimsical for Family Courts to delve into relevant documentary evidence dealing with financial status of defendant to determine maintenance---High Court set aside judgments and decrees of both the Courts below to the extent of maintenance allowance of minor only and case was remanded to Family Court to decide afresh---Constitutional petition was allowed, in circumstances.

Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819; Khalid Mahmood v. Naseem Akhtar and others 2019 MLD 820; Messrs Bio-Labs Private Limited v. Province of Punjab and others PLD 2020 Lah. 565; Reliance Commodities Pvt. Ltd. v. FOP (Secretary Revenue) and others PLD 2020 Lah. 632 = 2020 PTD 1464 = (2021) 124 TAX 490; Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Muhammad Tauseeq Danial Bhatti v. Ayesha Naeem and 2 others 2021 MLD 337; Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Muhammad Shakir v. Additional District Judge, Islamabad-West and 5 others 2021 CLC 809; Dr. Aqueel Waris v. Ibrahim Aqueel Waris 2020 CLC 131; Nazia Bibi and others v. Additional District Judge, Ferozewalla and others PLD 2018 Lah. 916; Nosheen Agha and another v. Additional District Judge (West) Islamabad and another 2015 CLC 349; Shahzad Hussain v. Judge Family Court, Lahore and 2 others 2011 CLC 820; Smith (FC) (Appellant) v. Secretary of State for Work and Pensions and another (Respondents) [2006 UKHL 35] = [2006 WLR 2024] and Bowen v. Bowen"[471 So. 2d 1274 (1985); Barrister Muhammad Ahmed Pansota v. Federation of Pakistan and others PLD 2020 Lah. 229 and Hyman v. Hyman [1929] AC 601, 614 rel.

(d) Family Courts Act (XXXV of 1964)---

----S.3 & Preamble---Family Court---Mandate---Family Court so established under S. 3 of Family Courts Act, 1964 has been conferred clear mandate for expeditious settlement and disposal of family disputes and related matters as per its Preamble.

Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321 and Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 rel.

(e) Constitution of Pakistan---

----Art. 4---Rights of individuals---Dealing in accordance with law---Such practice is deep rooted in custom and usage of law and it cannot be overlooked and disregarded by any Court.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637; Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 and Mst. Yasmeen Bibi and Muhammad Ghazanfar Khan and others PLD 2016 SC 613 rel.

(f) Interpretation of statutes---

----Procedural laws---Scope---Procedural laws are enacted to advance cause of justice and not to thwart the same, which intent of law is always aimed at welfare of its subjects.

Shaukat Aziz Siddiqui, Advocate Supreme Court with Hunble Murad Siddiqui for Petitioners.

Zeeshan Munir Peracha for Respondent No.1 along with Nauman Munir Peracha, Advocate Supreme Court

Rashid Mehmood, Civil Judge 1st Class/Research Officer assisted by Barrister Aiema Asrar and Fatima Midrar, Sajid Khan Tanoli, D.A.G., Asif Ikram, Assistant Attorney General and Mirza Asif Abbas, Assistant Advocate General for Respondents.

P L D 2022 Peshawar 1

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---

----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, (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 2022 Peshawar 15

Before Shakeel Ahmad, J

BARKAT KHAN and 5 others---Petitioners

Versus

BANARAS KHAN and 10 others---Respondents

Civil Revision No. 31-A of 2013, decided on 22nd February, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 64---Suit for declaration and injunction---Relationship---Proof---DNA test report---Judgments at variance---Dispute was with regard to relationship of parties with deceased owner of suit property---DNA test report declared that parties were not cousins inter se---Suit filed by respondents/plaintiffs was dismissed by Trial Court but Lower Appellate Court decreed the same---Validity---Report of DNA could not be considered as conclusive proof to establish or discard a relationship between parties as the same was highly cryptic and weak evidence---No reliance could be placed on such report, in presence of documentary and trustworthy oral evidence produced by respondents/plaintiffs---Revisional jurisdiction of High Court under S.115, C.P.C. was invoked by petitioners/defendants and the same could not be pressed into service unless it was a case of jurisdictional defect or the judgment was result of misreading or non-reading of evidence on record---Both the Courts were at variance and conclusion drawn by Lower Appellate Court was correct and based on proper appreciation of evidence produced by both the parties---Lower Appellate Court had jurisdiction to adjudicate upon the matter brought before it and judgment rendered was based on sound reasoning---High Court in exercise of revisional jurisdiction under S.115, C.P.C. declined to interfere in judgment and decree passed by Lower Appellate Court as there was no illegality was established on record---Revision was dismissed, in circumstances.

Nazar Khan v. Mst. Hassan Begum and another 2013 MLD 913 and Mujeeb ur Rehman v. Rehana Bibi through attorney and 8 others 2020 YLR 722 ref.

Qazi Obaid-ur-Rehman and Sher Afzal Khan Jadoon for Petitioners.

Sajjad Ahmad Abbasi, Khurram Ghias Khan and Abdul Wahid Khan Jadoon for Respondents.

P L D 2022 Peshawar 22

Before Wiqar Ahmad, J

Haji MUHAJEREEN and 6 others---Petitioners

Versus

AKBAR SAID and 4 others---Respondents

Writ Petition No. 611-M of 2019, decided on 11th January, 2021.

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

----S.6---Repeal of statute---Saving of proceedings---Scope---Despite repeal of a statute remedy provided against an order passed under the statute may be continued to be dealt with under repealed law.

Province of East Pakistan v. Sharafatullah PLD 1970 SC 514; Income Tax Officer, Central Circle-II, Karachi and another v. Cement Agencies Limited PLD 1969 SC 322; Government of Punjab v. Zia Ullah Khan 1992 SCMR 602; Gul Hassan & Co. v. Allied Bank of Pakistan 1996 SCMR 237; Hakim Ali Zardari v. The State PLD 1998 SC 1; Taxation Officer/Deputy Commissioner of Income Tax, Lahore v. Messrs Rupafil Ltd. and others 2018 SCMR 1131; Muabarak Shah v. The State 1990 PCr.LJ 1796 and Sher Muhammad alias Shera v. The State PLD 1990 Kar. 271 rel.

(b) Frontier Crimes Regulations (III of 1901)---

----Reglns. 8 & 55-A---Withdrawal of proceedings under Frontier Crimes Regulations, 1901 (FCR)---Petitioners sought restoration of disputed property---Decision of Jirga was maintained by Federally Administered Tribal Areas Tribunal---Validity---Petitioners had rightly made a request for withdrawal of their application initially filed before Assistant Political Agent whereby they had submitted their claim before the then existing adjudication forum available under the erstwhile regime of FCR---Petitioners sought permission to file fresh suit before competent civil Court established in the area---High Court entertained verbal request of petitioners in peculiar circumstances of the case---Application before Assistant Political Agent was a simple application which was not capable of being proceeded as a plaint before a civil Court---Even if that application was placed before Civil Court for adjudication, the same was bound to fail for having formal defects---Sufficient grounds existed to allow petitioners to withdraw their application with permission to file fresh suit before competent Civil Court for redressal of their grievances---High Court set aside order passed by Federally Administered Tribal Areas Tribunal---Constitutional petition was allowed accordingly.

Ghulam Mohy-ud-Din Malik and Saleem Zada for Petitioners.

Sher Muhammad Khan for Respondents.

P L D 2022 Peshawar 29

Before Musarrat Hilali and Syed Arshad Ali, JJ

UMAIR KALEEM and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Health Department and others---Respondents

Writ Petition No. 2130-P of 2019, decided on 1st July, 2021.

Khyber Pakhtunkhwa Faculty of Paramedical and Allied Health Sciences Act (XXII of 2016)---

----S. 4(j), (n) & (v)---Medical faculty---Powers---"Dental Surgical Assistant" and "Dental Technician"---Distinction---Petitioners were students of Dental Technician Diploma who were aggrieved of introduction of new curriculum of Dental Surgical Assistant---Validity---Dental Technician and Dental Surgical Assistant were different to each other---Job profile of a Dental Technician was to construct and repair dental devices such as denture, bridges, crowns and artificial teeth with job description to work in various dental laboratories like Prosthodontics Lab, Ceramics Lab and Orthodontics Lab---Dental technician was not allowed to treat a patient while job profile of Dental Surgical Assistant was to assist in pre-surgical care and also provide assistance to a Dental Surgeon during the process of surgery---Dental Surgical Assistant could not examine, advice or treat a patient---Functions to be performed by Dental Surgical Assistant and Dental Technician were totally distinct and there could be no comparison between the two---Worries that diploma of Dental Surgical Assistant would affect rights of petitioners in the matter of employment were based on assumption only---Constitutional petition was dismissed, in circumstances.

PLD 2007 SC 386 rel.

Abdul Rahim Khan Jadoon for Petitioners.

Zartaj Anwar Khan and Kamran Murtaza, A.A.G. for Respondents.

P L D 2022 Peshawar 33

Before Muhammad Naeem Anwar, J

ZARMASH and others---Petitioners

Versus

Haji NAEEM SHAH---Respondent

Civil Revision No. 1000-P of 2019 with C.Ms. Nos.1252-P of 2019 and 213-P of 2021, decided on 30th March, 2021.

Frontier Crimes Regulations (III of 1901)---

----S. 8---Civil Procedure Code (V of 1908), S.47---Declaration of title---Jirga decision---Executing Court---Jurisdiction---Petitioners claimed that suit land was decided in their favour but Assistant Political Agent during its implementation/execution could not determine as to who was the owner of property in question---Validity---Court executing a decree could not go beyond decree and was required to execute decree as it was---Court had no jurisdiction under the provision of Civil Procedure Code, 1908, to broaden its scope---Court under S.47, C.P.C. was empowered to deal with events subsequent to issuance of decree and had to decide all questions arising out between the parties to the suit in which decree was passed when such question related to execution, discharge or satisfaction of decree---Executing Court was not empowered to bring about changes in the rights and obligations of parties that had already been determined by decree---Decree was to be executed in spirit of its terms and conditions and not in derogation thereof---High Court set aside observations/findings of Executing Court/Assistant Political Agent with regard to ownership of land---Revision was allowed accordingly.

Allah Ditta's case 2003 SCMR 1202 and Province of Punjab through Collector, Bahawalpur v. Ghulam Rasool and others 1990 SCMR 1106 rel.

Muhammad Javed Yousafzai for Petitioners.

Muhammad Ijaz Khan Sabi for Respondent.

P L D 2022 Peshawar 39

Before Wiqar Ahmad, J

BAHADAR HILAL---Petitioner

Versus

ANWAR HAYAT through Legal Heirs and others---Respondents

Civil Revision No. 681-P with C.M. 1030 of 2021, Civil Revision No.682-P with C.M. No.1032 of 2021, decided on 12th August, 2021.

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

----O. XLV, R. 15---Limitation Act (IX of 1908), S. 3 & Art. 181---Execution---Objection petition---Limitation period, commencement of---Deeming clause---Appeal allowed by Supreme Court---Decree holders filed application for execution---Objections of Petitioners/judgment debtors thereagainst were dismissed by Civil Court, District Court and High Court---Petitioner contended that such applications could not be maintained as it had not been filed after getting authorization from High Court as required under O. XLV, R. 15 of Code of Civil Procedure, and that limitation was to commence from authorisation in terms of said Rule---Validity---While disposing of the earlier objection of petitioner, High Court had employed a deeming clause for validating the two applications from the date of its filing---Same had been ordered to be deemed to have been sent to the executing Court for execution under R. 15 of O. XLV of C.P.C.---When time could be relaxed (under S.14 of the Limitation Act, 1908) on the ground of pursuing a remedy before a wrong forum, then an action initiated before a competent Court of law but suffering from some technical defect might easily be considered to be proceedings valid for the purpose of counting the period of limitation---Irregularity could not come in the way of counting the period of limitation---Application for execution filed directly before civil Court could not be considered to be totally non est and non-considerable for the purpose of determining the question of limitation---Execution applications filed without compliance of the provision of O. XLV, R. 15, C.P.C. to be taken as sufficient for the purpose of bringing the pending proceedings within the prescribed period of limitation---Revision petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 187 & 190---Judgment, implementation of---Execution---Deeming clause---Scope---High Court under Art.187 of the Constitution was duty bound and it was the duty of executing Court under Art. 190 of the Constitution to ensure implementation of judgment of Supreme Court---Deeming clause had been introduced with the aim to consider filing of the applications for execution before the executing Court as valid and according to law.

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

----O. XLV, R. 15---Consequences of not following the provision of R.15, O. XLV of Civil Procedure Code, 1908 had not been provided in the law---Consequences could not be taken to the effect of nullifying the judgment of Supreme Court---Such provision had been enabling and directory in nature and not mandatory for the reason that no consequences have been provided---Word "shall" had been used in R. 15, O. XLV of Civil Procedure Code, 1908 but "shall" had not always been carrying the implication that it had been intended to be used as mandatory in all eventualities---Non-compliance of the said Rule could not render the application for execution non est to the extent that it could not even be considered for stopping the period of limitation.

Understanding Statutes authored by S.M. Zafar ref.

(d) Interpretation of statutes---

----Intention of legislature---Word "Shall" and "May" might be considered interchangeably while determining the intention of legislature.

Ghulam Qadir v. Deputy Commissioner and others 1984 SCMR 493; Majid Bukhari v. The State PLD 2000 Lah. 108 and Qamaruddin v. Muhammad Sadiq and others 2001 CLC 848 rel.

Shah Salam Khan for Petitioner.

Date of hearing: 12th August, 2021.

CONSOLIDATED JUDGMENT

WIQAR AHMAD, J.---Through this single judgment, I intend to dispose of the instant civil revision as well as the connected Civil Revision No. 682-P of 2021, as common questions of law are involved in both the petitions.

1. Initially, Mst. Mehr-un-Nisa (predecessor-in-interest of the respondents) had filed a declaratory suit in the Court of Additional Deputy Commissioner, Swat on 20.08.1992 under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation 1975 (hereinafter referred to as "Regulation"), against the present petitioner and other defendants. The suit was then referred to civil Court after the Regulation was declared ultra vires. It was partially decreed by the learned Senior Civil Judge, Swat vide his order dated 29.11.2000, which order had been maintained upto this Court. Feeling aggrieved of judgment of this Court dated 22.11.2006, respondents filed Civil Appeal No. 1214 of 2007 before the Hon'ble Supreme Court of Pakistan, which was allowed vide order dated 12.11.2015. Thereafter, decree-holder filed an application for execution of judgment and decree of the Hon'ble Supreme Court of Pakistan, which was objected by the judgment-debtor (petitioner herein). His objections were dismissed by the learned civil Court vide its order dated 09.01.2019, which order was also maintained by the learned appellate Court vide its judgment dated 21.09.2020. Petitioner had thereafter invoked constitutional jurisdiction of this Court by filing writ petitions, which has been disposed of vide consolidated judgment of this Court dated 18.01.2021 in the following manner;

"In light of what has been discussed above, both the writ petitions as well as C.M. No. 1807-M of 2020 are disposed of with the direction that judgment and decree in both the cases shall be deemed to have been sent to the learned executing Court for execution under Rule 15 of Order XLV, C.P.C. The learned executing Court shall try its best to ensure swift and due execution of the judgment of Hon'ble Supreme Court of Pakistan."

1. Thereafter, petitioner/judgment-debtor filed another objection petition before the learned civil Court by contending that the execution petition filed by the decree-holder had been time barred and liable to be dismissed. The learned civil Court vide its order dated 01.04.2021 held that the execution petition had been filed well within time and accordingly dismissed the objection petition of petitioner. Appeal filed there-against was also dismissed by the learned Additional District Judge-III, Swat vide his order dated 29.06.2021. Feeling aggrieved there-from, petitioner has filed the instant civil revision with the following prayer;

"It is respectfully prayed that this revision petition may please be accepted and the impugned order and judgment of the appellate Court dated 29.06.2021 in Civil Appeal No.61/13 of 2021, and order and judgment of the trial Court dated 01.04.2021 in Case No. 8/10 of 2017 titled as "Anwar Hayat etc. v. Bahadar Hilal etc." may please be set aside and the execution petition of respondents may please be dismissed as time barred.

Any other relief which this Hon'ble Court deems fit and proper may also be granted in favour of the petitioner."

1. Arguments heard and record perused.

2. Perusal of record reveals that the decree under execution had been passed by the Hon'ble Supreme Court of Pakistan on 12.11.2015. Some of the decree-holders filed application for its execution on 13.02.2017 while others filed it on 27.02.2017. Said applications have admittedly been filed within the prescribed period of limitation of 03 years provided by Article 181 of the Limitation Act, 1908 (hereinafter referred to as the "Limitation Act"). Learned counsel for petitioner has been arguing that filing of such applications should be ignored as it had not been filed after getting authorization from this Court as required under Order XLV Rule 15 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C."). He also argued that the period of limitation should be counted from the date when such authorization had been accorded by this Court vide its order dated 18.01.2021 passed in W.P No. 1113-M of 2020. This Court while dealing with earlier objection of the petitioner made on the execution petitions, has inter-alia held;

"In the case in hand, it is apparent that both the petitions have been arising out of execution of one and the same judgment of Hon'ble Supreme Court of Pakistan in respect of which judgment as well as decree-sheet of the Hon'ble Court has been available before this Court. Objection of petitioner, if any, stands removed. When the matter has come in notice of this Court, it would not allow the petitioner to evade execution of the decree in either of the execution petitions just for the reason that one of the decree-holder had not filed any application for sending the same to the learned civil Court. It is solemn duty of this Court as well as all the authorities functioning in State to ensure compliance of judgment of the Hon'ble Supreme Court of Pakistan according to Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"). This Court has also jurisdiction to execute or order execution of any judgment, decree or order of Hon'ble Supreme Court of Pakistan under Article 187 of the Constitution. It is also duty of petitioner to submit to the dictates of law and not to hinder the process of execution of judgment and decree of the Hon'ble Supreme Court of Pakistan. Obedience to law and the Constitution is inviolable obligation of every citizen including the petitioner as per text of Article 5 of the Constitution. Petitioner should also realize his duty as citizen of the State and he should submit to the dictates of law and the Constitution. Such a duty would inter-alia require compliance of judgment and decree of the Hon'ble Supreme Court of Pakistan as well as all valid orders of learned executing Court."

It was further held that judgments and decrees in both the cases ("Anwar Hayat and others v. Bahadar Hilal and others" and "Shaukat Hayat v. Bahadar Hilal and others") would be deemed to have been sent to the learned executing Court for execution under Rule 15 of Order XLV, C.P.C. The subsequent objection relating to the execution being time barred, has not been holding any water and same has rightly been dismissed by the two Courts below. It needs mention here that the objector has filed a lengthy objection petition before the learned executing Court but the learned counsel for petitioner has restricted his arguments to the question of limitation not only before this Court but before the two foras below also. While disposing of the earlier objection of petitioner, this Court had employed a deeming clause for validating the two applications from the date of its filing. After realizing that it had been duty of this Court under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") and the duty of the learned executing Court under Article 190 of the Constitution to ensure implementation of judgment of the Hon'ble Supreme Court of Pakistan, this Court had employed a deeming clause for validating the already filed execution petitions. As a result, same had been ordered to be deemed to have been sent to the learned executing Court for execution under Rule 15 of Order XLV, C.P.C. Such deeming clause had been introduced with the aim to consider filing of the applications for execution before the learned executing Court as valid and according to law. Thereafter, raising of the second objection had therefore been nothing more than another attempt to frustrate the judgment and decree of the Hon'ble Supreme Court of Pakistan and to deny the decree-holders their declared rights.

1. The decree-holders had filed applications for execution of the decree well in time. Even if there was any defect in its initial filing, same stood rectified with order dated 18.01.2021 of this Court. Even otherwise, consequences of not following the provision of Rule 15 of Order XLV, C.P.C. have not been provided. Its consequences cannot be taken to the effect of nullifying the judgment of Hon'ble Supreme Court of Pakistan. Such provision has been enabling in nature as well as directory and not mandatory for the reason that no consequences have been provided. The word "shall" has no doubt been used in the rule but this word has not always been carrying the implication that it has been intended to be used as mandatory in all eventualities. A part from Understanding Statutes authored by Mr. S.M. Zafar would be beneficial to be reproduced hereunder regarding the fact as to when the word "shall" may be construed as permissive;

"The word "shall" may be construed as merely permissive, where the language of the statute as a whole, and its nature and object, indicate that such was the legislative intent, and where no public benefit or private right requires it to be given an imperative meaning. Where a statute makes that legal and possible which otherwise there would be no authority to do, it will be construed as permissive only, although using the word "shall". It is also a general rule that the word "shall" when used by legislature in a grant of authority to a Court, means "may" and that the use of the word "shall" in a statute directing a Court to determine certain matters does not necessarily confine such power to that tribunal. It has been held that, as against the government, the word "shall" is to be construed as "may" unless an intent to the contrary is manifest. The word "shall" must also be construed as permissive when the statute thereby can be upheld, if a construction to the contrary would render it unconstitutional. Even the word "must" may be construed to be merely directory where, from the construction of entire statute and the object to be accomplished by it, such appears to have been the intention of the legislature, but it will not be so construed where the context shows that it was used in a mandatory sense."

Similarly, Hon'ble the Supreme Court of Pakistan in case Ghulam Qadir v. Deputy Commissioner and others reported as 1984 SCMR 493 has also elucidated that the words "Shall" and "May" might be considered interchangeably while determining the intention of legislature. Relevant findings in this respect, given in said judgment, are reproduced here for ready reference;

"Though in general sense the word "may" gives an impression of its being enabling or discretional, and the word "shall" as obligatory, yet the connotation is not inelastic and inviolate. Cases are not wanting where the words "may", "shall" and "must" are used interchangeably. Accordingly, in order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the Legislature is the guiding factor. But this much is a settled proposition that where if, positive direction is given as in the instant case, the use of the word "may" has a connotation of compulsion or obligation."

Similarly, Hon'ble Lahore High Court in the case Majid Bukhari v. The State reported as PLD 2000 Lahore 108 has also recorded the following observations on the basis of the existing case law;

P L D 2022 Peshawar 46

Before Muhammad Nasir Mahfooz and Syed Arshad Ali, JJ

STATE BANK OF PAKISTAN through Chief Manager, Peshawar---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defense, Rawalpindi and 5 others---Respondents

Writ Petition No. 5668-P of 2018, decided on 10th December, 2020.

(a) Cantonments Act (II of 1924)---

----S. 60---State Bank of Pakistan Act (XXXIII of 1956), Ss. 3, 4, 8A, 9A, 9B, 24 & 49---Constitution of Pakistan, Arts. 199 & 165---Constitutional petition---General power of taxation---Exemption of certain public property from taxation---Scope---Petitioner challenged the jurisdiction and authority of the respondents in levying property tax on the petitioner---Validity---Perusal of Preamble, Ss. 3, 4, 8A, 9A & 9B of State Bank of Pakistan Act, 1956 (Act, 1956), revealed that the petitioner, indeed, had a monopoly in the field for which it was established---Case of the petitioner was complimented by the provisions of S. 24 of the Act, 1956, which empowered the petitioner organization with the sole right to issue bank notes---Section 49 of the Act, 1956, related to the exemption from taxes and provided that notwithstanding anything in any law for the time being in force relating to wealth tax, income tax or super tax the Bank and any subsidiary, or trust, established by it shall not be liable to pay wealth tax, income tax or super-tax on their income or wealth---Petitioner was performing the sovereign functions of the Federal Government and thus was only the ostensible owner of the disputed property and its title indeed vested in the Federal Government, therefore, the respondent-Cantonment Board as well as the Provincial Legislature had no authority to levy and demand property tax from the petitioner organization---Notices/challan forms laying a demand for payment of property tax from the petitioner were held to be without lawful authority and of no legal effect.

Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and Central Board of Revenue and another v. S.I.T.E. PLD 1985 SC 97 rel.

(b) Cantonments Act (II of 1924)---

----Ss. 60 & 277---Constitution of Pakistan, Art. 199---Constitutional petition---General power of taxation---Revision---Alternate remedy, availability of---Scope---Petitioner challenged the jurisdiction and authority of the authorities in levying property tax on the petitioner---Respondents raised objections in respect of the alternate remedy being available under S. 277 of the Cantonments Act, 1924---Held; petitioner had challenged the very authority of the respondents to issue challans to the petitioner pertaining to property tax, therefore, the rule that the High Court would not entertain Constitutional petition when other appropriate remedy was available was not a rule of law barring jurisdiction but a rule by which the Court regulated its jurisdiction---If the impugned orders/actions were without lawful authority or violative of some law then the High Court could exercise its constitutional jurisdiction unless it could do so without any elaborate enquiry into complicated or disputed facts.

The Murree Brewery Co. Ltd v. Pakistan through Secretary to Government of Pakistan and 2 others PLD 1972 SCMR 279; Mrs. Razia Begum v. Cantonment Board Clift and another 2000 YLR 2114 and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395 ref.

(c) Cantonments Act (II of 1924)---

----Ss. 11, 60 & 99---Cantonment Board---General power of taxation---Exemption in the case of buildings---Scope---Cantonment Board(s) established under S. 11 of the Cantonments Act, 1924, have been empowered under S. 60 that it may, with the previous sanction of the Federal Government, impose in any cantonment any tax which, under any enactment for the time being in force, may be imposed in any municipality in the Province wherein such cantonment is situated---Section 99(2) provides for exemption of certain buildings and lands from any tax on property other than a tax imposed to cover the cost of specific services rendered by the Board.

(d) Khyber Pakhtunkhwa Urban Immovable Property Tax Act (V of 1958)---

----Ss. 3 & 3A---Constitution of Pakistan, Arts. 165, 70, Fourth Sched. Part I, Entry No. 50---Levy of tax---Shares of Cantonment Boards in the Tax---Exemption of certain public property from taxation---Scope---Section 3 of the Khyber Pakhtunkhwa Urban Immovable Property Tax Act, 1958, states that the Government may by notification specify urban areas where tax shall be levied under the Act, however, S. 3A provides that out of the tax collected under the Act from within the limits of a Cantonment Board, the Provincial Government shall, after retaining five percent, thereto as collection charges, pay fifty percent of the balance to such Cantonment Board---Entry No. 50 of the Part-I of the Fourth Sched. of the Constitution further revealed that while it is the domain of the Federal Legislature to legislate on matters pertaining to taxes on the capital value of the assets, but the same does not include taxes on immovable property---Subject of taxation on immoveable property is a purely provincial subject with the provincial legislature being the competent body to legislate on the subject matter, however, perusal of provisions of the Act coupled with the provisions of Art. 165 of the Constitution it emerges that though it is only the Federal Legislature that has the power to legislate in respect of Cantonment Area(s), but in respect of collection of property tax a mechanism has been provided in S. 3-A of the Act and as such the Cantonment Board is empowered to collect such property tax.

(e) Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order (No. 13 of 1979)---

----Art. 3---Constitution of Pakistan, Art. 70, Fourth Sched. Part I, Entry No. 50---Urban immovable property tax to cease to be leviable in cantonments---Scope---Vide Presidential Order No. 13 of 1979, the then competent authority CMLA (Chief Martial Law Administrator) had promulgated the Cantonments (Urban Immoveable Property Tax and Entertainments Duty) Order, 1979---Under Art. 3 of the Order, the immoveable property tax leviable under the West Pakistan Urban Immoveable Property Tax Act, 1958, had ceased to be leviable in the Cantonment and the Cantonment Board was given the power and mandate to collect the said tax---Said Order was issued during the time when the Constitution was under eclipse and on the restoration of Constitution and in view of Entry No. 50 of the Part-1 of the Fourth Schedule of the Constitution, which was later amended through the 18th Constitutional Amendment, the Parliament has no power to impose any tax on immoveable property---Cantonments (Urban Immovable Property Tax and Entertainment Duty) Order, 1979 has to be read down as it cannot stand with the explicit mandate of the Constitution.

(f) Constitution of Pakistan---

----Art. 165---Exemption of certain public property from taxation---Lifting the veil of incorporation---Scope---For the Court(s) to make use of the doctrine of lifting the veil of incorporation, there must exist justifiable reasons to ascertain the real ownership and control of a corporation for the purpose of Art. 165 of the Constitution.

Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468; Water and Power Development Authority through General Manager and Project Director and another v. Administrator District Council Swabi and 5 others 2005 SCMR 487; Central Board of Revenue Islamabad and another v. WAPDA and another PLD 2014 SC 766 and Province of N.-W.F.P. through Secretary, Local Government And Rural Development, Peshawar v. Pakistan Telecommunication Corporation through Chairman and others PLD 2005 SC 670 rel.

(g) Constitution of Pakistan---

----Art. 165---Exemption of certain public property from taxation---Lifting the veil of incorporation---Scope---Corporation or instrumentality of the Federal Government having a monopoly in the area of its operation being solely performing sovereign functions of the State, will be deemed a department of the Government and hence entitled to the exemption under Art. 165 of the Constitution from payment of property tax---Similarly, the Court(s) would resort to the doctrine of lifting the veil of incorporation in the case of a corporation whose entire shareholding is owned by Federal Government whereas a corporation which is not wholly owned by the Federal Government and part of the shareholding vests in other entities and persons as well, will not be extended the benefit of Art. 165 of the Constitution---Court(s) have extended the benefit of Art. 165 of the Constitution to property owned directly by the Federal Government but the said benefit has also been extended to properties owned by the Federal Government through its instrumentalities and body corporates, however, a Government Corporation conducting commercial activities in the normal course of business and competing with similar entities have not been given the benefit of Art. 165 for seeking exemption from property tax.

Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468; Water and Power Development Authority through General Manager and Project Director and another v. Administrator District Council Swabi and 5 others 2005 SCMR 487; Central Board of Revenue Islamabad and another v. WAPDA and another PLD 2014 SC 766 and Province of N.-W.F.P. through Secretary, Local Government And Rural Development, Peshawar v. Pakistan Telecommunication Corporation through Chairman and others PLD 2005 SC 670 rel.

Muhammad Salman Ajaib for Petitioner.

Saifur Rehman Khattak, AAG (F) for Respondent No. 1.

Ihsanullah for Cantonment Board.

P L D 2022 Peshawar 68

Before Rooh-ul-Amin Khan and S. M. Attique Shah, JJ

Professor Dr. IFTIKHAR AHMAD---Petitioner

Versus

GOVERNOR KHYBER PAKHTUNKHWA through Principal Secretary and 2 others---Respondents

Writ Petition No. 1987-P of 2021, decided on 22nd September, 2021.

Khyber Pakhtunkhwa Universities Act (X of 2012)---

----S. 12(8)---Constitution of Pakistan, Art. 199---Constitutional petition--- Forced leave--- Misconduct--- Petitioner was ex-Vice Chancellor of Gomal University D.I. Khan, who criticized converting agriculture department of the University into Agriculture University D.I. Khan---Petitioner wrote a letter to Prime Minister pinpointing defects in the decision of provincial cabinet with regard establishing Agriculture University---Governor in his capacity of Chancellor of the University vide notification in question had sent petitioner on forced leave---Validity---Notification in question whereby petitioner was sent on 'forced leave' was issued by competent authority within its statutory domain to which no exception could be taken---Establishment of universities more particularly in technical and professional field was need of the day---Provincial Government was fully empowered to create and establish university through amendment in Khyber Pakhtunkhwa Universities Act, 2012, which exercise had been done by Provincial Government in accordance with its Constitutional powers by inserting University of Agriculture D.I. Khan at S.No.21 in Sched.-I to Khyber Pakhtunkhwa Universities (Amendment) Act, 2018, such act of government was not amenable to Constitutional jurisdiction of High Court---Gomal University was established having a complete autonomous status under Khyber Pakhtunkhwa Universities Act, 2012, without being subject to Government control and free in discharging its function---Autonomy guaranteed to the University was hallmark of the Legislature---Immovable property was ownership of Gomal University D.I. Khan and could not be distributed, acquired or alienated by any authority without permission / assent / approval of the Syndicate of the University---All demands and proceedings regarding transfer and distribution of assets of Gomal University D.I. Khan to newly established Agriculture University of D.I. Khan was without lawful authority and jurisdiction and was set aside---Provincial Government or Higher Education Department could approach through its Vice-Chancellor for lending or transferring of any property to the newly established University of Agriculture D.I. Khan---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Prof. Dr. Naushad Khan v. Government of Khyber Pakhtunkhwa through Secretary Higher Education Archives and Libraries, Department and others W.P. No.4944-P of 2020 and Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 ref.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Petitioner.

Shumail Ahmad Butt, Advocate General and Barrister Babar Shehzad, A.A.G. for Respondents.

P L D 2022 Peshawar 83

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

AKBAR KHAN and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

Writ Petition No. 1393-M of 2019 with Interim Relief, decided on 31st March, 2021.

(a) Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (III of 2019)---

----S.3---Settlement of Disputes of Immovable Property (Chitral) Regulation (III of 1974), Para. 10---Constitution of Pakistan, Arts.199 & 247 [as omitted by Constitution (Twenty-Fifth Amendment) Act, 2018]---Constitutional petition---Reading down, doctrine of---Applicability---Factual controversy---Civil Court, jurisdiction of---Absence of saving clause---Effect---Dispute was with regard to rights of parties for grazing their animals in State owned pastures---Plea raised by petitioners was jurisdiction of Civil Courts was barred under paragraph 10 of Settlement of Disputes of Immovable Property (Chitral) Regulation (III of 1974)--- Validity---Provision of Art. 247 of the Constitution was omitted from the Constitution vide Constitution (Twenty-Fifth Amendment) Act, 2018, without providing any savings---As a result thereof all Regulations issued under Art. 247 of the Constitution by President or Governor with the previous assent of the President, stood repealed---If Parliament, while performing its constituent function at the time of enacting Constitution (Twenty-Fifth Amendment) Act, 2018, intended to give continuity to erstwhile regime, the Parliament would have provided for a saving clause while repealing Art. 247 of the Constitution---By not doing so intention of Legislatures was that they wanted to extend regular legal regime as prevalent in rest of the country to newly merged Districts forming part of Federally Administered Tribal Areas and Provincially Administered Tribal Areas and they wanted to do away with tribal status of all such areas and wanted to include them in main-stream---High Court employed instrumentality of reading down for the purpose of avoiding to strike down the statute in its entirety, so as the statute could remain functional in giving continuity to those laws which were not in conflict of Constitutional provisions or militate against separation and independence of judiciary---High Court read down provision of S.3 of Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 to the extent it would give continuity to Settlement of Disputes of Immovable Property (Chitral) Regulation III of 1974---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter as alternate remedy before Civil Court was available to petitioners---Constitutional petition was dismissed, in circumstances.

Gula Jan v. Jan Wali PLD 2020 Pesh. 25; 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; Att.-Gen. v. Prince Ernest Augustus of Hanover [(1957) A.C. 436; Maxwell on The Interpretation of Statutes Twelfth Edition; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1997 SC 84; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; PLD 1963 SC 382; PLD 1965 SC 671; PLD 1990 SC 1051; Suo Motu Case No.13 of 2007, H.R.C. Nos. 2722, 3181, 3774 of 2007 and 1718 of 2006, decided on 10th November 2008 PLD 2009 SC 217 and Messrs Ahmad Developers v. Muhammad Saleh and others 2010 SCMR 1057 ref.

(b) Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018 (III of 2019)---

----S. 3---Continuation of laws---Scope---Through a non-obstante clause of S.3 of Khyber Pakhtunkhwa Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, the Provincial Legislature may give overriding effect to a newly enacted law over other Provincial Statutes but it cannot give an overriding effect to a Provincial law over a constitutional provision---Provincial law cannot override a Constitutional provision nor can be deemed to be having the effect of nullifying a Constitutional amendment in letter or in spirit.

Muhammad Ikram Khan for Petitioners.

Razauddin Khan, Addl:A.G. for the Official Respondents.

Rahimullah Chitrali for the Private Respondents.

P L D 2022 Peshawar 100

Before Waqar Ahmad Seth, C.J. and Musarrat Hilali, J

Raja MUHAMMAD ZUBAIR and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

Writ Petition No. 743 of 2018, decided on 24th July, 2018.

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

----S.230---Care-taker Government, functions/ powers of---Scope---Provincial Law Officers---Removal from service by Provincial Caretaker Government---Legality---Caretaker Government of the Province removed the petitioners from their services (as law officers) vide notifications without any notice, and appointed the respondents on such vacancies on the same date---Question in the present case was whether S.230 of Elections Act, 2017, gave unfettered powers to Caretaker Government for removing/terminating a permanent/contractual employee---Held, that Caretaker Government would enjoy limited powers of administrative continuity within available resources while preventing any major decision from being taken---Petitioners were removed from their seats without assigning any reason and appointed respondents on same date while two of the Additional Advocate Generals were retained---Emergency/short-term appointments had to be made as to temporarily fill vacancies when department had an emergency and such vacancies were not expected to be filled immediately in prescribed manner---Caretaker Government was not vested with power of removal/dismissal/termination/reduction in rank---Removing the petitioners from their respective offices was mala fide exercise of powers and was contrary to the mandate of the statute---High Court allowed the Constitutional petition declaring impugned Notifications void ab-initio and non est in eye of law.

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

----S. 230---Caretaker Government, powers of---Scope---Section 230 of Elections Act, 2017 empowers a Caretaker Government only to execute the routine functions of Government making sure that the country does not come to a standstill position in the time between dissolution of the Parliament till the new elected Government is formed.

Sardar Nasir Aslam, Sardar Aman Khan and Syed Sikandar Hayat Shah for Petitioners.

Abdul Samad Khan, Advocate General, Khyber Pakhtunkhwa for Respondents.

P L D 2022 Peshawar 105

Before Rooh-ul-Amin Khan and Muhammad Nasir Mehfooz, JJ

AKHTAR ULLAH KHAN KHATTAK---Petitioner

Versus

COLLECTOR LAND ACQUISITION, NOWSHERA and 6 others---Respondents

Writ Petition No. 5567-P of 2019, decided on 10th June, 2021.

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

----S. 48---Completion of acquisition not compulsory, but compensation to be awarded where not completed---Scope---Acquired land of the petitioners was in possession of the Acquiring Agency since 1955, on the basis of lease for the same purpose as mentioned in the award---Subsequently, notification under S. 4 of the Land Acquisition Act, 1894, was issued in the year 1977 and finally the award was announced in the year 1999---Acquired land had remained in possession of the acquiring agency for about 66 years but the petitioners were not given compensation---Ultimately, impugned de-notification within the meaning of S. 48 of the Land Acquisition Act, 1894, was issued---Validity---Provisions of S. 48 were intended to vest powers in the Land Acquisition Collector to withdraw from acquisition of the land of which possession was not yet taken---Collector, after taking possession was functus officio in the matter of acquisition and any action taken thereafter amounted to departure and deviation from the scheme of the Land Acquisition Act, 1894---Impugned de-notification had no legal backing except that the acquiring department was not able to pay the compensation amount to the landowners due to financial crisis, that too, after a long period of more than 65 years---Constitutional petitions were allowed and the impugned de-notification was struck down, in circumstances.

Messrs Dewan Salman Fiber Ltd and others v. Government of N.-W.F.P. through Secretary, Revenue Department, Peshawar and others PLD 2004 SC 441 and Muhammad Sultan Khan v. Deputy Director Works 2015 CLC 1353 rel.

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

----Ss. 48, 4, 5-A, 6 & 9---Completion of acquisition not compulsory, but compensation to be awarded where not completed---Scope---Section 48 empowers the Government to unilaterally withdraw from the acquisition of any land, but this power is not absolute rather subject to the condition that such powers can only be exercised when possession of the land has not been taken by the Government or acquiring department of the Government---Scheme of the Land Acquisition Act, 1894, provides a complete and exhaustive mechanism for compulsory acquisition of any land required for public purpose---Land Acquisition Act, 1894 has acknowledged certain rights of the land owners, like, after issuance of the notification under S. 4 of the Act the owners have the right to file objection under S. 5-A of the Act, merit of which and need for exclusion of the land from acquisition, are considered by the Land Acquisition Collector and then declaration under S. 6 of the Act is notified---Again, notice under S. 9 of the Act, is to be given to all the owners or persons interested, showing intention of the Government about taking possession of the land---Land Acquisition Collector having applied its mind to all facets of the acquisition, finally makes an award---In the above scheme of the Act, the owners are neither vested with any right to refuse or damage the required property nor at any stage can demand for return or de-notification of the land in their favour.

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

----S. 48---Completion of acquisition not compulsory, but compensation to be awarded where not completed---Scope---Whenever the Land Acquisition Collector intends to exercise powers of withdrawal from any acquisition, he shall determine the amount of compensation due for the damage suffered by the land owners in consequence of the notice or of any proceedings thereunder and shall pay such amount to the person(s) interested together with all costs reasonably incurred in the prosecution of the proceedings under the Act, relating to the acquired land---Bare reading of S. 48 of the Act will make it abundantly clear that the Land Acquisition Collector has no authority or power to withdraw from acquisition after taking possession of the land.

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

----S. 48---Completion of acquisition not compulsory, but compensation to be awarded where not completed---Scope---Powers granted to the Land Acquisition Collector under S. 48 come to an end on taking the possession of the land.

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

----S. 48---North-West Frontier Province Revenue Circular No. 54, Para. 66---Completion of acquisition not compulsory, but compensation to be awarded where not completed---Scope---Para-66(1)(2)(3) of North-West Frontier Province Revenue Circular No.54, provides a proper mechanism regarding return of agricultural or pastoral land permanently acquired for public purposes by the Government when the same is no longer required for such purpose, however, it does not speak about de-notification of the acquired land---How such land is to be disposed off in different situations, has been categorically mentioned in sub-para 3 of Para 66, of the Circular according to which, firstly, such land is to be offered to the original owners or their heirs then to the owners or occupiers of the adjoining land; and finally to others, that too, in a situation when the compensation has already been paid to the land owners in lieu of acquisition---Before invoking the provisions of Para 66, the Acquiring Department after payment of compensation to the land owners from whom the property had been compulsorily acquired shall become the owner of the land and in case the acquired land is no longer required, the Acquiring Department can invoke the provision of Para 66, but after payment of compensation amount determined by the court as provided in Paras 26 & 27 of the Circular.

Muhammad Yasir Khattak and Gulzar Ahmad Khan for Petitioners.

Shomail Ahmad Butt, Advocate-General, Aamir Javed, D.A.G. and Nasir Mehmood for Respondents.

P L D 2022 Peshawar 118

Before Lal Jan Khattak and Musarrat Hilali, JJ

REVEREND JIMMY MATHEW---Petitioners

Versus

BISHOP PETERS and others---Respondents

Writ Petition No. 3769-P of 2020, decided on 7th December, 2021.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Maintainability---Office of Bishop falls within the definition of public office falling within the ambit of Art. 199(1)(b)(ii) of the Constitution.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Limited, Tokht Bhai and 10 others PLD 1975 SC 244 rel.

(b) Constitution of the Church of Pakistan---

----Chaps. IX & XVI, Art.4---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto, writ of---Bishop, appointment of---Principle---Petitioner assailed appointment of respondent as Bishop of Dioceses of Peshawar by Church of Pakistan---Validity---High Court could exercise its Constitutional jurisdiction in a matter of such nature only when appointment in question was contrary to statutory rules at the outset---It was required to be determined as to whether a case had been made out for issuance of a writ of quo warranto---Matter pertained to Church which was an independent entity not falling within the meaning of a person or entity performing function of Federation, Province or Legal Authority rather was regulated by their own independent rules and law as provided by Constitution of the Church of Pakistan---High Court declined to issue any writ to a private person, legal entity, authority, body corporate, who was not performing functions in connection with the affairs of Federation, a Province or Local Authority---Constitutional petition was dismissed, in circumstances.

Ms. Raheema Khan for Petitioners.

Ali Gohar Durrani, Shoukat Ghulam and Arshad Ahmad, Addl. A.G for Respondents.

P L D 2022 Peshawar 122

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

ZIA ULLAH KHAN and 5 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Interior and others---Respondents

W.P. No.564-M of 2021 with interim relief, decided on 29th September, 2021.

(a) Constitution of Pakistan---

----Art. 99---Rules of Business, Schedule II, Entry No. 84---Constitutional petition--- Creation of new department--- Federal Government, jurisdiction of---Establishing Prime Minister's Performance Delivery Unit (PMDU) and Pakistan Citizen's Portal (PCP) and User Manual was questioned---Validity---Authority of Federal Government to constitute new departments or reorganizing any existing department for exercising of Executive authority of Federation could not be denied---Necessary amendments in Rules of Business were also effected---PMDU and PCP were established Constitutionally---User's Manual did not have force of law, as it was law in primary nor in secondary sense---User Manual was neither enacted by any legislature nor by the Executive authority under exercise of powers of subordinate legislation and could be referred so as to know the nature of complaint handling and its effects.

(b) Constitution of Pakistan---

----Fourth Schedule, Part-I, Item No.56 & Part-II, Item No. 16---Investigation of criminal offences---Federal laws, violation of---Jurisdiction---Investigating Agency under control of Federation, like Federal Investigating Agency can only entertain complaints under laws promulgated in Federal domain or in relation to other Federal laws and departments of Federal Government established under Federal laws or other such legal instruments---Such investigative activities have also been provided a cover by Item No.56 of Part-I and Item No.16 of Part-II of Fourth Schedule to the Constitution but to the extent of offences only, which relate to matters included in Federal Legislative List.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Grievance Redressal Mechanism---Good governance---Prime Minister's Performance Delivery Unit (PMDU) and Pakistan Citizen's Portal (PCP)---Direction to Provincial Government---Petitioner was aggrieved of inquiry by provincial police into complaint received on PCP and forwarded by Federal Government---Validity---Constitutional scheme of distribution of powers and adherence to the same was more important than redressal of grievance through instrumentality of PMDU and PCP---Such mechanism could only be made effective if institutions made for the purpose were made accountable, effective and responsive to such complaints by none else than respective Provincial Governments, in whose domain such departments or organizations lied---Outside interventions in such departments and those also in contravention of Constitutional schemes and laws of the land would not produce any good but would rather cause more harm---Proceedings initiated and conducted on the authority of Pakistan Citizen Portal including entertaining of such complaint and referring the same to police authorities for taking necessary action, were unconstitutional and beyond the Executive authority of Federation, illegal, without lawful authority and were null and void---High Court quashed the proceedings initiated by Pakistan Citizen Portal as the same were within the exclusive domain of Provincial authorities and those conducted by local police against petitioner on the direction of PCP were also initiated without lawful authority, in an unlawful manner---High Court declined to initiate criminal proceedings against complainant or furnishing information about identity and whereabouts of complainant---Constitutional petition was allowed accordingly.

PLD 2012 SC 80; PLD 2014 SC 232; 2015 SCMR 1724; 2021 SCMR 387; PLD 2021 SC 600; 1998 PCr.LJ 864; 2014 YLR 1331; 2020 PCr.LJ 1132; PLD 2021 Sindh 418 and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref.

Aurangzeb for Petitioners.

Noroz Khan, Deputy Attorney General and Raza-ud-Din, Additional Advocate General for Respondents.

Fawad Khan, on behalf of NADRA.

P L D 2022 Peshawar 138

Before Muhammad Naeem Anwar, J

Malik MUHAMMAD ZAHID---Petitioner

Versus

FIDA MUHAMMAD and 3 others---Respondents

Writ Petition No. 3191-P of 2021, decided on 3rd August, 2021.

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

----S. 12(2)---Limitation Act (IX of 1908), S. 5 & Art. 181---Bar to further suit---Limitation---Condonation of delay---Scope---Petitioner assailed the concurrent dismissal of his application under S. 12(2), C.P.C.---Validity---Claim of petitioner of being owner of 50 Marla in the property measuring 68 Marla would not be decided by the Rent Controller rather, the Rent Controller could not enter into the sphere of title---Simple matter, before the Rent Controller, was that the tenant had defaulted in payment of rent, against whom, a decree for ejectment was passed and executed---Application under S. 12(2), C.P.C. was filed after more than 8 years from the date of decree and after more than 7 years from the date of knowledge, therefore, the same was time barred---Petitioner had submitted an application under S. 5 of Limitation Act, 1908, but grounds taken therein were that the order passed in rent application was nullity in the eyes of law, as such, no limitation ran against filing of application under S. 12(2), C.P.C.---Whereas in any such application one who sought condonation of delay was required to explain the delay of each and every day but no such exercise was done by the petitioner---No illegality or jurisdictional defect in the impugned orders was pointed out---Constitutional petition was dismissed.

Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan and others 2020 SCMR 2046 ref.

Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158 rel.

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

----S. 12(2)---Bar to further suit---Scope---Law has provided a remedy for an aggrieved person to challenge the order, judgment and decree of the Court which is the result of fraud and misrepresentation of facts by filing an application under S. 12(2), C.P.C. before the Court, which passed the final order, judgment or decree---Fresh suit is barred with an object to prevent delay being caused in expeditious disposal of execution petition by making frivolous and mala fide objections thereto.

(c) Administration of justice---

----What cannot be done directly cannot be done indirectly.

2020 SCMR 2129 ref.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 and Muhammad Saleem Ullah Khan and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

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

----S. 12(2)---Bar to further suit---Framing of issues---Recording of evidence---Scope---Framing of issues and recording of evidence in every application under S. 12(2), C.P.C. is neither legal requirement nor sine qua non for the Court---Such matter depends upon the circumstances of the case, in which the application under S. 12(2), C.P.C., is filed, as to whether the application can or cannot be decided without recording of evidence and framing of issues or to fix it for pro and contra evidence.

Mst. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 rel.

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

----S. 12(2)---Bar to further suit---Framing of issues---Recording of evidence---Scope---Application under S. 12(2), C.P.C., no doubt, is required to be treated like that of a suit, issues are to be framed and evidence is to be recorded but in cases where it is established that the application is legally not maintainable, the same can be dismissed in a summary manner without framing of issues and recording of evidence.

Ghulam Muhammad v. M. Ahmad Khan and others 1993 SCMR 662; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 ref.

Farman Ullah v. Latif-Ur-Rehman 2015 SCMR 1708 and Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46 rel.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Bar to further suit---Limitation---Scope---Limitation in filing of application under S.12(2), C.P.C., is not specified in any Article of Limitation Act, 1908, therefore, any application filed on the ground of misrepresentation of facts, fraud and want of jurisdiction shall be treated under Art. 181 of Limitation Act, 1908.

(g) Administration of justice---

---Issue decided against a party, if not challenged, shall attain finality.

Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah 1996 SCMR 1862 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 ref.

Arshad Jamal Qureshi for Petitioner.

Nemo for Respondents.

P L D 2022 Peshawar 147

Before Wiqar Ahmad, J

Mian SHEHZADA JAN and others---Petitioners

Versus

MUHAMMAD ISRAR and others---Respondents

Writ Petitions Nos. 827-M of 2020, 328-M , 710-M of 2018, 288-M, 378-M, 1221-M of 2019, 290-M and 320-M of 2020, decided on 25th January, 2021.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 117 & 172---Demarcation of boundaries---Civil Court, jurisdiction of---Revenue record, non-preparation of---Effect---Petitioners sought demarcation of boundaries between two villages---Revenue authorities declined to demarcate boundaries as there was dispute of title and revenue record was not prepared---Validity---In the districts where revenue record was not prepared and maintained, a revenue officer had no jurisdiction to entertain applications for demarcation of boundaries of estate under S. 117 of Khyber Pakhtunkhwa Land Revenue Act, 1967---Bar of jurisdiction contained in S. 172 (2)(xx) and (xxi) of Khyber Pakhtunkhwa Land Revenue Act, 1967, was not operative against a Civil Court entertaining any suit for such purpose---Lower Appellate Court rightly set aside order of Revenue Officer as land in dispute could not be categorized as an estate, or holding or part of holding, therefore, provisions contained in Chapter X of Khyber Pakhtunkhwa Land Revenue Act, 1967, could not be applied and revenue officer had no jurisdiction to entertain application for demarcation under S. 117 of Khyber Pakhtunkhwa Land Revenue Act, 1967---High Court in exercise of Constitutional jurisdiction declined to interfere in orders passed by Lower Appellate Court, as there was no illegality or material irregularity in the judgment---Constitutional petition was dismissed, in circumstances.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1997 SC 84; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Ali Azim Afridi, Advocate High Court Peshawar v. Federation of Pakistan PLD 2020 Pesh. 105; Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC (Pak.) 201; Secretary of State v. Mask and Co. AIR 1940 PC 105; Azad Khan and another v. Senior Member Board of Revenue Khyber Pakhtunkhwa, Peshawar and 3 others PLD 2019 Pesh. 208; Mohabat Khan v. Abdul Hameed 2016 YLR 1120 and Hafiz Kalu and others v. Muhammad Bakhsh and others 2019 YLR 1523 ref.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.172---Civil Procedure Code (V of 1908), O.XX, R. 18---Civil Court, exercise of jurisdiction---Principle---Civil Courts are fully competent to entertain suits for partition of joint immovable properties in respect of such land which has not been documented according to Chapter VI of Khyber Pakhtunkhwa Land Revenue Act, 1967---While passing preliminary decree in such case, then again it is for Civil Court to deal the matter according to provisions of O. XX R. 18, C.P.C.

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

----S. 135---Determination of share in estate---Joint decree---Question was with regard to determination of respective shares in estate of parties, when there was no decree subsisted to such effect---Validity---Requirement of subsisting decree mentioned in S. 135 (b) of Khyber Pakhtunkhwa Land Revenue Act, 1967, meant such a decree where specific right of applicant or applicants to a particular share in some specific property stood determined with particularity, so that when application for partition was brought under S. 135 of Khyber Pakhtunkhwa Land Revenue Act, 1967, as to there was no doubt regarding extent of entitlement of a particular applicant or applicants---Joint decree or order in favour of whole tribe did not fulfill requirement of S. 134(b) of Khyber Pakhtunkhwa Land Revenue Act, 1967---Revenue Officer had rightly shown his inability and declined to determine numerous questions of title as the same was out of the purview of his jurisdiction---High Court declined to interfere in the matter of determination of such shares---Constitutional petition was dismissed, in circumstances.

Zia-ur-Rahman, Advocate (through video link), Abdul Halim Khan, Muhammad Younas Utmankhel, Ihsanullah, Syed Abdul Haq, Abdul Qayum, Muhammad Rashid, Dost Muhammad Khan, Ijaz Khan, Rashid Ali Khan and Abdul Nasir for Petitioners.

Sohail Sultan, Asst: A.G. for the official Respondents.

Sher Muhammad Khan as amicus curiae.

Dates of hearing: 14th, 21st, December, 2020 and 25th January, 2021.

CONSOLIDATED JUDGMENT

WIQAR AHMAD, J.---This order is directed to dispose of W.P. No. 827-M/2020, W.P. No. 328-M/2018, W.P No. 710-M/2018, W.P. No. 288-M/2019, W.P. No. 378-M/2019, W.P. No. 1221-M/2019, W.P. No. 290-M/2020 and W.P. No. 320-M/2020. Facts of the above-mentioned cases are not same, but common legal questions have been existing in all these cases, which are being answered through the instant judgment inter-alia, and all these cases were therefore taken for decision through this single judgment.

1. The questions for determination had arisen in the cases of demarcation and proceedings of partition being conducted by the revenue officers in those districts, wherein revenue record had not been existing. The questions regarding jurisdiction of revenue officers to conduct such proceedings are required to be answered. Respective facts of each petition shall be attended later on, but first said questions shall be answered.

2. Arguments of learned counsel for the parties, learned Asst: A.G. as well as Mr. Sher Muhammad Khan, Advocate as amicus curiae have been heard. Notice had also been issued to learned Advocate General, Khyber Pakhtunkhwa in all these cases, as mentioned in order dated 05.10.2020 of one of the connected cases heard together but disposed of through a separate judgment of even date. Barrister Dr. Adnan Khan had also been appointed as amicus curiae but he subsequently requested for relieving him from said responsibility for the reason that he had been representing a party in a similar nature case (W.P. No. 1003-M/2020). He was accordingly relieved of the responsibility of assisting the Court as amicus curiae.

3. The two common questions that are required to be answered in all these cases are rephrased below for the sake of clarity;

a) Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the "Revenue Act").

b) Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act.

1. Determination of question (a): (Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the Revenue Act);

All laws of the land stood extended to Provincially Administered Tribal Areas (hereinafter referred to as 'PATA') after repeal of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") by the 25th Constitutional Amendment but it requires a clarification here that the Revenue Act had earlier been extended to PATA and same has had its normal operation in the area even prior to 25th Constitutional amendment. Chapter-X of the Revenue Act deals with surveys and boundaries. Section 117 of Chapter-X of the Revenue Act provides for the power of Revenue Officers to define boundaries, when an application for demarcation is made there-under. Said Section is being reproduced hereunder for ready reference;

"117. Power of Revenue Officers to define boundaries.---(1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired.

(2) In defining the limits of any land under subsection (1), the Revenue Officer may cause boundary marks to be erected on any boundary already determined by, or by order of, any Court of Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act XVI of 1927), or restore any boundary mark already set up by, or by order of, any Court or any such officer."

An interested person may file an application for defining limits of an estate, or of any holding, field or other portion of an estate, under the above reproduced Section 117 of the Revenue Act. "Estate" has been defined in Clause-9 of Section 4 of the Revenue Act as follows;

"(9) "estate" means any area:-

i. for which a separate record of rights has been made; or

ii. which has been separately assessed to Land Revenue; or

iii. which the Board of Revenue may, by general rule or special order, declare to be an estate;"

Similarly, "holding" has been defined in Clause-10 of Section 4 of the Revenue Act as follows;

"(10) "holding" means a share of portion of an estate held by one, land owner or jointly by two or more land owners;"

Definition of the word "estate" as provided in Clause-9 of Section 4 of the Revenue Act, means an area for which a separate record of rights has been made or is separately assessed to land revenue or is declared by the Board of Revenue by way of rule or special order as an estate. Similarly, "holding" means a share or portion of an estate held by one land owner or jointly by two or more land owners. The purpose of entrusting revenue officer with the powers of defining boundaries, under section 117 of the Revenue Act has been, to enable him to frame record or make assessment under the Revenue Act or on the application of an interested person to define the limits of any estate, or of any holding, field or other portion of an estate, and may for the purpose of indicating those limits require boundary marks to be erected or repaired. The connotation "field or other portion of an estate" as per the definition mentioned above, means an area for which record of rights has been made or is assessed to land revenue. In all the cases of demarcation aimed at disposal through this judgment, none of the case related to such land, which may be called as an estate or part of an estate, or holding as defined in Clauses-9 and 10 of Section 4 of the Revenue Act.

1. Section 121 of the Revenue Act provides for power of Board of Revenue to make rules for demarcation of boundaries and erection of boundary marks. It has clearly been laid down therein that the Board of Revenue may make rules as to the manner in which the boundaries of all or any of the estates in any local area were to be demarcated or the boundary marks erected within those estates. The rules so framed may only provide for demarcation of those lands which fall in the definition of an estate. The rules framed for demarcation of lands would therefore be inapplicable in those cases, where the land record has not been existing and which do not come in the definition of an estate. Other related provisions contained in Chapter-X of the Revenue Act have also been so framed as to provide for the effect and ancillary matters of defining boundaries of an estate, holding or part of an estate and can only be given effect in an area in respect of which the revenue record has been existing. No provision, either in the Revenue Act or rules framed thereunder had been providing for demarcation of such areas, where land record has not been existing already except a case where such a survey or determination of boundaries is necessary for the purpose of preparation of land record, at the time of settlement of land. Revenue officers, cannot therefore entertain any application for demarcation in respect of land, which has not yet been documented in the revenue record and in that respect record of rights has not been prepared.

2. Exclusion of jurisdiction of civil Court provided in Clauses-xx and xxi of subsection (2) of Section 172 of the Revenue Act would not be effective in those areas, where revenue record has not been prepared and notified. Said clauses provided for barring jurisdiction of civil Court, which need a consideration here and are reproduced hereunder for ready reference;

"(xx) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under the provisions of this Act; and

(xxi) any claim regarding boundaries fixed under any of the enactments hereby repealed or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks."

Wordings of the above reproduced Clause (xx) are clear, which bar any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates under the provisions of the Revenue Act. As explained earlier, no "estate" has been existing in these areas where revenue record has not been notified and therefore there cannot be any question of determination of its boundaries by the revenue officer under Chapter-X of the Revenue Act.

For said reason, Clause (xxi) would also not apply and jurisdiction of the civil Courts shall not be barred in cases where there arises any dispute relating to boundaries of private properties not yet documented in the record of rights.

1. Determination of a question as wherefrom property of a particular person or persons starts and where it ends, in such a situation as described above, would be a pure question of title, which can even otherwise not be allowed to be adjudicated upon by a revenue officer exercising powers under the Revenue Act. These are purely judicial functions and cannot be left at the hands of a revenue officer. Right to hold property is a fundamental right guaranteed under Article 23 of the Constitution. Article 24 of the Constitution also provides for protection of property rights. Question of title of a property is a serious question and requires well defined mechanism for adjudication thereupon. The mechanism should also be such that parties have right to a full-fledged hearing at a well defined judicial proceedings. It should also include proper rights of appeal to such forums which exercises full independence. The Revenue Act has not been enacted for providing such forum or system of adjudication for determination of questions of rights. Purpose of the Revenue Act has mainly been providing for laws relating to documentation of revenue record for the purpose of generation of land revenue. It is a special law and the forums established therein cannot be deemed to have been established for the purpose of adjudicating upon proprietary rights of the parties including disputes of title. By now Article 10-A also stands inserted in the Constitution by way of the Constitution (18th Amendment) Act 2010, which requires that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Hon'ble Supreme Court of Pakistan while rendering its judgment in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others reported as PLD 1996 Supreme Court 324 has observed that the right to have access to justice through an independent judiciary was a fundamental right, and without an independent judiciary the right would be meaningless and would not have efficacy and beneficial value for the public at large. Same view had also been reiterated in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others reported as PLD 1997 Supreme Court 84 as well as in the case of All Pakistan Newspapers Society and others v. Federation of Pakistan and others reported as PLD 2012 Supreme Court 1. In the case of Sh. Riaz-ul-Haq and another v. Federation of Pakistan Through Ministry of Law and others reported as PLD 2013 Supreme Court 501, the Hon'ble Supreme Court of Pakistan had observed that determination of a question of rights cannot be left at the discretion of persons who had not been having knowledge and experience in the legal field. It was further held in para-45 of the judgment;

"The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all courts subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustainable if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court" in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution."

It was further clarified in said judgment that wherever a Court makes determination of rights of parties, the function would be judicial in nature and such Court or Tribunal should be manned, controlled and regulated in accordance with judicial principles. Relevant findings of the Hon'ble Court are reproduced hereunder for ready reference;

"In the case of Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27) it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However, the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, it was held that the Labour Appellate Tribunal, legally speaking, through denominated as a Tribunal, is a Court: nothing more, nothing less.

The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a 'Court', nor its action is always judicial; however, the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability, recognised by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially. Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further, such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles."

A Division Bench of this Court while giving judgment in the case of Ali Azim Afridi, Advocate High Court Peshawar v. Federation of Pakistan reported as PLD 2020 Peshawar 105, had also declared Section 141 of the Revenue Act -- which authorized a revenue officer to constitute itself as a civil Court and determine question of title - as ultra-vires and ineffective by holding;

"Though special courts and tribunals are formed under Article 212 of the Constitution but they have to exercise powers within their allotted spheres and could not intrude beyond that. Similar powers are exercised by a Rent Controller when only relationship of landlord and tenant exists but he as the Judicial Officer presides over the hearing and in case of denial he can frame a preliminary issue in this regard. A Family Court is also presided over by a Judicial Officer in cases of matrimonial dispute between spouses inter se. Every special court is presided over by a Judge but not in the ibid Act. It is a remnant of olden colonial times.

This is not the sole reason, we note that in view of the term implied in subsection (1) or he may himself proceed to determine the question as though he were such a court and in subsection (5)(b) of section 141 if the revenue officer continues to proceed with the trial despite dispute of title his order is to be treated as order of Civil Judge and a decree of civil court, made appealable before the District Judge. By inserting such clause legislature was certainly not oblivious that the jurisdiction of revenue officer ceases to exist but fell short of applying the trichotomy of powers principle from the initial stage when question of title was raised in written reply. Just by their own figment of imagination the revenue hierarchy exercise their authority without following due process of law. While enacting this provision legislature is not oblivious that the powers of revenue hierarchy ceases from that point forward but still it authorizes a revenue officer to deliver judgment as a civil court by adopting procedure of the Civil Procedure Code. The stage from .where jurisdiction of revenue officer ends is where the jurisdiction of the civil court begins. If the law allows him to continue to exercise such jurisdiction it overlaps and it is not a step in aid of justice as it empowers an officer of the executive branch to exercise powers of judicial organ of the State."

As corollary to above made discussion, it is held that in those districts where revenue record had not been prepared and maintained, a revenue officer would not have a jurisdiction to entertain applications for demarcation of boundaries of estate under section 117 of the Revenue Act and the bar of jurisdiction contained in Clauses-xx and xxi of subsection (2) of Section 172 of the Revenue Act would not be operative against a civil Court entertaining any suit for the purpose.

9. Determination of Question (b): (Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act);

Section 135 of the Revenue Act gives jurisdiction to a revenue officer to entertain application for partition. Said section of law being relevant is reproduced hereunder for , ready reference;

"135. Application for partition.---Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:-

a) at the date of the application the share is recorded under Chapter VI as belonging to him; or

b) his right to the share has been established by a decree which is still subsisting at the date; or

c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof."

The above cited provision of law gives jurisdiction to a revenue officer to entertain application for partition but requires existence of one of the three conditions for exercising such jurisdiction. The essential conditions include;

i. Where the share is recorded under Chapter VI of the Revenue Act as belonging to the applicant. (Clause (a) of Section 135 of the Revenue Act); or

ii) His right to the share has been established by a decree, which is subsisting at the date of filing the application. (Clause (b) of Section 135 of the Revenue Act); or

iii. A written acknowledgement of share in joint immovable property is executed by all the persons interested in admission or denial thereof. (Clause (c) of Section 135 of the Revenue Act).

1. If any of the above mentioned three conditions are available to an applicant, he may file an application for partition of his share in joint immovable property, which may be proceeded by the revenue officer according to rest of the provisions of the Revenue Act and Rules framed there-under, otherwise an application cannot be entertained by a revenue officer. In all the connected cases, the revenue record, in respect of the property sought to be partitioned, has neither been prepared nor maintained under Chapter VI of the Revenue Act. The first condition could not be met in any of these cases. The other two conditions remain i.e. determination of share by a decree of Court or a written acknowledgement of the right to such share, which are needed to be looked into, in the perspective of facts of each case separately, and such exercise shall be taken in latter part of this judgment. The question can therefore be answered easily by referring to Section 135 of the Revenue Act and clarifying that only in case of existence of any of the three situations given in Section 135 of the Revenue Act, an application may be entertained by a revenue officer for partition of joint immovable property, otherwise he would be divested of the jurisdiction to entertain such an application.

2. An ancillary question, raised by most of the parties in the instant proceedings have been, that if they had made a recourse to civil Court for partition of joint immovable property, their suit would have been hit by the bar of jurisdiction contained in Clause (xviii) of Section 172 of Revenue Act. Clause (xviii) being relevant is reproduced hereunder for ready reference;

"(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;"

Clause (xviii) of Section 172 of the Revenue Act bars a suit before civil Court for partition of an estate or joint holding, or any question connecting with or arising out of proceedings for partition. The word "partition" used in Clause (xviii), no doubt means a partition for which an application is entertained under section 135 of the Revenue Act. A case where an application cannot be entertained under section 135 of the Revenue Act, cannot therefore be subjected to the bar of jurisdiction contained in Clause (xviii) of Section 172 of the Revenue Act. So far as the words "any claim for partition of an estate or holding" are concerned, such words need to be understood according to the definition given in Section 4 of the Revenue Act, which has already been dilated upon in earlier part of this judgment. It has already been concluded that a land in respect of which record of rights had not been maintained or which was not assessable to Land Revenue or in respect of which Board of Revenue had not issued a special order declaring it as an estate, could not be termed as "estate". Similarly, such an estate would not come in the definition of "holding" which means a share of portion of an estate held by one land owner or two or more jointly. The bar of jurisdiction of civil Court in respect of entertaining application for partition would not therefore be effective against a civil Court in these areas, where revenue record has not at all been existing. Even otherwise, bar of jurisdiction of civil Court cannot be lightly inferred. Any law providing for exclusion of jurisdiction of civil Court has to be considered strictly as held by Hon'ble Supreme Court of Pakistan in case of Muhammad Tufail v. Abdul Ghafoor and others reported as PLD 1958 Supreme Court (Pak.) 201, wherein the Hon'ble Court on the basis of ratio of an earlier judgment in the case of Secretary of State v. Mask and Co. (AIR 1940 PC 105), had observed;

"The general principle was enunciated in Secretary of State v. Mask & Co. AIR 1940 PC 105. At page 110, their Lordships observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". Similarly, to Muhammad Din and others v. Imam Din and another AIR 1948 PC 33: PLD 1947 PC 317, the Privy Council held that "Their Lordships have no doubt that the Civil Court has power to entertain a suit, in which the question is whether the executive authority has acted ultra vires."

Similarly, this Court in its earlier judgment given in the case of Azad Khan and another v. Senior Member Board of Revenue Khyber Pakhtunkhwa, Peshawar and 3 others reported as PLD 2019 Peshawar 208 has also held that, where a question of title is involved, the civil Court would have the jurisdiction to entertain a lis. Relevant part of the observation is reproduced hereunder for ready reference;

"Revenue Court only includes where proceedings relating to the rent revenue or profit of land used for agricultural purposes is tried. It is governed by the Tenancy Act, 1950. It implies that revenue authorities performing functions under the Land Revenue Act, 1967 do not fall within the definition of Court, thus for all intents and purposes the powers of a civil Court trying a suit of civil nature where question of title is involved has got supervisory capacity to undo the effect of any act performed by the revenue authorities."

Further reliance in this respect may be placed on judgment of this Court given in the case of Mohabat Khan v. Abdul Hameed reported as 2016 YLR 1120, as well as judgment in the case of Hafiz Kalu and others v. Muhammad Bakhsh and others reported as 2019 YLR 1523.

1. The contention of learned counsel, that their suit, if filed before learned civil Court would be barred by provisions of Section 172 of the Revenue Act has therefore been misplaced for the reasons mentioned above. Civil Courts shall be fully competent to entertain suits for partition of joint immovable properties in respect of such land, which had not yet been documented according to Chapter-VI of the Revenue Act. While passing a preliminary decree in such a case, then again it is for the civil Court to deal the matter according to the provision of Order XX Rule 18 of the Code of Civil Procedure 1908 (hereinafter referred to as 'C.P.C.'), which provides;

"18. Decree in suit for partition of property, or separate possession of a share therein.---Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,---

1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

2) If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."

1. The Court after declaring rights of the parties vis-a-vis their entitlement in any joint immovable property may direct the remaining job to be done by a revenue officer. The civil Court may also direct at the time of preliminary decree that the leftover job may be done by the civil Court itself. The above quoted rule further fortifies our opinion when it provides that in case of an estate which is assessed to payment of land revenue, the matter of final partition shall be left to the Collector, while in case of a property not being an estate assessed for land revenue, the Court has the discretion under Sub-rule (2) of Rule 18 of Order XX, C.P.C., to make proper directions for further proceedings. Provision of sub-rule (1) of Rule 18 of Order XX, C.P.C. providing for referring the matter to the Collector shall not be applicable regarding such properties in respect of which revenue record has not been existing,, and it would be within the discretionary powers of civil Court to direct at the time of passing preliminary decree, as to whether the leftover job of separating shares should be left to the determination of revenue officer or to be done by the civil Court itself. There is no legal bar in the way of civil Court even to entertain an application for grant of final decree, if direction to the contrary has not been given at the time of passing preliminary decree.

2. Nature of the disputes involved in all these connected cases also testified to the fact that the questions taken cognizance by the revenue officers in the garb of demarcation and partition, had in-fact been questions relating to determination of title in respect of the disputed lands. In some of the cases, the disputed lands stretched over very vast areas, particularly in those cases, where the disputes were between two villages. Determination of such questions and entitlement of the respective parties vis-à-vis their rights to property has no doubt been job of civil Courts. Whether it was in the shape of entertaining application for partition - in those districts where land record had not been notified and where shares of the respective parties had not been determined by a subsisting decree - or case of demarcation, the revenue officers had in-fact been performing the functions of civil Courts vis-à-vis determination of entitlement and other rights of ownership and possession of the respective parties in the property in dispute in those cases. Such a job was out of the purview of jurisdictional contours of the revenue officers, defined under the Revenue Act and related laws and rules.

3. After answering the two questions and determining the touchstone for discerning facts of each respective case, these cases are being taken individually for determination.

4. W.P. No. 827-M/2020 (Mian Shehzada Jan and others v. Muhammad Israr and others, arising out of partition proceedings);

An application was filed by petitioners for separating the land belonging to people of village Dislawer before the revenue officer i.e. Additional Assistant Commissioner Wari at Dir Upper on 18.09.2017. Petitioners had based their claim on the decision of Assistant Commissioner Wari dated 28.04.1984 passed under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as 'Regulation'). It had been claimed that out of 18 toras of land, Musakhel tribe had been having 6-1/2, Zarabkhel tribe had been having 6-1/2 and Ahmad Walikhel had been having 5 toras and that said land should be distributed among the respective tribes by metes and bounds. The revenue officer, vide his order dated 23.04.2018 held that order dated 03.05.1984 of the then Assistant Commissioner Wari, District Dir had been based upon a compromise decree between the parties and that same had not been an executable decree being time barred. The revenue officer had also held that the property in dispute had been consisting of vast area of the land and determinations of the questions had purely been of civil nature, which had not been falling in his jurisdiction. Said order was maintained by Additional Deputy Commissioner, Dir Upper vide his order dated 30.11.2018, which order was however set aside by the Additional Commissioner Malakand Division vide his order dated 06.12.2019. Judgment of the Additional Commissioner Malakand Division was challenged by respondents before the Senior Member Board of Revenue Khyber Pakhtunkhwa (hereinafter referred to as "SMBR"), which was set aside by the Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 18.06.2020. Feeling aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer;

"It is, therefore, most humbly prayed that on acceptance of instant writ petition this Hon'ble Court may graciously be pleased to declare the impugned order and judgment dated 18.06.2020 rendered by the learned respondent No. 17 as illegal, unlawful, without lawful authority, without jurisdiction and void ab-initio and the judgment and order of remand dated 06.12.2019 handed down by respondent No. 16 may kindly be upheld. Similarly, the judgments and orders of respondents Nos. 14 and 15 may also be declared null and void, illegal, without lawful authority and of no legal effect.

Any other relief, which is not specifically asked for in the instant writ petition, may also be granted in favour of the petitioners."

1. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land Revenue Record has not been prepared and notified for the area in dispute also. Learned counsel for petitioners has contended that order dated 03 05.1984 of Assistant Commissioner Wari passed under the Regulation had been a subsisting decree providing for determination of rights, but I am afraid I would not be able to agree with learned counsel in this respect. Perusal of the order reveals that it had in-fact been based upon decision of jirga appointed in the case, wherein also rights of the tribes had been determined but specific shares of petitioners had never been determined in the decision of jirga or the judgment. The requirement of a subsisting decree mentioned in Clause (b) of Section 135 of the Revenue Act, means such a decree where specific right of the applicant or applicants to a particular share in some specific property stands determined with particularity, so that when the application for partition is brought under section 135 of the Revenue Act, there remains no doubt regarding the extent of entitlement of a particular applicant or applicants. A joint decree or order in favour of the whole tribe would not fulfill the requirement of Clause (b) of Section 135 of the Revenue Act. The revenue officer has rightly shown his inability and had rightly held that decision on the application required determination of numerous questions of title and same had been out of the purview of his jurisdiction. The order had also been rightly maintained by the Additional Deputy Commissioner, Dir Upper. Same had wrongly been disturbed by the Worthy Additional Commissioner Malakand Division vide his order dated 06.12.2019, which wrong has been remedied by the Member-II, Board of Revenue Khyber Pakhtunkhwa in the impugned judgment. Learned counsel for petitioners could not show any illegality or material irregularity in the impugned judgment, warranting interference of this Court in exercise of its constitutional jurisdiction. Resultantly, the instant writ petition was found lacking any substance and same is accordingly dismissed.

2. W.P. No. 710-M/2018 (Muhammad Alam v. Muhammad Younas and others, arising out of partition proceedings);

An application was filed by respondents Nos. 1 to 4 on 11.02.2008 for separating their shares from the joint property before the revenue officer i.e. Deputy District Revenue Officer (Judicial) Timergara. Petitioner was summoned, who appeared and filed his reply along with an application for rejection of the application for partition on the ground that revenue Court has no jurisdiction in the matter as question of title had been involved therein. The revenue officer, vide his order dated 21.01.2010 held that partition had already taken place between the parties and therefore the application for partition was dismissed. Said order was challenged by respondents through an appeal before Deputy Commissioner Dir Lower, who vide his order dated 27.04.2010 allowed the appeal and remanded the case back to lower revenue Court with direction to frame issues, record evidence and decide the case afresh. After remand, the application for partition was accepted by Assistant Commissioner, Samarbagh vide his order dated 27.08.2015. Petitioner filed an appeal there-against before Additional Deputy Commissioner, Dir Lower at Timergara, which was partially accepted and the case was remanded back to the lower revenue Court vide order dated 11.04.2016. Aggrieved of said order, respondents Nos. 1 to 4 filed revision petition before the Additional Commissioner Malakand, which was dismissed vide order dated 28.12.2016 but their revision filed before Worthy SMBR was accepted vide impugned order dated 30.03.2018 of Member-11, Board of Revenue Khyber Pakhtunkhwa, whereby order dated 27.08.2015 of Assistant Commissioner, Samarbagh was restored. Feeling aggrieved there-from, petitioner has invoked constitutional jurisdiction of this Court with the following prayer;

"It is therefore, most humbly prayed that on acceptance of this writ petition the impugned orders dated 27.08.2015 and 30.03.2018 of learned respondents Nos. 5 and 8 respectively, may graciously be set aside and be declared the same as illegal, arbitrary, without lawful authority and without jurisdiction and consequently the orders dated 11.04.2016 and 28.12.2016 of learned respondents Nos. 6 and 7, regarding remand of case, may kindly be restored or any other order which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be passed."

1. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The revenue officer has wrongly and without lawful authority framed issues and accepted application for partition, which order had also been wrongly restored by the Member-II, Board of Revenue Khyber Pakhtunkhwa in the impugned judgment. Resultantly, the instant writ petition is allowed, order dated 30.03.2018 of Member-IL Board of Revenue Khyber Pakhtunkhwa and order dated 27.08.2015 of Assistant Commissioner Samarbagh are set aside.

2. W.P. No. 288-M/2019 (Zaheer Uddin and others v. Latif-ur-Rehman and others, arising out of partition proceedings);

Respondents Nos. 1 to 8 filed an application for separating their shares from joint property by way of official partition on 22.03.2016 before the Additional Assistant Commissioner, Dir Upper. Petitioners were summoned, who appeared and filed an application for rejection of the application for partition, wherein they raised an objection as to jurisdiction of the revenue officer. The revenue officer i.e. Additional Assistant Commissioner, Dir vide his order dated 02.03.2017 held that the revenue Court had the jurisdiction to entertain the matter under section 135 of the Act and application of petitioners (herein) was dismissed. Said order was maintained upto the higher revenue forum i.e. Member-II, Board of Revenue Khyber Pakhtunkhwa who vide its order dated 31.12.2018 dismissed revision petition filed by petitioners. Aggrieved there-from, petitioners have filed the instant constitutional petition with the following prayer;

"It is therefore, humbly prayed that on acceptance of this writ petition;

i. All the orders dated 31.12.2018, 03.07.2018, 12.10.2017, 02.03.2017 passed by the respondents Nos. 12, 11, 10 and 9 respectively, may kindly be declared as illegal, unconstitutional and be set aside and the application filed by the petitioners may graciously be accepted as prayed for;

ii. That any other relief which this honorable Court deems fit and proper in the circumstances may also be very kindly granted.

1. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The revenue officer has wrongly entertained application under section 135 of the Revenue Act, which order had also been wrongly maintained by all the revenue forums. Resultantly, the instant writ petition is allowed and orders of all the revenue officers impugned herein are set aside.

2. W.P No. 1221-M/2019 (Inayat Ullah and others v. Asad Khan and others, arising out of partition proceedings);

An application was filed by one Rahim Zeb (uncle of petitioners) against petitioners and private respondents for separation of his share from joint property by way of official partition on 07.11.2016 before the Assistant Commissioner, Dir Lower at Chakdara. Petitioners had filed an application for rejection of application for partition, wherein they had raised a number of objections including objection as to jurisdiction of the revenue officer. Their application was dismissed by the revenue officer vide his order dated 02.11.2017 by holding that the revenue Court had the jurisdiction to entertain the application under section 135 of the Act. Aggrieved of the order, petitioners filed an appeal before Additional Deputy Commissioner, Dir Lower at Timergara, who vide his order dated 11.01.2018 accepted the appeal, set aside order dated 02.11.2017 of lower revenue Court, returned application for partition to Rahim Zeb (Petitioner of that application) and directed the parties to approach the civil Court for establishing their title. Orders of the lower revenue Courts were reversed by the Worthy Additional Commissioner Malakand vide his order dated 29.03.2019 passed in appeals filed by respondents Nos. 1 and 2 as well as Rahim Zeb (petitioner of partition application). Feeling aggrieved there-from, petitioners as well as private respondents filed their separate revision petitions before SMBR, both of which were dismissed by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 12.09.2019. Petitioners have then approached this Court through the instant constitutional petition with the following prayer;

"It is, therefore, humbly prayed that on acceptance of this writ petition, the impugned orders dated 29.03.2019, 12.09.2019 may kindly be set aside and order dated 11.01.2018 may please be restored. Any other relief which this august Court deemed fit in the circumstances of the case and not prayed for by the petitioners, may also graciously be granted in favour of the petitioners against respondents."

1. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The Additional Deputy Commissioner Dir Lower at Timergara had rightly set aside order dated 02.11.2017 of the revenue officer i.e. Assistant Commissioner, Dir Lower at Chakdara and had rightly directed the parties to approach the civil Court for establishing their title. Said order had wrongly been disturbed by the Worthy Additional Commissioner Malakand as well as the Member-II, Board of Revenue Khyber Pakhtunkhwa by way of the impugned judgments. Resultantly, the instant writ petition is allowed and order dated 12.09.2019 of Member-II Board of Revenue Khyber Pakhtunkhwa, order dated 29.03.2019 of the Additional Commissioner Malakand as well as order dated 02.11.2017 of Assistant Commissioner Dir Lower at Chakdara are set aside.

2. W.P. No. 320-M/2020 (Lal Badshah and others v. Said Badshah and others, arising out of partition proceedings);

An application for partition was filed by respondent No. 1 against petitioners and private respondents for separation of his shari share in joint property on 09.08.2019 before the Assistant Commissioner, Malakand at Batkhela. Petitioners appeared and filed their joint reply to the application, wherein they had raised a number of objections including objection as to jurisdiction of the revenue officer. Whereas, respondents Nos. 2 to 10 appeared and supported application for partition by filing their replies. After framing issues and recording evidence of both the parties, the revenue officer allowed application for partition and passed a preliminary decree vide his order dated 06.02.2018. Aggrieved there-from, petitioners filed an appeal before Additional Deputy Commissioner, Malakand, who vide his order dated 14.05.2018 dismissed the appeal, which order was maintained upto the Board of Revenue Khyber Pakhtunkhwa who vide its order dated 09.01.2020 dismissed revision petition of petitioners. Feeling aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer;

"It is therefore, humbly prayed that on acceptance of this writ petition, the impugned orders and judgments of all the lower Courts dated 06.02.2018, 14.05.2018, 18.07.2019 and 09.01.2020 may kindly be set aside and the application for partition may kindly be dismissed throughout with cost. Any other relief not specifically prayed for but this august Court deemed proper and just may also be granted to petitioners."

1. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. Perusal of record further reveals that there had been a title dispute existing between the parties but same had wrongly been entertained by the revenue Courts below. Resultantly, the instant writ petition is allowed and orders of all the revenue forums impugned herein are set aside.

2. W.P. No. 328-M/2018 (Walayat Khan and others v. Muhammad Shahzad and others, arising out of proceedings of demarcation);

This case has got a chequered history but same need not be reproduced, for the purpose of instant adjudication. The instant writ petition arises out of an application filed by predecessors of petitioners on 09.02.1989 before Assistant Commissioner, District Dir praying for demarcation of the disputed boundaries between the parties. Respondents had raised a number of objections in their reply including their objection as to jurisdiction of the revenue officer. Certain proceedings were conducted during pendency of the application including appointment of Tehsildar as local commission, who had also accordingly submitted his report. The matter had also once come up before this Court, which had been remanded in pursuance of the agreement between the parties at the bar for conducting fresh demarcation vide its order dated 21.05.2014. At that stage neither objection as to jurisdiction has been raised nor answered by this Court and the matter has simply been remanded with concurrence of both learned counsel for the parties. During fresh demarcation proceedings conducted by the Tehsildar after remand both the parties agreed upon resolution of their dispute through local jirga, who had accordingly given their recommendations on 27.01.2015. In light of recommendations of the jirga, demarcation proceedings were conducted and completed vide order dated 17.02.2016 of Tehsildar, Dir. which order was set aside by Deputy Commissioner, Dir Upper vide his order dated 25.05.2016 rendered in appeals filed by respondents and the case was remanded back to Tehsildar concerned for deciding the case on merits. Aggrieved there-from, petitioners had filed revision petition before the Worthy Commissioner Malakand Division. The Additional Commissioner Malakand Division vide his order dated 23.11.2016, set aside order of the lower revenue Court dated 25.05.2016 and maintained order of the Tehsildar, on accepting the revision. The matter, had then come before Member-II, Board of Revenue Khyber Pakhtunkhwa, who vide its order dated 20.12.2017 accepted revisions filed by respondents and remanded the case back to Tehsildar Dir Upper for deciding the case strictly on merits and according to law and rules. This is second round of litigation that the matter has come up before this Court through the instant constitutional petition filed by petitioners with the following prayer;

"It is therefore, most humbly prayed that on acceptance of this writ petition the impugned orders dated 25.05.2016 and 20.12.2017 of learned respondents Nos. 65 and 67 respectively may graciously be set aside and be declared the same as illegal, arbitrary, without lawful authority and without jurisdiction and consequently the orders dated 17.02.2016 and 23.11.2016 of learned respondents Nos. 64 and 66 regarding demarcation between the parties may kindly be restored or any other order which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be passed."

1. The chequered history of the case mainly appears to have been caused by the fact that the matter has not been related to simple demarcation of boundary of an estate, holding or part of an estate. It had in-fact been a dispute between two separate villages of Darora and Jabar, District Dir Upper. It had been a dispute regarding title over large piece of land and same had therefore been beyond the capacity, legal as well as practical, of the revenue officer concerned to decide, in absence of any revenue record in the area. It is admitted that revenue record has never been prepared under provisions of the Revenue Act in respect of the land in dispute. When the land in dispute could not be categorized as an estate, or holding or part of holding, then provisions contained in Chapter-X of the Revenue Act cannot be applied thereto. The revenue officer had therefore not been having jurisdiction to entertain application for demarcation under section 117 of the Revenue Act. The matter has wrongly been remanded by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 20.12.2017, (impugned herein) to Tehsildar, Dir Upper for decision afresh and conducting demarcation once again. When the revenue officer was found to have been divested

of the jurisdiction in the matter, he cannot be allowed to proceed further therewith. Resultantly, the instant writ petition is allowed, order dated 20.12.2017 of Member-II, Board of Revenue Khyber Pakhtunkhwa and order dated 25.05.2016 of Deputy Commissioner, Dir Upper are set aside.

1. W.P. No. 378-M/2019 (Shahabuddin Khan and others v. Feroz - Khan and others, arising out of proceedings of demarcation);

There had been a dispute of title between the inhabitants of village Dodba, Dir represented by Haji Amanullah etc, and the inhabitants of village Gharbi Hayagay, Dir represented by Habib Khan etc and in that respect, the inhabitants of village Dodba had filed a suit on 08.03.2002 before the authorized officer/Deputy Commissioner under section 5-A of Martial Law Regulation, No. 123. During proceedings in the suit, the inhabitants of village Rokhan Bala, Dir/ respondents herein, had also filed an application for their impleadment. On 08.06.2007, a compromise was effected between the competing parties i.e. inhabitants of village Dodba and the inhabitants of village Gharbi Hayagay. Accordingly, the suit was disposed of on the basis of compromise vide order dated 14.10.2008 of the District Officer Revenue and Estate, Dir Upper, while application of the respondents for their impleadment in the proceedings was dismissed. They were however directed to approach the proper forum for settlement of their dispute.

1. After a long period of eight years, respondents had filed an application dated 06.12.2016 before Deputy Commissioner, Dir Upper for demarcation of the disputed boundaries between the parties. Respondents had raised a number of objections in their reply including their objection as to jurisdiction of the revenue officer. Application for demarcation was accepted by the Deputy Commissioner Dir Upper vide his order dated 07.08.2017, which order was reversed by the Worthy Additional Commissioner vide his order dated 24.07.2018. Aggrieved of said judgment, respondents had filed revision petition before the Worthy Senior Member Board of Revenue Khyber Pakhtunkhwa, which was accepted by Member-II, Board of Revenue Khyber Pakhtunkhwa, vide its order dated 03.01.2019, whereby order dated 24.07.2018 passed by the Worthy Additional Commissioner Malakand was set aside while order dated 07.08.2017 passed by the Deputy Commissioner, Dir Upper was resorted. Aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer;

"It is therefore, humbly prayed that on acceptance of the instant writ petition;

i. The impugned order dated 07.08.2017 passed by respondent No. 5 and order dated 03.01.2019 passed by respondent No. 7 be declared as illegal, without lawful authority and of no legal effect.

ii. Any other remedy, which this Hon'ble Court deems fit in the circumstances of the case, may also be granted in favour of the petitioners."

1. Though there have been earlier litigations regarding disputes of ownership of the parties but there had never been a decree of the Court determining respective shares of the parties in the disputed property. The decree passed in proceedings under MLR-123 has not been determining the respective shares of the parties to the suit with specifications. It has already been held in earlier part of this judgment that requirement of a subsisting decree under section 135 of the Revenue Act means such a decree which specifies shares of the parties with particularity. Revenue record had not been existing in respect of the property in dispute. There has not been a written acknowledgment. Neither the necessary conditions for entertaining an application under section 135 nor the essential conditions for entertaining an application under section 117 of the Revenue Act, had been forthcoming in the petition. The application has been filed under section 117 of the Revenue Act for demarcation, which powers or jurisdiction had not been available to the concerned revenue officer as discussed in earlier part of this judgment. When the land in dispute could not be categorized as an estate, or holding or part of holding, then provisions contained in Chapter-X of the Revenue Act cannot be applied thereto. The revenue officer had therefore not been having jurisdiction to entertain application for demarcation under section 117 of the Revenue Act and his order dated 07.08.2017 has wrongly been restored by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 03.01.2019, impugned herein. Resultantly, the instant writ petition is allowed, order dated 03.01.2019 of Member-II, Board of Revenue Khyber Pakhtunkhwa and order dated 07.08.2017 of Deputy Commissioner, Dir Upper are set aside.

2. W.P. No. 290-M/2020 (Hukam Khan and others v. Ajmir Khan and others, arising out of proceedings of demarcation);

P L D 2022 Peshawar 171

Before Rooh-ul-Amin Khan, Ijaz Anwar and Syed Arshad Ali, JJ

AKRAM KHAN DURRANI and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHUTNKHWA through Chief Secretary, Peshawar and others---Respondents

Writ Petitions Nos. 3605-P, 3772-P and 5051-P of 2019, decided on 2nd November, 2021.

(a) Constitution of Pakistan---

----Arts. 137 & 140-A---Local Government---Form and structure---Scope---Only establishment of Local Government has been provided and mandated under Art. 140-A of the Constitution, which would have political, administrative and financial autonomy---Form and structure of Local Government is not subject matter of the Constitution and such has been purposely left at the wisdom of each Provincial Assembly, as such is provincial subject to legislate on---Such is discretion of Provincial Assembly to devolve any function to which executive authority of province extends to Local Government but once it decides to devolve certain political, administrative and financial responsibilities to local government through an Act of Provincial Assembly, it should be devolved meaningfully without undue interference from Provincial Government or the officer appointed by Provincial Government in terms of Art. 138 of the Constitution.

(b) Interpretation of Constitution---

----Constitutional provisions---Scope---Constitution is a living document and should be considered as an organic law of State---One Constitutional provision cannot, unless it is specifically provided, override other Constitutional provision---All provisions in the Constitution must be meaningful and harmoniously construed together.

Lahore Development Authority v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(c) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 45 & 46---Khyber Pakhtunkhwa Local Government (Amendment) Act (XXV of 2019), Ss. 3(d)(I-i), 22 & 23---Local Government---Collection of taxes---Vires---Provisions of S.3(d)(I-i) of Khyber Pakhtunkhwa Local Government (Amendment) Act, 2019, cannot be read in isolation as power to impose local taxes has been conferred on Local Government through a mechanism as provided in Chap. X of Khyber Pakhtunkhwa Local Government Act, 2013---Officer specified in Ss. 45 & 46 of Khyber Pakhtunkhwa Local Government Act, 2013, while exercising authority to collect such taxes for the purposes of Local Government cannot be termed as illegal.

(d) Constitution of Pakistan---

----Arts. 137 & 140-A---Local Government---Provincial Government---Executive authority, exercise of---Scope---Article 140-A of the Constitution does not require that while legislating about establishment of Local Government and devolution of certain executive function of Government to Local Government, the Province should be deprived of exercising its executive authority over Local Government in overseeing and supervising functions of Local Government in accordance with law---Devolution of political, administrative and financial responsibility to Local Government should be meaningful and effective---Clothing any authority other than Provincial Government outside the regime of Local Government would not only be excessive delegation but contrary to the mandate of Arts. 140-A & 137 of the Constitution.

Lahore Development Authority v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(e) Interpretation of statutes---

----"Reading down", principle of---Object, purpose and scope---Object of "reading down" is primarily to save the statute and in doing so paramount question would be whether in the event of reading down, the statute can remain functional---Secondly would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before Court.

Province of Sindh through Chief Secretary and others v. M.Q.M through Deputy Convener and others PLD 2014 SC 531 and Delhi Transport Corporation's case AIR 1991 SC 101 rel.

(f) Khyber Pakhtunkhwa Local Government (Amendment) Act (XXV of 2019)---

----Ss. 57(3), 59, 60, 61(4) & 64---Constitution of Pakistan, Arts. 129, 137 & 140-A---Local Government---Chief Minister---Executive authority, exercise of---Scope---Provincial Government has jurisdiction to supervise and oversee in the affairs of Local Government in order to ensure that Local Government should comply the law---In view of clear mandate of Art. 129 of the Constitution and law laid down by Supreme Court such powers cannot be conferred to Chief Minister of the Province---Provisions of Ss. 57(3), 59, 60, 61(4) & 64 of Khyber Pakhtunkhwa Local Government (Amendment) Act, 2019, allowing Chief Minister/Minister Local Government to interfere in affairs of Local Government is ultra vires the Constitution.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan PLD 2016 SC 808 rel.

(g) Constitution of Pakistan---

----Art. 17(2)---Right to associate---Forming of political party---Scope---In the scheme of Constitution, guarantee "to form a political party" must be deemed to comprise also the right by that political party to form Government, whenever that political party possesses requisite majority in Assembly.

Arshad Mehmood and others v. Government of Punjab and others PLD 2005 SC 193; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 rel.

(h) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 27(2) & Part-II of 11th Sched.---Khyber Pakhtunkhwa Local Government (Amendment) Act (XXV of 2019), Ss. 13, 24 & 27---Constitution of Pakistan, Arts.17 & 199---Constitutional petition---Local Government---Elections on party basis---Tehsil Councils---Petitioner assailed amendments made to Khyber Pakhtunkhwa Local Government Act, 2013---Validity---Provisions of S.27(2) of Khyber Pakhtunkhwa Local Government Act, 2013 substituted vide Khyber Pakhtunkhwa Local Government (Amendment) Act, 2019 only to the extent of envisaging for holding election for Village Council and Neighbourhood Council, on non-party basis were struck down, as the same were ultra vires the Art. 17 of the Constitution---High Court also held that Part-II of 11thSchedule to Khyber Pakhtunkhwa Local Government Act, 2013 inserted through Khyber Pakhtunkhwa (Amendment) Act, 2019, to the extent of envisaging for election on non-party basis was ultra vires Art. 17 of the Constitution---High Court directed that ongoing election scheduled by Election Commission for Election of Village Council and Neighbourhood Council was to be held on Party Basis---High Court directed Provincial Government as well as Election Commission to issue necessary direction to Retuning Officers to accept nomination papers from candidates/aspirant for contesting Election for Village Council and Neighbourhood Council; on Party Basis w.e.f. 04.11.2021 as per schedule notified through Notification dated 25.10.2021 by Election Commission---High Court clarified that Election of Tehsil/City Councils, Village/Neighbourhood Councils to the seat of Mayor or Chairman and Members of Village Councils/ Neighbourhood Councils of District Malakand, Bajaur, Mardan, Swabi, Peshawar, Nowshera, Kohat, Karak, D.I. Khan, Bannu, Tank, Haripur, Khyber, Mohmand, Charsadda, Hangu and Lakki Marwat of Khyber Pakhtunkhwa Province would be held as per schedule issued by Election Commission through Notification dated 25.10.2021 and the same would be implemented in letter and spirit---Constitutional petition was disposed of accordingly.

Awais Younas's case PLD 2016 Lah. 1; Pakistan People Party's case PLD 2014 Lah. 330; Messrs Sterling Engineering Corporation v. The Collector of Customs and another 1984 CLC 2536; Muhammad Boota v. The State 1997 PCr.LJ 1974; Messrs Master Sons v. Messrs Ebrahim Enterprises and another 1999 CLC 403; Avari Hotels Limited through Controller v. Department of Excise and Taxation Government of the Punjab, through Secretary and 5 others 2009 PTD 1868; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089; Nadeem Ahmed Advocate v. Federation of Pakistan 2013 SCMR 1062; Waheed Shahzad Butt v. Federation of Pakistan through Director Legal-II President (Appellate Authority) and another PLD 2016 Lah. 872; Amjad Hussain Kokhar v. District and Sessions Judge, Tando Allahyar and 3 others 2016 YLR 1401; Abdul Haq Khan and others v. Haji Ameerzada and others PLD 2017 SC 105; Federal Government Employees Housing Foundation and others v. Malik Ghulam Mustafa and others PLD 2019 Isl. 1; Messrs Getz Pharma (Pvt.) Limited through Authorized Person and others v. Federation of Pakistan through Secretary and others 2019 PTD 2209; State of Madhya Pradesh v. Rakesh Kohli and another 2013 SCMR 34; Mcdowell and Co.'s case AIR 1996 SC 1627; Tariq Transport Co. v. Sargodha Bhera Bus Service PLD 1958 SC 437; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 and Writ Petition No. 100-P of 2014 ref.

Qazi Jawad Ehsanullah, Ghulam Mohy-ud-Din Malik, Zahid Sultan Khan Minhas and Khushdil Khan for Petitioners.

Shumail Ahmad, Advocate General and Malik Mujtaba Ahmad along with Khushal Zada, Director Election Commission and Riaz Ahmad Khattak, Senior Law Officer for Respondents.

P L D 2022 Peshawar 206

Before Lal Jan Khattak and Abdul Shakoor, JJ

Dr. KHURSHID IQBAL---Petitioner

Versus

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

Writ Petition No. 377-P of 2022, decided on 10th May, 2022.

(a) Constitution of Pakistan---

----Arts. 5(1), 175-A(8), 175-A(12) & 199---Additional Judges of Peshawar High Court, appointment of---Parliamentary Committee---Constitutional petition challenging decision of the Parliamentary Committee, whereby it did not confirm for appointment three candidates recommended by the Judicial Commission---Maintainability---Independence of judiciary was one of the salient features of the Constitution and it was the fundamental duty of every citizen to come forward for its protection from all sorts of inroads made on it either by non-State actors or by any other authority performing functions under the Government or Constitution---For safeguarding the salient features of the supreme law of the land or on the eve of its violation every citizen of the country was not only an aggrieved person but any failure or negligence on his part to protect the Constitution would tantamount to his disloyalty to the State---Objection regarding maintainability of present petitions was turned down.

PLD 2011 SC 407; PLD 2012 SC 1067; PLD 2012 Sindh 531 and PLD 2015 Lah. 317 ref.

(b) Constitution of Pakistan---

----Arts. 175-A(8), 175-A(12) & 199---Additional Judges of Peshawar High Court, appointment of---Parliamentary Committee, powers of---Scope--- Parliamentary Committee not confirming for appointment candidates recommended by the Judicial Commission---Held, that Parliamentary Committee ('the Committee') could not assume jurisdiction and powers of the Commission, or act as an appellate forum to the Commission---lf from the material produced before it, the Committee by a three-fourth majority of its total membership reached a conclusion that a particular nominee had no moral principles, was unscrupulous or his past was such that rendered him unfit then of course the Committee would be well within its competence and justified in not confirming the recommendations of the Commission---But so far as professional caliber, competency, judicial skills and inter-se seniority positions of the members of the district judiciary recommended by the Commission for their appointment as Additional Judges of High Court are concerned, the same on no count were areas for the Committee to ponder over---Constitutional petitions was allowed.

Admittedly, under Article 175A (12) of the Constitution, the Parliamentary Committee ('the Committee') is empowered to not confirm the nominations forwarded to it by the Judicial Commission ('the Commission') but under such constitutional mandate the Committee has to act within its boundaries and spheres. While exercising such mandate, the Committee cannot assume jurisdiction and powers of the Commission. lf from the material produced before it, the Committee by a three-fourth majority of its total membership reaches to a conclusion that a particular nominee has no moral principles, is unscrupulous or his past is such that renders him unfit and which cannot be overlooked then of course in such like situation, the Committee will be well within its competence and will be quite justified in not confirming the recommendations of the Commission. But so far as professional caliber, competency, judicial skills and inter-se seniority positions of the members of the district judiciary recommended by the Commission for their appointment as Additional Judges of High Court are concerned, suffice it to say that the same on no count will be the areas of the Committee for pondering over them.

Munir Hussain Bhatti's case PLD 2011 SC 407 and PLD 2015 Lah. 317 ref.

In the present case, if recommendations of the Commission about the petitioners' nominations are looked into, it would appear that on their seniority positions and competency, a threadbare discussion had taken place whereafter through a majority decision, they were recommended for their elevation as Additional Judges of the High Court.

In view of the very detailed and extensive discussion by the Commission on the seniority positions of the three nominees and on their competency as well, it was unfair and beyond the constitutional mandate and powers of the Committee to differ with the recommendations of the Commission and by doing so, the Committee had assumed to itself the status of an appellate forum of the Commission which act cannot be countenanced for it is alien to the independence of judiciary being one of the grundnorms of the Constitution.

Constitutional petitions were allowed, decision of the Committee was set-aside and the Federation, through Secretary, Ministry of Law, Justice and Parliamentary Affairs was directed to implement forthwith the recommendations of the Commission by issuing notification of appointment of the three petitioners/nominees as Additional Judges of Peshawar High Court.

Barrister Syed Mudasser Ameer, Barrister Dr. Adnan Khan, Ali Azim Afridi and Maqsood Ali for Petitioners.

Muhammad Taufeeq Qureshi, Deputy Attorney General along with Muhammad Irfan Chaudhry, AD Senate of Pakistan for Respondents.

P L D 2022 Peshawar 213

Before Shakeel Ahmad, J

GENERAL MANAGER, SNGPL, PESHAWAR and another---Petitioners

Versus

AL-MADINA CNG FILLING STATION, PESHAWAR through Chief Executive/MD---Respondent

Civil Revision No. 416-P of 2019, decided on 24th March, 2022.

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

----S. 9---Civil Court, jurisdiction of---Principle---Material for determining jurisdiction is what is pleaded in plaint presented in Court---Provision of S.9, C.P.C. vests in Civil Court to try all cases of civil nature, unless its cognizance is either expressly or impliedly barred---Civil Court is a court of ultimate jurisdiction where a litigate claiming grievance of civil nature can ask for its redressal.

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

----S. 11---Correction of excessive bill---Civil Court, jurisdiction of---Scope---Suit for declaration and injunction---Respondent/plaintiff was aggrieved of excessive bill issued by petitioners/authorities---Petitioners/ authorities raised the plea that jurisdiction of Civil Court was barred under S.11 of Oil and Gas Regulatory Authority Ordinance, 2002---Validity---Such type of complaint was not dealt with under the provision of S.11 of Oil and Gas Regulatory Authority Ordinance, 2002---Respondent/plaintiff assailed sending of excessive billing and jurisdiction of Civil Court was not barred under Oil and Gas Regulatory Authority Ordinance, 2002---Both the courts below rightly assumed jurisdiction and decided controversy between parties---In absence of laboratory report, stance of petitioners/authorities could not be proved and any finding was based on surmises and conjunctures---Meter in question was removed on 19-10-2011 and excessive bills were sent to the respondent / plaintiff for months of August and September 2011---Disputed bills were sent prior to removal of meter---Both the Courts below rightly held that bills in question were sent to respondent/ plaintiff without any legal justification---Concurrent findings of facts of Courts below, if based on proper appreciation of evidence could not be interfered with in exercise of revisional jurisdiction because such jurisdiction was meant only to rectify jurisdictional defect and material irregularities resulting in miscarriage of justice---High Court declined to interfere in judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Dr. Amanullah Khan v. Province of N,W,FP through Secretary. Finance, Government of N.W.F.P. Peshawar and 2 others 1994 MLD 2329; Abdul Majeed Khan v. Tawseen Abdul Haleem PLD 2012 SC 80; Gul Shah and others v. Hafiz Ghulam Muhammad and others 2009 SCMR 1058; Samiullah and another v. Fazle Malik and another PLD 1996 SC 827; Malik Allah Bakhsh v. District Judge, Rajanpur and 2 others 2014 CLC 216; Islamic Republic of Pakistan through Secretary, Ministry of Commerce, Islamabad v. General Traders and Ammunition Manufacturers Ltd. Through Chief Executive 2008 CLC 1462; Kali Khan and others v. Bodlo and others 2013 CLC 507; Muhammad Siddique v. Member, Board of Revenue and others 2013 YLR 756; Santosh Kumar Barwani v. Electrical Inspector. Karachi and another 2009 YLR 32; Haji Sheikh Afzal Hossain v. Bhabani Prosad Saha PLD 1963 Dhaka 25; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Sardar Muhammad Kazim Zia-Uddin Durrani and others v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148 ref.

Muhammad Arif Khan for Petitioners.

Muhammad Yasir Khattak for Respondent.

P L D 2022 Peshawar 221

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

Sardar AMAN KHAN, ADVOCATE SUPREME COURT OF PAKISTAN---Petitioner

Versus

KHYBER PAKHTUNKHWA BAR COUNCIL through Chairman/Advocate General, KPK, Peshawar and 9 others---Respondents

Writ Petition No. 775-A of 2022, decided on 16th June, 2022.

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

----S. 3(1)(ii)---Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010, Rr. 15(i) & 94---Constitution of Pakistan, Art.199(5)---Elections of Provincial High Court Bar Association---Nomination papers---Constitutional petition filed against orders of the Secretary Khyber Pakhtunkhwa Bar Council ('the Secretary') and Chairman notified, High Court Bar Association Election ('the Chairman') by which nomination papers of a candidate were accepted---Maintainability---Secretary and the Chairman did not fall within the meaning of 'persons' as per Art. 199(5) of the Constitution---Khyber Pakhtunkhwa Bar Council had no statutory rules and it was not performing any function in relations to the affairs of Federation, Provinces or any local authority---Furthermore there was also the presence of adequate and alternate remedy available to the petitioner in the form of an appeal to Pakistan Bar Council---Present matter related to the internal affairs of Bar Association and an adequate remedy was also available to the petitioner, therefore the constitutional petition was not maintainable.

Mirza Muhammad Nazakat Baig v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another 2020 SCMR 631; Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others 2021 SCMR 425 and Sardar Qurban Ali Dogar v. Pakistan Bar Council through Chairman and 8 others 2022 CLC 649 ref.

P L D 2022 Peshawar 226

Before S M Attique Shah and Muhammad Faheem Wali, JJ

SEHRISH HABIB, ADVOCATE and 17 others---Petitioners

Versus

REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR---Respondent

Writ Petition No. 226-A of 2022, decided on 18th February, 2022.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ against High Court---Petitioners were aggrieved of change in criteria of examination held by High Court for appointments of vacancies advertised---Validity---Petitioners were not directly affected by relaxation in criteria as well as extension in number of candidates allowed to appear in written examination and had no locus standi before High Court---Supreme Court and High Court, under Art. 199(5) of the Constitution, were excluded from the term "person"---No writ could be issued by High Court under Art. 199 of the Constitution to Supreme Court or to itself---Constitution did not intend that remedy of writ was available against High Court or Supreme Court---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Government of Punjab through Chief Secretary and 3 others v. Sardar Zafar Nbal Dogar 2011 SCMR 1239; ABWA Knowledge Village (Pvt.) through Director and another v. Federation of Pakistan through Secretary, National Health Services and another 2021 MLD 1455 and Gull Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others PLD 2021 SC 391 rel.

Petitioner No.1 in person and on behalf of rest of the Petitioners.

Nemo for Respondent (in motion).

P L D 2022 Peshawar 229

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

AFZAL KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary, LCB, Civil Secretariat, Peshawar and others---Respondents

Writ Petition No. 883-M of 2021, decided on 17th May, 2022.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Good governance---Administration of justice---Public functionaries---Duty---Public transport terminals/ stands/Adda---Petitioner sought direction to respondents for removal of unauthorized public transport terminals/stands/Adda located at different locations in the city---Validity---Administration with implementation of government policy is backbone of government---One of the important reasons is practical concern that government today has to work towards public interest---First and foremost object of public administration is to effectively deliver public services---District and sub-divisional administration have a special status in implementing policies of government---Law requires district administration to be organized and effectively operate for increasing productivity quickly---Such aspects have given birth to new subdiscipline of development administration---When authorities could not maintain elimination/closure of illegal stands/Adda, which on one hand was their duty, requirement of law and on the other hand was right of citizens---Law had provided a mechanism for bus terminals/stands and for its smooth implementation regional transport authority was to play an effective role---Any failure in implementation of law amounted to negligence/mal-administration on their part which could raise question---Public functionaries were expected to perform their duties well within the prescribed limits of law of land---When a thing was required to be done in a particular manner, it must be made in that manner and not otherwise---Duties of respondents/functionaries of government were to act in accordance with law by not allowing anyone to do as per his desire and wish---To maintain law and order situation and to implement policies of government was the duty of authorities---High Court directed the authorities to close all illegal stands/terminals/Adda in the entire district---Constitutional petition was disposed of accordingly.

Qamar Javed v. Gul Jahan 2005 MLD 1329; Syed Bashir Hussain v. Abdul Waheed 2013 MLD 1675; SNGPL v. OGRA PLD 2013 Lah. 289; Cantonment Board Clifton v. Sultan Ahmad Siddique 2016 CLC 919; Muhammad Akram Javid v. Bashir Ahmad Soauk 2016 CLC 1751; Hassan Bakhsh v. Sultan 2016 MLD 1157; Ajmir Shah, Ex-Sepoy v. The Inspector General, Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129; Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Shahida Bibi v. Habib Bank Limited PLD 2016 SC 995 and Human Rights Cases Nos. 4668 of 2006 and others PLD 2010 SC 759 rel.

Akhtar Munir Khan and Muhammad Ayaz Khan for Petitioner.

Raza Uddin Khan, A.A.G. for Official Respondents along with Mehran Khan, AC Khwazakhela, Swat.

Faisal Khan for Respondent/TMA Khwazakhela along with Muhammad Yaseen Khan, TOR, TMA, Khwazakhela.

P L D 2022 Peshawar 237

Before Muhammad Nasir Mahfooz and Wiqar Ahmad, JJ

KARIM BAKHSH and others---Petitioners

Versus

ZAHIR SHAH, SUBEDAR MALAKAND LEVIES and others---Respondents

Writ Petitions Nos. 737-M, 1366-M, 714-M of 2020 and 6-M of 2021, decided on 3rd March, 2021.

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

----Ss. 3, 8 & 8-A---Prevention of illegal possession of property---Delivery of possession of property to owner---Appeal---Expression "any order made"---Interpreted.

Section 3 of the Illegal Dispossession Act, 2005, defines the offence of illegal dispossession as well as furnishes penalty for contravention thereof. The punishment provided under the subsection (2) of section 3 covers the case of contravention of the dictates of sub-section (1) of section 3. Subsection (3) of section 3 covers all the rest of cases of forcible and wrongful dispossession. Section 8 provides for the remedy of restoration of possession in the cases of wrongful dispossession from immovable property as provided in S. 3. Section 8-A has made all the orders passed under subsections (2) and (3) of section 3 as well as orders under section 8(1) as appealable.

Section 8-A starts with the connotation "any order made". Word "any" is a word of vast amplitude. Legislature has used the word "any" because it had been cognizant of the fact that an entire mechanism relating to filing, scope and the categories of appealable orders has not been furnished in the Illegal Dispossession Act, 2005, (like it is in Criminal Procedure Code, 1898). The legislature, therefore, intended to cover the full spectrum of orders passed under subsections (2) and (3) of section 3 as well as all orders passed under S. 8(1). When it is said that the full spectrum of orders is passed thereunder, it cannot then be limited to orders of conviction passed under subsections (2) and (3) of S. 3 or affirmatively making an order for restoration of possession under sub-section (1) of S. 8. It would include all the orders passed under said provision of law including the refusal to pass such orders there-under.

Subsection (2) of S. 3 contains general words like it makes an act punishable because of contravention of the provision of subsection (1) of section 3. When the Court says that contravention of the provision of subsection (1) of section 3 has not taken place whether it is after a full-fledged trial or after the investigation is conducted and the person has not yet been indicted it would carry same effect that the Court has held that a case of contravention of subsection (1) of section 3 has not been existing. In such a situation, it would equally be an order under subsection (2) or subsection (3) of section 3, for the purpose of section 8-A. It becomes clear that it is for this very reason of intending to cover all the orders passed under subsections (2) and (3) of section 3 that the Legislature has used the words "any order". Same would be the case of refusal to handover possession under subsection (1) of section 8 and all the orders passed under it would be appealable.

Mst. Farah Deeba v. Said Muhammad and another (Cr.M. No. 03-M of 2019) rel.

When allegations of commission of an offence under S. 3 are brought before a competent Court, then there may emerge two situations, one is that the Court finds those allegations substantially true and proved beyond reasonable doubt, and then passes an order of conviction under subsection (2) or (3) of S. 3; the other situation may be that when a Court entertains reasonable doubts that the prosecution or complainant has failed to prove case against the respondent/accused, then in that case the Court would naturally pass an order of acquittal and would hold that contravention of the provisions of section 3 have not been proved. The latter case would also be covered in the definition of the words "any order" and would be appealable under section 8-A.

Another scenario is that a person comes up with a complaint of commission of contravention of the provisions of section 3. The Court marks such complaint for investigation under section 5, wherein the investigation report is submitted and the Court comes to the conclusion that there has been no substance in the allegations of illegal dispossession as levied in the complaint and dismiss the complaint summarily. In that case also, the Court gives a finding, on the basis of material before it, that the allegations of contravention of provisions of subsection (1) of section 3 as well as wrongful dispossession alleged otherwise have not been committed. Such order would also be considered an order made under subsections (2) and (3) of section 3.

Order of summary dismissal of complaint is not an order under section 5 or any other provision of the Illegal Dispossession Act, 2005 but an order made under section 3.

Provision of appeal was inserted in order to make the orders passed under the Illegal Dispossession Act, 2005 appealable before an Appellate Court, which may have the powers and competence to give a re-thought to the factual issues involved therein. Provisions of Criminal Procedure Code, 1898, have been made applicable under section 9 and when the right of appeal has been given, then one can safely make resort to the provisions of Criminal Procedure Code, 1898 for knowing the powers of an Appellate Court. The Appellate Court would, therefore, have all the powers of an Appellate Court provided under the relevant provisions of Criminal Procedure Code, 1898.

Purpose of the legislature while inserting S. 8-A had, therefore, been clear that it wanted to make orders passed under the Illegal Dispossession Act, 2005 appealable so as to afford a chance to the aggrieved party, which may be complainant or accused to avail the remedy of appeal, wherein the appellate forum would have all the powers for re-assessing the material available on record as well as re-appreciating the evidence, as the case may be.

Literal construction supplemented by purposive construction leads to the conclusion that all the orders passed under section 3 as well as subsection (1) of section 8 have been made appealable before the High Court.

(b) Words and phrases---

----"Any"---Connotation.

Oxford Dictionary, 12th edition; Government of NWFP through Chief Secretary and another v. Muhammad Irshad and 3 others PLD 1995 SC 281 and Reference No. 2 of 2005 by the President of Pakistan PLD 2005 SC 873 rel.

Iftikhar Ahmad (Senior), Rahman Ali Khan, Barrister Dr. Adnan Khan and Abdul Jalil for Petitioners.

Said Muhammad Durrani for Private Respondents (in W.P. No.6-M of 2021).

Abdul Nasir, amicus curiae.

Razauddin Khan, Addl:A.G for the State.

P L D 2022 Peshawar 248

Before Musarrat Hilali and Abdul Shakoor, JJ

PESHAWAR HIGH COURT BAR---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 2206-P of 2022, decided on 15th September, 2022.

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

----Ss. 155(2) & 156(1)---Penal Code (XLV of 1860), S. 220---'Cognizable' and 'non-cognizable' offences---Distinction---Powers of police to investigate and arrest without warrant---Scope---For "cognizable" offences, under S.156, Cr.P.C, police has the powers to investigate the case without formal permission of the Magistrate and can arrest accused without warrant---Whereas for "non-cognizable" offences, such authority is not vested with police officer under subsection (2) of S.155, Cr.P.C.---If a police officer in a "non-cognizable" offence arrests any person or investigates the case without permission of the court, such course will not only be in violation of the mandatory provisions of subsection (2) of S.155, Cr.P.C. but also will expose the official to penal consequences or prosecution under S.220, P.P.C.

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

----Ss. 154 & 155---Penal Code (XLV of 1860), Ss. 506, 189, 427, 148 & 149---Constitution of Pakistan, Art. 199---Quashing of FIR in constitutional jurisdiction of High Court---Non-cognizable offences---In the present case FIR was registered against certain lawyers on the allegation of causing damage to government property inside Deputy Commissioner Complex---As per contents of the FIR the mob was neither armed with deadly weapons nor caused injury to any person nor extended any threat to cause death or grievous hurt, therefore, the allegations made in the FIR, on the face of it, did not constitute cognizable offences---Hence, lodging of the present FIR in non-cognizable offences was in utter violations of the provisions of the Criminal Procedure Code, 1898---Constitutional petitions were allowed and impugned FIR was quashed.

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

----Ss. 154 & 155---Constitution of Pakistan, Art. 199---Quashing of FIR in constitutional jurisdiction of High Court---Non-cognizable offences---First Information Report (FIR) can be quashed if from the bare reading of its contents, a cognizable offence is not made out.

Barrister Amir Khan Chamkani for Petitioner.

Muhammad Sohail, Addl. A.G. for Respondents.

Date of hearing: 15th September, 2022.

P L D 2022 Peshawar 251

Before Qaiser Rashid Khan, C.J.

SANA ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Transit Bail No. 3899-P of 2021, decided on 19th November, 2021.

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

----Ss. 4 & 5---Superintendence and administration of the Agency---Powers of the members of the Agency---Territorial jurisdiction---Scope---Accused sought post arrest transit bail in an FIR---Contention of accused was that he initially approached the Administrative Judge, Anti-Terrorism Courts at district 'P' for his release on bail but the same was returned to him for want of jurisdiction to entertain the same as the FIR was registered at district 'I', as such, accused had got no other adequate remedy---Held; that FIR was lodged by the FIA---Federal Investigation Agency Headquarters had been declared as a Police Station for the purposes of Code of Criminal Procedure and its jurisdiction was extended to the whole of Pakistan---Accused had also been charged under S. 7 of the Anti-Terrorism Act, 1997 in the FIR, therefore, the Anti-Terrorism Court at 'P' had jurisdiction to try the case of the accused---Accused was at liberty to file a fresh post arrest bail petition before the Anti-Terrorism Court which would be decided on merits---Constitutional petition was disposed of accordingly.

Tariq Khan Hoti and Shah Hussain for Petitioner.

Amir Javed, Additional Attorney General for the Federation along with Inam Gandapur, Additional Director, Rana Abid, Shahbaz Noor, Deputy Directors and Rana Wajid, Assistant Director, CTW, Islamabad for Respondents.

Syed Sikandar Hayat Shah, Additional Advocate General for the State.

Date of hearing: 19th November, 2021.

P L D 2022 Balochistan 1

Before Naeem Akhtar Afghan, J

Messrs A&B PETROL URUNLERI PAZARLAMA through Authorized Attorney---Plaintiff

Versus

MV NAZLICAN and others---Defendants

Admiralty Suit No. 2 of 2020, decided on 4th January, 2021.

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

----Ss.3 & 4---Suit for recovery of money---Maintainability---Action in "rem" and "personam"---Scope---Beneficial ownership---Proof---Plaintiff sought recovery of liability of outstanding price of fuel/bunker services provided by it to defendant company for ships--- When the suit was filed defendants had already sold the ships which were in the process of breaking---Validity---Admiralty jurisdiction of High Court under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, could be invoked to determine any cause / claim in respect of necessaries supplied to a ship including fuel / bunker service--- According to S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, if a claim under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, arising in connection with a ship, claim could give rise to a maritime lien on the ship only when Admiralty jurisdiction of High Court could be invoked by an action in rem against the ship, if at the time when the action was brought, that ship was beneficially owned in respect of majority shares therein by that person who was liable to the claim in an action in personam---Suit filed by plaintiff was not maintainable under Admiralty jurisdiction of High Court---Suit was dismissed, in circumstances.

Messrs International Bunkering Middle East DMCC v. M. T. Tridonawati 2012 CLD 1611; Atlantic Steamer's Supply Company v. m. v. Titisee and others PLD 1993 SC 88 and Hong Leong Finance Limited v. Asian Queen PLD 1991 SC 1021 rel.

Yousuf Kazi v. s.s Phoenix PLD 1978 Kar. 1052; Sajid Plastic Factory v. MSC Bahamas PLD 2020 Sindh 568; Khadija Edible Oil Refinery (Pvt.) Ltd. v. M.T "Galaxy" 2011 CLD 709; Ahmed Investment Ltd. v. M.V. "Sunrise IV" PLD 1980 Kar. 229; Yukong Ltd. South Korean Company. v. M.T. Eastern Navigator PLD 2000 SC 57; Diamond Engineering Mechanical, Electrical and Marine Engineering Contractors v. M.V LUCTOR-I PLD 1978 Kar. 837 and MSC Textiles (Private) Limited v. Asian Pollux 2007 CLD 1465 distinguished.

A. Nawaz Osmani and Nusrat Baloch for Plaintiff.

Aga Zafar Ahmed for Defendants Nos. 1, 2, 6 and 8.

P L D 2022 Balochistan 21

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

EDUARD BILYAYEV through Attorney and 4 others---Appellants

Versus

M.V. "FIGARO" (EX-FREE GODDESS) through Messrs Commercial Metal---Respondent

Admiralty Appeals Nos. 1 and 2 of 2018, decided on 23rd November, 2020.

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

----Ss. 3, 4 & 7---Civil Procedure Code (V of 1908), O.VII, R.11---Action in rem---Scope---Rejection of plaint---Sale of ship---Appellants/ plaintiffs sought recovery of outstanding wages from respondent/ defendant company on the plea that it was beneficial owner of ship in question---Trial Court rejected plaint filed by appellants/ plaintiffs for the reason that the ship had already been sold---Validity---Action in rem could be invoked against ship or property against which maritime lien was claimed by plaintiff---Maritime lien was a privileged claim which could be exercised over res (ship)---Such claim occurred the moment cause of action had arisen and travelled with the res (ship) secretly and unconditionally and could be enforced by an action in rem---Such right only extinguished when ship was demolished--- Action in rem against ship or her sister ship arose subject to condition enumerated in S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980---Purchaser/vendee of ship filed application under O. VII, R. 11, C.P.C. along with bill of sale, whereby ship in question was owned/purchased through a leasing company free from all encumbrances---Sale document was not denied specifically by appellants/plaintiffs at the time when suit was filed--- Beneficial title in ship in question was passed on to new owner and condition laid down by S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, was not satisfied---High Court declined to invoke action in rem against the ship, particularly when the ship had been demolished---Appeal was dismissed, in circumstances.

PLD 1986 Quetta 107; 2005 YLR 2838; PLD 2006 SC 214; PLD 2000 Kar. 258; PLD 1996 Kar. 365; PLD 2000 Kar. 691; 2003 CLC 1602; 2013 MLD 1132; PLD 1990 SC 859; 1995 SCMR 584 and AIR 1922 P.C. 269 ref.

1989 CLC 2168; 2012 SCMR 123; Hong Leong Finance Limited v. m.v. Asian Queen through Nazir High Court PLD 1991 SC 1021; Atlantic Steamer's Supply Copmany v. m.v. Titisee and others PLD 1993 SC 88; Inham Refrigeration b.v. v. The owners of "F.T. Parivash and Transocen Holdings Ltd. PLD 1989 Kar. 65; Messrs Maratos and Co. v. Rice Traker and 2 others PLD 1989 Kar. 94; Semco Salvage Pte Limited v. m.v. Kaptan Yusuf Kalkavan Turkish and another 1995 MLD 706; Azhar Ahmad Khan and others v. M.V. and 3 others PLD 1985 Quetta 278; Metal Construction of Greece S.A (Mekta S.A), Athens through Attorney v. Owners of the Vessel m.v. Lady Rea 2013 CLD 1829; Jaffer Brothers (Pvt.) Limited v. m.v. 'Eurobulker II' presently Brethed at Moorings in Karachi Port to be served through Master 2002 CLD 926; Messrs Khadija Edible Oil Refinery (Pvt.) Ltd. v. m.v. "Glaxy" and 4 others 2011 CLD 709 and Messrs Sun Line Agencies Ltd. v. Vessel M.V. "Psilorities" and 2 others 1984 CLC 1553 rel.

Muhammad Riaz Ahmed and Dr. Adeel Abid for Appellants (in Admiralty Appeals Nos. 1 and 2 of 2018).

Mujeeb Ahmed Hashmi for Respondent (in Admiralty Appeals Nos. 1 and 2 of 2018).

P L D 2022 Balochistan 30

Before Abdul Hameed Baloch, J

QUDRATULLAH---Petitioner

Versus

BAKHT MUHAMMAD alias QARI and another---Respondents

Civil Revision No. 454 of 2019, decided on 20th August, 2021.

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

----Arts. 70, 72, 79 & 117---Suit for specific performance---Concurrent dismissal---Validity---Petitioner/plaintiff was under obligation to prove the alleged agreement---Witness was neither attesting witness of the alleged agreement nor present at the time of purchase of suit shop---Statement of witness was self-contradictory in cross-examination---Respondent/defendants produced registered sale deed which could not be refuted by shaky inconsistent oral evidence---No evidence on record to show that registered sale deed was forged/fictitious---Petitioner failed to produce any document to rebut the registered sale deed---Revision petition was dismissed accordingly.

Shamshad v. Arif Ashraf Khan 2010 SCMR 473 rel.

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

----Art. 79---Document---Proof of execution---No document could be read as evidence unless two marginal witnesses testify---Mandatory upon party to prove the contents of the document it relies on, by producing two witnesses---Requirement of marginal witnesses was sine qua non, not merely to identify signature of executant but to prove that the executant has put signature before witnesses---Statement of scribe did not equate the testimony of attesting witnesses.

Farid Bakhsh v. Jind Wadda 2015 SCMR 1044 rel.

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

----Arts.70 & 72---Registered sale deed---Proof---Oral and documentary evidence---Preference---Scope---Documentary evidence could not be rebutted orally---It should be rebutted through document---Registered sale deed had always preference over oral evidence.

Tahir Hussain Malik's case 1995 SCMR 1407 rel.

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

----Art. 117---Burden of proof---Discharge of---Scope---Burden of proof lay on the person who raised the same---Party was to discharge his burden and stand on his own legs to succeed.

Habibullah v. Mir Manzoor Hussain 2014 MLD 303 rel.

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

----S. 115---Revisionary jurisdiction---Concurrent findings---Scope of revisionary jurisdiction of High Court was limited and confined to correction of jurisdictional defect, patent illegality/irregularity affecting the merit of the case and not for substantiating its own finding---High Court could not disturb the concurrent findings on factual controversy arrived by the fora below until the impugned judgments are based on misreading/non-reading of evidence.

Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469 rel.

Mati Ullah Khan and Arif Bazai for Petitioner.

Iqbal Kakar for Respondents.

P L D 2022 Balochistan 36

Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ

CHURCH MISSIONARY TRUST ASSOCIATION through Authorized representative---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Religious Affairs, Islamabad and others---Respondents

Constitution Petition No. 1037 of 2021, decided on 7th September, 2021.

(a) Balochistan Protection of Communal Property of Minorities Act (XI of 2018)---

----S. 3---Property of minorities---Bar on sale/transfer of---Scope---Petitioner/Church Missionary Trust Association challenged the Deputy Commissioner's order restraining the revenue authorities from issuing revenue entries/documents regarding communal properties of Christian Community to anyone except the person authorised---Validity---Minorities, particularly of Christian community, owned numerous properties all across the province and various fake/fictitious groups of encroachers/land mafia having power of attorneys of Church Missionary Trust Association and different Dioceses had been emerging from time to time falsely claiming to be representatives of the said organisations and Christian community and asserting wrongful title and ownership in respect of the properties of community spreaded across the province and in that regard a number of civil suits were pending before different Courts---High Court disposed of the Constitutional petition in the terms that firstly, property of a minority community meant for its communal use should not be bought/sold/transferred by any person; secondly, every person belonging to minorities was entitled to receive certified copies of revenue entries/document in respect of communal properties of minorities, but no one could buy the same; thirdly, Deputy Commissioner or any other authority was not empowered to approve the transfer of communal properties of minorities; fourthly, petitioner or representative of different Dioceses could transfer/sell/buy/alienate the communal properties of minorities; fifthly, impugned order/letter was set-aside being illegal/unlawful/void ab initio; sixthly, all judges/qazis of province were directed to decide the fate of pending suits regarding the communal properties of minorities in the light of provisions of Balochistan Protection of Communal Property of Minorities Act, 2018.

(b) Constitution of Pakistan---

----Arts.20, 21, 22, 26, 27 & 36---Religious minorities, protection of---Islamic law---Respect for the basic rights of minorities would create a harmonious environment in the society---Such harmony would need ethical firmity in the norms of society and strong/ rigid law to help minorities from all the flaws that emerge from inertia of the status-quo---Islamic law granted non-Muslim communities the right to considerable autonomy of self-determination in their internal affairs regarding education, tax collection, law and religion---Treatment meted out by the Holy Prophet (PBUH) to the enemies of Islam at the conquest of Makkah was actually what Islam stood for---Constitution had made it obligatory on the State to safeguard legitimate rights and interest of minorities including their due representation in Federal/Provincial services.

(c) International Law---

----Religious minorities, protection of---Every State was duty bound to take necessary measures to ensure that the persons belonging to minorities may exercise fully/effectively all their human rights and fundamental freedoms without any discrimination and in full equality before law---States were required to create favourable conditions to enable minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices were in violation of national law and contrary to international standards.

Muhammad Mansoor Mir for Petitioner.

Syed Iqbal Shah, Deputy Attorney General for Respondent No.1.

Syed Ayaz Zahoor for Respondents Nos.6, 7 and 9.

Shai Haq Baloch, Additional Advocate General for Official Respondents.

P L D 2022 Balochistan 43

Before Abdul Hameed Baloch, J

MUHAMMAD SARFARAZ---Petitioner

Versus

NAJEEBULLAH and another---Respondents

Civil Revision No. 309 of 2020, decided on 25th August, 2021.

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

----O. XVII, R. 3 & O. XLI, Rr. 11 & 17---Divergent suits for declaration, cancellation of mutation entries and permanent injunction---Petitioner's suit was dismissed while respondent's suit was decreed vide consolidated judgement/decree---Petitioner's appeal was dismissed by appellate Court under O. XVII, R. 3 of Civil Procedure Code, 1908---Validity---Order XVII, R. 3 of Civil Procedure Code, 1908, was applicable to proceedings of suit not in appeal---Word "suit" was used in the said provision---Appeal could be dismissed in default only when it was called on for hearing and appellant was absent, meaning thereby, an appeal could be dismissed in default only on the date fixed for its hearing---Appellate Court was not authorised to dismiss the appeal in default on the date which was not date of hearing---Record revealed that the date fixed by the appellate Court was not date of hearing---Order-sheets revealed that the notice had not been served upon the appellant---Notices were issued but the same were received unserved---Appellate Court issued notices for appearance but on said date dismissed the appeal under O. XVII, R. 3 of Civil Procedure Code, 1908---Order passed by the appellate Court was not in accordance with the law---Right of parties could not be defeated merely upon technicalities---Revision petition was accepted and case was remanded to appellate Court.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar PLD 1975 SC 678 rel.

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

----O. XLI, R. 14(2)---Notices by Appellate Court, service of---Presumption---Scope---Appellate Court might itself cause notice to be served on respondent/his pleader---Presumption of service upon respondent could not be drawn on the basis of endorsement by the process server that "respondent had refused to receive summons".

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

----O. XVII, Rr. 2, 3 & XLI, R. 17---Order XVII, Rr. 2 & 3 of Civil Procedure Code, 1908 are applicable in proceeding with suit while O. XLI, R. 17 thereof was to apply in case of appeal.

Nowsheri Khan v. Said Ahmed Shah 1983 SCMR 1092 rel.

(d) Administration of justice---

----Technicalities---Order without notice to parties---Principle---Rule of justice demand that parties could not be non-suited on technicalities when their valuable rights were involved/subjudiced.

Khusi Muhammad's case PLD 1967 Lah. 151 and Anwar Khan v. Fazal Manan 2010 SCMR 973 rel.

Abdul Zahir Kakar for Petitioner.

Shahid Javed for Respondent No.2.

P L D 2022 Balochistan 51

Before Muhammad Ejaz Swati, J

BAHADUR KHAN---Petitioner

Versus

KARIM GUL and 4 others---Respondents

Civil Revision No. 278 of 2020, decided on 21st October, 2021.

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

----Arts. 17 & 79---Civil Procedure Code (V of 1908), O. VI, R. 2---Respondent filed suit for declaration/specific performance claiming that he purchased property from another respondent for certain consideration; that out of said property some portion was owned by yet another respondent and a bigger portion was in the name of petitioner; that petitioner had given power of attorney for sale of his respective share; that he had paid major part of consideration amount and remaining consideration was to be paid at the time of mutation---Suit was concurrently decreed---Petitioner contended that plaintiff allegedly purchased the suit property form petitioner through his attorney but no such power of attorney was produced to substantiate his claim that he acted as agent of the petitioner; that whole suit was based on alleged agreement which had not been produced; that suit had been decided on oral evidence which was beyond the pleadings---Contention was that sale of the suit property had not been denied by attorney---Validity---Petitioner had specifically denied the contention of plaintiff (in his written statement) that neither he/his sons sold out their land to anyone nor gave authority to sell out their land and Trial Court had framed specific issue in respect of such controversy---Plaintiff's witnesses had deposed the facts beyond the pleadings; none of the witnesses attested the impugned agreement---Plaintiff stated (in evidence) that petitioner verbally sold suit property to him while in his plaint asserted that the same was purchased by him through attorney of the petitioner---Evidence of the plaintiff was not consistent with his averments in plaint---Agreement was denied by the petitioner and neither such agreement was produced on record nor marginal witnesses thereof were produced---Both essential documentary evidence (i.e. agreement to sell and power of attorney) had not been produced by plaintiff to substantiate his case---Findings of appellate Court suffered from material irregularity/illegality/mis-construction of law---Revision petition was allowed; impugned judgments/decrees were set aside; and suit was dismissed, in circumstances.

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

----Arts. 18 & 19---Civil Procedure Code (V of 1908), O.VI, R. 2---Res jestae---Evidence, relevancy and consistency of---Principle---Averment made in pleadings did not constitute evidence, but evidence led in party's support must be consistent therewith---Anything stated outside the scope of the averments in pleadings could not be looked into.

2006 SCMR 562; PLD 1976 SC 469 and 1996 SCMR 336 rel.

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

----Arts. 17 & 79---Agreement to sell---Attestation and proof---Scope---Agreement to sell an immovable property squarely falls within the provision of S.17(2) of Qanun-e-Shahadat, 1984 and has to be compulsorily attested by two witnesses---Such requirement is a sine qua non for validity of agreement---For proof of such agreement, it is mandatory that two witnesses must be examined by parties as per Art. 79 of Qanun-e-Shahadat, 1984.

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

----Arts. 30, 113 & 117---Civil Procedure Code (V of 1908), O. VI, R. 2---Duty to prove case---Admission of co-defendant regarding agreement would not absolve the plaintiff to prove the same in terms of law enunciated by Supreme Court in Hafiz Tassaduq Hussan's case (PLD 2011 SC 241).

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

----Arts. 17 & 79---Powers of Attorney Act (VII of 1882), S. 2---Power of attorney---Attestation and proof---Power of attorney is a document which creates financial liabilities, as such, is to be attested by at least two witnesses and proved by evidence of attesting witnesses as required under Qanun-e-Shahadat, 1984.

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

----S. 17---Contract Act (IX of 1872), S. 201---Power of attorney---Compulsory registration of---Scope---Power of attorney confers only those powers which are specified therein and in case power of attorney creates any right, title or interest in immovable property, then it should be compulsorily registered as per law.

Syed Saleem Akhtar for Petitioner.

Naseebullah Sagi Tareen for Respondent No.1.

Naseer-ud-Din Mengal, Additional Advocate General for Official Respondents.

P L D 2022 Balochistan 58

Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ

Dr. ILYAS and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others---Respondents

Constitution Petition No. 379 of 2021, decided on 6th December, 2021.

(a) Bolan University of Medical and Health Sciences Act (VII of 2017)---

----S. 15---Constitution of Pakistan, Art. 105---Vires of S.15, Bolan University of Medical and Health Sciences Act, 2017---Vice-Chancellor---Appointment by Governor/ Chancellor without advice by Government/ Cabinet/Chief Minister---Scope---Chancellors of universities had to be bound in the same manner as the Governor of a province would act and was bound under clause (1) of Art. 105 of the Constitution---Section 15(1) of the Bolan University of Medical and Health Sciences Act, 2017, was inserted in complete disregard of the spirit of 18th Amendment and in violation of Art. 105 of the Constitution---Contention that the Governor while working under a statute was not bound to act on the advice of the Provincial Government was devoid of force and had no legs to stand---Any attempt to expound or advance any distinction between the Governors' constitutional powers/functions and his powers or functions under any statute would run contrary to the law---Governor was bound to act on the advice of Chief Minister in appointment of Vice-Chancellor of government universities---Constitutional petition was allowed and Cls. (1) & (2) of S.15 of the Act, 2017, were struck down from the statute being violative of Art. 105 of the Constitution.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Aamir Raza Ashfaq v. Minhaj Ahmed Khan 2012 SCMR 6 rel.

(b) Constitution of Pakistan---

----Fourth Schedule, Part II, Entry No. 12---Standards in institutions for higher education and research, scientific and technical institutions---Before the 18th Amendment, education as a subject was placed at Entry 38, under Part I of the Concurrent List, which was moved to the Federal Legislative List, Part II, as Entry 12---Joint jurisdiction of both the Provinces and the Federation had been established over the subject---Education was recognized as a right but not a justiciable one, however, the 18th Amendment Act made the said right justiciable, i.e. it could be enforced through Courts---Eighteenth Amendment ensured autonomy for the federating units and it was after the passage of the same that the subject of education fell under the exclusive domain of the provinces---Federal Legislature could not enact legislation in the provinces except in the matter pertaining to higher education, research and scientific and technical institutions.

(c) Constitution of Pakistan---

----Arts. 48 & 105---Advice of Prime Minister and Chief Minister---Strict construction---Scope---Except otherwise so provided under the Constitution, the President and Governor are bound by the advice tendered by the Prime Minister and the Chief Minister respectively and in the manner prescribed in the Constitution---Governor has no other powers except those which are expressly conferred upon him by the Constitution.

Muhammad Ali Kanrani and Hazrat Ali Kakar for Petitioners.

Shai Haq Baloch, Addl. A.G. and Syed Iqbal Shah, D.A.G. for Official Respondents.

Khalid Sultan for Respondent No.6.

P L D 2022 Balochistan 66

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

KAZIM ALI---Appellant

Versus

ISHAQ ALI---Respondent

R.F.A. No. 166 of 2019, decided on 22nd March, 2021.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 3 & 8---Civil Procedure Code (V of 1908), O. VII, R. 11 & O.XXIII, R. 1---Defamation---Notice of action---Rejection of plaint---Withdrawal of earlier suit---Limitation---Scope---Appellant assailed the rejection of his plaint in a suit filed by him for defamation and damages---Respondent had filed an application for rejection of plaint under O. VII, R. 11, C.P.C. stating therein that the plaintiff had filed a suit for damages and defamation against him on similar grounds before the Court of Additional District Judge and the same was simply withdrawn and that the appellant had also instituted a second suit in the Court of Civil Judge against him for damages and defamation on similar cause of action, in which plaint was rejected by the Court---Validity---Appellant had not mentioned such facts in his plaint and it was clear that he had approached the Trial Court with unclean hands---Appellant having withdrawn the earlier suit unconditionally was precluded from re-agitating the same cause of action before the Trial Court on the basis of same subject matter---Subsequent suit was barred under O. XXIII, R. 1(3) of C.P.C.---Suit was also barred by S.3, read with Ss. 8 & 12 of Defamation Ordinance, 2002---Appellant had given legal notice to the respondent with a delay of eight years---Trial Court had rightly rejected the plaint---Appeal was dismissed.

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

----O. VII, R. 11---Rejection of plaint---Scope---Only plaint and its accompaniments can be examined for deciding the question of rejection of plaint.

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

----O. VII, R. 11---Rejection of plaint---Scope---If from the statement of the plaintiff, the suit appears to be barred by limitation, the plaint shall have to be rejected under O. VII, R. 11, C.P.C.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 and Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.

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

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---Order XXIII, R. 1(3), C.P.C. provides that where the plaintiff as against all or any of the defendants withdraws a suit or abandons a part of the claim without permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464 and Azhar Hayat v. Karachi Port Trust through Chairman and others 2016 SCMR 1916 rel.

(e) Defamation Ordinance (LVI of 2002)---

----S. 8---Notice of action---Limitation---Scope---Plaintiff, within two months after publication of defamatory matter having come to his notice or knowledge, shall give fourteen days' notice in writing of his intention to bring an action and in absence thereof no action lies.

(f) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---Limitation---Scope---Defamation Ordinance, 2002, is a special law which has prescribed limitation for filing suit for defamation and Limitation Act, 1908, does not apply to the actions brought under the Ordinance.

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

---S. 3---Dismissal of suit, etc., instituted after period of limitation---Scope---Provisions of S. 3 of Limitation Act, 1908, are mandatory in nature---Every suit instituted after the period of limitation shall, subject to the provisions of Ss.4 & 25 of the Limitation Act, 1908, be dismissed although limitation has not been set up as a defence.

Iftikhar Raza (absent) for Appellant.

Syed Shamsul Huda (absent) for Respondent.

P L D 2022 Balochistan 73

Before Abdul Hameed Baloch, J

FATIMA---Petitioner

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY through Director General---Respondent

Civil Revision No. 229 of 2017, decided on 31st May, 2021.

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

----S. 10---National Identity Card---Blockage of National Identity Card (CNIC)---Opportunity of hearing---Burden of proof---Scope---Plaintiff obtained manual national identity card and thereafter, obtained CNIC (Computerized National Identity Card) from NADRA (National Database Registration Authority)---On expiry of CNIC, the plaintiff approached the Authority for renewal, which was refused on the ground that her CNIC had been blocked---Record reflected that the plaintiff was duly registered by the Authority under the National Database and Registration Authority Ordinance, 2000 and after fulfilling all legal requirements the Authority had issued CNIC to the plaintiff---Plaintiff was admittedly a citizen by birth as such she was automatically a citizen of Pakistan---Burden of proof was on the Authority to prove that the plaintiff was not a citizen of Pakistan---Mere verbal assertion was no ground to deprive a person from his/her fundamental rights---Right guaranteed by the Constitution could not be taken away by notification---Authority had blocked CNIC of the plaintiff without any notice---Authority had acted arbitrarily and in a capricious manner---Authority had failed to discharge its burden regarding blockage of CNIC---Revision petition was accepted and the suit was decreed.

Hafiz Hamdullah Saboor v. Government of Pakistan through its Secretary Ministry of Interior Writ Petition No. 3748 of 2019 and Director General NADRA v. Bibi Saira, Civil Revision Petition No. 433 of 2019 rel.

(b) National Database Registration Authority Ordinance (VIII of 2000)---

----S. 10---Constitution of Pakistan, Part II, Chap. 1 [Arts. 8 to 28]---National Identity Card---Fundamental rights---Blockage of National Identity Card (CNIC)---Effect---Blockage of CNIC has grave consequences---It effects the person's life and is a denial of fundamental rights as guaranteed by the Constitution---On cancellation or blockage of CNIC the person loses every fundamental right i.e. education, health, employment, etcetera.

(c) Administration of justice---

----No one can be condemned unheard.

(d) Administration of justice---

----Document cannot be refuted by verbal assertion.

Abdul Ghani v. Mst. Yasmeen 2011 SCMR 837 ref.

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

----Arts. 132 & 133---Cross-examination---Unchallenged portion of statement of witness---Evidentiary value---Scope---Where the statement of a witness goes unchallenged, it is presumed to be admitted.

Jan Muhammad v. Abdul Rehman 1999 CLC 266 rel.

Akram Shah for Petitioner.

Nadeem Akhtar, Law Officer NADRA for Respondent.

P L D 2022 Balochistan 81

Before Abdul Hameed Baloch, J

ZAINULLAH---Petitioner

Versus

HIZBULLAH and others---Respondents

Civil Revisions Nos. 142 and 153 of 2019, decided on 29th September, 2021.

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

----O. XXVI, R. 9---Local Commission---Scope---Suit for declaration and injunction---Local commission was appointed with the consent of parties---Court below concurrently dismissed the suit---Petitioners/ plaintiffs contended that judgment of both the Courts below were based on report of local commission and the Courts out rightly ignored the evidence on record; that before final decision, Courts did not decide two applications filed by the petitioners under O. VI, R. 17 read with O. XXIII, R. 1 of the Civil Procedure Code---Validity---Judgments of both the Courts below were based upon report of local commission and considered the report as arbitrator report---Distinction existed between arbitrator and a referee---Local commission was not mandated powers of arbitrator, rather he was only directed to inspect the site and submit report---Consent of parties for appointment of local commission did not mean that parties appointed the local commissioner as sole arbitrator---Miscellaneous applications should be decided first then the main case---Courts below neither dilated upon the case of the parties in light of evidence nor considered the same---Court was to state its finding/ decision on each issue separately---Revision petition was accepted accordingly.

Muhammad Ashraf v. Abdul Rahman 1993 CLC 1875; Nazir Ahmed v. Muhammad Qasim 2004 SCMR 1292; Muhammad Mansha v. Hashmat Ali 2010 YLR 1498 and Capital Development Authority v. Muhammad Hanif Abbasi 2020 CLC 1804 rel.

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

----O. XXVI---Phrase "elucidating any matter in dispute"---Scope---Appointment of local commission was to seek elucidation of any matter in dispute---Words "elucidating any matter in dispute" indicated that the local commission could be appointed only to get certain clarification---Purpose of appointment of local commission was only to seek elucidation of any matter in dispute not as sole arbitrator---When parties led evidence, the court while deciding the matter had to look into the evidence.

Muhammad Bakhsh v. Nazim Din PLD 1978 Lah. 31 rel.

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

----O. XX, R. 5 & O. XLI, R. 31---Issues to be decided separately---Courts below were under legal obligation to decide each issue separately.

Malik Sarwar Awan for Petitioner.

Abdul Khair Achakzai and Ayub Tareen, Assistant Advocate General for Respondents Nos. 1 to 4.

P L D 2022 Balochistan 89

Before Abdul Hameed Baloch, J

NOOR AHMED and others---Petitioners

Versus

Syed MUHAMMAD RAHEEM and others---Respondents

Civil Revision No. 82 of 2017, decided on 30th September, 2021.

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

----Arts. 70, 72, 75, 117, 118, 125 & 126---Suit for declaration, cancellation of instruments and permanent injunction filed by petitioners---Respondents/defendants filed written statement, produced evidence and documents---Suit was concurrently dismissed---Petitioners contended that respondents had failed to establish their right as their eviction application was dismissed by Rent Controller and same was upheld up to the Supreme Court; that judgment passed by Trial Court was in violation of O. XX, R. 5 of Civil Procedure Code, 1908; that documents annexed by the respondents were forged/fabricated; that electricity bill was in the name of plaintiff---Validity---Plaintiff produced three witnesses---One witness stated in cross-examination that suit property was matrookah property and that the same was registered in name of plaintiff in Municipal Record---Second witness stated in cross-examination that he did not know whether the predecessor of plaintiff had purchased the suit property from certain seller---Attorney/son of the plaintiff stated that the suit property was owned by his father since independence; that the same was evacuee property; that they could not produce any document regarding the property being matrookah; that they could not produce any agreement, patta or transfer deed regarding ownership of the suit property---Heavy burden was on the plaintiff/petitioner to prove his title/ownership through cogent, trustworthy and reliable evidence---Plaintiff had to stand on his own legs to succeed and could not take benefit from the weaknesses/shortcomings of the defendants---Petitioner had not produced the electricity bill in accordance with law, nor exhibited---Mere placing the photocopy of bill with the plaint could not be considered---Rent Controller was not mandated under the law to decide the title/ownership of property---Respondent produced/exhibited documents of suit house, order of Deputy Commissioner wherein transfer of lease in favour of predecessor of petitioners was sanctioned; receipts of sale/purchase, agreement, payment of Boom Bara, patta, renewal of patta, etc.---Petitioner failed to controvert the said documents and could not place evidence that such documents were forged/fabricated ones----Documents were duly exhibited without any objection----Presumption of truth was attached to such documents---Revision petition was dismissed accordingly.

Sultan Muhammad v. Muhammad Qasim 2010 SCMR 1630 rel.

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

----Art. 126---Ownership---Proof---Electricity bill---Scope---Document of electricity connection was at best a document that would entitle the department to recover the bill from the occupants and can never be taken to be the evidence of ownership of premises.

Muhammad Ismail v. Maqbool Ahmed 2001 CLC 252 rel.

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

----Art. 125----Landlord and tenant---Relationship---Proof---Ownership of party was not an essential condition to create relationship of landlord and tenant.

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

----Art. 126---Ownership and possession---Proof---Mere possession of property without any legal backing/justification would not create title.

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

----Arts. 70 & 72---Oral and documentary evidence---Value of---Man can tell lie but a document cannot---Documentary evidence carries greater weight as compared to oral evidence---Mere oral assertion is not sufficient to rebut documentary evidence.

Manzoor Hussain v. Abid Hussain PLD 2008 SC 571 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent finding---Scope of interference by High Court in revisional jurisdiction was limited---High Court could interfere in the concurrent finding of Courts below only if it showed that the findings of Courts below were based on misreading and non-reading of evidence or overlooked the material evidence or the Courts below failed to exercise jurisdiction vested in it or assumed jurisdiction not vested in it.

Ansar Iqbal v. Muhammad Ahsan Khan 2021 CLC 1394 rel.

Amanullah Batezai for Petitioners.

Imdad Shah and Ayub Tareen, Assistant Advocate General for Respondents Nos. 1 to 7.

P L D 2022 Balochistan 97

Before Nazeer Ahmed Langove, J

MUHAMMAD AMEEN KHOKAR---Appellant

Versus

MUHAMMAD ASIF AWAN---Respondent

F.A.O. No. 22 of 2020, decided on 29th October, 2021.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 13A---Eviction of tenant---Personal/bona fide need of landlord--- Respondent/applicant/landlord filed eviction application alleging that he purchased house in question and served notice to appellant for payment of rent to him in future and vacant possession of the same being required for his personal bona fide use/occupation---Rent Controller allowed eviction application directing appellant to hand over vacant possession of house and pay outstanding rent/clearance of utility bills---Validity---After having stepped into the shoes of previous landlord, the respondent served notice under S.13A of Balochistan Urban Rent Restriction Ordinance, 1959, and proved through evidence but rent was not remitted to respondent---Tenant committed wilful default---Landlord owned several premises---Tenant could not challenge such right---Landlord had right to occupy his property and could not be deprived of such right only because once it was rented out---Appellant contended that he had purchased the house from son of previous owner, who admittedly was not recorded owner of property, through agreement which proved fake because the same surfaced after the demise of alleged seller---If appellant had purchased the house, how/in what capacity he continued making payment of rent---Personal bona fide need with good faith had been proved---Appellant's witnesses did not support his case in true perspective regarding their presence at time of alleged execution of agreement/making payment of any amount to alleged seller---Appellant did not appear for cross-examination intentionally to make a ground for case's remand---Appellant had admitted his induction as tenant by making payment of rent for many years; he could not challenge the landlord's title without first surrendering the possession to him---Appeal was dismissed accordingly.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13A---Rent Controller, discretionary jurisdiction of---Word "may"---Scope---Under S.13(2) of Balochistan Urban Rent Restriction Ordinance, 1959, Rent Controller had been given discretion not to grant ejectment application on ground of non-payment of rent if the facts of case so warrant---Words "Controller may make an order directing the tenant to put the landlord in possession of the building" had been used in S.13(2) of the Ordinance, whereas it had been provided in S.13(6) of the Ordinance that if a tenant had made default of rent order passed under said subsection (6), his defence would be struck off---Use of word "shall" in S.13(6) of the Ordinance was in contrast to word "may" used in subsection (2) of S.13 of the Ordinance---Rent Controller had discretion in the matter falling under S. 13(2) of the Ordinance.

(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Personal/bona fide need of landlord---Proof---Primary/ essential requirement of law for eviction of tenant was bona fide need by landlord, which stood discharged the moment he would appear in witness box and make such statement on oath, or in the form of an affidavit in evidence if it remained un-shattered in cross-examination and un-rebutted in evidence adduced by the opposite party---Question of which premises would be appropriate for landlord was a matter was exclusively left to him to decide.

Mujeeb Ahmed Hashmi and Sharjeel Haider for Appellant.

Ms Sana Suleman for Respondent.

P L D 2022 Balochistan 103

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

Messrs KOHI CONSTRUCTION CO./GOVERNMENT CONTRACTORS, KOHLU through Managing Director---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Communication Works, Physical Planning and Housing and others---Respondents

Constitutional Petition No.(s) 68 of 2020, decided on 23rd November, 2020.

(a) Balochistan Public Procurement Regulatory Authority Act (VIII of 2009)---

----S. 27---Balochistan Public Procurement Rules, 2014, Rr. 56 & 56-A---Constitution of Pakistan, Arts. 10A & 199---Constitutional jurisdiction---Documents, question as to authenticity of---Alternate remedy, availability of- Petitioner/contractor who submitted the bid form for applying against contract works contended that the entire bid opening and awarding contract had been carried out in sheer violation of governing Balochistan Public Procurement Regulatory Authority Act, 2009 and Balochistan Public Procurement Rules, 2014---Validity---Certain controversial questions involved in the matter which could only be determined/established before a civil Court and it required full-fledged enquiry/scrutiny that too after providing the full opportunity of hearing to both the parties---Filing complaint under R. 56 and appeal under R. 56A of the said Rules, 2014 were the alternate remedies which petitioner had not availed---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy---Principle---Constitutional jurisdiction of High Court could not be invoked in all matters as a matter of right---Such jurisdiction had certain circumventions which the Court was required to keep in view while exercising its extra-ordinary jurisdiction---Availability of alternate remedy was one of the limitations which barred exercise of Constitutional jurisdiction of High Court.

Wali Khan Nasar (absent) for Petitioner.

Mir Ahmed Ali Baloch, A.A.G. for the State.

P L D 2022 Balochistan 108

Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ

Mst. SAMEENA ANWAR and 2 others---Petitioners

Versus

The MANAGER, UNITED BANK LTD. and others---Respondents

Constitution Petition No. 188 of 2020, decided on 4th October, 2021.

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

----S. 124---Constitution of Pakistan, Art. 199---Constitutional petition---Contract of indemnity---Withdrawal of amount from missing person's Bank account---Scope---Petitioner along with her daughters sought direction to the respondents to release the amount lying in the Bank account of her missing husband---Contention of respondents was that the amount could not be released in favour of the petitioners until and unless death of the missing person was confirmed and a succession certificate was issued by a court of competent jurisdiction---Validity---Section 124 of Contract Act, 1872, furnished a complete answer to the contention of respondents---Spouse of the missing person would guarantee through affidavit or execute personal bond indemnifying the Bank---In the event of the appearance of missing person, the Bank would not be responsible for re-payment of such amount to the missing person, which had already been released to his spouse/family members---Spouse of the missing person would be responsible for satisfying the claim of the missing person---Constitutional petition was allowed and the respondents were directed to release the amount in question to the spouse of missing person after obtaining affidavit or personal bond.

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

----Arts. 123 & 124---Burden of proving death of person known to have been alive within thirty years---Burden of proving that person is alive who has not been heard of for seven years---Scope---Court cannot declare a missing person dead for the simple reason that a human being does not come into existence on account of any law of the country---Life is not dependable on a law---If the law does not bring into existence a human being by its declaration, it can certainly not declare such human being to have died that too in case of missing persons.

(c) Islamic law---

----Missing person is to be regarded alive till the expiry of ninety years from the date of his birth.

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

----Arts. 123 & 124---Burden of proving death of person known to have been alive within thirty years---Burden of proving that person is alive who has not been heard of for seven years---Scope---Article 124 of the Qanun-e-Shahadat, 1984 only creates a presumption regarding the missing person and it only deals with the concept of production of evidence; the effect of such evidence and the concept of proof and as to on whom such burden would lie---Basically Arts. 123 & 124 of the Qanun-e-Shahadat, 1984, define the concept of burden of proof and apply to a person who desires a judgment from the Court---Judgment indicated in these Articles is restricted to any legal right or liability and does not extend to anything else.

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

----Arts. 123 & 124---Burden of proving death of person known to have been alive within thirty years---Burden of proving that person is alive who has not been heard of for seven years---Scope---Difference exists between natural and civil deaths---Natural death is the phenomenon of the termination of physiological features of creatures, including humans---Besides the natural death of a person, which is due to the termination of all its physiological functions, legislations provide even the civil death, which presumes a possible natural death---Civil death is always verified by the court decision which recognizes the person dead---In cases of civil deaths, the decision of Court is not based on the fact of physical death, but on its presumption due to the absence of the person from his last residence and the absence of news for a certain period---Civil death and natural death have same consequences but this does not mean that they are equal institutes---The first is based on the presumption of death therefore in a precarious situation which can be recovered in the future, the second is based on the end of all physiological functions of the person, therefore, the situation is sure---In civil death, the uncertain situation continues because the person declared dead can reappear.

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

----Arts. 123 & 124---Burden of proving death of person known to have been alive within thirty years---Burden of proving that person is alive who has not been heard of for seven years---Scope---Presumption of death under Arts. 123 & 124 of the Qanun-e-Shahadat, 1984 and issuance of succession certificate actually provide a way for the relatives of missing persons to deal with the financial affairs of the missing person.

Kamran Murtaza, Adnan Ejaz and Tahir Ali Baloch for Petitioners.

Malik Sultan Mehmood, Syed Iqbal Shah, D.A.G. and Shai Haq Baloch, Additional Advocate General on Court notice for Respondents.

P L D 2022 Balochistan 114

Before Abdul Hameed Baloch, J

NAIMATULLAH and others---Petitioners

Versus

ABDUL RAZAQ and 3 others---Respondents

Civil Revision No. 63 of 2018, decided on 25th June, 2021.

Civil Procedure Code (V of 1908)---

----O. XXXII, R. 3 & O. XXII, R. 3---Guardian for the suit to be appointed by Court for minor defendant---Procedure in case of death of one of several plaintiffs or of sole plaintiff---Scope---Trial Court and Appellate Court concurrently dismissed the suit on the ground that the suit on behalf of minor was not filed through a friend or guardian but was filed in the name of the minor himself---Validity---Title of the plaint mentioned that plaintiff was minor but the Trial Court had rejected the suit---Under O.VII, R.11, C.P.C. the court was empowered to reject the incompetent suit from its inception---Filing suit without appointment of next friend did not invalidate the proceedings---Suit was filed by seven plaintiffs including minor---Order XXXII, R.3, C.P.C. and O.XXII, R. 3, C.P.C., had to be read conjointly and not in isolation---Minor was one of the plaintiffs and there was no allegation that the suit was filed by other plaintiffs with collusion of defendant, which affected the interest of minor---Impugned orders were set aside and the case was remanded for decision on merits.

Muhammad Nawaz Khan v. Islam-ud-Din 1992 MLD 1523 and Ghulam Muhammad Khan's case 1986 MLD 682 rel.

Abdul Zahir Kakar for Petitioners.

Ayub Tareen, Additional Advocate General for Respondent No.4.

P L D 2022 Supreme Court 1

Present: Gulzar Ahmed, C.J. and Mazhar Alam Khan Miankhail, 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 15th November, 2021.

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---On directions of the Supreme Court 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---Provincial Advocate General filed a report in Court stating that out of 123 persons identified and charged for causing the desecration and destruction of the Samaadhi, recoveries had been made from 11 persons, whereas about 68 persons had executed a bond/ undertaking to make payment---Supreme Court adjourned the case with directions regarding as to how the amount collected was to be utilized.

Supreme Court directed that the amount collected from the persons identified and charged for causing the desecration and destruction of the Samaadhi, was to be utilized for the upkeep of the Mandar, for the infrastructure development of the area, and for the benefit of the people, who were settled in and around the Teri Mandar, in that, proper road shall be constructed leading to the Mandar from the main road; that the Mandar as well as the residents of the area shall also be provided with water facility and proper water lines in this respect shall be laid; that proper drainage system shall also be provided to the residents of the area so that no filth or dirt was accumulated in the area and constant effort was to be made to keep the town of the Teri clean, neat and tidy in all respects, and that proper play grounds and parks should also be made available to the residents of Teri.

In attendance:

Sohail Mehmood, Addl. Attorney General for Pakistan, Shoaib Suddle, Chairman, One Man Commission, Dr. Ramesh Kumar, MNA, Saqib Jillani, Member of Commission (via video link from Lahore), Sanaullah Abbasi, D.G., FIA on Court call, Shumail Ahmed Butt, A.G., Khyber Pakhtunkhwa, Akber Ali Khan, Special Secretary Home, K.P. Syed Zakir Hussain Afridi, Secretary Establishment, K.P., Hikmatullah, Addl. Secretary Establishment, K.P., Umer Nawaz Khan, D.S., Home Department, K.P., Muazam Jan Ansari, I. G., K.P., Shafiullah, DPO, Karak, Tahir Ayub Khan, DIG, Kohat, Moeen ud Din Hamayon, Advocate-on-Record for Government of K.P., Muhammad Ikram Ch., Sr. Advocate Supreme Court for ETPB, Raja Qasit Nawaz, Advocate Supreme Court, Samual Payara, Chairman, IMRE.

P L D 2022 Supreme Court 3

Present: Qazi Faez Isa and Yahya Afridi, JJ

HAMZA SHERAZ and another---Appellants

Versus

RIAZ MEHMOOD (deceased) through L.Rs.---Respondents

Civil Appeal No. 183 of 2015, decided on 28th October, 2021.

(Against the order dated 04.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 47 of 2007)

Punjab Pre-emption Act (IX of 1991)---

----S. 24---Deposit of one-third of the sale price of the property in Court by the pre-emptor---Meagre shortfall in amount of money deposited---Whether a genuine mistake on part of pre-emptor in depositing exact amount of money was sufficient to non-suit him---Held, that in the present case the Court directed the pre-emptor to deposit one-third of the amount of the sale mutation, which came to Rs. 533,334.35/, however, the plaintiff/pre-emptor deposited an amount of Rs. 533,000/, thus, there was a shortfall of Rs. 334.35/ only---Section 24 of the Punjab Pre-emption Act, 1991 was self-contained and clear; it mentioned that the consequences for the plaintiff in failing to deposit the one-third amount of sale consideration within the time prescribed by the courts would be dismissal of the suit---While one could sympathize with the plaintiff-pre-emptor in the present case for miscalculating the amount but the law was clear and permitted no discretion---In the present case the plaintiff/pre-emptor himself committed the mistake, and despite the fact that quantum of the mistaken amount was inconsequential, he had to suffer consequences of the same---Plaintiff/pre-emptor did not deposit the stipulated one-third of the sale consideration amount within the prescribed period, as provided for in S.24 of the Punjab Pre-emption Act, 1991, and thus attracted the consequences thereof, which was the dismissal of the suit---Appeal was allowed and the pre-emption suit filed by the respondents' predecessor was dismissed.

Raja Muhammad Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Muhammad Akram Gondal, Advocate Supreme Court, Ahmed Nawaz Chaudhary, Advocate-on-Record for Respondents.

P L D 2022 Supreme Court 7

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

HASNAIN RAZA and another---Petitioners

Versus

LAHORE HIGH COURT, LAHORE and others (in both cases)---Respondents

C.P.L.As. Nos.1862-L and 1863-L of 2021, decided on 9th November, 2021.

(Against the strictures passed by the Lahore High Court, in its judgment dated 22.6.2021 delivered in F.A.O. No.28948 of 2019)

(a) Constitution of Pakistan---

----Arts. 202 & 203---Judicial strictures recorded against a judge of district/subordinate judiciary by the High Court/Appellate Court---Improper---Principles for warning or proceeding against a judge of the subordinate judiciary for grave inefficiency or misconduct stated.

Following are the principles for warning or proceeding against a judge of the subordinate judiciary for incompetence or misconduct:

i. An appellate court should not pass strictures in its judgment against the judge of the lower court whose judgment or order was impugned before it, relating to his efficiency or conduct;

ii. An appellate court should not summon in court the judge of the lower court whose judgment or order was impugned before it, to explain why and how he or she has made that judgment or order;

iii. An appellate court, if notices such procedural errors or irregularities in the proceedings conducted by the lower court which, it thinks, should not be repeated in other cases, may bring the same to the notice of the judge concerned through a confidential note separate from its judgment; and

iv. An appellate court, if is of the considered but tentative view supported by reasonable grounds that the judge of the lower court has exhibited grave inefficiency or has committed serious misconduct in discharge of his judicial duty that warrants disciplinary action, may inform the competent authority or the officer appointed by the competent authority to deal with such complaints, through a confidential report. The authority or the officer concerned was to deal with such confidential report and proceed with it further as per the relevant service laws, rules and instructions, notwithstanding the view of the appellate court, in the same manner as it or he dealt with other such complaints.

Nusrat Yasmin v. Registrar, PHC PLD 2019 SC 719 and Aijaz Ahmed v. State PLD 2021 SC 752 ref.

(b) Constitution of Pakistan---

----Arts. 202 & 203---Judicial strictures recorded by the High Court/Appellate Court against a judge of district/subordinate judiciary relating to his or her efficiency or conduct---Propriety---Public reprimand of a judge of the lower court regarding his judicial conduct by an appellate court while sitting in judgment over his or her judicial decision, either by recording a stricture or a censorious remark in its appellate judgment or by summoning the judge and reproaching him orally in open court, did not behove the judiciary of a constitutional democracy which boasted of the independence of judiciary as its salient pillar---Any such public condemnation of a judge lowered the public trust in the judicial institution, besides the harmful effect it had on the morale and confidence of the judge concerned as well as of his colleagues---While examining the decision of a court below, the higher court was to assess the reasoning and the legality of the decision challenged before it and not the ability or conduct of the author judge---Latter was the function of the disciplinary authority---Higher court, if so decided, could refer the matter to the disciplinary authority, in the manner elucidated in the judgment reported as Nusrat Yasmin v. Registrar, PHC (PLD 2019 SC 719), only on the administrative side.

Nusrat Yasmin v. Registrar, PHC PLD 2019 SC 719 ref.

(c) Constitution of Pakistan---

----Arts. 189 & 201---Vertical and horizontal precedents---Distinction and binding effect---Judicial effrontery---Effect---Judicial precedents may be classified into two categories: vertical and horizontal precedents---Vertical precedents meant the decisions of a higher court, and horizontal precedents meant the decisions of the same or coordinate court---All courts were absolutely bound by the vertical precedents of a higher court---Such binding tie was often said to be a matter of owing obedience---Articles 189 & 201 of the Constitution also reinforced the binding effect of the vertical precedents---Judges were therefore obliged to follow a vertical precedent even when they disagreed with it; this ensured a degree of national uniformity in judicial decisions---Judges had little room to decide how much weight or value was to be given by them to that precedent---Precedent of the apex Court of the country must be followed by all other courts of the country who owed unflinching fealty to its decisions under the Constitution---Ignoring or refusing to follow the controlling precedent of the Supreme Court amounted to judicial effrontery, offended the constitutional mandate, and weakened the public confidence in the decisions of the apex Court of the country---Furthermore a higher court generally adhered to horizontal precedents - its own earlier decisions - but it may depart from or overrule any of its own decisions by sitting as a larger bench if there was a compelling justification to do so.

Garner et al., The Law of Judicial Precedent, p. 27 (2016); Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993); Hutto v. Davis, 454 U.S. 370 (1982); Brown v. Allen, 344 U.S. 443 (1953) and Garner et al., The Law of Judicial Precedent, p. 35 (2016). ref.

Shahid Shaukat Ch. Advocate Supreme Court for Petitioners along with Petitioner in person.

Nemo for Respondents.

P L D 2022 Supreme Court 13

Present: Umar Ata Bandial, H.A.C.J.,Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD SARWAR and others---Petitioners

Versus

HASHMAL KHAN and others---Respondents

Civil Petition No. 2855 of 2017, decided on 17th September, 2021.

(Against the Judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 11.04.2017 passed in Civil Revision No. 383 of 2010).

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of the High Court---Scope---Section 115, C.P.C. empowered the High Court to satisfy and reassure itself that the order of the subordinate court was within its jurisdiction; the case was one in which the court ought to exercise jurisdiction and in exercising jurisdiction, the court had not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision---If the High Court was satisfied that the said principles had not been unheeded or disregarded by the courts below, it had no power to interfere in the conclusion of the subordinate court upon questions of fact or law---Scope of revisional jurisdiction was confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein was perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter was not possible in revisional jurisdiction.

Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

Rana Asif Saeed, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Chaudhry Abdul Khaliq Thind, Advocate Supreme Court along with Ahmed Ali for LRs of Respondents Nos.1 (b and c).

P L D 2022 Supreme Court 17

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

MUHAMMAD SAEED KHAN---Petitioner

Versus

Malik MUHAMMAD ASHRAF and others---Respondents

Civil Petition No. 1550 of 2017, decided on 23rd September, 2021.

(Against the order dated 27.02.2017 passed by the Islamabad High Court, Islamabad in Writ Petition No. 531 of 2017).

Constitution of Pakistan---

----Arts. 185 & 199---Pro forma respondent in a Constitutional petition dismissed by the High Court---Whether such respondent could competently file a petition for leave to appeal before the Supreme Court against the dismissal of the Constitutional petition by the High Court---Held, that an aggrieved party could file an appeal or a petition for leave to appeal, whichever was maintainable, before the Supreme Court under Art. 185 of the Constitution---If any person was a formal party as respondent before the High Court against whom no relief was claimed and the Constitutional petition before the High Court was allowed even then the said formal respondent had no right to challenge the order of the High Court before the Supreme Court if the order did not prejudicially or adversely affect that person---In the present case, the petitioner was a respondent before the High Court in the Constitutional petition; he never challenged the order of the Appellate Authority or order of Excise and Taxation Officer/Motor Registering Authority before the High Court--- If petitioner was aggrieved by the orders of the Appellate Authority or Excise and Taxation Officer/Motor Registering Authority he was required to challenge the same before the available forum or the High Court in Constitutional jurisdiction and thereafter if his petition was dismissed by the High Court he would have been entitled to challenge the said order before the Supreme Court--- By no stretch of imagination, it could be said that petitioner was aggrieved by the order of the High Court when the Constitutional petition filed by another person was dismissed by the High Court.

Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others PLD 2009 SC 237; Anjuman Tahafaz-e-Haqooq-e-Shahrian, Quaidabad v. Kh. Muhammad Iqbal and others 1988 SCMR 1871; H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65; Banarsi v. Ram Phyal AIR 2003 SC 1989 and Nalakath Sainuddin v. Koorikadam Sulaiman AIR 2002 SC 2562 ref.

Farhat Nawaz Lodhi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

P L D 2022 Supreme Court 21

Present: Umar Ata Bandial, H.A.C.J., Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

Mst. ZARSHEDA---Petitioner

Versus

NOBAT KHAN---Respondent

Civil Petition No. 3645 of 2015 and C.M.A. No. 8716 of 2015, decided on 14th September, 2021.

(Against the Judgment of Peshawar High Court, Peshawar dated 26.10.2015 passed in Civil Revision No. 1666 of 2011).

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 2(d) & 5---Right of pre-emption in case of gift---Scope---"Sale" meant permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and included transfer of an immovable property by way of hiba-bil-iwaz or hiba-bi-shart al-iwaz but in line with one of the exceptions provided therein, it did not include a transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-iwaz---Right of pre-emption arose in case of "sale" and when such sale was completed but did not arise in case of transfer of immovable property without consideration such as gift.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 2(d) & 5---Right of pre-emption---Scope---Alleged gift of suit property---Failure to prove factum of gift---Gist of evidence showed that defendant/vendee failed to establish the factum of gift---Attorney of the defendant appeared as a witness, who deposed that the property was gifted by vendor to the defendant, however, during his cross examination, he deposed that vendor was present in his village but he could not produce any witness of the gift---Neither the alleged donor nor the witnesses of the alleged mutation of gift were produced or called in the court for evidence---Stamp vendor appeared and verified that stamp paper in question was sold by him to the vendor for agreement to sell in favour of vendee---Defendant/vendee failed to produce important witnesses, i.e. the alleged donor and the alleged witnesses of the mutation, despite framing of specific issue by the Trial Court whether there was no transaction of sale but a gift---Suit for pre-emption filed by respondent had rightly been decreed by the courts below---Petition for leave to appeal was dismissed and leave was refused.

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

----Art. 129---Withholding/non-production of evidence---Presumption---Adverse inference for non-production of evidence was one of the strongest presumptions known to law and the law allowed it against the party who withheld the evidence.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower courts should not be overturned by the High Court in its revisional jurisdiction under S.115, C.P.C.---Between two possible interpretations, the one adopted by the trial and appellate courts should be maintained, keeping in mind the limited scope of revisional jurisdiction---Interference in revisional jurisdiction should only be made in cases in which the order passed or a judgment rendered by a subordinate Court was found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn was contrary to law.

Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

Zia-ur-Rehman, Advocate Supreme Court (via video link from Peshawar) for Petitioner.

Ghulam Mohy-ud-Din Malik, Advocate Supreme Court (via video link from Peshawar) for Respondent.

P L D 2022 Supreme Court 27

Present: Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ

MUHAMMAD AMJAD KHAN AFRIDI and others---Appellants

Versus

SHAD MUHAMMAD and others---Respondents

Civil Appeal No. 263 of 2014, decided on 17th November, 2021.

(Against the judgment dated 13.05.2013 passed by the Peshawar High Court, Peshawar in C.R. No. 1414 of 2021)

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

----O.XXXII, R. 11---Guardian for the suit (guardian ad litem) appointed for minors to represent and defend them in the suit---Guardian's failure to appear before the court and defend the suit resulting in ex-parte proceedings against the minors---Effect---Where the guardian for the suit did not do his duty, the Court was to remove him and appoint a new guardian in his place---Failure of a guardian ad litem to appear in Court to defend the minor was by itself a clear proof of the fact that he had failed to do his duty of protecting the interests of the minor---Court, in such circumstance, must act in accordance with R.11 of O. XXXII of the C.P.C., remove that guardian, and appoint a new guardian in his place, for the protection of the interests of the minor---Order XXXII of the C.P.C., visualized no such occasion where a minor defendant could be proceeded against ex parte---In the present case Courts below fell into error by not allowing the application for setting aside the ex-parte decree to the extent of the two minors (defendants) at the time of institution of suit as well as at the time of passing of the ex parte decree---Appeal to the extent of the minors was allowed, consequently application for setting aside the ex parte order and ex parte decree, to their extent was accepted and the Trial Court was directed to proceed with the suit against the minors from the stage where it was when the order of proceeding ex parte was made against them.

Fauzia Parveen v. Sahib Khatoon 1988 SCMR 552 ref.

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

----O.XXXII, Rr. 4, 7 & 11---Constitution of Pakistan, Art. 25(3)---Guardian for the suit (guardian ad litem) appointed for minors to represent and defend them in the suit---Court, duty of---Scope---Provisions of O. XXXII of the C.P.C., which advanced the mandate of Art. 25(3) of the Constitution, were to be interpreted and applied with a dynamic and progressive approach to achieve the object for which they had been made, that is, the protection of the rights and interests of the minors---Courts were to realize that a minor litigant was considered to be under their protection, and primarily it was their duty to watch over his interests and ensure that he was duly represented and defended in the proceedings before them---Despite appointment of a guardian ad litem, no agreement or compromise could be entered into on behalf of the minor by that guardian without leave of the Court---Court was to see vigilantly the conduct of the guardian ad litem in representing and defending the minor, and to remove him if he failed to do his duty by acting in a manner that was detrimental to the interests of the minor---Where there was no other person fit and willing to act as guardian for the minor, the Court was to appoint any of its officers to be such a guardian.

Amar Chand v. Nem Chand AIR 1942 All 150 ref.

Muhammad Ikram Ch., Advocate Supreme Court and Ijaz Khan Sabi, Advocate Supreme Court for Appellants.

Abdul Sattar Khan, Advocate Supreme Court for Respondents Nos. 1-6.

P L D 2022 Supreme Court 32

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

RASHID HUSSAIN---Petitioner

Versus

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

Civil Petition No. 1665 of 2020, decided on 2nd November, 2021.

(Against the judgment dated 27.02.2020 of the Islamabad High Court, Islamabad passed in Writ Petition No. 3950 of 2019).

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

----Ss. 17 & 25---Custody of minors---Preferential right---General principle and exceptions---As a general principle the degree of preference was confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which were essential in upbringing of the minors within four corners of law---Any deviation from the general principle, where the blood relationship had to be dislodged, there should be very strong and compelling reasons to have a contrary view which included upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom care of the minors was to be assigned---When ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which must be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor".

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

----Ss. 17 & 25---Custody of minors with their maternal grand-father after suspicious death of their mother---Father failing to discharge his duties towards minors---Parents of father alleged to have burnt to death mother of minors---Whether father had preferential right to custody over maternal grand-father in such circumstances---Held, that the petitioner/father was a cab driver in a foreign country---While the father was away, the mother was critically burnt for which an FIR was lodged against the parents of the father with an allegation that they had intentionally burnt to death the mother of the minors---Statement of the father recorded before the Family Court revealed that had not discharged his duties as father in any manner towards the minor children or his deceased wife; that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought of it as an opportunity to skip his moral, legal and religious duty bestowed upon him---Minor children were brought before the Court and seemed very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with their maternal grandparents---Body language of the minors clearly demonstrated a sign of hatred towards their father---Maternal grand-father of minors stated before the Court that he owned 19 acres of agricultural land which was sufficient to bear the expenses of the minor children and they were already enjoying reasonable living status in the custody of their maternal grandfather---Another important aspect of the present case was that the minors were well aware of the fact that their mother died due to unnatural consequences and it must be in the back of their minds that it was their father who was involved in the whole episode---At present stage any change in custody by the Supreme Court by handing over the minors to the father would be instrumental in impairment of their mental faculty which could have negative impact on their personality in future and that would squarely be against the dictates of "welfare of the minor" which was the prime factor under the Guardians and Wards Act, 1890---Petition for leave to appeal filed by the father was dismissed, leave was refused, and it was directed that the visitation. schedule made by the Family Court for the grandparents shall be considered to be made for the father.

Khalid Mehmood v. Additional District Judge, Islamabad and 2 others 2011 CLC 889 and Mst. Rasheedan Bibi v. Additional District Judge and 2 others 2012 CLC 784 ref.

Agha Muhammad Ali Khan, Advocate Supreme Court for Petitioner along with Petitioner in person.

Syed Nayab Hassan Gardezi, Advocate Supreme Court along with Respondents Nos.2 to 5 in person.

P L D 2022 Supreme Court 39

Present: Maqbool Baqar, Sajjad Ali Shah and Munib Akhtar, JJ

AAM LOG ITEHAD and another---Petitioners

Versus

The ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petition No.479-K of 2020, decided on 16th December, 2021.

(On appeal from the judgment dated 12.06.2020 passed by the High Court of Sindh, Karachi in Const. Petition No. D-444 of 2018).

Per Munib Akhtar, J; Sajjad Ali Shah, J agreeing; Maqbool Baqar, J dissenting. [Majority view]

(a) Constitution of Pakistan---

----Art. 218(2)(b)---Member of the Election Commission of Pakistan, office of---Said office was not quasi-judicial in nature.

(b) Interpretation of Constitution---

----Principle---Redundancy cannot lightly be read into a statute, let alone the Constitution.

(c) Interpretation of Constitution---

----Dynamic and progressive interpretation---Constitution was a living document, which must be given a dynamic and progressive meaning and interpretation---Constitution evolved and developed not just by way of textual changes (i.e., constitutional amendments) but also in a (continually) maturing understanding of the constitutional provisions, and this meant not just the very words of the Constitution but also the concepts and aspirations that laid behind and underpinned those words.

Province of Sindh and others v. MQM and others PLD 2014 SC 531 and Shehla Zia and others v. WAPDA PLD 1999 SC 693 ref.

(d) Interpretation of statutes---

----'Reading in', doctrine of---Meaning---When a constitutional defect or violation was shown to exist, especially in a statute or other legal instrument, the Court had a whole array of remedies available to it---One such remedy was the doctrine of 'reading in' i.e. of adding such words to the statute as would remedy the constitutional defect---Doctrine of 'reading in' became available once a constitutional violation or defect was found to exist; it was a constitutional remedy to correct the defect without striking down the offending provision---Focus of attention was the Constitution and not just the statute in and of itself.

Schacter v. Canada [1992] 2 SCR 679 and Constitutional Law of Canada (Chapter 40, "Enforcement of Rights") ref.

(e) Interpretation of Constitution---

----Doctrine of 'reading in'---Scope---In suitable cases and while maintaining all due care and caution, the doctrine of 'reading in' could be regarded as one aspect of the dynamic, evolving and purposive manner in which the Constitution must be interpreted, so as to give full effect to the constitutional intent behind especially, amendments to the Constitution---Doctrine of "reading in" could be invoked and suitably deployed in the narrow and limited sense in a situation where a constitutional amendment resulted in an imbalance (that was quite obviously unintentional) and had potential of defeating the obvious intent of the said amendment.

Ch. Muhammad Akram v. Registrar Islamabad High Court and others PLD 2016 SC 961 distinguished.

(f) Constitution of Pakistan---

----Arts. 207(2)& 218(2)(b)---Member of the Election Commission of Pakistan ('the Election Commission')---Two-year bar contained in Art. 207(2) of the Constitution---Scope---Doctrine of 'reading in'---Applicability---Question as to whether a retired Judge of the Supreme Court or the High Court could be appointed as Member of the Election Commission before expiration of two years after he had ceased to hold that judicial office---[Per Munib Akhtar, J (Majority view): Applying the doctrine of "reading in", from the Twenty-second (22nd) Amendment to the Constitution (2016) onwards, the words "or member of the Election Commission" were to be read in into clause (2) of Art. 207 of the Constitution after the term "Chief Election Commissioner"---Consequently the office of a Member of the Election Commission was not hit by the two-year bar contained in Art. 207(2) of the Constitution]---[Per Maqbool Baqar, J (Minority view):Since the Majority view of the present judgment sought to "read in" a phrase in a constitutional provision Clause (2) of Art. 207 of the Constitution), which approach/device would have far reaching implications for our jurisprudence, it would be appropriate to first hear the parties as well as the Attorney General, before deciding to adopt such approach, more so when neither was it suggested, nor argued by anyone at the time of hearing---Present case may therefore be listed for rehearing according to the roster].

Petitioner No.2 in person.

Muhammad Nishat Warsi, Deputy Advocate General along with Abdullah Hinjrah, Sr. Law Officer, ECP for Respondent No.1.

Zia ul Haq Makhdoom, Senior Advocate Supreme Court along with Ms. Hira Agha, Advocate for Respondents Nos. 2, 3 and 4.

Mansoor ul Haq Solangi, Advocate Supreme Court for Respondent No.5.

P L D 2022 Supreme Court 64

Present: Umar Ata Bandial, Sajjad Ali Shah, Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ

HADAYAT ULLAH and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Review Petitions Nos. 292 to 302 of 2021 and Civil Review Petitions Nos. 351 to 432 of 2021 and Civil Review Petitions Nos. 442 to 456 of 2021 along with C.M.As. Nos. 11812 to 11814 of 2021, C.M.As. Nos. 11837, 11862 to 11864 of 2021, C.M.As. Nos. 11902-11903, 11982-11983 of 2021, C.M.A. No. 11987 of 2021, C.M.As. Nos. 11679, 12017, 12019, 12020, 12024 of 2021, C.M.As. Nos. 12025, 12028, 12029, 12031-12033 of 2021, C.M.As. Nos. 12035, 12075, 11993, 12103-12104 of 2021, C.M.As. Nos. 12161-12162, 12172-12173, 12403 of 2021 and C.M.As. Nos. 12372-12373 of 2021 and along with Civil Miscellaneous Appeals Nos. 168, 158 and 175 of 2021, decided on 17th December, 2021.

(For review of the judgment dated 17.08.2021 passed in C.A. No.491 of 2012, etc.).

Per Umar Ata Bandial, J; Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Syed Mansoor Ali Shah, J dissenting.

(a) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----Ss. 2(d) & 4 & Preamble---Constitution of Pakistan, Arts. 4, 8, 9, 18, 25, 184(3) & 187---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---Said Act of 2010 was violative of, inter alia, Arts. 25, 18, 9 & 4 of the Constitution and therefore void under the provisions of Art. 8 of the Constitution---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in S.2(d) of the Sacked Employees (Re-instatement) Act, 2010]. [Majority view]

Supreme Court declared the Sacked Employees (Re-instatement) Act, 2010 as violative of the Constitution and thus void. However, in exercise of the Court's jurisdiction under Article 184(3) of the Constitution read with Article 187, the Court took into consideration the services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010], and passed the following directions:

(i) Employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) did not require any aptitude or scholastic or skill test, for appointment thereon, shall be restored from the date of the judgment under review to the posts they were holding on the same terms and conditions of service applicable on the date of their termination pursuant to the judgment under review;

(ii) Such other employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) required the passing of any aptitude or scholastic or skill test, for appointment thereon shall from the date of the judgment under review be restored to their said posts on the same terms and conditions of service applicable on the date of their initial termination;

(iii) Any improvement in the terms and conditions of service of all the restored employees shall be granted strictly in accordance with the laws and rules applicable to their service or employment and in the absence thereof by regulations laid down for this purpose by their respective employers; and

(iv) The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to employees whose initial termination of service (from 01.11.1996 to 12.10.1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a Court of law.

Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, J. [Minority view]

(b) Parliamentary sovereignty, principle of---

----Scope---Parliamentary sovereignty or legislative supremacy was the cornerstone of a strong democracy---Courts must, therefore, recognize the central role of the legislature---Undermining the legislature undermined democracy---Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution.

(c) Sacked Employees (Re-instatement) Act (XXII of 2010)---

----Ss. 2(f)(vi), 4(a), 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9 & 25---Sacked Employees (Re-instatement) Act, 2010, ('Act of 2010'), vires of---By way of judgment under review the Supreme Court held that the Sacked Employees (Re-instatement) Act, 2010 violated Arts. 4, 9 & 25 of the Constitution and was thus void and ultra vires the Constitution---Held, that judgment under review was to be recalled---His Lordship declared that only certain sections, and parts of sections of the Sacked Employees (Re-instatement) Act, 2010 were ultra vires the Constitution and passed certain directions regarding restoration in service of employees terminated from service on basis of judgment under review. [Minority view]

(i) Only certain sections and part of sections of the Sacked Employees Reinstatement Act, 2010 ('the 2010 Act') were ultra vires the Constitution: firstly, sections 4(a) and 10 to the extent of reinstatement and regularization on "one scale higher", which gave an undue advantage to the reinstated employees to the detriment of the rights of the already working regular employees and thus violated their fundamental rights. The provisions of the said sections, except the words "one scale higher", shall however remain operative with effect from the date of enactment of the 2010 Act, and be read to mean the reinstatement and regularization in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation; secondly, sections 2(f)(vi), 11, 12 and 13, which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness attained finality by being unchallenged or unsuccessfully challenged. Such employees fell outside the class of sacked employees who suffered "political victimization," envisaged by the 2010 Act for a beneficial treatment, and they by themselves did not constitute a distinct class having an intelligible differentia, which bore a reasonable relation to the object and purpose of the 2010 Act;

(ii) All the employees terminated from service on the basis of the judgment under review, stood restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay; and

(iii) The cases decided by the judgment under review, which now stood recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of the Supreme Court in accordance with the provisions of the Sacked Employees Reinstatement Act 2010, subject to the declaration made at para (i) above.

In attendance:

Kh. Muhammad Arif, Advocate Supreme Court (in C.R.P. Nos. 292 and 388 of 2021).

Muhammad Yousaf Khan, (in C.R.P. No. 293 of 2021).

Muhammad Tariq Asad, Advocate Supreme Court (in C.R.P. No. 294 and C.M.A. 12033 of 2021).

Khalid Javed Khan, Attorney General for Pakistan

Ayaz Shoukat, D.A.G. along with Ms. Maryam Rasheed and Usman Paracha, Advocates (in C.R.P. No. 295 of 2021)

Muhammad Nawaz Abbasi (in person) (in C.R.Ps. Nos. 296 and 446 of 2021)

S.A. Mehmood Khan Sadozai, Advocate Supreme Court (in C.R.Ps. Nos. 297-300 and 416 of 2021).

Muhammad Ilyas Siddiqui, Advocate Supreme Court (in C.R.P. No. 301 of 2021).

Hazrat Said (in C.R.P. No. 302 of 2021).

S. Iftikhar Hussain Gillani, Sr. Advocate Supreme Court (in C.R.Ps. Nos. 351 and 392 of 2021)

Ms. Shireen Imran, Advocate Supreme Court (in C.R.Ps. Nos. 252, 393, 394, 448 and C.M.A. No. 12104 of 2021).

M. Safdar Shaheen Pirzada, Advocate Supreme Court (in C.R.Ps. Nos. 253, 372 and 375 of 2021).

Nisar A. Mujahid, Advocate Supreme Court (in C.R.P. No. 354 of 2021).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 355, 374, C.M.As. Nos. 11982 and 12029 of 2021).

Ch. Afrasiab Khan, Advocate Supreme Court (in C.R.P. No. 356 of 2021).

Mian Raza Rabbani, Senior Advocate Supreme Court, Saalim Salam Ansari, Advocate Supreme Court assisted by Zeeshan Abdullah (in C.R.P. No. 357, C.M.Apl. No. 175, C.M.As. Nos. 12172 and 12173 of 2021)

Shah Khawar, Advocate Supreme Court and

Hassan Rashid Qamar, Advocate Supreme Court (in C.R.Ps. Nos. 355, 378-381, 442, 455, 456, C.M.As. Nos. 12028 and 12162 of 2021).

Zubair Hussain, Advocate Supreme Court (in C.R.P. No. 359 and C.M.A. No. 11983 of 2021).

Syed M. Iqbal Hashmi, Advocate Supreme Court (in C.R.Ps. Nos. 360-363 of 2021).

Mazullah Khan (in-person) (in C.R.P. No. 364 of 2021).

Zulfikar Khalid Maluka, Advocate Supreme Court (in C.R.Ps. Nos. 365 and 428 of 2021).

Ghulam Sajjad Gopang, Advocate Supreme Court (in C.R.P. No. 366 of 2021).

Omer Farouk Adam, Advocate Supreme Court (in C.R.P. No. 367 of 2021).

Tariq Mehmood Mughal, Advocate Supreme Court (in C.R.P. No. 368 of 2021).

Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 369, 385, 420, C.M.Apl. No. 168, C.M.As. Nos. 12032 and 12035 of 2021).

Muhammad Sharif Janjua, Advocate-on-Record/Advocate Supreme Court (in C.R.Ps. Nos. 370, 386, 399, 400 and 423 of 2021).

Saleem Ullah Ranazai, Advocate Supreme Court (in C.R.P. No. 371 of 2021).

Kamran Murtaza, Senior Advocate Supreme Court (in C.R.Ps. Nos. 373 and 377 of 2021).

Waseem Sajjad, Senior Advocate Supreme Court (in C.R.Ps. Nos. 376 and 383 of 2021).

Dr. Saeed Ahmed (in person) (in C.R.P. No. 382 of 2021).

Aftab Alam Yasir, Advocate Supreme Court (in C.R.P. No. 384 and C.M.A. No. 12020 of 2021).

Abdul Razzaq Shar, Advocate Supreme Court (in C.R.Ps. Nos. 387, 454 and C.M.A. No. 12024 of 2021).

Jam Khursheed Ahmed, Advocate Supreme Court (in C.R.P. No. 389 of 2021).

Muhammad Sajid Khan, Advocate Supreme Court (in C.R.P. No. 390, C.M.As. Nos. 12031 and 12161 of 2021).

Hamid Khan, Senior Advocate Supreme Court and M. Waqar Rana, Advocate Supreme Court (in C.R.P. No. 391 of 2021).

Liauqat Ali Karim, Advocate Supreme Court (in C.R.P. No. 395 of 2021).

Abid A. Zuberi, Advocate Supreme Court (in C.R.P. No. 396 of 2021).

Azhar Navid Shah, Advocate Supreme Court (in C.R.P. No. 397 of 2021).

Malik Faiz Rasool Rajwana, Advocate Supreme Court (in C.R.P. No. 398 of 2021)

Muhammad Umair Baloch, Advocate Supreme Court and Shoaib Shaheen, Advocate Supreme Court (in C.R.Ps. Nos. 401-415, 418, 419 and C.M.A. No. 12372 of 2021).

Muhammad Haseeb Jamali, Advocate Supreme Court (in C.R.P. No. 417 of 2021).

Malik Mansoor Hussain, Advocate Supreme Court (in C.R.P. No. 421 of 2021).

Ch. Aitzaz Ahsan, Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court (in C.R.P. No. 422 of 2021).

Shakirullah (in-person) (in C.R.P. No. 424 of 2021).

Muhammad Nawaz Rai, Advocate Supreme Court (in C.R.P. No. 425 of 2021).

Muddasar Khalid Abbasi, Advocate Supreme Court (in C.R.P. No. 426 of 2021).

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court (in C.R.P. No. 427 of 2021).

Khalid Javed (in-person) (in C.R.P. No. 429 of 2021).

Abdul Latif Afridi, Sr. Advocate Supreme Court (in C.R.Ps. Nos. 430-431 of 2021).

S. Asghar Hussain Sabzwari, Senior Advocate Supreme Court, S. Qamar Hussain Shah Sabzwari, Advocate Supreme Court and S. Nayyar Hussain Bukhari, Advocate Supreme Court (in C.R.P. No. 432 of 2021).

Sh. Mehmood Ahmed, Advocate-on-Record (in C.M.A. No. 11812 of 2021).

Sikandar Javed, Advocate Supreme Court (in C.M.As. Nos. 11813 and 11993 of 2021).

Ms. Attiya Khanam (in-person) (in C.M.A. No. 11814 of 2021).

Fazal e Rabbi (in-person) (in C.M.A. No. 11837 of 2021).

Malik Muhammad Riaz, (in-person) (in C.M.A. No. 11862 of 2021).

Arshad Ali Makhdoom, Advocate Supreme Court (in C.M.A. No. 11863 of 2021).

Muhammad Ibrahim (in-person) (in C.M.A. No. 11864 of 2021).

Faisal Siddiqui, Advocate Supreme Court (in C.M.A. No. 11902 of 2021).

Anees M. Shahzad, Advocate-on-Record/Advocate Supreme Court (in C.M.A. No. 11903 of 2021).

Mir Aurangzeb, Advocate-on-Record/Advocate Supreme Court (in C.M.A. No. 11987 of 2021).

Jawaid Masood Tahir Bhatti, Advocate Supreme Court (in C.M.A. No. 11679 and C.M.Apl. No. 158 of 2021).

Mir Shahzad Khan Talpur (in-person) (in C.M.A. No. 12017 of 2021).

Malik Muhammad Munsif Awan, Advocate Supreme Court (in C.M.A. No. 12019 of 2021).

Muhammad Afzal Khan (in C.M.A. No. 12025 of 2021).

Tassawar Abbas Tanvir (in-person) (in C.R.P. No. 443 of 2021).

Dr. Umar Farooq Siddiqui (in-person) (in C.R.P. No. 444 of 2021).

Sardar M. Latif Khosa, Sr. Advocate Supreme Court and Sardar M. Shahbaz Khosa, Advocate Supreme Court (in C.R.Ps. Nos. 445, 447 of 2021).

Pervez Rauf, Advocate Supreme Court (in C.R.Ps. Nos. 449, 452 of 2021).

Mir Afzal Malik, Advocate Supreme Court (in C.R.P. No. 450 of 2021).

Malik Saleem Iqbal Awan, Advocate Supreme Court (in C.R.P. No. 453 of 2021).

Raja Farakh Arif Bhatti, Advocate Supreme Court (in C.M.A. No. 12075 of 2021).

Rai M. Nawaz Kharal, Advocate Supreme Court (in C.M.A. No. 12103 of 2021).

Ch. M. Younas, Advocate Supreme Court (in C.M.A. No. 12403 of 2021).

Shahid Anwar Bajwa, Advocate Supreme Court (in C.M.A. No. 12373 of 2021).

Niazullah Niazi, AG ICT

SSGPL

Barrister Umer Aslam

State Life

Syed Waqar Naqvi, Advocate Supreme Court.

OPF

Aftab Alam Yasir, Advocate Supreme Court.

SNGPL

Asad Jan, Advocate Supreme Court.

P L D 2022 Supreme Court 73

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD FAROOQ and others---Appellants

Versus

JAVED KHAN and others---Respondents

Civil Appeal No. 1191 of 2014, decided on 6th January, 2022.

(Against the judgment dated 22.11.2013 passed by the Peshawar High Court, Abbottabad Bench, in C.R. No.379-A of 2011).

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

----Ss. 20 & 65---Agreement void where both parties under a mistake as to matter of fact---Principles and scope---According to S.20 of the Contract Act, 1872, a mistake of fact took effect when the parties to an agreement were under a mistake as to a matter of fact essential to the agreement, thus, rendering the agreement void---Judicial consensus that had developed on the common mistake of fact rendering an agreement void, was to discourage frequent intrusions by the court on the smallest of mistakes and to encourage positive exercise of jurisdiction on fundamentally apparent mistake of facts, so as to uphold freedom of contracts and certainty of terms of contracts---As to the nature of what would render the state of affairs a vital attribute or fact, the "mistake" must be fundamental or essential to the agreement going to the root of the contract, which would render execution of the contract wholly or partially unenforceable, and must not be a minor mistake of fact---Effect of such fundamental mistake of fact must be such that the vendee would not have made payment for the object being sold, had the mistake been known to the vendee at its inception---Function of mistake was to show that the benefit, which had been received was an unintended benefit---Satisfying this element was important to ensure that freedom of contract was protected and that parties could not avail provision of S.20 of the Contract Act, 1872 on minor mistakes to try get out of a bad bargain---In order to render an agreement, void under S.20 of the Contract Act, 1872, both the parties must be labouring under the same mistake of fact---Where one party knew the facts but refrained from communicating the same to the other party, S.20 of the Contract Act, 1872 was not attracted, therefore, a unilateral mistake did not enable a party to avoid the contract---Mistake must be a bilateral one, where both parties were mistaken about the same vital fact---Once a common mistake of fact between the contracting parties was established, the legal consequence to ensue was that the agreement entered between the parties was to be declared void under S.20 of the Contract Act, 1872---Such vitiation of the agreement would then lead the aggrieved party to be able to seek restitution under S.65 of the Contract Act, 1872---Where restitution was not possible, the recipient of the money must return the sum so received.

Great Peace Shipping Ltd v. Tsaviliris Salvage Ltd [2002] EWCA Civ 1407; Brennan v. Bold Burder [2005] 1 QB 303; Bell v. Lever Bros Ltd [1031] All ER Rep 1 at 37 per Lord Thakerton; Kleinwort Benson Ltd. v. Lincoln CC [1992] 2 A.C. 349, 408 per Lord Hope; Pollock and Mulla, The Indian Contract Act, 1872 (15th Edn) and Tarsem Singh v. Sukhminder Singh AIR 1998 SC 1400 ref.

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

----S. 20---Agreement void where both parties under a mistake as to matter of fact---Scope---Mistake of fact relating to the area of land being sold was recognised as essentially fundamental for the purposes of attracting S.20 of the Contract Act, 1872.

Henry Earnest Meaney v. EC Eyre Walker AIR 1947 All 332 ref.

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

----O.VII, R. 7---Relief not specifically sought in the plaint---Whether such relief could be granted by the Court---In appropriate cases, the courts could mould the relief within the scope of the provisions of O.VII, R.7 of the Code of Civil Procedure Code, 1908 ("C.P.C."), and were empowered to grant such relief as the justice may demand, in the facts and circumstances of the case.

Akhtar Sultana v. Muzaffar Khan PLD 2021 SC 715 ref.

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

----O. VII, R. 7---Limitation Act (IX of 1908), Preamble---Relief not specifically sought in the plaint---Power of the court to mould relief under O.VII, R. 7 of the C.P.C.---Such power did not enable the court to override any applicable statutory provisions, including the provisions of the Limitation Act, 1908.

Thakamma Mathew v. M. Azamathullah 1993 SCMR 2397 ref.

Qari Abdul Rasheed, Advocate Supreme Court for Appellants.

Haji Sabir Hussain Tanoli, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1-8.

(Proforma respondents) for Respondents Nos.9-27.

P L D 2022 Supreme Court 85

Present: Ijaz ul Ahsan, Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

FAQIR ALI and others---Appellants

Versus

SAKINA BIBI and others---Respondents

Civil Appeal No. 22-L of 2014, decided on 29th December, 2021.

(Against the judgment dated 06.12.2013 of the Lahore High Court, Lahore passed in Civil Revision No. 233 of 2011).

(a) Islamic law---

----Gift---Proof---Pre-requisites and burden of proof---Whether gift is required to be registered---Gift in order to be valid and binding on the parties must fulfill three conditions, namely declaration of gift by the donor; acceptance of gift by the donee, and delivery of possession of corpus---Valid gift could also be effected orally if the said three prerequisites were complied with and proved through valid and cogent evidence---Written instrument was not a requirement under the Islamic Law nor was the same compulsorily registerable under the provisions of the Registration Act, 1908---However, strict compliance of the three mandatory conditions was required and registration of the document was of no help if any of the three conditions were not satisfied---Beneficiary of a document was not only bound to prove execution of the document but also to prove the gift by producing cogent and reliable evidence that the three necessary requirements of a valid gift namely, offer, acceptance and delivery of possession have been fulfilled, to the satisfaction of the Court.

(b) Gift---

----Fraudulent gift mutation---Limitation for challenging a fraudulent gift mutation---Where fraud and collusion were alleged and established, the question of limitation did not and could not help the beneficiary of such fraud and collusion---Fraud vitiates even the most solemn transactions and any transaction that was base upon fraud was void and notwithstanding the bar of limitation---Courts would not act as helpless by allowing a fraud to perpetuate.

(c) Gift---

----Proof---Gift mutations allegedly procured through fraud to deprive sisters of their share in inheritance---Court to scrutinize reasons and justification of gift---In the wake of frivolous gifts generally made to deprive female members of the family from benefit of inheritance available to them under Sharia as well as the law, the Courts were not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice was done to a legal heir who otherwise stood to inherit from the estate of a deceased predecessor or relative and that the course of inheritance was not bypassed or artificially blocked.

Although stricto sensu, it was not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct could be made without reason or justification be it natural love and affection for one or more of his children who may have taken care of the donee in his old age and thus furnished a valid basis and justification for the donor to reward such effort on the part of the donee by way of making a gift in his/her favour. In the wake of frivolous gifts generally made to deprive female members of the family from benefit of inheritance available to them under Sharia as well as the law, the Courts were not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice was done to a legal heir who otherwise stood to inherit from the estate of a deceased predecessor or relative and that the course of inheritance was not bypassed or artificially blocked.

Barkat Ali v. Muhammad Ismail 2002 SCMR 1938 ref.

In the present case only reason furnished by the alleged beneficiaries and their witness in their statements before the trial Court was that their father/alleged donor had transferred the suit land to gain divine favour of God by pleasing Him and the exact words used were, "Allah Waasty". It was therefore clear and obvious to that natural love and affection was not the consideration of the gift and instead as alleged by the beneficiaries and their witness the intention behind the transaction was to please God, the Almighty. Even if that claim was accepted as true, it was ex facie hard to understand how depriving real daughters of their rightful share in the inheritance/estate of the donor could be interpreted as an act which would please God, the Almighty Who had specifically ordained that the daughters were entitled to a specified share by way of inheritance in the estate of their father on his demise. It therefore appeared that the gifts were only a device to deprive the daughters from inheritance and the gift mutations were sanctioned to bypass the law of inheritance and to disinherit the daughters. In such background, the High Court was correct in coming to the conclusion that the gift was based on a fraudulent intent.

(d) Limitation---

----Co-sharer in property---Possession of one or more of the legal heirs would be deemed to be that of their deceased predecessor in interest and limitation would not run against a co-sharer.

(e) Gift---

----Oral gift---Proof---Transaction which was based on an oral gift had two parts, namely the fact of the oral gift which had to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift---However, that was not enough---Second ingredient i.e. mutation on the basis of an oral gift had to be independently established by adopting the procedure provided in the Land Revenue Act, 1967 and the rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat, 1984.

A.G. Tariq Chaudhry, Advocate Supreme Court for Appellants.

M. Shahzad Shaukat, Advocate Supreme Court for Respondents Nos. 1 and 2.

P L D 2022 Supreme Court 92

Present: Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

KHYBER MEDICAL UNIVERSITY and others---Petitioners

Versus

AIMAL KHAN and others---Respondents

Civil Petition No. 3429 of 2021, decided on 4th January, 2022.

(Against the order dated 25.3.2021 of the Peshawar High Court, Peshawar, passed in Writ Petition No. 1189-P of 2021).

(a) Constitution of Pakistan---

----Arts. 199 & 185(3)---Educational institution---Internal governance and disciplinary policies---Courts should sparingly interfere in university matters and academic freedom and institutional autonomy---Democracy, human rights and the rule of law cannot become and remain a reality unless higher education institutions, and staff and students, enjoy academic freedom and institutional autonomy---Academic, administrative and disciplinary autonomy of a university must be therefore, respected.

Courts must sparingly interfere in the internal governance and affairs of educational institutions. It is simply prudent that the courts keep their hands off educational matters and avoid dislodging decisions of the university authorities, who possess technical expertise and experience of actual day to day workings of the educational institutions. Every university has the right to set out its disciplinary and other policies in accordance with law, and unless any such policy offends the fundamental rights of the students or violates any law, interference by the courts results in disrupting the smooth functioning and governance of the university. It is, therefore, best to leave the disciplinary, administrative and policy matters of the universities or educational institutions to the professional expertise of the people running them, unless of course there is a violation of any of the fundamental rights or any law.

Khyber Medical College v. Raza Hassan 1999 SCMR 965; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Muhammad Arif v. University of Balochistan PLD 2006 SC 564; Secretary Economic Affairs Division, v. Anwarul Haq Ahmed 2013 SCMR 1687; J.P. Kulshreshtha v. Allahabad University AIR 1980 SC 2141; Maharashtra State BS&HSE. v. Paritosh Bhupeshkumar AIR 1984 SC 1543 and Hindi Hitrakshak Samiti v. Union of India AIR 1990 SC 851 ref.

This self-restraint by the courts in matter of educational institutions is based on the wisdom that academic freedom and institutional autonomy of the universities must be protected and safeguarded. Academic freedom is not merely liberty from restraints on thought, expression, and association in the university, but also that the university should have the freedom to make decisions about the educational matters including disciplinary matters. As it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of a university; who may teach, what may be taught, how it shall be taught and who may be admitted to study.

University of Wisconsin System v. Scott Harold Southworth 151 F.3d 717 ref.

Democracy, human rights and the rule of law cannot become and remain a reality unless higher education institutions, and staff and students, enjoy academic freedom and institutional autonomy. Conversely, one cannot have genuine democracy unless the higher education and research community is able to enquire freely. Higher education institutions are places that have to be imbued with democratic culture, and that, in turn, helps to promote democratic values in the wider society. Universities are the playgrounds of democracy and the more freedom and independence they enjoy, the more free thinkers and leaders they will produce. The academic, administrative and disciplinary autonomy of a university must be therefore, respected.

Academic Freedom, Institutional Autonomy and the Future of Democracy, Council of Europe Higher Education Series No. 24, United Nations Educational, Scientific and Cultural Organization ref.

Raison d'etre of courts is to settle disputes, which come before them. It is not the constitutional mandate of the courts to run and manage public or private institutions or to mirco-manage them or to interfere in their policy and administrative internal matters. Courts neither enjoy such jurisdiction nor possess the requisite technical expertise in this regard. Courts should step in only when there arise justiciable disputes or causes of action between the parties involving violation of the Constitution or the law.

(b) Administration of justice---

----Relief granted on basis of compassion or hardship---Scope---Judges are to decide disputes before them in accordance with the Constitution and the law, not on the basis of their whims, likes and dislikes or personal feelings---Compassion and hardship, therefore, may be considered by courts for providing relief to an aggrieved person, but only when there is scope in the relevant law to do so, not in breach of the law.

Constitutional democracy was run by laws and not by men. Judges are to decide disputes before them in accordance with the Constitution and the law, not on the basis of their whims, likes and dislikes or personal feelings. A good judge intelligently balances law and equity to ensure that justice is tempered with mercy but never at the expense of overriding the letter of the law. Compassion, which may be said to be a shade of, and have nexus to, the rules of equity cannot be given precedence and superseding effect over the clear mandate of law. Compassion and hardship, therefore, may be considered by courts for providing relief to an aggrieved person, but only when there is scope in the relevant law to do so, not in breach of the law.

D.G., National Savings v. Balqees Begum PLD 2013 SC 174 ref.

The reduction of a penalty such as disqualification-period by the Court, in contravention of the relevant law, is an example of judicial overreach or judicial overstepping, where law is ignored or modified by the court to give way to personal emotions and sense of compassion. Such exercise of judicial power is not permissible.

Wood v. Strickland 420 U.S. 308. (1975) and MEPCO v. Muhammed Ilyas 2021 SCMR 775 ref.

Abdul Munim Khan, Advocate Supreme Court and Sharif Janjua, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

P L D 2022 Supreme Court 99

Present: Munib Akhtar and Muhammad Ali Mazhar, JJ

MUHAMMAD NAEEM KHAN and another---Appellants

Versus

MUQADAS KHAN (decd) through L.Rs.and another---Respondents

Civil Appeal No. 908 of 2015, decided on 26th November, 2021.

(Against the judgment dated 15.04.2015 Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No. 799 of 2005).

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

----Art. 129(g)---Withholding/non-production of witnesses by the plaintiff---Effect---Where a party keeps hold of the witnesses, the presumption would be that if such witnesses were produced, their testimony must be against him, therefore adverse inference of withholding evidence goes against the party who failed to call the concerned person engaged in the transaction who was in a better position to give firsthand and straight narrative of the matter in controversy.

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

----O.VI, R.1---Pleadings---Scope---No party can lead evidence beyond the pleadings.

(c) Pardanashin lady---

----Meaning---Phrase "Pardanashin lady" depicts a woman who heeded stringent and unyielding canons and ethics of seclusion and privacy and according to the customs may object to show up in a public office or have no communication except behind the screen with any male person except near relatives.

(d) Pardanashin lady---

----Transaction concerning property enterted into by a Pardanashin or illetrate lady---Principles and burden of proof.

In case of a document executed by a Pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince the Court that it has been read over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The said parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.

Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Syed Mansoor Ahmad v. Mst. Maqbool Begum and others 1990 SCMR 1259; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Rangbi Bewa v. Md. Abed Ali and others 1987 7 BLD 319; Phul Peer Shah v. Hafeeza Fatima 2016 SCMR 1225; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326; Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 Privy Council 204 and Mst. Kharbuja Kuer v. Jangbahadur Rai and others AIR 1963 SC 1203 ref.

The obvious underlying principle is to protect and save a weak and helpless woman from danger and risk of an unfair deal, thereafter, it is to be ensured by the court in tandem, whether the alleged deal or transaction was effected by her free will or through coercion/duress or emotional blackmailing or whether it was simply aimed to deprive her right or interest in the property or divest her due share in the inheritance by male members of her family.

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

----O.VI, R.1---Pleadings---Plea of Pardanashin lady---Question as to whether a lady is Pardanashin or not is always a question of fact which should be specifically pleaded and proved by some cogent evidence and is not to be used as weapon or shield to defend the lawsuit under the garb of this plea at original or appellate stage.

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

----Ss. 75 & 132 & O.XXVI, R.1---Exemption of certain women from personal appearance---Scope---Pardanashin lady---Customs and manners advocated under S.132, C.P.C., characterize the customs and manners predominating presently and not the customs and manners which were prevalent in antiquity which have now become obsolete---Personal appearance refers to in person attendance in the Court and if such plea is taken the Court should not compel a Pardanashin lady to appear in court for recording her evidence---Privilege of exemption in court appearance to a Pardanashin lady as provided under S.132 of C.P.C is to be read with S.75 & O.XXVI, R. 1, C.P.C. wherein the Court may appoint commission to record the evidence of Pardanashin lady---If a woman falls within the exemption clause as cited under S.132, C.P.C., the court has to issue commission as a matter of course or right, provided such plea was taken in the pleadings and the court is obligated to determine first whether the exemption claimed is permissible within the grounds and purview of S. 132, C.P.C. or not, which is meant for particular class of women, so that the privilege/exemption should not be misused but allowed only in genuine cases---However, once it is proved that applicant is a Pardanashin lady, she cannot be compelled to appear in the court and in such eventuality, the court may appoint the commission to record evidence in the interest of justice at any convenient place; even samples of thumb impression can be drawn on commission to verify with the documents in issue through any forensic lab if deemed fit by the Court for deciding the lis in a just manner---If any plea of pardanashin is properly taken then the court may on its own motion appoint the commission for recording the evidence to adjudicate whether the deal or transaction of any property entered into in her name was by her free will or through duress, fraud or emotional blackmailing of male members of family with the sole intention to deprive her right and interest.

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

----Preamble---Rules framed in the Civil Procedure Code are for the advancement of justice and should not as far as possible, be allowed to operate so as to defeat the ends of justice.

(h) Administration of justice---

----Evolution of law with changing times---Law must not become stagnant or archaic while society moves forward; it must be accessible, intelligible and must change with the times responding to the realism of modern day life which requires transfiguration of new ways and means and invention of up to date mechanisms for the purpose of providing access to justice with the aim to cut down the volume of litigation and pendency of cases.

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record for Appellants.

Munir Piracha, Sr. Advocate Supreme Court for Respondents Nos. (1-6).

Ex-Parte: for Respondents: (7-19).

P L D 2022 Supreme Court 112

Present: Sardar Tariq Masood, Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ

NADEEM SAMSON---Appellant

Versus

The STATE and others---Respondents

Criminal Petition No. 1016-L of 2021, decided on 6th January, 2022.

(Against the order dated 08.06.2021 passed by the Lahore High Court in Criminal Miscellaneous No.20944-B of 2021).

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

----S. 497---Withdrawal of first bail petition without any arguments---Second bail petition, filing of---Fresh grounds---Scope---Withdrawal of an earlier bail petition before addressing any argument on the merits of the case, does not preclude filing of a subsequent bail petition for the same relief on the same grounds before the same court.

Nazir Ahmed v. State PLD 2014 SC 241 ref.

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

----S. 497---First bail petition before the High Court dismissed as withdrawn with direction to the Trial Court for expeditious conclusion of the trial---Second bail petition, filing of---Fresh grounds---Scope---Non-compliance by the Trial Court of the direction to conclude the trial within the specified period per se is not a fresh ground for bail only to the extent that an accused cannot, claim bail on this ground as a matter of right, but it is certainly a fresh ground to be assessed and examined by the court for exercise of its discretion in either way, in the overall facts and circumstances of the case.

Talat Ishaq v. National Accountability Bureau PLD 2019 SC 112 ref.

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

----S. 497(1), third and fourth provisos---Bail---Delay in conclusion of the trial---Scope of statutory bail under third proviso to S.497(1), Cr.P.C explained.

(i) The purpose and object of the third proviso to section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

(ii) The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced;

(iii) A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

(iv) This statutory right of the accused to be released on bail is, however, subject to two exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life;

(v) The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial;

(vi) Any delay attributable to the accused after the expiry of the periods stipulated under the 3rd proviso to section 497(1) Cr.P.C. is not relevant for determining his right to be released on bail on the statutory ground; and

(vii) The phrase "a hardened, desperate or dangerous criminal" denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.

Saif-ul-Malook, Advocate Supreme Court for Petitioner.

Syed Nayab Hasan Gardezi, D.A.G. for the State.

P L D 2022 Supreme Court 119

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

PRESIDENT OF PAKISTAN and others---Respondents

Civil Review Petitions Nos.296 to 301, 308, 309 and 509 of 2020 and C.M.A. No. 4533 of 2020, decided on 29th January, 2022.

(Against the short order dated 19.06.2020 and the detailed judgment dated 23.10.2020 passed by this court in Const. Petition. 17 of 2019, etc.)

Per Maqbool Baqar, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ; Manzoor Ahmed Malik, J. agreeing; Yahya Afridi, J. also agreeing but with his own reasons; Umar Ata Bandial, Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ. dissenting.

(a) Constitution of Pakistan---

----Art. 4(1)---Right to be dealt with in accordance with law---Scope---No one, including a Judge of the highest court in the land, is above the law---At the same time, no one, including a Judge of the highest court in the land, can be denied his right to be dealt with in accordance with law; it matters little if the citizen happens to hold a high public office, he is equally subject to and entitled to the protection of law.

(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---Judicial power to be exercised by the dissenting Judges in review jurisdiction---Dissenting Judges on the Bench that heard the case, subject to their availability, are necessary members of the Bench constituted to hear review petition filed against the majority judgment, i.e., judgment of the Court, in particular, when the Bench that first heard the case was a specially constituted Bench for hearing that case---Dissenting Judges, subject to their availability, being necessary members of the review Bench possess the same judicial power as that of the other members of the Bench.

As the judgment of the Court is considered to be the judgment of all the members of that Bench, irrespective of its being majority judgment or unanimous judgment, there can be no difference in judicial powers of the members who earlier delivered the majority or minority judgment while hearing the review petition, under Article 188 of the Constitution, against the judgment of the Court, i.e., the majority judgment. This is because the judgment of the Court is under review and not the view of the majority judges. There is nothing in the Constitution or the Supreme Court Rules, 1980 that restricts the judicial power of dissenting Judges in review jurisdiction in comparison to that of the Judges who delivered the majority judgment. The dissenting Judges, subject to their availability, being necessary members of the review Bench possess the same judicial power as that of the other members of the Bench. The Judge whose opinion remained the minority view in the main case is as empowered to review the judgment of the Court, as can a Judge who delivered the majority opinion. This is because under the review jurisdiction the Judges enjoy the flexibility to change their view, they might continue to hold or reverse their earlier view and thus subscribe to either the earlier majority or minority view. Adjudication is a deliberative process and the power of review, within its limited scope, allows the Judge to reconsider his earlier opinion.

Zulfikar Ali Bhutto v. State PLD 1979 SC 741 ref.

Justice Qazi Faez Isa v. President of Pakistan PLD 2021 SC 639 and Cherat Cement Co. v. Federation PLD 2021 SC 327 endorsed.

In case of review of its own judgment by a Bench of the Supreme Court, the review Bench with the same Judges, if available, and with the same numeric strength can review, within the scope of its review jurisdiction, any part of its judgment including any principle of law enunciated therein.

(c) Supreme Court Rules, 1980---

----O.XXVI, R. 1---Constitution of Pakistan, Art. 188---Split decision of Supreme Court in its review jurisdiction---Majority and minority judgments---Scope---In case of a split decision (where there is dissent by one or more members of the Bench), the majority judgment is the judgment of the Supreme Court in terms of Art. 188 of the Constitution---While the majority and minority views of the judgment become part of the jurisprudence, to be read, analyzed and applied in future, it is the majority view, at the time, that attains the status of the judgment of the Court---Judgment of the Court is characterized as the judgment of the entire Bench, rather than of the majority Judges---Entire Bench means the full numeric strength of the Bench, including the dissenting Judges---For instance, if a case is decided by a 4-3 majority of a 7 member Bench, the judgment of the majority of 4 members, which becomes the judgment of the Court, is considered to be the judgment of a 7 member Bench of the Court, and not of a 4 member Bench.

(d) Supreme Court Rules, 1980---

----O.XI---Principles of law settled in unanimous and split judgments of the Supreme Court---Numerical strength of Bench required for overruling such principles---Where a case is decided by a 4-3 majority of a 7 member Bench, the judgment of the majority of 4 members, which becomes the judgment of the Court, is considered to be the judgment of a 7 member Bench of the Court, and not of a 4 member Bench---Any principle of law enunciated in such majority judgment of 4 members cannot be overruled in any other case by a unanimous decision of a 5, 6, or even 7 member Bench; this can be done only by a Bench larger than a 7 member Bench---Conversely, any principle of law enunciated in the unanimous judgment of a 5 member Bench can be overruled by majority of only 4 members sitting in a 6 or 7 member Bench---Extent of the judicial power of the members of a Bench in this regard is thus dependent upon the total numeric strength of the Bench.

Cherat Cement Co. v. Federation PLD 2021 SC 327 and Shanti Fragrances v. Union of India (2018) 11 SCC 305 ref.

(e) Constitution of Pakistan---

----Arts. 25, 184(3), 187(1), 188, 209(5)(b) & 211---Income Tax Ordinance (XLIX of 2001), Ss.11(5), 111, 116(1)(b), 121, 122, 198, 199, 209 & 216---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 a Supreme Court Judge's family members and submit a report to the Supreme Judicial Council despite quashing of Presidential reference against the 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, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ. [Majority view]: Impugned directions contained in paras 4 to 11 of the short order [reported as (PLD 2020 SC 346)], and other connected matters along with supporting detailed reasons given in the majority judgment [reported as (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 [reported as (PLD 2020 SC 346)], and the detailed reasons thereof [reported as (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 but with his own reasons: Impugned directions contained in paragraphs Nos. 4 to 11 of the short order [reported as (PLD 2020 SC 346)] had been made without appropriately considering the scope of the ouster clause of Art. 211 of the Constitution and the relevant provisions of the Income Tax Ordinance, 2001 ("the 2001 Ordinance")---Said two crucial omissions were marked and distinct "errors apparent on the face of the record" and thus, warranted the positive exercise of the review jurisdiction of the Supreme Court---Directions contained in paragraphs Nos. 4 to 11 of the short order [reported as (PLD 2020 SC 346)], and the detailed judgment [reported as (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]---[Per Umar Ata Bandial, J. dissenting [Minority view]: Being in the Service of Pakistan, the petitioner-Judge remained answerable for the unaccounted assets of his spouse---Two out of the three foreign properties were purchased while the petitioner-Judge was holding the public office of Chief Justice of the High Court and the said properties were undeclared in his wealth statements and that of his wife---No fundamental right of either the petitioner-Judge or his wife had been infringed by the impugned direction to the Federal Board of Revenue (FBR) to investigate the nature and source of funding of the foreign properties because there was no fundamental right granted in the Constitution to public servants/citizens to be immune from investigations into their financial affairs---Judge's wife herself demanded why FBR had not approached her regarding the foreign properties, which is why she could not subsequently take the contradictory plea that a direction to the FBR to such effect was contrary to law---Impugned direction to the FBR to commence proceedings against the Judge's wife did not affect the person, property or any other right of the wife, instead, it only asked the FBR to initiate proceedings to verify her sources of funding the foreign properties---In no way did the impugned direction to the FBR determine or influence the outcome of the proceedings which were to be conducted under the 2001 Ordinance by a Commissioner, Inland Revenue (CIR)---Essential ingredients of the right to be heard, namely, prior notice of the subject-matter and opportunity of hearing to articulate plea of the Judge's wife, were complied with in the present case---Documents produced by the Bank revealed the connection of the petitioner-Judge with the Foreign Currency Account of his wife, that was statedly used for purchasing the foreign properties---In the present case, there was material that called for an explanation before the Council which must be provided to protect the petitioner-Judge and the (Supreme) Court from aspersions cast on their integrity]---[Per Munib Akhtar, J. dissenting (Minority view) : Four Member Judgment authored by Maqbool Baqar, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan JJ, had purportedly also been signed by a retired Judge i.e. Manzoor Ahmad Malik, J---Said retired Judge was a signatory to one of the short orders dated 26-04-2021 but he retired on 30.04.2021---Therefore, he could not, as a matter of law, have signed the judgment---Judge who has already retired, cannot thereafter give, make or sign any judgment, order or decree---Short order passed by Maqbool Baqar, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan JJ, and the short order of Yahya Afridi, J, did not have commonality between them and hence lacked the support of the majority i.e. six judges---For such reason the short order was not operative in and of itself---Neither the Four Member Judgment nor that of Yahya Afridi, J, nor such reasoning or ratio as may be common between them had any binding precedential effect or value]---Detailed reasons for allowing the review petitions and recalling the impugned directions stated.

Per Maqbool Baqar, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ [Majority view]:

The foreign properties were purchased, in the present case, by the petitioner (wife of the Judge of the Supreme Court) and her children in the years 2004 and 2013; their income and sources to purchase those properties obviously relate to those years or the years prior thereto. When the Supreme Court made the impugned directions to the Tax Commissioner on 19 June 2020, a period of more than five years had lapsed since the end of those tax years to which their income and sources of fund for purchase of those properties relate. The bar of time-limit within which an assessment can be amended under Section 122 of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') is a statutory recognition of the protection against arbitrary power of reopening or amending a tax assessment after the expiry of the prescribed period. This statutory bar vests a right in the taxpayer that after efflux of the prescribed period, his tax assessment will not be reopened or amended. Therefore, the impugned directions, prima facie, affected the vested right of the petitioner, as after the expiry of the statutory period a vested right accrues to the taxpayer that his assessment will not be reopened.

Taxation Officer v. Rupafil 2018 SCMR 1131; Assistant Collector v. Khyber Electric Lamps 2001 SCMR 838; Federation v. Ibrahim Textile Mills 1992 SCMR 1898; Commissioner v. Eastern Federal Union Insurance Co. PLD 1982 SC 247; Nagina Silk Mill v. Income-Tax Officer PLD 1963 SC 322 and Commissioner of Income Tax v. Eli Lilly Ltd. 2009 SCMR 1279 ref.

The impugned directions did not leave any option with the Tax Commissioner to consider his legal authority before initiating proceedings in the tax matter of the petitioner. Further, it was admittedly the Tax Commissioner, Karachi who had the jurisdiction, under section 209 of the 2001 Ordinance, to proceed in respect of the income tax returns filed by the petitioner, but the impugned directions mandated the Tax Commissioner, Islamabad to proceed in the matter. And it was only after the impugned directions that the Federal Board of Revenue (FBR) transferred the cases of the petitioner and of her children to the Tax Commissioner, Islamabad vide its order dated 25-06-2020. The impugned directions have, thus, affected the vested right of the petitioner which have accrued to her after lapse of the period prescribed under sections 121 and 122 of the 2001 Ordinance for issuing, or making amendment in, the tax assessment order and have the effect of causing "material disadvantage" to the petitioner. Therefore, it was necessary to provide her a fair and "meaningful hearing" before making the impugned directions.

A day before the impugned directions were passed the petitioner addressed the Supreme Court through video link and made her statement. Perusal of the transcript of her statement as well as of the observations made by the Senior Member of the Bench showed that neither said Member nor any other Member of the Bench asked her whether she had anything to say if the Court would direct the tax authorities to inquire into her sources of fund whereby she had purchased the foreign properties, and to conduct proceedings for determining her tax liability regarding those properties under the 2001 Ordinance. She was not informed of the action the Court was contemplating to take, nor was she given a chance to state her stance on that. Thus, she was not given "notice of the case to be met", nor was she provided with an "opportunity to explain" why the Court should not make such directions. Both the essential requirements of right of hearing were not complied with before making the impugned directions. Hearing the petitioner on 18th June 2020 by the Court on video-link before making the impugned directions on 19th June 2020, therefore, cannot be said to be a fair and "meaningful hearing" in the context of making the impugned directions. While the independent, adult and married children of the petitioner (her son and daughter) were not heard at all, before making the impugned directions that related to and affected them also. The petitioner, in the present case, was deprived of her vested right by the impugned directions, without providing her an opportunity of fair and meaningful hearing, i.e., by giving her notice of the contemplated action (the impugned directions) and opportunity to explain why such action (the impugned directions) should not be made. The impugned directions are, therefore, vitiated on this ground. Furthermore, non- hearing of petitioner is an error on the face of record meriting interference in review jurisdiction.

Federation v. Nawaz Sharif PLD 2009 SC 644 ref.

The petitioner and her children being private citizens, their tax matters had no nexus with the essential pre-requisite for invoking and maintaining any proceedings in the original jurisdiction of the Court under Article 184(3) of the Constitution, and were thus not amenable to the jurisdiction that was invoked and exercised thereunder through the short order dated 19-06-2020 [reported as (PLD 2020 SC 346)]. Further, the tax matter of the petitioner could not have been referred to the Supreme Judicial Council ('the Council') as the role and jurisdiction of the Council is limited to the matters relating to the conduct and capability of the superior Court Judges. It is not mandated to delve into the affairs of someone who is not a Judge of a superior Court. The impugned directions tend to stretch the scope of jurisdiction of the Council beyond the constitutional mandate and vest in the Council the jurisdiction and authority not granted to it by the Constitution.

The impugned directions also create an anomalous situation as they provide that the proceedings before the Council, as contemplated thereby, shall not be effected by the filing or pendency of any appeal under the 2001 Ordinance against the order/report of the Tax Commissioner, or against any order made or decision taken at any appellate stage. If in the event the Council, on the basis of the report submitted by the Chairman FBR in pursuance of the impugned directions, recommends removal of the Judge, but subsequently his wife i.e. the petitioner, succeeds in her challenge to the order of the Tax Commissioner, and the said order is found not sustainable, the time for the retrieval may have passed as by then Judge may have reached the age of superannuation. The injury inflicted upon the Judge and the damage suffered by this institution will thus be irretrievable. In a reverse scenario where the Council may not agree with the findings of the Tax Commissioner, but such findings are upheld by the forums, including the Supreme Court, before which the Tax Commissioner's findings are amenable to correction, an anomalous and embarrassing situation may occur. [p. 166] U1

Another aspect of referring the matter to the Council by the Supreme Court for exercise of its suo motu power is that it infringes the independence of the Council. Therefore, asking the Council, by the impugned directions, to conduct "proceedings" to decide whether or not it will inquire into the matter of alleged misconduct by the Judge in exercise of its suo motu powers is also tantamount to interference into the independent functioning of the Council and, thus, against the spirit of the provisions of Articles 209 and 211 of the Constitution.

Ikram Chaudhry v. Federation PLD 1998 SC 103 ref.

The impugned directions to the Chairman, FBR to submit report to the Council and asking the Council to consider that report for deciding to take any action thereon against the Judge have the effect of directing the Chairman, FBR to file a complaint in the Council against the Judge, in the form of report. The impugned directions have thus authorized the Chairman, FBR to do that which he cannot do under the Constitution and the law. He being an officer subordinate to the Federal Government cannot make any complaint against a constitutional court Judge directly to the Council; only the Federal Government can do so and that too by the constitutional process of acting through the President. If the officers of the Federal or Provincial Governments or of the autonomous bodies or authorities under the control of such Governments are allowed or empowered to file complaints concerning or emanating from their official actions against Judges of the constitutional courts who, in exercise of their constitutional jurisdiction, make judicial review of official actions and inactions of such officers, there would be disastrous consequences for the independence of judiciary.

The impugned directions singled out the petitioner and her husband-Judge for special treatment by directing initiation of proceedings into their matters by the tax authorities and the Council in accordance with a procedure that was not provided by the law and the Constitution; their fundamental right to equality before the law and equal protection of law guaranteed by Article 25 of the Constitution was thus infringed by the impugned directions.

The impugned directions were in no way a relief consequential or incidental to the matter adjudicated upon by the Court, i.e., the constitutionality and legality of the Reference filed against the Judge, or to the relief prayed for by the parties, i.e., the quashing of the Reference or dismissal of the constitutional petitions. The impugned directions must have come as a surprise to the parties being unexpected, as they were beyond the scope of the case before the Court, on a matter that was not debated in the course of the hearing.

The impugned directions having been made without providing a fair and meaningful hearing to the petitioner, thus violating the principles of natural justice, and without adverting to, and in contravention of, the relevant provisions of law and the Constitution, definitely fall within the scope of the well-established ground of review, namely, "error apparent on the face of the record"; thus they can be recalled by the Supreme Court in exercise of its review jurisdiction under Article 188 of the Constitution read with Rule 1 of Order XXVI of the Supreme Court Rules, 1980.

Review petitions were allowed and the impugned directions contained in paras 4 to 11 of the impugned short order dated 19-06-2020 [reported as (PLD 2020 SC 346)]and other connected matters, along with supporting detailed reasons given in the majority judgment of the same date [reported as (PLD 2021 SC 1)], were recalled and set-aside. All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order dated 19-6-2020 [reported as (PLD 2020 SC 346)] and the detailed reasons thereof[reported as (PLD 2021 SC 1)],were declared to be illegal and without any legal effect. Resultantly, any such proceedings, actions, orders or reports cannot 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 but with his own reasons [Majority view]:

The Supreme Court has wide-ranging power vested in it under Article 184(3) or Article 187(1) of the Constitution, to issue appropriate directions, while disposing of a case. However, where the Constitution under Article 211 expressly forbids all courts, including the Supreme Court, not to interfere in the proceedings of the Supreme Judicial Council ('the Council'), then the authority of the Supreme Court under Article 184(3), or, for that matter, under any other Article of the Constitution, has to yield to such definite ouster. The very essence of the ouster clause provided in Article 211 of the Constitution is to curtail the jurisdiction of the courts, including the Supreme Court, to protect and preserve the autonomy and supremacy of the "proceedings" of the Council against judicial interference. The decision on the question, whether to commence an inquiry or otherwise, is a matter that is within the exclusive domain of the Council. The Supreme Court, or for that matter any other Court, lacks the jurisdiction to restrict this vast authority vested in the Council by the Constitution. And unless the very proceedings of the Council to proceed against a Judge of the Superior Judiciary is positively adjudged to be coram non judice, mala fide or without jurisdiction, Courts are to jealously maintain the constitutional independence of the Council.

Any directions of the Supreme Court setting steps for the Council, and for that matter, for its Chairman and Secretary, to follow or to refrain from following and that too, without first adjudging its actions or inactions to be coram non judice, mala fide or without jurisdiction would amount to excessive exercise of jurisdiction by the Supreme Court under Article 184(3) and Article 187(1) of the Consti-tution. Such directions of the Court amount to usurping the exclusive constitutional jurisdiction vested in the Council under Article 209 and protected under Article 211 of the Constitution.

The impugned directions of the Supreme Court to the Council to consider the report of the tax officials amounts to judicial interference in the "proceedings before the Council", and thus violates the autonomy and supremacy of the "proceedings" of the Council against judicial interference envisaged under Article 211 of the Constitution.

The Supreme Court did not have the jurisdiction to issue the impugned directions to the Council to consider initiating, or otherwise, an inquiry against the Judge based on the "information" received from the tax officials of the Federal Board of Revenue (FBR). Even if the instructions of the Court to the Council to consider the report of the tax officials, are not strictly considered or taken as "directions" to the Council, even then the same has the effect of making the Supreme Court a "complainant", and not the "adjudicator" in the matter. Similarly, if the Supreme Court issues directions to the contrary, that is, refraining the Council from considering "information" obtained, the Supreme Court would then too be exceeding its mandated constitutional jurisdiction.

The Supreme Court has, in the judgment under review, passed binding directions to the tax officials to proceed in a set manner, overlooking the provisions of the 2001 Ordinance relating to taking cognizance of "definite information", scrutiny of information and assessment of income tax returns, and territorial jurisdiction. Moreover, in making the impugned directions, the Court also lost sight of the procedure provided in the 2001 Ordinance, as to how tax officials are: (i) to proceed against a tax filer that has undeclared income and assets or mis-declared the same and within what time period; (ii) to determine the source of funds for purchasing the undeclared assets, whether generated in Pakistan or in some foreign country; and (iii) above all, to which tax year the undeclared local assets or source of funds and the undeclared foreign assets and source of funds are to be added to and assessed.

In the circumstances of the case, the matter of probe against the spouse and children of the Judge should best have been left to the concerned tax authorities to proceed under the 2001 Ordinance, without any specific directions. By giving directions to the tax authorities to proceed with the matter on the basis of a procedure and timeline foreign to the 2001 Ordinance, the Supreme Court has ultimately subdued the procedure prescribed under the 2001 Ordinance by expanding its role, inadvertently, as 'legislator' rather than 'adjudicator'.

Another error that crept in while making the impugned directions is the distraction from the fundamental issue of alleged misconduct of the Judge qua the non-disclosure of foreign assets of his spouse, in his wealth statement, filed with the income tax returns under section 116 of the 2001 Ordinance. Though this was the main controversy, the impugned directions directed the tax officials to proceed against the spouse and children of the Judge regarding the subject foreign properties, instead of directing the tax officials to proceed against the Judge to determine his liability, if any, in accordance with the 2001 Ordinance. In case the spouse and children of the Judge fail to adequately justify the sources of fund for purchasing the foreign assets, the same would be deemed even then, under the 2001 Ordinance, to be owned by them, and not by the Judge. In the constitutional petitions, wherein the impugned directions have been given, the concern of the Supreme Court was with respect to the independence of the judiciary and the accountability of the judges in the context of alleged misconduct of the Judge, which has been detracted from, by making the impugned directions against his family members.

The impugned directions affecting the rights of the Judge's wife, her son and daughter, have been passed by the Supreme Court in excess of jurisdiction, and are, therefore, recalled. Consequently, the "superstructure" of subsequent proceedings, actions, orders and reports built on the legally faulty "foundation" of the impugned directions would fall and have no legal effect on the rights and obligations of the Judge's wife, her son and daughter.

His Lordship observed that the tax officials are competent to proceed against any Judge of the Superior Judiciary, serving or retired, his spouse or/and children, without fear or favour, in relation to his or her tax affairs only in accordance with the provisions of the 2001 Ordinance and not otherwise on the basis of unlawful directions; that section 216 of the 2001 Ordinance, commands confidentiality of the information of a tax filer, and breach thereof exposes the delinquent to penal consequences under sections 198 and 199 of the 2001 Ordinance; that such consequences are attracted in the present case to those giving the unlawful directions, namely, Chairman, Assets Recovery Unit (ARU), with the concurrence of the Federal Law Minister, the tax officials executing the unlawful directions in breach of section 216 of the 2001 Ordinance, and finally, the Prime Minister, who despite clear and unanimous finding of misdoings of the said delinquents by the Supreme Court, retained them in positions of authority, thereby blatantly exposed himself to complicity in the commission of the said violation.

Per Umar Ata Bandial; Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ. agreeing [Minority view]

In the present case, it is admitted that the three foreign Properties belong to the Judge's wife and children; that two of the properties were purchased in the year 2013 when the petitioner-Judge was holding the public office of Chief Justice of a High Court; and that the said properties were undeclared in the wealth statements of the petitioner-Judge and his wife. In these circumstances, the non-disclosure of the properties causes suspicion and trepidation. More so when one views sections 11(5) and 111(1)(d) of the Income Tax Ordinance, 2001 ('the 2001 Ordinance') which mandate since the promulgation of the Ordinance [in the case of section 11(5)] and since 2011 [in the case of Section 111(1)(d)] that the income of a resident person includes both his domestic and foreign income and the failure to disclose the same renders a resident person liable to pay the tax evaded. Therefore, in such circumstances a question to the petitioner-Judge about the source of funding of the properties is natural, relevant and lawful, notwithstanding any procedural lapses committed in the preparation of the Reference against him. That question must not be bypassed because being in the Service of Pakistan, the petitioner-Judge remains answerable for the unaccounted assets of his spouse. No satisfactory reasoning was put forward by any review petitioner on why no standards of accountability or separate or lower ones should apply to Judges (who also fall in the category of public servants) and why the Supreme Judicial Council ('the Council') should wait for a final determination by the relevant statutory authorities before processing an information received against a Judge on this score.

It is of vital importance that public office holders, particularly Judges of the Superior Courts, serving the people of Pakistan remain answerable before their relevant forums to safeguard the integrity and credibility of their person as well as of their Court. Courts try people and hold them accountable according to the Constitution and the law. Their judicial orders are accepted and obeyed by the people for their trust in the Courts' moral authority which is dependent upon the personal rectitude of the Judges. If aspersions cast against Judges on the basis of admitted facts are not dispelled, the said moral authority of the Courts is eroded and the execution of their primary function, namely, to decide the peoples' rights and obligations in accordance with the Constitution and the law becomes severely undermined.

Corruption in Hajj Arrangements in 2010's case PLD 2011 SC 963 ref.

When a Judge and/or his spouse admit to acquiring undisclosed foreign assets and there is an element of indiscretion in their omission to declare the said assets, namely, a violation of the duty under Section 111 of the 2001 Ordinance and a failure to live up to the standard of propriety expected of Judges and their spouses under the Code of Conduct for Judges of the Supreme Court and High Courts ('the Code of Conduct'), an inquiry into the source of acquisition of the undeclared foreign assets serves the public interest and right which according to settled jurisprudence can prevail over the private rights of individuals.

Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 and Mohammad Imran v. Province of Sindh 2019 SCMR 1753 ref.

In the present case no fundamental right of either the petitioner-Judge or his wife has been infringed by the impugned direction to the Federal Board of Revenue (FBR) to investigate the nature and source of funding of the foreign properties. This is because there is no fundamental right granted in the Constitution to public servants/citizens to be immune from investigations into their financial affairs. In fact, section 216(3)(p) of the 2001 Ordinance specifically allows such investigations.

In issuing the impugned direction to the FBR to commence proceedings in respect of the foreign properties, the Court was moved by two factors: firstly, that the Judge's wife be given an opportunity to explain the source of funding of the properties so that any stigma surrounding them is erased from the person of the Judge and the Court; and secondly, to redress the wife's complaint as expressed in her video link statement made before the Court that she should have, but had not, been asked about the properties from the beginning. Consequently, having herself demanded why the FBR had not approached her regarding the properties, the Judge's wife cannot now take the contradictory plea that a direction to the FBR to this effect is contrary to law.

The impugned directions contained in the short order [reported as (PLD 2020 SC 346)] had been misconstrued. No direction of any nature was issued to the Council. In fact, the essence of the short order is that the Judge's wife be given the opportunity to explain the facts to the FBR and the factual findings thereon be placed for the perusal of the Council. Such process was meant to allay the disquiet of the petitioner-Judge and his wife by securing a finding that settled the allegations levelled against the former. This is precisely why the short order simply notes that the Secretary of the Council will place the report of the Chairman FBR before the Chairman of the Council for the perusal of the Council. Thereafter, it was for the Council to act as it deemed appropriate in the matter. Therefore, it is wrong to suggest that the Court has bound the Council to investigate the petitioner-Judge.

A strong grievance was voiced by the review petitioners against the short order [reported as (PLD 2020 SC 346)] for allegedly exposing the Judge's wife to scrutiny by a tax forum without giving her a hearing. Such a plea is legally unsound because on the facts of the present case, the allegation that the Judge's wife was not given a hearing (or was given an inadequate hearing) is inconsequential. This is because the short order is not adverse in nature. It did not affect the person, property or any other right of the Judge's wife. Instead, it only asked the FBR to initiate proceedings to verify her sources of funding the foreign properties. Hence, any right to be heard that accrued to the Judge's wife was in the FBR proceedings because the outcome thereof could have either exonerated her or adversely affected her property and reputation.

University of Dacca v. Zakir Ahmed PLD 1965 SC 90 ref.

The controversy in the present case is about the consequences of non-declaration of foreign assets by the Judge's wife. Therefore, referring her case to the FBR for verification and scrutiny was wholly in accordance with the scheme of the 2001 Ordinance. In no way did the impugned direction to the FBR determine or influence the outcome of the proceedings which were to be conducted under the 2001 Ordinance by a Commissioner, Inland Revenue (CIR) who was duly authorised. Such proceedings before a statutory authority were completely independent and separate from the proceedings held before the (Supreme) Court under Article 184(3) of the Constitution.

During the hearing of the judgment under review, the Judge's wife made an oral statement through video link that presented her version of the sources of funds used for purchasing the foreign properties. She was informed at the outset that her statement will be recorded. She displayed before the camera documents that allegedly explained her sources of funding the properties. The Court allowed her to address the Bench for roughly 30 minutes but declined to consider her plea and documents on the ground that jurisdiction to ascertain the facts about the funds used for acquiring the properties lay with two fora in her case, namely, FBR (in her capacity as a taxpayer) and the Council (as a witness) both of which were available to her to do. Her statement clearly reflected her knowledge of the crucial issue, namely, her means for acquiring the properties and her plea on the subject i.e., her independent means for purchasing the same and her willingness to substantiate this claim. After hearing her, the Court decided to refer her to a competent forum, the FBR, to explain the nature and source of the funds utilised for buying the properties. By following this process, the essential ingredients of the right to be heard, namely, prior notice of the subject-matter and opportunity of hearing to articulate her plea, were complied with. As a result, the due process requirements of Art. 10A of the Constitution were fulfilled Ali Muhammad v. State PLD 2010 SC 623 and Michael Francis Hamilton v. Peter Charles Forrest [1981] AC 1038 ref.

In the present case, new material has surfaced during the proceedings of Commissioner, Inland Revenue (CIR). Documents including the Procuration and Delegation Form and the cheques issued by the former (law firm) partner of the Judge existed on the day the short order [reported as (PLD 2020 SC 346)] was passed. However, as these were confidential documents of the Judge's wife they were not in the knowledge of the other parties. It was only when the direction to the FBR was issued vide the short orderto proceed with the verification of the funding of the foreign properties owned by the Judge's wife that the CIRmade a request for information to her Banks under the 2001 Ordinance. The documents produced by the Bank revealed the connection of the petitioner-Judge with the ForeignCurrency Account of his wife. Resultantly, the perusal of and reliance on these documents in review jurisdiction is competent, relevant and critical for verifying the propriety of the Supreme Court's impugned direction to the FBR. Their contents are also crucial for arriving at an informed decision in the present review petitions.

By accepting the present review petitions and seeking to prevent a consideration of the freshly discovered relevant and genuine information, the Majority view has created an anomalous situation whereby a process of the Supreme Court in aid of justice has been turned into a process shrouding the truth under legal niceties. An unsatisfactory state of affairs, therefore, exists which unless explained casts an impression that the Court has adopted a different standard for one of its own. Judges occupy an exalted position in society as dispensers of justice. They are amongst the elites in society. Therefore, neglecting their duty to search and confront the truth goes against the express command of Almighty Allah who has warned against providing preferential treatment to privileged persons.

Surah Al-Isra, Verse 16 ref.

Judges, like all other persons in the Service of Pakistan and holding public office, are answerable for their errors and omissions. In the present case there is material that calls for an explanation before the Council which must be provided to protect the petitioner-Judge and the (Supreme) Court from aspersions cast on their integrity.

Per Munib Akhtar, J; Umar Ata Bandial, Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ. agreeing [Minority view]:

The Four Member Judgment (authored by Justice Maqbool Baqar, Justice Mazhar Alam Khan Miankhel, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan) has purportedly also been signed by a former Supreme Court Judge i.e. Justice (R) Manzoor Ahmad Malik, who has expressed his agreement with the same. Said former Judge was of course a signatory to one of the short orders dated 26.04.2021 but he retired on 30-04-2021. He could not, as a matter of law, have signed the judgment.

Al-Jehad Trust v. Federation PLD 1996 SC 324 and CJP Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 distinguished.

Once a Judge of the Supreme Court has retired he cannot thereafter give, make or sign any judgment, order or decree, and certainly not in such manner as has, or can have, operative effect. Upon retirement he has left office and thereafter cannot, as it were, return to service, whether of his own volition or at the request of any Judge(s) on the Court, unless the Constitution itself so allows. The former Judge i.e. Justice (R) Manzoor Ahmad Malik had retired by efflux of time and hence could not have signed the Four Member Judgment. His purported act of doing so, and expression of agreement, are in law non est and of no legal consequence, effect or operation. The Four Member Judgment remains precisely that: a judgment that has the support of only four of the Judges who heard and decided the review petitions.

Present review petitions were heard and decided by a 10-member Bench. The majority therefore had to comprise of at least six Judges. Three short orders were made in total. The short order made by Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed, had the support of only four Judges and can be put to one side. When the remaining two are considered it is seen that one commanded the support of five Judges (Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Mazhar Alam Khan Miankhel, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan) while the other was made by one Judge (Justice Yahya Afridi). Neither of these short orders had the support of six Judges and hence was not operative in and of itself. Rather, the two orders had to be considered in conjunction. What had operative effect was only that which was common between them. This was because it was only the commonality that commanded the support of a bare majority (i.e., six Judges) and therefore, and for that reason alone, had operative effect.

In the short order of Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Mazhar Alam Khan Miankhel, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan it was directed that "Resultantly, any such proceedings, actions, orders or reports cannot be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council." Said direction was not common in the short order passed by Justice Yahya Afridi, therefore said direction did not command the support of the majority, but only of, at most, a plurality (i.e., five Judges).Since even the commonality does not command the support of the majority it is not the judgment or ratio of the Court. Said direction therefore did not have operative effect. Any relevant forum or authority including the Supreme Judicial Council ('the Council') is therefore not precluded or prevented from considering, acting upon or pursuing any information or material contained in or to be obtained from "any such proceedings, actions, orders or reports".

There is no operative reasoning or ratio of the Court. Of course, there is an operative order in the field which is that what was common between the two short orders. It is not therefore the situation that the decision is bereft of any legal effect at all. Rather, the result is that the legally operative "short order" (i.e., the commonality) is not supported by any operative judgment (i.e., reasoning or ratio). There is nothing that commands the support of even a bare majority. There is no ratio or reasoning that has operative effect as being that of the Court. It therefore necessarily follows that neither the Four Member Judgment nor that of Justice Yahya Afridi nor such reasoning or ratio as may be common between them have any binding precedential effect or value.

Per Maqbool Baqar, Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ [Majority view]

(f) Administration of justice---

----Courts cannot and should not create any right, liability or obligation that is not founded in law.

Yousaf Rerolling Mills v. Collector of Customs PLD 1973 SC 49 ref.

(g) Maxim: Audi alteram partem, principle of---

----Fair hearing, right of---Essential constituents of a fair hearing---To ensure the principle of fairness embedded in the right of hearing, the person sought to be affected must at least be made aware of the allegations made against him, upon which basis the decision is to follow, (i.e., notice of the case to be met) and, second, be given a fair opportunity to make any relevant statement putting forward his own case, and to correct or controvert any relevant statement brought forward to his prejudice (i.e., opportunity to explain)---In order to act justly and to reach at just ends by just means, a deciding authority is to comply with and implement, in all circumstances, these elementary and essential requirements of principle of fairness and right of hearing.

Kanada v. Government of Malaya (1962) AC 322; Ridge v. Baldwin (1964) AC 40; Pakistan v. Public at large PLD 1987 SC 304; Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818 and University of Dacca v. Zakir Ahmed PLD 1965 SC 90 ref.

(h) Maxim: Audi alteram partem, principle of---

----Scope---Even in absence of any express provision in the statute, the principle of audi alteram partem is to be read into the relevant provision and applies in proceedings where adverse action is being considered to be taken against a person or if the contemplated action is going to affect any of his vested rights---Violation of this principle vitiates the proceedings and makes the action taken therein to be illegal, as the violation of said principle is considered as a violation of law.

Ali Muhammad v. State PLD 2010 SC 623; Asim Khan v. Zahir Shah 2007 SCMR 1451; PIA v. Nasir Jamal 2001 SCMR 934; Hazara Improvement Trust v. Qaisra Elahi 2005 SCMR 678; Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 and Lilaram v. Ghulam Ali 1991 SCMR 932 ref.

(i) Constitution of Pakistan---

----Art. 187(1) & Pt. II, Chap. 1---"Power 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"---Scope---Under Art. 187(1) of the Constitution, the Supreme Court can pass any order to do complete justice between the parties; however, it cannot make an order inconsistent with the fundamental rights or in contravention of any constitutional provision or any relevant statutory law.

Dossani Travels v. Travels Shop PLD 2014 SC 1 and Prem Chand v. Excise Commissioner AIR 1963 SC 996 ref.

(j) Jurisdiction---

----Scope---Where an authority has no jurisdiction in the matter under the law, jurisdiction cannot be conferred on that authority by an order of the Court.

Badshah Begum v. Additional Commissioner 2003 SCMR 629 ref.

(k) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts ('the Code of Conduct')---Spouses and children of Judges---No law or clause in the Code of Conduct prescribed for Judges of superior Courts makes the Judges liable to account for the alleged tax-evasion (if any) by his or her independent spouse---Nothing is present in any law or in the Code of Conduct which could possibly be stretched to hold a Judge liable for the conduct of his spouse and children, or for that matter of anybody else, without there being any evidence to connect him with, and hold him responsible for such conduct.

Messrs Avia International v. Assistant Collector of Customs 2004 PTD 997 ref.

(l) Supreme Court Rules, 1980---

----O.XXVI, R. 1---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Expression 'error apparent on the face of the record'---Meaning---Said expression cannot be defined with precision or exhaustiveness, and there would always remain an element of indefiniteness inherent in its very nature---Meaning of said expression is to be determined in each case on the basis of its own peculiar facts.

Anwar Husain v. Province of East Pakistan PLD 1961 Dacca 155 ref.

(m) Constitution of Pakistan---

----Art. 10A---Right to fair trial and due process---Scope---After recognition of the right to fair trial and due process as a fundamental right by insertion of Art. 10A in the Constitution, violation of the principles of natural justice, which are the necessary components of the right to fair trial and due process, is now to be taken as a violation of the said fundamental right as well.

(n) Supreme Court Rules, 1980---

----O.XXVI, R. 1---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Expression 'error apparent on the face of the record'---Scope---Any judgment pronounced or order made without adverting to, and in contravention of, the relevant provisions of law or Constitution is to be treated as an error apparent on the face of the record that warrants the review of that judgment or order.

Muhammad Amir v. Controller of Estate Duty PLD 1962 SC 335; Zulfikar Ali Bhutto v. State PLD 1979 SC 741; Suba v. Fatima Bibi 1996 SCMR 158 and Abdul Ghaffar v. Asghar Ali PLD 1998 SC 363 ref.

(o) Supreme Court Rules, 1980---

---O.XXVI, R. 1---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Scope---Whenever Judges of the Supreme Court find that their judgment or order of which review is sought was pronounced or made without adverting to, and in contravention of, any provision of law or the Constitution, they must correct the error considering it their inviolable constitutional obligation and duty, not a favour or concession to the party seeking review---Judge, therefore, should not hesitate to review his/her decision if it is established not to be right.

(p) Administration of justice---

----When the basic order is without lawful authority, then the entire superstructure built on it falls on to the ground automatically.

Yousaf Ali v. Muhammad Aslam PLD 1958 SC 104; Executive District Officer v. Muhammad Younas 2007 SCMR 1835; Atta-ur-Rehman v. Umar Farooq PLD 2008 SC 663 and Province of Punjab v. Border Area Committee PLD 2011 SC 550 ref.

(q) Constitution of Pakistan---

----Art.4---Right to be dealt with in accordance with law---Scope---Constitutional guarantee of the right to be dealt with in accordance with law, under Art. 4 of the Constitution, is available not only to every citizen of the country but also to every other person for the time being within Pakistan---Said constitutional guarantee cannot be curtailed or limited in the case or matter of any person whosoever he may be and whatever the allegations against him may be.

Naveed Asghar v. State PLD 2021 SC 600 ref.

(r) Constitution of Pakistan---

----Arts. 209(5) & 209(6) & Preamble---'Independence of judiciary' and 'rule of law' importance of---Rule of law---Scope---Edifice of the judicial independence rests on the assumption that every Judge besides being fair and impartial is fiercely independent and is free to uphold his judicial views---Such judicial freedom is fundamental to the concept of the rule of law---Any attempt to muffle judicial independence or to stifle dissent shakes the foundation of a free and impartial judicial system, thus eroding public confidence on which the entire edifice of judicature stands---Judge whose decisions are dictated not by the fidelity to the letter and spirit of the law but based on what he deems to be palatable to the Government would cause irretrievable damage to the public confidence in the judiciary, and consequently jeopardize its credibility and moral authority---Rule of law and the independence of judiciary are conceptually interwoven---Without an independent judiciary, expecting the rule of law is a sheer farce---Rule of law and the independence of the judiciary are the only guarantee to the maintenance and preservation of a thriving democracy.

Per Yahya Afridi, J.;agreeing with the Majority view but with his own reasons [Majority view]

(s) Supreme Court Rules, 1980---

----O.XXVI, R. 1---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Expression 'error apparent on the face of the record'---Scope---Judgment passed on an erroneous assumption of material facts, or without adverting to a provision of law or Constitution, or without noticing an undisputed construction of law and Constitution amounts to an error apparent on the face of the record, and thus justifies positive exercise of the review jurisdiction.

Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049 ref.

(t) Constitution of Pakistan---

----Art. 209(5)---Supreme Judicial Council ('the Council'), powers of---Expression 'information from any source' used in Art. 209(5) of the Constitution---Scope---Clause (5) of Art. 209 of the Constitution, clearly provides that "information from any source" can form the basis of an inquiry by the Council against a Judge of the Superior judiciary---Legal significance and practical implication of the insertion of the word "any" prefixing the word "source" in clause (5) of Art. 209 of the Constitution has, in fact, expanded the pool from which the Council may obtain "information" to initiate an inquiry into the conduct or capacity of a Judge of the Superior judiciary---To interpret the word "any" used in clause (5) of Art. 209 of the Constitution in a manner that would dilute the authority of the Council and restrict the information it can or cannot consider would amount to defeating the very command of the Constitution, therefore, the Council, "on information" emanating from "any source" can proceed, on its own motion, with an inquiry into the capacity or conduct of any Judge of the Superior judiciary.

(u) Constitution of Pakistan---

----Arts. 184(3), 188, 209(5)(b) & 209(8)---Income Tax Ordinance (XLIX of 2001), S. 116(1)(b)---Review petition 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 Judge---Maintainability---Said review petition was not maintainable as the locus standi of the petitioner-Judge to invoke the original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution, as well as the review jurisdiction therein, stands eclipsed till he holds the office of a Judge of the Supreme Court; for he owes an obligation under clause (8) of Art. 209 of the Constitution to observe the Code of Conduct issued by the Council for Judges of the Superior judiciary, that, inter alia, requires him to avoid being involved in litigation, for himself or even on behalf of others, which includes public interest litigation under Art. 184(3) of the Constitution---Object is to avert any chance of a Judge of the Superior judiciary being placed in a position, where his conduct may be seen as unbecoming of a Judge, glimpses of which were seen during the proceedings of the present review petitions---Review petition filed by the petitioner-Judge was held to be not maintainable. [Minority view]

Per Umar Ata Bandial; Sajjad Ali Shah, Munib Akhtar and Qazi Muhammad Amin Ahmed, JJ. agreeing [Minority view]

(v) Supreme Court Rules, 1980---

----O.XXVI, R. 8---Civil Procedure Code (V of 1908), O. XLVII, R.1---Constitution of Pakistan, Art. 188---Review jurisdiction of the Supreme Court---Guiding principles of review jurisdiction stated.

Following are the guiding principles of review jurisdiction:

(i) Every judgment pronounced by the Court is to be considered a solemn and final decision on all points arising out of the case;

(ii) An error must be obvious and must not require an elaborate discussion to be detected;

(iii) An error should not only be significant but should also have a material effect on the outcome of the case in that it must change the decision of the case. Review jurisdiction is limited in nature and a review will only succeed if it can be shown that an error in the judgment has changed the outcome of the case, whether partially or entirely;

(iv) A review cannot be sustained merely on the ground that a different decision could have been taken by the Court; and

(v) A review is not an appeal or a rehearing.

Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Ghulam Murtaza v. Abdul Salam Shah 2010 SCMR 1883; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Wajihul Hassan Zaidi v. Government of the Punjab PLD 2004 SC 801; Rashid Ali Channa v. Muhammad Junaid Farooqui 2017 SCMR 1519; Mukhtar Mai v. Abdul Khaliq 2019 SCMR 1302; Shireen Raza v. Federation of Pakistan 2002 SCMR 1218; Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 and Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701 ref.

(w) Constitution of Pakistan---

----Arts. 184(3) & 187(1)---Supreme Court issuing directions in its jurisdiction under Arts.184(3) & 187(1) of the Constitution---Scope---When the Supreme Court acts under the said two Articles of the Constitution it can issue directions which travel beyond the pleas/ pleadings of the parties---In its original jurisdiction under Art. 184(3) of the Constitution the Supreme Court can mould the relief in accordance with the facts and the circumstances that come to light during the proceedings.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189; Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11 and Muhammad Asghar Khan v. Mirza Aslam Baig PLD 2013 SC 1 ref.

(x) Constitution of Pakistan---

---Arts. 176, 192(1) & 209(5)(b)---Judges of Superior Courts, accountability of---Financial affairs of the spouse and other family members of a Judge---Necessary corollary which flows from the nature of Judges' work and the unique position they occupy in society is that they, like other public servants, are expected to make reasonable efforts to keep themselves informed about the financial affairs of their spouse and other family members who are either dependent on them or with whom they have financial dealings---Although Judges may be protected from the ordinary processes of law, they are not subject to separate or lower legal standards of accountability compared to other public servants; they are answerable at the bare minimum against the same benchmarks applied to ordinary public servants; this includes being accountable for the unexplained assets of their spouses and family members---Only difference is that a Judge of a Superior Court is answerable before a specialised forum (i.e. the Supreme Judicial Council) created specifically for determining complaints of misconduct received against Judges.

(y) Constitution of Pakistan---

----Arts. 176, 192(1) & 209(5)(b)---National Accountability Ordinance (XVIII of 1999), S. 9(a)(v)---Prevention of Corruption Act (II of 1947), S. 5(1)(e)---Judges of Superior Courts, accountability of---National Accountability Ordinance, 1999 and Prevention of Corruption Act, 1947 are not applicable to Superior Court Judges, nevertheless, the legal tests and standards applied to other holders of public office/public servants under said laws can be utilised by the Supreme Judicial Council to evaluate the conduct of Judges.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; The State v. Mr. Justice Akhlaque Hussain PLD 1960 SC (Pak) 26 and The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585 ref.

(z) Constitution of Pakistan---

----Arts. 176 & 192(1)---Judges of the High Courts and the Supreme Court---Said Judges are public servants and also in the Service of Pakistan; they occupy an office 'in connection with the affairs of the Federation'.

Muhammad Asghar Khan v. Mirza Aslam Baig PLD 2013 SC 1 and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

(aa) Constitution of Pakistan---

----Arts. 184(3) & 187(1)---Power of Supreme Court to issue any directions necessary to do complete justice---Scope---Existence and exercise of the (Supreme) Court's power under the Constitution to issue directions is not dependent on express invocation of such power in its order---Not invoking the correct provision of law or citing an incorrect one for sustaining an order is of no consequence if the Court has jurisdiction under the law to pass that very order.

Olas Khan v. Chairman NAB PLD 2018 SC 40 ref.

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

----O. XLVII, R. 1---Review---Scope---In review proceedings the Court can examine only those events which existed at the time when the order was passed.

Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkateama Rao (1900) LR 27 IA 197 and W.B. v. Kamal Sengupta [(2008) 8 SCC 612 ref.

(cc) Constitution of Pakistan---

----Preamble---Self-executory provisions of the Constitution---Meaning---When the Constitution intends any of its provisions to be immediately operational so that the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced without the aid of a legislative enactment, such provisions are termed self-executory.

Hakim Khan v. Government of Pakistan PLD 1992 SC 595 ref.

(dd) Functus officio, doctrine of---

----Scope---Body (or an authorised person) only becomes functus officio once it has passed an order or made a decision which is final so that no power is left with the said body to take any further action.

Black's Law Dictionary (10th Edn); Jowitt's Dictionary of English Law (5th Edn); Stroud's Judicial Dictionary (10th Edn) and Iqbal Pervaiz v. Harsan 2018 SCMR 359 ref.

(ee) Constitution of Pakistan---

----Arts. 209(5)(b) & 210---Supreme Judicial Council ('the Council'), jurisdiction of---Jurisdiction of the Council under Art. 209(5) of the Constitution is limited to inquiring into matters concerning a Judge of the Superior Courts---Only to the extent that the financial matters and activities of the family are intertwined with the affairs of a Judge, does such information become cognizable by the Council---Otherwise, the Council does not have jurisdiction to investigate into the affairs of a Judge's family members---Whilst the Council only has jurisdiction to examine the conduct and/or capacity of Judges of the Superior Courts, it may secure the attendance of any relevant person or the discovery/ production of any document whilst conducting an inquiry against a Judge---In exercise of such power the Council may yet examine persons, who are not Judges, or their record for understanding or deciding a pending information.

(ff) Interpretation of statutes---

----Ordinary and natural meaning---Scope---Words are generally to be given their ordinary and natural meaning except when such construction gives rise to absurdity or renders certain words meaningless.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630 ref.

(gg) Constitution of Pakistan---

----Art. 209(5)---Supreme Judicial Council ('the Council')---Information from 'any' source against a Judge---Scope---Supreme Court can be a source of such information under Art. 209(5) of the Constitution---Since the legislature itself consciously chose to keep the source of information in Art. 209 of the Constitution open ended, it will be contrary to the spirit of the provision to hold otherwise and prevent the Superior Courts from taking judicial notice of information and/or from forwarding the same for perusal and consideration of the Council when no such restriction exists in Art. 209(5) itself.

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

----Art. 18---Evidence Act (I of 1872), S. 5 (since repealed)---Illegally collected evidence---Survey of case-law and rules set therein regulating admissibility of illegally collected evidence in jurisdictions of Pakistan, India, United Kingdom, Canada, Australia and the United States of America stated.

Bisvil Spinners (Pvt) Ltd v. Pakistan PLD 1992 SC 96; Kuruma v. The Queen [ 1955] AC 197; R.M. Malkani v. State of Maharashtra AIR 1973 SC 157; Pooran Mal v. Director of Inspection (Investigation), New Delhi AIR 1974 SC 348; R v. Sang [ 1979] 2 All ER 1222; R v. Grant 2009 SCC 32; Weeks v. United States 232 US 383 (1914); United States v. Janis 428 US 433 (1976); INS v. Lopez-Mendoza 468 US 1032 (1984); Pennsylvania Board of Probation and Parole v Scott 524 US 357 (1998); Silverthorne Lumber Co, Inc v United States 251 US 385 (1920); Nix v. Williams (467 US 431 (1984); Brown v Illinois (422 US 590 (1975); United States v Leon (468 US 897 (1984) and Walder v. United States (347 US 62 (1954)) ref.

Per Munib Akhtar, J; Umar Ata Bandial; Sajjad Ali Shah and Qazi Muhammad Amin Ahmed, JJ. agreeing [Minority view]

(ii) Constitution of Pakistan---

----Art. 189---Multi-member Bench of the Supreme Court---Majority/ minority judgments---Operative decision---Scope---In any case heard by a multi-member Bench (i.e., a Bench comprising of more than one Judge, whether of even or odd numbered strength) the operative decision (whether judgment, decree or order) must have the support of a majority---Even fifty percent is not enough: that is only a plurality---Majority threshold must be crossed---"General" rule is that there must be at least a majority---If there is no majority then there is no operative order or decree, or in the case of a judgment no ratio decidendi of the Court, although there is of course a ratio of such judgment(s) as may have been delivered---Secondly, if there are multiple judgments or orders (short or otherwise) it is only the one which commands the support of the majority that has operative effect as the decision of the Court---If there be no such single judgment then it is the commonality (if any) between them such as commands the support of the majority that has operative effect---Anything (whether determination or decision on a legal point in issue, enunciation of any rule or principle of law or order) that falls short of such mark (i.e., is outside or beyond that what is common) is not the decision of the Court and has no operative effect.

Justice Qazi Faez Isa (in-person) Assisted by Barrister Kabir Hashmi for Petitioners (in C.R.Ps. Nos. 296 of 2020 and C.M.A. No. 3457 of 2021).

Mrs. Sarina Faez Isa (in-person) for Petitioner (in C.R.P. No. 298 of 2020 and Cr.O.Ps. Nos. 10-11 of 2021).

Hamid Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.Ps. Nos.299, 300, 301 and 308 of 2020).

Rasheed A. Rizvi, Senior Advocate Supreme Court (through Video Link from Karachi) for Petitioners (in C.R.Ps. Nos.297 and 309 of 2020).

Nemo for Petitioner (in C.M.A. No. 4533 of 2020).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.P. No. 509 of 2020).

Ch. Aamir Rehman, Addl. A.G.P. for Federation of Pakistan.

Sohail Mahmood, Addl. A.G.P. for President, PM and AGP.

P L D 2022 Supreme Court 247

Present: Umar Ata Bandial, C.J. Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

CRESCENT TEXTILE MILLS LTD., HARIPUR---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Civil Petition No. 4899 of 2018, decided on 14th February, 2022.

(On appeal from the judgment/order dated 25.09.2018 of the Peshawar High Court, Peshawar passed in W.P. 3870-P of 2016).

Supreme Court Rules, 1980---

----O. XIX, R. 2---Petition for leave to appeal before the Supreme Court---Dismissed for non-prosecution---Adjournment sought by counsel without presenting medical certificate---Request for adjournment was made by counsel for the petitioner who allegedly was not feeling well---Present matter was twice adjourned on request of counsel for petitioner---No medical certificate was available on record to indicate his present illness---Advocate-on-Record (AOR) submitted that the application for adjournment was filed directly by the counsel for petitioner---Consequently, the AOR had no instructions in the matter and was not prepared with arguments in the case---In such circumstances, present matter was not be adjourned as it has not progressed for three successive dates of hearing on account of the unavailability of the counsel for the petitioner---Petition for leave to appeal was, accordingly, dismissed for non-prosecution.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2022 Supreme Court 248

Present: Ijaz ul Ahsan and Ayesha A. Malik, JJ

NOOR MUHAMMAD (deceased) through L.Rs. and others---Appellants

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Appeal No. 1296 of 2013, decided on 7th February, 2022.

(Against the judgment dated 24.07.2013 of the Peshawar High Court, Abbottabad Bench, Abbottabad, passed in Civil Revision No. 119-A of 2006).

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Remand order passed by Appellate Court---Such remand order could be set-aside by the High Court in its revisional jurisdiction if the Appellate Court without considering the record or the evidence, remanded the case to the Trial Court, in circumstances where no fresh evidence was required, and the issue due to which the case was remanded stood decided.

The use of the words "in the case" in section 115 of the C.P.C., does not restrict the jurisdiction of the court under the said section. From the record of present case, it is evident that the Appellate Court remanded the matter to the trial court on account of an application for impleadment filed by "M" who claimed that he had constructed a house on the property in dispute of which he is the owner in possession and that he had not been impleaded as a necessary party in the suit, hence the judgment and decree was illegal. The Appellate Court without considering the record or the evidence, remanded the case to the Trial Court for a fresh decision. The High Court vide the impugned judgment considered the application of "M" and concluded that there was no reason to remand the case, on the impleadment of "M", as he is the brother of both the plaintiffs to the suit, and that "M's" claim is the same as that of his plaintiff-brothers. High Court rightly concluded that "M" holds the same status in respect of the disputed property as that of his brothers and therefore, there was no basis to remand the matter for a fresh decision as the issue stands decided. Consequently, the Appellate Court committed an error by remanding the matter as it was not a case where fresh evidence was required, as the rights of "M" had already been adjudicated upon through his brothers who raised the same claim as that of "M". Appeal was dismissed.

Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 ref.

(b) Remand ---

----Scope---Remand order is required in cases which cannot be decided on the basis of available evidence, however, where the evidence is sufficient for a decision of a case, a remand order is not required.

Muhammad Munir Piracha, Advocate Supreme Court for Appellants.

Munawar Iqbal Duggal, Advocate Supreme Court for Respondents.

P L D 2022 Supreme Court 253

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Home Department and others---Petitioners

Versus

WALI KHAN and others---Respondents

C.P.L.As. Nos. 287-P of 2016, 290-P to 295-P, 310-P, 110-P and 111-P of 2019, decided on 15th December, 2021.

(Against judgment dated 04.04.2016, 20-06-2018 11.10.2018, passed in Writ Petition No. 185-B of 2015 and Writ Petitions Nos.317-A, 142-A, 424-A, 414-A, 72-A, 186-A, 187-A, 258-A and 468-A of 2018, etc.).

(a) Constitution of Pakistan---

----Art. 45---Penal Code (XLV of 1860), S. 302---Persons convicted and sentenced under S. 302, P.P.C---Special and ordinary remissions---Eligibility for---In the present case all the notifications issued by the President granting remissions, which are relied upon by the present convicts clearly and unequivocally state that convicts involved in serious crimes including murder, will not be entitled to special remissions, therefore, it is clear that the convicts could not have been granted remissions since they fall in the exceptions provided in the notifications---President is fully empowered to make such a classification and exclude those who have committed serious crimes such as murder, abduction, terrorism etc.---Present convicts after having committed crimes of heinous nature, were denied remissions by the President while exercising his authority under Art. 45 of the Constitution; this was in line with the notifications so issued and High Court erred in law as well as in fact to hold that the convicts were entitled to remissions---Petitions for leave to appeal were converted into appeals and allowed, and impugned judgments of the High Court were set-aside.

Haji Abdul Ali v. Haji Bismillah PLD 2005 SC 163 distinguished.

(b) Constitution of Pakistan---

----Art. 45---Pakistan Prisons Rules, 1978, R. 207---Conflict between the Pakistan Prisons Rules, 1978 and any provision of the Constitution---Provisions of the Constitution shall prevail.

(c) Constitution of Pakistan---

----Art. 45---Pakistan Prisons Rules, 1978, R. 207---Power of President and the Superintendent of Jail to grant remissions---Distinction---Rule 207 of the Pakistan Prisons Rules, 1978 empower the Superintendents of the respective jail to grant remissions---Nevertheless, there is, a fundamental difference in exercise of powers by the Superintendent of the jail and the President under Art. 45 of the Constitution---Superintendent does not grant executive clemency; he exercises authority under the relevant law by allowing only those remissions granted to prisoners which are provided in the law---Superintendent cannot therefore issue a notification on his own volition and allow prisoners remissions on various occasions; his actions must be backed by the law---President on the other hand, may issue such notifications and allow remissions in exercise of his Constitutional powers under Art. 45 of the Constitution---Superintendent can merely grant remissions specified in the Jail Manual to prisoners who qualify for the same, whereas the President may grant remissions on any occasion, which is a wide-ranging power only available to the President under the Constitution.

Malik Akhtar Hussain, Addl.A.G., Khyber Pakhtunkhwa for Petitioners.

M. Amjad Iqbal Qureshi, Advocate Supreme Court for Respondents.

P L D 2022 Supreme Court 261

Present: Umar Ata Bandial and Syed Mansoor Ali Shah, JJ

Syed KHURSHEED AHMED SHAH---Petitioner

Versus

The STATE---Respondent

Civil Petition No. 4387 of 2021, decided on 21st October, 2021.

(On appeal from the judgment/order dated 27.07.2021 of the High Court of Sindh, Karachi passed in C.P. No.D-4048/2021).

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

----Ss. 9 & 10---Constitution of Pakistan, Arts. 9, 10, 10A, 14(1) & 185(3)---Criminal Procedure Code (V of 1898), S. 497---Person accused of an offence under the National Accountability Ordinance, 1999 ('NAB Ordinance')---Bail---Tentative assessment of the material available on record to decide whether there is, or is not, available on record such incriminating material which provides reasonable grounds for believing that the accused is guilty of the alleged offence---Scope---Said standard of making tentative assessment of the material available on record for deciding the question of detaining an accused in prison, or releasing him on bail, during his trial for the alleged offence under the NAB Ordinance is not borrowed from S.497, Cr.P.C. rather, it emanates from the fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention guaranteed by the Constitution and from the operational scheme of the NAB Ordinance---Said Constitutional standard of "reasonable grounds" for depriving a person from his said fundamental rights is to be read in all laws dealing or interfering with his liberty---Material on which tentative assessment is to be made by the court includes material both for and against the accused collected during investigation.

Muhammad Iqbal Khan Noori v. National Accountability Bureau PLD 2021 SC 916 and Khalid Javed v. State PLD 1978 SC 256 ref.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9(a)(v)---Constitution of Pakistan, Art. 185(3)---Benami assets disproportionate to known sources of income of the accused---Bail, grant of---No sufficient incriminating material was available to show that the properties held by the persons who are not the family members of the accused, but are alleged to be his benamidar, are actually of the accused---National Accountability Bureau ('the Bureau') failed to point out any material, which could reasonably show that the properties alleged to be held by the accused, in name of other persons, as his benamidar, are in his actual or constructive possession and/or he receives the profits of those properties---So far as the value of the assets/properties in names of the accused and of his family members are concerned, the Bureau has determined the same by rejecting their value mentioned in the registered sale deeds without any solid lawful basis, to make a case that their assets are disproportionate to their known sources of income---Further it has not been specified whether the value determined by the Bureau is that of the time when the said properties were purchased by the petitioner and his family members, or the same is their current value---As for the transactions of amount credited and debited in the Bank accounts of the accused and his family members, the accused has taken the stance that all the said accounts are disclosed and accounted for in their annual income tax returns and declarations of assets, and the Bureau has not pointed out any material available on record to rebut that stance of the accused---Thus no tangible, sufficient incriminating material was available on record of the case against the accused which would lead to inference of his guilt for commission of the offence alleged against him; there are, therefore, at present stage no reasonable grounds for believing that the accused is guilty of the alleged offence---Petition for leave to appeal was converted into appeal and allowed, and the accused was released on bail with the observations that in a case where the Bureau has been unable to show sufficient incriminating material to the Court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity.

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

----S. 9(a)(v)---Benami transaction---Proof---Factors to be considered by court---Number of factors were to be considered to determine the question whether a particular transaction is benami in character but perhaps the most crucial factors, in the criminal law context are, first, who is in actual possession, or control of possession, of the property, and second, who receives the profits arising out of the property.

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

----S. 9(a)(v)---Assets disproportionate to known sources of income---Comparison with income of accused---Scope---Value of the property at the time of its purchase is to be compared with the known sources of income of the purchaser at the time of that purchase for determining whether or not the purchase of that property is disproportionate to his sources of income.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9(a)(v)---Constitution of Pakistan, Art. 185(3)---Benami assets disproportionate to known sources of income of the accused---Bail, grant of---Inordinate and unconscionable delay in conclusion of trial---Accused was arrested in the present case on 18-09-2019 and facing trial on an interim reference---Since his arrest a period of more than two years has lapsed but the National Accountability Bureau ('the Bureau') is yet to file the final reference, thus, the conclusion of the trial is not in sight for no fault of the accused---Such a long delay does constitute "inordinate and unconscionable delay", justifying the release on bail of the accused pending his trial---Petition for leave to appeal was converted into appeal and allowed, and accused was released on bail.

Talat Ishaq v. NAB PLD 2019 SC 112 ref.

M. Makhdoom Ali Khan, Senior Advocate Supreme Court and Mohsin Shahwani, Advocate Supreme Court for Petitioner.

Sattar Awan, Spl. Prosecutor and Kashan, I.O. for Respondent.

P L D 2022 Supreme Court 267

Present: Gulzar Ahmed, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

PRIVATIZATION COMMISSION through Secretary and others---Petitioners

Versus

AFTAB HUSSAIN and others---Respondents

Civil Appeals Nos. 421 to 423 of 2018, 19-K of 2019, Civil Petition No.852 of 2018, C.M.A. No.5668 of 2020 in C.A. No. 421 of 2018, C.M.A. No. 5669 of 2020 in C.A. No. 421 of 2018, C.M.A. No.955 of 2017 in C.A. No.421 of 2018, C.M.A. No. 956 of 2017 in C.A. No. 422 of 2018 and C.M.A. No. 957 of 2017 in C.A. No. 423 of 2018, decided on 22nd October, 2020.

(Against the judgments dated 24.11.2016, 3.1.2018, passed by the Islamabad High Court, Islamabad, High Court of Sindh, Karachi in I.C.As. Nos. 292 to 294 of 2016, C.P. No.3134 of 2015 and C.P. No. 1837 of 2014, respectively).

(a) Constitution of Pakistan---

----Art. 97---Executive authority of the Federal Government---Scope---Extent of the executive authority of the Federation is not absolute rather circumscribed by other Constitutional provisions---Executive authority of the Federation, to be exercised by the Federal Government/Federal Cabinet, is subordinated to the Constitutional division of powers among different State organs.

Messrs Mustafa Impex Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 ref.

(b) Constitution of Pakistan---

----Arts. 97, 154 & Fourth Sched., Pt. II, Entry No. 3---Benazir Employees Stock Option Scheme (the Scheme')---Whether the Federal Cabinet's decision in approving the Scheme is in violation of Art. 154 of the Constitution---Held, that in terms of Art. 154(1) of the Constitution read with Entry No.3 of Part II of the Federal Legislative List (FLL), the formulation and regulation of policies in relation to all schemes of institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation falls in the domain of Council of Common Interests (CCI)---In the present case the Federal Cabinet was not competent to take a policy decision of approving the Scheme relating to SOEs and other Government of Pakistan Shareholdings---Scheme in question was declared to be in violation of Art. 154 of the Constitution.

The Benazir Employees Stock Option Scheme (the Scheme') emerged from a decision taken by the cabinet to empower the employees of State Owned Enterprises (SOEs) and other Government of Pakistan Shareholdings through transfer of shares and representation on the Board. A substantial portion of government holding in SOEs and other Government of Pakistan Shareholdings i.e. 12% shares was to be transferred for free. Thus, huge amount of public money was involved in the matter. The Scheme was not limited to one or two government enterprises but was designed generally for all the SOEs and other Government of Pakistan Shareholdings. It is evident that the cabinet's decision to launch the Scheme was not merely related to the internal management or day to day working of an SOE or Government of Pakistan Shareholding, rather, it was a major decision taken to provide financial benefit to the employees of SOEs out of the Government of Pakistan Shareholdings. In fact, it was an extensive measure affecting dozens of SOEs/Government of Pakistan Shareholdings and entailing financial implications for the state, which was done within the realm of policy formulation. In such circumstances it needed to be seen whether the Federal Cabinet was competent to take a policy decision about launching of the Scheme or whether, in view of the qualifying phrase of Article 97 of the Constitution, its authority was restricted in the matter.

In terms of Article 154(1) of the Constitution read with Entry No.3 of Part II of the Federal Legislative List (FLL), the formulation and regulation of policies in relation to all schemes of institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation falls in the domain of Council of Common Interests (CCI). The Constitution has curtailed the executive authority of Federal Government in relation to matters in Part II of FLL and handed it over to the CCI. The matters referred to in Part II of FLL are required to be placed before CCI for formulating and regulating policies. Therefore, the decision of launching of the Scheme in question needed to be discussed in CCI. [pp. 276, 277] C, D & E

Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and others v. United Sugar Mills Ltd. Karachi PLD 1977 SC 397; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Wattan Party through President v. Federation or Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 ref.

Matter of transfer of 12% shares of Government of Pakistan in dozens of SOEs and Government of Pakistan Shareholdings without any policy input by CCI, definitely fell outside the ambit of the authority of the Federal Cabinet. The Federal Cabinet was not competent to take the decision of approving the Scheme and the same is declared to be in violation of Article 154 of the Constitution.

(c) Constitution of Pakistan---

----Art. 154(1)---Council of Common Interests (CCI), powers of---Scope---CCI holds a significant position in the Constitutional structure---Role of CCI is not limited to deliberations only, rather, it is endowed with important functions of formulating and regulating polices in relation to the matters detailed in Part II of Federal Legislative List (FLL) of the Constitution---Constitutional provisions relating to the functions of CCI are mandatory in nature and, no other person, body or authority can perform the functions of CCI.

Wattan Party through President v. Federation or Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 ref.

Sohail Mehmood, Additional Attorney General for Pakistan for Appellants (in C.As. Nos. 421 to 423 of 2018).

Ch. Akhtar Ali, Advocate-on-Record along Ikram-ul-Haque Qureshi, Sr. Legal Counsel head of Privatization Commission of Pakistan for Respondents (in C.A. No. 19-K of 2019 as Federation).

Abdul Rahim Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos.1 to 239 (in C.A. No. 421/2018, for Respondents Nos.1 to 32 (in C.A. No. 422 of 2018) and for Respondents Nos.1 to 17 (in C.A. No. 423 of 2018)

Khurram Mumtaz Hashmi, Advocate Supreme Court for OGDCL (in C.As. Nos. 421 to 423 of 2018).

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record for Applicant(s) (in C.M.As. Nos. 5668 and 5669 of 2018).

Mazhar Ali B. Chohan, Advocate-on-Record/Advocate Supreme Court (via video link from Karachi) for the Appellant (s) (in C.A. No. 19-K of 2019).

Salahuddin Ahmed, Advocate Supreme Court for Petitioners (in C.P. No. 852 of 2018).

Nemo for Respondent(s) (in C.P. No. 852 of 2018).

Muhammad Akif Khan, Sr. Legal Counsel for Respondent (PPL).

P L D 2022 Supreme Court 345

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmad, JJ

CIVIL PETITION NO. 271 OF 2021

MUHAMMAD UNEEB AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

(Against the judgment of Lahore High Court, Lahore dated 30.11.2010, passed in I.C.A. No. 33510 of 2019).

CIVIL PETITION NO.293 OF 2021

ABDUL REHMAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

(Against the judgment of Lahore High Court, Lahore dated 30.11.2010, passed in I.C.A. No. 1554 of 2020).

CIVIL PETITION NO.617 OF 2021

CHENAB COLLEGE OF ENGINEERING AND TECHNOLOGY---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

(Against the judgment of Lahore High Court, Lahore dated 30.11.2010, passed in I.C.A. No. 33510 of 2019)

Civil Petitions Nos. 271, 293 and 617 of 2021, decided on 18th October, 2021.

(a) Pakistan Engineering Council Act (V of 1976)---

----Ss. 3A & 25A(c)---B.Sc. (Engineering) program, admission to---Candidates with Diploma of Associate Engineers ("DAE")---Reserved quota of 2% imposed by the Pakistan Engineering Council for admission---Legality---Pakistan Engineering Council or its Governing Body is not empowered to restrict the admission of candidates with Diploma of Associate Engineers ("DAE") to the B.Sc. (Engineering) program by reserving 2% seats for them---Candidates holding an F.Sc. degree and DAE holders were to apply through open competition for a position in B.Sc. (Engineering), and there was no reserved quota for DAE holders---Both the said degrees are at par for admission into B.Sc. (Engineering)---Decision of Pakistan Engineering Council fixing 2% reserved seats for DAE holders is not only unsustainable under the Pakistan Engineering Council Act, 1976 but is also discriminatory.

There is no provision in section 8 of the Pakistan Engineering Council Act, 1976 ('the 1976 Act') that authorizes the Pakistan Engineering Council ('the Council') to reserve admission seats to an engineering program. In the absence of any such power available with the Council, the Governing Body, which under section 3A, exercising the powers of the Council, is also unable to impose such a condition. Perusal of sections 8 and 25A of the 1976 Act shows that the Council or the Governing Body has no power or authority to prescribe reserved seats for DAE for admission into any engineering program.

Decision of the Council reflected in its letter dated 25.03.2015 provides that the Governing Body of the Council has reserved seats upto a maximum of 2% for holders of DAE eligible for admission to B.Sc. (Engineering) program offered by the Engineering Institutions. This decision of the Governing Body does not find support from section 8 or 25A of the 1976 Act.

Other than the fact that the Council or the Governing Body has no power to impose such a condition (of 2% reserved quota), it is also ex-facie discriminatory against the DAE holders, especially when they are considered eligible for the B.Sc. (Engineering) Program along with the F.Sc. degree holders.

Both the holders of F.Sc. and DAE are considered eligible qualifications for the purposes of seeking admission to the B.Sc. (Engineering) program under Article 2 of the 'Regulations for Engineering Education in Pakistan' ('the Regulations'). In the absence of any power to reserve seats for admission to the B.Sc. (Engineering) program, both the set of candidates with F.Sc. and DAE have to be treated at par. This parity is created by equal eligibility of DAE for admission. Therefore, the decision of PEC dated 25-03-2015 fixing 2% reserved seats for DAE holders is not only unsustainable under the 1976 Act but is also discriminatory. Since the Council cannot reserve seats for any program, the condition of "reserved seats" by the Governing Body under Article 2(c) of the Regulations is also illegal, ultra vires the 1976 Act, having no legal effect.

The best way forward is to allow admissions to B.Sc. (Engineering) on open merit and through open competition amongst the F.Sc. and DAE holders. Such a level playing field encourages competition and allows the best of the best amongst the F.Sc. and DAE to be admitted to the B.Sc. (Engineering) Program. Petitions for leave to appeal were converted into appeals and allowed.

(b) Interpretation of statutes---

---Regulations framed under an Act---Scope---Such Regulations have to remain within the four corners of the statutory mandate of the Act.

Azam Nazir Tarar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for the Petitioners (in C.Ps. Nos.271 and 293/21).

Barrister Haris Azmat, Advocate Supreme Court assisted by Bar. Hamid Leghari and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.P. No. 617 of 2021).

Yasin Hatif, Advocate Supreme Court for the PEC.

Nemo for Federation.

P L D 2022 Supreme Court 353

Present: Ijaz ul Ahsan, Yahya Afridi and Jamal Khan Mandokhail, JJ

SALAMAT ALI and others---Appellants

Versus

MUHAMMAD DIN and others---Respondents

Civil Appeal No. 849 of 2015, decided on 20th January, 2022.

(Against the judgment dated 20.05.2015 of the Lahore High Court, Rawalpindi Bench, passed in Civil Revision No. 232 of 2007).

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

----Art. 2(4)---Standard of proof---Different evidential standards of proof applicable in civil, criminal, and quasi-criminal cases stated.

The conceptual analysis of Article 2(4) of the Qanun-e-Shahadat, 1984 shows that in order to prove a fact asserted by a party, it does not require a perfect proof of facts, as it is very rare to have an absolute certainty on facts. This provision sets the standard of a 'prudent man' for determining the probative effect of evidence under the 'circumstances of the particular case'. The judicial consensus that has evolved over time is that the standard of 'preponderance of probability' is applicable in civil cases, the standard of 'proof beyond reasonable doubt' in criminal cases, and the in-between standard of 'clear and convincing proof' in civil cases involving allegations of a criminal nature. All these three standards are, in fact, three different degrees of probability, which cannot be expressed in mathematical terms, and are to be evaluated 'under the circumstances of the particular case', as provided in clause (4) of Article 2 of the Qanun-e-Shahadat, 1984.

Zaka Ullah v. Muhammad Aslam 1991 SCMR 2126; Muhammad Asghar v. State 2010 SCMR 1706; Sumaira Malik v. Umar Aslam 2018 SCMR 1432; Shamas-Ud-Din v. Government of Pakistan PLD 2003 SC 187; Muhammad Ataullah v. Islamic Republic of Pakistan 1999 SCMR 2321 and Chief Justice of Pakistan v. President of Pakistan PLD 2010 SC 61 ref.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Revisional court cannot upset a finding of fact of the court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence---Revisional court cannot substitute the finding of the court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the court(s) below.

(c) Limitation---

----Inheritance---Law of limitation would be relevant in inheritance cases, where third party interest has been created in the property.

Mst. Gharana v. Sahib Kamal Bibi PLD 2014 SC 167; Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Ghulam Qasim v. Mst. Razia Begum PLD 2021 SC 812 ref.

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

----S. 18---Civil Procedure Code (V of 1908), O.VI, R. 4---Commencement of limitation period---Benefit of postponing the commencement of the period of limitation provided to an injuriously affected person---Such benefit is not applicable against a bona fide purchaser---True purport of section 18 of the Limitation Act, 1908 explained with the exception provided therein.

In essence, section 18 of the Limitation Act, 1908 is a safeguard against fraud committed to conceal from a person his right to sue. It postpones the commencement of the period of limitation to the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, 1908 but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit.

The "fraud" envisaged in section 18 only relates to concealing, not creating, the right to sue and thus, affects only the limitation period and has nothing to do with the cause of action and the relief prayed. A plaintiff who wants to avail the benefit of section 18 of the Limitation Act, 1908 must assert the commission of such fraud by the defendant in the plaint, and should also give the particulars thereof, and the date of knowledge as required under Rule 4 of Order VI of the C.P.C., and then prove the same through positive evidence.

In Re: Marappa Goundar AIR 1959 Mad 26; Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16; Naeem Finance Ltd v. Bashir Ahmad PLD 1971 SC 8; Izzat Bakhsh v. Nazir Ahmad 1976 SCMR 508; Faizum v. Nander Khan 2006 SCMR 1931 and Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504 ref.

The umbrella concession qua the commencement of period of limitation, under section 18 of the Limitation Act, 1908 has an express exception, that is, when the disputed property is purchased by a third person in good faith and for valuable consideration (bone fide purchaser), the benefit of section 18 to the owner would then not be available against such third person.

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

----First Sched., Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation period, commencement of---Adverse entry in the revenue record---Principles relating to when the right to sue accrues to a person against the other for declaration of his rights as to any property stated.

It becomes evident by reading section 42 of the Specific Relief Act, 1877 that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.

What "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record, is a question that requires consideration. Entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an "actual denial" of his rights, and does not remain a mere "apprehended or threatened denial". Therefore, in such a case, if the person injuriously affected by such an act of "actual denial" of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.

In an inheritance case, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere "apprehended or threatened denial" of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act "actually denies" the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Issue of limitation---Such issue is one of law, or at-least mixed one of law and facts; therefore, the re-examination of findings of the court(s) below on the issue of limitation by the revisional court falls within the scope of revisional jurisdiction.

Muhammad Munir Paracha, Advocate Supreme Court for Appellants.

Sh. Zamir Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents Nos. 1-4.

Ex parte for Respondents Nos. 5-21.

P L D 2022 Supreme Court 366

Present: Amin ud Din Khan and Jamal Khan Mandokhail, JJ

Malik MUHAMMAD ARIF---Petitioner

Versus

ZAFAR IQBAL and others---Respondents

Civil Petition No. 2743 of 2018, decided on 15th February, 2022.

(On appeal from the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 14.05.2018 passed in W.P. No.175 of 2018).

Punjab Rented Premises Act (VII of 2009)---

----S. 19---Eviction application incorrectly addressed to the Civil Court---Rectification of error by registering the same as an ejectment application---In the present case, the petitioner (landlord) filed an ejectment application before the Trial Court but it was addressed to the Civil Court---However, the contents of the application precisely stated the facts with regard to the relationship of landlord and tenant and the relief claimed therein was for eviction of the respondent-tenant---Application contained concise statement in respect of the premises rented out by the petitioner to the respondent and the relief for eviction of the tenant and recovery of rent claimed for---Thus, it was clear enough to consider that it was a rent application, instead of a civil suit---Though the application was addressed to the Civil Court, but the contents of the same were sufficient to believe that it was for the eviction of a tenant---Initially the application was registered as a civil suit, but subsequently it was rectified and re-numbered as aneviction petition---All the proceedings were conducted in accordance with the Punjab Rented Premises Act, 2009---Under such circumstances, it could not be said that the eviction application was before the Civil Court nor was it a civil suit---Petition for leave to appeal was converted into appeal and allowed.

Ch. Afrasiab Khan, Advocate Supreme Court and Ahmad Nawaz Ch. Advocate-on-Record for Petitioner.

Malik Noman Khalid, Advocate Supreme Court for Respondents.

P L D 2022 Supreme Court 370

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

AZMAT TOWELLERS (PVT.) LTD., MULTAN---Petitioner

Versus

KHALID ANWAR and others---Respondents

C.M.A No. 11338 of 2021 in Civil Petition No. 3184/2017, decided on 17th December, 2021.

(For recall of order of this court dated 06.10.2021, and restoration of Civil Petition No. 3184 of 2017).

Supreme Court Rules, 1980---

----O. I, R. 2 & O. IV, Rr. 2, 6, 15, 22, 26, 30, 31 & 32---"Advocate-on-Record" ('AOR')---Primary duties and responsibilities of an AOR stated.

Principal responsibility under the Supreme Court Rules, 1980 to act, appear and plead on behalf of the party is that of the Advocate-on-Record ('AOR'). It is the AOR who engages the Advocate Supreme Court (ASC) and it is on instructions of the AOR that such ASC pleads the case of the party. Engagement of the ASC does 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 is not available, it is the responsibility of the AOR to appear and plead the case of the party.

Falah ud Din's case PLD 2021 SC 940 ref.

A case before any court, in particular, before the highest court of the land, ought to be attended to with utmost responsibility and seriousness. The concept of enrolling the AOR at the Supreme Court is to ensure that cases filed in the Supreme Court are handled with meticulous care and responsibility and to ensure certainty of representation before the Court.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Ch. Abdul Ghani, Advocate Supreme Court for Respondents.

P L D 2022 Supreme Court 372

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

CIVIL APPEALS NOS. 649 TO 655 OF 2019

(On appeal against judgment dated 26.11.2015 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 15703, 16490, 16594, 29652, 30175, 31185 and 9914 of 2012.)

AND

CIVIL APPEALS NOS. 907-908 OF 2020

(On appeal against judgment dated 16.12.2015 passed by the Lahore High Court, Lahore in Writ Petitions Nos.14185 and 25076 of 2012).

AND

C.M.A. No. 5787 OF 2021 IN C.A. 652 OF 2019

(For setting aside the ex parte order)

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and others---Appellants

Versus

DEFENCE RAYA GOLF AND COUNTRY CLUB and others---Respondents

Civil Appeals Nos. 649 to 655 of 2019, 907-908 of 2020 and C.M.A. No.5787 of 2021 in Civil Appeal No. 652 of 2019, decided on 28th February, 2022.

(a) Tax/levy---

----Double taxation---Constitutionality---Double taxation is not beyond the scope of the relevant legislature, if in substance the levy in question is otherwise properly within its domain---Correct rule is that there is a very strong presumption against double taxation and a heavy burden is cast on the State to show that it has been resorted to---However, if the language of the statute is otherwise clear then the levy cannot be declared unconstitutional on such basis.

(b) Punjab Finance Act (XV of 2011)---

---S. 7 (since omitted)---Punjab Sales Tax on Services Act (XLII of 2012), S. 3---Education cess on clubs---Double taxation---Whether the levy/cess imposed under section 7 of the Punjab Finance Act, 2011, in presence of existing sales tax on services charged under Punjab Sales Tax on Services Act, 2012, amounted to double taxation---Held, that in the present case two different statutes were involved, one being the Punjab Sales Tax on Services Act, 2012, and the other section 7 of the Punjab Finance Act, 2011 ('the 2011 Act'), thus, the question of double taxation did not arise---Levy imposed under section 7 of the Punjab Finance Act, 2011 was not ultra vires the Constitution.

The question of double taxation invariably arises (although this does not necessarily always need to be so) within the four corners of the same statute. The case usually presented before the Court is that in addition to the charging section of a fiscal statute the State claims that pursuant to some other section(s) therein, the same subject matter is being taxed again. The objection taken by the taxpayer in such circumstances is that this is double taxation, i.e., the subject matter of the charging section is being taxed all over again. However, even in this context if the Court comes to the conclusion that the language of the other section is clear and unambiguously imposes the tax then the levy so imposed must be enforced regardless of whether it amounts to double taxation. In the present case, however, this was not the case, as two different statutes are involved, one being the Punjab Sales Tax on Services Act, 2012, and the other section 7 of the Punjab Finance Act, 2011 ('the 2011 Act'), thus, the question of double taxation did not arise. Furthermore subsection (1) of section 7 of the 2011 Act contained an express non-obstante clause, and the charging provision (subsection (3)) further reinforced this by itself containing another non obstante clause. These provisions strongly confirm the legislative intent and serve to negate any conclusion that the levy could be struck down as amounting to double taxation, whether on the legal or the economic or financial planes. Therefore, the High Court, erred in coming to the conclusion that section 7 of the 2011 Act ought to be struck down on the ground that it amounted to double taxation as a matter of law, and was beyond the power conferred by the Constitution.

The 2011 Act came into force on the 1st of July, 2011. However, as is clear from the charging provision it became applicable only on such entities as were notified as clubs by the Provincial Government. It is an accepted position that the relevant notification was issued on 09-03-2012. Therefore, the liability of the respondents/clubs to pay the levy only arose from that date and continued up to 30-06-2015 (when section 7 was omitted by the Finance Act of that year). Supreme Court directed that any amounts that remain unpaid or recoverable from them shall be paid in four equal quarterly installments, the first payment being due and payable on 30-06-2022. Appeals were allowed.

(c) Tax/levy---

----Constitutionality---In determining the constitutionality of a levy it is its substance that will be considered, regardless of the name or label attached to it.

For the Appellants:

Shaukat Rauf Siddiqui, Addl. A.G. Punjab.

Nadeem Salah-ud-Din, Senior Law Officer (in all cases).

For the Respondents:

Muhammad Ali Raza, Advocate Supreme Court (in C.A. No.649 of 2019).

Barrister Khurram Raza, Advocate Supreme Court (in C.As. Nos. 650 of 2019 and C.As. Nos. 907-908 of 2020).

Nemo for Respondents (in C.A. No. 651 of 2019).

Muhammad Shakeel Ch., Advocate Supreme Court (in C.A. No. 652 of 2019 and in C.M.A. No. 5787 of 2021).

Iftikhar Hussain Shah, Advocate Supreme Court (in C.A. 654 of 2019).

Ex-parte (in C.As. Nos. 653 and 655 of 2019).

P L D 2022 Supreme Court 378

Present: Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

MUHAMMAD IQBAL---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 516 of 2018, decided on 15th December, 2021.

(Against the judgment dated 29.04.2016 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 192 of 2014)

(a) Imports and Exports (Control) Act (XXXIX of 1950)---

----Ss. 5, 5B & 8---Export (Quality Control) Order, 1973, S. 4(a)---Constitution of Pakistan, Arts. 9, 10 & 14---Accused-exporter failing to ship the export consignment or refund the amount received in advance from the foreign buyer---Reappraisal of evidence---Condition of payment of fine for release from jail imposed by the High Court---Constitutionality---Special Court (Commercial) convicted the accused under section 5 of the Imports and Exports (Control) Act, 1950 read with section 4(a) of the Export (Quality Control) Order, 1973 and sentenced him to 9 months' rigorous imprisonment and also directed him to refund the amount of US $ 87,671.21 "as per current and existing rate of US Dollar"---High Court maintained the conviction, however, the sentence was reduced to one already undergone---Insofar as the recovery of compensation i.e. specified amount of US $ 87,671.21 was concerned, the High Court observed that the same shall be deposited by the accused equivalent to the Pakistan currency at the date of awarding conviction and thereafter his release letter shall be issued to the concerned Superintendent of Jail---Held, that there was sufficient documentary evidence on record to uphold conviction and sentence of the accused, however, he was in prison for more than eight (08) years only because he could not pay the compensation amount---Reading of sections 5 & 5B of the Imports and Exports (Control) Act, 1950 showed that the Commercial Court was empowered to direct the exporter/seller to refund or pay certain amount with or without damages to the foreign buyer and in case of his failure to pay that amount, it shall be recoverable as an arrear of land revenue along with interest at the prevailing bank rate for the period following the expiration of the time within which such amount was payable and it shall be credited to the Revolving Fund---Commercial Court may direct the payment of such compensation from out of the Revolving Fund set up by the Federal Government---In the present case the Special Court (Commercial) could have and should have directed refund to the buyer from the Revolving Fund if the same was immediately not payable by the accused-exporter---Law clearly stated that if the exporter failed to pay the amount to the buyer within the time specified by the Court, the said amount could be recovered as an arrear of land revenue, but the law did not call for indefinite incarceration in case of default in payment---In the circumstances of the case, indefinite confinement in return for default in payment was violative of Articles 9, 10 & 14 of the Constitution---Supreme Court set-aside the impugned condition of payment/refund of compensation amount for the release of the accused and directed that the Federal Government shall pay the foreign buyer compensation/ refund of an amount of US Dollar $ 87671.21 along with interest at the prevailing bank rate from the date of judgement of Trial Court till the date of payment from the Revolving Fund or from the Federal Consolidated Fund, if the former had not been established yet; that the Federal Government may recover the amount of compensation from the accused as arrears of land revenue, in separate proceedings---Jail petition was converted into appeal and allowed.

(b) Supreme Court Rules, 1980---

----O. XXIII, R. 2, second proviso---Petition for leave to appeal in criminal matters---Limitation---Condonation of delay---Scope---Where the legality of the condition set down on the release of a convict raised certain constitutional questions, the Supreme Court had ample power to condone the delay in filing of appeal in such like cases.

Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 ref.

Zulfikar Khalid Maluka, Advocate Supreme Court for Petitioner.

Sajid Ilyas Bhatti, Addl. A.G. Pak. for the State.

Syed Muhammad Hasnain Ibrahim Kazmi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Trading Department Authority of Pakistan.

P L D 2022 Supreme Court 385

Present: Syed Mansoor Ali Shah and Amin -ud-Din Khan, JJ

TAHIR NAQASH and others---Petitioners

Versus

The STATE and others---Respondents

Crl. P. No. 916-L of 2021, decided on 12 January, 2022.

(Against the order dated 24.05.2021 of Lahore High Court, Lahore, passed in Crl. Misc. No.31929 of 2021).

(a) Constitution of Pakistan---

----Arts. 14, 20, 22, 25 & Preamble---Minority rights---Freedom to profess and practice religion---Protections and fundamental rights available to minorities in the Constitution with respect to professing and practicing their religion stated.

Constitutional values enshrined in the Preamble to the Constitution require us to be tolerant as a people, believe in freedom, equality and social justice, and respect our minorities and make adequate provisions for them to freely profess and practice their religions and develop their cultures and to safeguard their legitimate interests. All citizens of Pakistan, whether Muslim or non-Muslim, are guaranteed fundamental rights under the Constitution including equality of status, freedom of thought, expression, belief, faith, worship subject to law and public morality.

To deprive a non-Muslim (minority) of the country from holding his religious beliefs, to obstruct him from professing and practicing his religion within the four walls of his place of worship is against the grain of the democratic Constitution and repugnant to the spirit and character of the Islamic Republic. It also deeply bruises and disfigures human dignity and the right to privacy of a non-Muslim minority, who like all other citizens of this country enjoy the same rights and protections under the Constitution. Bigoted behaviour towards minorities paints the entire nation in poor colour, labelling it as intolerant, dogmatic and rigid. It is time to embrace constitutional values and live up to rich Islamic teachings and traditions of equality and tolerance.

(b) Constitution of Pakistan---

----Art. 14---Right to dignity---Scope---Article 14 of the Constitution guarantees right to dignity to every person---Human dignity encapsulates the notion that every person has inherent equal worth; this simple but profound concept has three elements: first, every member of the human family has value - no one can be dismissed, ignored, mistreated or abused as if their humanity means nothing; second, each person's worth is equal to every other person and no one's life is more important than any other person; third, human dignity inheres in the human person and cannot be taken away.

Erin Daly & James R. May, Dignity Law, Global Recognition, Cases, and Perspectives. 2020 HEIN ref.

(c) Constitution of Pakistan---

----Arts. 20, 25, 260(3) & Preamble---Minority rights---Members of Ahmadi/Qadiani group---Protections and fundamental rights available under the Constitution---Article 260(3) of the Constitution though declares the Ahmadis/Qadianis as non-Muslim, it neither disowns them as citizens of Pakistan nor deprives them of their entitlement to the fundamental rights guaranteed under the Constitution---Constitution treats, safeguards and protects all its citizens equally, whether they are Muslims or non-Muslims.

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

----Ss. 295-B, 295-C, 298-B & 298-C---Criminal Procedure Code (V of 1898), S. 561-A---Deletion of sections 295-B & 295-C, P.P.C. from the charge---Members of Ahmadi/Qadiani group styling their place of worship as a mosque; displaying sha'air-e-Islam on the walls inside their place of worship and maintaining copies of the Holy Quran therein---Accused persons were put to trial and the Trial Court framed the charge against them for offences punishable under sections 298-B & 298-C, P.P.C.---Later, the complainant filed an application under section 227, Cr.P.C. for alteration of the charge praying that offences punishable under sections 295-B & 295-C, P.P.C. were also attracted and the same be added to the charge---Trial Court allowed such application and added sections 295-B & 295-C, P.P.C. to the charge---Said order of Trial Court was upheld by the Revisional Court and the High Court---Legality---To constitute an offence under section 295-B, P.P.C. the accused must have defiled, damaged or desecrated a copy of the Holy Quran or an extract therefrom or use it in any derogatory manner or for any unlawful purpose---In the present case, there is no allegation in the crime report that attracts the said offence---Similarly, to constitute an offence under section 295-C, P.P.C., there must be words spoken or written or by visible representation or any imputation, innuendo or insinuation, direct or indirect, which defiles the sacred name of the Holy Prophet Muhammed (peace be upon him)---In the present case, the display of the Kalima, having name of the Holy Prophet Muhammed (peace be upon him) therein, inside the place of worship did not attract the constituents of section 295-C, P.P.C.---Acts charged in the present case did not attract sections 295-B & 295-C, P.P.C. either by the plain reading of the words of these two provisions or by their construction through the lens of the express or manifest intention of the Legislature behind them---Petition for leave to appeal was converted into appeal and allowed; petition of the accused persons under section 561-A, Cr.P.C. was accepted and the orders of the trial and revisional courts were set aside with the direction that the trial of the accused persons shall proceed on the basis of the charge framed only for offences punishable under sections 298-B & 298-C, P.P.C.

Zaheeruddin v. State 1993 SCMR 1718 ref.

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

----S. 295-B---Defiling, etc., of Holy Qur'an, offence of---Pre-requisites---Mere reading of the Kalima or the Holy Quran by a non-Muslim/Ahmadi does not attract section 295-C, P.P.C.---Fundamental constituents of a crime were mens rea and actus reus---Only that which resides in the mind of a non-Muslim while reading the Holy Quran is not sufficient to constitute the offence---In order to attract section 295-B, P.P.C., there must be an overt act (actus reus) that shows that the copy of the Holy Quran or its extract has been defiled, damaged or desecrated or it has been put to use in a derogatory manner or for an unlawful purpose.

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

----S. 295-C---Use of derogatory remarks, etc., in respect of the Holy Prophet (pbuh), offence of---Pre-requisites---What runs inside the mind of an Ahmadi, while reading the Kalima does not constitute an offence punishable under section 295-C, P.P.C. unless there is some overt act on his part that defiles the sacred name of the Holy Prophet Muhammed (peace be upon him).

(g) Interpretation of statutes---

----Penal statute---Rule of strict construction---Scope---Penal statute should be strictly construed in favour of the accused---Degree of strictness depends upon the severity of the statute---When it is said that all penal statues are to be construed strictly, it only means that the court must see that the act charged is an offence within the plain meaning of the words used and must not strain or stretch the words---In other words, the rule of strict construction requires that the language of the statute should not be so construed so as to include acts within it which do not fall within the reasonable interpretation of the statute---Rule of strict construction, however, must yield to the paramount rule that every statute is to be expounded according to the express or manifest intention of the Legislature

N.S. Bindra's Interpretation of Statutes, 12th edition (2017) LexisNexis, pp 824-5, 836 ref.

Mirza Mahmood Ahmad, Advocate Supreme Court and Sh. Usman Karim-ud-Din, Advocate Supreme Court for Petitioners.

Mirza Abid Majeed, D.P.G., PB, Syed Zahid Hussain, DSP, Arshad Ali, Inspector/I.O. and Abdur Rasheed, SHO for the State.

Shaukat Rafique Bajwa, Advocate Supreme Court assisted by Hafiz Mussab Rasool, Advocate for the Complainant.

P L D 2022 Supreme Court 395

Present: Sajjad Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ

ABID HUSSAIN and others---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Petition No. 1647 of 2018, decided on 3rd February, 2022.

(Against the judgment dated 26.03.2018 Lahore High Court, Multan Bench, in Regular Second Appeal No.18 of 2004).

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

----Ss. 123 & 129---Islamic law---Oral gift---Transfer of Property Act, 1882, has no application to the hiba/gift envisioned and encapsulated under the Muslim Law and for this reason, sections 123 & 129 of the Transfer of Property Act, 1882 can neither surpass nor outweigh or preponderate the matters of oral gifts contemplated under the Muslim Law for which a registered instrument or indenture is not mandatory.

(b) Islamic law---

----Gift---Essential pre-requisites---Donor should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making gift and he must be major and the owner of the property which is intended to be gifted; the thing gifted should be in existence at the time of hiba; the thing gifted should be such that its benefit should be lawful under the Shariat; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come in the possession of the donee himself or through his representative/guardian for an effective hiba.

(c) Islamic law---

----Gift---Moveable and immoveable property---Islamic law does not make any distinction between movable or immovable property with regard to the concept of hiba, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities.

(d) Islamic law---

----Gift---Essential pre-requisites---For a valid gift it is obligatory that the donor divests and dissociates himself downrightly from the dominion and ownership over the property of gift and puts into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with delivery of possession of the property and ensure that donee has secured physical ascendency over the property in order to constitute the delivery of possession.

(e) Islamic law---

----Gift---Gift by a father to his minor---Principles---Where the donee is a minor child of the donor, then delivery of possession itself is not compulsory---Possession of the father/guardian amounts to possession of minor and separately no evidence is required to prove that the guardian handed over possession of the property to the minor.

If at the time of conveying a gift the donee is minor, the acceptance of gift can be made by his or her guardian and predominantly for the reason of minority of donee alone, the factum of gift made by his natural guardian does not cease to exist but remains valid on fulfillment of all ingredients of a valid gift. A minor donee may not have the capacity to understand the legal consequences.

In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there must be a bona fide intention on the part of the guardian/real father to divest and part from his ownership and pass on it to the donee out of love and affection. According to authoritative and trustworthy texts on Muslim Law, if the donee is minor son of the donor, then delivery of possession itself is not de rigueur or compulsory. The possession of the guardian amounts to possession of minor and separately no aliunde evidence is required to prove that the guardian handed over possession of the property to the minor. In this regard, a lucid exposition has been divulged by D. F. Mulla in his book "Principles of Muhammadan Law" in the annotation No.155, that no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish bona fide intention to give.

Principles of Muhammadan Law by D.F. Mulla para. 155 and Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466 ref.

(f) Islamic law---

----Gift---Gift by a father to his minor---Revocation of gift---Principles---Under Islamic Law gift of immovable property by a father in favour of his minor son cannot be revoked---When the donor and the donee are related within the prohibited degree, a gift made cannot be revoked.

Principles of Muhammadan Law by D.F. Mulla, para. 167; Muhammadan Jurisprudence by Sir Abdul Raheem (Pg. 301 - 302); Outlines of Muhammadan Law (Fourth Edition) by Asaf A. A. Fyzee (Pg. 264 - 266); The Hidaya (Volume II) by Sheikh Burhanuddin Abi Al Hasan Ali Marghinani (Pg. 194); Digest of Muhammadan Law (Second Edition) by Neil B. E. Baillie (Pg. 533 - 535); Muhammadan Law (Volume I) by Syed Ameer Ali (Pg. 150 - 151); Principles and Precedents of Muhammadan Law by William Hay McNaghten (Pg. 51); Bahadur Khan v. Mst. Niamat Khatoon and another 1987 SCMR 1492; Mishkat-ul-Masabih, Vol. II by Faziul Karim and Al-Shari'a [Sunni and Imamiyah Code], Vol. II, by S. C. Sircar ref.

Muhammad Ilyas Shaikh, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioners.

Tahir Mehmood, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for the legal heirs of deceased Respondent No.1.

Nemo for Respondents Nos.2-4.

P L D 2022 Supreme Court 409

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

SAIF UR REHMAN KHAN (in all cases)---Petitioner

Versus

CHAIRMAN, NAB, ISLAMABAD and others---Respondents

Civil Petitions Nos. 5178, 5179 and 5180 of 2021, decided on 22nd September, 2021.

(Against the orders dated 26.08.2021 of the Islamabad High Court, Islamabad passed in W.Ps. Nos. 1244, 1242 and 2862 of 2021)

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

----Ss. 9(a)(ix) & 9(a)(x)---Companies Act (XIX of 2017), Ss. 84, 264(3), 482, 496(1)(d) & 500---Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 37 & 41B---Penal Code (XLV of 1860), Ss. 405 & 415---Defrauding and cheating the public at large---Inducing and luring members of the public to invest money in companies by way of a 'Ponzi/pyramid scheme'---Bar contained in sections 37 & 41B of the Securities and Exchange Commission of Pakistan Act, 1997 and S.482 of the Companies Act, 2017---Scope---Whether National Accountability Bureau (NAB) could inquire into and investigate the commission of the alleged offences without a reference from the Securities and Exchange Commission of Pakistan ('the SECP')---Held, that in the present case there was no bar for the NAB to inquire into and investigate the commission of alleged offence under section 9 of the National Accountability Ordinance, 1999 by the petitioner and to proceed further against him under the said Ordinance---Bar contained in sections 37 & 41B of the Securities and Exchange Commission of Pakistan Act, 1997 ('the SECP Act') and section 482 of the Companies Act, 2017 ('the Companies Act') were not attracted to the present matter---Question of cheating the public at large and of breach of trust did not fall within the domain of Companies Act or SECP Act, but squarely falls under the NAB Ordinance---Therefore, the SECP sending a reference to the NAB or the NAB taking cognizance on the basis of the reference had little significance in the facts and circumstances of the present case, when NAB could have taken cognizance on their own---Proceedings conducted by the NAB, in the present matter, against the petitioner were not without lawful authority.

As per the material collected by the National Accountability Bureau (NAB) so far, money from the investors has been received not only in the Bank accounts of the registered companies but also in the personal accounts of the accused-petitioner and his family members as well as of their unregistered companies, which does not fall within the domain of the Securities and Exchange Commission of Pakistan (SECP). The actions taken by the SECP under the Companies Act, 2017 ('the Companies Act') in the present matter, relates to the alleged illegal acts of the registered companies and their directors, not to those alleged illegal acts that have been done by the petitioner and his family members in their personal capacity.

Even as to registered companies, under Section 264 (3) of the Companies Act a person who forms a company for any fraudulent or unlawful purpose, or carries on unauthorized business, is liable to be proceeded against for any other action provided in any other law for the time being in force, in addition to the action taken under subsection (1) of that section. Likewise, under section 500 of the Companies Act a person who acts as a director or officer of the company and is responsible for carrying on any business or any transaction which is ultra vires of the company is also personally liable for the liabilities and obligations arising out of such business or transaction. These provisions leave little doubt to find that there is no bar for the NAB to inquire into and investigate the commission of alleged offence under Section 9 of the NAB Ordinance by the petitioner and to proceed further against him under that Ordinance.

The bar of Section 41B of the Securities and Exchange Commission of Pakistan Act, 1997 ('the SECP Act') pleaded on behalf of the petitioner is not attracted to the present matter. Section 41B relates to "any regulated activity, regulated securities activity, transaction, process or permission granted under this Act or any administered legislation". The petitioner has failed to show that the allegations against him falls within the scope of any of the said matters. Similarly, the bar of section 37 of the SECP Act and section 482 of the Companies Act pleaded by the petitioner is also not attracted to the investigation of the allegations against him by the NAB or taking cognizance of the alleged offences punishable under the NAB Ordinance by the Accountability Court, as the provisions of the said sections of both the Acts relate to taking cognizance of any offence punishable under those Acts, not to the offences punishable under other laws.

Another contention raised on behalf of the petitioner was that the provisions of the Companies Act and the SECP Act have effect notwithstanding any other law for the time being in force and are to prevail over the provisions of the NAB Ordinance. The question of taking precedence of those Acts over the NAB Ordinance does not arise unless it is shown that the offences of cheating as defined in section 415 of the P.P.C. and thereby dishonestly inducing members of the public at large to deliver any property including money or valuable security to any person and criminal breach of trust as defined in section 405 of the P.P.C. with regard to any property including money or valuable security entrusted by members of the public at large, as defined and made punishable under the NAB Ordinance, are also punishable under the Companies Act and the SECP Act.

The provisions of Section 496(1)(d) of the Companies Act referred to on behalf of the petitioner relate to any fraudulent scheme, artifice or practice that is employed in the course of business of the company. It is not the petitioner's case that it was the business of the petitioner's companies to invite and accept deposits from the public as those companies were admittedly not the banking companies; therefore, the alleged Ponzi scheme was not employed by the companies in the course of business of those companies. Therefore, prima facie the mischief addressed in the Companies Act and SECP Act has a limited scope restricted to invitation of deposits by companies, which can be both through fraud or by a bonafide mistake. Both said laws in no way impede NAB to assume jurisdiction under section 9(a) (ix) & (x) of the NAB Ordinance. The NAB enjoys a totally different jurisdiction, which does not overlap with the Companies Act or SECP Act. The question of cheating the public at large and of breach of trust does not fall within the domain of Companies Act or SECP Act, but squarely falls under the NAB Ordinance. Therefore, the SECP sending a reference to the NAB or the NAB taking cognizance on the basis of the reference has little significance in the facts and circumstances of the case, when NAB could have taken cognizance on their own.

The provisions of section 84 of the Companies Act referred to on behalf of the petitioner relate to mere inviting or accepting deposits from the public; they do not relate to commission of offence of cheating and criminal breach of trust in relation to the money deposited by the public. A company may invite and accept deposits from the public without any intention of committing, or actual commission of, cheating and criminal breach of trust in relation to the deposits of the public. In other words, if cheating and/or criminal breach of trust is not committed, or alleged to have committed, in inviting and accepting deposits, such act of a company and its officer in default is though still punishable under section 84 of the Companies Act, but it is not punishable under the P.P.C. or the NAB Ordinance. And, conversely the offences of cheating and criminal breach of trust in relation to inviting and accepting deposits from the public, which are punishable under the P.P.C. and the NAB Ordinance, are not punishable under section 84 of Companies Act. There is thus no conflict between the provisions of section 84 of the Companies Act and the provisions of Section 9 of the NAB Ordinance, and the question of giving precedence to one over the other does not arise.

It cannot be said that the proceedings being conducted by the NAB, in the present matter, against the petitioner are without lawful authority. Petitions for leave to appeal were dismissed and leave was refused.

(b) Constitution of Pakistan---

----Art. 13(a)---Protection against double punishment---Scope---Double jeopardy, principle of---Scope of Article 13(a) of the Constitution stated.

Article 13(a) of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. The expressions "prosecuted" and "same offence" used in Article 13 are of vital significance in determining the scope of the protection guaranteed. The expression "prosecuted" means prosecuted on a charge of criminal nature before a Court of law; it does not include prosecution on the basis of breach of some code of conduct by a disciplinary authority or breach of some regulatory framework by an administrative authority. The expression "same offence" means offence constituted of the same ingredients and does not mean "same matter" or "same facts". The ingredients of the offence earlier charged and the offence subsequently charged should be the same, to attract the bar of Article 13, in the sense that the facts constituting the offence earlier charged were also sufficient to justify the conviction of the offence subsequently charged.

Jehangir Badar v. Chairman, NAB 2004 SCMR 1632 and Hoot Khan v. NIRC PLD 1977 Kar 145 ref.

(c) Constitution of Pakistan---

---Art. 13(a)---National Accountability Ordinance (XVIII of 1999), S. 9---Companies Act (XIX of 2017), Ss. 264(3) & 500---Securities and Exchange Commission of Pakistan Act (XLII of 1997), Ss. 37 & 41B---Protection against double punishment---Scope---Double jeopardy, principle of---Defrauding and cheating the public at large---Inducing and luring members of the public to invest money in companies by way of a 'Ponzi/pyramid scheme'---Plea of accused petitioner that in view of the proceedings conducted by the Securities and Exchange Commission of Pakistan (SECP), the second proceedings by the National Accountability Bureau (NAB) regarding the same matter would amount to double jeopardy and thus infringe his fundamental right to protection against double punishment guaranteed by Article 13 of the Constitution---Held, that SECP was not a court of law, nor were the offences under the Companies Act, 2017 for which it had imposed penalties on the accused-petitioner and his companies constituted, of the same ingredients as that of the offence defined in section 9 of the National Accountability Ordinance, 1999---Shield of Article 13 of the Constitution was therefore not available to the petitioner to prevent the proceedings against him under the National Accountability Ordinance, 1999---Petitions for leave to appeal were dismissed and leave was refused.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), S. 9---Companies Act (XIX of 2017), Ss. 264(3) & 500---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail, refusal of---Defrauding and cheating the public at large---Inducing and luring members of the public to invest money in companies by way of a 'Ponzi/pyramid scheme'---National Accountability Bureau (NAB) had recorded the statements of many affectees of the alleged fraud of the accused-petitioner and collected the credit and debit record of the Bank accounts operated by the petitioner and his family members as well as the tax record of the petitioner and his alleged shell companies, and the record of the properties in name of the petitioner---During inquiry the NAB found that about 57 Bank accounts had been used for collecting money from the investors, out of which 26 were in name of the petitioner, his wives and son, 18 were in the name of registered companies and 16 in the name of unregistered companies---Petitioner, his wives and son, being the authorized signatories, also operated the accounts in the name of registered and unregistered companies---In view of the said material collected by the NAB so far, the accusation against the petitioner was well founded, and his custody was also required by the NAB for the purpose of completing investigation of the case---Accused-petitioner was refused pre-arrest bail---Petitions for leave to appeal were dismissed and leave was refused.

(e) Constitution of Pakistan---

----Art. 185---Criminal Procedure Code (V of 1898), S. 498---National Accountability Ordinance (XVIII of 1999), S. 9---Companies Act (XIX of 2017), Ss. 264(3) & 500---Supreme Court deciding petitions for leave to appeal filed against short orders of the High Court, in circumstances where High Court had not yet given the detailed reasons for its short orders---Propriety---In the present matter the High Court had not yet given the detailed reasons in support of the impugned short orders---Although the Supreme Court ordinarily waits for the detailed reasons before deciding the appeals or the petitions for leave to appeals filed against the short orders passed by the High Courts, but the peculiar facts and circumstances of a case, as those of the present case, may justify departure from this rule of practice and propriety, which is neither a rule of law nor is an absolute one and, like most of the rules, admits exception(s)---Present case involves a bail matter, which is usually considered as an urgent one; the arguments advanced by counsel for the parties mainly relates to the scope and applicability of certain legal provisions, and not to deep appraisal of the disputed facts and the evidence thereon; and the Supreme Court having heard the arguments of counsel for the parties in detail and perusing the material available on record with their able assistance, had reached a conclusion which is no different from the one arrived at by the High Court in its short orders---In such circumstances, it was not necessary to wait for the detailed reasons to be given by the High Court in support of the impugned short orders before pronouncing the present decision---Petitions for leave to appeal were dismissed and leave was refused.

Muhammad Latif Khan Khosa, Senior Advocate Supreme Court, Malik Javed Iqbal Wains, Advocate Supreme Court along with petitioner in person for Petitioner.

Sattar Awan, Spl. Prosecutor, Irfan Naeem Mangi, D.G. NAB, Fayaz Ahmad Qureshi, D.G. H.Q.NAB. Sardar Muzaffar Ahmad Khan, DPGA. Syed Jamil-ur-Rehman, A.D., M. Adil Shehzad, A.D. NAB, Shahid Islam, A.D. NAB, Haider Azmat, A.D. NAB, Qasim Hussain, ASI, M. Sadiq, H.C., Farrukh Abbas Shah, H.C., Abid Nazir, Constable and Abrar Hussain Shah, Constable for the NAB.

P L D 2022 Supreme Court 420

Present: Qazi Faez Isa and Amin-ud-Din Khan, JJ

COMMISSIONER INLAND REVENUE, FEDERAL BOARD OF REVENUE, KARACHI---Petitioner

Versus

MUHAMMAD MUSTAFA GIGI and others---Respondents

Civil Petitions Nos. 490-K to 561-K, 638-K to 725-K, 775-K to 785, 787-K to 792-K, 794-K to 821-K, 894-K to 950-K, 952-K to 1007-K, 1009-K to 1052-K, 1057-K to 1144-K, 1146-K to 1151-K, 1153-K to 1196-K, 1203-K to 1230-K, 1233-K to 1244-K, 1257-K to 1267-K, 1305-K to 1306-K, 1309-K to 1313-K, 1315-K to 1317-K and 1320-K to 1322-K of 2020 and Civil Petitions Nos. 494-K to 510-K of 2021, decided on 28th December, 2021.

(Against the judgments dated 02.07.2020 and 21.12.2020 respectively passed by the High Court of Sindh at Karachi in Constitution Petitions Nos. D-3757 to D-3759, D-4071, D-4072, D-4164, D-4229 to D-4236, D-4255, D-4270, D-4274 to D-4281, D-4301, D-4306 to D-4308, D-4310 to D-4319, D-4323 to D-4332, D-4338, D-4368,D-4372, D-4373, D-4377, D-4396, D-4397, D-4404 to D-4413, D-4475, D-4527, D-4528, D-4540, D-4581, D-4927 and D-4964 of 2013, Constitution Petitions Nos. D-6564, D-6682 to D-6686, D-6757, D-6763, D-6981, D-7005, D-7017, D-7053, D-7065 to D-7068, D-7091, D-7137, D-7139 and D-7184 of 2016, Constitution Petitions Nos. D-49 to D-53, D-377, D-471, D-551 to D-553, D-637, D-640, D-641, D-676, D-677, D-706, D-708, D-737, D-771, D-847 to D-850, D-852, D-861, D-898 to D-903, D-928, D-933, D-1014, D-1023, D-1024, D-1030, D-1033, D-1046, D-1057, D-1058, D-1086, D-1106, D-1137, D-1149 to D-1154, D-1178, D-1179, D-1225, D-1252, D-1253, D-1258 to 1262, D-1287, D-1288, D-1303, D-1304, D-1311 to D-1314, D-1336, D-1337, D-1343, D-1387, D-1392 to D-1394, D-1452, D-1453, D-1475 to D-1477, D-1480, D-1514, D-1535, D-1536, D-1577, D-1579, D-1610, D-1624, D-1625, D-1663, D-1666, D-1679, D-1693 to D-1697, D-1744, D-1757, D-1759, D-1777, D-1907, D-2002, D-2006, D-2048, D-2098, D-2122, D-2130, D-2154, D-2155, D-2172, D-2173, D-2185, D-2186, D-2276, D-2277, D-2307, D-2327, D-2328, D-2331, D-2334, D-2335, D-2374, D-2399, D-2405 to D-2407, D-2427, D-2494, D-2495, D-2498, D-2589, D-2590, D-2690, D-2691, D-2702, D-2796, D-2797, D-2803, D-2804, D-2883 to D-2885, D-2917, D-3050, D-3111, D-3112, D-3504, D-3678, D-3748, D-3750, D-3787, D-3788, D-3789, D-3790, D-4247, D-4249, D-4463, D-4563, D-4996, D-5362, D-5391, D-5405, D-6007, D-6205, D-6206, D-6546, D-6972, D-7368, D-8049, D-8174, D-8439, D-8441 of 2017, Constitution Petitions Nos. D-652, D-1123, D-8144, D-8206, D-8268, D-8280, D-8388, D-8389, D-8396, D-8440, D-8524, D-8784, D-8871, D-8892 to D-8894 of 2018, Constitution Petitions Nos. D-162, D-268, D-269, D-352 to D-354, D-553, D-907, D-984, D-1394, D-1396, D-1397, D-1561, D-1598 to D-1603, D-1645 to D-1647, D-1690, D-1751 to D-1753, D-1772, D-1811, D-1841, D-1854 to D-1856, D-2098, D-2109, D-2181, D-2248, D-2249, D-2287, D-2555, D-2668, D-2685, D-2761, D-2762, D-2768, D-2792, D-2793, D-2818 to D-2820, D-2849, D-2888, D-2892, D-2893, D-2942, D-3028, D-3050, D3051, D-3077, D-3082, D-3147, D-3274, D-3276 to D-3283, D-3287, D-3346 to D-3348, D-3387, D-3443, D-3450 to D-3452, D-3473 to D-3476, D-3482 to D-3486, D-3520, D-3524, D-3531, D-3532, D-3545, D-3546, D3559, D-3565, D-3597 to 3600, D-3606, D-3620, D-3626, D-3627, D-3640, D-3651, D-3674, D-3679, D-3692, D-3696, D-3711 to D-3715, D-3725, D3737, D-3747, D-3757, D-3758, D-3764, D-3765, D-3767, D-3784, D3785, D-3796 to D-3798, D-3800, D-3809, D-3817, D-3818, D-3820, D3821, D-3844, D-3853, D-3872, D-3878, D-3882, D-3889, D-3900, D-3904 to D-3910, D-3915, D-3919, D-3957, D-3958, D-3961, D-3962, D-3978, D-3990, D-3992, D-3993, D-3999 to D-4001, D-4022, D-4036, D-4042 to D-4044, D-4054, D-4057, D-4058, D-4067 to D-4071, D-4075, D-4090, D-4096, D-4103, D-4104, D-4110, D-4111, D-4125, D-4126, D-4135, D4136, D-4138, D-4139, D-4146, D-4153, D-4154, D-4168, D-4172, D-4175 to D-4179, D-4186, D-4205, D-4212, D-4214, D-4224 to D-4226, D-4252, D-4253, D-4262, D-4268 to D-4270, D-4275 to D-4281, D-4283, D-4289, D-4297, D-4305 to D-4307, D-4316, D-4324, D-4331, D-4332, D-4341, D-4342, D-4347 to D-4350, D-4360 to D-4362, D-4368, D-4370, D-4377, D-4391, D-4403 to D-4405, D-4409, D-4456, D-4503, D-4565, D-4577, D-4578, D-4590, D-4591, D-4638, D-4641, D-4664, D-4671, D-4672, D-4676, D-4687, D-4688, D-4692, D-4785, D-4786, D-4791, D-4833, D-4876 to D-4878, D-4930, D-4944, D-4957, D-4980, D-4981, D-5020, D-5023, D-5062, D-5063, D-5080, D-5097, D-5228, D-5266, D-5426, D-5708 to D-5712, D-5714, D-5744, D-5802, D-5868, D-5917, D-5918, D-5943, D-5944, D-6007, D-6114, D-6179, D-6203, D-6959, of 2019 and Constitution Petitions Nos. 1558, D-1855 and 1857 of 2020).

(a) Income Support Levy Act, 2013 [since repealed]---

----Ss. 3, 9 & Preamble---Constitution of Pakistan, Arts. 70, 73(2), 73(3), 78(1), 81(e) & 177---Income Support Levy imposed through the Income Support Levy Act, 2013---Vires of---Income Support Levy Act, 2013 ('the 2013 Act') itself did not state that the Income Support Levy was or constituted a tax or taxation---Examination of the 2013 Act made it abundantly clear that it neither came within the definition of tax nor taxation; it was social legislation with the declared objective of poverty alleviation---Since the 2013 Act was not a Money Bill it had to be passed by both Houses, as provided by Art. 70 of the Constitution, but as this was not done in the present case the 2013 Act never became law, and, the tax authorities (petitioner) could not take action pursuant to it---High Court had rightly found the Income Support Levy Act, 2013 to be unconstitutional---Petitions for leave to appeal were dismissed and leave was refused.

Article 70 through to Article 77 of the Constitution prescribes the Legislative Procedure to be followed to enact legislation. Except Money Bills, every proposed piece of legislation is introduced as a bill in either of the two Houses, that is, the National Assembly or the Senate. Once the bill is passed by the House in which it is introduced, it is transmitted to the other House for voting. However, a Money Bill can only originate in the National Assembly. A Money Bill also does not have to be transmitted to the Senate for voting. In the present case it was incorrectly assumed that the Income Support Levy Act, 2013 ('the 2013 Act') was a Money Bill, or formed part of a Money Bill, and on this assumption, it was not transmitted to the Senate after it was passed by the National Assembly.

The Constitution defines what constitutes a Money Bill in Article 73(2) of the Constitution, which is further clarified by Article 73(3). The 2013 Act itself did not state that the Income Support Levy was or constituted a tax or taxation. Leaving semantics aside, an examination of the 2013 Act makes it abundantly clear that it neither came within the definition of tax nor taxation. The 2013 Act was social legislation with the declared objective of poverty alleviation. Though a worthwhile objective, it did not bring the 2013 Act within the definition of a Money Bill. That since the 2013 Act was not a Money Bill it had to be passed by both Houses, as provided by Article 70 of the Constitution.

Since the 2013 Act did not constitute a Money Bill, it had to be transmitted to the Senate to vote on it. But as this was not done the 2013 Act never became law. And, the tax authorities (petitioner) could not take action pursuant to something (the 2013 Act) which was not law and nor was anyone liable thereunder.

The 2013 Act also suffered from other insurmountable constitutional shortcomings. In the absence of any legislative mechanism to secure the amounts collected as Income Support Levy for the stated objective of poverty alleviation, such amounts would be deposited and become part of the Federal Consolidated Fund ('the Fund'), becoming indistinguishable from other monies therein. The expenditure charged upon the Fund includes the remuneration of the President, Judges, Chief Election Commissioner, Chairman and Deputy Chairman of the Senate, Speaker and Deputy Speaker of the National Assembly and the Auditor-General for Pakistan and the administrative expenses of their respective offices. Undoubtedly, the object of charging the same on the Fund is to bolster their independence by also securing them financially. Clause (e) of Article 81 of the Constitution enables other sums also to be charged upon the Fund if either the Constitution or an Act of Parliament declares them to be so charged. But, the 2013 Act did not declare that the amounts recovered pursuant to it were to be charged in any specific manner on the Fund. Resultantly, the amounts raised by the Income Support Levy would go into the Fund and would have to be distributed pursuant to the mechanism provided in the Constitution. Consequently, the stated objective of poverty alleviation, for which the Act was purportedly enacted, could not be achieved. High Court had rightly found the Income Support Levy Act, 2013 to be unconstitutional. Petitions for leave to appeal were dismissed and leave was refused.

(b) Interpretation of Constitution---

----Methodologies and procedures prescribed in the Constitution---Each and every word of the Constitution, and the methodologies and procedures prescribed therein, must be strictly adhered to---When this is done it dissipates misgivings and mistrust, and steers away from pitfalls; this also avoids wastage of time, money and effort---Whenever the Constitution is violated it disrespects the people for whom it was made---Constitutional transgressions invariably have disastrous ramifications which, undermine democracy and national unity.

Dr. Shah Nawaz, Advocate Supreme Court (in all cases), Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner (in C.Ps. Nos. 894-K to 950-K, 952-K to 1007-K, 1009-K to 1052-K, 1057-K to 1144-K, 1146-K to 1151-K, 1153-K to 1196-K, 1203-K to 1230-K, 1233-K to 1244-K, 1257- K to 1267-K, 1305-K to 1306-K, 1309-K to 1313-K, 1315-K to 1317-K and 1320-K to 1322-K of 2020 and Civil Petitions Nos. 494-K to 510-K of 2021).

Barrister Abdur Rehman, Advocate Supreme Court for the Respondents (in C.P. No. 719-K/2020)

Ghulam Mustafa Lakhani, Advocate Supreme Court for the Respondents (in C.Ps. Nos. 720-K and 995-K/2020)

Respondents not represented (in remaining cases).

P L D 2022 Supreme Court 439

Present: Gulzar Ahmed, C.J. Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

M.Q.M. (PAKISTAN) and others---Petitioners

Versus

PAKISTAN through Secretary Cabinet Division, Government of Pakistan and others---Respondents

Constitution Petition No. 24 of 2017, decided on 1st February, 2022.

(a) Constitution of Pakistan---

----Arts. 2A, 9, 14, 17, 25, 140A & 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Maintainability---Issues raised by the petitioners in the present petition included lack of devolution of political, administrative and financial responsibility to the Local Government by the Provincial Government; mismanagement and corruption in funds meant for urban and rural areas of the Province; lack of clean drinking water; untreated garbage and sewage; spread of fatal diseases; deplorable state of Government hospitals and schools, and appointment to government posts without merit---Held, that issues raised by the petitioners, which were not denied by the Provincial Government, were substantial questions giving rise to the very enforceability of Fundamental Rights of the citizens of the Province and such fundamental rights related to question of public importance---Present petition filed under Article 184(3) of the Constitution was maintainable.

Al-Jehad Trust through Habibul Wahab Ali Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Ms. Shehia Zia and others v. WAPDA PLD 1994 SC 693 and Bank of Punjab and another v. Haris Steel Industries (Pvt.) and others PLD 2010 SC 1109 ref.

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

----Ss. 74 & 75(1)---Constitution of Pakistan, Arts. 2A, 9, 14, 25 & 140A---Constitutional petition under Article 184(3) of the Constitution---Local Governments in Province of Sindh---Sections 74 & 75(1) of the Sindh Local Government Act, 2013 ('the Act of 2013') were against the principles enshrined in the Objectives Resolution and the Fundamental Rights enacted in Articles 9, 14 & 25 of the Constitution and were also contrary to and in direct conflict with Article 140A of the Constitution---Supreme Court declared Sections 74 & 75(1) of the Sindh Local Government Act, 2013 as ultra vires the Constitution and struck them down, and disposed of the petition with certain directions and observations.

Both Sections 74 and 75 of the Sindh Local Government Act, 2013 ('the 2013 Act') made excessive delegation to the Provincial Government in matters relating to management and control of institution or service of a Council and functions of a Council.

Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629 ref.

Local government is a third tier of government provided by the Constitution; it is a government at the grassroots level having direct impact on the life of citizens in matters relating to their daily lives i.e.

(i) Right to adequate and safe drinking water;

(ii) Right to have neat, clean and healthy environment, free from all sorts of garbage and sewage piling on the roads, streets and open spaces;

(iii) Keeping the citizen safe from flood devastation and other natural calamities;

(iv) Keeping the citizen safe from fire;

(v) Making provision for medical treatment of all citizens without any discrimination and providing all types of requisite medicines;

(vi) Giving equal opportunity to all citizens without discrimination of employment in service on merit basis;

(vii) Protecting life and liberty of all citizens without any discrimination;

(viii) Making provision for all citizens to have adequate education in schools and colleges with competent teaching staff and provision of all amenities needed for a school and college;

(ix) Keeping school and colleges premises free from all encroachments and illegal uses;

(x) Provision of sports facilities;

(xi) Provision of local/public transport;

(xii) Provision of graveyard, mosque and libraries; and

(xiii) Provision of parks and playgrounds.

Local government system pledge to deliver the abovementioned basic necessities of life and to maintain inviolability and dignity of human beings and to provide these basic necessities to all citizens without discrimination. Therefore, any infringement on the part of the Provincial government to take away (powers) from the Local government system through an executive fiat such as sections 74 and 75(1) of the Act of 2013, renders them palpably derogatory to such rights of the citizens and will not be sustainable.

Sections 74 and 75(1) of the Act of 2013 are against the principles enshrined in the Objectives Resolution and the Fundamental Rights enacted in Articles 9, 14 and 25 of the Constitution and are also contrary to and in direct conflict with Article 140A of the Constitution.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

Supreme Court declared sections 74 and 75(1) of the Sindh Local Government Act, 2013 as ultra vires the Constitution and struck them down, and disposed of the petition with the following directions and observations.

(i) Elected Local Governments are presently not in existence in the Province of Sindh. The Provincial Government through its agencies is performing their duties and functions. In the vacuum resulting from the absence of an elected Local Government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected Local Government are allowed to be carried out by the Provincial Government and no new project following within the domain of the elected Local Government shall be undertaken by the Provincial Government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected Local Government in respect of such project;

(ii) Article 140A of the Constitution casts a mandatory obligation on the Provinces to establish Local Government possessing meaningful authority and responsibility in the political arena and administrative and financial matters. It is the duty of a Province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the Province so as to comply with their mandatory obligation under Article 140A of the Constitution;

(iii) The powers in relation to master plan and spatial planning which historically belongs to the elected Local Government have been superimposed with similar functions vesting in the provincial laws. To the extent of conflict in the exercise of their respective powers and -functions by the elected Local Government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected Local Government over the powers conferred by law on the Provincial Government or an agency thereof. Notwithstanding the above, the Provincial Government in any case is under a duty to establish harmonious working relationship with an elected Local Government wherein respect is accorded to the views and decisions of the latter;

(iv) Thus, the laws made by the Provincial government i.e. the Sindh Building Control Ordinance, 1979, the Karachi Development Authority Order 5 of 1957, the Malir Development Authority Act, 1993, the Liyari Development Authority Act, 1993, the Karachi Water and Sewerage Board Act, 1996, the Hyderabad Development Authority Act, 1976, the Sehwan Development Authority Act, 1993, the Larkana Development Authority Act, 1994, the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, and any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the Province of Sindh purporting to override and in conflict with an action taken by an elected Local Government are held to be against the scheme of the Constitution. The Provincial Government is directed to bring all the said laws in accord with the mandate of Article 140A of the Constitution;

(v) The Provincial Government of Sindh shall ensure that all Local Governments in the Province of Sindh do get their share in the divisible pool of funds by implementing the Provincial Financial Commission Award and also to ensure that no arrears in this regard are accumulated and if, there are arrears, the same are released.

(c) Constitution of Pakistan---

----Art. 2A & Preamble---State functionaries---Public office holders---Discretion, exercise of---Scope---Constitution does not envisage unstructured, uncontrolled and arbitrary discretion being conferred by legislature on State functionary or holder of a public office---Even if, some discretion is conferred by law on a State functionary or on holder of a public office, the same has to be exercised justly, honestly, fairly, and transparently; there has to be a structured policy in the interest of uniformity even handedness, probability and fairness---Wherever the legislature devolves its authority and power to be exercised by government or any of its functionary, it has to be circumscribed by structured exercise of discretion---Entrustment of power without guidance suffers from excessive delegation, which in the scheme of Constitution is not permissible.

Malik Munsif Awan Advocate, Chairman, Pakistan Justice Party, Lahore v. Federation of Pakistan through Secretary, Law and Justice, Islamabad and others PLD 2021 SC 379; Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1 and Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others PLD 2019 SC 189 ref.

(d) Interpretation of Constitution---

----Conflict between the Constitution and a statute---Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority, is in conflict with the Constitution or is inconsistent, then to that extent, the same is liable to be declared unconstitutional. [p. 463] F

(e) Delegated legislation---

----Delegation of power---Scope---Legislature cannot delegate un-canalized and uncontrolled power, as the power to delegate must not be unconfined and vagrant but must be canalized within banks that keep it from overflowing---Banks that set the limits of power delegated are to be constructed by the legislature by declaring the policy of a law and-by laying down standards for guidance of those on whom the power to execute the law is conferred. [p. 469] I

(f) Interpretation of Constitution---

----Dynamic and progressive meaning---Scope---In interpreting constitutional provisions, the Courts approach and give dynamic and progressive meaning to the words of the Constitution and also lean towards giving effect to the Constitution, which is addressed by the Constitutional provisions---Courts always avoid giving an interpretation to the Constitution, which represents results not intended by the Constitutional makers or to narrow down or make the Constitutional provision pedantic---Courts strive to construe the Constitution broadly so that it may meet the requirements, which it sets down to address. [p. 470] K

(g) Interpretation of statutes---

----Statute made pursuant to a provision of the Constitution---Such statute cannot restrict or retard the constitutional provision under which it was made---Constitutional provision being the supreme law, the statute made under it must conform to the Constitutional law. [p. 470] L

Salahuddin Ahmed, Advocate Supreme Court (via video link from Karachi, Mehmood A. Sheikh, Advocate-on-Record at Islamabad for Petitioner (in Constitution Petition No. 24).

Khalid Jawed Khan, Attorney General for Pakistan and Sohail Mehmood, Additional Attorney General for Federation (Respondents Nos.1-2).

Salman Talib ud Din, Advocate General, Sindh (via video link from Karachi) for the Government of Sindh, (Respondents Nos.3-7).

Sardar Shahbaz Ali Khosa, Advocate Supreme Court along with Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Respondent No.8.

P L D 2022 Supreme Court 475

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through P.G., NAB---Petitioner

Versus

NISAR AHMED PATHAN and others---Respondents

Civil Petitions Nos. 1628 to 1636 of 2020, decided on 22nd February, 2022.

(Against the order dated 22.04.2020 of the High Court of Sindh, Sukkur Bench, passed in Constitutional Petitions Nos. D-1850, D-111, D-113, D-103, D-110, D-107, D-106, D-104 and D-108 of 2020 respectively).

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

----S. 497(5)---Constitution of Pakistan, Art. 185(3)---Petition for cancellation of bail---Invoking the appellate jurisdiction of the Supreme Court for cancellation of bail granted by the High Court---Principles---In its appellate jurisdiction, the Supreme Court usually interferes on two grounds; first, when the impugned order is perverse on the face of it, or, second, when the impugned order has been made in clear disregard of some principle of the law of bail---Perverse order is the one that has been passed against the weight of the material on the record or by ignoring such material or without giving reasons---Such order is also termed as arbitrary, whimsical and capricious.

Zaro v. State 1974 SCMR 11 and Sidra Abbas v. State 2020 SCMR 2089 ref.

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

----Ss. 497 & 498---Constitution of Pakistan, Art. 185(3)---Bail---Appreciation of material/evidence on record---Principles---Courts are not to indulge in the exercise of a deeper appreciation of material available on record at the bail stage and are only to determine tentatively, by looking at such material, whether or not there exist any "reasonable grounds" for believing that the accused person is guilty of the alleged offence.

Farid v. Ghulam Hussan 1968 SCMR 924 and Khalid Saigol v. State PLD 1962 SC 495 ref.

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

----Ss. 497 & 498---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 10---Constitution of Pakistan, Arts. 9, 10, 10A, 14 & 199---National Accountability Bureau Reference---Bail---Constitutional petition before the High Court seeking grant of bail---Principles---In NAB cases, the standard of "reasonable grounds" for making a tentative assessment of the material available on record to decide in constitutional jurisdiction under Article 199 of the Constitution, the question of detaining an accused in prison, or admitting him to bail, during his trial for the alleged offence under the National Accountability Ordinance, 1999 ('the Ordinance') is not borrowed from section 497, Cr.P.C., rather it emanates from the fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention guaranteed by the Constitution under Articles 9, 10, 10-A & 14 and from the operational scheme of the Ordinance.

Iqbal Noori v. National Accountability Bureau PLD 2021 SC 916 ref.

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

----Ss. 497 & 498---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 10---Constitution of Pakistan, Arts. 9, 10, 10A, 14 & 199---National Accountability Bureau Reference---Bail---Two plausible opinions---Where two opinions can reasonably be formed on the basis of the same material, the courts should prefer and act upon that which favours the accused person and actualizes his fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention---To err in granting bail is better than to err in declining; for the ultimate conviction and sentence of a guilty person can repair the wrong caused by a mistaken relief of bail, but no satisfactory reparation can be offered to an innocent person on his acquittal for his unjustified imprisonment during the trial.

Zaigham Ashraf v. State 2016 SCMR 18 and Tariq Bashir v. State PLD 1995 SC 34 ref.

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

----S. 497(5)---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 10---Constitution of Pakistan, Art. 185(3)---Petitions for cancellation of bail, dismissal of---Main accused already granted bail---Allegation against the accused persons was that they had abetted the "main accused" in the commission of the alleged offence of corruption and corrupt practices, being his benamidars and ostensibly owning certain properties, while the co-accused persons were alleged to have offered illegal gratification/kickbacks to the main accused---High Court granted the relief of post and pre arrest bails to the accused and co-accused persons by considering the alleged role attributed to each of them and the material collected during investigation in support thereof---As to the accused persons who were alleged to be the benamidars of the main accused, the High Court had correctly observed that whether they were benamidars of the main accused or had purchased the properties from their own sources would be determined after recording evidence in the trial---No sufficient material was available on record, at present stage, as to the necessary elements of benami transactions---Further, the accused persons who were the family members of the main accused were not alleged to have played any role in the offence of corrupt practices allegedly committed by the main accused, nor were they alleged to have knowledge of his such alleged corrupt practices---About the co-accused persons who were alleged to have offered illegal gratification/kickbacks to the main accused, the High Court had rightly observed that the real purpose of making payment of certain amounts by them to the main accused could be determined only after recording evidence in the trial---Lastly, but most importantly, the National Accountability Bureau was not able to show sufficient incriminating material on the record of the case to connect the main accused with the commission of offence of corruption and corrupt practices, and therefore he was granted post arrest bail by the Supreme Court---Where the main accused had been granted bail, there remained little justification to decline the same relief to the accused and co-accused persons who were alleged to have merely abetted him in the commission of the offence, as the case against such accused and co-accused persons was at a lower rung than that against the main accused---Petitions for leave to appeal seeking cancellation of bail were dismissed.

Sattar Awan, Spl. Prosecutor National Accountability Bureau and M. Sharif Janjua, Advocate-on-Record for Petitioner (in all cases).

Syed Qalb-e-Hassan, Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.Ps. Nos. 1628-1929 of 2020).

Raja Amir Abbas, Advocate Supreme Court along with Abdul Razak Bahrani in person for Respondents (in C.P. No. 1630 of 2020).

Mukesh Kumar G. Karara, Advocate Supreme Court along with Kassim Mirjat, Advocate-on-Record along with Akram Khan along with Syed Zareekh Shah along with Syed Khalid Hussain Shah for Respondents (in C.Ps. Nos.1631, 1634 and 1636 of 2020).

Amer Raza Naqvi, Advocate Supreme Court for Respondents (in C.Ps. Nos.1632-1633 of 2020).

Muneer A. Malik, Advocate Supreme Court (video-link Karachi) along with Syed Awais Qadir Shah for Respondents (in C.P. No. 1635 of 2020).

P L D 2022 Supreme Court 482

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

KHAN BAHADUR KHAN---Appellant

Versus

KHAN MALOOK KHAN---Respondent

Civil Petition No. 1824 of 2019, decided on 10th May, 2022.

(Against the Judgment of Peshawar High Court, Bannu Bench dated 07.02.2019 in C.R. No.133-B of 2016).

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

----S. 115(1), Second Proviso---Revision application/petition filed beyond the prescribed period of limitation---Principles regarding exercise of suo motu jurisdiction by the High Court or the District Court under section 115 of the C.P.C. in a case where a revision petition has been filed beyond the prescribed period of limitation stated.

Whether suo motu jurisdiction under section 115 of the C.P.C. could be exercised by the High Court or the District Court in a case where a revision petition has been filed after the period of limitation prescribed therefor depends on the discretion of the Court, because exercise of revisional jurisdiction in any form is discretionary. Such Court may exercise suo motu jurisdiction if the conditions for its exercise are satisfied. It is never robbed of its suo motu jurisdiction simply because the petition invoking such jurisdiction is filed beyond the period prescribed therefor. Such petition could be treated as an information even if it suffers from procedural lapses or loopholes.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 ref.

No doubt the revisional jurisdiction is pre-eminently corrective and supervisory and there shall be no harm if the Court seized of a revision petition exercises its suo motu jurisdiction to correct the errors of jurisdiction committed by a subordinate Court. The proceedings before a revisional Court are to ensure strict adherence to safe administration of justice and, if required in a fit case, the exercise of suo motu jurisdiction may not be conveniently avoided or overlooked. Whether a case is fit or not for exercising suo motu jurisdiction always rests on the discretion of the Court.

Argument that though a revision application may be time barred but it could be considered as information to the High Court for invoking suo moto jurisdiction despite delay in approaching the Court, is not an argument that could be subscribed to. If the institution of a revision application on the application of a party is left open ended without regulating the conditions to apply or without respecting the period of limitation specified for it, or even laying an information without any gauge of a regulated timeline, then it will create serious chaos and turmoil with no end and the litigation between the parties will never set at rest and the tool or weapon of laying information beyond the limitation period will be used to enjoy an unlimited luxury of litigation to settle personal grudges actuated by malice as a sword of Damocles hanging over the head of other side. This approach or frame of mind will bring forth a multiplicity of litigation and proceedings that will be tantamount to granting an unbridled license to every litigant to file a revision application in this fashion as an information at any time, irrespective of the relevant period of limitation or with laches at his whims and leisure.It will not only seriously damage and deteriorate the very purpose of providing the safety valve or cutoff date of limitation but will also turn into an aftermath of rendering the rigors of limitation redundant and superfluous, and contravene of doctrine of finality.

It is incorrect to state that in all circumstance or come what may the High Court or District Court should consider every time barred revision as an information, as such exercise was based on the prescribed parameters of revisional jurisdiction which is meant to cure and rectify serious illegality or irregularity

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

----S. 115---Revisional jurisdiction---Scope---Scope of revisional jurisdiction is confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have a material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction---Difference existed between the misreading, non-reading and mis-appreciation of evidence, therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.

Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 ref.

Muhammad Tariq Javed Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

P L D 2022 Supreme Court 488

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan, Mazhar Alam Khan Miankhel, Munib Akhtar and Jamal Khan Mandokhail, JJ

CONSTITUTION PETITION NO.2 OF 2022

(Re: restraining Political Parties from holding Public Meetings in Islamabad before Voting on No-confidence Motion)

REFERENCE NO.1 OF 2022

(Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution, seeking interpretation of Article 63-A of the Constitution)

CONSTITUTION PETITION NO.9 OF 2022

(Re: Imposing Life Time Ban from contesting Elections on defection from Political Party)

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through President, Supreme Court Building, Islamabad and another---Petitioners

Versus

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

Constitution Petition No.2, Reference No. 1 and Constitution Petition No.9 of 2022, decided on 17th May, 2022.

Per Umar Ata Bandial, CJ, Ijaz ul Ahsan and Munib Akhtar, JJ; Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ dissenting.

Constitution of Pakistan---

----Arts. 17(2), 63(1)(p), 63-A, 184(3), 186 & 187---Reference by the President under Article 186 of the Constitution, seeking interpretation of Article 63-A of the Constitution---Constitutional petitions regarding imposing life time ban on Parliamentarians from contesting elections on defection from a political party, and restraining political parties from holding public meetings in Islamabad before voting on No-confidence motion against the Prime Minister---Questions posed in the Reference by the President were as to what was the proper approach to be taken for the interpretation and application of Article 63A of the Constitution?; whether vote of any Member of a Parliamentary Party in a House that is cast contrary to any direction issued by the Party in terms of para (b) of clause (1) of Article 63A cannot be counted and must be excluded from the vote count?; whether a Member finally declared to have committed defection in terms of Article 63A stands disqualified for life?; and what other measures and steps can be undertaken within the existing constitutional and legal framework to curb, deter and eradicate the practice of defection, floor crossing and vote buying?---Answers provided by the Supreme Court to the questions posed in the Reference stated.

Per Umar Ata Bandial, CJ, Ijaz ul Ahsan and Munib Akhtar, JJ

The first question referred by the President relates to the proper approach to be taken to the interpretation and application of Article 63A of the Constitution. This provision cannot be read and applied in isolation and in a manner as though it is aloof from, or indifferent to, whatever else is provided in the Constitution. Nor can Article 63A be understood and applied from the vantage point of the member who has earned opprobrium and faces legal censure as a defector by reason of his having acted or voted (or abstained from voting) in a manner contrary to what is required of him under clause (1) thereof. Rather, in its true perspective this Article is an expression in the Constitution itself of certain aspects of the fundamental rights that inhere in political parties under clause (2) of Article 17. The two provisions are intertwined. In its essence Article 63A functions to protect, and ensure the continued coherence of, political parties in the legislative arena where they are the primary actors in the system of parliamentary democracy, which is one of the salient features of the Constitution. Political parties are an integral aspect of the bedrock on which democracy rests. Their destabilization tends to shake the bedrock, which can potentially put democracy itself in peril. Defections are one of the most pernicious ways in which political parties can be destabilized. Indeed they can delegitimize parliamentary democracy itself, which is an even more deleterious effect. Defections rightly stand condemned as a cancer afflicting the body politic. They cannot be countenanced.

Article 63A must be interpreted in a purposive and robust manner, which accords with its spirit and intent. Ideally, the Article should not need to be invoked at all; its mere existence, a brooding presence, should be enough. Put differently, the true measure of its effectiveness is that no member of a Parliamentary Party ever has to be declared a defector. Article 63A should therefore be given that interpretation and application as accords with, and is aligned as closely as possible to, the ideal situation. The pith and substance of Article 63A is to enforce the fundamental right of political parties under Article 17 that, in particular in the legislative arena, their cohesion be respected, and protected from unconstitutional and unlawful assaults, encroachments and erosions. It must therefore be interpreted and applied in a broad manner, consistent with fundamental rights. It also follows that if at all there is any conflict between the fundamental rights of the collectivity (i.e., the political party) and an individual member thereof it is the former that must prevail. The first question is answered accordingly.

Turning to the second question and keeping in mind the answer to the first, the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection. The second question referred to Court is answered accordingly.

As regards the third question, a declaration of defection in terms of Article 63A can be a disqualification under Article 63, in terms of an appropriate law made by Parliament under para (p) of clause (1) thereof. While it is for Parliament to enact such legislation it must be said that it is high time that such a law is placed on the statute book. If such legislation is enacted it should not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate. The question stands answered accordingly.

The fourth question referred to the Supreme Court is stated in terms that are vague, and too broad and general. It is therefore returned unanswered.

Present short order disposes of pending matters under Article 186 as well as Article 184(3) of the Constitution. What has been said herein is to be read and understood as a simultaneous exercise of (and thus relatable to) both the jurisdictions that vest in the Supreme Court under the said provisions, read also in the case of the latter with the jurisdiction conferred by Article 187 of the Constitution.

Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ.

Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the Parliament and consequences thereof. In case the Election Commission of Pakistan confirms the declaration sent by a Party Head against a member, he/she shall cease to be a Member of the House. As a result thereof, his/her seat shall become vacant. A right of appeal to the Supreme Court has also been provided under sub-Article (5) of Article 63A of the Constitution, to either of the party, aggrieved by the decision of the Election Commission. Any further interpretation of Article 63A of the Constitution, would amount to re-writing or reading into the Constitution and will also affect the other provisions of the Constitution, which has not even been asked by the President through the present Reference. Therefore, it is not the mandate of the Supreme Court. There was no force in the questions asked through the present Presidential Reference, which are answered in the negative. However, if the Parliament deems fit or appropriate, it may impose further bar or restrictions upon the defectors.

For Federation

Ashtar Ausaf Ali, A.G.P.

Khalid Javed Khan, AGP (Former).

Ch. Aamir Rehman, Addl. A.G.

Sohail Mehmood, Addl. A.G.P.

Syed Nayyab Hassan Gardezi, D.A.G.

Assisted by:

Munawar Duggal, Advocate Supreme Court.

Barrister Asad Rahim Khan.

Barrister M. Usama Rauf.

M. Usman Peracha, Advocate.

M. Ibrahim Khan, Advocate.

For PTI

Ali Zafar, Advocate Supreme Court.

Dr. Babar Awan, Advocate Supreme Court.

For SCBA

Mansoor Usman, Advocate Supreme Court.

Assisted by:

Asfandyar Khan, Advocate.

Ahsan Bhoon, President (SCBAP).

Waseem Mumtaz Malik, Sec. (SCBAP).

Anis M. Shahzad, Advocate-on-Record.

For PPPP

Farooq H. Naek, Senior Advocate Supreme Court.

Mian Raza Rabbani, Sr. Advocate Supreme Court.

Assisted by:

Zeeshan Abdullah, Advocate.

For JUI(P)

Kamran Murtaza, Senior Advocate Supreme Court.

Qari Abdul Rasheed, Advocate Supreme Court.

For PML(N)

Makhdoom Ali Khan, Senior Advocate Supreme Court

along with Saad M. Hashmi, Advocate.

Sarmad Hani, Advocate.

Ammar Cheema, Advocate.

Yawar Mukhtar, Advocate.

For BNP(M)

Mustafa Ramday, Advocate Supreme Court.

Rashid Hafeez, Advocate Supreme Court.

Assisted by:

Ahmed Junaid, Advocate.

Akbar Khan, Advocate.

Barrister Maria Haq, Advocate.

Ms. Zoe Khan, Advocate

For NA

Abdul Latif Yousafzai, Advocate Supreme Court.

Tahir Hussain, Sec. NA

M. Mushtaq, Addl. Sec.

For PML (Q)

Azhar Siddiqui, Advocate Supreme Court.

For Bal.

M. Asif Reki, AG.

M. Ayaz Sawati, Addl AG.

For ICT

Niazullah Khan Niazi, AG ICT

For KP

Shumail Butt, AG KP.

Atif Ali Khan, Addl. AG.

Mian Shafaqat Jan, Addl. AG.

For Punjab

Ahmed Awais, AG (Punjab).

Qasim Ali Chohan, Addl. AG Punjab.

For Sindh

Suleman Talibuddin, AG Sindh.

Fauzi Zafar, Addl. AG.

Hassan Irfan Khan, Advocate Supreme Court.

P L D 2022 Supreme Court 497

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

CHAIRMAN, NAB through P.G., Accountability---Petitioner

Versus

NASAR ULLAH and 5 others---Respondents

Civil Petitions Nos. 1809 to 1814 of 2020, decided on 19th April, 2022.

(Against the judgment of Lahore High Court, Lahore dated 10.03.2020, Passed in W.P. No.10586 of 2019 and other connected matters)

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

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10 & 16(a)---Constitution of Pakistan, Arts. 4, 9, 10A & 199---National Accountability Bureau Reference---Bail---Grounds---Delay in conclusion of trial---Whether grant of bail on the ground of delay in the conclusion of the trial was permissible under the National Accountability Ordinance, 1999 ('the NAB Ordinance')---Held, that inordinate or long delay in the conclusion of the trial for no fault of the accused and his protracted detention without determination of his guilt, amount to harassment and abuse of the process of law---Such delay can therefore be a valid ground for releasing the accused on bail and restoring his fundamental right to life and liberty---Inordinate delay in conclusion of the trial of an accused, for no fault on his part, being not envisaged by the National Accountability Ordinance, 1999 ('the NAB Ordinance') would inevitably attract the constitutional protections under Articles 4, 9 & 10A of the Constitution---In such a situation, it is just, fair and equitable that the prosecution (NAB) should not oppose bail, and if it does so, the courts would consider the opposition as unreasonable and grant bail, enforcing the fundamental rights of the accused.

"Delay" in the conclusion of a criminal trial is antithetic to the very concept of a "fair trial" and "due process" guaranteed by Article 10A of the Constitution. The right to a fair trial is a cardinal requirement of the rule of law. Conclusion of trial within a reasonable time is an essential component of the right to a fair trial. The prolonged pre-trial detention of the accused also defies the presumption of innocence, another essential element of the right to a fair trial, for an accused is presumed innocent until he is proven guilty by proof beyond reasonable doubt.

The European Convention on Human Rights, Article 6 ref.

The National Accountability Ordinance, 1999 ('the NAB Ordinance') though does not provide for the release of an accused on bail pending his trial but ensures the expeditious conclusion of the trial, and thereby eliminates the possibility of protracted detention of the accused before his conviction. Under Section 16(a) of the NAB Ordinance, the trial is to proceed on a day-to-day basis and to be concluded within thirty days. The bar on granting bail to the accused under the NAB Ordinance is equitably balanced by providing for the trial to proceed on a day-to-day basis and its conclusion within thirty days. This statutory balance between the bar to grant bail and the expeditious conclusion of the trial would be rendered meaningless if an under-trial accused is detained for a long unexplained and unjustified period without determination of his guilt. While Section 16(a) of the NAB Ordinance that provides for concluding the trial within a period of thirty days is not to be construed strictly and applied rigidly, it manifests clearly the legislative intent for expeditious conclusion of the trial. The Legislature cannot be presumed to have intended an inordinate delay in conclusion of the trial and a prolonged detention of an under-trial accused, as a reasonable intention must always be attributed to the Legislature. Therefore, when the provision of NAB Ordinance requiring conclusion of trial within thirty days is not implemented, the corresponding provision barring grant of bail to the accused would also become proportionally pliant.

Tallat Ishaq v. National Accountability Bureau PLD 2019 SC 112 ref.

Inordinate delay in conclusion of the trial of an accused, for no fault on his part, being not envisaged by the NAB Ordinance would inevitably attract the constitutional protections under Articles 4, 9 and 10A of the Constitution. In such a situation, it is just, fair and equitable that the prosecution (NAB) should not oppose bail, and if it does so, the courts would consider the opposition as unreasonable and grant bail, enforcing the fundamental rights of the accused.

Inordinate or long delay in the conclusion of the trial for no fault of the accused and his protracted detention without determination of his guilt, amount to harassment and abuse of the process of law. Such delay can therefore be a valid ground for releasing the accused on bail and restoring his fundamental right to life and liberty.

Riasat Ali v. Ghulam Muhammad PLD 1968 SC 353 ref.

The case reported as Tallat Ishaq v. National Accountability Bureau PLD 2019 SC 112. ('Tallat Ishaq') also recognizes the ground of "shocking, unconscionable and inordinate delay" in the conclusion of the trial as a ground for granting the accused the relief of bail. Said case, however, does not specify what period of delay would be considered as "shocking, unconscionable and inordinate". It has left to the discretion of the courts to determine it in the peculiar facts and circumstances of each case. Such a discretion must be structured equitably and exercised uniformly. In this regard, the courts can borrow guidance from, and act upon, the legislative wisdom codified in the general criminal law balancing the public interest with the individual rights, and can accordingly give effect to the scheme of the NAB Ordinance and enforce the fundamental rights of the accused to life, liberty, fair trial and due process guaranteed under Articles 9 and 10A of the Constitution.

(b) Constitution of Pakistan---

----Art. 10A---Right to a fair trial and due process---Liberal and progressive interpretation---Incorporation of the right to a fair trial and due process by Article 10-A in the Constitution as an independent fundamental right underscores the constitutional significance of fair trial and due process and like other fundamental rights, it is to receive a liberal and progressive interpretation and enforcement.

(c) National Judicial (Policy Making) Committee Ordinance (LXXI of 2002)---

----Ss. 4(a) & 6---Police Order (No.22 of 2002), Arts. 109 & 111---Inordinate or long delay in the conclusion of trials---General directions issued by the Supreme Court to eradicate the issue of delay in conclusion of trials stated.

Inordinate and endless delay in the conclusion of a criminal trial is the singular most important challenge faced by the criminal justice system and has a devastating effect on the credibility, transparency, public confidence and health of the justice system. To meet this challenge coordinated efforts of all the organs of the Government; the Legislature, the Executive and the Judiciary, are required. One immediate solution is to activate the Provincial Justice Committees constituted under the National Judicial (Policy Making) Committee Ordinance 2002. The Chief Justices of the High Courts, who are the Chairpersons of these Committees, must convene and hold meetings of these Committees at least on quarterly basis. The Vice Chairpersons of the Provincial Bar Councils may also be invited to attend and participate in meetings of these Committees, as the Bar is an important stakeholder in the justice system. Similarly, the District Criminal Justice Coordination Committees established under the Police Order 2002 should also be revitalized for reviewing and improving the operation of the criminal justice system.

Additionally, the High Courts should take up and address, on priority basis, the issues relating to appointments of judges in the District Judiciary against the available vacant posts and consider the creation of new posts, to reduce and rationalize the heavy dockets of cases before the general and special courts.

Ch. Mumtaz Yousaf, D.P.G. for Petitioners. (In all cases).

Nemo for for Respondents.

P L D 2022 Supreme Court 504

Present: Sardar Tariq Masood and Muhammad Ali Mazhar, JJ

ABDUL AZIZ---Petitioner

Versus

Mst. ZAIB-UN-NISSA and others---Respondents

Civil Petition No.2711 of 2019, decided on 10th May, 2022.

(Against the judgment dated 15.04.2019 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in C.R.803-D of 2012).

(a) Gift---

----Pardanashin lady---Brother depriving his illiterate and Pardanashin sisters of their property through a gift deed---Fraud and misrepresentation---In the present case, the sisters had never gifted their inherited property to their brother (defendant) but the brother fraudulently prepared the gift deed in his favour and, further, got the thumb impressions of his sisters on blank paper through fraud and misrepresentation---Donors (sisters) were not aware as to which type of document they were going to sign but, taking advantage of their illiteracy, their brother managed the execution of the gift in his favour---Nothing was brought on the record to prove that any disinterested, neutral or nonaligned person read over the indenture of the gift to the illiterate and Pardanashin ladies---One of the sisters also took the stance that there was no occasion to give the property to her brother in the presence of her own children---Revenue Officer, Sub-Registrar and Patwari Halqa were not brought into the witness box to testify whether the transaction of gift was true or a sham---Further, the Petition-Writer and the stamp vendor were also important witnesses but were also not brought to the witness box---All the Courts below categorically recorded the finding that the transaction of gift was not proved---Petition for leave to appeal was dismissed and leave was refused.

(b) Pardanashin lady---

----Illiterate lady---Property transaction---Rules regarding transaction by a Pardanashin lady are evenly applicable to an illiterate and ignorant woman though she may not be Pardanashin lady in a strict sense.

(c) Pardanashin lady---

----Illiterate and Pardanashin lady---Property transaction---Burden of proof---Rules/principles regarding transaction with a Pardanashin lady stated.

A document severely and gravely jeopardizing the interest of an illiterate and Pardanashin lady in favour of any person having a relationship of profuse confidence and faith with them requires stringent testimony and authentication of execution with the assurance of independent and unprejudiced advice to such lady with further confirmation and reassurance without any doubt that the description, repercussions and aftermath/end result of the transaction was fully explained and understood. The burden of proof shall always rest upon the person who entreats to uphold the transaction entered into with a Pardanashin or illiterate lady to establish that the said document was executed by her after mindfulness of the transaction. Whether a lady is a Pardanashin or illiterate is always a question of fact and the burden of proof rests upon the person asserting any right under any deed or document that was signed or affixed with a thumb impression by a Pardanashin or illiterate lady voluntarily and consciously.

Mst. Kharbuja Kuer v. Jangbahadur Rai and others AIR 1963 SC 1203; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Bank of Khulna Ltd. v. Jyoti Prokash Mitra and others AIR 1940 Privy Council 147 and Ramanamma v. Marina Virana AIR 1931 Privy Council 100 ref.

It is imperative for the Court as an assiduous duty and obligation that, while dealing with the instance of any document executed by a Pardanashin or illiterate lady, it ought to be satisfied with clear evidence that the said document was in fact executed by her or by a duly constituted attorney appointed by her with full understanding and intelligence regarding the nature of the document. The Pardanashin ladies have been given a protection time immemorial in view of social conditions that include an imperfect knowledge of the world being virtually excluded from communion with the outside world. The rationale of this rule of wisdom and concentration is obviously to shield them from deception, duress and misrepresentation.

Mst. Farid-un-Nisa. v. Munshi Mukhtar Ahmad and another AIR 1925 Privy Council 204 ref.

(d) Pardanashin lady---

----Old, illiterate/rustic village 'Pardanashin' lady---Property transaction---Mandatory conditions to be complied with to prove that the transaction was legitimate and free from all suspicions stated.

In case of a transaction with an old, illiterate/rustic village 'Pardanashin' lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst the conditions, the ones pre-dominantly followed are:-

(i) that the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;

(ii) that she was having independent advice from a reliable source/ person of trust to fully understand the nature of the transaction;

(iii) that witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;

(iv) that the sale consideration was duly paid and received by the lady in the same manner; and

(v) that the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be. [p. 510] F

Phul Peer Shah v. Hafeeza Fatima 2016 SCMR 1225 ref.

Agha Muhammad Ali, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner.

Khizer Mehmood [Son of respondent No. 1 ] for Respondent No. 1.

Israr Hussain, Respondent No.6 in person.

P L D 2022 Supreme Court 511

Present: Umar Ata Bandial, CJ, Ijaz ul Ahsan, Munib Akhtar, Yahya Afridi and

Sayyed Mazahar Ali Akbar Naqvi, JJ

CONSTITUTION PETITION NO. 19 OF 2022

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 for enforcement of fundamental rights contained in the Constitution for the protection of the citizen of Pakistan)

AND

CIVIL MISC. APPLICATION NO. 3447 OF 2022

(Application filed by Attorney General for Pakistan)

ISLAMABAD HIGH COURT BAR ASSOCIATION through its President Muhammad Shoaib Shaheen, Islamabad---Petitioner(s)

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad and others---Respondent(s)

Constitution Petition No. 19 of 2022 and Civil Miscellaneous Application No. 3447 of 2022, decided on 26th May, 2022.

Per Umar Ata Bandial, CJ.; Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ agreeing; Yahya Afridi, J. dissenting. [Majority view].

(a) Constitution of Pakistan---

----Arts. 9, 15, 16, 184(3) & 204(2)(a)---Constitutional petition under Article 184(3) of the Constitution---Protest march by a political party---Damage and destruction of public and private property---Acts of arson---Chairman of political party in question alleged to have violated the assurances given to the Supreme Court to remain peaceful---Observations and directions given by the Supreme Court after alleged violation of the assurances, stated.

Per Umar Ata Bandial, CJ.

Counsel appearing before the Supreme Court on behalf of the leadership of the political party gave a categorical assurance to the three Member Bench of the Supreme Court that the party rally would neither block the Sirinagar Highway nor otherwise cause inconvenience to the public and citizens at large and that their rallies shall be conducted in a peaceful and lawful manner without causing any damage to public or private property. In view of these commitments, the three Member Bench of the Supreme Court passed its order on 25-05-2022 ('the 25th May order") directing the Chief Commissioner, Islamabad Capital Territory ("ICT") to provide the ground located in the area between Sectors H-9/G-9 of Islamabad for the political rally; and also directed the Inspector General of Police ("IGP"), ICT to forthwith take measures including making security arrangements to prepare the venue for holding the rally.

The Attorney General argued that having agreed to hold the protest rally at the ground in the H-9/ G-9 area of Islamabad as recorded by the order of the Court, the Chairman of the party shortly thereafter instructed his party supporters to reach D-Chowk in the Red Zone of Islamabad in violation of the assurance given to the Supreme Court. To establish this retraction a video recording of the Chairman's statement made after the passing of the '25th May order' was played on the multimedia screen before the Court. The Attorney General further argued that the Chairman appears to have invited his supporters to dishonor the assurance given on his behalf to the Court. As a result, private and public properties were damaged and destroyed. Some trees in greenbelts were put on fire; several police officers were injured by the stones pelted by the crowd and Article 245 of the Constitution had to be invoked in the middle of the night by calling the armed forces in aid of civil power.

It is apparent that the assurances conveyed to the Supreme Court by the counsel for the top leadership of the political party may have been dishonored by the workers/supporters/sympathizers of the party by proceeding to the D-Chowk in the Red Zone area and by allegedly committing acts of arson and destruction of public and private properties on the way. However, in the early morning today the Chairman of the political party reached Jinnah Avenue leading to D-Chowk and announced the postponement of his sit-in at Islamabad for six days. As a result, further damage to property or injury to human life has been averted.

Nevertheless, there remains the lurking question whether the responsibility for the events comprising reckless acts of mob anger can be blamed upon the senior leadership of the political party. So far there is no evidence or allegation that such acts were committed on the instigation of any party or happened randomly. At its most elementary level the party leader appears to have assured the holding of a political rally at the G-9/H-9 ground and therefore not to assemble and sit in another venue including at D-Chowk in Islamabad. However, the Attorney General claimed that the party workers and supporters moved forward to the D-Chowk area in response to the call made by their leader. Notwithstanding the said request by the Attorney General, it was best to exercise restraint for the time being for a number of reasons; firstly, the Chairman has called off the rally/public meeting. That gives a recess to the charged mob witnessed the night before; secondly, prudence advises that time be given for sanity to prevail among the stakeholders. In any event, facts and materials need to be collected to establish the sequence of events, the identity of the perpetrators and of the instigators, if any. At present stage therefore it is directed that the IGP ICT, the Chief Commissioner ICT, the Secretary Ministry of Interior, the Director General Intelligence Bureau, the Director General ISI shall file reports (within one week) answering, inter alia, the following questions:

(i) At what time did the Chairman make the announcement for party workers to reach D-Chowk?;

(ii) When, where and how did the crowd cross the barricade to enter a hitherto closed area?;

(iii) Was the crowd entering the Red Zone organized or supervised or did it move randomly?;

(iv) Were there any acts of provocation or breach of assurance by the Government?;

(v) Was any action or treatment meted out by the ICT police against the protesters disproportionate to the actual or perceived wrong committed by the protesters?;

(vi) How many protesters managed to enter the Red Zone? Which security arrangements, if any, were relaxed by the Executive authorities? Whether any security barrier cordons were broken or breached by protestors? Did any protestor/party worker reach the G-9/ H-9 ground?; and

(vii) How many civilians were injured/killed/ hospitalized/arrested?

There is need for verification of, inter alia, factual aspects of the events that occurred in order for the Court to evaluate and decide whether action for violation of assurances/undertaking given to the Court and recorded in its '25th May order'ought to be initiated and against whom. The disregard of assurances/ undertakings given to the Court involves separate proceedings from the present one. For independent proceedings to be maintained, relevant and credible material must be presented to the Court for it to assess whether there are valid grounds to justify appropriate action against the offending persons, if any. Therefore, the prayer made by the Attorney General in present proceedings is misconceived.

By acting upon assurances given on behalf of the top leadership of the political party and issuing directions to the Government, the '25th May order' created a balance between the mutual rights and obligations of the protesting people, the ordinary public and the duties of the State. This balance was recorded in good faith by the Court whilst trusting the representations made on behalf of the two opposing parties before it. It was disappointing to note that the bona fide effort made by the Court was disrespected. Although it was meant to create harmony between the two opposing sides for the sake of protecting public interest and the constitutional rights of the people, such order was passed by trusting the representations made and assurances given to the Court. The judicial trust reposed by the Court on the parties before it confers moral legitimacy and authority upon their actions. The resulting high moral ground lends credibility to the entitlement and to the propriety of actions taken by such parties. In the present case, to say the least, the moral high ground held by the parties has diminished because public rights, interests, and property of the disinterested public have been breached and damaged badly. It was expected that the high functionaries of the Executive throughout the country and the top leadership of the political party in question and other political parties shall abide and settle a fair code of securing free, fair, and peaceful political activity in the country leading to the holding of the national election.

In the present case, the leadership of the political party and its supporters have presently withdrawn from indulging in any political protest and rallies in Islamabad and the roads and pathways are open allowing for free movement of the public within and to the city. Purpose of present petition filed has been served and the same has borne fruit. It has therefore become infructuous. Accordingly, petition was disposed of as having become infructuous.

Per Yahya Afridi, J dissenting.

The Attorney-General has, in the present application, after alleging violation of the '25th May order' by the leadership of the political party, requested the Court to pass prohibitory and regulatory orders so as to allow the law enforcement agencies to take action against the miscreants including but not limited to causing arrest of the miscreants. Said request was very surprising. The Attorney-General, who is the principal law officer of the Federal Government, has asked the Supreme Court to pass "prohibitory and regulatory orders" to maintain the law and order situation in the country. The prayer/request made is against the very principle of trichotomy of powers enshrined in the Constitution, which has assigned separate roles to the three organs of the State: the legislature, the executive and the judicature. To maintain law and order in the country is the domain and mandate of the executive. Thus, the very request/prayer is contrary to the constitutional mandate and is, therefore, not legally entertainable.

There is credible material before the Supreme Court for initiating independent contempt proceedings against the Chairman of the political party in question, who allegedly disobeyed the '25th May order'. The video-recording of the Chairman's statement was played on multimedia screen in open court during the court proceedings. The said statement coupled with his conduct that followed thereafter in proceeding beyond the venue decided in the '25th May order' for the political gathering, is sufficient to prima facie show that the Chairman disobeyed the '25th May order'.Instead of calling for reports from the officials of the State Agencies/Departments, as directed by the majority view, there is sufficient material before the Supreme Court to proceed against the Chairman for the alleged disobeyance of the '25th May order', which warrants the issuance of notice by the Supreme Court to the Chairman to explain why contempt proceedings should not be initiated against him.

Per Umar Ata Bandial, CJ. [Majority view]:

(b) Constitution of Pakistan---

----Arts. 9, 15 & 16---Freedom of movement and assembly---Such freedoms had to be read in conjunction with the most crucial right to life.

Article 15 of the Constitution, which secures the right of free movement, and Article 16, which protects their right of freedom of assembly, are to be read in conjunction with the most crucial right guaranteed by the Constitution, namely, the right to life.

The right to life and liberty is interpreted widely and the same cannot be interfered except as authorized by law. Likewise, the freedom of movement can be subjected to reasonable restrictions imposed by law in the public interest. The freedom of assembly may be regulated by similar restrictions applied in the interest of public order. The foregoing limitations on the rights granted by the Constitution empower the State to take only such reasonable, proportionate and lawful action that is necessary in aid of public interest and public order so that public place, public life and property are not disturbed, disrupted or destroyed.

Whilst right of peaceful protest is a constitutional right it must be exercised subject to permission by the State. Such permission must be granted unless there are reasonable restriction imposed on valid grounds in terms of Articles 15 and 16 of the Constitution. In other words, the right of protest cannot be denied without lawful, reasonable and proportionate grounds nor can such Executive authority hamper public life or injure public or private property.

Suo Motu Case No.7 of 2017 (PLD 2019 SC 318) ref.

For the Petitioner.

M. Shoaib Shaheen, Advocate Supreme Court along with Ch. Ishtiaq Ahmed Khan, Advocate Supreme Court, Niaz Ullah Khan Niazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record.

On Court's call

Ashtar Ausaf Ali, A.G.P., Ch. Aamir Rehman, Addl. A.G.P., Assisted by: Munawar Iqbal Duggal, Advocate Supreme Court and Barrister M. Usama Rauf, Advocate.

Jehangir Jadoon, A.G., ICT.

Barrister Qasim Ali Chohan, Addl. A.G., Punjab.

Ayaz Khan Swati, Addl. A.G., Balochistan.

Salman Talib-ud-Din, A.G., Sindh (V.L Karachi) and Fauzi Zafar, Addl. A.G., Sindh.

Shumail Butt, A.G., KP., Atif Ali Khan, Addl. A.G., KP. (V.L Peshawar) and Yousaf Naseem Khokhar.

For PTI

Dr. Babar Awan, Sr. Advocate Supreme Court, Faisal Fareed, Advocate Supreme Court along with M. Ali Bokhari, Advocate Supreme Court.

P L D 2022 Supreme Court 523

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

The STATE through P.G. and others---Respondents

Criminal Appeals Nos. 531, 532 of 2019 and Criminal Petitions Nos.339-L and 361-L of 2015, decided on 23rd May, 2022.

(On appeal against the judgment dated 19.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 868, 876 and 1037 of 2010).

Penal Code (XLV of 1860)---

----Ss. 34, 148, 149, 302(b) & 302(c)---Qatl-i-amd---Multiple assailants---Common intention or common object---Any judgment which concludes that the offence falling under Section 302(b), P.P.C. was committed in furtherance of common intention or common object but the sentence is inflicted on the basis of individual liability, the same would be squarely in defiance of the intent and spirit of law on the subject---Act of each individual, if committed in furtherance of the common object, the facts are to be dealt conjointly to arrive at a conclusion in the spirit of law---Where the accused persons and co-accused are specifically charged for having committed the crime in furtherance of their common object, the Trial Court ought to give a definite finding regarding the applicability of Sections 302, 148 and 149, P.P.C. to the co-accused qua the charge of murder.

While dealing with murder cases falling within the ambit of Section 302, P.P.C., the Trial Court has to evaluate the act committed in the circumstances, which covers that it was committed in furtherance of common intention or on the basis of individual liability to press in the provision of Section 302(b) or 302(c), P.P.C. and it has to give a definite finding qua the same. Any judgment which concludes that the offence falling under Section 302(b), P.P.C. was committed in furtherance of common intention or common object but the sentence is inflicted on the basis of individual liability, the same would be squarely in defiance of the intent and spirit of law on the subject. However, if the Court comes to the conclusion that the elements of common intention and common object have not been established, then each accused would be dealt with, under the provisions of Section 302(c), P.P.C. according to their own role and severity of allegations and would be sentenced accordingly by the Court exercising its discretionary powers.

2022 SCMR 1187 ref.

In the present case, although it is an admitted fact that the Trial Court while framing charge against the appellants and other co-accused had charged them for the offences of 'common object' falling under Sections 148/149, P.P.C. but while deciding the lis each accused was dealt on the basis of 'individual liability' especially with reference to the injuries caused to prosecution witnesses. The conviction was recorded against the appellants for the murder of two deceased persons. However, the applicability of Sections 148/149, P.P.C. with reference to other co-accused was totally ignored and they were convicted on the basis of 'individual liability' without assigning a 'definite finding' regarding their participation as members of unlawful assembly and commission of offences in furtherance of their common intention falling under Sections 148/149, P.P.C. When the appellants and co-accused were specifically charged for having committed the crime in furtherance of their common object, the Trial Court ought to have given a definite finding regarding the applicability of Sections 302/148/149, P.P.C. to the co-accused qua the charge of murder. The courts below ignored the fact that all the accused committed their respective overt acts in furtherance of their common object, and as such they were part of the unlawful assembly, hence, the conviction and sentence recorded against the accused on the basis of individual liability in the absence of any "definite finding" to negate that the act of each individual was without premeditation, is beyond the scope of law. The act of each individual, if committed in furtherance of the common object, the facts are to be dealt conjointly to arrive at a conclusion in the spirit of law of the land.

Appeals were allowed and the impugned judgments of both courts were set aside, and the matter was remanded back to the Trial Court for a limited purpose to re-write the judgment on the basis of existing judicial record within two months strictly in accordance with law.

Ms. Asma Hamid, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Cr.As. Nos. 531 and 532 of 2019).

Mir Sikandar Zulqarnain Saleem, Advocate Supreme Court for Petitioner (in Cr.Ps. Nos. 339-L and 361-L/2015).

Muhammad Jaffar, D.P.G. Punjab for the State.

P L D 2022 Supreme Court 541

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

ALLAH WASAYA---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 440 of 2022, decided on 22nd June, 2022.

(Against the order of Lahore High Court, Multan Bench, dated 24.11.2021 passed in Crl. Misc. No.7332-B of 2021)

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

----S. 497(1), fourth proviso---Bail---Expression "hardened, desperate or dangerous criminal" as used in the fourth proviso to Section 497(1) Cr.P.C.---Scope of the expression "hardened, desperate or dangerous criminal" explained.

The word "criminal" in the phrase "hardened, desperate or dangerous criminal" of the fourth proviso to Section 497(1), Cr.P.C., is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to section 497(1), Cr.P.C. deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction. It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial, by considering inter alia, the nature of the offence involved, its effects on the victims or the society at large, the role attributed to the accused, the manner in which the offence was committed and the conduct of the accused. The formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to reexamination and final determination on conclusion of the trial.

Moundar v. State PLD 1990 SC 934; Sher Ali v. State 1998 SCMR 190; Jalal v. Allahyar 1993 SCMR 525; Umar Draz v.

State 1997 SCMR 885; Muhammad Hanif v. State PLD 1986 Kar. 437; Hussain v. State 1991 PCr.LJ 26; Sultan Ali v. State 1999 MLD 454; Omair Ahmed v. State 1996 PCr.LJ 22; Ghulam Rasool v. State

1998 MLD 1344; Muhammad Asif v. State PLD 1996 Kar. 385; Shahnawaz v. State 2000 PCr.LJ 630 and Anwar Beg v. State 1999 PCr.LJ 1450 ref.

The words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. The court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal.

Shakeel Shah v. State 2022 SCMR 1 and Nadeem Samson v. State PLD 2022 SC 112 ref.

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

----S. 497(1), third & fourth proviso---Penal Code (XLV of 1860), Ss. 336, 334, 367, 354, 342, 148 & 149---Constitution of Pakistan, Art. 185(3)---Cutting of a person's nose--- Bail, refusal of---Delay in conclusion of trial---"Hardened, desperate or dangerous criminal"---In the present case, the nature and manner of the commission of offence and the role attributed to the accused of cutting the nose of his sister-in-law and her alleged paramour were the circumstances which described him as a person who could be harmful and dangerous for the society if released on bail and thus made him to fall within the scope of the expression of "a hardened, desperate or dangerous criminal" as used in the fourth proviso to Section 497(1), Cr.P.C.---Accused was therefore not entitled to the benefit of bail on statutory ground of delay in conclusion of his trial, under the third proviso to Section 497(1), Cr.P.C.---Petition for leave to appeal was dismissed, and accused was refused bail.

M. Usman Sharif Khosa, Advocate Supreme Court for Petitioner.

Ch. M. Sarwar Sandhu, Addl. P.G., Punjab, Muhammad Ijaz, D.S.P. and Ali Abbas, S.I. for the State.

Complainant in person.

P L D 2022 Supreme Court 546

Present: Yahya Afridi and Jamal Khan Mandokhail. JJ

ABDUL BAQI and others---Petitioners

Versus

Haji KHAN MUHAMMAD and others---Respondents

Civil Petition No. 34-Q of 2019, decided on 20th May, 2022.

(Against the order dated 24.12.2018 passed by the High Court of Balochistan, Quetta in Contempt Application No. 01 of 2014 in Civil Revision No. 35 of 2014)

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

----S. 3---Constitution of Pakistan, Article 204---Contempt of Court---Nature and scope---Matter of contempt of court is essentially a matter between the court and the alleged contemnor, therefore, if the court concerned, in exercise of its discretion, does not take any action for its alleged contempt or accept the apology rendered by the alleged contemnor, for certain reasons, the appellate court would not ordinarily substitute its own opinion and direct that court to proceed in the matter necessarily or reject the apology so rendered.

WAPDA v. Chairman, N.I.R.C. PLD 1979 SC 912 and Nital Shah v. A.D.C. 1970 SCMR 887 ref.

(b) Constitution of Pakistan---

----Art. 185---Discretionary orders passed by the High Court---Interference by the Supreme Court---Scope---Though discretionary orders passed by the High Courts are not generally interfered with but they are not immune from scrutiny, if they are found to be arbitrary, perverse, or against the settled principles of law.

1971 SCMR 743 ref.

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

----Ss. 3 & 12---Constitution of Pakistan, Articles 185 & 204---Order of High Court declining to initiate Contempt of Court proceedings---Interference by the Supreme Court---Scope---While the Supreme Court does not ordinarily interfere with the order of a High Court, declining to initiate contempt proceedings, but where such order, particularly passed on a petition of an aggrieved party for civil contempt, is found to be arbitrary, perverse, improbable or against the settled principles of law, the same may be corrected by the Supreme Court in exercise of its jurisdiction under Article 185(3) of the Constitution on a petition of the aggrieved party.

1971 SCMR 743; AIR 2006 SC 2190 and State of Maharashtra v. Mahboob Allibhoy AIR 1996 SC 2131 ref.

(d) Constitution of Pakistan---

----Art. 185(3)---Jurisdiction of the Supreme Court under Article 185(3) of the Constitution---Principles and scope---Jurisdiction of the Supreme Court under Article 185(3) of the Constitution to grant leave to appeal against any judgment, decree, order or sentence of a High Court is not circumscribed by any limitation by the Constitution---Principles governing the exercise of jurisdiction under Article 185(3) are of self-restraint, settled by the Court itself, keeping in view the considerations of propriety and practice---Supreme Court thus ordinarily exercises its jurisdiction under Article 185(3) of the Constitution, and grants the leave to appeal, in cases where some serious question of law is prima facie made out or some case of grave miscarriage of justice is established either by reason of the fact that the findings sought to be impugned could not have been arrived at by any reasonable person or that the findings are so ridiculous, shocking or improbable that to uphold such a finding would amount to a travesty of justice.

Feroz Khan Noon v. The State PLD 1958 SC 33; Islamic Republic of Pakistan v. Zaman Khan 1997 SCMR 1508 and PLD 1973 SC 469 ref.

Masoom Khan Kakar, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th May, 2022.

P L D 2022 Supreme Court 551

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

KHAWAR KAYANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.345 of 2022, decided on 20th June, 2022.

(Against the Judgment of Islamabad High Court, Islamabad dated 17.02.2022 passed in Crl. Misc. No. 113-B of 2022).

(a) Juvenile Justice System Act (XXII of 2018)---

----S. 6(5)---Criminal Procedure Code (V of 1898), S. 497---Bail---Delay in conclusion of trial---Juvenile aged more than sixteen years accused of a heinous offence and detained for a continuous period exceeding six months without conclusion of trial---Whether section 6(5) of the Juvenile Justice System Act, 2018 ('the 2018 Act') applied to such a juvenile---Held, that Section 6(5) of the 2018 Act does apply, rather solely applies, to a case involving a "heinous offence", irrespective of the age of the juvenile---Section 6(5) in effect works as a proviso to section 6(4) and appears to have no other purpose under the scheme of the 2018 Act.

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

----S. 497(1), third proviso---Bail---Delay in conclusion of trial---Period of delay in the conclusion of the trial is to be counted from the date of the detention of the accused in the case.

Nadeem Samson v. State PLD 2022 SC 112 and Shakeel Shah v. State 2022 SCMR 1 ref.

(c) Juvenile Justice System Act (XXII of 2018)---

----S. 6(5)---Juvenile accused---Bail---Delay in conclusion of trial---Juvenile accused detained for a continuous period exceeding six months without conclusion of trial---Period of six months mentioned in section 6(5) of the Juvenile Justice System Act, 2018 is to be counted from the date of arrest of the juvenile, after determination of his age and not from the date of such determination or adjudication by the Court.

Saleem Khan v. State PLD 2020 SC 356 ref.

(d) Juvenile Justice System Act (XXII of 2018)---

----S. 2(a) & Preamble---Constitution of Pakistan, Arts. 25(3) & 35---Concept of juvenile justice system explained.

The conceptual framework of juvenile justice system has been carved out of the general criminal justice system. Juvenile justice system is not retributive in character, it is primarily rehabilitative and restorative. Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It rests on the best interest of the child and ensures fulfillment of his basic rights and needs, identity, social well-being, physical, emotional and psychological development. This therapeutic underpinning is the central theme of Juvenile Justice System. Juvenile courts, by their very nature, were designed to be more therapeutic than the adult criminal justice system as juveniles differ from adults in their development and their needs.

Restorative Justice, OFF. OF JUV. JUST. & DELINQ. PREVENTION 1 (Nov. 2010) ref.

The juvenile justice system also finds its ideological roots in the Constitution. Article 25(3) of the Constitution empowers the State to make special provisions for the protection of children even if such protection discriminates against the adults (reverse discrimination). Article 35 of the Constitution provides that the State shall protect the child. Furthermore, the State of Pakistan is a signatory to the United Nations Convention on the Rights of Child (UNCRC) and is thus under an international obligation to take special measures for the protection and rehabilitation of the juveniles who come in conflict with law. It was for the compliance of this constitutional mandate and for the fulfilment of this international obligation that the Juvenile Justice System Act, 2018 was enacted by the legislature of Pakistan. The main object of the enactment of the 2018 Act is to modify and amend the law relating to criminal justice system for juveniles by providing special focus on disposal of their cases through diversion and social integration for their rehabilitation.

Raja Rizwan Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Agha Muhammad Ali, Advocate Supreme Court for Respondent.

Fakhar Abbas, I.O. for the State.

P L D 2022 Supreme Court 558

Present: Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

Mrs. MUHAMMAD AKBAR---Appellant

Versus

ABDUL JALIL and others---Respondents

Civil Appeal No. 999 of 2017, decided on 26th May, 2022.

(On appeal from the judgment of the High Court of Balochistan Quetta dated 08.11.2016 passed in F.A.O. No. 49 of 2014)

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 11---Eviction of tenant---Personal bona fide need of landlord for non-residential purposes---Whether before filing of eviction petition permission of Rent Controller in terms of section 11 of the Balochistan Urban Rent Restriction Ordinance, 1959 ('the 1959 Ordinance') was required where landlord intends to use a residential premises for non-residential purposes---Held, in terms of section 11 of the 1959 Ordinance for conversion of a residential building into a non-residential one, prior permission of the Rent Controller was necessary---Section 11 of the 1959 Ordinance related to the conversion of the existing residential building into a non-residential building, without any structural change---In the present case, however, the landlords had planned that after vacation of the premises, they would completely change the structure of the building by removing the intervening walls between the houses and their rooms, to make it as a single unit, in result whereof, the building could not be utilized as a residential building---After a material change in the structure of a residential building or after demolishing the building with a plan to reconstruct a non-residential building, the Controller lost its authority, therefore, under such circumstances, permission of the Controller under section 11 of the 1959 Ordinance was not required.

Munir Ahmad Naulakha and others v. Ch. Muhammad Din and others PLD 2006 SC 422 and Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071 distinguished.

Mrs. Faiz Muhammad and 3 others v. Widow of Late Syed Abdul Sattar Shah and 7 others 1991 SCMR 1994 ref.

Kamran Murtaza, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Mrs. Misbah Gulnar Sharif, Advocate Supreme Court for Respondents.

P L D 2022 Supreme Court 562

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ

Civil Petition No. 620 of 2021

(Against the judgment of High Court of Sindh, Karachi, dated 08.1.2021, passed in C.P. No.D-4519 of 2019).

Civil Petition No. 444 of 2022.

(Against the judgment of High Court of Sindh, Karachi, dated 08.1.2021, passed in C.P No.D-91 of 2022).

ABBAS HAIDER NAQVI and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others (in both cases)---Respondents

Civil Petitions Nos. 620 of 2021 and 444 of 2022, decided on 25th May, 2022.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope of Section 265-K, Cr.P.C. stated.

When the trial is near completion, the fate of the case should not ordinarily be decided under section 265-K of the Cr.P.C. There may however be such exceptional circumstances which may justify departure from the said rule, as there is hardly any rule of practice which does not admit exception(s). Even otherwise, section 265-K of the Cr.P.C. provides that the trial court can make an order of acquittal at any stage of the case, and such stage may be an initial stage of the case on taking cognizance before recording of the prosecution evidence, or it may be a later stage of the case after recording of some evidence of the prosecution. No absolute bar, in derogation of the law, can therefore be put on the statutory power of the trial court to entertain an application under section 265-K, Cr.P.C. and decide upon its merits at a later stage of the trial if the exceptional circumstances of the case call for so doing to prevent the abuse of the process of court or to secure the ends of justice.

Yaqub Ali v. State 1981 PCr.LJ 542; Subjally v. Hamid 1999 MLD 1645; State v. Ashiq Bhutto 1993 SCMR 523; Badar-Ud-Din v. Ahmad Raza PLD 1993 SC 399; Muhammad Sharif v. State PLD 1999 SC 1063 and State v. Asif Ali Zardari 1994 SCMR 798 ref.

Ordinarily, an accused, who invokes section 265-K, Cr.P.C. for his acquittal, pleads that there is no probability of his being convicted of any offence in the case on any of the following four grounds: (i) that even if the facts alleged by the prosecution are taken to be true on their face value, they do not make out/constitute the commission of any offence by the accused; (ii) that there is no evidence or incriminating material on record of the case in support of the commission of the alleged offence by the accused; (iii) that the evidence or incriminating material collected during investigation in support of the commission of the alleged offence and proposed to be produced during trial is insufficient and, even if recorded, will not sustain conviction of the accused, of any offence in the case; and (iv) that the prosecution evidence so far recorded does not make out a case for conviction of the accused, of any offence in the case and the remaining prosecution evidence, even if recorded, will not improve the prosecution case against the accused in any manner. It is this fourth ground that attracts the application of the rule of practice and priority that when the trial is near completion, the fate of the case should not ordinarily be decided under section 265-K of the Cr.P.C., and, that too, when the trial is near completion, that is, when almost the whole of the prosecution evidence has been recorded. The wisdom behind the rule is that the appraisal of almost the whole prosecution evidence, when the trial is near completion, for deciding the application under Section 265-K, Cr.P.C. amounts to prejudging the case before the final judgment which not only reduces the sanctity and strength of the final judgment, but may also prejudice the case of the other accused, if any, undergoing trial. Any such exercise does not, therefore, serve the ends of justice. This rule thus has no relevancy or application to the first three grounds, which do not involve the appraisal of the prosecution evidence recorded during trial.

Muhammad Ashraf v. State 1990 PCr.LJ 347; Muhammad Taqi v. State 1991 PCr.LJ 963; Yasin Khan v. State 1995 PCr.LJ 142; Abdul Sattar v. State 1992 PCr.LJ 2054; Muhammad Sharif v. Muhammad Hussain 1993 PCr.LJ 2053; Ghafooran v. Muhammad Bashir 1977 SCMR 292; Ghulam Habib v. State 1980 PCr.LJ 754; Sheroo Khan v. Kaloo Khan 1992 PCr.LJ 110; Muhammad Sharif v. State PLD 1999 SC 1063; State v. Asif Ali Zardari 1994 SCMR 798 and Din Muhammad v. Muhammad Sharif 1979 PCr.LJ 59 ref.

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

----S. 405---Criminal breach of trust---Entrustment of property---Scope of Section 405, P.P.C. stated.

Although the "entrustment" of property within the meaning of section 405, P.P.C. does not envisage the creation of a formal trust with all the technicalities of the law of trust, it does contemplate that to constitute entrustment the accused must have held the property in a fiduciary capacity. The word "trust" has been used in section 405 in the ordinary sense of that word, and covers not only the relationship of trustee and beneficiary but also that of bailer and bailee, master and servant, pledger and pledgee, guardian and ward, and all other relations that postulate the existence of a fiduciary relationship between the complainant and the accused. The entrustment of property implies that the ownership of the entrusted property vests in a person other than the one who is entrusted with it. If the property belongs to and is owned by the accused in his own right, it cannot be said that he was entrusted with that property and that by using or disposing of that property he committed the offence of criminal breach of trust. "Entrustment" is an essential ingredient of the offence of criminal breach of trust as defined in section 405, P.P.C.; therefore, where there is no entrustment of property, there can be no criminal breach of trust.

State v. Jage Ram AIR 1951 Punj. 103 ref.

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

----S. 405---National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(x) & 9(a)(xi)---Criminal breach of trust---Corruption and corrupt practices---In a case where the primary offence of criminal breach of trust under section 405, P.P.C. is not made out, the charge for the offences under section 9(a)(x) & (xi) of the National Accountability Ordinance, 1999 cannot sustain.

Hashmat Ullah v. State 2019 SCMR 1730; Rafiq Haji v. Chairman, NAB 2015 SCMR 1575 and Shahid Imran v. State 2011 SCMR 1614 ref.

(d) Constitution of Pakistan---

----Art. 18---Regulation of trade---Scope---In a welfare State, the legislature enacts laws in public interest for the regulation of some trades or businesses by statutory bodies or Government functionaries---Such regulation may involve obtaining of licenses and permits to conduct a certain trade or business; impose reasonable terms and conditions as to how that trade or business is to be conducted; and control the production, distribution and consumption of any commodity during the conduct of that trade or business---Control on the production, distribution and consumption of some commodity, however, does not affect any change in the legal relationship between the contracting parties, nor does it alter the legal character, substance and consequence of the commercial transactions---Such regulation does not change the private nature of the trade or business.

Ghasiram v. State AIR 1967 Cal 568 ref.

Makhdoom Ali Khan, Senior Advocate Supreme Court for Petitioners (in both cases).

Sattar Awan, Spl. Prosecutor NAB for NAB.

Nemo for the Federation.

P L D 2022 Supreme Court 574

Umar Ata Bandial, C.J., Ijaz ul Ahsan, Mazhar Alam Khan Miankhel, Munib Akhtar and Jamal Khan Mandokhail, JJ

SUO MOTU CASE NO. 1 OF 2022

(Re: ruling by the Deputy Speaker of the National Assembly under Article 5 of the Constitution qua voting on No-confidence Motion against the Prime Minister of Pakistan)

CONSTITUTION PETITIONS NOS. 3 to 7 OF 2022

(Re: ruling passed on 03.04.2022 by the Deputy Speaker of the National Assembly on No-confidence Motion)

PAKISTAN PEOPLES PARTY PARLIAMENTARIANS (PPPP) through its Secretary General and 4 others---Petitioners

Versus

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

Suo Motu Case No. 1 and Constitution Petitions Nos. 3 to 7 of 2022, decided on 7th April, 2022.

Per Umar Ata Bandial, C.J.:

(a) Constitution of Pakistan---

----Arts. 5, 17(2), 95 & 184(3)---Resolution for vote of no-confidence against the Prime Minister---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Suo motu proceedings and Constitutional petitions under Article 184(3) of the Constitution challenging the actions of the Deputy Speaker---Maintainability---In the present controversy the fundamental right that had prima facie been violated and therefore required enforcement was Article 17(2) of the Constitution---Formulation of Article 17(2) enshrined the crucial democratic principle of Parliamentary Government---Fundamental principle that the 'powers and authority' of the State were to be exercised by a Government that was formed, run and maintained by the support of the majority of the directly elected representatives of the people in the National Assembly functioning within the political party system was permanently entrenched in the Constitution---People of country, therefore, could not be deprived of their right to be governed by their chosen representatives---Any digression from the constitutional process of forming a representative Government eroded the rule of law thereby endangering the cherished values promised to the people of the country by the Constitution---Therefore, the summary dismissal of the resolution for vote of no-confidence by the Deputy Speaker on which basis the President, whilst following the advice of the Prime Minister, dissolved the National Assembly prima facie contravened not only the express command of Article 95 of the Constitution but also repudiated the rule of law which was an indispensable foundation of parliamentary democracy envisaged by the Constitution---Deputy Speaker's ruling and the actions of the Prime Minister and the President defeated the right of the Opposition Parties to test their voting strength in support of the resolution for vote of no-confidence, and if successful, to form the next Government in exercise of their fundamental right under Article 17(2) of the Constitution---Combined actions of the Deputy Speaker, Prime Minister and President left the public at large without an elected Legislature and Executive, creating a constitutional crisis in the country---Political void in governance and uncertainty that ensued affected every single citizen of the country, all of whom were caught in the turmoil that loomed large in the country---In such circumstances the ruling of the Deputy Speaker and the subsequent actions of the Prime Minister and President prima facie infringed the fundamental rights of the Opposition Parties and the public at large---Constitutional petitions and suo motu notice/proceedings were therefore maintainable under Article 184(3) of the Constitution.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426 and Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 ref.

(b) Constitution of Pakistan---

---Art. 184(3)---Matters of national security---Non-interference by the judiciary---In claims of the defence of national security properly and lawfully raised before it, the judicial branch tends to tread carefully and takes into consideration as appropriate the views of the Executive---However, the restraint exercised by the Courts in matters of national security should not be absolute---When national security is taken as a defence to sustain a decision by the Government that is prima facie unconstitutional then the Government is under an obligation to substantiate the bona fides of its defence---To do so the Government must produce evidence to demonstrate the defence in order to escape legal scrutiny of its impugned action under ordinary principles of judicial review.

Home Secretary v. Rehman [2003] 1 AC 153; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan 2014 SCMR 111 and C.C.S.U. v Minister for Civil Service [1985] AC 374 ref.

(c) Constitution of Pakistan---

---Arts. 5, 95 & 184(3)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R. 37---Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that a secret coded message ("cypher") received from Pakistan's Ambassador posted at a foreign capital proved that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Constitutionality---Contents of the cypher were not shown either to the Supreme Court or the members of the National Assembly ("NA") who were accused of being involved in a foreign conspiracy against Pakistan---Deputy Speaker's ruling failed to refer to any person in Pakistan, by name or otherwise, who was alleged to be involved in a scheme with a foreign State to move the RNC---In the absence of cogent, reliable and relevant evidence showing the RNC to be contrary to Article 5 of the Constitution on account of being a product of collusion between its movers and the representatives of a foreign State, the alleged contravention of Article 95 of the Constitution by the Deputy Speaker was not protected from judicial scrutiny on the claim of national security---Deputy Speaker not only disregarded the provisions of Article 95 of the Constitution but also ruled on Article 5 which was a matter outside his cognizance and jurisdiction.

Deputy Speaker's ruling mentioned a secret coded message ("cypher"), received from Pakistan's Ambassador posted at a foreign capital. Allegedly the cypher revealed that a foreign State was supporting a regime change in Pakistan by ousting the Prime Minister ("PM") through the success of the resolution for vote of no-confidence ("RNC"). The contents of the cypher were not shown either to the Supreme Court or the members of the National Assembly ("NA") who were accused of being involved in a foreign conspiracy against Pakistan. Nor had other evidence been provided, either to the Supreme Court or the NA, detailing the names of the members of the NA associated with the alleged conspiracy and the inducement, coercion or influence used by them to procure other members of the NA, including political parties in the ruling alliance, to vote for the RNC. Detailed reasons given by the Deputy Speaker for his ruling were also ambivalent about the contention that members of the Opposition Parties were involved in the foreign conspiracy against the PM. Factual matrix set out in the detailed reasons of the Deputy Speaker's ruling noted the chronology of the RNC but failed to refer to any person in Pakistan, by name or otherwise, who was alleged to be involved in a scheme with a foreign State to move the RNC. This was possibly the reason why the Deputy Speaker recommended a thorough investigation in the matter to corroborate the stance of the PM and the Law Minister that a foreign conspiracy was brewing against the Government of the day with the help of members belonging to the Opposition Parties.

Despite receiving the cypher the information conveyed in it was neither investigated by the Government nor were its contents alluded to during the subsequent sittings of the NA. Also the allegations levelled against the members of the Opposition Parties were not put to them. It was only later, when the RNC was fixed for voting as per the Orders of the Day, that the Law Minister raised this matter for the first time before the NA and asked the Deputy Speaker to give a decision on the constitutionality of the RNC.

In the absence of cogent, reliable and relevant evidence showing the RNC to be contrary to Article 5 of the Constitution on account of being a product of collusion between its movers and the representatives of a foreign State, the Court cannot accept the defence that the alleged contravention of Article 95 of the Constitution by the Deputy Speaker was protected from judicial scrutiny on the claim of national security.

Under Article 95(2) of the Constitution the Deputy Speaker had 7 days from when the RNC was moved in the NA, to take a vote on the RNC. Therefore, when the Law Minister raised the point of order regarding the cypher and the unconstitutionality of the RNC, the Deputy Speaker had the opportunity to put the matter before the NA for discussion on the contents of the cypher and its effect, if any on the RNC. However, without hearing any other member of the NA and without taking a vote on the RNC, he simply dismissed the latter on the basis of the singular statement of allegations made by the Law Minister. In so doing, the Deputy Speaker not only disregarded the provisions of Article 95 of the Constitution but also ruled on Article 5 which was a matter outside his cognizance and jurisdiction. This is apart from condemning unheard the members of the Opposition Parties against whom serious allegations of disloyalty to the State and disobedience of the Constitution were levelled by the Law Minister. Suo motu proceedings and Constitutional petitions were disposed of accordingly.

(d) Administration of justice---

----Courts decide disputes on the strength of established facts and not on surmises or mere conjectures.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif PLD 2017 SC 265 ref.

(e) Constitution of Pakistan---

----Art. 69---Court not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Scope---Constitution is supreme, therefore, the immunity granted to proceedings in Parliament are made subject to its provisions---Protection afforded to proceedings in Parliament by Article 69(1) of the Constitution gives cover only to the form and manner of proceedings in the National Assembly, in particular the procedure specified in the National Assembly Procedure Rules that regulate the business of the House---Proceedings that infringe the provisions of the Constitution are not protected from judicial scrutiny, and this pertains to provisions that create substantive rights and duties or prescribe procedure---Constitution empowers the Superior Courts to examine and adjudicate the validity of proceedings in Parliament if these contravene the substantive or procedural provisions of the Constitution---Proceedings in Parliament may be impeached if these infringe the Constitution.

Thirumalai Chemicals Ltd., v. Union of India AIR 2011 SC 1725; Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699; In re: Under Art. 143, Constitution of India AIR 1965 SC 745; Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 and Ramdas Athawale v. Union of India (2010) 4 SCC 1 ref.

(f) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Scope---Trichotomy of powers---Courts will ordinarily exercise restraint and not enter into the domains of the Legislature and the Executive, but they will intervene when either of these branches overstep their constitutionally prescribed limits.

Jurists Foundation v. Federal Government PLD 2020 SC 1 ref.

(g) Constitution of Pakistan---

----Arts. 66 & 69---Court not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Phrase "proceedings in Parliament"---Scope---Protection of Article 69(1) of the Constitution is only available when an act suffering from an irregularity of procedure is committed on the floor of the National Assembly---Perusal of the text of Article 66(1) of the Constitution showed that proceedings in Parliament are essentially comprised of the two basic rights of the members of the National Assembly, namely, the freedom of expression and the right to vote---Freedom of every individual member to speak and vote and the collective decisions of the House are treated as proceedings in Parliament---Collective decision making of the House may be viewed as the extension of the right of every member of the House to express his/her views on a matter and ultimately vote on it to take a collective decision---Important feature that emerges from the fundamental constituents of proceedings in Parliament, namely, free speech and vote, is that these all relate to the internal functioning of Parliament---Resultantly, the Courts, whilst determining the ambit of and the immunity attached to proceedings in Parliament, refer to these proceedings as the 'internal proceedings' of Parliament.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 and Bradlaugh v. Gossett (1884) 12 QBD 271 ref.

(h) Constitution of Pakistan---

----Arts.5, 69, 95 & 184(3)---Court not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Scope---Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Plea that at the ruling of the Deputy Speaker was protected from judicial scrutiny under Article 69 of the Constitution as it constituted internal proceedings of Parliament---Validity---Ruling of the Deputy Speaker failed to qualify for protection as part of the internal proceedings of Parliament for the purposes of Article 69(1) of the Constitution---Said ruling was not the outcome of a vote in the National Assembly, instead, it was a unilateral decision taken by the Deputy Speaker at the behest of the Law Minister---Moreover, the Opposition Parties members of the National Assembly who had filed a notice for moving the RNC against the PM and granted leave to move the RNC against the PM had crystallised the constitutional right/ obligation for there to be a vote under Article 95(2) on the RNC---Such right/obligation could not be defeated or curtailed except by a vote on the floor of the National Assembly---Other defects allegedly committed in the internal proceedings of the National Assembly by the Deputy Speaker included his failure to hear the members of the Opposition Parties before giving his ruling on the constitutionality of the RNC, and his wrongful assumption of jurisdiction to issue the impugned ruling---As the Deputy Speaker's ruling unilaterally refused the right of vote granted by the Constitution, no immunity under Article 69(1) attached to it and the same could be reviewed by the Court---Suo motu proceedings and Constitutional petitions were disposed of accordingly.

Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 ref.

(i) Constitution of Pakistan---

----Art. 54(3)---Summoning of Parliament---Speaker of National Assembly, powers of---Scope---Constitutional right of the requisite number of members to ask the Speaker to summon the National Assembly in terms of Article 54(3) of the Constitution and the corresponding obligation of the Speaker to do so is a matter of great constitutional importance---Significance of Article 54(3) is bolstered by the closing words of the provision, i.e., that when "the Speaker has summoned the Assembly only he may prorogue it"---In a system of parliamentary democracy based on political parties, it is, in effect, an invaluable constitutional right conferred on the Opposition---Requirement of the summoning of the National Assembly under Article 54(3) of the Constitution must therefore be strictly adhered to.

(j) Constitution of Pakistan---

----Art. 254---Failure to comply with requirement as to time does not render an act invalid---Scope---Article 254 of the Constitution is not a general 'escape', that allows the concerned constitutional authority to disregard, as it may please, the time limit set out in any constitutional provision---Rather, it is only intended to be a backstop, when said time limit cannot be adhered to for reasons that must be constitutionally justifiable.

(k) Constitution of Pakistan---

----Arts. 5, 58(1), 95 & 184(3)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr. 37(5) & 37(8)---Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Whether the ruling of the Deputy Speaker was violative of Article 95 of the Constitution---Held, that from the language of both Article 95(2) of the Constitution and Rule 37(8) of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 ("NA Procedure Rules"), obligation of holding a vote on a RNC was cast in mandatory terms (once leave to move the RNC had been granted)---Power to pass or reject an RNC through a vote vested only in the National Assembly--- Speaker/Deputy Speaker had no veto power to rule on the admissibility or validity of an RNC without putting the same before the National Assembly for its decision---Accordingly, voting by members of the National Assembly on the RNC, could not be circumvented by the Speaker or Deputy Speaker---In the present case the ruling given by the Deputy Speaker dated 03-04-2022 to dismiss the RNC against the Prime Minister and to prorogue the National Assembly was in derogation of Article 95(2) of the Constitution and Rule 37(8) of the NA Procedure Rules, and, consequently, unlawful---Deputy speaker gave his ruling without allowing the National Assembly to vote on the existence and if so the effect of the supervening plea of disloyalty to the State and disobedience of the Constitution, and his ruling also destroyed the substantive constitutional right of the members of the Opposition Parties sitting in the NA to vote on the RNC---Declaration by the Deputy Speaker that the RNC was contrary to Article 5 of the Constitution is presumptive, unilateral and without jurisdiction---As the ruling of the Deputy Speaker was unconstitutional and illegal, the RNC against the PM stood revived---Until the defeat of the RNC the Prime Minister was at all material times prevented from advising the President to dissolve the NA, therefore, his advice to the President to such effect was contrary to the Constitution and was of no legal effect---Likewise the order of the President dissolving the NA lost constitutional legitimacy and was therefore nonest---Supreme Court directed that the NA stood restored with immediate effect (in fact it was deemed to have been in existence at all times), and that the Speaker shall convene a sitting of the NA forthwith and conduct the business of the House as per the Orders of the Day issued for 03-04-2022.

Article 95 of the Constitution is an amalgam of substantive and procedural law. The plain reading of Article 95 shows that the right to vote on the Resolution for vote of no-confidence against the Prime Minister ("RNC") is the substantive constitutional right granted to members of the Opposition Parties sitting in the National Assembly ("NA"). On the other hand, the requirements of 20% of the total membership of the NA agreeing to move an RNC and a majority of the total membership of the NA voting in favour of it within a period of 4-7 days from the date the RNC is moved are the procedural steps that need to be fulfilled before a Prime Minister can be ousted from office. All of these matters have been expressly set out in Article 95 i.e., in the text of the Constitution itself. These matters, both substantive and procedural, have therefore been removed from the ambit of the power of the NA to control itself i.e., from the 'internal proceedings' of that House.

In the present matter, 142 members of the Opposition Parties signed the notice dated 08-03-2022 seeking the removal of the Prime Minister ("PM"). Thereafter, on 28-03-2022, 161 members of the Opposition Parties granted leave to move the RNC against the PM. Therefore, the submission of the notice in the NA Secretariat followed by the grant of leave in the House crystallised the substantive right of the members of the Opposition Parties to vote on the RNC within a maximum period of 7 days from 28-03-2022 when the RNC was moved in the NA.

Article 95(2) of the Constitution gives freedom to the NA to choose the day for voting on the RNC, between the 4th and 7th day, both days included for this purpose. However, the said Article does not allow any freedom regarding the method of deciding the RNC. Voting is prescribed as the only means to do so. The intent of Article 95(2) specifically (and Article 95 generally) is that once an RNC has properly been moved in the NA, voting thereon is a must and cannot be avoided. This view is reiterated by Rule 37 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 ("NA Procedure Rules") which implements the purpose and intent of Article 95. Purpose of the intervening period of 7 days (after the RNC is moved in the NA) specified in Article 95(2) is to allow members of the NA to inform themselves on how to resolve or decide this critical agenda through their vote. However, not later than the 7th day Rule 37(8) of the NA Procedure Rules directs that a vote on the resolution must be held. In this regard, no special power vests in the Speaker/Deputy Speaker to avoid voting on the RNC.

Therefore, neither the Constitution nor the NA Procedure Rules vest the Speaker or the Deputy Speaker with any power to dismiss by a ruling a RNC for being inadmissible or non-maintainable. Accordingly, voting by members of the NA on resolutions mentioned in the Constitution, which includes the RNC, cannot be circumvented by the Speaker or Deputy Speaker. The power to pass or reject an RNC through a vote vests only in the NA. Therefore, its ultimate fate must be decided by the NA. The Speaker/Deputy Speaker have no veto power to rule on the admissibility or validity of an RNC without putting the same before the NA for its decision.

Nabam Rebia and Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 ref.

The ruling given by the Deputy Speaker on 03-04-2022, which was concurred with by the Speaker, to dismiss the RNC against the PM and to prorogue the NA was in derogation of Article 95(2) of the Constitution and Rule 37(8) of the NA Procedure Rules, and, consequently, unlawful. After the speech by the Law Minister that questioned the constitutionality of the RNC, the Deputy Speaker had two courses of action available. He could either have proceeded with the vote on the RNC in accordance with Article 95(2) and Rule 37(8) or allowed a discussion on the point of order raised by the Law Minister in terms of Rule 37(5) and then directed a vote on the RNC. However, neither course of action was adopted by the Deputy Speaker who simply dismissed the RNC for being unconstitutional. By giving the said ruling, the Deputy Speaker committed jurisdictional excess by violating his substantive obligation to take a vote on the RNC as directed by Article 95(2) of the Constitution; he also gave the ruling without allowing the NA to vote on the existence and if so the effect of the supervening plea of disloyalty to the State and disobedience of the Constitution, and his ruling destroyed the substantive constitutional right of the members of the Opposition Parties sitting in the NA to vote on the RNC.

R (Miller) v. Prime Minister [2019] UKSC 41 ref.

Article 5 of the Constitution is a constitutional provision that does not regulate the business of the NA. That provision lays down the duty/obligation of every citizen to be loyal to the State and to obey the Constitution. The violation of Article 5 may, therefore, be attracted against citizens on proof in a Court of Law after confronting with evidence and granting a hearing to the accused party. In the present case that would be the members of the Opposition Parties who are alleged to have conspired with a foreign State to oust the PM. Consequently, the declaration by the Deputy Speaker that the RNC is contrary to Article 5 is presumptive, unilateral and without jurisdiction.

By dismissing the RNC rather than putting it to vote, the ruling of the Deputy Speaker purported to remove the fetter imposed under the Explanation to Article 58(1) of the Constitution on the PM's power to advise the President to dissolve the NA and thereby defeat the constitutional purpose and effort to protect the NA in order to ensure continuity of elected government in the country. However, as the ruling of the Deputy Speaker was unconstitutional and illegal, the RNC against the PM stands revived. Therefore, the Explanation to Article 58(1) of the Constitution comes into operation to bar the PM from advising the President to dissolve the NA. Until the defeat of the RNC the PM is at all material times prevented from advising the President to dissolve the NA. His advice tendered on 03-04-2022 to the President to such effect violates the bar under the Explanation to Article 58(1). It is contrary to the Constitution and is of no legal effect. Likewise, since the advice of the PM to dissolve the NA is rendered futile, the order of the President dated 03-04-2022 dissolving the NA loses constitutional legitimacy and is therefore non est. The NA stands restored with immediate effect (in fact it is deemed to have been in existence at all times). The Speaker is, therefore, directed to convene a sitting of the NA forthwith and conduct the business of the House as per the Orders of the Day issued for 03.04.2022. Suo motu proceedings and Constitutional petitions were disposed of accordingly. Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 distinguished.

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

----R. 17(1)---Speaker to decide points of order---Scope---In terms of Rule 17(1) of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 (NA Procedure Rules"), jurisdiction of the Speaker/Deputy Speaker is confined to interpreting/enforcing the NA Procedure Rules or those Articles of the Constitution that regulate the business of the National Assembly---However, the Speaker is not competent to issue a ruling on the interpretation/enforcement of any other provision of the Constitution that has no nexus with the business of the National Assembly---Speaker's jurisdiction to rule on a point of order is confined both in terms of subject matter and manner of disposal, which is why ordinarily when a point of order is raised that is arguably not within the cognizance of the Speaker, the same is put before the NA for a decision through vote.

State of Punjab v. Satya Pal AIR 1969 SC 903 ref.

(m) Void order---

----When the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls to the ground automatically.

Atta-ur-Rehman v. Sardar Umar Farooq PLD 2008 SC 663 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

(n) Constitution of Pakistan---

----Art. 184(3)& Pt. II, Chap. 1 ---Political questions---Supreme Court, jurisdiction of---Scope---Court exercises jurisdiction to adjudicate legal issues arising from political questions when the fundamental rights of a large body of people are involved---However, the Court avoids making political assessments based upon political or moral considerations that do not involve the determination of any question of law.

(o) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court---Scope---Court cannot lend its support to any extra-constitutional measure unless a compelling public interest established by evidence and floating on the face of the record so demands.

Corruption in Hajj Arrangements in 2010: In the matter of PLD 2011 SC 963 ref.

Per Mazhar Alam Khan Miankhel, J; concurring with Umar Ata Bandial, C.J.

(p) Constitution of Pakistan---

----Art. 69---Court not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Scope---Article 69 of the Constitution does not place a complete bar on the jurisdiction of the Supreme Court---Actions by the Speaker, if based in violation of existing rules or the discretion so exercised by him affecting the smooth running of the functions of the House is, prima facie, in violation of judicious norms, cannot be given the protecting blanket of Article 69 of the Constitution.

Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 ref.

(q) Constitution of Pakistan---

----Arts. 5, 6, 53(3), 58(1), 95 & 184(3) & Preamble---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R. 37---Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Constitutionality---Deputy Speaker in rejecting the resolution exercised a jurisdiction not vested in him and his unilateral act was unconstitutional and without lawful authority---Once the matter was fixed for voting, the Speaker had no power and lawful authority to avoid voting or reject the resolution without voting---Furthermore the session of the National Assembly wherein the impugned ruling was given was presided over by the Deputy Speaker without any explanation why the Speaker did not preside over---Such act of both the Speaker as well as the Deputy Speaker was against the provisions of Article 53(3) of the Constitution---Since the impugned ruling was null and void, the RNC would be deemed to be pending before the National Assembly and the Prime Minister would continue to suffer from disability under Explanation of Article 58(1) to advise the President to dissolve the National Assembly---Any order by the President to dissolve the National Assembly on the advice of such a Prime Minister was also void---Supreme Court observed that for the blatant transgression of the Constitution by the President, Prime Minister, the Speaker, the Deputy Speaker and the Law Minister there must be consequences; that series of acts by the said office holders were not performed in the ordinary course of business but the same were result of premeditation and deliberations in order to defeat the RNC while playing fraud on the Constitution; that whether the stated acts attracted Article 6 of the Constitution was left open to be determined by the Parliamentarians.

Resolution against the Prime Minister ("PM") was submitted on 8th March, 2022 by a large number of the Members of the National Assembly well beyond the prescribed twenty per centum of the total membership of the National Assembly as required under Article 95(1). Since, the resolution was declared admissible by the Speaker, the Speaker under Article 95(2) was under a constitutional duty/responsibility to hold voting thereon within the time frame prescribed therein that, "a resolution shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly". Meaning thereby such a resolution should have been voted upon between three and seven days but the Speaker for no reason delayed the voting thereon and finally rejected the resolution on the question of inadmissibility which is alien to the Constitution. Once the leave to move the resolution is granted then that resolution has to be voted upon. The Deputy Speaker in rejecting the resolution exercised a jurisdiction not vested in him and his unilateral act was unconstitutional and without lawful authority. Once the matter was fixed for voting, then the Speaker had no power and lawful authority to avoid voting or reject the resolution without voting. This alone is an act which is ultra vires the Constitution called for interference by the Supreme Court.

On 03-04-2022, the session was presided over by the Deputy Speaker without any explanation why the Speaker did not preside over. This act of both the Speaker as well as the Deputy Speaker is against the provisions of Article 53(3), which contemplates that, "when the office of Speaker is vacant, or the Speaker is absent or is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker, and if, at that time, the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member as may be determined by the rules of procedure of the Assembly shall preside at the meeting of the Assembly". The record shows that the Deputy Speaker read out the impugned ruling in the name of the Speaker as the same was also signed by the Speaker on the same day. Meaning thereby, on the day when the Deputy Speaker presided over the session of the House and read out the impugned ruling, the office of the Speaker was neither "vacant" nor was the Speaker "absent" or "unable to perform his functions". Even no explanation in this regard was placed on record subsequently by the Speaker or Deputy Speaker. The Deputy Speaker had shown sheer disregard for the mandatory provisions of the Constitution. The Deputy Speaker had no authority to preside over the meeting of the Assembly and to pass impugned ruling on 03-04-2022 rejecting the RNC. The so called ruling of Deputy Speaker is, therefore, without jurisdiction and coram non judice. This very act of the Deputy Speaker is sufficient enough to reflect his biased and prejudiced mind which is against the norms and dignity of the chair of the Speaker. This very act, alone, is sufficient to annul the so-called ruling which otherwise also has no legal sanctity.

Since the impugned ruling of the Deputy Speaker is null and void and of no legal effect, the RNC would be deemed to be pending before the National Assembly. The Prime Minister would continue to suffer from disability under Explanation of Article 58(1) to advise dissolution of National Assembly which states that once a "resolution for a vote of no confidence has been given in the National Assembly" against the Prime Minister he could no longer advise the President to dissolve the National Assembly under Article 58(1) of the Constitution. Therefore, any order by the President to dissolve the National Assembly on the advice of such a Prime Minister is also declared as void.

The Constitution opens by stating that the exercise of authority "is a sacred trust" and can only be exercised through "the chosen representatives of the people." However, this sacred trust was violated amongst others by the President, Prime Minister, the Speaker, the Deputy Speaker and the Law Minister, as the elected representatives of the people were prevented from voting on the RNC and for such blatant transgression of the Constitution there must be consequences and the law must take its course. Series of acts right from the rejection of RNC by the Deputy Speaker till the dissolution of National Assembly by the President were not performed in the ordinary course of business but the same were result of premeditation and deliberations in order to defeat the RNC while playing fraud on the Constitution. Article 5 of the Constitution, which mandates "obedience to the Constitution," was cited to violate the Constitution. However, whether the stated acts attract Article 6 of the Constitution is left open to be determined by the Parliamentarians as to whether they leave open the doors for such unconstitutional acts or take suitable measures to stop such like mess in future. Suo motu proceedings and Constitutional petitions were disposed of.

(r) Constitution of Pakistan---

----Arts. 53(1) & 53(2)---Speaker of the National Assembly---Neutrality in discharge of duty---Elected member of the Assembly when elected as a Speaker, ought to be neutral in the discharge of his duty and function and ought to be above politics---While deciding any matter in his/her competence, the Speaker shall not be influenced by anyone, including the party to which he/she is affiliated.

Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 ref.

(s) Constitution of Pakistan---

----Arts. 5, 69, 95 & 184(3)---Court not to inquire into proceedings of Majlis-e-Shoora (Parliament)---Scope -- Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Plea that at the ruling of the Deputy Speaker was protected from judicial scrutiny under Article 69 of the Constitution as it constituted internal proceedings of Parliament---Validity---Action of the Deputy Speaker rejecting the RNC vide impugned ruling would neither fall within the meaning of term "any proceedings in the Majlis-e-Shoora (Parliament)" used in Article 69, nor such action could be described as an exercise of power by the Speaker of the House regulating the procedure or the conduct of business in the Assembly and, therefore, no question of immunity for such an action could arise under Article 69 of the Constitution---Impugned ruling as such was a nullity in the eye of law, worthy of no credence---Suo motu proceedings and Constitutional petitions were disposed of.

Per Jamal Khan Mandokhail, J; concurring with Umar Ata Bandial, C.J.

(t) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Supreme Court's power of judicial review explained.

According to the Constitution, Supreme Court is the apex organ of the judiciary, which administers justice between private persons or institutions, or between person and State. It keeps the Constitution alive in two ways. First, it interprets the Constitution. Second, the Supreme Court is required by the Constitution to check the other branches of the State to ensure the principle of accountability that they act within the law and fulfill their constitutional obligations, in order to prevent tyranny, corruption, despotism and infringement of the basic fundamental rights of citizens. It decides whether any legislation made by the Parliament, a Provincial Assembly, or any decision made by a Government or a person holding a public office, violates the Constitution or fails to fulfill their constitutional obligations. The Constitution provides the power of checks and balances to the constitutional Courts to ensure accountability and the rule of law. Thus, the Supreme Court has the role to police the constitutional compliance of the Executive and the Legislature, to make sure that it is the Constitution and law, not the people who run the Parliament, a Government or a local body. Hence, any infringement of a constitutional provision or law by them is an invitation for the intervention of the Courts, if they are called upon to do so. This power of the Court is termed "Judicial Review".

(u) Constitution of Pakistan---

----Art. 69---Proceedings in the [Majlis-e-Shoora] Parliament---Immunity from judicial review---Scope---Article 69 of the Constitution recognizes smooth functioning of the Parliament, without interference of Courts only on the ground of any procedural irregularity, to ensure its procedural independence---Procedure is an established or official way of doing something, including efficiency and policy---Constitutional immunity of a judicial review is with reference to a particular method for regulating and conducting business and maintaining order in the Parliament by its members, including the Speaker and officers in whom powers are vested by or under the Constitution, any law or the rules---Such constitutional prohibition, in clear terms, is in respect of mere exercise of power that relates and confines to regulating procedure for conduct of business or for maintaining order in the Parliament---However, there is no prohibition to challenge the constitutional violation and statutory illegality committed by the members of the Parliament---Hence, violation of the constitutional mandates, mala fides, non-compliance with the rules of natural justice and perversity by the Speaker or members of the Parliament are not covered within the ambit of Article 69 of the Constitution.

Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and others 2007 3 SC 184 and Hugh Glenister v. President of the Republic of South Africa (2011) ZACC 6 ref.

(v) Constitution of Pakistan---

----Arts. 53(1), 53(2) & 69---Speaker of the National Assembly---Speaker's authority and the scope of the Constitutional immunity available to him/her explained.

In a parliamentary form of government, Speaker is the Presiding Officer, custodian and representative of the National Assembly. Before assuming office, he takes oath to preserve, protect and to be obedient to the Constitution; to act impartially and with authority vested in him by the Constitution. The Speaker's role in the House is to maintain order, conduct business by applying the provisions of the Constitution, law and the Rules of Business. His decisions as regards the procedural conduct of business are immune from judicial review. But in case of constitutional and legal violation or disobedience, the Speaker does not enjoy the immunity and under such circumstances, the parliamentary privileges do not exclude the Courts from judicial intervention. The Constitution does not permit any person to substitute his own judgment and authority over the constitutional provisions, therefore, in every organ of the State, there must be a supremacy of the Constitution and law, not of men. Without rule of law, it will be damaging for democracy. In the constitutional structure, the will of the Speaker cannot constitute a legal basis for abrogating the requirement of the Constitution. In a democratic form of Parliament, when the procedural limits are crossed by the Speaker, the Parliamentarians or the officers of the Parliament for that matter, it is only the Parliament that could judge its legality. But, when there is infringement, disobedience or violation of the constitutional provisions or statute by the Speaker, the Parliamentarians or the officers, they do not enjoy the immunity, as such, the constitutional court cannot be excluded from its power of judicial review. If the Speaker's power and actions remain unchecked, he will be a man of unlimited powers, and the National Assembly will be subservient to him. There will always be a threat to the sovereignty, authority and dignity of the National Assembly and its values could be undermined.

Nipamacha Singh and others v. Secretary, Manipur Legislative Assembly AIR 2002 Gauhati 7 ref.

(w) Constitution of Pakistan---

----Art. 95---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R. 37---Resolution for a vote of no confidence against the Prime Minister---Procedure for resolution of vote of no confidence against the Prime Minister and powers of the Speaker in such respect stated.

Article 95 of the Constitution provides a right to members of the National Assembly to move a resolution for a vote of no confidence (the resolution) against the Prime Minister (the P.M.), which is a statutory resolution. The said Article of the Constitution in itself is a complete code, which specifically provides a procedure to process and to decide the fate of the resolution within the period specified in this Article. The moment a resolution against a P.M. is moved, the Speaker is obliged to complete the process, as provided by Article 95 of the Constitution and Rule 37 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007. It is for the members of the National Assembly to vote for or against the resolution. After voting, the only power of the Speaker is to count the votes and on the basis whereof, the fate of the resolution shall be decided.

Article 95 of the Constitution has provided a procedure for moving a resolution and decision thereon by the expression so expressed by the members of the National Assembly. The only power of the Speaker in such a situation is to supervise the Session, to count the votes and to decide the result of the votes so cast in favour of the resolution. In case, the majority of the members votes in favour of the resolution, the P.M. shall cease to hold office. An exercise of power by the Speaker in such respect, beyond the constitutional mandate, is an act, ultra vires the Constitution.

(x) Constitution of Pakistan---

----Arts. 5, 58(1), 69, 95 & 184(3)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R. 37---Resolution for vote of no-confidence against the Prime Minister ("RNC")---Deputy Speaker of National Assembly gave a ruling under Article 5 of the Constitution to dismiss/reject the pending RNC and consequently did not allow voting on the same on the basis that a secret coded message ("cypher") received from Pakistan's Ambassador posted at a foreign capital proved that the RNC was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Constitutionality---Article 95 of the Constitution did not permit the Deputy Speaker to do any business, other than completing the process upon the RNC---Deputy Speaker had already decided to reject the RNC, through his pre-planned ruling, which was drafted before the start of the proceedings in the House---Said ruling deprived the Parliamentarians of their constitutional right for a vote of no confidence against the Prime Minister (P.M.)---Deputy Speaker's act was beyond the mandate of the Constitution, and also based on mala fide, which could not be termed as procedural irregularity, thus, judicial review of his ruling by the Supreme Court would not constitute a breach of the privilege of the Parliament---Without going through the contents of the coded cypher, question was as to how did the Deputy Speaker come to know that there was some conspiracy and by whom---Even if the cypher had any substance, still it could not be made basis for rejection of the RNC---Ruling of the Deputy Speaker was ultra vires the Constitution, and the proceedings upon the RNC in the National Assembly stood revived to its previous position---Further the P.M. had no authority to recommend the dissolution of the National Assembly, consequently, the notification of the President based upon unauthorized recommendation of the P.M. had no legal authority---Action of the Deputy Speaker was biased, on the basis whereof, if the request of the Government to hold fresh elections was accepted, it would amount to giving license to an authority to misuse the extraordinary power of doctrine of necessity.

The Deputy Speaker rejected the resolution for vote of no-confidence against the Prime Minister ("the resolution") and his ruling was based upon a cypher, issued by a Pakistani diplomat, allegedly containing some allegations. He while giving reference of the provision of Article 5(1) of the Constitution declared that the motion is a result of a plot hatched by its movers in connivance with a foreign country to change the regime. Strangely the Deputy Speaker did not explain that how the said Article is relevant in the process of vote of no confidence. Article 95 of the Constitution does not permit the Speaker to do any business, other than completing the process upon the resolution. He was obliged to be obedient to the Constitution and law, therefore, was bound to fulfill the constitutional command by finalizing the process for a vote of no confidence moved against the Prime Minister (P.M.) in accordance with Article 95 of the Constitution and Rule 37 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 ('Rules of Business'). He was supposed to abide by his oath to be impartial and act fairly. But instead, he has violated the constitutional provisions and has misused his power, in protecting the interest of the P.M. as both of them belong to the same ruling party. The conduct of the Deputy Speaker is evident of the fact that he had already decided to reject the resolution, through the ruling, which was drafted before the start of the proceedings in the House. The ruling was with the name and designation of the Speaker National Assembly, who was even not present in the House. The ruling of the Deputy Speaker is evident of the fact that it was pre-planned, which has deprived the Parliamentarians of their constitutional right for a vote of no confidence against the P.M. The Deputy Speaker did not provide the right to reply the allegations leveled by the Federal Minister for Law and Parliamentary Affairs, which undermined the authority and sovereignty of the Parliament, and has lowered its dignity as well. His act was, therefore, not only beyond the mandate of the Constitution, but is also based on mala fide, which cannot be termed as procedural irregularity, rather it was an act, ultra vires the Constitution. In the given circumstances, judicial review of the ruling by the Supreme Court cannot constitute a breach of the privilege of the Parliament, in terms of Article 69 of the Constitution.

By the time the ruling was delivered by the Deputy Speaker, he did not go through its contents, as it remained coded. The ruling contained that the cypher requires a thorough probe and investigation to unearth the truth with regard to the allegations contained in it. Without going through the contents of the cypher, how did the Deputy Speaker come to know that there was some conspiracy and by whom? Admittedly, the Ministry of Foreign Affairs had received the cypher much before the resolution was moved. If it is believed for the sake of argument that there was any allegation of conspiracy against any member of the Parliament, the proper course provided by law could have been adopted by the Government, but no step in this regard was taken. Even if the cypher had any substance, as alleged by the Deputy Speaker, still it cannot be made basis for rejection of the resolution. As it is the mandate of the Constitution that the Speaker/Deputy Speaker must complete the process upon the resolution against the P.M. within the prescribed period of time, but the needful was not done. The ruling of the Speaker, rejecting the resolution on the basis of the allegations allegedly contained in the cypher, was biased and without jurisdiction, hence it is ultra vires the Constitution.

Since the ruling of the Deputy Speaker is ultra vires the Constitution, the resolution of no confidence is revived, as a result whereof, the entire structure built upon the ruling collapses and the National Assembly stands restored. Under such circumstances, the P.M. had no authority to recommend the dissolution of the National Assembly, consequently, the notification of the President based upon unauthorized recommendation of the P.M. has no legal authority. As the notification issued by the President is no more in field, the Supreme Court had no jurisdiction to order for conducting fresh elections. The request of the Attorney General for continuing with the process of (general) elections can in no way be considered as an instance for invoking the right of doctrine of necessity. The action of the Deputy Speaker was biased, on the basis whereof, if permitted to hold fresh elections, it would amount to giving license to an authority to misuse the extraordinary power of doctrine of necessity. Suo motu proceedings and Constitutional petitions were disposed of.

(y) Necessity, doctrine of---

----Scope of doctrine of necessity; the circumstances in which it can be invoked and the Court's power to judicially review the exercise of such doctrine by the Government explained.

The doctrine of necessity is a term to justify the extra-constitutional or unlawful course of conduct or action by the State through the constitutionally formed government to run the affairs of the State.

The right to exercise the doctrine of necessity can be invoked rarely and very narrowly, only by a constitutionally formed government in exceptional and unavoidable circumstances, when no other alternative or remedy is available. For instance, in a full-scale war, an insurrection, an economic depression, national disasters beyond human control or a threat against the existence of the State. While exercising such authority, the government must act fairly, without bias and prejudice, to ensure public confidence in it.

The Attorney-General of the Republic v. Mustafa Ibrahim and others [1964] Cyprus Law Reports 195 ref.

There must be an effective system of checks and balances upon the use of doctrine of necessity to avoid its misuse and to ensure the functional continuity of the State. The Constitution has assigned the power of judicial review to the Courts to consider the legitimacy of every action of the government including the right of exercising the power of the doctrine of necessity. In exercising the power of judicial review, the courts are always reluctant to recognize the government's power of doctrine of necessity. The courts should enquire into the use of such an extraordinary measure and must also consider its necessity on the touchstone of fundamental political, social and legal values, and jurisdiction of the authority exercising such power.

For Federation:

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, Addl. AGP Assisted by: M. Usman Piracha, Advocate, Ms. Mayam Rasheed, Advocate and Ms.Faryal Shah Afridi, Advocate.

For the President:

S. Ali Zafar, Advocate Supreme Court, S. M. Ali Bokhari, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record.

For Prime Minister:

Imtiaz Rasheed Siddiqui, Advocate Supreme Court, Faisal Fareed, Advocate Supreme Court, S. Hasnain Ibrahim Kazmi, Advocate Supreme Court, Assisted by Ch. Atif Khan, Advocate.

For ECP:

Sikandar Sultan Raja, CEC, Omer Hameed Khan, Secretary, Zafar Iqbal, Spl. Secretary, Muhammad Arshad, DG (L) and Khurram Shahzad, ADG(L).

For SCBA:

(S.M.C. 1 and Const.P.4 of 2022)

Mansoor Usman Awan, Advocate Supreme Court, Ahsan Bhoon, Advocate Supreme Court (President), Waseem Mumtaz Malik, Advocate Supreme Court (Secretary), Khawar Ikram Bhatti, Advocate Supreme Court, S. Rifaqat Hussain Shah, Advocate-on-Record Assisted by: Umair Ahmed, Advocate and Asfand Yar Khan, Advocate.

For PPPP:

(S.M.C. 1 and Const. P.3 of 22)

Farooq H. Naek, Senior Advocate Supreme Court, Bilawal Bhutto Zardari, Mian Raza Rabbani, Advocate Supreme Court, Raja Shafqat Abbasi, Advocate Supreme Court, Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Sardar Shahbaz Ali Khan Khosa, Advocate Supreme Court, S. Rifaqat Hussain Shah, Advocate-on-Record Assisted by: Barrister Shiraz Shaukat Rajpar.

For BNP (M):

Mustafa Ramday, Advocate Supreme Court, Rashid Hafeez, Advocate Supreme Court Assisted by: Ahmed Javaid, Advocate, Akbar Khan, Advocate and Ms. Zoe Khan, Advocate.

For ANP:

Babar Yousafzai, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record.

For PML(N):

(S.M.C. 1 of 2022)

Makhdoom Ali Khan, Senior Advocate Supreme Court Mian Shahbaz Sharif, (Opposition Leader), Assisted by: Saad M. Hashmi, Advocate, Sarmad Hani, Advocate, Yawar Mukhtar, Advocate and Ammar Cheema, Advocate.

(Const. P. 5 of 2022)

Ch. Sultan Mehmood, Advocate Supreme Court, Khalid Ishaq, Advocate Supreme Court, Azam Nazeer Tarar, Advocate Supreme Court and S. Rifaqat Hussain Shah, Advocate-on-Record.

For PML:

Imtiaz Rasheed Siddiqui, Advocate Supreme Court, S. Hasnain Ibrahim Kazmi, Advocate Supreme Court and Ahmed Nawaz Ch., Advocate-on-Record.

For PTI:

Dr. Babar Awan, Senior Advocate Supreme Court, Azhar Siddiqui, Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record .

For JUP:

Kamran Murtaza, Sr. Advocate Supreme Court and Qari Abdul Rasheed, Advocate Supreme Court.

For Dy. Speaker, NA:

Naeem Bokhari, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record.

For Sindh:

Salman Talibuddin, A.G.

(V.L. Karachi)

Sibtain Mehmood, Addl. A.G.

(V.L. Karachi)

Fawzi Zafar, Addl. A.G.

(V.L. Karachi)

For Punjab:

Ahmed Awais, A.G. Punjab.

For Balochistan:

Asif Reki, A.G. and M. Ayaz Sawati, Addl. A.G.

For KP:

Shumial Butt, A.G., Mian Shafaqat Jan, Addl. A.G. and Atif Ali Khan, Addl. AG

For ICT:

Niazullah Khan Niazi, A.G.

For Ministry of Interior:

M. Ayub, Addl. Secretary and M. Naeem Saleem, Dy. Secretary

For NA:

Abdul Latif Yousafzai, Advocate Supreme Court, M. Mushtaq, Addl. Secretary and Haq Nawaz, SO

For SHCBA & SBC:

Const. Ps. 6 and 7 of 2022.

Salahuddin Ahmed, Advocate Supreme Court, Haider Imam Rizvi, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record.

P L D 2022 Supreme Court 675

Present: Syed Mansoor Ali Shah, J

QAUSAIN FAISAL---Appellant

Versus

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

C. M. Appeal No. 87 of 2022 in Const. Petition No. Nil of 2022, decided on 18th July, 2022.

(Against the order dated 06.07.2022 of the Registrar, declining to register the Constitution Petition of the Appellant).

Supreme Court Rules, 1980---

----O.III, R. 10(a), O. V, R.1(6) & O.VII, R. 7---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Article 184(3) filed before the Supreme Court---Maintainability, question of---Registrar (Supreme Court), powers of---No provision in the Supreme Court Rules, 1980 empowered the Registrar to touch upon the maintainability of a constitutional petition filed under Article 184(3) of the Constitution, other than ensuring its proper form and presentation as per the practice and procedure of the Court provided in the Rules---Maintainability and the merits of a petition were justiciable issues, and fell within the domain of the Court.

Under the Supreme Court Rules, 1980 ('the Rules'), the Registrar of the Supreme Court is to perform certain functions that are mostly administrative and ministerial in nature. In performing the administrative function of "registration of petitions, appeals, suits and other matters" under Rule 1(6) of Order V of the Rules, the Registrar has been conferred: (i) the power under Rule 10(a) of Order III "to require any plaint, petition of appeal, petition for leave to appeal or other matters" presented to the Court, to be amended in accordance with the practice and procedure of the Court, and (ii) the power under Rule 7 of Order VII to "decline to receive any document" which is presented otherwise than in accordance with the Rules. The powers of the Registrar under Rule 10 of Order III along with Rule 7 of Order VII of the Rules are purely administrative in character, which allow him to enforce the practice and procedure of the Court in relation to presentation of cases and ensure that the form of the pleadings and the documents filed therewith is as per the Rules. The justiciability of the legal and factual questions raised in the petitions is a matter for the Court to deal with and decide upon. Registrar enjoying administrative powers under the Rules cannot assume the core adjudicatory role of the Court under the Constitution. There is no provision in the Rules that empowers the Registrar to touch upon the maintainability of a petition, other than ensuring its proper form and presentation as per the practice and procedure of the Court provided in the Rules. The maintainability and the merits of a petition are justiciable issues, and fall within the domain of the Court.

Farman Ali v. Muhammad Ishaq PLD 2013 SC 392 and P. Surendran v. State 2019 SCC Online SC 507 ref.

Certain miscellaneous matters, that are also essentially procedural in character, regarding which the Registrar can exercise the powers of the Court are listed in Rule 1 of Order V of the Rules, but the matters listed there (sub-rules 1 to 31) do not authorize the Registrar to decide upon the maintainability of a constitution petition filed under Article 184(3) of the Constitution. Objections raised by the Registrar, which touch upon the questions of maintainability and merits of the case, can only be examined by the Court through a judicial determination and not by the Registrar or a Judge hearing an appeal-in-chambers, against the order of the Registrar, on the administrative side.

Hassan Raza Pasha, Advocate Supreme Court for Appellant.

Nemo for Respondents.

P L D 2022 Supreme Court 678

Present: Umar Ata Bandial, C.J., Ijaz Ul Ahsan and Munib Akhtar, JJ

Chaudhry PARVEZ ELAHI---Petitioner

Versus

DEPUTY SPEAKER, PROVINCIAL ASSEMBLY OF PUNJAB, LAHORE and others ---Respondents

Constitution Petition No.22 of 2022, decided on 26th July, 2022.

(Against the Ruling of Deputy Speaker, Punjab Assembly dated 22.07.2022).

(a) Constitution of Pakistan---

----Arts. 63A(1)(b), 130(4) & 184(3)---Runoff election for the post of Provincial Chief Minister---Deputy Speaker of Provincial Assembly by relying on short judgment of the Supreme Court reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2022 SC 488) read with Article 63A(1)(b) of the Constitution gave a ruling to exclude ten votes cast in favour of one of the candidates on the basis that they were cast against the direction of the Party Head---Constitutionality---Understanding and implementation of the short judgment of the Supreme Court reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2022 SC 488) as well as the provisions of Article 63A(1)(b) of the Constitution by the Deputy Speaker, Provincial Assembly was patently incorrect and erroneous and could not be sustained---Governance of the Province in accordance with the Constitution had been subverted whereby the fundamental rights of the people had been seriously infringed---Supreme Court set aside the impugned ruling issued by the Deputy Speaker of Provincial Assembly and declared the same to be void, without lawful authority and of no legal effect---Consequently, having admittedly secured 186 votes as against 179 votes obtained by respondent-candidate in the runoff election of Provincial Chief Minister, the petitioner-candidate was declared as the duly elected Chief Minister.

At the runoff election the petitioner-candidate secured 186 votes whilst the respondent-candidate got 179 votes which was recorded in the impugned ruling of the Deputy Speaker of the Provincial Assembly. However, the Deputy Speaker excluded 10 votes in favour of the petitioner from the count as a result of which he announced the winning candidate for the slot of Chief Minister to be the respondent. The votes were excluded on the basis that 10 members of a political party, who had voted for petitioner, failed to follow the direction under Article 63A(1)(b) of the Constitution given by its Party Head to the members of the Parliamentary Party. As a result the winning candidate who had received 186 votes lost the election by 03 votes. District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Sardar Sher Bahadar Khan v. Election Commission of Pakistan PLD 2018 SC 97 and Zulfiqar Ahmed Bhutta v. Federation of Pakistan PLD 2018 SC 370 distinguished.

The understanding and implementation of the short judgment of the Supreme Court reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2022 SC 488) as well as the provisions of Article 63A(1)(b) of the Constitution by the Deputy Speaker, Provincial Assembly was patently incorrect and erroneous and could not be sustained. The governance of the Province in accordance with the Constitution had been subverted whereby the fundamental rights of the people had been seriously infringed. As a result, the impugned ruling issued by the Deputy Speaker of Provincial Assembly was set aside and declared to be void, without lawful authority and of no legal effect.

Consequently, having admittedly secured 186 votes as against 179 votes obtained by respondent in the runoff election of Provincial Chief Minister, the petitioner was declared as the duly elected Chief Minister.

Supreme Court directed that the Provincial Chief Secretary, shall immediately and forthwith and on announcement of present short order issue the requisite notification declaring the petitioner as the duly elected Provincial Chief Minister; that respondent not being the duly elected Chief Minister, the oath of office administered to him was and is without lawful authority and of no legal effect; that likewise all acts, deeds and things attendant and consequent upon such oath including but not limited to the notification of respondent and the formation and swearing in of the Cabinet on his advice was also without lawful authority and of no legal effect; that all Advisors, Special Advisors and Special Assistants etc (if any) by whatever name called appointed by, on behalf or under orders/advice of respondent shall immediately and forthwith cease to hold office as their appointments were illegal and without lawful authority; that the respondent, and persons appointed as Minsters on his advice and the Advisors, Special Advisors and Special Assistants etc (if any) were relieved of their offices/posts with immediate effect; that the Provincial Governor shall arrange and administer oath of office to the petitioner as the duly elected Chief Minister in accordance with law and the Constitution not later than 11:30 pm tonight; that in case, the Provincial Governor was unable or unwilling to administer such oath, the President may forthwith administer oath of office to the petitioner as Chief Minister; that all acts, deeds and things lawfully done or purported to be done by respondent and or any Member of the Provincial Cabinet in accordance with the Constitution and the law under colour of office were saved and protected under the de facto doctrine subject to all just and legal exceptions and such review, modification, reversal or withdrawal as may be deemed appropriate by the incoming Chief Minister, and any member of the Cabinet or other officer appointed by him in accordance with law. Constitutional petition was allowed.

(b) Administration of justice---

----If a Judge has unconsciously followed an incorrect view of the law, he has by conscious application of mind the freedom to adopt the correct view of the law subsequently.

Ali Zafar, Advocate Supreme Court, Imtiaz Rashid Siddiqui, Advocate Supreme Court, Aamir Saeed Rana, Advocate Supreme Court, M. Safdar Shaheen Pirzada, Advocate Supreme Court, Dr. Babar Awan, Advocate Supreme Court, Ch. Faisal Fareed, Advocate Supreme Court, Ahmed Owais, Advocate Supreme Court, Azhar Siddiqui, Advocate Supreme Court (via video link at Lahore), Syed M. Ali Bukhari, Advocate Supreme Court, Assisted by Sabeel Tariq, Advocate, Hamza Sheikh, Advocate, Abdullah Babar, Advocate and Fayaz Kandwal, Advocate for Petitioner.

Irfan Qadir, Advocate Supreme Court for Respondent No. 1.

Mansoor Usman Awan, Advocate Supreme Court and Khalid Ishaq, Advocate Supreme Court for Respondent No.2.

Qasim Ali Chohan, Addl.A.G., Ch. M. Jawad Yaqub, Addl.A.G. (via video link from Lahore) for Punjab Government.

Ch. Aamir Rehman, Addl.A.G.P., Sohail Mehmood, Addl. A.G.P. Assisted by Usama Rauf, Advocate Malik Abbas Farooq, Advocate for the Federation.

Farooq H. Naek, Senior Advocate Supreme Court, Syed Rafaqat H. Shah, Advocate-on-Record assisted by Sheraz Shaukat Rajpar, Advocate for PPPP.

Salahuddin Ahmed, Advocate Supreme Court and Mohsin Qadir Shahwani, Advocate Supreme Court for PML-Q President.

P L D 2022 Supreme Court 686

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

HASEEN ULLAH---Petitioner

Versus

Mst. NAHEED BEGUM and others---Respondents

Civil Petition No. 1289 of 2020, decided on 23rd November, 2021.

(Against the orders of Peshawar High Court, Peshawar dated 09.03.2020 passed in W.P. No.3215-P of 2018)

(a) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.9 & 10---Dower (mehr)---Entries in columns Nos.13 and 16 of the Nikahnama---Entries in said columns are to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.

Respondent (wife) instituted a suit in the Family Court wherein amongst other things she sought recovery of her dower i.e. agriculture land (mentioned in column No. 16 of her Nikahnama). Family Court observed that the dower mentioned in column No.16 of the Nikahnama was payable only if the dower specified in column No.13 i.e. seven tolas of gold worth Rs. 1,60,000/- had not been paid, and as the respondent admitted to have received the dower of seven tola gold ornaments specified in column No.13, she was not entitled to claim the dower mentioned in column No.16 of the Nikahnama. The District Court, in appeal, endorsed this finding with the observation that agriculture land mentioned in column No.16 was to be given only in lieu of seven tola gold ornaments specified as dower in column No.13 of the Nikahnama, which the respondent had admittedly received. The High Court held that the facts and circumstances of the case clearly showed that the dower mentioned in column No.16 was in addition to, not in lieu of, the one specified in column No.13 of the Nikahnama.

Family Court and District Court acted on what the heading of column 16 prima facie suggested, i.e., the mentioning of any property that is given "in lieu of the whole or any portion of the dower", without ascertaining the intent of the parties. This approach of the said Courts is not in consonance with the settled principles of construction of contracts. Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column.It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.

Abdul Haq v. WAPDA 1991 SCMR 1436; HBFC v. Shahinshah Humayun 1992 SCMR 19 and Sandoz Limited v. Federation 1995 SCMR 1431 ref.

The figures (1) and (2) mentioned in columns Nos.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Petition for leave to appeal filed by husband was dismissed with costs throughout.

Asma Ali v. Masood Sajjad PLD 2011 SC 221 and Yasmeen Bibi v. Ghazanfar Khan PLD 2016 SC 613 ref.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance of wife---Obligation of husband---Under Islamic law a wife's right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations---Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources---Wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.

Azizah Mohd, et al., Muslim Wifes Rights To Maintenance: Husbands Duty To Maintain A Working Wife In Islamic Law (2010) 18 IIUMLJ 103; Al-Quran, Chapter 4 verses 34; Imam Muslim, Sahih Muslim, Translation by Abdal Hamid Saddiqi, Kitab al-Haj, Vol. II, pp. 615-616 and Al-Mubarakpuri, Tuhfat al-Ahwadhi bi Sharh Jamia Altarmidhi, Second Edition, Vol. 4, Maktabat al-Salafiyyah, Medina (1965), p. 326 ref.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Dower, payment of---Obligation of husband---In Islam, the payment of dower to bride at marriage is an obligation that is imposed by Allah Almighty, and is thus an intrinsic and integral part of a Muslim marriage---Dower is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her---Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity.

Tirkey, S., A critical analysis of dower (mahr) in theory and practice in British India through court records from 1800 to 1939 [Master's Thesis, the American University in Cairo]. AUC Knowledge Fountain (2020). ref.

Attaullah Khan Tangi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

P L D 2022 Supreme Court 694

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

MUHAMMAD RAFIQUE---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 301 of 2022, decided on 22nd June, 2022.

(Against the order of Lahore High Court, Lahore, dated 21.02.2022, passed in Crl. Misc. No.68979-B of 2021).

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

----S. 497(2)---Bail---Cross-version FIRs---Further inquiry---Scope and meaning of "cross-version" in a bail matter.

Mere existence of a cross-version is not a valid ground for holding the case one of further inquiry to grant bail under Section 497(2), Cr.P.C., unless it is supported by the material available on record of the case and on tentative assessment of that material, the court either finds it prima facie true or remains unable to determine even tentatively which one of the two versions is prima facie true. It is in the latter situation where the court remains unable to determine even tentatively, which one of the parties is aggressor and which one is aggressed upon, that the case against both parties falls within the scope of further inquiry under Section 497(2), Cr.P.C. The determination of "the aggressor and the aggressed upon", whether tentatively at bail stage or finally on conclusion of trial, is relevant to decide culpability of a party for the occurrence as this determination consequently decide which one of the parties was assailant and which one acted in self-defence. When a court cannot decide even tentatively, at bail stage, such culpability of a party on the basis of material on record of the case, it leaves this matter for determination on conclusion of the trial after recording the prosecution evidence and the defence evidence, if produced, and gives the benefit of the requisite further inquiry to both parties by granting them bail under Section 497(2), Cr.P.C. If the courts start considering every case involving a cross-version as one of further inquiry without any tentative assessment of the worth of the cross-version, it can encourage an accused to concoct a false or fabricated cross-version so as to bring his case within the ambit of further inquiry and thereby get bail. That is why the courts are to make a tentative assessment of the material, if any, available on record of the case in support of the cross-version at bail stage and should not readily accept it as a valid ground to treat the case one of further inquiry under Section 497(2), Cr.P.C.

Usman v. State 1975 SCMR 391; Nasir v. State 1992 SCMR 501; Arif v. Amil 2005 SCMR 1402; Hameed v. Zahid 2011 SCMR 606; Liaqat v. State 2013 SCMR 1527 and Abbas v. State 2017 SCMR 1730 ref.

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(v), 337-F(i), 337-A(i), 337-A(ii), 341, 148 & 149---Constitution of Pakistan, Art. 185(3)---Murderous assault---Bail, cancellation of---Cross-version prima facie not true---Cross-version pleaded in the present case by the accused and his co-accused was prima facie found not to be true on the basis of the tentative assessment of the material available on record---Cross-version of accused party that the complainant party had abducted the accused was not supported by any cogent material available on record of the case---Accused and his co-accused had gone over to the place of the complainant party and the occurrence had admittedly taken place there---Further, the version of the complainant party was supported by the statements of the injured witnesses and other witnesses recorded under Section 161, Cr.P.C. as well as by the medical evidence and recoveries of the alleged weapons of offence---Tentative assessment of the said and other material available on record of the case prima facie showed that it was the accused party that were the aggressor---Version of the complainant party thus prima facie appeared to be true---Fire shot that proved fatal for the deceased was attributed to the accused and the incriminating material available on record of the case provided reasonable grounds for believing that accused had committed the offence of Qatl-i-amd punishable under section 302, P.P.C., which fell within the prohibitory clause of Section 497(1), and there were no sufficient grounds for further inquiry into his guilt as envisaged by Section 497(2), Cr.P.C.---High Court had erred in law while placing reliance upon the cross-version of the accused party for holding the case against accused to be one of further inquiry, without referring to any material available on record of the case supporting it---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused by the High Court was cancelled.

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

----S. 497(5) ---Constitution of Pakistan, Art. 185(3)---Bail granted by the High Court---Grounds upon which the Supreme Court may set-aside such bail granting order---Although the Supreme Court ordinarily refrains from interfering with bail granting orders of the High Courts, it does not shy away to perform its constitutional obligation to set the matter right for the safe administration of criminal justice when a High Court has made such an order in derogation of some settled principle of law, or when the order is found to be perverse or arbitrary.

Gulzar v. Murtaza PLD 1970 SC 335; Bashiran v. Nisar PLD 1990 SC 83; Riaz v. State 2001 SCMR 1779; Nazir v. Ismail 2004 SCMR 1160; State v. Khalid 2006 SCMR 1265; Ehsan v. State 2007 SCMR 482; Ilyas v. Shahid PLD 2009 SC 146 and Sidra v. State 2020 SCMR 2089 ref.

Mushtaq Ahmad Mohal, Advocate Supreme Court (Video link - Lahore Registry) for Petitioner.

Ch. M. Sarwar Sandhu, Addl. P.G., Shabbir, S.I. for the State.

Rana M. Shahid Mehmood, Advocate Supreme Court along with Respondent No.2 (Muhammad Farooq) (Video link - Lahore Registry).

P L D 2022 Supreme Court 699

Present: Qazi Faez Isa and Yahya Afridi, JJ

NAUSHER---Appellant

Versus

PROVINCE OF PUNJAB through District Collector, Khanewal and another---Respondents

Civil Appeal No.1011 of 2016, decided on 18th August, 2022.

(Against the judgment dated 14.12.2015 passed by the Lahore High Court, Lahore in C.R. No.898-D of 2002).

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

----S. 9---Constitution of Pakistan, Arts. 4 & 199---Matters within jurisdiction of Special/Administrative Tribunals---Limited jurisdiction of Civil Courts---Scope---When a special tribunal is found to have acted not in accordance with the law under which it purportedly acted, its act does not come within the scope of the exclusionary provisions of the law that bar the jurisdiction of Civil Courts---However, the Civil Court cannot, in its limited jurisdiction of examining legality of the challenged order, record additional evidence on the disputed fact and re-decide the same, as an appellate court of the administrative tribunal---Civil Court can interfere with and set aside only such finding of the administrative tribunal which is based upon no evidence or which no reasonable person can record on the basis of the evidence available before the administrative tribunal.

In view of the general jurisdiction conferred by section 9 of the Code of Civil Procedure, 1908 ("C.P.C."), Civil Courts have the ultimate jurisdiction, even where their jurisdiction relating to certain civil matters is barred, to examine the acts, proceedings or orders of those special tribunals and determine whether or not such acts, proceedings or orders have been done, taken or made in accordance with law. Accordingly, when a special tribunal is found to have acted not in accordance with the law under which it purportedly acted, its act does not come within the scope of the exclusionary provisions of the law that bar the jurisdiction of Civil Courts.

Hamid Husain v. Government of West Pakistan 1974 SCMR 356 and Secretary of State v. Mask and Co. AIR 1940 PC 105 ref.

By examining and determining whether or not the plaintiff had been dealt with in accordance with law by the administrative tribunal or authority in making the impugned order, a Civil Court enforces right of the plaintiff to be dealt with in accordance with law (Article 4 of the Constitution), and does not deal with and decide upon the merits of the lis decided in the impugned order by the administrative tribunal or authority in exercise of its exclusive statutory power. Besides the ordinary remedy before Civil Court under section 9 of the C.P.C., an aggrieved person may invoke the extraordinary remedy before a High Court provided under Article 199 of the Constitution, for the enforcement of his constitutional right to be dealt with in accordance with law regarding matters decided by the administrative tribunal or authority. Such extraordinary remedy before High Court, however, does not affect or extinguish the ordinary remedy which may be available before Civil Courts. Both these remedies are concurrent; however, when one is availed, the other becomes barred under the principle of res judicata.

Muhammad Shafi v. Member, Board of Revenue 1985 SCMR 817; Muhammad Ashraf v. Board of Revenue PLD 1968 Lah 1155; Muhammad Anwar v. Nawab Bibi 1989 SCMR 836; Rehmat Ali v. Jan Muhammad 1983 SCMR 1109; Asif Jah v. Government of Sindh PLD 1983 SC 46; Abdul Majid v. Abdul Ghafoor PLD 1982 SC 146; Ahmad Shah v. Pakistan PLD 1979 Lah 599; Chiragh-ud-Din v. Province of West Pakistan 1971 SCMR 447 and Muhammad Shafi v. Muhammad Bakhsh PLD 1971 Lah. 148 ref.

Civil Court cannot, in its limited jurisdiction of examining legality of the challenged order, record additional evidence on the disputed fact and re-decide the same, as an appellate court of the administrative tribunal. When there exists some evidence and that evidence reasonably supports the finding recorded by the administrative tribunal, it is not the function of Civil Court to reappraise that evidence and to substitute its own finding. Civil Court can interfere with and set aside only such finding of the administrative tribunal which is based upon no evidence or which no reasonable person can record on the basis of the evidence available before the administrative tribunal.

(b) Punjab Board of Revenue Act (XI of 1957)---

----S. 5---Civil Procedure Code (V of 1908), S. 9---Matters decided by Special/Administrative Tribunals---Limited jurisdiction of Civil Courts---Scope---In cases where the Revenue authorities have acted in accordance with law, the Civil Courts have no jurisdiction---However, in cases where they had not so acted, the Civil Courts have the jurisdiction to interfere with, and strike down orders passed without lawful authority.

Muhammad Sharif v. Province of Punjab 1984 SCMR 1308; Bashir Ahmad v. Manzoor Ahmad 1987 SCMR 1620; Abdul Hamid v. Province of Punjab 1989 SCMR 1741; Alam Sher v. Muhammad Sharif 1998 SCMR 468; Muhammad Ishaq v. Abdul Ghani 2000 SCMR 1083; Muhammad Ali v. Province of Punjab 2005 SCMR 1302; Administrator v. Ali Muhammad 2012 SCMR 730; Abdul Rab v. Wali Muhammad 1980 SCMR 139; Province of Punjab v. Yaqoob Khan 2007 SCMR 554; Muhammad Khan v. Province of Punjab 2007 SCMR 1169 and Muhammad Nazir v. Ahmad 2008 SCMR 521 ref.

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

----S. 9---Constitution of Pakistan, Art. 199---Matters decided by Special/Administrative Tribunals---Limited jurisdiction of Civil Courts---Grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts stated.

Following are some of the grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts:

i. Whether the matter falls within the scope of the power conferred by the relevant statute upon the administrative tribunal making the impugned order;

ii. Whether the impugned order could have been made under the relevant statute by the administrative tribunal;

iii. Whether the impugned order states the ground/reason on which it has been made;

iv. Whether the ground/reason stated in the impugned order falls within the grounds stated by the relevant statute;

v. Whether a fair and meaningful opportunity of hearing was provided to the aggrieved person before making the impugned order; and

vi. Whether the finding recorded in the impugned order on disputed fact(s) is based on some evidence.

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

----S. 9, O. VIII, R.1, O. X, R. 1 & O. XV, Rr. 3, 4---Civil suit challenging order passed by Special/Administrative Tribunals---Procedural and evidentiary requirements that a Civil Court may adopt for such a suit stated.

A Civil Court may opt for the summary procedure provided in Rules 3 and 4 of Order XV, C.P.C., in suits challenging orders passed by Special/Administrative Tribunals and treat the complete record of the proceedings conducted by the administrative tribunal as sufficient evidence.

The defendant to whom the summons have been issued for the final disposal of the suit, may at or before the first hearing or within such time as the Court may permit, present a written statement of his defence under Rule 1 of Order VIII, C.P.C., or his pleader may make a statement admitting or denying the allegations made in the plaint, under Rule 1 of Order X, C.P.C. And the Court on such written statement, if presented by the defendant, or on such statement made by his pleader, proceeds to record the issues and direct the parties for the production of the necessary evidence, as per Rule 4 of Order XV, C.P.C.

The necessary evidence, in such suits, being the complete record of the proceedings conducted by the administrative tribunal, is such that can be produced by the parties at once. The plaintiff can, therefore, in his statement produce the certified copies of such record, and also explain his grounds of challenge to the proceedings conducted and

the order made by the administrative tribunal. Likewise, on the defendant's side, the defendant or his representative or custodian of the relevant record can in his statement produce such record of the proceedings which the plaintiff has omitted to produce, and reply to the grounds of challenge made by the plaintiff. Thus, statements of the plaintiff and of the defendant/his representative/custodian of the record along with the record of the proceedings are ordinarily sufficient evidence to decide the issue of legality of the order challenged in the suit.

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

----S. 41---Transfer by ostensible owner---Protection under S.41 of Transfer of Property Act, 1882---Pre-requisites---Such protection can only be claimed when the following conditions are fulfilled: first, the transferor is the ostensible owner; second, he is so by the consent, express or implied, of the real owner; third, the transfer is for consideration; and fourth, the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Zulfikar Khalid Maluka, Advocate Supreme Court for Appellant.

Israr-ul-Haq Malik, Addl. A.G. Punjab, Umar Iftikhar Shirazi, ADC(R), Khanewal for Respondents.

P L D 2022 Supreme Court 712

Present: Syed Mansoor Ali Shah, J

MUHAMMAD AHSAN ABID---Appellant

Versus

MAKHDOOM KHUSRU BAKHTIAR and others---Respondents

C.M. Appeals Nos.39 and 41 of 2021 in Civil Appeals No. Nil of 2021, decided on 10th August, 2022.

(Against the order dated 22.03.2021 of the Registrar, declining to entertain and register the Civil Appeals of the Appellant).

Supreme Court Rules, 1980---

----O.III, R.10, O.V, R. 1(6), O.VII, R. 7 & O.XVII, Rr. 5 & 12---Constitution of Pakistan, Art. 191---Registrar Supreme Court, powers of---Scope---Supreme Court Rules, 1980 ('the Rules') empower the Registrar to ensure that the form and presentation of the petitions or the appeals are in order according to the Rules---Registrar does not enjoy any power under the Rules to decide upon the maintainability of a petition or an appeal---Even if a petition or an appeal is prima facie non-maintainable under the provisions of the Constitution, a law or the Rules referred to by the petitioner or appellant for filing the same, still the question of maintainability of the petition or the appeal under the referred provisions is to be adjudicated by the Court on the judicial side and not by the Registrar on the administrative side.

Under the Supreme Court Rules, 1980 ('the Rules'), the powers of the Registrar are primarily covered under Order III, Rule 10, Order V, Rule 1(6), Order VII, Rule 7 and Order XVII, Rule 5, which simply regulate the practice and procedure of the Court and are merely administrative in character. The Rules empower the Registrar to ensure that the form and presentation of the petitions or the appeals are in order according to the Rules. The Registrar does not enjoy any power under the Rules to decide upon the maintainability of a petition or an appeal. The question of maintainability of a petition or an appeal is a justiciable issue that calls for adjudication, which is solely the prerogative of the Court in the exercise of its judicial power. A limited exception is, however, provided under Order V Rule 1 of the Rules where the Registrar enjoys the powers of the Court in deciding certain applications, etc., in pending cases. The power to deal with these applications, also appears to be procedural in nature and prima facie do not impinge upon the judicial power of the Court so as to decide upon the substantive justiciable issue(s) involved in the petitions or appeals.

Farman Ali v. Muhammad Ishaq PLD 2013 SC 392; P. Surendran v. State 2019 SCC Online SC 507 and Qausain Faisal v. Federation of Pakistan (Civil Miscellaneous Appeal No. 87 of 2022) ref.

Issue as to the maintainability of an appeal cannot be decided by the Registrar in the exercise of its administrative powers under the Rules nor can it be decided by a Judge hearing an administrative appeal against an administrative order of the Registrar.

A.P.N.S. v. Federation of Pakistan PLD 2004 SC 600 ref.

Order XVII, Rule 5 of the Rules provides that the Registrar may refuse to receive a petition on the ground that it is "frivolous". Frivolity of the petition is to be viewed by the Registrar in the overall constitutional construct of the Rules under Article 191 of the Constitution and within the administrative scheme of the Rules. A "frivolous" petition within the meaning of this Rule is limited to its form and presentation and no more. A petition whose form and presentation falls short in material particulars or which fails to refer to any provision of the Constitution, the law or the Rules under which it is purportedly filed will pass as "frivolous". The Registrar in such a case can refuse to receive the petition unless the petitioner fixes the form and presentation of the petition. The said Rule, however, does not vest judicial power in the Registrar to adjudicate the justiciable issue of maintainability of a petition or appeal on the ground of it being frivolous.

Fazal Muhammad v. State PLD 1987 SC 273 ref.

Even if a petition or an appeal is prima facie non-maintainable under the provisions of the Constitution, a law or the Rules referred to by the petitioner or appellant for filing the same, still the question of maintainability of the petition or the appeal under the referred provisions is to be adjudicated by the Court on the judicial side and not by the Registrar on the administrative side. Mere, prima facie non-maintainability of a petition or an appeal does not vest the jurisdiction in the Registrar to adjudicate upon the question of maintainability of such a petition or an appeal. Nor can the administrative powers of the Registrar under the Rules be employed to refuse receiving and registering such petitions or appeals which appear to him as non-maintainable. However, the (Supreme) Court can discourage the filing of outright non-maintainable, frivolous and vexatious, petitions or appeals by imposing costs on the unscrupulous petitioners or appellants under Order XVII, Rule 12 of the Rules.

Appellant in person.

Nemo for Respondents.

P L D 2022 Supreme Court 716

Present: Umar Ata Bandial, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

MUHAMMAD ANWAR (decd) through L.Rs. and others---Petitioners

Versus

ESSA and others---Respondents

Civil Petitions Nos. 3950 and 4047 of 2019, decided on 12th November, 2021.

(Against the judgment dated 13.9.2019 passed by the High Court of Balochistan Quetta in C.R. No. 106 of 2014).

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

----O. VII, R.11---Plaint rejected under O.VII, R.11, C.P.C.---Fresh suit, filing of---Principles relating to filing of a fresh suit after rejection of plaint under O.VII, R.11, C.P.C. stated.

A perusal of Order VII, Rule 11, C.P.C. reveals that it envisages and records four categories where the Court could reject a plaint. The first three are, where the deficiencies in the plaint could be redressed. For instance, under clause (a) where the plaint is rejected on the ground that it does not disclose a cause of action, subject to law of limitation, a fresh plaint could be presented by overcoming the defect and disclosing the cause of action. Likewise, under clause (b) where the plaint is rejected on failures of plaintiff to correct the valuation, again subject to law of limitation, the defect could be removed and a fresh plaint could be presented. In the same manner, under clause (c) if the plaint is rejected on failure of the plaintiff to supply the requisite stamp paper, subject to law of limitation, such defect could be remedied by supplying the court fees. However, where the plaint under clause (d) of Rule 11 is rejected on the ground that the suit is barred by any law, the filing of fresh plaint is not envisaged unless the findings declaring the suit to be barred by any law are reversed and, therefore, the withdrawal of the suit could not be allowed with the permission to file a fresh. It would of course be unlawful to revive a dead cause without bringing back the suit to life.

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

----O. VI, R. 17 & O. XXIII, R. 1---Plaintiff withdrawing his suit or abandoning part of his claim---Power of Court to allow such withdrawal with permission to file a fresh suit---Principles stated.

Order XXIII, Rule 1, C.P.C., which allows the plaintiff to withdraw his suit or abandon part of his claim, empowers the Court to allow such withdrawal with permission to file a fresh suit. However, such permission is to be granted by the Court after satisfying itself and recording reasons that unless such permission is allowed, the suit would fail by reason of some formal defect. The Court can also allow such withdrawal with permission to file a fresh suit in case where the Court is of the view that there are other sufficient grounds for allowing plaintiff to withdraw his suit with the permission to file a fresh suit. Survey of case law shows that the suit may be allowed to be withdrawn in a case where the plaintiff fails to implead necessary party, or where the suit as framed does not lie, or the suit would fail on account of misjoinder of parties or causes of action, or where the material document is not stamped, or where prayer for necessary relief has been omitted, or where the suit has been erroneously valued and cases of like nature. It is always to be kept in mind that where such defect could be remedied by allowing amendments, the Court should liberally exercise such powers but within the parameters prescribed by Order VI, Rule 17, C.P.C. Besides while exercising powers under this provision the Court must identify the defect and record its satisfaction that the defect is formal and does not go to the root of the case. It is also to be kept in mind that such withdrawal would not automatically set-aside the judgment and decree which has come against the plaintiff unless such judgment and decree is set-aside by the Court after due application of mind.

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

----O. XXIII, Rr. 1 & 2---Limitation Act (IX of 1908), S. 3---Suit barred by limitation---High Court allowing plaintiff to withdraw his time barred suit and file a fresh one---Legality---In the present case, the suit was concurrently dismissed by the Courts after having been found barred by law/time, therefore, the High Court had no power to allow withdrawal of the suit with the permission to file a fresh unless it had reversed the concurrent findings on the question of limitation---Even otherwise, if permission is granted for filing a fresh suit under O. XXIII, R. 1, C.P.C., then, pursuant to O. XXIII, R. 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court---In these circumstances, the second suit filed by the plaintiff was barred by the principle of res-judicata.

Muhammad Saeed Bacha and another v. Late Badshah Amir and others 2011 SCMR 345 ref.

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

----Ss. 3 & 5---Suit/application/appeal/review/revision barred by limitation---Condonation of delay---Discretion of Court---Parameters of discretion available with Court in condoning delay stated.

Parameters of discretion in condoning the delay in filing an application, appeal, review or revision etc. are totally different than the powers vested in Court to condone the delay occasioned in filing the suit. To cases falling in the first category; Section 5 of the Limitation Act, 1908 ('the Act') is applicable which vests the Court with vast discretion of condoning delay in cases where the Court is satisfied that the application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing the application, appeal, review or revision. On the other hand, the Courts on the original side while trying a suit as required under Section 3 of the Act are bound to dismiss the suit if it is found to be barred by time notwithstanding that the limitation has not been set up as defense. The Court has no power to condone the delay in filing the suit but could exclude time the concession whereof is provided in sections 4 to 25 of the Act only in cases where the plaintiff has set up in the plaint one of such grounds available in the Act such as disability, minority, insanity, proceedings bona fide before a Court without jurisdiction etc. and not otherwise. In fact, the language used in Section 3 of the Act is mandatory in nature and imposes a duty upon the Court to dismiss the suit instituted after the expiry of period provided, unless the plaintiff seeks exclusion of time by pleading in the plaint one of the grounds provided in sections 4 to 25 of the Act.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 ref.

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

----Ss. 3 & 5---Limitation---Waiver, pleading of---In cases where limitation is not set up in defense and consequently a waiver is pleaded, the Courts notwithstanding such waiver are bound to decide the question of limitation in accordance with law.

Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 ref.

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

----Ss. 3 & 5---Limitation---Condonation of delay---Grounds---Court has no discretion or power to condone the delay in filing the suit on humanitarian grounds or by invoking the principles of equity unless any of the grounds prescribed in the Limitation Act, 1908 is available to the plaintiff and is duly pleaded.

P.K. Rarnchandran v. State of Kerala and others (1997) 7 SCC 556 ref.

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

----Ss. 3 & 5---Limitation---Condonation of delay on oral motion---Permissibility---Oral submission for condonation of delay does not make a valid justification for condoning the delay in cases even falling under Section 5 of the Limitation Act, 1908 ('the Act')---Party seeking condonation or exclusion of time in terms of section 5 or section 3 of the Act has to explain the delay of each and every day through an affidavit and/or justify exclusion of time.

Mullah Ahmed v. Assistant Commissioner, Sibi 1986 SCMR 1624; Commissioner of Income Tax (Investigation) v. Miss. Shireen Ayub Khan 1988 SCMR 304 and Khan Muhammad v. Zainab Bibs 2000 SCMR 1227 ref.

(h) Limitation---

----Scope---Law of limitation is not a mere technicality---Once the limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away.

Asad Ali v. Bank of Punjab PLD 2020 SC 736; Ghulam Qadir v. Abdul Wadood PLD 2016 SC 712; Abdul Sattar v. Federation of Pakistan 2013 SCMR 911 and Muhammad Islam v. Inspector-General of Police 2011 SCMR 8 ref.

Zahoor-ul-Haq Chishti, Advocate Supreme Court for Petitioners (in C.P. No. 3950 of 2019).

Kamran Murtaza, Senior Advocate Supreme Court for Petitioners (in C.P. No. 4047 of 2019).

Mir Aurangzeb, Advocate-on-Record/Advocate Supreme Court for Respondents (in both petitions).

P L D 2022 Supreme Court 726

Present: Ijaz ul Ahsan and Yahya Afridi, JJ

Raja ALI ZAMAN (decd.) through L.Rs. and another---Appellants

Versus

EVACUEE TRUST PROPERTY BOARD and another---Respondents

Civil Appeal No. 668 of 2022, decided on 4th August, 2022.

(Against the judgment dated 18.01.2022 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.373 of 2022).

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 4(2)(d) & 12---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Paras. 3, 6 & 12---Sale/disposal of evacuee properties by the Evacuee Trust Properties Board (ETPB)---Rigorous and transparent process---Permission from the Federal Government---Process by which evacuee properties are sold/disposed of by the Evacuee Trust Properties Board explained.

In order for a property to be disposed of by the Evacuee Trust Properties Board (ETPB), it has to go through a rigorous and transparent process before it can be transferred to any private party. Before any evacuee land or property can be sold, it must be notified by the relevant Member Board of Revenue (Residual Properties) in the Official Gazette under para 3 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 ('the 1977 Scheme'). Once the requisite notification has been gazetted, applications need to be moved by prospective bidders to the concerned Deputy Administrator (Residual Properties) in order to become a part of the transfer process. A person in possession of the notified property/land may move an application to the concerned Deputy Administrator (Residual Properties) who is then required, under para 6 of the 1977 Scheme, to transfer the notified land on such price as may be fixed by the concerned Administrator (Residual Properties). In the other instance, where no application is received, a process of un-restricted public auction commences where two rounds of public auction have to take place as per para 12 before the notified land can be sold by the ETPB through negotiation/private treaty. Even where public auctions have failed and the ETPB resorts to disposing of the notified land under para 12, it is still important to note that negotiations can only take place after a tendering process has taken place and prospective tenderers have deposited their tenders with the ETPB. The ethos of transparency that pervades through para 12 can also be seen by the fact that all tenders need to be opened by the concerned Deputy Administrator (Residual Properties) in the presence of all other prospective tenderers or their duly authorised representatives before a bid can be accepted. The Deputy Administrator (Residual Properties) is also constrained by the fact that if the tendered price is below the reserve price, the notified land can only be sold if the competent authority in the ETPB hierarchy accords its approval. [p. 737] A

Before any land can be sold by ETPB, it has to first conduct an internal board meeting and decide whether to sell land under its management and control. If, through a Board meeting, ETPB decides to sell any land under its management and control, a resolution has to be moved and passed to that effect which would then be subject to approval of the Federal Government. This is especially important in light of the fact that the status of ETPB, as made clear in Section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 ('the 1975 Act'), is managerial and custodial. It is also important to note that the land that is managed and supervised by ETPB is not its own land/property. All land or properties managed and supervised by ETPB belong to the Federal Government and it is only after seeking permission from the Federal Government that the ETPB can be permitted to sell or dispose of land under its supervision. Therefore, it is incumbent upon ETPB to seek permission from the Federal Government before it can dispose of any land under its management or supervision. If the ETPB's Board never moves a resolution recommending sale seeks approval/permission to sell, then it will be deemed that the Federal Government's permission was never sought for the sale of ETPB-managed land. If, however, it was the Federal Government that wished to sell any of the land under the management of ETPB, the process for doing so would be to refer the matter to the ETPB's Board, allow the Board to deliberate on the matter and then give its recommendations to the Federal Government before any sale is carried out. After the Federal Government has accorded its approval, the Chairman of ETPB would then exercise authority under Section 12 of the 1975 Act to designate an officer to carry out the sale or disposal of the land/property in question in the terms laid down by the Federal Government-sanctioned Board resolution.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 4(2)(d) & 12---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Paras. 6 & 12---Sale of evacuee property by the Evacuee Trust Properties Board (ETPB)---Federal Minister approving sale of evacuee land vide a memorandum---Legality---No provision existed in the law governing the ETPB, the relevant rules or the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, which allows a Federal Minister to approve sale of evacuee land in either his discretion or in relaxation of rules---In the present case, the Minister had no power or authority on behalf of the Federal Government to approve the sale of the suit property especially so in the absence of a resolution passed by the ETPB's Board seeking permission for sale of the suit property---Being bereft of its executive nature, the impugned sale deed had been obtained without the approval of the Federal Government and was therefore illegal and void-ab-initio.

Appellants (purported vendees) approached the relevant Federal Minister as opposed to the Evacuee Trust Properties Board (ETPB), who, vide his memorandum, accorded approval for the purported sale. There is nothing on the record to suggest that the appellants had ever applied to the ETPB under Para 6 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 ('the 1977 Scheme'). No doubt if an appropriate application under para 6 had been moved by the appellants, the matter would have been taken up by the ETPB's Board, but the suit property could only have been sold subject to a resolution to that effect as well as the necessary approval of the Federal Government. Instead, the appellants approached the concerned Minister. There is no provision in the law governing the ETPB, the relevant rules or the 1977 Scheme which allows a Federal Minister to approve sale of evacuee land in either his discretion or in relaxation of rules. It is important to note that para 6 starts with the phrase: "Subject to the provisions of this Scheme..." which highlights that even if one were to assume that an application to the Federal Government via the Minister concerned was a competent application under Para 6 of the 1977 Scheme, it would still be necessary for the Federal Government to refer the matter to the ETPB's Board for deliberation. It is only after the Board had deliberated on the matter and passed a resolution for the sale of the suit property could the Federal Government have accorded their approval for a sale in favour of the appellants. A bare perusal of the memorandum issued by the concerned Federal Minister would also show that the price was determined by the Minister who was not the competent person to assess the value of the suit property under the 1977 Scheme. Since the Minister was not the competent person to be approached for the purposes of para 6 of the 1977 Scheme, no competent application had ever been moved by the appellants within the contemplation of the 1977 Scheme. In the absence of an appropriate application before the competent authority, and without it being processed in the departmental hierarchy according to the law and rules, the entire superstructure of the transaction which culminated in the impugned sale deed was based on an incompetent and unlawful exercise and therefore any and all actions taken on the basis of the Minister's memorandum were unlawful and inconsequential on the rights of ETPB/Federal Government insofar as far as ownership of the suit property was concerned.

No resolution from the ETPB's Board sanctioning sale of the suit property to the appellants was ever placed on record. There is also nothing on the record to suggest that the concerned Minister had ever directed the ETPB's Board to deliberate on the matter and pass a resolution concerning the sale of the suit property to the appellants. If there was never any resolution, then there was never any sanction of the sale either. If there was never any sanction, then there could have been no approval from the Federal Government for sale of the suit property. If there was never any approval from the Federal Government, then the sale deed itself would be illegal as well as ineffective. High Court had therefore rightly concluded that being bereft of its executive nature, the sale deed had been obtained without the approval of the Federal Government and was therefore illegal and void-ab-initio. Appeal was dismissed.

(c) Interpretation of statutes---

----Presumption---Provisions of a statute in harmony with the Constitution---Presumption is that the Legislature intends to legislate on matters in complete harmony with the Articles of the Constitution and that the Courts will give effect to the will of the Legislature which manifests itself through the laws passed by the Legislature.

M. Munir Paracha, Advocate Supreme Court for Appellants.

Hafiz Ahsan A. Khokhar, Advocate Supreme Court for Respondent No.1.

M. Amir Malik, Advocate Supreme Court/Advocate-on-Record for Respondent No.2.

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record (in C.M.A. No. 5399 of 2022).

P L D 2022 Supreme Court 743

Present: Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ

Syed RAZA HUSSAIN BUKHARI---Petitioner

Versus

The STATE through D.A.G. and others---Respondents

Criminal Petition No. 636 of 2022, decided on 10th August, 2022.

(Against the order of the Lahore High Court, Lahore, dated 28.04.2022 passed in Crl. Misc. No.20132-B of 2022).

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

----Ss. 497(1), third proviso, 497(2) & 561-A---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 5(6) & 12---Constitution of Pakistan, Arts. 9, 10A, 14 & 199---Scheduled offences under the Offences in Respect of Banks (Special Courts) Ordinance, 1965---Bail---Delay in conclusion of the trial---Principles relating to grant of post arrest bail on the ground of delay in the conclusion of trial in respect of offences falling under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 ('the Ordinance') and the Constitutional jurisdiction of the High Court to grant bail stated.

Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 ('the Ordinance') has borrowed the language of the second part of Section 497(1), Cr.P.C., which extends to offences falling under the prohibitory clause, and has made it applicable to all the scheduled offences under the Ordinance. However, the exceptions of prohibitory clause of Section 497(1), Cr.P.C. have not been so adopted and made applicable to the scheduled offences under the Ordinance. Therefore, the only ground for grant of bail in a schedule offence under the Ordinance is that which is provided in Section 497(2) Cr.P.C., that is, if the court finds that there are no reasonable grounds for believing that the accused has committed the Scheduled Offence and that there are sufficient grounds for further inquiry into his guilt.

Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599 and Chaudhry Shujat Hussain v. State 1995 SCMR 1249 ref.

Delay in the conclusion of a criminal trial is antithetic to the very concept of a fair trial and due process guaranteed by Article 10A of the Constitution. Conclusion of trial within a reasonable time is an essential component of the right to a fair trial. The prolonged pre-trial detention of the accused also defies the presumption of innocence, another essential element of the right to a fair trial.

Chairman, NAB v. Nasar Ullah PLD 2022 SC 497 ref.

In appropriate cases, a High Court can grant bail on the ground of delay in conclusion of the trial, similar to that which is available under the third proviso to section 497(1), Cr.P.C., under its inherent powers under section 561-A, Cr.P.C. to secure the ends of justice or to prevent the abuse of the process of court, but going further, a High Court also enjoys constitutional jurisdiction under Article 199(1)(c) of the Constitution for the enforcement of fundamental rights. This constitutional jurisdiction of High Courts cannot be abridged by any sub-constitutional legislation. So, while section 5(6) of the Ordinance is binding on the Special Court, it is not so on a High Court which fashions its jurisdiction on the basis of the enforcement of the fundamental rights under the Constitution. Undue delay in the trial of the accused infringes his fundamental rights to liberty, fair trial and dignity under Articles 9, 10A and 14 of the Constitution, if the delay cannot be attributed to him.

Chaudhry Shujat Hussain v. State 1995 SCMR 1249 ref.

If a High Court observes that the conclusion of the trial has been unduly delayed for no fault of the accused, thereby depriving the accused of his fundamental rights to liberty, fair trial and due process, it may, rather should, interfere to enforce these fundamental rights of the accused. In order to assess the reasonable time for the conclusion of the trial, the High Court may be guided by, and structure its discretion on the basis of, the statutory timeframe provided in the third proviso to section 497(1), Cr.P.C.

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

----Ss. 497 & 498---Constitution of Pakistan, Arts. 9, 10A, 14 & 199---Bail---Constitutional jurisdiction of the High Court to grant bail---Scope---High Court while hearing a bail petition under Sections 497/ 498, Cr.P.C, other than possessing inherent jurisdiction under Section 561-A, Cr.P.C., also enjoys its constitutional jurisdiction as a guardian of the fundamental rights of the accused---Such protective constitutional jurisdiction of the High Courts cannot be circumscribed by any sub-constitutional legislation---If a High Court while hearing a bail petition is of the view that the facts and circumstances of the case offend and impair the fundamental rights of the accused, it can grant bail in exercise of its constitutional jurisdiction without being limited by the legislation that regulates the grant of bail in the offence.

Ahmad Khan Gondal, Advocate Supreme Court (Through video link - Lahore Registry) and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Iftikhar Hussain Shah, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record for Respondent No.2.

Syed Nayab Hussain Gardezi, D.A.G. for the State.

P L D 2022 Supreme Court 751

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

SALAMAT MANSHA MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 883-L of 2022, decided on 23rd August, 2022.

(Against the order dated 12.05.2022 of the Lahore High Court, Lahore passed in Crl. Misc. No. 18600-B of 2022).

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 295-A, 295-B & 295-C---Constitution of Pakistan, Arts. 20(a) & 185(3)---Christian (man) accused of preaching Christianity, defiling the Holy Quran, using derogatory remarks and defiling the sacred name of Prophet Muhammad (pbuh)---Bail, grant of---Further inquiry---Testimony of the complainant and his friends was to the effect that the co-accused of the accused produced a book and both of them intentionally started preaching Christianity---Preaching of Christianity was not a crime nor could it be made into one because of the Fundamental Right to profess, practice and propagate one's religion---Said book, which was also mentioned in the FIR, did not contain any blasphemous material---Besides there was no material to support the allegation of preaching, and such allegation was undermined when admittedly, the accused was not stated to be a preacher, but was a simple sweeper---Accused was also far less educated than the complainant and his friends, making it difficult to accept that they would not have rebutted his purported assertions, and stood by silently for thirty minutes---Complainant took about eight hours to inform the police, even though the police station was in the immediate vicinity of the purported crime scene---Accused remained incarcerated for almost a year and a half and according to the prosecution and the police throughout this period no incriminating material was recovered from him, either at the time of his arrest or thereafter---Mobile phone of the accused was also checked but that too did not reveal any incriminating material, or material to suggest that the he had the propensity to do what he was alleged to have done---Distance of the park, where the alleged incident took place, from the college, where the complainant and his friends came from, was about ten kilometers, but there was nothing on record to show why they choose this distant park and how they got there---Significantly, others who would be present in the park and guards posted at the park did not raise their accusing finger at the accused, nor were they associated with the investigation---Charge (as framed) against the accused combined three distinct offences into one---Each offence had separate ingredients, but the charge did not state this---No allegation was made (either in the FIR or challan) with regard to the defilement of the Holy Qur'an yet the accused was also charged under S. 295-B, P.P.C.---Entire prosecution case rested on the testimony of the complainant and his three friends, however there was nothing to corroborate their testimonies---Present case was one of further inquiry, entitling the accused for bail---Petition for leave to appeal was converted into appeal and allowed, and accused was admitted to bail.

SMC No. 1 of 2014 (PLD 2014 Supreme Court 699, p. 718) ref.

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

----Ss. 221 & 222---Charge, framing of---Scope---Charge must give a brief description of the offence and a statement of essential facts which constitute the offence---Charge must convey to the accused the case he has to answer, and he must be able to properly defend the offence he is accused of having committed.

S.A.K. Rehmani v. State 2005 SCMR 364 and Muhammad Bux v. State 2021 MLD 1725 ref.

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

----Chap. XV---Offences relating to religion---Blasphemy cases---Precautions to be taken by Courts and those broadcasting and publishing information on such cases stated.

Court must avoid repeating the allegedly blasphemous allegations, also because they may needlessly hurt and enflame passions. Such cases receive wide publicity which has an adverse effect and may also jeopardize a fair trial. Irresponsible and sensational broadcasts and publications repeat what allegedly the accused had said or done; those repeating this may themselves be committing the same offence. Offences relating to religion are very serious offences and a section 295-C PPC offence prescribes only the punishment of death. Therefore, utmost care must be exercised by all concerned that no injustice in the administration of justice takes place. Many a time false allegations are leveled to settle personal scores and cases are also registered for mischievous purposes or on account of ulterior motives.

Punjab Religious Book Society v. State PLD 1960 Lah. 629; Muhammad Mahboob v. State PLD 2002 Lah. 587 and Ayub Masih v. State PLD 2002 SC 1048 ref.

With regard to the offences relating to religion the position of the State is predominant, and the State is responsible for prosecuting these offences. If in such cases a private complainant takes too keen an interest it may impinge on his credibility and may be indicative of mischief or an ulterior motive. However, in quite a few cases it has been noted that complainants grandstand and are joined in by others who try to pressurize the prosecution and the Courts.

(d) Criminal trial---

----Corroborative evidence---Scope and object---Corroboration means support or confirmation and corroborative evidence is some evidence other than the one it confirms---Corroboration minimizes errors in judicial proceedings and is dictated by prudence -- Object of corroboration is to ensure the conviction of the guilty and to prevent that of innocents---However, corroboratory evidence does not convert an unreliable witness, or evidence, into a reliable one.

Director of Public Prosecutions v. Kilbourne (1973) Appeal Cases 729; Director of Public Prosecutions v. Boardman (1975) Appeal Cases 421 and Irshad Ahmad v. State 1990 PCr.LJ 374 ref.

(e) Islamic jurisprudence---

----Taking law into one's own hand---Mob lynching and violence---Prohibition in Islam---Law prohibits the taking of the law into one's hands, let alone to cause hurt or death, and this protection is also fully applicable to one who may be guilty---In Islamic jurisprudence even if a person has been found guilty and sentenced to death, the sentence cannot be executed by one who is not so authorized, and if he kills the convict, he is liable for the offence of iftiyat (wasting the right of the State) and is to be punished.

Sarakhsi al-Mabsut, Vol. 9, p. 121; Ibn 'Abidin al-Shami 1784-1836; Radd al-Muhtar, published by Mustafa al-Babi, Cairo, Vol. 3, p. 176.; Ibn 'Abd al-Barr al-Andalusi (978-1071), al-Tamhid, published by Ministry of Awqaf and Islamic Affairs, Morocco, 1967, vol. 21, p. 256; Abu Ishaq al-Shirazi (1003-1083), al-Muhadhdhab, published by Dar al-Kutub al-'Ilmiyyah, Beirut, 2002, vol. 3, 258 and Sarakhsi, Sharh al-Siyar al-Kabir, published by Dar al-Kutub al-'Ilmiyyah, 1997, vol. 3, p. 126 ref.

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

----Chap. XV---Offences relating to religion---Standard of proof---Islamic jurisprudence considers offences relating to religion to be offences against God; they pertain to the rights of God in the terminology of Islamic jurists who categorize these offences as hadd offences---To establish the guilt of an accused in a hadd offence, as per Islamic jurisprudence, requires the highest, or best, form of evidence, and any doubt exonerates the accused.

Abu-Yusuf (729-798), Kitab al-Kharaj, published by Dar al-Ma'rifah, Beirut, 1979, pg. 152; 'Ala' al-Din al-Haskafi (1616-1677) Musnad Abi-Hanifah, Kitab al-Hudood, Hadith No. 4; Abu-'Isa al-Tirmidhi (824-892), Sunan, Ch. 15, Hadith No. 1424; Muhammad ibn al-Hassan (749-805), Kitabl al-Asl, published by Dar Ibn Hazm, Beirut, 214, Vol. 7, p. 150; Ayub Masih v. State PLD 2002 SC 1048 and Sharia: Theory, Practice, Transformation, Cambridge University Press 2009, Part II, Chapter 10, p. 246 ref.

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

----Chap. XV---Constitution of Pakistan, Art. 10-A---Offences relating to religion---Case based on oral testimony of complainant---Corroboration---Abiding by Islamic jurisprudential principles, applying the constitutionally guaranteed right to fair trial and due process, and acting prudently to ensure that an innocent is not convicted wrongly in respect of offences relating to religion, when there is only the improbable oral testimony of witnesses, then there must be corroboration---Oftentimes righteous zeal, moral outrage, and/or indignation also steers the prosecution to a pre-determined destination by eclipsing the general standard of proof in criminal cases; that is, beyond reasonable doubt.

Naveed Asghar v. State PLD 2021 SC 600; Salman Rafique v. National Accountability Bureau PLD 2020 SC 456 and Rahmat v. State PLD 1977 SC 515 ref.

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

----Ss. 156 & 156-A---Investigation by police---Investigating officer is prohibited to discriminate or give preference on religious grounds.

Abdul Hameed Rana, Advocate Supreme Court for Petitioner (Through video-link from Lahore).

Ch. Muhammad Sarwar Sidhu, Addl. Prosecutor-General, Punjab, Asim Iftikhar, IO/SP, Model Town, Lahore and Sohail Kazmi, DSP, Model Town, Lahore for the State.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for the Complainant.

P L D 2022 Supreme Court 764

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

TAHIRA BATOOL---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 910 of 2022, decided on 19th August, 2022.

(Against the order of Islamabad High Court, Islamabad dated 14.06.2022 passed in Crl. Misc. No. 733-B of 2022).

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

----S. 497(1), first proviso---Non-bailable offence---Bail---Female accused---Scope and extent of the first proviso to section 497(1), Cr.P.C. stated.

The first part of section 497(1), Cr.P.C. provides that if a person accused of a non-bailable offence is arrested, he may be released on bail. Because of the enabling expression, "may be released on bail", used in this part, read with the basic principles of criminal justice, the grant of bail in a non-bailable offence that does not fall within the second part of section 497(1), Cr.P.C. is said to be a rule and refusal, an exception. The second part of section 497(1), Cr.P.C. provides that an accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. This part of section 497(1), Cr.P.C. which prohibits the grant of bail in certain offences is popularly known as the prohibitory clause of section 497(1), Cr.P.C.

However, the first proviso to section 497(1), Cr.P.C. provides that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. The expression "such an offence" used in this proviso refers to the offence mentioned in the second part (prohibitory clause) of section 497(1), Cr.P.C., as for all other non-bailable offences the Court is already empowered to release the accused on bail under the first part of section 497(1), Cr.P.C. The first proviso has thus made equal the power of the Court to grant bail in the offences of prohibitory clause alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, to its power under the first part of section 497(1), Cr.P.C. This means that in cases of women, etc., as mentioned in the first proviso to Section 497(1), irrespective of the category of the offence, bail is to be granted as a rule and refused as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C.

Fazal Elahi v. Farah Naz 1979 SCMR 109; Liaquat Ali v. Bashiran Bibi 1994 SCMR 1729 and Zakir Jaffer v. State 2021 SCMR 2084 ref.

The exceptions for refusing bail in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. are therefore also applicable to the accused who pray for bail under the first proviso to section 497(1), Cr.P.C. in an offence falling within the prohibitory clause. These exceptions are well settled. They are likelihood of the accused: (a) to abscond to escape trial; (b) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; or (c) to repeat the offence keeping in view his previous criminal record, nature of the offence or the desperate manner in which he has prima facie acted in the commission of offence.

Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Muhammad Tanveer v. State PLD 2017 SC 733 and Iftikhar Ahmad v. State PLD 2021 SC 799 ref.

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

----S. 497(1), first proviso---Penal Code (XLV of 1860), Ss. 395 & 412---Constitution of Pakistan, Art. 185(3)---Dacoity---Female accused---Bail, grant of---In cases of women as mentioned in the first proviso to section 497(1), Cr.P.C, irrespective of the category of the offence, bail was to be granted as a rule and refused as an exception---Persons involved in the commission of offences of robbery or dacoity were usually professional criminals and there was a likelihood that they would repeat the offence if enlarged on bail, but the case of the present female-accused was distinguishable as she was working as a maid in the house of the complainant as per his own version, therefore, she did not appear to be a professional robber or dacoit and the Court did not find likelihood of her repeating the offence if released on bail---Petition for leave to appeal was converted onto appeal and allowed, and accused was admitted to post-arrest bail.

Muhammad Shahzad Siddiqui, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Jahangir Khan Jadoon, Advocate General Islamabad along with S.I. Asif Ali for the State.

P L D 2022 Supreme Court 769

Present: Qazi Faez Isa and Yahya Afridi, JJ

FIRST DAWOOD INVESTMENT BANK LTD., KARACHI---Appellant

Versus

BANK OF PUNJAB through President, Lahore---Respondent

Civil Appeal No. 1003 of 2019, decided on 18th August, 2022.

(Against the order dated 23.01.2019 passed by the High Court of Sindh at Karachi in J. C.M. No. 55 of 2009).

(a) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 305(e) & 306(1)(a)---Winding up of company---Default in payment of debt---Presumption after serving of notice---Legislature has, vested the creditor with an advantage, that when the creditor has served upon a company, a statutory notice under section 306(1)(a) to pay its debt, and the company has neglected to pay the debt, within the stipulated thirty days, a presumption by a legal fiction is created in favour of the creditor, that the company is unable to pay its debt due to the creditor.

(b) Companies Ordinance (XLVII of 1984) [since repealed]---

----S.306(1)(a)---Winding up of company---Default in payment of debt---Phrase 'neglect to pay' used in section 306(1)(a) of the Companies Ordinance, 1984 ('the Ordinance)---Words 'neglect to pay' expressed in section 306(1)(a) of the Ordinance, refers to a refusal of the company to pay without any reasonable cause---If the company raises a bona fide dispute, as to its liability to pay the amount claimed by the creditor, then in that case, there can be no 'neglect to pay' by the company, within the meaning of section 306(1)(a).

In Re: London and Paris Banking Corporation (1874) LR 19 Eq 444,445; Palmer on Company Precedents (17th Edition, Part: II) and Messrs Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1 ref.

(c) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 305(e), 306(1)(a) & 309---Winding up of company---Default in payment of debt---Principles pertaining to winding up of a company that is unable to pay its debt, and the presumption of law deeming the company of being unable to pay its debt in such commercial state, as provided in section 305(e) & section 306(1)(a) of the Companies Ordinance, 1984 stated.

Following are some of the general principles pertaining to winding up of company that is unable to pay its debt, and the presumption of law deeming the company of being unable to pay its debt in such commercial state, as provided in section 305(e) and section 306(1)(a) of the Companies Ordinance, 1984 ('the Ordinance') respectively:

(i) That if a debtor company is merely unwilling to pay its debts but otherwise is commercially solvent, then the normal remedy available to a creditor is a suit for the recovery of the amount and not a petition for winding up;

(ii) That if the Court finds that the negligence on the part of the debtor company to pay the sum demanded in terms of clause (a) of subsection (1) of section 306 of the Ordinance is not on account of want of commercial solvency, but because of bona fide dispute based on a substantial ground as to the entitlement of the creditor to the amount demanded, application under section 306 read with section 309 of the Ordinance will not be sustainable. The question whether a dispute raised by the company regarding the claimed debt is bona fide or not depends upon the circumstances of each case. It will always be a question of fact, as to whether the company has a bona fide dispute to the debt claimed by the creditor-petitioner. The litmus test, however, would be to adjudge, whether the dispute raised by the company is only to avoid payment of the debt, and is not based on a substantial ground. In cases where the company sets up a bona fide dispute, based on a substantial ground, to the debt claimed by the creditor, the company court is to refuse an order of winding up. The principle on which the company courts are to act, in this regard, is to see: first, whether the dispute raised by the company is one of substance; secondly, whether the dispute is likely to succeed in point of law; and, thirdly, whether the company has adduced prima facie proof of the facts on which the dispute depends. If the facts of the case suggest that the debt is substantially disputed, then to continue with the winding-up proceedings would be an abuse of the process of the court;

(iii) That clause (a) of subsection (1) of section 306 of the Ordinance raises a presumption as to the fact that the debtor company is deemed to be unable to pay its debts, if in spite of the receipt of demand in terms of the above clause, the debtor company neglects to pay the sum demanded within thirty days of the receipt of notice of demand, or neglects to secure or to compound for it to the reasonable satisfaction of the creditor. But this presumption is rebuttable by the debtor company, if it can show that it is commercially solvent and is in a position to meet its liability on due dates;

(iv) In cases where there is a mere omission of the company to comply with the statutory notice, it would not always lead to the conclusion that the company had admitted its liability and is unable to pay the debt. The fundamental question to be decided, in order to bring about the enforcement of the deeming provisions of section 306(1)(a) of the Ordinance, is whether there exists any debt or not, which the company is liable to pay to the petitioning-creditor. If there is a genuine dispute to the very existence of the debt, the question of applying the deeming provision, that the company is unable to pay its debt, would not arise. On the other hand, in cases where there is non-compliance of the statutory notice demanding payment of the debt owed by the company, and the company has placed no material before the company court to be satisfied that there is a bona fide dispute to the claim of the creditor or that the company is solvent and able to pay the debt, then the company court may pass a winding-up order; and

(v) High Court in its winding up jurisdiction cannot conduct a detailed analysis and minute examination of the facts to determine the complex questions of law, as to the liability arising under a contract of guarantee or some other financial contract; and more so, when debt claimed by the creditor is disputed on the grounds that prima facie make out a bona fide dispute; and thus, in such circumstances, the High Court should show restraint from passing a winding up order of the company, as the proper forum for determination of such a bona fide dispute is the civil court or the banking court, as the case may be.

Messrs Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1; Wimco Ltd. v. Sidvink Properties Ltd. (1996) 86 Comp. Cas. 610; Advent Corporation Ltd. 1969 Comp. Cas 463; Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (1972) 42 Comp. Cas. 125 and Mann v. Goldstein (1968) 1 W.L.R. 1091 ref.

(d) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 305(e)---Winding up of company---Default in payment of debt---Word "may" used in section 305 of the Companies Ordinance, 1984 ('the Ordinance') for the company court to admit the winding-up petition---Connotation and scope---Word 'may' clearly denotes the discretionary nature of the jurisdiction vested in the company court to pass a winding-up order---Company court must, first and foremost, be fully cognisant that it is called upon to examine the merits of the need of a winding-up order, and not settling disputes of a civil nature that may arise out of a contract or obligations arising under an agreement.

Kamadenu Enterprises v. Vivek Textile Mills P. Ltd. (Kar.) (1984) 55 Comp. Cas. 68 ref.

(e) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 305(e), 306(1)(a) & 309---Petition for winding up of company due to default in payment of debt---Maintainability---Pending civil suit does not bar a petition for winding up of a company.

Muhammad Ali Raza, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Khurram Raza, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (absent) for Respondents.

P L D 2022 Supreme Court 783

Present: Umar Ata Bandial, C.J. and Syed Mansoor Ali Shah, J

UZMA NAVEED CHAUDHARY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos. 1347 and 1655 of 2019, decided on 27th July, 2022.

(Against the judgment of Islamabad High Court, Islamabad, dated 08.02.2019, passed in Writ Petition No.289 of 2017).

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Interference in findings of fact---High Court cannot interfere, in its constitutional jurisdiction, with findings of fact recorded by the competent courts, tribunals or authorities unless such findings are the result of misreading or non-reading of the material evidence or based on no evidence, which amounts to an error of law and thus justifies, rather calls for, interference.

Mohibullah & Co. v. Bahauddin 1990 SCMR 1070; Mahmooda Begum v. Taj Din 1992 SCMR 809; Muhammad Suleman v. Zubaida Bibi 1996 SCMR 1965; Haider Khan v. Mustareen PLD 2001 SC 207; Lehrasab Khan v. Aqeel-Un-Nisa 2001 SCMR 338; Arshad Mahmood v. Additional District Judge 2001 SCMR 516; Muhammad Sadiq v. Elahi Bakhsh 2006 SCMR 12; Allies Book Corporation v. Sultan Ahmad 2006 SCMR 152; Shajar Islam v. Muhammad Siddique PLD 2007 SC 45; S.L.I.C. v. Jaffar Hussain PLD 2009 SC 194 and Waqar Haider v. JFC 2009 SCMR 1243 ref.

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

----Ss. 8(5) & 9---Conviction and punishment---Reasons provided by the Federal Ombudsperson or President---Reasons for imposing a particular penalty (punishment), after the determination of culpability (conviction), though are distinct and separate from the proof of the allegation (charge), but they need not bear a separate heading or be narrated in a listed or compact form (in the order of the President or Ombudsperson)---Such reasons may, and ordinarily do, form part of the discussion on the overall facts and circumstances of the case.

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

----S. 9---Controller Incharge of Pakistan Television Corporation (PTV) News---Allegation of molesting and sexually harassing female anchorpersons---Minor penalty of censure and payment of compensation imposed by the Federal Ombudsperson---President enhancing said penalty to major penalty of removal from service---Legality---In the facts and circumstances of the case, the enhancement of punishment by the President, of the respondent (accused) who had a previous service record involving moral turpitude and had caused harassment, in the present case, to the female employees working under his supervision and control, at different times, was completely justified for creating a safe working environment for women and for fulfilling the objectives of the Protection against Harassment of Women at the Workplace Act, 2010---High Court had wrongly interfered with and set aside the President's order.

For enhancing the penalty of the respondent, the President had observed that the respondent (accused) was involved in the molestation and harassment of the petitioners (female victims); that the petitioners had no grudge to falsely implicate the respondent in such heinous allegation; that the petitioners were respectable women, working for several years in PTV, and had never lodged any complaint of sexual harassment against any of their colleagues or superiors; that the petitioners were well-educated women and leading happy family lives, and it was not expected from them to level such allegations against the respondent without substance; that the respondent was in habit of using filthy and threatening language for his subordinates and colleagues; that the conduct of the respondent had remained immoral throughout his service career; and that the purpose of punishment was not only reformatory but also creating deterrence against heinous crimes, such as, the sexual harassment at the workplace. High Court in its impugned order failed to appreciate that the President had given due and judicious consideration to the facts and circumstances of the case for enhancing the punishment of the respondent. In view of the said observations of the President, the ground furnished by the High Court for setting aside the President's order was legally not sustainable.

Respondent had meanwhile retired from service and stayed mostly out of the country. In view of this development, and in order to effectively implement the punishment awarded to the respondent and to recover the compensation from the pension of the respondent in case he failed to pay it, Supreme Court converted his punishment from 'removal from service' into 'compulsory retirement' along with payment of Rs.500,000/ as compensation to be paid by him to each of the petitioners, including a pro forma respondent, who was also his victim, to best serve the ends of justice in the present case. Supreme Court directed that amount of compensation shall be recovered from arrears of pay (if any), pension emoluments or any other source (property) of the respondent.

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

----S. 8(1)---Complaint filed before the Ombudsperson---Delay in filing complaints for incidents of harassment---Such delay is not material due to social taboos---Courts, tribunals and authorities concerned must take a lenient view on the delay in filing the complaint by the victim and decide the case on merits.

Delay in lodging complaints for incidents of harassment is understandable. In our social and cultural setting where prevailing notions of family honour and taboos play a dominant role, it is not easy for a woman to speak up about such deeply disturbing incidents. There is also the apprehension of counter allegations hurled against her character by the delinquent. For these and other reasons, many cases of sexual harassment remain unreported. Victims of sexual harassment who exhibit the courage to report the matter against all odds should not, therefore, be turned away on the ground of delay in lodging the complaint. The courts, tribunals and authorities concerned must take a lenient view on the delay in filing the complaint by the victim and decide the case on merits. This will encourage victims to come forward to seek justice. The principle enunciated by the Supreme Court in several criminal cases involving sexual assault, that delay in reporting the incident to the police in such cases is not material, equally applies to the complaints of sexual harassment made under the Protection against Harassment of Women at the Workplace Act, 2010.

Irfan Ali v. State PLD 2020 SC 295; Zahid v. State 2020 SCMR 590; Nasreen Bibi v. Farrukh Shahzad 2015 SCMR 825; Yasmin v. Majid 2008 SCMR 1602; Muhammad Abbas v. State PLD 2003 SC 863; Mehboob Ahmad v. State 1999 SCMR 1102 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

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

----Preamble---Constitution of Pakistan, Art. 34---Objectives of the Protection against Harassment of Women at the Workplace Act 2010, highlighted.

As evident from its Statement of Objects and Reasons, Preamble and substantive provisions, the objective of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') is to actualize the right of women to join a profession or occupation of their choice, where they are treated as an equal with dignity and honour, and feel safe that their working environment is free of harassment, abuse and intimidation. The Act gives effect to Article 34 of the Constitution which provides that "steps shall be taken to ensure full participation of women in all spheres of national life". The Act opens pathways for women to participate more fully in the development of the country at all levels, and ensures equal opportunity for them to earn their livelihood in a safe working environment. The Act also promotes the standards set by international commitments of Pakistan under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the ILO Discrimination (Employment and Occupation) Convention.

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

----S. 2(h)(ii) [as substituted by the Protection against Harassment of Women at the Workplace (Amendment) Act (V of 2022)]---Harassment---Scope---Gender-based discrimination---Any conduct that is rooted in gender-based discrimination and creates an abusive and hostile working environment is harassment under the Protection against Harassment of Women at the Workplace Act, 2010, which is not restricted only to conduct that is related to the act of sex---Many forms of pervasive harassment in the workplace, including denial of equal opportunities as well criticism of one's abilities on the basis of gender, also comes within the ambit of harassment.

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

----S. 2(e) [as substituted by the Protection against Harassment of Women at the Workplace (Amendment) Act (V of 2022)]---Transgender person---Scope of the Protection against Harassment of Women at the Workplace Act, 2010 is not restricted to women only but it protects everyone - male, female and transgender persons.

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

----Preamble---Constitution of Pakistan, Arts. 9, 14, 18 & 25---Constitutional foundations of rights to 'gender equality' and 'safe working environment', explained.

Viewing the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') on a constitutional plane, the right to a safe working environment for all genders including male, female and transgender, free of harassment, abuse and intimidation draws its real strength from the fundamental rights guaranteed under the Constitution: right to life includes the right to livelihood, and thus assumes the right to a safe working environment for everyone, especially women, for earning such a livelihood; intimidating, hostile, abusive and offensive workplace environment offends the right to livelihood and the right to life of a person; right to liberty includes the right to agency, choice and freedom to join any profession or occupation of ones choice; right to enter upon any lawful profession or occupation, carries an inbuilt protection to make and execute such a choice. Any act of harassment done by any person that affects the free choice to enter and continue any lawful profession or occupation would amount to threatening the safety of the working environment. Only a safe working environment meets the constitutional standard of fundamental rights guaranteed under Articles 9 and 18 of the Constitution. These rights read with the rights to dignity, equality and protection against discrimination on the basis of sex under Articles 14 and 25 construct the constitutional foundations of 'gender equality' which ensures safe working environment for all genders, free from all forms of harassment, including sexual harassment.

Province of Punjab v. Kanwal Rashid 2021 SCMR 730; Imran Sajid v. Managing Director 2015 SCMR 1257; Abdul Wahab v. HBL 2013 SCMR 1383; SMC No.13 of 2009 PLD 2011 SC 619 and Abid Iqbal v. Secretary Prosecution PLD 2010 SC 841 ref.

(i) Constitution of Pakistan---

----Art. 14---Right to dignity---Meaning and scope of right to 'dignity', stated.

Dignity is an inherent and inseparable right of a human being and has thus been guaranteed by the Constitution as an absolute, non-negotiable and inviolable fundamental right that is not subject to any qualification, restriction or regulation. Dignity values the worth of each person and requires the recognition of each person's worth to be held in equal measure for all. It is harmed when individuals are marginalized, ignored or devalued, and is enhanced when the full place of all individuals within the society is recognized. The universal value of human dignity provides that "all human beings are born free and equal in dignity and rights. It shuns patriarchy, misogyny and the age-old archaic and dogmatic social norms, and nurtures progressive and forward-looking constitutional ideals of liberty, equality and social justice.

Erin Daly et al, Dignity law: Global Recognition, Cases, and Perspectives (2020) p. 191; Law v. Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 and The Universal Declaration of Human Rights 1948, Article 1 ref.

Sardar M. Ashfaq Abbasi, Advocate Supreme Court for Petitioners (in C.P. No.1655 of 2019).

Dr. G.M. Chaudhary, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.P. No.1347 of 2019).

Nazir Jawwad, Advocate Supreme Court for PTV.

P L D 2022 Supreme Court 795

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

ADEEL RASHEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No. 1667 of 2021, decided on 29th August, 2022.

(Against the order dated 22.06.2021 of the Lahore High Court, Rawalpindi Bench passed in Crl. Revision No. 158 of 2020).

(a) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5(2)---Probation order---Community service order---Positive aspects of a community service order stated.

In some countries a probation order is referred to as a community service order. Following are the positive aspects of a community service order:

(i) Restricts growth of prison numbers;

(ii) Reduces prison expenditure;

(iii) Enables offenders to 'pay back' for their wrongdoing;

(iv) Does not target the families of offenders;

(v) Helps combat experience of alienation in offenders by providing them with an opportunity to perform constructive work in the community;

(vi) Promotes social integration by enabling offenders to associate with volunteers and the recipients of their assistance;

(vii) Reparation by offenders in an atmosphere of co-operation with the community and not in confrontation with authority;

(viii) Reparation has an intrinsic moral value of its own, and on another view, reparation finds its greatest justification in ensuring that the offender does not enjoy the fruits of his crime;

(ix) Provides offenders with the opportunity to participate in society and to develop a sense of social responsibility;

(x) Undertake constructive work in the community; and

(xi) Provides a cheap humane way of rehabilitation, contains an element of 'bite', and is flexible.

Professor Shane Kilcommins, Faculty of Law, University College Cork, Ireland, The Introduction of Community Service Orders: mapping its 'conditions of possibility'. ref.

A probation order which mandates community service benefits the offender, the community and the State, as it saves the expense of keeping a convict imprisoned, and it also prevents the overcrowding of prisons. The convict's family unit is also not disrupted, and he may also retain his employment, and if he is studying continue to do so. It is less damaging to self-esteem and prevents exposure to undesirable elements in jail. In doing community service the convict pays back to society for his wrongdoing. Community service may also develop in the convict a sense of social responsibility and a sense of personal achievement.

A community service order (or a probation order, which includes community service) benefits the State, society and the concerned individual. Another positive is that there is a significant reduction in the rates of reoffending' or recidivism.

Kiba Daniel Kurui, A Study on Community Service Order in Uasin Gishu County in Kenya, 2008, published by Grin Verlag, 2019. ref.

(b) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5(2)---Probation order---Community service order---Islamic jurisprudence on community service orders and their history stated.

The first recorded use of what may be akin to a community service order was by Prophet Muhammad (peace and blessings be upon him) when after the Battle of Badr a prisoner could earn his freedom by teaching ten Muslims to read and write. A renowned Muslim jurist (Ibn Qayyim al-Jawziyyah (1292-1350) a disciple of Ibn Taymiyyah (1263-1328) uses the phrase fida' bil 'amal with regard to the Battle of Badr prisoners who had secured their release on teaching, which would translate as, securing release on account of your deeds. This may also constitute futuwwah. [p. 803] C

Muqatil ibn Sulayman (702-767), Tafsir Muqatil, published by Dar Ihya al-Turath al-Arabi, Beirut, 2003, vol. 2, p. 129; Abu Ubayd al-Qasim bin Sallam (774-838), Kitab al -Amwal, published by Dar al-Hady alNabawiyy, Egypt, 2007, vol. 1, pp. 308-309; Muhammad ibn Sa'd (784-845), al Tabaqat al-Kubra, published by Dar al-Kutub al-'Ilmiyyah, Beirut, 1990, vol. 2, p. 16; Ahmad ibn Hanbal (780-855) and Musnad Ahmad, Chapter; Musnad of 'Abdullah ibn Abbas, Hadith No. 2216. ref.

Futuwwah in Islam is the spiritual ethical concept of chivalry, mercy, altruism, and generosity. It is stated to be derived from the noted character of Prophet Muhammad (peace and blessings be upon him) as mentioned in the Holy Qur'an, that he possessed a magnificent character. Therefore, emulating Prophet Muhammad (peace and blessings be upon him) is praiseworthy, and he had said, 'I was sent only to perfect character/morality'. Futuwwah are good deeds and Almighty Allah commands to do justice and good deeds. Some exegetes are of the view that those who have a sound heart have the components of futuwwah. Reducing/setting aside the rigors and the alienation of imprisonment and substituting it with reformative community service can be said to be the futuwwah of the victim (or that of the community, expressed through the State). A probation order which includes rendering of community service may also operate as fida' bil 'amal.

Kitab al-Futuwwah, translated by Sheikh Tosun Bayrak al-Jerrahi al-Halveti, New York, 1983; Abdullah ibn al-Muqaffa (724-759), al-Adab al-Saghir, Dar Ibn al-Qayyim, Alexandria, p. 9; Abu Bakr al-Bayhaqi (994-1066), al-Sunan al-Kubra, Chapter 66, Hadith 20782; Al-Qur'an, surat An-Nahl (16) verse 90; Fakhr al-Din al-Razi (1150-1210), Al-Tafsir al-Kabir, Dar al-Fikr, Beirut, 1981, vol. 24, p. 151 and Al-Qur'an, surat Ash-Shu'ara' (26) verse 89. ref.

(c) Enforcement of Shari'ah Act (X of 1991)---

----S.4---Constitution of Pakistan, Art.227---Methods of statutory interpretation---Islamic Shari'ah---Islamic Shari'ah, which includes analogous precedents from Islamic jurisprudence is a legally acceptable method of statutory interpretation.

(d) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5(2)---Probation order---Bond executed by the convict---Unpaid community service, condition of---Whether a condition can be prescribed in the probation order and in the bond to be executed by the convict whereby he/she is made to do unpaid community service---Held, that the Probation of Offenders Ordinance, 1960 does not exclude incorporating unpaid community service into a probation order---Prosecution, and the courts, keeping in view the nature of the offence provided the Ordinance permits should consider the request of a convict volunteering to do unpaid community service, and if appropriate, release the convict on probation by incorporating unpaid community service as part of the conditions of the probation order.

(e) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Penal Code (XLV of 1860), S. 489-F---Probation order---Unpaid community service---Petitioner (convict) was convicted under Section 489-F, P.P.C. and sentenced to one year rigorous imprisonment with a fine of Rs. 45,000/---Petitioner sought his release on probation under the Probation of Offenders Ordinance, 1960 ('the Ordinance')---Held, that the petitioner was a young man without a criminal record; the preconditions (mentioned in section 5 of the Ordinance) for making a probation order were met---Petitioner agreed not to commit any crime during the duration of his probation---Petitioner agreed to pay the fine amount to the complainant and also agreed to remain on probation for a period of one year doing unpaid community service of one hundred hours, by the work assigned to him by the Parks and Horticulture Authority, under the supervision of the probation officer, thus, he shall be released on probation subject to his furnishing a personal bond in the said terms---Trial Court shall order the release of the petitioner on probation upon the petitioner submitting the said bond, which incorporated the said conditions---Supreme Court directed that if the petitioner fails to observe any of the conditions of his bond the Court may issue summons or warrant of his arrest, and, if after hearing the petitioner, the Court is satisfied that he has failed to observe any of the conditions of his bond, the Court may sentence him by restoring his original sentence and if the petitioner fails to pay the compensation amount he shall be dealt with in terms of Section 6(3) of the Ordinance---Petition for leave to appeal was converted into appeal and partly allowed accordingly.

Ansar Nawaz Mirza, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Additional Prosecutor-General, Punjab for the State.

Complainant in-person.

P L D 2022 Supreme Court 806

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

GHULAM RASOOL---Petitioner

Versus

The STATE---Respondent

Jail Petition No.249 of 2018, decided on 1st September, 2022.

(Against the order of Lahore High Court, Multan Bench dated 31.01.2018 passed in Crl. A. No. 235 of 2012 and Crl. R. No.125 of 2012).

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

----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Prevalent practice in rural areas of referring to persons by their nicknames (aliases)---Discrepancy in the name of accused mentioned in the FIR and the name of the convict---Whether there was doubt as to identity of accused---Counsel for the petitioner submitted that one "Rasool Bakhsh" was mentioned in the FIR to have caused the injury to the deceased and there was no explanation on record of the case that the present accused, "Ghulam Rasool", was the same person mentioned in the FIR, therefore, it created a reasonable doubt as to the involvement of the accused in the commission of the alleged offence, which entitles him to be acquitted---Validity---Complainant and the accused were residents of the same vicinity, and throughout the proceedings of the case from the arrest of the accused till his conviction, no question as to the identity of the accused was ever raised---In rural areas of the province, where the occurrence took place, it was a matter of common knowledge that people were usually known by their nicknames (aliases), and their exact names were often not known to others---Alias of accused i.e. "Rasoola", was also mentioned in the FIR together with name "Rasool Bakhsh"---Accused, in the present jail petition, had himself mentioned his name as "Ghulam Rasool" alias "Rasoola"; his name, "Ghulam Rasool" alias "Rasoola", was mentioned in the investigation proceedings including the recovery memos, in the Challan, in the statements of the prosecution witnesses and in his own statement recorded under Section 342, Cr.P.C.---Contention as to doubt of the identity of the accused was therefore found baseless---Petition for leave to appeal was dismissed and leave was declined.

(b) Constitution of Pakistan---

---Art. 185(3)---Discretionary jurisdiction vested in the Supreme Court under Article 185(3) of the Constitution, exercise of---Scope---In the matter of granting leave to appeal, the Supreme Court does not function as an ordinary court of appeal, and in order to justify the grant of leave to appeal it must be shown that the case involves some important question of law or the impugned finding of fact is the result of gross misreading or non-reading of the material evidence or is so shocking or improbable that no reasonable person could have arrived at it on the basis of the evidence available on the record of the case.

Syeda B.H. Shah, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, Addl.P,G, Punjab for the State.

Sardar Usman Sharif Khosa, Advocate Supreme Court for the Complainant.

P L D 2022 Supreme Court 809

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Munib Akhtar, JJ

EFU GENERAL INSURANCE LIMITED---Petitioner

Versus

ZHONGXING TELECOM PAKISTAN (PRIVATE) LIMITED (ZTE) and others---Respondents

Civil Petition No.607 of 2021, decided on 8th June, 2021.

(On appeal from the judgment dated 12.11.2020 passed by the Islamabad High Court, Islamabad in R.F.A. No. 196 of 2015.).

Contract Act (IX of 1872)---

----S. 126---Demand guarantee/performance bonds---Enforcement of such instruments---Principles relating to enforcement of rights and liabilities of surety/Bank, principal debtor and creditor under demand guarantee stated.

Demand guarantees are regarded as being in nature similar to letters of credit, and the guarantee constitutes an autonomous contract between the issuer and the beneficiary. One aspect of the law relating to letters of credit is the rule of strict compliance. The documents presented by the beneficiary to the issuing (or, if such be the case, confirming) bank must comply strictly with the terms thereof. If so, the bank is (subject to exceptions) bound to pay. If not, the bank is bound to refuse payment. Now, the key document (indeed, in most instances the only document) in respect of a demand guarantee/performance bond is the demand itself.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 = 2003 CLD 1 ref.

The demand actually made must closely track the requirements of the bond/guarantee in order to be compliant with the same. Court should initially proceed on the basis that strict compliance is required. If this test is not met it is then for the party claiming otherwise to show that the test of substantial compliance should be applied in the facts and circumstances of the case, while keeping in mind the actual text of the bond/guarantee. However, it should be kept in mind that the threshold required for the party to succeed on such a submission is a high one and is not to be lightly or easily accepted by the Court. There must be clear justification (which must be recorded in appropriate reasoning) for the Court to so hold, i.e., to uphold the claim notwithstanding that the rule of strict compliance has not been met.

The Modern Contract of Guarantee by O'Donovan and Phillips, 3rd English ed. (2016) and Franz Maas (UK) Ltd. v. Habib Bank AG Zurich [2001] Lloyd's Rep. Bank 14 2001 CLC 89 ref.

In the present case, the demand purportedly made by the respondent/telecommunication company fell far short of what was required. It was obviously not in strict compliance with the terms of the guarantee since that required a categorical statement in the demand that the contractor (who was contracted by the respondent to do civil works and installations for the respondent under a contract) had breached the contract. Such statement was entirely missing. Nothing was shown as would justify the application of the rule of substantial compliance, but even there the case of respondent would have failed. This is for the reason that the purported demand did not remotely come near, let alone cross, the threshold required for such compliance. The letter in question was in substance nothing but a request for further extension in the validity period of the guarantee. The guarantee, had been extended many times before and it seems that all that the respondent was really looking for was another such period. The statement at the end ("this letter may be treated as notice for encashment of guarantee") was essentially an afterthought, designed to cover the respondent's position if the extension was not granted. The purported demand was not in accordance with what the law required. Therefore, the petitioner/insurance company had no obligation to pay and could not be held liable to the respondent.

Munawar-us-Salam, Advocate Supreme Court for Petitioner.

Mir Afzal Malik, Advocate Supreme Court for Respondent No.1.

P L D 2022 Supreme Court 817

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

Messrs A.J. TRADERS through Proprietor---Appellant

Versus

COLLECTOR OF CUSTOMS (ADJUDICATION) ISLAMABAD and others ---Respondents

Civil Appeals Nos. 354 to 356 of 2020, decided on 12th October, 2022.

(On appeal from the judgments of the Peshawar High Court, Peshawar dated 08.10.2019 passed in Customs References Nos. 56-P, 57-P and 58-P of 2019)

(a) Import and Export of Precious Metals Jewellery and Gemstones Order, 2013---

----Clauses 4 & 6---Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1)---SRO No. 266(I)/2001 dated 7 May 2001---SRO No. 760(I)/2013 dated 2 September 2013---Import of gold and silver---Appellants (importers) had availed the benefit of S.R.O. No.266(I)/2001 dated 7 May 2001 ('SRO 266') and had

imported silver and gold which was required to be used in the manufacture of jewellery and the jewellery manufactured therefrom was to be exported within one hundred and eighty days, but no export took place---Orders-in-original were passed by the Collector of Customs, which were unsuccessfully appealed before the Customs Appellate Tribunal ('the Tribunal')---Thereafter, the appellants filed customs references before the High Court but these too were dismissed---Contention of appellants that SRO 266 was replaced by SRO No.760(I)/2013 dated 2 September 2013 ('SRO 760'), therefore, the obligations incurred under SRO 266, of exporting jewellery manufactured by using the imported silver and gold, was no longer required to be complied with---Validity---Since the benefit of SRO 266 was availed of it had to be complied with---Appeals were dismissed.

(b) Customs Act (IV of 1969)---

----S. 194-B---Appeal before Customs Appellate Tribunal---Customs Appellate Tribunal ('Tribunal') not deciding the appeal within sixty days nor extending the period for decision in terms of the first proviso to section 194-B of the Customs Act, 1969---Question as to whether the statutory requirement to decide an appeal, and to do so within a particular time frame, is a mandatory obligation cast on a State functionary and whether non-compliance therewith adversely affects the rights of the taxpayer---Held, that if a taxpayer's appeal is not decided within the stipulated period his appeal cannot be negated and the taxpayer non-suited on this score---To hold otherwise would be eminently unfair and give the State a premium for its own functionary's non-compliance with the law---Legislature in prescribing a period within which an appeal should, or must, be decided obligates the appellate authority---Therefore, if there are any consequences in deciding an appeal beyond the prescribed period the same may only be visited upon the State functionaries, and not on a taxpayer.

Commissioner Inland Revenue v. Messrs Sarwaq Traders 2022 SCMR 1333 = 2022 PTD 1128 disagreed with

Collector of Sales Tax v. Super Asia Mohammad Din & Sons 2017 SCMR 1427; WAK Limited v. Collector Central Excise and Sales Tax 2018 SCMR 1474 and Mujahid Soap and Chemical Industries (Pvt.) Ltd. v. Customs Appellate Tribunal 2019 SCMR 1735 ref.

Syed Hamid Ali Shah Bukhari, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in all Appeals).

Abdul Rauf Rohaila, Advocate Supreme Court (Through video link from Peshawar) for Respondents (in all Appeals).

P L D 2022 Supreme Court (AJ&K) 1

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

MEHVISH KAZMI---Appellant

Versus

PARVAIZ HUSSAIN and another ---Respondents

Civil Appeal No. 544 of 2019, decided on 9th September, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 15.10.2019 in Family Appeals Nos. 20, 21, 22, 23 and 24 of 2019).

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----Ss. 2 & 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii)---"Dissolution of marriage" and "Khula'"---Scope---Physical and mental cruelty---Proof---Petitioner/wife filed suits for payment of dower; past and future maintenance per month; dissolution of marriage on ground of cruelty, non-performance of marital obligations, non-payment of dower and maintenance and recovery of dowry articles---Respondent/husband filed suit for restitution of conjugal rights---Family Court consolidated all suits and passed judgments/decrees---Dower was decreed; maintenance was settled from date of institution of suit till the completion of iddat period; dissolution of marriage was decreed on basis of cruelty; suit for dowry articles was also decreed and respondent's suit was dismissed---Respondent filed five appeals before Shariat Appellate Bench of High Court which had modified the Family Court's judgment observing that plaintiff/ appellant would receive maintenance for the period of iddat only; that her marriage was dissolved in lieu of consideration of Khula', which had to be returned to the respondent/husband; and respondent was declared entitled to take dowry articles---Appellant contended that she left respondent's home due to his cruel behaviour which remained continued as evident from the FIR lodged by him against appellant for stealing ornaments; that High Court had modified the mode of dissolution of marriage being cruelty and converted the same as dissolved on basis of Khula', which was totally against law/record; that amount of consideration for Khula' had been excluded from decree of dower on basis of the same wrongly converted mode of dissolution; that there was no justification under law that after dissolution of marriage, appellant was not entitled to receive maintenance allowance for the period of Iddat---Validity---Appellant had produced five witnesses and also recorded her statement before Family Court---Respondent by his conduct/behaviour created such circumstances which compelled the appellant to leave the house---Conduct of brother of respondent also amounted to mental cruelty as she herself deposed in her statement that her brother-in-law had attacked her honour and sexually harassed her---Appellant/wife had also lodged the private complaint before the Judicial Magistrate wherein she alleged that her brother-in-law had attacked upon her honour and when she informed her husband/respondent, he, instead of protecting her, favoured his brother---Respondent had also lodged an FIR against the appellant on charges of theft of the gold ornaments given to her as prompt dower---Ornaments which were given to her in lieu of dower, could not be stolen by her---Statements of witnesses showed that the respondent failed to maintain the appellant---Record showed that the respondent failed to provide maintenance allowance to his wife which was one of the grounds taken by the appellant for dissolution of marriage---Evidence proved that she had not been paid maintenance from the last two years---Once it was found that wife was entitled to get the decree on the ground of non-maintenance, the marriage can be dissolved on that ground---Respondent failed to substantiate in the Trial Court that his attitude towards the appellant was not cruel in nature and he performed his legal duty to maintain his wife---Respondent had also failed to bring anything on record that the conduct of the appellant disentitled her for claiming the maintenance---Impugned judgment of the High Court to the extent of dissolution of marriage on basis of Khula' was set-aside, therefore, in the light of decision of the Family Judge, the appellant was entitled to the deferred dower---Appeal was allowed and judgments/decrees of Family Court were restored, in circumstances.

Mst. Iqra v. Abuzar 2012 YLR 1488 rel.

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

----S. 2(viii)---Cruelty---Physical and mental cruelty---Non-providing of maintenance to wife---Scope---Cruelty in matrimonial life is considered to be of founded variety, which may be an act violent or non-violent act, gestures or mere silence---Term 'cruelty' with reference to matrimonial matter is to be judged within the parameters of statutory provision of S. 2 of the Dissolution of Muslim Marriages Act, 1939, which speaks of different kinds and natures of cruelty---The term 'cruelty' is not only confined to physical assault or infliction of physical injuries rather it, being a comprehensive term as elaborated in the statutory provision which includes all types of cruelty which may be classified as legal, mental and physical---Non-providing of maintenance is itself a form of cruelty which serves as one of the grounds on which the decree for dissolution of marriage can be passed.

Black's Law Dictionary (Eighth Edition) ref.

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

----S. 2(viii)---Cruelty---Physical and mental cruelty---Proof---Cruelty may be mental or physical---As to prove cruelty, it is not necessary to manifest physical assault/injury---Conduct/behaviour amounting to mental assault has also been treated by the Courts as cruelty---For considering dissolution of marriage at the instance of a spouse who alleges mental cruelty, the result of such mental cruelty must be such that it becomes impossible to continue with the matrimonial relationship, i.e., party wronged cannot be expected to condone such conduct and continue to live together---Degree of tolerance will vary from one couple to another---Court must consider the background, level of education and the status of parties in order to justify whether cruelty alleged is sufficient to dissolve the marriage or not.

Muhammad Zaheer-ud-Din Babar v. Mst. Shazia Kausar and others 2016 CLC 332 and Mst. Amreen v. M. Kabir and others 2015 YLR 170 rel.

(d) Islamic law---

----Dower and maintenance---Marriage in Islam has a contractual nature and dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement---Maintenance is an obligation, which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances.

Shahid Ali Awan, Advocate for Appellant.

Ch. Shoukat Aziz, Advocate for Respondents.

P L D 2022 Supreme Court (AJ&K) 17

Present: Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

AAMIR FAROOQ---Appellant

Versus

NAIMA FAROOQ---Respondent

Civil Appeal No. 24 of 2021, decided on 26th October, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 14.10.2019 in Appeal No. 57 of 2019).

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5, Sched.---Suit for recovery of dower---Deferred dower---Consummation of marriage---Scope---Plaintiff, after being divorced, filed suit for recovery of deferred dower and maintenance allowance for the period of iddat---Contention of defendant was that the plaintiff never allowed him to consummate the marriage, hence, she was not entitled to the amount of dower---Courts below concurrently decreed the suits---Validity---Command of the Holy Quran was that in case of consummation of marriage the wife became entitled for full amount of dower, whereas, in case of non-consummation of marriage the wife was entitled to receive half dower---Consummation of marriage occurred when the couple spent some time after the marriage in seclusion and/or privacy---Intercourse was not necessary for consummation of marriage from Islamic point of view---Perusal of evidence brought on record revealed that after marriage rukhsati had taken place and the plaintiff had resided in the house of defendant for 7/8 months---Not a single question was put to her in cross-examination regarding non-performance of marital obligations during the period of marriage---Defendant had admitted that the plaintiff had returned to her parent's house after 3/4 days---In the given circumstances, Khalwat-i-Sahiha was sufficiently proved from the record, hence, the plaintiff was entitled for recovery of full amount of dower---Appeal was dismissed.

Verse No. 237 of the Sura Al-Baqrah; Fiqh Al-Islamiy wa Adillatuh, Sharh Zarakhshiy, Al-Bada'i Al-Sana'i, Al-Bahjah, Tafsir Al-Hawi and Al-Dar Al-Qutniy rel.

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

----S. 2---Grounds for decree for dissolution of marriage---Scope---If both partners have agreed not to engage in sexual intercourse, then there is no issue---Marriage is intact---If, however, either the husband or the wife is demanding sexual intimacy, and the spouse is not making him/herself available for it, then the deprived partner has a right to initiate a divorce.

Raja M. Hafeez Tahir, Advocate for Appellant.

Sardar M. Latif Khan, Advocate for Respondent.

P L D 2022 Supreme Court (AJ&K) 21

Present: Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

MUHAMMAD NAZIR---Appellant

Versus

MUHAMMAD ASLAM and 3 others---Respondents

Criminal Appeal No. 38 of 2020, decided on 25th June, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 21.04.2020 in Criminal Miscellaneous No. 119 of 2019).

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---High Court/Shariat Court is not empowered to assume the role of investigating agency for the purpose of appreciation of the material which is yet to be finalized by the investigating agency---If after completion of the investigation the investigating agency reaches the conclusion that a cognizable offence has been made out, the proper course is to investigate the matter while providing fair opportunity to both the parties to place their point of view before the investigating agency---If the investigating agency reaches the conclusion that no case has been made out, then law empowers it to recommend for cancellation of the case---If the challan is presented in the Court the new situation emerges and the accused can file application under Ss. 249-A & 265-K, Cr.P.C.---High Court/Shariat Court has no jurisdiction to quash the FIR at investigating stage.

Shan Muhammad v. Muhammad Younas and others 2014 SCR 183; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598 and Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189 rel.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Scope---High Court/Shariat Court cannot quash the FIR at investigating stage.

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

----S. 561-A---Inherent powers of High Court---Scope---Powers under S. 561-A, Cr.P.C., being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner.

Raja Mazhar Iqbal, Advocate for Appellant.

Abdul Wahid Aamir, Advocate for Respondents.

M. Zubair Raja, Addl. Advocate-General for the State.

P L D 2022 Supreme Court (AJ&K) 26

Present: Raja Saeed Akram Khan, C.J. and Muhammad Younas Tahir, J

MUHAMMAD SAGHEER---Appellant

Versus

ANEESHA SHABIR and another---Respondents

Civil Appeal No. 178 of 2020, decided on 24th November, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 12.08.2020 in Family Appeal No. 180 of 2019).

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5, Sched.---Suits for maintenance, recovery of dowry articles, and dower---Trial Court consolidated all suits and decreed suit for recovery of maintenance allowance for period of iddat and past and future maintenance of minor/daughter; decreed suit for dowry articles; and decreed suit for recovery of dower to the extent of amount of Rs.50,000/---Appeal was dismissed by Shariat Appellate Bench of High Court (Azad Jammu and Kashmir)---Leave to appeal was granted by Supreme Court---Appellant's contention that fact that he had already paid dower was sufficiently proved; that dowry articles were given was not proved by plaintiff/respondent; that award of maintenance was against record/without legal backing---Validity---Plaint showed that marriage was solemnized in lieu of 04 tola gold ornaments as prompt dower and Rs.50,000/- as deferred dower---Said fact was supported by Nikahnama---Defendant/appellant denied the fact in his written statement and alleged that deferred amount of Rs.50,000/- had been paid in shape of ornaments---Appellant had not opted to get his statement recorded to substantiate his pleas in defence taken in his written statements and instead produced his attorney to record statement in evidence---Said attorney stated that he was unaware about quantum of dower amount; that he was not fully conversant of facts of case; that he was not aware of the sector of residence of appellant---Statement of said witness/attorney was not inspiring confidence---Statements of other witnesses were also not of any help to substantiate appellant's case---Appellant could not point out any legal infirmity in the impugned judgment---Plaintiff/respondent claimed specific dowry articles and had exhibited list containing particulars of each item therein---Appellant did not appear before Trial Court to record his statement as witness and instead produced his attorney who was not his family member / friend or well-acquainted with actual facts of the case---In his written statement, appellant outrightly denied giving of any item of dowry which seemed not true in normal course of matters/norms/custom---Record revealed that appellant had paid once during trial the amount of monthly maintenance allowance to minor; and had not paid current maintenance/arrears after passage of judgment/decree---Supreme Court drew adverse inference against appellant and declared him not entitled to get relief from the Court---Respondent established that appellant was financially in position to pay maintenance allowance awarded by the Courts below---No illegality/irregularity was committed by Courts below---Appeal was dismissed accordingly.

Asma Bashir Abbasi v. Shahzad Ahmed Abbasi Civil Appeals Nos. 433 and 434 of 2020, decided on 25th August 2021 rel.

(b) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5, Sched.---Dowry articles---Proof---Less burden was put on the shoulders of wife to establish the claim of dowry articles.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393 rel.

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

----S. 12---Welfare of minor---Obligation of parents/courts/legislators---Scope---Father was under an obligation to maintain his children till they attain age of majority in case of male and daughters till they were married, there was no escape from such responsibility---Father was also required to have general approach to take care of well-being/health/education/welfare of minors in all aspects of life---In case of strained relations/divorce between husband and wife, personal hostilities/vendettas should not become hurdles in general well-being/welfare of minors---Such aspect of life of children of broken families must be considered by all, i.e. parents, courts , legislature and other institutions while making decisions with regard to welfare of minors.

M. Bashir Tabbasum, Advocate for Petitioner.

Sh. Masood Iqbal, Advocate for Respondents.

P L D 2022 Supreme Court (AJ&K) 35

Before Raja Saeed Akram Khan, C.J., Kh. Muhammad Nasim and Raza Ali Khan, JJ

MUHAMMAD YASIR SAFEER MUGHAL---Appellant

Versus

FAYYAZ AHMED JANJUA and 6 others---Respondents

Civil Appeal No.62 of 2021, decided on 20th October, 2021.

(On appeal from the judgment of the High Court dated 5.11.2020 in Writ Petition No. 580 of 2018).

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

----Art. 42---State Judicial (Policy Making) Committee Act (XXXVIII of 2017), Ss. 3 & 4---Appeal---Establishment of State Judicial (Policy Making) Committee---Functions of the Committee---Scope---Appellant assailed order passed by High Court whereby State Judicial (Policy Making) Committee Act, 2017 was declared to be ultra vires the Azad Jammu and Kashmir Interim Constitution Act, 1974---Validity---Legislature while realizing the challenges and emerging issues posed to the judicial system of Azad Jammu and Kashmir had felt it expedient to make enactment in that regard by empowering the superior judiciary of Azad Jammu and Kashmir to assess better the problems of the judicial system, its components and make policies for more efficient working of the judiciary and its allied limbs as per public aspirations and confidence---In order to achieve such noble goals, the legislature had enacted the impugned Act, the purpose of which was to constitute a high level committee to co-ordinate and harmonize the judicial policy within the court system and in co-ordination with Azad Jammu and Kashmir Law Commission, ensure its implementation---Committee had to work for improving the capacity and performance of the administration of justice; setting performance standards for judicial officers and persons associated with performance of judicial and quasi-judicial functions; improving the terms and conditions of service of judicial officers and Court staff, ensuring skilled and efficient judiciary; and publishing the annual or periodic reports of the Courts---Supreme Court observed that High Court had fallen in grave error of law while holding that the impugned legislation was ultra vires the Constitution---Appeal was accepted and the impugned judgment was overturned.

Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504 and Azad Government and others v. Genuine Rights Commission of AJK and others 1999 SCR 1 ref.

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

----Art. 42---State Judicial (Policy Making) Committee Act (XXXVIII of 2017), Ss. 3 & 4---Appeal---Establishment of State Judicial (Policy Making) Committee---Functions of the Committee---Scope---Appellant assailed order passed by High Court whereby State Judicial (Policy Making) Committee Act, 2017 was declared to be ultra vires the Azad Jammu and Kashmir Interim Constitution Act, 1974---One of the reasons, which prevailed with the High Court while handing down the impugned judgment was that since there was only single High Court in Azad Jammu and Kashmir, as such, there was no requirement of co-ordination and harmonizing of judicial policy within the court system---Held; functions of the State Judicial (Policy Making) Committee were clearly postulated in S. 4 of the Act---Words "court system" included the whole system of judiciary; it included Supreme Court, High Court, all the subordinate Courts and Tribunals established in Azad Jammu and Kashmir, hence, it could not be said that there was a single High Court in Azad Jammu and Kashmir due to which co-ordination and harmonization of judicial system was not possible.

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

----Art. 42---State Judicial (Policy Making) Committee Act (XXXVIII of 2017), Ss. 3 & 4---Appeal---Establishment of State Judicial (Policy Making) Committee---Functions of the Committee---Scope---Appellant assailed order passed by High Court whereby State Judicial (Policy Making) Committee Act, 2017, was declared to be ultra vires the Azad Jammu and Kashmir Interim Constitution Act, 1974---Contention of respondents was that introduction of an officer from the Executive corner in the State Judicial (Policy Making) Committee was against the concept of separation of powers---Validity---Supreme Court, High Court, Shariat Court, etc were the special institutions of the Law, Justice, Parliamentary Affairs and Human Rights Department, hence, the Secretary Law, Justice, Parliamentary Affairs and Human Rights department had a very close nexus with the judiciary; he was the person who conveyed pleasure or displeasure of the Courts to the Government, hence, he had to act as a bridge in relation to the communication of the Government with the Courts---Keeping in view the nature of tasks to be performed by him, he had been included in the Committee to convey the decisions of the Committee to the Government otherwise he had nothing to do with the formation of policies by the Committee rather policies were made under the supervision of judicial members of the Committee---Introduction of Member of the Executive in the Committee was against the concept of separation of powers.

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

----Art. 46---High Court to superintend and control all courts subordinate to it---Scope---Article 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, casts a duty on the High Court to keep the subordinate courts within the limits of their authority so that they may not cross the limit, ensure the performance of duties by such courts and tribunals in accordance with law conferring power within the ambit of the act creating such Courts---Powers of posting, transfer and appointments are vested in the High Court under this Article.

(e) Interpretation of statutes---

----Vires of legislation---Scope---Piece of legislation can be invalidated by the court only when the same is found inconsistent with the Constitution or where there is violation of any of the fundamental rights.

Fauji Foundation and another v. Shamim ur Rehman PLD 1983 SC 457 and Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 rel.

(f) Interpretation of statutes---

----Vires of legislation---Scope---When any person attributes mala fide to the Legislature he must have strong proof otherwise malice cannot be attributed to the Legislature---For proving mala fide should be proved by cogent and reasonable evidence---Presumption of bona fide is attached to the legislation enacted by the Assembly.

Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan 2014 SCMR 1289; Azad Government and others v. Inhabitants of Village Baghar 2016 SCR 696; Ch. Yousaf v. The State of AJ&K 2002 CLC 1130 and Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 rel.

Appellant in person.

Raja Amjad Ali Khan, Advocate along with Respondent No.1.

Raja Muhammad Waseem Younas, Additional Advocate-General for Proforma Respondents.

P L D 2022 Supreme Court (AJ&K) 49

Before Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

Khawaja AAMIR AHMED, ADVOCATE HIGH COURT OF AJ&K---Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others---Respondents

Civil Appeal No. 84 of 2021, decided on 29th July, 2021.

(On appeal from the judgment of the High Court dated 19.03.2021 in Writ Petition No. 691 of 2021).

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

----Art. 43(5)---Judge of High Court---Date of birth---Entry in Matriculation Certificate---Entry in salary slip---Significance---Dispute related to retirement of a Judge of High Court---His date of birth, according to CNIC (Computerized National Identity Card) and salary slip, was recorded as 23-02-1959 whereas in all the other documents including Matriculation Certificate, Annual Confidential Reports, Advocacy Licence, Pleader-ship Licence, etc., the date of birth was conjointly entered as 23-03-1959---Government issued notification on the basis of his date of birth in Matriculation Certificate---Appellant filed a writ petition seeking direction to retire the respondent with effect from 23-02-2021---High Court dismissed the petition---Validity---Computerized National Identity Card (CNIC) had never been given due preference for the purpose of determination of age---Salary slip only served as a proof of salary which a person drew on monthly basis and it could not be considered a conclusive proof of date of birth, which was mentioned casually---Matriculation Certificate was the basic document from which all the other relevant documents emanated---Date of birth of respondent, in presence of contradiction between the record, had rightly been derived by the concerned quarters from the Matriculation Certificate---Appeal was partly accepted.

Zafar Iqbal Khan v. Azad Government and others PLJ 2014 AJ&K 344; Khurshid Hussain v. Azad Government and others 2012 PLC (C.S.) 429; Sardar Khurshid Hussain v. Azad Government and others 2012 PLC (C.S.) 1412; Sh. Mumtaz Ali alias Mumtaz Alam v. Government of Punjab 1991 PLC (C.S.) 1202; Qamaruddin v. Pakistan through Secretary Establishment Division Islamabad and another 2007 SCMR 66; Syed Manzoor Hussain Gillani v. Azad Government and others 2012 PLC (C.S.) 1387; Sardar Karam Dad Khan v. Chairman AJ&K Council and others PLD 2010 HC (AJ&K) 47; Director General Anti-Corruption v. Abdul Qayyum and another 2017 SCR 507; Ahmed Nawaz Tanoli v. Chairman Azad Jammu and Kashmir Council and others 2016 SCR 960; Riaz Ahmed alias Abdul Haq 1991 CLC 870 and Chairman, Area Electricity Board Communication and another v. Qazi Muhammad Ilyas 1998 PLC 270 ref.

Akbar Khan v. Karachi Transport Corporation 1988 PLC 135 rel.

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

----Arts. 43 & 43-A---Chief Justice of High Court Azad Jammu and Kashmir---Acting-Chief Justice of High Court Azad Jammu and Kashmir---Appointment---Scope---Appellant assailed order passed by High Court whereby it had ordered the official respondents to show the private respondent (Judge of High Court) as Chief Justice of High Court instead of Acting Chief Justice, in his retirement notification---Validity---Mode of appointment of Acting Chief Justice of High Court and that of Chief Justice of High Court was completely different---Acting Chief Justice was appointed by the President himself, whereas, the Chief Justice was appointed by the President on the advice of the Chairman of the Council, after consultation with the Chief Justice of Azad Jammu and Kashmir---Private respondent was not appointed as Chief Justice of High Court in accordance with sub-Article (2-A) of Art. 43 of the Constitution, hence, modification of retirement notification amounted to amending the constitution, which was not permissible---High Court had granted relief to the private respondent without existence of any lis in that regard---Framers of the Constitution had never intended to confer suo motu jurisdiction on the High Court---Appeal was partly accepted and the order for modification of notification was set aside.

Al Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

Dr. Imran Khattak and another v. Mst. Sofia Waqar Khattak and others 2014 SCMR 122 rel.

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

----Art. 43---Judges of the High Court of Azad Jammu and Kashmir---Resignation---Scope---"Resignation" means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office---Act of relinquishment or giving up may be unilateral or bilateral---In case of a government servant, the resignation is bilateral as it comes into effect when the authority to whom the resignation is submitted, accepts the same, whereas, in case of a Judge, holding the constitutional post, the resignation is unilateral, his resignation is mere an information to the concerned and becomes effective forthwith---Under Art. 43(5) of the Constitution the term of office of Judge of High Court would come to an end on his resignation---Concept of submission and acceptance of resignation is absent in this provision, which manifests that the dignity of the Judge of the High Court needs that his resignation should be immune from acceptance.

Union of India and others v. Gopal Chandra Misra and others AIR 1978 SC 694 rel.

(d) Azad Kashmir Service Regulations---

----Regln. 35-A---Date of birth of civil servant---Scope---Age to be entered in the record of service of an official should be that recorded in his University Certificate or School Certificate---Due credence will be given to the Matriculation Certificate and all the subsequent documents including CNIC, salary slips, etcetera, cannot override the entry of date of birth recorded in the Matriculation Certificate unless the same is corrected by the Board of Intermediate and Secondary Education under the relevant law.

(e) General Financial Rules---

----Vol. I, Chap. 6, Para. 116---Date of birth---Scope---Every person newly appointed to a service or a post under Government should at the time of appointment declare the date of his birth with as far as possible confirmatory documentary evidence such as Matriculation Certificate---Date of birth so declared cannot be altered, except in the case of a clerical error.

(f) Civil service---

----Date of birth---Entry in CNIC---Scope---Computerized National Identity Card (CNIC) is not the conclusive proof of age rather simply the date of birth is shown by the holder of the card for the purpose of identification and nothing beyond.

Akbar Khan v. Karachi Transport Corporation 1988 PLC 135 rel.

(g) Civil service---

----Date of birth---Entry in Matriculation Certificate---Scope---Entry regarding the age, for the first time, is generally made in the Matriculation Certificate which is relied upon by everybody.

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

----Art. 129---Court may presume existence of certain facts---Scope---Court may presume the existence of any fact, which it thinks likely to have happened, regard having to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

(i) Bar and Bench---

----Members of the legal profession are required to conduct their cases with a sense of personal responsibility---Such members of legal profession should act with reasonable care and caution---Advocates are not the puppets compelled to obey the dictates of their clients rather they are responsible to the Court for the fair and honest conduct of a case.

Thangavelu v. Chensgalvaroya AIR 1935 Madras 578 rel.

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

----Art. 44---Writ petition---Scope---High Court is not empowered to grant relief beyond the scope of pleadings.

Fayyaz Ahmed Janjua, Advocate for Appellant.

Raja Ayaz Ahmed, Assistant Advocate-General, Sardar M. R. Khan and Raja Amjad Ali Khan, Advocates for Respondents.

P L D 2022 Supreme Court 281

Present: Sardar Tariq Masood, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SHARAFAT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 241 of 2020, decided on 28th February, 2022.

(Against the judgment dated 10.02.2016 of the Peshawar High Court, Abbottabad Bench, passed in Criminal Appeal No.111-A of 2013).

Per Syed Mansoor Ali Shah, J; Sardar Tariq Masood, J agreeing; Qazi Muhammad Amin Ahmed, J dissenting. [Majority view]

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

----Ss. 9 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Constitution of Pakistan, Art. 10A---Possession of narcotics---Representative sample sent to Government analyst, nature of---[Per Syed Mansoor Ali Shah, J [Majority view]: Representative sample is to be collected from every packet/cake/slab of the alleged narcotic drug and sent for analysis to the Chemical Examiner---Right to fair trial of the accused under Art. 10A of the Constitution requires that the sample drawn from the alleged narcotic drug must be truly representative of the alleged narcotic drug recovered and therefore must be drawn from all the physically separate and independent units of the alleged narcotic drug]---[Per Qazi Muhammad Amin Ahmed, J [Minority view]: Not essential that every micro part of the contraband in single packet is to be separated for analysis nor is so contemplated by the Control of Narcotic Substances (Government Analysts) Rules, 2001].

Per Mansoor Ali Shah, J [Majority view]:

Before an accused is burdened with a criminal liability under the Control of Narcotic Substances Act, 1997 ('the Act') of possessing the alleged narcotic drug, a representative sample of that alleged narcotic drug must be drawn and dispatched to be tested and analyzed by the Government Analyst. Testing and analysis of the alleged narcotic drug is a sine qua non for holding the accused liable under the Act, and the accused cannot be saddled with any liability under the Act unless the report of the Government Analyst is in the affirmative. As the severity of the punishment under the Act varies with the quantity of the narcotic drug recovered, it is therefore essential for the prosecution to establish that the entire alleged narcotic drug stood tested and analyzed by the Government Analyst by drawing representative sample(s) of the alleged narcotic drug. The test and analysis of the representative sample of an alleged narcotic drug amounts to test and analysis of the entire quantity of that narcotic drug. The acts of taking and testing of the representative sample become critical as they feed the assumption that the entire quantity from which the sample was drawn stands tested and analyzed. Therefore, the sample to be representative must be drawn for each and every physically independent and separate unit of the alleged narcotic drug recovered from the accused. A separate and independent unit of the alleged narcotic drug cannot be left out from test and analysis on the assumption that a representative sample has been drawn from other similar physically independent and separate units of the alleged narcotic. drug. Any such assumption would offend the fundamental right to fair trial and due process of the accused guaranteed under Article 10A of the Constitution, besides militating against the safe administration of justice.

State v. Iman Bakhsh 2018 SCMR 2039 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Right to fair trial of the accused under Article 10A of the Constitution requires that the sample drawn from the alleged narcotic drug must be truly representative of the alleged narcotic drug recovered and therefore must be drawn from all the physically separate and independent units of the alleged narcotic drug.

The representative sample can only retain its representative character and be also constitutional compliant, if it is drawn from every physically separate and independent unit of the alleged narcotic drug.

Per Qazi Muhammad Amin Ahmed, J [Minority view]:

Emphasis laid down in the case reported as Ameer Zeb v. The State (PLD 2012 SC 380) is to ensure representative character of the forensic sample and for that it is not essential that every micro part of the contraband in single packet is to be separated for analysis nor is so contemplated by the Control of Narcotic Substances (Government Analysts) Rules, 2001, which even otherwise are merely directory in nature.

State v. Iman Bakhsh 2018 SCMR 2039 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Constitution of Pakistan, Art. 10A---Possession of 25,000 grams of charas---Re-appraisal of evidence---Sample sent to Government analyst not collected from each independent slab of recovered narcotic---Sentence, reduction in---[Per Syed Mansoor Ali Shah, J [Majority view]: In the present case, 25 packets were recovered from the accused, each having 14 separate slabs of the alleged narcotic drug; thus, in fact, there were 350 (25 x 14) separate physically independent units of the alleged narcotic drug---In order to burden the accused with the liability of the entire quantity of the alleged narcotic drug recovered, the representative sample had to be taken from every physically separate and independent unit of the alleged narcotic drug, i.e., from all the 350 slabs of the alleged narcotic drug recovered from the accused---However only 25 samples of 5 grams were collected from each of the 25 packets, without specifying whether it was taken from one slab out of the 14 found in each packet, or that each 5-gram sample was obtained from all of the 14 slabs found in one packet---Prosecution had not even argued that the representative sample was taken from each of the 350 slabs, rather it is an admitted fact on part of the prosecution that 5-gram sample was taken from only one slab out of the 14 found in each packet---Thus, the prosecution was found to have proved only those parts of the charas allegedly recovered from the appellant to be the narcotic drug of which samples were taken and sent for analysis to the Forensic Science Laboratory , that is, about 1785 grams, not 25,000 grams as alleged---Accused had already served 9-years, 1-month and 20-days in prison---In view of the proved quantity of the charas recovered from him as being a narcotic drug, i.e., 1785 grams, his conviction was maintained but his sentence of life imprisonment was reduced to the imprisonment term already undergone by him while the fine of Rs.200,000/- was maintained]---[Per Qazi Muhammad Amin Ahmed, J. [Minority view]: Contents of the seizure memo confirmed that contraband in each packet comprised of integrated layers, inseparably constituting a composite unit and, thus, 5 grams separated from the corner of each packet squarely presented a representative sample---Samples were not only taken from each packet, they were kept separately for analysis that unambiguously confirmed the narcotic character of the seized contraband and, thus, through no mode of interpretation it could be possibly inferred that the remainder of the parcel was made up of a substance other than cannabis---Prosecution had established each limb of its case on the strength of "proof beyond doubt" from safe custody to transmission for forensic confirmation; there was no space to entertain any hypothesis other than accused's guilt---Sentence (of life imprisonment) awarded to the accused was mandatory in view of proviso to S.9 of the Control of Narcotic Substances Act, 1997]---Appeal was partly allowed.

Ansar Nawaz Mirza, Advocate Supreme Court for Appellant.

Arshad Hussain Yousafzai, Advocate Supreme Court for the State.

P L D 2022 Supreme Court 290

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan, Mazhar Alam Khan Miankhel, Munib Akhtar and Jamal Khan Mandokhail, JJ

PAKISTAN PEOPLES PARTY PARLIAMENTARIANS (PPPP) through its Secretary General and others---Petitioners

Versus

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

Suo Motu Case No. 1 and Constitution Petitions Nos.3 to 7 of 2022, decided on 7th April, 2022.

(Re: Ruling by the Deputy Speaker of the National Assembly under Article 5 of the Constitution qua voting on No-confidence Motion against the Prime Minister of Pakistan)

Constitution Petitions Nos.3 to 7 of 2022

(Re: Ruling passed on 03.04.2022 by the Deputy Speaker of the National Assembly on No-confidence Motion).

Constitution of Pakistan---

----Arts. 5, 54(3), 58(1), 63A & 95---Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr. 32 & 37---Vote of no-confidence against the Prime Minister---Deputy Speaker of National Assembly gave a ruling to dismiss/reject the pending no-confidence motion against the Prime Minister and consequently did not allow voting on the same on the basis that the motion was linked with and had nexus with efforts of a foreign State to bring about change of Government in Pakistan---Constitutionality---Said ruling of the Deputy Speaker was contrary to the Constitution and the law and of no legal effect, and was accordingly set aside---Supreme Court declared that the resolution for a vote of no-confidence against the Prime Minister was pending and subsisting at all times; that the advice tendered by the Prime Minister to the President to dissolve the Assembly and the Order of the President dissolving the Assembly and all acts or proceedings initiated or done to give effect to dissolving the Assembly and/or for purposes of holding a General Election to elect a new Assembly were contrary to the Constitution and of no legal effect---Supreme Court gave directions to the Speaker to summon and hold a sitting of the Assembly to conduct the business of the House as per the Orders of the Day that had been issued on the day of the Deputy Speaker's (unconstitutional) ruling and in terms as stated in, and required by, Art. 95 of the Constitution read with R. 37 of the Rules of Procedure and Conduct of Business in the National Assembly Rules, 2007 ("Rules").

The ruling of the Deputy Speaker of the National Assembly ("Assembly") given on the floor of the House on 03-04-2022 ("Ruling") in relation to the resolution for a vote of no-confidence against the Prime Minister under Article 95 of the Constitution ("Resolution") (for which notice had been given by the requisite number of members of the Assembly on 08-03-2022, and in relation to which leave was granted to move the Resolution on 28-03-2022), and the detailed reasons for the Ruling (released subsequently and concurred with by the Speaker) are declared to be contrary to the Constitution and the law and of no legal effect, and the same are hereby set aside.

As a consequence the Supreme Court declared that the Resolution was pending and subsisting at all times and continues to so remain pending and subsisting; that at all material times the Prime Minister was under the bar imposed by the Explanation to clause (1) of Article 58 of the Constitution and continues to remain so restricted; that he could not therefore have at any time advised the President to dissolve the Assembly as contemplated by clause (1) of Article 58 of the Constitution; that the advice tendered by the Prime Minister on or about 03-04-2022 to the President to dissolve the Assembly was contrary to the Constitution and of no legal effect; that the Order of the President issued on or about 03-04-2022 dissolving the Assembly was contrary to the Constitution and of no legal effect, and it is hereby set aside; that the Assembly was in existence at all times, and continues to remain and be so; that all actions, acts or proceedings initiated, done or taken by reason of, or to give effect to, the Order of the President dissolving the Assembly and/or for purposes of holding a General Election to elect a new Assembly, including but not limited to the appointment of a care-taker Prime Minister and Cabinet are of no legal effect and are hereby quashed; that the Prime Minister and Federal Ministers, Ministers of State, Advisers, etc stand restored to their respective offices as on 03-04-2022; that the Assembly was at all times, and continues to remain, in session as summoned by the Speaker on 20-03-2022 for 25-03-2022 ("Session"), on the requisition moved by the requisite number of members of the Assembly on 08-03-2022 in terms of clause (3) of Article 54 of the Constitution. Any prorogation of the Assembly by the Speaker prior to its dissolution in terms as stated above is declared to be of no legal effect and is set aside.

The Speaker is under a duty to summon and hold a sitting of the Assembly in the present Session, and shall do so immediately and in any case not later than 10:30 a.m. on Saturday 09-04-2022, to conduct the business of the House as per the Orders of the Day that had been issued for 03-04-2022 and in terms as stated in, and required by, Article 95 of the Constitution read with Rule 37 of the Rules of Procedure and Conduct of Business in the National Assembly Rules, 2007 ("Rules").

The Speaker shall not, in exercise of his powers under clause (3) Article 54 of the Constitution, prorogue the Assembly and bring the Session to an end, except as follows:

a. If the Resolution is not passed by the requisite majority (i.e., the no-confidence resolution is defeated), then at any time thereafter;

b. If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful), then at any time once a Prime Minister is elected in terms of Article 91 of the Constitution read with Rule 32 of the Rules and enters upon his office.

If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful) then the Assembly shall forthwith, and in its present Session, proceed to elect a Prime Minister in terms of Article 91 of the Constitution read with Rule 32 of the Rules and all other enabling provisions and powers in this behalf and the Speaker and all other persons, including the Federal Government, are under a duty to ensure that the orders and directions hereby given are speedily complied with and given effect to.

Federal Government shall not in any manner hinder or obstruct, or interfere with, any members of the National Assembly who wish to attend the session summoned, and to participate in, and cast their votes, on the 'no confidence resolution' Present (short) order of the Court shall apply both in relation to the voting on the Resolution and (if such be the case) in relation to the election of a Prime Minister thereafter, however nothing in present order shall affect the operation of Article 63A of the Constitution and consequences thereof in relation to any member of the Assembly if he votes on the Resolution or (if such be the case) the election of a Prime Minister thereafter in such manner as is tantamount to his defection from the political party to which he belongs within the meaning of the said Article.

Any order by the Prime Minister, the President and the Speaker shall be subject to the present order of the Supreme Court till all the actions declared or directed to be taken in the present order are completed.

For Federation:

Khalid Javed Khan, Attorney General for Pakistan, Sohail Mehmood, Addl. A.G.P., Assisted by: M. Usman Piracha, Advocate, Ms. Mayam Rasheed, Advocate and Ms.Faryal Shah Afridi, Advocate.

For the President:

S. Ali Zafar, Advocate Supreme Court, S. M. Ali Bokhari, Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record.

For Prime Minister:

Imtiaz Rasheed Siddiqui, Advocate Supreme Court, Faisal Fareed, Advocate Supreme Court, S. Hasnain Ibrahim Kazmi, Advocate Supreme Court and Assisted by Ch. Atif Khan, Advocate.

For ECP:

Sikandar Sultan Raja, CEC, Omer Hameed Khan, Secretary, Zafar Iqbal, Spl. Secretary, Muhammad Arshad, DG (L) and Khurram Shahzad, ADG(L).

For SCBA:

(S.M.C. No. 1 and Const. P. No. 4 of 2022)

Mansoor Usman Awan, Advocate Supreme Court, Ahsan Bhoon, Advocate Supreme Court (President), Waseem Mumtaz Malik, Advocate Supreme Court, (Secretary) Khawar Ikram Bhatti, Advocate Supreme Court, S. Rifaqat Hussain Shah, Advocate-on-Record, Assisted by Umair Ahmed, Advocate and Asfand Yar Khan, Advocate.

For PPPP:

(S.M.C. No. 1 and Const. P. No. 3 of 2022)

Farooq H. Naek, Senior Advocate Supreme Court, Bilawal Bhutto Zardari, Mian Raza Rabbani, Advocate Supreme Court, Kamran Murtaza, Senior Advocate Supreme Court, Azam Nazir Tarar, Advocate Supreme Court, Raja Shafqat Abbasi, Advocate Supreme Court, Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Sardar Shahbaz Ali Khan Khosa, Advocate Supreme Court, S. Rifaqat Hussain Shah, Advocate Supreme Court and Assisted by Barrister Shiraz Shaukat Rajpar.

For BNP (M):

Mustafa Ramday, Advocate Supreme Court, Rashid Hafeez, Advocate Supreme Court, assisted by Ahmed Javaid, Advocate, Akbar Khan, Advocate and Ms. Zoe Khan, Advocate.

For ANP:

Babar Yousafzai, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record.

For PML(N):

(S.M.C. No. 1 of 2022)

Makhdoom Ali Khan, Senior Advocate Supreme Court, Mian Shahbaz Sharif, (Opposition Leader), Assisted by: Saad M. Hashmi, Advocate, Sarmad Hani, Advocate, Yawar Mukhtar, Advocate and Ammar Cheema, Advocate.

(Const. P. No. 5 of 2022)

Ch. Sultan Mehmood, Advocate Supreme Court, Khalid Ishaq, Advocate Supreme Court, Azam Nazir Tarar, Advocate Supreme Court and S. Rifaqat Hussain Shah, Advocate-on-Record.

For PML:

Imtiaz Rasheed Siddiqui, Advocate Supreme Court, S. Hasnain Ibrahim Kazmi, Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record.

For PTI:

Dr. Babar Awan, Senior Advocate Supreme Court, Azhar Siddiqui, Advocate Supreme Court and Ahmed Nawaz Ch. Advocate-on-Record.

For JUP:

Kamran Murtaza, Senior Advocate Supreme Court and Qari Abdul Rasheed, Advocate Supreme Court.

For Dy. Speaker, NA:

Naeem Bokhari, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record .

For Sindh:

Salman Talibuddin, A.G., (V.L. Karachi), Sibtain Mehmood, Addl. A.G., (V.L. Karachi) and Fawzi Zafar, Addl. A.G. (V.L. Karachi).

For Punjab:

Ahmed Awais, A.G. Punjab

For Balochistan:

Asif Reki, A.G. and M. Ayaz Sawati, Addl. A.G.

For KP:

Shumial Butt, A.G., Mian Shafaqat Jan, Addl. A.G. and Atif Ali Khan, Addl. A.G.

For ICT:

Niazullah Khan Niazi, A.G.

For Ministry of Interior:

M. Ayub, Addl. Secretary and M. Naeem Saleem, Deputy Secretary.

For NA:

Abdul Latif Yousafzai, Advocate Supreme Court, M. Mushtaq, Addl. Secretary and Haq Nawaz, SO.

For SHCBA and SBC:

Const. Ps. Nos. 6 and 7 of 2022

Salahuddin Ahmed, Advocate Supreme Court, Haider Imam Rizvi, Advocate Supreme Court and Anis Muhammad Shahzad, Advocate-on-Record.

P L D 2022 Supreme Court 298

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

FEDERATION OF PAKISTAN and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Labour and Human Resources Department and others---Respondents

Civil Petitions Nos. 5620, 5800 and 5959 of 2021, C.M.As. Nos. 12213, 12214 of 2021 in C.Ps. No. Nil/2021, C.M.A. No. 160 of 2022 in C.P. No. Nil/2022, Civil Petitions Nos.2-K, 64 and 59-K/2022 and C.M.A. No. 12221 of 2021, decided on 26th January, 2022.

(Against the consolidated judgment dated 15.10.2021 passed by the High Court of Sindh at Karachi in C.Ps. Nos.D-4596 of 2021, etc.)

(a) Sindh Minimum Wages Act, 2015 (VIII of 2016)---

----Ss. 4, 5 & 6---Minimum rate of wages, revision of---Provincial Government cannot itself revise the minimum rates of wages; it can only be done on the recommendation of the Minimum Wages Board ("Board")---Sindh Minimum Wages Act, 2015 has made it obligatory for the Government to act on the recommendation of the Board on all occasions of fixation as well as revision of minimum wages.

The (Provincial) Government could only declare the minimum rates of wages on the recommendation of the Minimum Wages Board ("Board").

The power of the Government to declare the minimum rates of wages has been qualified to be exercised on the recommendation of the Board. The words "subject to such exceptions as may be specified in the notification" used in section 6(1)(a) of the Sindh Minimum Wages Act, 2015 ('the Act') and "subject to such modifications and exceptions as may be specified in the notification" used in section 6(3) of the Act may refer to exceptions, or modifications in the exceptions, that could be created in view of "various" classes of workers or industry and should not be understood to mean that the Government could itself alter the minimum rates of wages recommended by the Board in view of a detailed and exhaustive mechanism for fixation of the minimum rates of wages spelled out in sections 4, 5 and 6 the Act.

The Act has made it obligatory for the Government to act on the recommendation of the Board on all occasions of fixation as well as revision of minimum wages. The revision of minimum wage is to be done according to the policy and mechanism laid down in the Act. The Government cannot go against the provisions of the Act and arrogate to itself the function entrusted to the Board.

(b) Sindh Minimum Wages Act, 2015 (VIII of 2016)---

----Ss. 4, 5 & 6 & Preamble---Constitution of Pakistan, Arts. 3, 9, 14, 37(a) & 38(a)---Universal Declaration of Human Rights (UDHR), Art. 23---Minimum wage---Importance of minimum wage stated.

Minimum wage laws help ensure justice at work. The minimum wage has remained a core element of public policy and the International Labour Organization (ILO) designated the minimum wage as an international labour standard. [p. 304] E

Brishen Rogers, 'Justice at Work: Minimum Wage Laws and Social Equality' (2014) 92 Tex. L. Rev. 1543, 1548 and David Neumark and William L. Wascher, Minimum Wages (MIT Press 2008) 1 ref.

Minimum wage is a primary measure of the social value of work; they bring a change in workplace power balance by giving workers rights vis-à-vis employers; and they require employers and consumers to internalize costs of increased wages

The requirement of establishing equitable and egalitarian work based social structures is a Constitutional command. The Constitution emphasizes on distributive justice with constitutional values of social, economic and political justice. It calls for "elimination of exploitation" and enjoins to protect the "economic interests" of the workers and ensure "equitable adjustment of rights between employers and employees." Right to life including right to livelihood under Article 9 ensures just and favourable remuneration for workers. Right to dignity under Article 14 ensures decent work for workers i.e., working conditions and wages that enhance rather than undermine workers' self-respect and social standing. The Universal Declaration of Human Rights also provides that remuneration must be paid to each worker to ensure "an existence worthy of human dignity."

Wage fixation is an important social welfare measure to be determined in the light of the economic reality of the situation and the minimum needs of the worker with an eye to the preservation of his efficiency as a worker. It is a delicate task, a fine balance is to be achieved. The demands of social justice, necessitating that the workers receive their proper share in the national income they help to produce, need to be balanced against the depletion, every increase in wages brings in the profits of the industry. The central character in this process remains the worker who deserves to get a fair share in the deal, as far as that can be, without at the same time impinging on the vital interests of the industry whose continuity and success are also the mainstay of labour. Minimum wage may preferably be fixed at a level that is "capable of meeting a worker's basic living needs and those of his family, for housing, nourishment, education, health, leisure, clothing, hygiene, transportation and social security, with periodic adjustments to maintain its purchasing power." With the growth and development of national economy, living standards improve and therefore notions about minimum wage need to be more progressive.

Hindustan Hosiery Industries v. F. H. Lala AIR 1974 SC 526 and The Constitution of the Federative Republic of Brazil 1988, Art. 7 (IV). ref.

Abid S. Zuberi, Advocate Supreme Court for Petitioners (in C.P. No. 5620 of 2021).

Zaheer-ul-Hassan Minhas, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 5800 and 64 of 2021).

Mrs. Samia Faiz Durrani, Advocate Supreme Court for Petitioners (in C.P. No. 5959 of 2021).

Khalid Mahmood Siddiqui, Advocate Supreme Court and Haroon-ur-Rehman, Advocate Supreme Court for Applicant (in C.M.A. No. 12213 of 2021).

Khalid Javed, Advocate Supreme Court for Petitioner (in C.P. No. 2-K of 2022).

Syed Ziauddin Nasir, Advocate Supreme Court for Petitioners (in C.P. No. 59-K of 2022).

Fauzi Zafar, Addl. A.G. Sindh and Sajid Ilyas Bhatti, Addl. A.G. for Respondents.

Faisal Siddiqi, Advocate Supreme Court for Respondents (Video link - Karachi Registry) (in C.M.A. No. 173 of 2022).

Jan Muhammad Khashkheli (In person) (in C.M.A. No. 173 of 2022).

Hasan Riaz, Research Officer, SCRC for Research Assistance.

P L D 2022 Supreme Court 306

Present: Umar Ata Bandial, H.A.C.J., Ijaz ul Ahsan, Munib Akhtar, Qazi Muhammad Amin Ahmed and Muhammad Ali Mazhar, JJ

Suo Motu Case No. 4 of 2021: In the matter of

Suo Motu Case No.4 of 2021, decided on 26th August, 2021.

(a) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of Courts---Scope---Judicial power---Judicial process for a certain jurisdiction of the Court comprises of three categories; firstly, a court must have jurisdiction; secondly, that jurisdiction must be properly invoked; and, thirdly, the jurisdiction must be properly exercised---Said tripartite arrangement is not simply a matter of merely classificatory convenience; the three categories are a blend of matters substantive and procedural---Said tripartite categorization thus lies at the heart of judicial power, as an integral part thereof.

Huddart, Parker and Co. v. Moorehead (1909) 8 CLR 330, [1909] HCA 36 ref.

(b) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of Courts---Scope---Article 175(2) of the Constitution provides that "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."---Cast though it is in negative terms, this provision ought not, be read in minimalist and literalist terms---For one thing, this may seriously jeopardize or compromise the independence of the judiciary and result in a substantial erosion (and even denial) of access to justice---Further, such an approach would, among other consequences, divest the courts of jurisdiction that is regarded as inherent---Literal and minimalist reading of Art. 175(2) of the Constitution may cast doubt on this (and equivalent) provisions, which would clearly be incorrect---Conferring of jurisdiction on courts by the Constitution and the law (and since the law must ultimately find repose in the Constitution, the former in particular) does not mean only such as is expressly so conferred; it includes also, but is not limited to, all such jurisdiction as by intendment or necessary implication (especially including, on the constitutional plane, such as may be required to give full expression to constitutional provisions and principles) must be held to vest or inhere in courts of law.

(c) Constitution of Pakistan---

----Art. 184(3)---Suo motu powers of the Supreme Court---Scope---Suo motu jurisdiction is an expression of the power that vests in the judicial branch, and is a jurisdiction that stands allocated to the Supreme Court alone in terms of Art. 184(3) of the Constitution.

(d) Constitution of Pakistan---

----Art. 184(3)---Supreme Court Rules, 1980, O.XI---Suo motu invocation of the jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Benches of the Supreme Court are constituted by the Chief Justice and they cannot (and specifically in the context of invoking suo motu jurisdiction under Art. 184(3) of the Constitution) self-constitute or self-propagate or self-perpetuate---Chief Justice alone can invoke the jurisdiction suo motu, but with respect to other Judge/s of the Supreme Court there is not any consistent or sustained practice in this regard---Bench of the Supreme Court (which did not include the Chief Justice) invoking suo motu jurisdiction of the Court under Art. 184(3) of the Constitution was constitutionally impermissible and conceptually non-viable---However, Benches headed by the Chief Justice could invoke the suo motu jurisdiction of the Court because that, in law, is not an act of the Bench but was equivalent to invocation by the Chief Justice alone---Where the Chief Justice invoked suo motu jurisdiction on the request or recommendation of a Bench of the Court, it is entirely for the Chief Justice to decide the time and manner in which the jurisdiction is to be suo motu invoked and the Bench by whom it will be exercised.

It is the Chief Justice of the Supreme Court alone who is the master of the roster and who, from time to time, constitutes Benches for the exercise of the various jurisdictions of the Court. This applies to "every cause, appeal or matter" to be heard and disposed of by the Court. The Benches constituted by the Chief Justice are, each of them, the Court when they are so exercising the various jurisdictions that inhere in the Court. However, even here there are limitations and qualifications. The most important for present purposes is that a Bench cannot self-select the causes, appeals or matters that are to be taken up and decided by it. It cannot pick and choose whichever case it wants from those on the docket. That too, ultimately, is within the power of the Chief Justice.

The exercise of the jurisdictions that inhere in the (Supreme) Court is therefore controlled and regulated by (among others) the following factors, as relevant for present purposes. Firstly, it can only be exercised by Benches duly constituted by the Chief Justice. Secondly, the Benches can only take up such cases as are listed before them and cannot self-select. Thirdly, the cases that are listed before the Benches are those where the jurisdiction of the Court has already been invoked. In other words, the constitution (and existence) of Benches presupposes the existence of causes, appeals or matters in relation to which the Benches will exercise the jurisdictions of the Court.

The Benches are constituted only for the purposes of exercising the jurisdictions of the Court in relation to what is already on the docket. Such a Bench cannot invoke suo motu the jurisdiction of the Court under Article 184(3). For a Bench, constituted as above, to be able to do so would mean that a Bench can both self-constitute and self-propagate. But that is neither possible nor permissible. Furthermore, the invoking of the jurisdiction suo motu, i.e., the calling upon the Court to take action, brings forth a fresh or new "controversy" (i.e., cause or matter) to be decided by the Court. A Bench, that cannot self-select cases for its consideration even from the existing docket, also cannot add a fresh cause thereto. If a Bench constituted as above suo motu invokes the jurisdiction of the Court in relation to any matter, then in respect thereof it would have self-constituted. And if it requires that the matter be fixed before it (and, explicitly or implicitly, before it alone), then in respect thereof the Bench would have self-propagated and self-perpetuated. This would be conceptually non-viable and constitutionally impermissible, being in negation and violation of the judicial power itself.

Huddart, Parker and Co. v. Moorehead (1909) 8 CLR 330, [1909] HCA 36 ref.

It is the Chief Justice alone who can suo motu invoke the jurisdiction of the Court under Article 184(3) of the Constitution. But with respect to other Judge/s of the Supreme Court there is not any consistent or sustained practice in this regard. Individual Judges have not, as a matter of sustained practice, sought to suo motu invoke the jurisdiction of the Court. That has been left in the hands of the Chief Justice.

In re: Human Rights Case (Environmental Protection in Balochistan) PLD 1994 SC 102 and In re: Pollution of Environment caused by smoke, emitting vehicles, traffic muddle 1996 SCMR 543 distinguished.

A distinction has to be made between Benches headed by the Chief Justice and those of which the Chief Justice is not a member. It is constitutionally impermissible and conceptually non-viable for a Bench of the Court (which did not include the Chief Justice), constituted and acting judicially, to suo motu invoke the jurisdiction under Article 184(3) of the Constitution. However, Benches headed by the Chief Justice can invoke the suo motu jurisdiction of the Court. However, there is a crucial distinction between such Benches and those of which the Chief Justice is not a member. When a Bench headed by the Chief Justice seems to invoke the suo motu jurisdiction that, in law, is not an act of the Bench. The reason is that what appears to be one act is, when analyzed conceptually, found in law to be a combination of three distinct steps. The first is where the Chief Justice, acting as such, invokes suo motu the jurisdiction of the Court in respect of a matter. The second is where, in respect thereof, he constitutes the Bench headed by him to exercise the jurisdiction so invoked. And the third is where the Bench does exercise said jurisdiction. Since it is all happening together the three steps, each distinct and separate in law though it is, become conflated. Thus, what seems (and in a practical sense is) one act is shown, when unraveled and examined conceptually, to comprise in law of three distinct elements. Each of the elements is perfectly legitimate within its own scope and the fact that they have, as it were, been rolled into one act on account of the Chief Justice heading the Bench should not confuse. As a matter of law the invoking of the suo motu jurisdiction by such a Bench is equivalent to nothing other than an invocation by the Chief Justice alone.

The settled practice is that the suo motu jurisdiction is to be invoked by the Chief Justice alone and not by any other Judge as such. The few cases where Benches not headed by the Chief Justice invoked the jurisdiction was, a conceptual error that was constitutionally impermissible. No Bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice has invoked/ assumed the said jurisdiction.

Where the Chief Justice invoked suo motu jurisdiction on the request or recommendation of a Bench of the Court, it is entirely for the Chief Justice to decide the time and manner in which the jurisdiction is to be suo motu invoked and the Bench by whom it will be exercised.

The suo motu invoking of the jurisdiction of the Court under Article 184(3) has, over the years, come in for its share of analysis, debate, discussion and, indeed, criticism. The time has come to recognize that there is a certain imbalance, which ought to be corrected. The imbalance lies in the link or bridge between the invoking of the jurisdiction and the exercise of it. Law and practice require that the suo motu invoking of the jurisdiction lie solely with the Chief Justice. The law also mandates that the constitution of Benches for the exercise of the jurisdiction lies with the Chief Justice alone. It is this that creates an imbalance. Since both the suo motu invocation of the jurisdiction and the constitution of a Bench to exercise that jurisdiction lie in the same hands (i.e. the Chief Justice of the Supreme Court), it is for those hands, to act in a manner that dispels any perception of the imbalance.

Supreme Court observed that Circular dated 19-07-2005, issued by the then Chief Justice of the Supreme Court in certain aspects and respects, suffers from a lack of conceptual clarity; that in order to fully rationalize the position it is recommended that the office may place the Circular before the (present) Chief Justice for such reconsideration as may be deemed appropriate.

(e) Constitution of Pakistan---

----Art. 184(3)---Suo motu invocation of the jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Order made by a two Member Bench of the Supreme Court ('the order dated 20-08-2021') on an application directly received and entertained in Court [reported as 2021 SCMR 1602]---Said order took suo motu notice of the grievance expressed in that application submitted by a number of journalists; notices were issued to several Federal Government authorities as well as to the Law Officers of the Federation and the Provinces; next date of hearing in the matter had been fixed for 26.08.2021 before the same Bench that has passed the order dated 20.08.2021---Constitutionality---Two Member Bench through its order dated 20.08.2021 suo motu invoked the jurisdiction of the Court under Art. 184(3) of the Constitution, which was a failure to properly abide by, and to apply, the judicial power---Such failure was the result of a lack of conceptual clarity---In respect of the subject matter of the application not only did the two Member Bench self-constitute but, in directing that notices be issued to named functionaries (and directing that replies be furnished before the next date of hearing) and that the matter be listed before it, the Bench also self-perpetuated and self-propagated, which it simply could not be do---Two Member Bench acted in a constitutionally impermissible manner, therefore, its order dated 20-08-2021 [reported as 2021 SCMR 1602] could not be allowed to stand---Supreme Court observed that while the present matter was being heard, the senior member of the two Member Bench that passed the order dated 20-08-2021, filed an application in the present matter, wherein he justified the order dated 20-08-2021; criticized and attacked the formation of the Larger Bench by the Acting Chief Justice and the subsequent order of 23-08-2021 made by the Larger Bench [reported as 2021 SCMR 1609]; referred to the order of 23-08-2021 as a "purported order" passed by a "monitoring Bench"; and made a wholly unwarranted attack ostensibly directed at the Registrar of the Court---In order to maintain the dignity of the Court, and not to draw attention to the application in question, the Supreme Court gave directions to expunge the application from the record.

In attendance:

Khalid Javed Khan, Attorney General for Pakistan.

Aamir Rehman, Addl. A.G.P.

M. Latif Afridi, President SCBAP and Khushdil Khan, Vice Chairman, PBC.

Jehangir Khan Jadoon, Advocate Supreme Court and Amjad Nazir Bhatti, President, Press Association of Supreme Court.