PLD 2023 Judgments

P L D 2023 Federal Shariat Court 1

Present: Dr. Syed Muhammad Anwer, ACJ and Khadim Hussain M. Shaikh, J

Professor MUHAMMAD IBRAHIM KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Ministry of Law, Punjab Secretariat, Lahore and others---Respondents

Shariat Petitions Nos. 03/I, 01/I, 02/I and 01/L of 2016, decided on 29th November, 2022.

(a) Punjab Protection of Women against Violence Act (XVI of 2016)---

----Ss. 7(1)(d), 12, 19, 21, 22, 23, 25, 27, 28 & Preamble---Constitution of Pakistan, Arts. 25(3) & 203-D---Shariat petition---Punjab Protection of Women against Violence Act, 2016 ('the impugned Act')---Repugnancy to Injunctions of Islam---Contentions that impugned Act is against the Injunctions of Islam, as it is discriminatory against males since it talks about the rights of females only; that the impugned Act will devastate the family system of the country; that according to the Holy Quran a husband is permitted to hit his wife; that the procedure laid down in the impugned Act is against the Injunctions of Islam; and that making any male person wear a GPS tracker is also against the Injunctions of Islam---Held, that most of the arguments of the petitioners and the contents in their shariat petitions are either based on unfounded apprehensions regarding the impugned Act; or they are based on cultural understanding of certain societal norms and certain specific behaviors---No provision of the impugned Act is against the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW)---Detailed reasons for holding the impugned Act to be in accordance with the Injunctions of Islam stated.

Most of the contents in the present petitions are based on the personal apprehensions of the petitioners regarding the Punjab Protection of Women against Violence Act, 2016 ('impugned Act'); or they are based on cultural understanding of the societal norms and certain specific behavior like, the women have no right to complain against their family members; by giving this right to women our family system will be further weakened; a husband of a woman can commit domestic violence being "Qawwam' as he is considered as 'Majazi Khuda'; the impugned Act is discriminatory against males; the impugned law is against the concept of 'chadar chardiwari' of our society; the definition of term 'domestic violence' in the impugned Act is un-Islamic; the procedure laid down in the impugned law is un-Islamic; and putting 'GPS bracelet' to a male person to protect any 'aggrieved person' from him under the law will affect the dignity of that male members of a family. Such contents of the petitions do not make the basis on which any provision of law can be challenged before the Federal Shariat Court under Article 203D of the Constitution.

Impugned Act is enacted to protect women from perpetrators of the crime of 'domestic violence'. The expression 'domestic violence' as used in the impugned Act has wider and deeper meanings and implications in the context of our society. The impugned Act is related to 'domestic violence' which may occur between husband and wife and which may occur between other relations like between brother and sister, father and daughter, son and mother or even between some female relatives etc., which is a harsh reality of our society.

The presumption of the petitioners that the 'defendant' under the impugned Act law will always be a male person is a completely wrong perception. According to the impugned law the 'defendant' under this law can be any one, male or female, who is residing in the same house where the victim or the 'aggrieved person' resides. However, the 'aggrieved person' under the impugned law will always be a female because the law is for the protection of female persons.

Some of the verses of the Holy Quran on the basis of which the law is challenged are either quoted by the petitioners out of context or they are not related to the core subject of the impugned Act, which is "domestic violence'.

Verses 34 and 35 of Surah an-Nisa; Verse 90 of Surah An-Nahl; Verse 21 of Surah al-Rum; Verse 228 of Surah al-Baqarah; Verse 15 and Verse 47 of Surah an-Nisa; Verse 12 of Surah al-Hujurat; Verse 4 of Surah al-Ahzab; Verse-5 of Surah al-Ahzab and Verses 4 to 10 of Surah An-Nur ref.

Islam gives women the right of Access to Justice. The right to file a complaint against the husband by a woman before the competent authority very clearly and strongly exists in Islam according to the Injunctions of Islam. In Islam, a woman can force her husband by law to fulfill all types of his matrimonial obligations, including economic and social obligations. The objections raised by the petitioners in this regard that a woman has no right to complain against her husband and that the right to file a complaint against the husband regarding the committing of 'domestic violence' will devastate the family system are absurd as this concept has nothing to do with Islam.

Verses 1 and 2 of Surah al-Mujadilah ref.

Islam is the first religion which gave women equal fundamental rights in a period of history when women had virtually no legal status in society. The Holy Quran criticizes and warns people who have discriminatory mental and societal attitude towards females. Unfortunately, we witness this behavior even today in our society in the name of culture or on the basis of a false sense of male chauvinism and unjustified sense of male patriarchy etc. Islam took all positive steps to eliminate such a misogynist attitude of men as a policy from society more than fourteen centuries ago. Hence, if such inhuman activity like 'domestic violence' occurs, then it has no place according to the teachings of Islam in an Islamic society of Muslims and it should not only be discouraged but should be stopped through a law by the State. To make laws such as the impugned Act, which help in ending or curtailing discrimination against women, Article 25(3) of the Constitution rightly provides the constitutional guarantee to any 'positive action' or even 'affirmative action', which shall be taken by the State for the protection of women and children in the country.

Verses 8 and 9 of Surah At-Takwir and Surah An-Nahl (Verses-58-59) ref.

Violence against women does exist in our society in different forms and on different pretext, and 'domestic violence' is one of them. Islam does not protect any custom or societal norm under any pretext which is against the fundamental teachings of the Holy Quran and Sunnah of the Holy Prophet (SAW). According to the contents of the impugned Act, the act of 'domestic aggression' committed by the defendant is enough to provide the basis which can set the impugned law in motion. The committing of 'domestic violence' by any male or female member of a family upon any female member of that family is not at all condoned by the injunctions of Islam, according to the principles laid down in the Holy Quran and Sunnah regarding the protection of life, property and dignity of women. Islam does not give any right to anyone and does not accept any justification of any man or woman of a family to commit violence against a female family member. Hence, the impugned law is not against males and has been wrongly portrayed by the petitioners, rather it is against the perpetrator of domestic violence, be it male or female.

Petitioners relied upon some subjective apprehensions and portrayed the impugned Act as detrimental law to the family system in the country. Since the impugned law is a special law, therefore, it duly provides a special procedure. It does not contain any provision which gives any arbitrary power to the Court or any other department of the Government constituted under the Act like 'District Women Protection Committee'. All the powers conferred upon any officer under the impugned law to protect women from violence are subject to the due process of law. All the power given under this law are specifically for the protection of a woman, who is aggrieved from an act of 'domestic violence', which is the duty of a Muslim State i.e. to take positive actions in a society to protect women from violence and discrimination.

According to the petitioners, Islam gives the male a higher status in society over the females to such an extent that a husband can beat his wife. Such arguments are not only out of context, but also misconceived and misconstrued. In Islam, male and female are equal before the law and this Islamic concept of equality of male and female is duly enshrined in the Constitution. According to Islamic injunctions men and women are equal in the eyes of law. According to Islam in some instances women have preference over men and in other instances men have preferences over women, but they are equal before the law and will be judged by Allah (SWT) according to their deeds. In the context of the family, the father, husband, brother and son have greater social and economic duties vis-a-vis their family relatives like mother, wife, sister or daughter, but this does not by any way confer upon men a right to abuse the females of their family in any manner, including physical abuse.

Surah al-Hujurat: 13; Surah an-Nahl: 97; Surah Ghafir: 40; Sahih al-Bukhari 5971; Surah Al-Baqarah, Verse-233; Surah At-Talaq, Verse-7; Sunan Abu Dawud 5146 and Sunan Ibn Majah 1978 ref.

The impugned Act will not devastate the family values and family system of the country, rather it will further strengthen the family system of the country in accordance to the Injunctions of Islam due to which females will not feel unsafe in their own houses, but they will feel protected. The home environment is to serve as a protective citadel for women and not a place of abuse and cruelty according to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW).

Verses 34 and 35 of Surah An-Nisa, in which the word "Qawwam" is used in the Holy Quran has repeatedly been relied upon by the petitioners in their arguments. Firstly, these two verses of Surah An-Nisa talk about the manner in which the Holy Quran wants its believers to settle their very serious matrimonial disputes. The Holy Quran provides a manner in which a long, ongoing serious matrimonial dispute should be settled in which the wife is accused of committing 'Nashuz' continuously. The Shafa'i and Hanbali Jurists are of the view that if for the sake of 'Tadeeb' i.e reprimand, it is permissible for the husband in exceptional case of 'Nashuz' to hit the wife symbolically, even then not raising one's hand is better, rather preferable. The word "Darab" used in verse 34 of Surah an-Nisa does not allow the husband by any means to hit the wife in any manner that falls within the definition of "domestic violence" as described by the impugned Act. The reason for appointing the male as Qawwam is that they are duty bound to maintain the women of their family properly and spend his wealth for that purpose, it does not mean that a man being a 'Qawwam' is allowed to inflict 'domestic violence'. Therefore, the reliance of the petitioners on one word of one sentence of the whole verse, i.e. Verse 34 of Surah An-Nisa, should not be read independently and out of context, it is not to be used to form a generalized principle.

Verse-34 and Verse-35 of Surah An-Nisa; Roza al-Taalibeen p.368, Vol.7; Nihayat al-Mohtaj p.383, Vol.6; Hashia al-Sharqawi ala Sharh al-Tehreer p.282, Vol.2; Kashaf al-Qina Vol.5 p.210; Mausua'h Fiqhuyah (Fiqh Encyclopedia) pp.324-331 Vol.40 and Sunan Abu Dawud 5146 ref.

Hence, according to the Quran the rule is that no one, male or female, can beat or raise his/her hand on any of the females, especially a mother, daughter, sister and wife. However, in very exceptional situations if any dispute between a husband and wife goes on and on, it may end up in a situation where the husband raises his hand in the heat of the moment on his wife after exhausting all the steps required and directed by the Holy Quran to settle the dispute. From the wording of Holy Quran it becomes clear that this is not a preferred act. Further, in the light of Ahadith this act should be avoided and in the worst case scenario if it happens, then it should be in a manner that it will not leave any mark on her body. In the words of Ahadith it should be 'Ghair Mubarrih' [which does not cause pain] or 'Ghair Muasir' [which does not leave any mark on the body].

Kitab al-Um, Imam As-Shaf'i p.194 vol.5; Mosu'ah Fiqheyah (Fiqh Encyclopedia) vol.10 p.51; Mishkat al-Masabin 2555 and Reported by Ahmad, Abu Dawud 2142, An-Nasa'i and Ibn Majah, Ibn Hibban and al-Hakim graded it Sahih (authentic) ref.

The provisions in the impugned Act relating to the procedure are not found against the injunctions of Islam as laid down in the Holy Quran and Sunnah, rather the very central provisions enunciated in the Act regarding settlement of disputes are in accordance with the Injunctions of Islam. Hence, any attempt of resolving disputes through mediation and reconciliation as provided by the impugned Act is in accordance with the Injunctions of Islam.

Verse 128 of Surah An-Nisa and Verse 10 of Surah Al-Hujurat ref.

Section 19 of the impugned Act which deals with punishment for filing a false complaint, provides a guarantee to protect the law from any misuse and abuse on any false pretext. Furthermore there are other checks and balances in the impugned law to protect from any misuse or abuse as apprehended by the petitioners, like section 21 which provides that the Court shall not take cognizance of an offence under the Act except on a complaint of the District Women Protection Officer or a Woman Protection Officer. Similarly section 22 provides the accused with a right of appeal. The impugned law contains provisions of checks and balances also in the implementation mechanism of the impugned Act to avoid any misuse of the law, for and against anybody, who is involved in any dispute, which comes under the umbrella of the law. All the matters were to be duly heard by the court of law from both the sides of a dispute before announcing any final judgment or making any interim order.

The impugned Act contains some provisions such as sections 23, 25, 27 and 28, to promote the awareness regarding the crime of domestic violence; to promote the activities that will be helpful to eradicate domestic violence against women from society; and to ensure the proper implementation of the impugned law in society. Islam does not permit any kind of violence, 'Tashadud' upon women, including domestic violence, and any provision of law that makes it mandatory to promote activities that are conforming to the teachings of Islam to prevent violence against women is not only permissible but desirable according to the teachings of Islam and such steps fall within the concept of 'amar-bil-maroof' according to the teachings of Islam.

In terms of section 7(1)(d) of the impugned Act an alleged perpetrator can be required to wear a GPS tracker. Such action will only be taken against the person (defendant), who not only fails in fulfilling his duties, which Islam puts upon him towards the female members of his family and worse than that, instead of fulfilling his duties, would act violently, causing hurt to the 'aggrieved person' which act is also against the teaching of Islam in the light of the teaching of the Holy Prophet (SAW). Therefore, steps like putting a GPS bracelet on a person are like any other administrative actions of similar nature taken by the State through the courts of law to restrict the movement of a volatile person, after satisfaction of the court that any violence has been committed or is likely to be committed, in order to protect an 'aggrieved person' from any illegal or criminal act. There is nothing un-Islamic in using wrist bracelets GPS Tracker to keep an alleged perpetrator away from the aggrieved person who is under eminent and grave threat to her body and also to keep such a person under surveillance in order to protect the life and dignity of an aggrieved woman. The use of new and latest technology to protect the life of any person is very much in accordance with the Shariah, rather it is the preferable course to adopt, because giving protection to life of any person is one of the primary goals of Shariah. Hence adopting any means possible and available for such purpose are permissible according to the Injunctions of Islam.

No provision of the impugned Act is against the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW), hence the Shariat petitions are dismissed with the directions that Provincial Government (of Punjab) shall ensure the proper implementation of the Punjab Protection of Women against Violence Act, 2016 and further roll out the said law in each and every district of the Province (of Punjab).

(b) Islamic law---

----Adoption---Permissibility---According to the Quran (Verses 4 and 5 of Surah Al-Ahzab) one may adopt a child, but one cannot change his parentage --- Adopted child must be addressed with the name of his real father and if somebody does not know the name of the father of the adopted child, then Allah (SWT) said that they should be treated as brethren in Islam and as friends.

Surah Al-Ahzab Verse 4 and Surah Al-Ahzab Verse 5 ref.

Petitioners in person (in Shariat Petition No. 03/I of 2016).

Petitioner in-person (in Shariat Petition No. 01/I of 2016).

Raja Muhammad Jawad Arsalan, Assistant Attorney General, Ms. Amna Ali, Assistant A.G. Punjab, Tariq Ismail, Law Officer Social Welfare Department, Government of Punjab, Lahore and Ms. Muneeza Manzoor Butt, District Women Protection Officer/Manager VAWC, Multan for Respondents.

P L D 2023 Federal Shariat Court 47

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

Messrs FAROOQ BROTHERS and others---Petitioners

Versus

UNITED BANK LIMITED and others---Respondents

Shariat Petition No.30-L of 1991, Shariat Miscellaneous No.4-L of 2002, Shariat Petition No. 11-I of 1989, Shariat Petitions Nos. 27-L, 8-K, 17-I, 18-I, 20-I, 21-I, 21-L, 30-I, 31-I of 1990, Shariat Petitions Nos.1-K, 1-L, 2-I, 2-L, 3-I, 4-I, 4-K, 16-I, 16-A/I, 16-C/I, 17-I, 17-A/I, 17-C/I, 24-L, 25-L, 27-I, 28-I, 30-I, 31-I, 32-I, 33-I, 35-I, 42-I, 45-I, 48-L, 51-I, 56-I, 57-I, 64-I, 65-I, 66-I, 67-I, 68-L, 69-L, 70-L, 71-L, 72-L, 74-I, 74-L, 78-I, 79-I, 80-I, 82-I, 83-I, 84-I, 85-L of 1991, 1-L, 7-I, 8-I, 9-I, 59-I of 1992, Shariat Suo-Motu Nos. 2-I, 3-I, 4-I of 1991, Shariat Suo-Motu Nos. 2-I, 3-I, 4-I, 5-I, 6-I, 7-I, 8-I, 9-I, 10-I, 11-I, 13-I of 1992, Shariat Petitions Nos. 4-I, 4-L, 6-L, 9-L of 2003, Shariat Petitions Nos. 1-I, 2-L of 2004, Shariat Miscellaneous Application No.8-I of 2007, Shariat Petitions Nos. 1-L, 2-K of 2008, Shariat Petition No. 12-I of 2013, Shariat Petition No. 3-I of 2014 and Shariat Petition No. 1-I of 2019, decided on 28th April, 2022.

Per Dr. Syed Muhammad Anwer, J; Muhammad Noor Meskanzai, C.J. and Khadim Hussain M. Shaikh, J agreeing.

(a) Constitution of Pakistan---

----Arts. 38(f), 203-B(c), 203-D & 203-G---Shariat petitions relating to Riba/interest---Maintainability---Federal Shariat Court, jurisdiction of---Federal Shariat Court has jurisdiction to examine and review any law on the touchstone of the Injunctions of Islam in the light of the Quran and the Sunnah and to decide whether such law is repugnant to the Injunctions of Islam or not, irrespective of the fact if any law or the provision of any law is linked with any Article of the Constitution---Federal Shariat Court has full jurisdiction over the fiscal laws also to analyze them at the touchstone of Islamic injunctions, i.e., the Holy Quran and Sunnah of the Holy Prophet (SAW)---Petitioners had challenged certain laws on the basis of Islamic Injunctions, seeking declaration that these provisions of law are against the Injunctions of Islam as laid down in Holy Quran and Sunnah (SAW) because they fall within the definition of Riba, which is prohibited in Islam---Hence, the prayer of the petitioners in their petitions cannot be and should not be viewed as a prayer for only the implementation of Art. 38(f) of the Constitution, which is Principle of Policy i.e. non-justiciable right in the Constitution---Present petitions before the Federal Shariat Court were maintainable.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Nusrat Baig Mirza v. Government of Pakistan and another PLD 1991 SC 509; Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 and Zahid Rehman v. The State PLD 2015 SC 77 ref.

(b) Constitution of Pakistan---

----Part II, Chap. 2---"Principles of Policy" mentioned in the Constitution---Scope---Although the Principles of Policy are non-justiciable rights, however, each such Principle mentioned in the Constitution is binding upon the government and it is the responsibility of each organ and authority of the State to act in accordance with these Principles of Policy.

2015 SCMR 1739; 2012 SCMR 779; PLD 2016 SC 189; 2005 SCMR 100; PLD 2015 SC 275 and PLD 1984 SC 439 ref.

(c) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Types of transactions falling within the definition of Riba---Concept of "Riba" according to Injunctions of Islam in the light of Holy Quran and Sunnah of the Holy Prophet (SAW) and views of Muslim jurists stated.

Prohibition of Riba is complete and absolute in all its forms and manifestations according to the Injunctions of Islam in accordance with the Holy Quran and Sunnah. The charging of any amount in any manner over the principal amount of a loan or debt is Riba which is completely prohibited according to the Quran and Sunnah of the Holy Prophet (SAW)---Riba is undisputedly, categorically, explicitly and absolutely prohibited by Nass-i-Qati, i.e., Quran and Sunnah. There is consensus and unanimity amongst (Muslim) scholars that the word 'Riba' means to increase, to grow, and to rise. Any amount taken or given in a loan transaction in excess to the actual loan amount is Riba. The increased amount upon a loan transaction has to be pre-determined or has to be mentioned as a condition for grant of loan or granting of extra time at the end of agreed period to return the loan. [pp. 120, 143, 243] G1, K1 & A5

https://al-maktaba.org/book/28100/1778;

https://al-maktaba.org/book/12145/1096; https://al-maktaba.org/book/33866/487;

al-Jami al-Saghir of as-Suyuti, Hadith No.6336,:

Riba should be defined inclusively not exclusively. It means that in the light of the verses of the Quran, saying of the Prophet (SAW) and the practice of Sehabah Karam, any transaction which has the slightest doubt of being included in any type or category of Riba must be included in the definition of Riba.

There are 12 verses in the Quran which deal with the term 'Riba' which is relevant to the present case. Sequence of the revelation of these versesis different from the sequence in which they occur in the Quran. The sequence of their revelation is important to understand because the verse which declared complete prohibition of 'Riba' in all its forms and manifestation was revealed gradually. Hence, all the verses of the Holy Quran regarding the prohibition of Riba must be read and understood collectively. Any attempt to read any of such verse out of context may cause misunderstanding in comprehending the full meaning of prohibition of Riba.

Surah ar-Rum, 30:39; Surah al-Baqarah, 2: 276;

Surah an-Nisa, 4: 160-161

Surah Aal-e-Imran, 3:130

There is a consensus amongst (Muslim) scholars that the last and final hukam in the Quran which unequivocally/expressly and categorically prohibited Riba was revealed in verses 275 to 279 of Surah Al-Baqarah. There is also another consensus among the scholars that this was the final hukm of Allah which was revealed upon Prophet Muhammad (SAW) before he left this world. [pp. 134, 135] I1 & J1

Surah al-Baqarah, 2:275-279;

The first and the foremost type of Riba is called 'Riba al-Nasi'h', which is the most well-known type of Riba. Since this type of Riba is prohibited in Quran; therefore, it is also called 'Riba al-Quran'. This type of Riba was known and practiced by the Arab tribes before the dawn of Islam in the period of ignorance. Therefore, this kind of Riba is also called 'Riba al-Jahiliya'. As this type of Riba is associated with a transaction involving loan, therefore, it is also called 'Riba al-Qard'. Some jurists have also called it as 'Riba Jali'.

Another type of transaction known as 'Riba al-fadl' is also prohibited which was explained by Prophet (SAW) himself. The 'Riba al-fadl' is also called 'Riba-ul-Sunnah' because its prohibition is based on Ahadith and Sunnah of the Prophet (SAW). Prohibition of 'Riba al-fadl' is in fact a precautionary measures introduced by Islam to implement the complete prohibition of Riba in any manner and all its forms.Basically 'Riba al-fadl' is referred to that specific increase which occurrs in relation to exchange of exactly similar types of goods. Riba al-Fadl is related to trade of goods, but not directly related to banking and financial transactions. However some principles can be drawn, while doing trade or drafting trade contracts which are being used in banking, on the basis of the Ahadith explaining the prohibition of Riba al-fadl.

According to the majority of the (Muslim) jurists, Riba of surplus or 'Riba al-fadhl' comes into existence in a sale transaction that involves the exchange of one of the 'Ribawi' commodities, i.e., the commodities which are mentioned in the Ahadith of the Prophet (SAW) (such as dates, wheat, and salt etc.) for the same type of commodity but different amount or weight. 'Riba al-fadl' arises from the exchange between two items of the same type, but in unequal amounts. The addition on one side of the transaction has to be in physical quantity rather than in value, it is irrelevant if that increase or addition is initially stipulated in the contract or not.

Bulugh al-Maram 7: 833, Sahih Muslim 81: 1587, https://sunnah.com/bulugh/7/66

Sahih Muslim, 'The Book of Musaqah': 1584e. https://sunnah.com/muslim:1584e

Mishkat al-Masabih, 'Business Transactions', Hadith 2813, Hukm:

https://sunnah.com/mishkat:2813. ref.

In the light of all the verses related to the prohibition of Riba in the Quran, Ahadith of the Prophet (SAW), explanations of all the jurists, scholars and mufassirin of Quran it can be concluded that:

i. According to the Injunctions of Islam, Riba exists in a loan or a financial transaction in which increase in principal amount of the lender of the money occurs;

ii. That increase in a transaction occurs according to the wishes of loan lending party (lender) at a predetermined rate or without any predetermined rate. (It is irrelevant whether the increased amount upon a loan is fixed at the initiation of the loan contract or charged after the lapses of certain stipulated time period);

iii. The transaction occurs in the absence of any exchange of a counter-value or recompense or Iwid; and

iv. Riba is prohibited absolutely in all of its forms and manifestations.

Shariah strictly prohibit all types of Riba, therefore any kind of socio-economic, legal or religious change in the borrower or the lender of a loan transaction involving Riba does not change the nature of prohibition. Riba is equally forbidden for the poor and the rich and even for the Muslims and the Non-Muslims in an Islamic State. Similarly, nature of its prohibition does not change with the change in the purpose of taking loan; which means that the loan taken on Riba for commercial, productive of industrial purpose is as prohibited as the charging of Riba upon a loan which is taken to fulfill personal need. Likewise, change in the ratio of percentage at which Riba is charged on a loan in a transaction does not change legal effect of prohibition of Riba in a transaction. This means that no limit of percentage can be fixed for the purpose that up till a certain limit charging of interest upon a loan is legal or permissible and more than such limit is forbidden or prohibited. Similarly, change in legal status of any party involved in a Riba transaction, for example if one of the parties or both the parties in a transaction are legal persons, does not change the legal or Sharai effect of the Ribatransaction, as it will remain prohibited.

Any transaction of money for money of the same denomination and value where the quantity on both sides is not equal, either in a spot transaction or in a transaction based on deferred payment is Riba. A barter transaction between two weighable or measureable commodities of the same kind, where the quantity on both sided is not equal, or where the delivery from one side is deferred is Riba. Similarly a barter transaction between two different weighable or measurable commodities where delivery from one side is deferred is also Riba.

(d) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---'Simple interest' and 'Compound interest'---Question as to whether the term 'Riba' is confined to compound interest only, and hence in light of Islamic Injunctions only charging of compound interest on loans is prohibited and not the charging of simple interest---Held, that Riba is haraam or prohibited in every form and quantity; its prohibition is not at all dependent on its percentage or the mathematical style in which it is calculated---Phraseology or expression of the Quran used in Verse 130 of Surah Aal-e-Imran itself makes it evident that in the said verse only doubled or multiplied interest is not meant or intended but it also includes even the smallest percentage of interest---Riba or interest is absolutely prohibited and forbidden---Shariat petitions were allowed.

Surah Aal-e-Imran, 3:130; al-Jassas, Abu Bakr Ahmad bin Ali al-Razi, (305-370H/ 917-981);

(e) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Question as to whether there is any difference between the terms 'usury' (Riba) and 'interest'---Held, that the terms 'interest' and 'usury' are synonyms used to translate the meaning of the term Riba---According to the Islamic principles of jurisprudence there is no difference between Riba (usury) and interest---Hence in principle both are one and the same thing and prohibited in Islam---Alteration in the name of any term does not change its legal effect---Shariat petitions were allowed.

https://www.bible.com/search/bible?q=usury and Book of Exodus (22:25) ref.

(f) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Question as to whether the prohibition of Riba in Islam changes with the change in the percentage of interest charged upon a loan---Held, that according to Injunctions of Islam, a thing which is prohibited is deemed to be prohibited completely and absolutely; its quantity does not have any effect over its prohibition, i.e., if large quantity of a thing is prohibited, a very small quantity of the same is also equally prohibited---According to the Holy Quran and Sunnah, the prohibition of Riba does not depend upon the quantum or the percentage of amount on which the interest is charged in any transaction, or the rate of interest taken in a transaction---Prohibition of Riba is absolute---Shariat petitions were allowed.

(g) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Consumption loans and commercial loans---Question as to whether only the charging of interest upon consumption loans is prohibited and the charging of interest upon commercial or productive loan is not prohibited in Islam---Held, that the prohibition of Riba is absolute, irrespective of the purpose for which the loan is taken on interest---Purpose of taking a loan does not change the status of prohibition of Riba---Shariat petitions were allowed.

Prohibition of Riba is absolute. It does not differentiate between the rich and the poor loan borrower. Riba or interest be it on personal loan or on commercial loan is haram and prohibited. Purpose of taking a loan does not change the status of prohibition of Riba. According to Injunctions of Islam, usury is associated with the ways and mode of transaction not with the quantity or type of interest. The nature of prohibition of Riba does not change with any change in the form or status of the borrower or the lender. Any change in the socio-economic status of the borrower or for that matter of the lender does not have any effect on the legal status of Riba or interest as it remains prohibited under any circumstances.

In early twentieth century some Muslim scholars felt that banking is unavoidable in the realm of commerce and industry, not just on a national but also on worldwide level. This drove them to claim that only usury is haram (illegal), but not commercial interest, because making commercial interest haram would obstruct their path to industrialization and economic advancement in insurmountable ways. They only included usury in the name of Riba since it is explicitly banned in the Quran and Sunnah, and they excluded commercial interest from ambit of Riba. As a result, it was determined that the ban of Riba was limited to usury, whereas interest on commercial loan was permissible. This approach is against the basic principle of Islamic Injunctions. When Islam prohibits anything, it prohibits not only one specific form of something which is currently widespread, but it prohibits all forms of that thing that may emerge in the future. The fact that the state or form has changed has no bearing on the judgment.

Sir Syed Ahmed Khan, Syed Ahmad Taqvi bin Syed Muhammad Muttaqi, (1817 ref.

The claim that commercial interest did not exist in the days of the Prophet (SAW) is completely wrong. The Arabian society at that time was a trading society and charging of interest on commercial loan was very much in vogue in Arabia at that time rather the existence of interest on commercial loan was one of the reasons for revelation of some of verses of the Quran relating to Riba. Shariat petitions were allowed.

(h) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Islamic banking model, practicality of---Islamic Banking or interest free banking was a reality; it was not only practical but also feasible not only in Pakistan but all across the world---Calling the Islamic Banking as a whole as heela i.e. a device to avoid what is otherwise Riba, is an unfounded and baseless argument---Products of Islamic Banking issued by the State Bank are reviewed and approved from Shariah Board of the State Bank in the light of Islamic Injunctions---Accounting standard adopted by the State Bank of Pakistan for such purpose are made and issued by a highly reputed International body of well recognized Islamic scholars of the world called Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI)---Islamic Banking is contributing a lot in bringing economic stability in the country according to its market share---Similarly, the apprehension that Islamic Banking may pose a risk to security of the country is also unfounded---State Bank of Pakistan was also making efforts to remain compatible with the international standers of Islamic Banking---Currently there are many international organizations which are systemically working on standardization of Islamic finance and Islamic banking like Islamic Financial Services Board (IFSB) and Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI)---In Pakistan a comprehensive framework exists for Sukuk (bonds) and regular issuance of Sukuk (bonds) can be used to make the financial system Shariah compliant and interest free at the Government Level---Gradual target can be set by Government to convert its entire borrowing to Islamic modes in next few years and stop issuance of interest-based instruments---Therefore, to eliminate Riba completely Federal Shariat Court directed all Public Sector entities to start dealing only in interest-free Shariah-compliant modes which are approved by the State Bank of Pakistan---Steps taken and standards adopted by the State Bank of Pakistan and Government of Pakistan through Ministry of Finance to promote Islamic Banking in Pakistan stated.

(i) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Business transaction---Question as to whether interest or Riba becomes permissible if a transaction is undertaken or made in the name of a business---Held, that all or any transaction undertaken by a bank, if it involves interest or Riba at any percentage, less or more, in any form simple or multiplied or compound, is prohibited and haram---Banking itself per se is neither permissible nor impermissible according to the Injunctions of Islam in the light of the Quran and Sunnah, and it is actually the nature of transaction which it undertakes that makes it permissible or impermissible---If its transactions are Shariah compliant then it is permissible ,and if they are not Shariah compliant or there are doubts about them of being Shariah compliant, then such transactions are impermissible and against the Injunctions of Islam---Shariat petitions were allowed.

verse 2: 275 of Surah Baqrah ref.

(j) Constitution of Pakistan---

----Arts. 38(f), 203-B(c) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Federal Shariat Court, jurisdiction of---Scope---Question as to whether mechanism of indexation and inflation should be adopted by the banking sector in Pakistan to balance the inherent imbalance in the economic transactions---Held, that such question did not come under the precinct of jurisdiction of the Federal Shariat Court because presently there did not exist any law which contains the said issue---At present, there did not exist any law, regulation or SRO of State Bank, etc., which deals with the question of indexation; therefore, the question of indexation and all the related questions in such regard, which are connected to the effect of inflation of money over the borrowed amount during the period of borrowing fall outside the scope of the jurisdiction of the Federal Shariat Court at the moment---Mechanism of indexation and inflation was a matter to be decided by the relevant authorities like the regulator of the banking sector, i.e., Sate Bank of Pakistan or the Government or the Parliament---Shariat petitions were allowed.

(k) Constitution of Pakistan---

----Arts. 2-A, 203-D & 227---Federal Shariat Court, jurisdiction of---Scope---Policy guidelines---To give a policy guideline to the government or to any sector in order to mould that sector in accordance with the principles of Islam is not the job of Federal Shariat Court---Such obligation and duty was on the Parliament to follow the guiding principles by itself keeping in view the Islamic provision of the Constitution like Arts 2-A & 227 in addition to the overall framework of the Constitution or it could seek the assistance of Council of Islamic Ideology of Pakistan.

(l) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Charging of interest by banks on loans given by them to their customers---Interest paid by the bank to its depositors upon their deposits in the bank---Held, that both said forms of interest were Riba, and, thus prohibited---Banking interest is Riba in all its forms and manifestation---Loan that draws any additional amount which is normally called as interest is Riba; be it the amount taken by the banks from their customers upon lending them loan for any purpose or be it the payment made by the banks to its customers against their deposits which they maintain with the banks---Shariat petitions were allowed.

The banking interest charged by the bank upon extending any kind of loan to any kind of customer does fall within the definition of Riba. The money provided by conventional banks to their customers is undoubtedly a loan, and at the time of return of principal amount by the customer to the bank any increase in that principal amount does fall in the category of Riba Al-Naseah or Riba al-Quran.

Shariah considers bank deposits as Qarz and not as amanah because the repayment of the deposited money to the depositor is guaranteed and the bank has full freedom to use it, spend and invest it in any manner which the bank decides in accordance with Shariah. It means that it is not given by the customer to the bank only and solely for keeping in a safe custody. Hence, deposits made in the banks are considered as Qarz given by the depositors to the banks and the charging of interest upon the deposit, under any name, is Riba and, thus, prohibited. Overwhelming majority of the jurists in the Islamic world have consensus over it.

Resolution No. 10 (10/2) regarding: 'Rulings on Usury-based Bank Transactions and Dealing with Islamic Banks', passed in 2nd Session in Jeddah, Saudi Arabia, on 10-16 Rabi Rabi' al-Awwal 1406H / 22-28 December 1985. For English version .https://iifa-aifi.org/en/ 32234.html and Arabic version: https://iifa-aifi.org/ar/1598.html; Sahih al-Bukhari, 3129 https://sunnah.com/ bukhari:3129 and Resolution No. 86 (3/9) regarding: 'Bank Deposits (Bank Accounts)', passed in 9th Session held in Abu Dhabi, United Arab Emirates, on 1-6 Dhu al-Qi'dah 1415H/ 1-6 April 1985. For English version .https://iifa-aifi.org/en/ 32511.html and Arabic version: https://iifa-aifi.org/ar/1992.html ref.

Since financial activity is an ever-evolving phenomenon; the different modes of financial and economic actions must be made to confirm to the guiding principle of Islamic financial principles. This means that all and every financial transaction must be completely free from Riba, al-Gharar (uncertainty), al-Qimar (gambling) and al-Maysir (unearned income). Shariat petitions were allowed.

(m) Constitution of Pakistan---

----Art. 203-D---Action/activity prohibited by Shariah---Consent of any party while doing an action or activity which is prohibited and forbidden in Shariah does not make it legal or permissible.

(n) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---International commitments on payment of interest or Riba on international loans already taken by Pakistan---Future foreign borrowing by the Federal Government---Held, that according to the Injunctions of Islam, Pakistan is bound to fulfill all or any financial obligation regarding its foreign debt, however, if it wants to make those Riba based transactions Shariah-compliant, then it is also possible but with the mutual consent of the parties---Any interest stipulated in the Government borrowings acquired from domestic or foreign sources is Riba and clearly prohibited by the Holy Quran and Sunnah, therefore, in future the Government should adopt Shariah-compliant modes while borrowing either from domestic or from foreign sources---For future foreign borrowing there are enough Shariah-compliant modes available in the international financial market which can be used and which are well recognized by the International banks and financial institutions---Islamic finance structure savailable for financing infrastructure projects and shariah compliant solutions for foreignborrowing offered by major international banks and multi-lateral agencies stated.

(o) Constitution of Pakistan---

----Arts. 38(f) & 203-D(2)(b)---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Timeline for the Government to take necessary steps for formulation of legislation which could provide enabling legal framework necessary to transform the Conventional banking system into Riba-free or Islamic banking system---Held, that under the prevalent circumstances it is appropriate and suitable for the Federal Shariat Court to set a time line for complete implementation of present decision which is also a Constitutional requirement in terms of Art. 203-D(2)(b) of the Constitution---Setting of the timeline is the requirement of the Constitution which also fulfills the requirement of Shariah as in some situations time is required for proper implementation of a Shariah ruling---Existence of Shariah Standard for Audit and Accounting approved by the State Bank of Pakistan and above all the existence of number of full-fledged Islamic Banks in the country in addition to many conventional Banks with branches or windows of Islamic Banking is ample evidence that the transformation from conventional banking system into Riba-free or Islamic banking system can be completed very easily---Federal Shariat Court observed that five years period is reasonably enough time for the implementation of the present decision completely i.e converting economy of Pakistan into, equitable, asset based, risk sharing and interest-free economy---Accordingly the Federal Shariat Court specified 31-12-2027 as the date on which the present decision shall take effect by way of complete elimination of Riba from Pakistan---Shariat petitions were allowed.

(p) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Interest Act (XXXII of 1839), Preamble---Government Savings Banks Act (V of 1873), S. 10---Negotiable Instruments Act (XXVI of 1881), Ss. 78, 80, 114 & 117(c)---Land Acquisition Act (I of 1894), Ss. 28, 32, 33 & 34---Civil Procedure Code (V of 1908), Ss. 2(12), 34, 34-A, 34-B, 35(3) & 144(1) & O. XXI, R. 11(2)(g), O. XXI, R. 38, O. XXI, R. 79(3), O. XXI, R. 80(3), O. XXI, R. 93, O.XXXIV, Rr. 2(1)(a)(i), 2(1)(a)(iii), 2(1)(c)(i) & 2(1)(c)(ii), O.XXXIV, R. 2(2), O.XXXIV, R. 4, O.XXXIV, Rr. 7(1)(a)(i), 7(1)(a)(iii), 7(1)(c)(i) & 7(1)(c)(ii), O.XXXIV, R.7(2), O. XXXIV, R. 11, O.XXXIV, R. 13 (1), O.XXXVII, R. 2 & O.XXXIX, R. 9---Co-operative Societies Act (VII of 1925), Ss. 33-A, 50, 59(2)(e), 71(2)(m) & 71(2)(ee)---Co-operative Societies Rules, 1927, Rr.14(1)(h), 22 & 41 & Appendices 1 to 4---West Pakistan Money-Lenders Ordinance (XXIV of 1960), Preamble---Sindh Money-Lenders Ordinance (W.P Ordinance XXIV of 1960), Preamble---Khyber Pakhtunkhwa Money-Lenders Ordinance (W.P. Ordinance XXIV of 1960), Preamble---West Pakistan Money-Lenders Rules, 1965---Agricultural Development Bank Rules, 1961, Rr. 17(1), 17(2) & 17(3)---Banking Companies Ordinance (LVII of 1962), S. 25(2)(a)---Banking Companies Rules, 1963, R. 9---Banks (Nationalization) Payment of Compensation Rules, 1974, R. 9---Defense Saving Certificates Rules, 1966---Special Savings Certificates Rules, 1990---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 61(2)(c)---Life Insurance Nationalization Order (President's Order No. 10 of 1972), Preamble---War Risks Insurance Ordinance (XXXII of 1971), Preamble---Federal Employees Benevolent Fund and Group Insurance Act (II of 1969), Preamble---War Risks Insurance Ordinance (XXVI of 1965), Preamble---Riots and Civil Commotion Risks Insurance Ordinance (III of 1947), Preamble---War Injuries (Compensation) Insurance Act (XXIII of 1943), Preamble---Shariat petitions---Riba/interest---Repugnancy to Injunctions of Islam---Federal Shariat Court declared that the Interest Act, 1839, the West Pakistan Money-Lenders Ordinance, 1960, the Sindh Money-Lenders Ordinance, 1960, the Khyber Pakhtunkhwa Money-Lenders Ordinance, 1960, the West Pakistan Money-Lenders Rules, 1965, Section 10 of Government Savings Banks Act, 1873, Sections 78, 80, 114 and 117(c) of the Negotiable Instruments Act, 1881 (so far as these sections are used to support or facilitate any interest bearing transaction), Sections 28, 32, 33, and 34 of the Land Acquisition Act, 1894 (so far as the word 'interest' is used in these sections within the meanings of banking interest), Section25(2)(a) of the Banking Companies Ordinance, 1962 relating to interest and mark-up, Section 61(2)(c) of Legal Practitioners and Bar Councils Act, 1973 (to the extent theword 'any interest' is used in this clause), the Defense Saving Certificates Rules, 1966, the Special Savings Certificates Rules, 1990, Rule 9 the Banking Companies Rules, 1963, Rules 17(1) & (2) of the Agricultural Development Bank Rules 1961, Rule 9 of the Banks (Nationalization) Payment of Compensation Rules, 1974, Rules 14(1)(h), 22 & 41 along with Appendices 1 to 4 of the Cooperative Societies Rules 1927 (and any circular made thereunder containing the provision of word interest), are repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SAW)---Federal Shariat Court further declared that Sections 33-A, 50, 59(2)(e), 71(2)(m) and 71(2)(ee) of the Co-operative Societies Act, 1925, Sections 2(12), 34, 34-A, 34-B, 35(3) & 144(1) and O. XXI, R.11(2)(g), O. XXI, R. 38, O.XXI, R. 79(3), O. XXI, R. 80(3), O. XXI, R. 93, O.XXXIV, Rr. 2(1)(a)(i), 2(1)(a)(iii), 2(1)(c)(i) & 2(1)(c)(ii), O.XXXIV, R. 2(2), O.XXXIV, R. 4, O.XXXIV, Rr. 7(1)(a)(i), 7(1)(a)(iii), 7(1)(c)(i) and 7(1)(c)(ii), O.XXXIV, R.7(2), O. XXXIV, R. 11, O.XXXIV, R. 13(1), O.XXXVII, R. 2 and O.XXXIX, R. 9 of Civil Procedure Code, 1908 to the extent that the word interest appears in all these provisions are repugnant to the Injunctions of Islam hence they shall be deleted and be amended appropriately---Federal Shariat Court also declared that the Life Insurance Nationalization Order, 1972, the War Risks Insurance Ordinance, 1971, the Federal Employees Benevolent Fund and Group Insurance Act, 1969, the War Risks Insurance Ordinance, 1965, the Riots and Civil Commotion Risks Insurance Ordinance, 1947, and the War Injuries (Compensation) Insurance Act, 1943, to the extent the word interest occurred in these laws, are against the Injunctions of Islam as laid down in the Holy Quran and Sunnah, hence the same should be deleted or alternatively changed where ever possible with any of the Shariah-compliant mode which is approved by the State Bank of Pakistan.

Habib Bank Limited v. Muhammad Hussain and another PLD 1987 Kar. 612 ref.

(q) Constitution of Pakistan---

----Arts. 38(f) & 203-D---Shariat petitions---Insurance business---Takaful---Repugnancy to Injunctions of Islam---Concept of insurance per se is not un-Islamic; its prohibition and permissibility in Shariah depends upon the modes of business in which an insurance company is involved to generate profits for itself and its customers---If an insurance company is involved in those type of modes which are linked with or based upon those activities which are prohibited in Islam like Riba, al-Gharrar or al-Qimar, then such insurance services given by a company are prohibited according to the Injunctions of Islam---Otherwise, if an insurance company is involved in any of the Shariah-csompliant business modes to generate profits for itself and for its customers then it is permissible according to the Injunctions of Islam---Islamic concept of insurance is called Takaful---Word "Takaful" originates from the Arabic word "Kafalah" which means to "Guarantee, Guardianship, Foster care and protective care etc.---Takaful companies undertake business in accordance with the Shariah-compliant Modes which are free from Riba, al-Gharar and al-Qimar---Concept of Takaful is based on Islamic Injunctions.

Qamoos al-Maani', Qamoos Arabi anglezi ref.

Per Muhammad Noor Meskanzai, CJ; agreeing with Dr. Syed Muhammad Anwer, J.

(r) Jurisdiction---

----Jurisdiction cannot be conferred by consent if a forum otherwise lacks jurisdiction.

(s) Constitution of Pakistan---

----Arts. 2, 2-A, 31, 38(f), 203-B(c), 203-D, 203-G & 227---Shariat petitions relating to Riba/interest---Maintainability---Federal Shariat Court, jurisdiction of---Scheme of Constitution for Islamization of laws cannot be overlooked and ignored; it starts with the Preamble followed by Arts. 2, 2-A, 31 & 227 of the Constitution which ensure that the State shall enable its subjects to order their lives in the individual and collective spheres in accordance with teaching of Islam as set out in Holy Quran and Sunnah---Commitment of the State with its subjects regarding Islamization of laws guaranteed in clear and unequivocal constitutional terms have to be honoured, respected and given effect to---Islamic way of life is absolutely incomplete and impossible without an economic environment/culture and society free from Riba, usury and interest---Word Riba used in Art. 38(f) of the Constitution has been admitted as a menace, economic evil and stands to be eliminated as soon as possible---No controversy regarding prohibition i.e. Hurmat of Riba---All laws challenged in the present petitions are subordinate legislation to the Constitution, so by no stretch of imagination an implied bar can be pleaded to oust an express and clear jurisdiction of the Federal Shariat Court---After 26-04-1990 the bar regarding financial institution [mentioned in Art. 203-B(c) of the Constitution] does not exist, nor any subordinate legislation regarding fiscal laws can be claimed to be immune from examination of the Federal Shariat Court within the powers exercisable under Art. 203-D of the Constitution---Federal Shariat Court for all intent and purposes is well within its jurisdiction to decide the present Shariat petitions.

Ahmad v. Abdul Aziz PLD 1989 SC 771 ref.

(t) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court, jurisdiction of---Scope---Any subordinate legislation or a law even if validated or protected under Constitution cannot get itself out from the test of repugnancy at the touchstone of Injunctions of Islam i.e. Holy Quran and Sunnah simply because of its protection or validation.

Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

(u) Jurisdiction---

----Ouster of jurisdiction of Court---Scope---Courts do have jurisdiction unless it is barred expressly or by necessary implication---Practice of Superior Court has been that they have preferred assumption of jurisdiction instead of abdication of jurisdiction.

Sajjad Hussain and 2 others v. The State PLD 1989 FSC 50 ref.

Shariat Petition No. 30-L of 1991

For Petitioners:

Dr. Aslam Khaki, Advocate (supported by Mrs. Yasmeen Haider, Advocate), Qaiser Imam, Advocate, Saif Ullah Gondal, Advocate for Jamat-e-Islami, Dr. Fareed Ahmed Paracha, Imam Dullah and Sujah Ullah, Zafar Ali Raja, Advocate. Raja Muhammad Akram, Advocate, Malik Ghulam Sabir, Advocate, Col. Retd. Syed Iqbal Hashmi, Advocate, Muhammad Siddique Mughal and Qazi Muhammad Siddique, Advocates, Emad-ul-Hassan, Advocate, Javed Mansoor Khan, Advocate, M. Kowkab Iqbal, Advocate, Rai Bashir Ahmad, Ghulam Farid Senator and M.Asad Manzoor Butt, Advocates, Raja Farrukh Arif Bhatti, Advocate, Ghulam Qadir Jatoi, Advocate, Prof. Muhammad Ibrahim Khan, Advocate, Touseef Abbasi, Sher Hamad Khan Advocates, Anwar Mansoor Khan, Senior Advocate, Faiz Rasool Jalbani, Advocate, Syed Sikander Abbas Gillani, Advocate, Salamat Ali Chohan, Adviser to State, Mehmood ur Rehm, Advocate, Atif Waheed, Ishtiq Ahmed Farooq, Liaquat Baloch, Jamat-e-Islami, Lahore, Dr. Atta-ur-Rehman, Jamat-e-Islami, Lahore, Dr. Sahams-ul-Haq Hanif, Peshawar, Khuda Yar Khan, Muhammad Aftab Abbasi, Tanzim-e-Islami, Qazi Irfan, Muhammad Saeed Al-Raee, Retd Inspector General of Police, Squardon Leader (Retd.) Tariq Abdul Majeed, Lt. Commander Rtd. Mehmood Iqbal, General Secretary (Foreign), Ghulam Murtaza Jatoi, Advocate, Adnan Ramay and Muneeb Ali Awan, Advocates, Muhammad Younas Meo, Advocate, Maluna Abdul Maalik, Muhammad Anwer Abbasi, Advocate, Dr. Muhammad Hafeez Arshad, Al-Hafeez Welfare Trust, DHA-II, Abdul Ghafoor Chochan, Wing Commander Zarin Qureshi for Tanzee-e-Islami, Imran Shafique, Advocate, Dr. Sahams-ul-Haq Hanif, Peshawar, Mst. Rashidan, Mst. Shukran Bibi, Mst. Saleema Bibi daughters of Khurshid Muhammad, Messrs Bodhla Cotton Ginning and Pressing Factory, Umer Latif, Mufti Ahsan Waqar, Head Shariah Board, NBP. Dr. Mufti Tajamal Muhammad Zubair Usmani, UBL, Tanveer Farhan Mehmood, Head of Islamic Banking System, UBL. Mufti Muhammad Ibrahim Essa, Shariah Advisor and Jalaluddin Ahmed, Chief Executive, Muhammad Saeed Alrai (PSP), Muhammad Iqbal, Muhammad Ayub, Director Research and Training Islamabad, Muhammad Anwar Abbasi, Col. (R) Abdul Rahman, Ghulam Jillani. Prof. Dr. M. Fahim Khan, Riaz Ahmed, Zahoor Ahmed and Saeed Ahmed sons of Khurshid Muhammad, Khuda Yar Khan, Messrs Farooq Brothers, Ishtiaq Ahmed Farooq, Babar Moinuddin, Mufti Abdul Ghaffar, Darul Fatta, Sukkur, Dr. Humaira Awais Shahid, Lahore, Gul Muhammad Toor, Prof. Muhammad Asif, Mir Zaman Khan, Tauseef Ahmed Advocate, Khurram Imam Advocate, Imdadullah Advocate, Ms. Abida Safdar, Assistant A.G. KPK and Ms. Sofia Noreen, Assistant A.G.KPK.

For respondents:

Khalid Javed Khan, Attorney General for Pakistan, Anwar Mansoor Khan, Ex-Attorney General for Pakistan, Ashtar Ausaf Ali, Ex-AG Pakistan, Ch. Ishtiaq Meharban, DAG, Pervaiz Khan Tanoli, Assistant Attorney General for Federal Govt., Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab and Ahsan Hameed Dogar on behalf of A.G. Sindh, Muhammad Ayyaz Khan, Advocate on behalf of A.G. Balochistan, Syed Aley Rizwi, Addl. A.G. Sindh, Kashif Paracha, Addl. AGP. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, Assistant A.G. Balochistan, Malik Akhtar Hussain, Addl. A.G. KPK, Nazeer Abbasi, Standing Counsel for Federal Government, Razzaq.A. Mirza, Addl. Advocate General Punjab, Syed Wajid Ali Gillani, Addl. Advocate General, Punjab, Mujahid Ali Khan, DAG KPK. Ms. Sofia Noreen, Assistant Advocate General, KPK, Nadeem Arshad, SO Legal Ministry of Finance, Ali Safdar Naghra, Law Officer on behalf of Secretary Finance Punjab, Raja Ahsan Mehmood Satti, Standing Counsel for Federal Government, Syed Aley Maqbool Rizvi, Additional Advocate General, Sindh, Barrister Qasim Ali Chochan, Assistant A.G. Punjab, Arshad Ahmad, Assistant A.G. KPK, Ayaz Khan Swati, Addl. A.G. Balochistan, Raza Abbas Naqvi, A.A.G. Punjab, Shaukat Rauf Siddiqui, Addl. Advocate General, Punjab, Muhammad Zikria Sheikh, Deputy Attorney General of Pakistan, Lahore, Yousaf Qureshi, Assistant A.G. Punjab, Walayat Khan, Assistant A.G. KPK, Razaq A. Mirza, Addl. Advocate General Punjab, Wallayat Khan, Assistant Advocate General, KPK, Salman Akram Raja, Advocate for SBP, Syed Ansar Hussain, Deputy Director on behalf of SBP, Javed Iqbal Khan, Advocate for Chairman Punjab Co-operative Board for Liquidation Lahore, Mehmood Nazir Rana, Law Officer SBP, Mufti Ehsan Waqar, Chairman/Head Shariah Board, NBP, Barrister Maqbool Ahmed, Advocate on behalf of Salman Akram Raja, Advocate, Muhammad Tajamul Hussain, Manager NBP Legal, Rustam on behalf of Sindh Bar Counsel, Zaheer Tanoli, Law Officer on behalf of UBL, Tahir Shabbir, Deputy DAO, Rawalpindi on behalf of Secretary Finance, Punjab Lahore, Shahid Saleem, Ministry of Finance, Lahore. Ms. Iram Younas on behalf of Ministry of Commerce and PIC, Masood Anwar, Advocate for NICL Ministry of Commerce, Aziz ur Rehman, Advocate, Ayyaz Hussain, Executive Officer Law National Insurance Corporation, Shakeel Asghar, Law Officer on behalf of Chief Secretary KPK, Dr. Mehmood ul Rehman Faisal, DG National Savings, Shaukat Rauf Siddiqui, Addl. Advocate General, Punjab, Raja Saleem Ullah, Law Officer Finance Department Government of Punjab, Malik Ghulam Advocate for State Bank of Pakistan, Ghulam Nabi Azhar, Industrial Assistant Registrar Cooperative Department Lahore, Wallayat Khan, Assistant Advocate General, KPK, Muhammad Yousaf, MD Legal Affairs SLIC, Abdul Shakoor Saqib, Deputy DAO Rawalpindi, Feroz Malik, Deputy Manager State Life Insurance, Khan Pacha, Senior Superintendent, Office of the Chief Executive Terbela, Ms. Bushra Qamar, President Provincial Bar Council Punjab Lahore, Salah ud Din Khan, Gandapur and Manzoor Leghari, Advocates on behalf of Sindh Bar Council, Shakil Ahmed, Assistant Solicitor Ministry of Law and Justice, Javed Ali, Deputy District Accounts Officer Punjab Finance Department, Muhammad Javed Iqbal, Assistant Vice President, ZTBL, Muhammad Javed Ali, DAO Punjab Finance Department Rawalpindi, Muhammad Asad Mehmood, Section Officer (Insurance) Commerce Islamabad, Muhammad Aslam Sipra, Deputy Director Finance, Punjab Government, Ghulam Muhammad and Mehmood Shafqat for State Bank of Pakistan, Saleem Shehzad, Section Officer Ministry of Finance, Sohabt Ali Talpur, Deputy Secretary Ministry of Finance Islamabad, Saleem Ullah, Director State Bank of Pakistan, Muhammad Yousaf, SPS to Ahmed Dildar, Member Legal FBR Islamabad, Rana Abdul Ghaffar Khan, Advocate, Saim AR Abbas, Assistant Registrar Industrial Cooperative, GM Abbasi, Director State Bank of Pakistan, Mrs. Imrana Baloch, AOR on behalf of Government of Punjab, Zain-ul-Abidin, Secretary Sindh Bar Council, Raza Mohsin Qazalbash, Director State Bank of Pakistan, Ghani Value, Glass Limited, Lahore, Muhammad Yaseen Traders, Commission Agent, Momin Cotton Ginners and Oil Mills, Rahim Yar Khan, Welcome Agro Chemicals, Bahawalpur, Raazi Hospital, Rawalpindi and Mazhar A Nurani.

Economist:

Shaukat Shehzad.

Jurisconsults:

Dr. Attiq-ul-Zafar Khan, Dr. Hafiz Muhammad Tufail, Dr. Muhammad Ayub, Dr. Muhammad Tahir Mansori, Dr. Muhammad Qaseem, Prof. Dr. Muhammad Yousaf Farooqi and Asim Mansoor Khan.

Amici Curiae:

Dr. Ijaz Ahmed Samdani, Dr. Zaheer-ud-Din Babar Awan, Advocate, Barrister Abdullah Babar Awan, Advocate, Anwar Mansoor Khan, Asim Mansoor Khan, Maluana Asmat Ullah, Maulana Ahmed Ali Siddiqui and Dr. Waqar Masood, Ex-Secretary Finance, Islamabad.

Public Notice:

Shakeel Ahmed, Ex-Banker. Mst. Balqees Rahat, Advocate, Syed Arshad Hussain, Advocate, Sayyid Tahir, Saad. Hujaj Ali Nawaz Khan, Muhammad Umar Khan and Siraj ul Haq, Ameer Jama'at-e-Islami.

Shariat Misc. Application No.04-L of 2002

Counsel for petitioner:

Ch. Abdur Rehman, Advocate and Mian Sher Alam, Advocate, Barrister Abrar Nahakm, Advocate, Malik Wiqar Saleem, Advocate and Hafiz Muhammad Saeed, Advocate.

For respondents:

Ch. Ishtiaq Meharban, D.A.G.

Shariat Petition No.27-L of 1990

For petitioner:

Iqbal Hamed-ur-Rehman, Advocate and Muhammad Amin Sheikh, Advocate.

For respondents:

Aijaz Ali Khaskheli, Ghulam Rasool Korai and Khalid Mahmood Siddiqui, Advocates on behalf of NBP

Shariat Petition No.01-K of 1991

For Petitioner:

S.M. Saeed, Advocate.

For respondents:

Ahmad Bashir and Aziz-ur-Rehman Farooqi, Advocates, Ms. Sarah Rehman, Advocate, Babar Sattar, Advocate for HBL, Aneeq Salman Malik, Advocate for HBL and Muhammad Saleem, Manager HBL Zone Office Islamabad.

Shariat Petition No.08-K of 1990

For Petitioner:

Syed Afzal Hussain (in person).

For respondents:

Syed Ali Zafar, Advocate, for Chairman Pakistan Banking Council Karachi and Farrakh Qayyum, Deputy Secretary (BKG) Government of Pakistan Finance Division Islamabad.

Shariat Petition No.17-I of 1990

For petitioner:

Dr. Mahmood ur Rehman Faisal (in person)

For respondents:

Syed Ali Zafar, Advocate, Salaman Akram Raja, Advocate for SBP. Syed Ansar Hussain, Deputy Director SBP, Mahmood Nazir Rana, Law Officer SBP and Barrister Maqbool Ahmed, Advocate SBP.

Shariat Petition No.18-I of 1990

For petitioner:

Dr. Mahmood ur Rehman Faisal (in person) and Tahir Malik, Advocate.

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.20-I of 1990

For petitioner:

Dr. Mahmood ur Rehman Faisal (in person)

For respondents:

Syed Ali Zafar Advocate.

Shariat Petition No.21-I of 1990

For petitioner:

Muhammad Amin Sheikh, Advocate.

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.21-L of 1990

For petitioner:

Muhammad Amin Sheikh, Advocate.

For respondents:

Babar Sattar, Advocate, Aneeq Salman Malik, Advocate for HBL, Muhammad Saleem, Manager HBL Zone office Islamabad and Ms. Sarah Rehman, Advocate for HBL.

Shariat Petition No.30-I of 1990

For petitioner:

Dr. Mahmood ur Rehman Faisal (in person).

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.31-I of 1990

For petitioner:

Dr. Mahmood ur Rehman Faisal (in person).

For respondents:

Syed Ali Zafar, Advocate, Muhammad Sultan, A.P. Legal National Savings, Muhammad Tanveer Mehmood, (NSO) C.D.N.S, Aziz-ur-Rehman Farooqi, Advocate, Bakht, Bahadur, Director CDNS, Nazir and Sardar Hameed, CDNS Islamabad, Zaheer Abbas, Joint Director, CDNS, Sardar Hameed Akhtar on behalf of Ministry of Finance and Sardar Hamad Akhtar, CDNS, Islamabad.

Shariat Petition No.01-L of 1991

For petitioner:

Ch. Ijaz Ahmad (in person).

For respondents:

Malik Muhammad Nawaz, Advocate.

Shariat Suo-Motu No.02-I of 1991

For respondents:

Khalid Javed Khan, Attorney General for Pakistan, Anwar Mansoor Khan, Ex-Attorney General for Pakistan, Ashtar Ausaf Ali, Ex-AG Pakistan, Ch. Ishtiaq Meharban, DAG and Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab and Ahsan Hameed Dogar on behalf of A.G. Sindh, Muhammad Ayyaz Khan, Advocate on behalf of A.G. Balochistan, Syed Aley Rizwi, Addl. A.G. Sindh, Khashif Paracha, Addl. AGP. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, Assistant A.G. Balochistan, Malik Akhtar Hussain, Addl. A.G. KPK, Nazeer Abbasi, Standing Counsel for Federal Government, Razzaq.A. Mirza, Addl. Advocate General Punjab, Mujahid Ali Khan, DAG KPK, Nadeem Arshad, SO Legal Ministry of Finance, Ali Safdar Naghra, Law Officer on behalf of Secretary Finance Punjab, Raja Ahsan Mehmood Satti, Standing Counsel for Federal Government, Barrister Qasim Ali Chochan, Assistant A.G. Punjab, Arshad Ahmad, Assistant A.G. KPK, Ayaz Khan Swati, Addl. A.G. Balochistan, Raza Abbas Naqvi, A.A.G. Punjab, Yousaf Qureshi, Assistant A.G. Punjab and Walayat Khan, Assistant A.G. KPK.

Shariat Petition No.02-L of 1991

For petitioner:

Dr. Syed Asad Gillani (in person) and Sheikh-ul-Hadith Maulana Abdul Malik, Mansoora Lahore.

For respondents:

Ghulam Nabi-Azhar, Industrial Assistant Registrar Cooperative Society Lahore and Mian Azhar Hussain, Assistant Electric Inspector Energy Department Govt. of Punjab.

Shariat Suo Motu No.03-I of 1991

For respondents:

Ch. Ishtiaq Meharban, DAG and Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab and Ahsan Hameed Dogar on behalf of A.G. Sindh, Muhammad Ayyaz Khan, Advocate on behalf of A.G. Balochistan, Syed Aley Rizwi, Addl. A.G. Sindh, Khashif Paracha, Addl. AGP, Asthar Ausaf Ali, Ex-A.G. Pakistan, Khalid Javed Khan, Attorney General for Pakistan, Anwar Mansoor Khan, Ex-Attorney General for Pakistan, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, Assistant A.G. Balochistan, Malik Akhtar Hussain, Addl. A.G. KPK, Nazeer Abbasi, Standing Counsel for Federal Government, Razzaq A. Mirza, Addl. Advocate General Punjab, Mujahid Ali Khan, DAG KPK, Nadeem Arshad, SO Legal Ministry of Finance, Ali Safdar Naghra, Law Officer on behalf of Secretary Finance Punjab, Raja Ahsan Mehmood Satti, Standing Counsel for Federal Government, Barrister Qasim Ali Chochan, Assistant A.G. Punjab, Arshad Ahmad, Assistant A.G. KPK, Ayaz Khan Swati, Addl. A.G. Balochistan, Raza Abbas Naqvi, A.A.G. Punjab, Yousaf Qureshi, Assistant A.G. Punjab and Walayat Khan, Assistant A.G. KPK.

Shariat Suo Motu No.04-I of 1991

For respondents:

Ch. Ishtiaq Meharban, D.A.G. and Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab and Ahsan Hameed Dogar on behalf of A.G. Sindh, Muhammad Ayyaz Khan, Advocate on behalf of A.G. Balochistan, Syed Aley Rizwi, Addl. A.G. Sindh, Khashif Paracha, Addl. AGP, Asthar Ausaf Ali, Ex-A.G. Pakistan, Khalid Javed Khan, Attorney General for Pakistan, Anwar Mansoor Khan, Ex-Attorney General for Pakistan. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, Assistant A.G. Balochistan, Malik Akhtar Hussain, Addl. A.G. KPK, Nazeer Abbasi, Standing Counsel for Federal Government, Razzaq A. Mirza, Addl. Advocate General Punjab, Mujahid Ali Khan, DAG KPK, Nadeem Arshad, SO Legal Ministry of Finance, Ali Safdar Naghra, Law Officer on behalf of Secretary Finance Punjab, Raja Ahsan Mehmood Satti, Standing Counsel for Federal Government, Barrister Qasim Ali Chochan, Assistant A.G. Punjab, Arshad Ahmad, Assistant A.G. KPK, Ayaz Khan Swati, Addl. A.G. Balochistan, Raza Abbas Naqvi, A.A.G. Punjab, Yousaf Qureshi, Assistant A.G. Punjab, Walayat Khan, Assistant A.G. KPK, Ashraf, AC (HR) Kasur and Javed Ali, Punjab Finance Department.

Shariat Petition No.04-K of 1991

For petitioner:

Javed Mazhar (in person).

For respondents:

Ch. Muhammad Nawaz, Advocate for respondent No.3, Amjad Ali, A.O. Customs and Muhammad Javed Iqbal, APV, ZTBL.

Shariat Petition No.16-I of 1991

For petitioner:

Raja Muhammad Akram, Advocate.

For respondents:

Aijaz Ali Khaskheli, Ghulam Rasool Korai and Khalid Mahmood Siddiqui, Advocates on behalf of NBP and Qasim Bhatti, MIS, Officer, NBP, Regional Office Rawalpindi, Muhammad Riaz, Vice-President UBL, Legal Division and Zaheer Ahmad Tanoli, Law Officer for UBL.

Shariat Petition No.16-A/I of 1991

For petitioner:

Raja Muhammad Akram, Advocate and Sameer Khosa, Advocate.

For respondents:

Qasim Bhatti, MIS-Officer NBP, Regional Office Rawalpindi and Abdul Rauf, Advocate.

Shariat Petition No.16-C/I of 1991

For petitioner:

Raja Muhammad Akram, Advocate and Sameer Khosa, Advocate.

For respondents:

Qasim Bhatti, MIS-Officer NBP, Regional Office Rawalpindi.

Shariat Petition No.17-I of 1991

For petitioner:

Nemo.

For respondents:

Malik Muhammad Siddique Awan and Rizwan Mahmood, Advocates, for NBP.

Shariat Petition No.17-A/I of 1991

For petitioner:

Raja Muhammad Akram, Advocate and Sameer Khosa, Advocate.

For respondents:

Nadeem, SO Legal Ministry of Finance.

Shariat Petition No.17-C/I of 1991

For petitioner:

Raja Muhammad Akram, Advocate and Sameer Khosa, Advocate.

For respondents:

Qasim Bhatti, MIS-Officer NBP, Regional Office Rawalpindi.

Shariat Petition No.24-L of 1991

For petitioner:

Muhammad Ashraf and Muhammad Akram (in person).

For respondents:

Javed Iqbal Khan, Advocate and Ch. Muhammad Yaqub Sidhu, Advocate for Chairman Punjab Cooperative Board for Liquidation Lahore, Jameel Ahmed Qazi, Industrial Inspector Rawalpindi, Ghulam Nabi Azhar, Industrial Assistant Registrar Cooperative Department Lahore, Rana Naeem Akhtar, Assistant Manager Legal for NICFC/PCBL and Liaqat Ali, Industrial Assistant Registrar Lahore Punjab.

Shariat Petition No.25-L of 1991

For petitioner:

Muhammad Iqbal Naz (in person).

For respondents:

Nasir Javeid Virk and Tahir Lateef Sheikh, Advocates HBFCL, Shafqat Rasool, Manager Legal, HBFC, Sammer, IAR Cooperative, Jameel Ahmed Qazi, Industrial Inspector Rawalpindi, Muhammad Shahid Butt, Industrial Assistant Registrar Cooperative and Rana Abdul Ghaffar Khan, Advocate.

Shariat Petition No.27-I of 1991

For petitioner:

Muhammad Ashraf (in person).

For respondents:

Jameel Ahmed Qazi, Industrial Inspector Rawalpindi and Liaqat Ali, Industrial Assistant Registrar Lahore Punjab.

Shariat Petition No.28-I of 1991

For petitioner:

Muhammad Iqbal Naz (in person).

For respondents:

Jameel Ahmed Qazi, Industrial Inspector Rawalpindi and Liaqat Ali, Industrial Assistant Registrar Lahore Punjab.

Shariat Petition No.30-I of 1991

For petitioner:

S.M. Tayyab, Advocate.

For respondents:

Javed Iqbal Khan, Advocate on behalf of Chairman Cooperative Board for Liquidation, Lahore, Rana Naeem Akhtar, Assistant Manager Legal for NICFC/PCBL and Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.31-I of 1991

For petitioner:

Faiz Ahmad (in person).

For respondents:

Ahmed Bashir and Aziz ur Rehman Farooqi, Advocates, Syed Ali Zafar, Advocate, Mehmood Tanveer, NSO and Muhammad Saleem, Manager HBL Zone office Islamabad.

Shariat Petition No.32-I of 1991

For petitioner:

Faiz Ahmed (in person).

For respondents:

Ahmed Bashir and Aziz ur Rehman Farooqi, Advocates for HBL and Muhammad Saleem, Manager HBL Zone Office Islamabad.

Shariat Petition No.33-I of 1991

For petitioner:

Faiz Ahmed (in person).

For respondents:

Ahmed Bashir Advocate, Aziz ur Rehman Farooqi, Advocate for HBL and Muhammad Saleem, Manager HBL Zone Office Islamabad.

Shariat Petition No.35-I of 1991

For petitioner:

Kashmir Fabrics (in person).

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.42-I of 1991

For petitioner:

Muhammad Hashim (in person).

For respondents:

Aziz Ali Khaskhali, Advocate, Ghulam Rasool Korai and Khalid Mahmood Siddiqui, Advocates on behalf of NBP.

Shariat Petition No.45-I of 1991

For petitioner:

Muhammad Hashim (in person).

For respondents:

Aziz Ali Khaskhali, Advocate, Ghulam Rasool Korai and Khalid Mahmood Siddiqui, Advocates on behalf of NBP.

Shariat Petition No.48-L of 1991

For petitioner:

Petitioner's counsel has died.

For respondents:

Tahir Lateef, Advocate for HBFC, Shafaat Rasul, Manager Legal HBFC and Hashmat Ali Habib, Advocate.

Shariat Petition No.51-I of 1991

For petitioner:

Muhammad Iqbal Advocate (in person).

For respondents:

Nemo.

Shariat Petition No.56-I of 1991

For petitioner:

Kashmir Fabrics (in person).

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.57-I of 1991

For petitioner:

Kashmir Fabrics (in person).

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.64-I of 1991

For petitioner:

Mohammad Mukhtar Ahmad Farani (in person).

For respondents:

Govt. of Sindh through Secretary Law.

Shariat Petition No.65-I of 1991

For petitioner:

Mohammad Mukhtar Ahmad Farani (in person).

For respondents:

Government of Balochistan through Secretary Law.

Shariat Petition No.66-I of 1991

For petitioner:

Muhammad Mukhtar Ahmad Farani (in person).

For respondents:

Government of NWFP through Secretary Law.

Shariat Petition No.67-I of 1991

For petitioner:

Mohammad Mukhtar Ahmad Farani (in person).

For respondents:

Government of Punjab through Secretary Law.

Shariat Petition No.68-L of 1991

For petitioner:

Muhammad Amin Sheikh, Advocate.

For respondents:

Syed Ali Zafar, Advocate ABL and Khawar Ehsan, Manager SAM ABL.

Shariat Petition No.69-L of 1991

For petitioner:

Muhammad Amin Sheikh, Advocate.

For respondents:

Syed Ali Zafar, Advocate, Khawar Ehsan, Manager SAM ABL and Khurram Ehsan, Member SAM North ABL.

Shariat Petition No.70-L of 1991

For petitioner:

Muhammad Amin Shaikh, Advocate.

For respondents:

Aijaz Ali Khaskheli, Litigation Officer, Ghulam Rasool Korai, and Khalid Mahmood Siddiqui, Advocates for NBP and Syed Ali Zafar, Advocate.

Shariat Petition No.71-L of 1991

For petitioner:

Muhammad Amin Shaikh Advocate.

For respondents:

Aijaz Ali Khaskheli, Litigation Officer, Ghulam Rasool Korai, and Khalid Mahmood Siddiqui, Advocates for NBP, Syed Ali Zafar, Advocate.

Shariat Petition No.72-L of 1991

For petitioner:

Muhammad Amin Shaikh, Advocate.

For respondents:

Aijaz Ali Khaskheli, Litigation Officer, Ghulam Rasool Korai, and Khalid Mahmood Siddiqui, Advocates for NBP, Syed Ali Zafar, Advocate and Muhammad Javed Iqbal, APV, ZTBL.

Shariat Petition No.74-I of 1991

For petitioner:

Abdul Qayyum Qureshi (in person).

For respondents:

Attorney General and Deputy Attorney General for Pakistan.

Shariat Petition No.74-L of 1991

For petitioner:

Naveed Asif (in person).

For respondents:

Aijaz Ali Khaskheli, Litigation Officer, Ghulam Rasool Korai, and Khalid Mahmood Siddiqui, Advocates for NBP.

Syed Ali Zafar, Advocate and Khurram Ehsan, Member SAM North ABL.

Shariat Petition No.78-I of 1991

For petitioner:

Gulzar Ahmad Khan (in person).

For respondents:

Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.79-I of 1991

For petitioner:

Gulzar Ahmad Khan, Senator (in person).

For respondents:

Javed Iqbal Khan, Advocate for Chairman Punjab Cooperative Board for Liquidation Lahore, Jameel Ahmed Qazi, Industrial Inspector Rawalpindi, Rana Naeem Akhtar, Assistant Manager Legal for NICFC/PCBL and Liaqat Ali, Industrial Assistant Registrar Lahore Punjab.

Shariat Petition No.80-I of 1991

For petitioner:

Gulzar Ahmad Khan, Senator (in person).

For respondents:

Punjab Cooperative Board.

Shariat Petition No.82-I of 1991

For petitioner:

Ch. Sarwar Hayat (in person).

For respondents:

Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.83-I of 1991

For petitioner:

Ch. Sarwar Hayat (in person).

For respondents:

Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.84-I of 1991

For petitioner:

Ch. Sarwar Hayat (in person).

For respondents:

Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.85-L of 1991

For petitioner:

Mohammad Sharif (in person).

For respondents:

Muhammad Shahid Butt, Industrial Assistant Registrar Cooperative and Liaqat Ali, Industrial Assistant Registrar Lahore Punjab.

Shariat Petition No.01-L of 1992

For petitioner:

Syed Afzal Haider, Advocate.

For respondents:

Syed Mir Ahmed Shah, Cooperative Punjab.

Shariat Petition No.07-I of 1992

For petitioners:

Abdur Rehman Siddiqui Advocate and Muhammad Mansoor Jafer (in person).

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, DAG for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK. Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Tanveer Mehmood, (NSO) C.D.N.S. Sardar Hameed Akhtar, CDNS National Savings, Muhammad Sultan, AP (Legal) National Savings, Bakht Bahadur, Director CDNS, Nazir and Sardar Hameed, CDNS Islamabad, Zaheer Abbas, Joint Director, CDNS. Sardar Hameed Akhtar on behalf of Ministry of Finance and Sardar Hamad Akhtar, CDNS, Islamabad.

Shariat Petition No.08-I of 1992

For petitioners:

Abdur Rehman Siddiqui Advocate and Muhammad Mansoor Jafer (in person).

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Tanveer Mehmood, (NSO) C.D.N.S, Muhammad Sultan, AP (Legal) National Savings, Bakht Bahadur Director CDNS, Nazir and Sardar Hameed, CDNS Islamabad, Zaheer Abbas Joint Director, CDNS, Sardar Hameed Akhtar on behalf of Ministry of Finance and Sardar Hamad Akhtar, CDNS, Islamabad.

Shariat Petition No.09-I of 1992

For petitioners:

Abdur Rehman Siddiqui Advocate and Muhammad Mansoor Jafer (in person).

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Tanveer Mehmood, (NSO) C.D.N.S, Muhammad Sultan, AP (Legal) National Savings, Bakht Bahadur, Director CDNS, Nazir and Sardar Hameed, CDNS Islamabad, Zaheer Abbas, Joint Director, CDNS. Sardar Hameed Akhtar on behalf of Ministry of Finance. Sardar Hamad Akhtar, CDNS, Islamabad and Raja Mehmood Subhani, Manager Legal on behalf of Chief Secretary Punjab.

Shariat Petition No.11-I of 1989

For petitioner:

Musthaq Hussain Shah (in person), Salah ud Din Khan, Advocate and Musa Bashir Janjua Advocate.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Imtiaz Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Aziz-ul-Haque Nishtar, Advocate for respondent, Sajjad Ali, Advocate for Director (Legal) WAPDA, WAPDA House Lahore, Tahir Malik, Advocate for State Life Insurance Cooperation Rawalpindi Zone, Salman Mushtaq, Deputy DAO on behalf of Chief Secretary Punjab, Masood Anwar, Advocate for NICL, Ayaz Hussain, Executive Officer NICL, Muhammad Umar Khan, NICL-MOC, Barrister Adam Hassan Malik on behalf of Postal Life Insurance, Awal Daad, Assistant Superintendent Postal Life Insurance, Sajjad Zafar, Advocate for WAPDA, Mehr un Nisa Khalid, AGM, Abdul Bais, Dy. Director Admn WAPDA, Muhammad Farooq Malik, DM, SLIC, Abdul Shakoor Saqib, Deputy DAO Rawalpindi. Syed Wajahit Ali, ADPLI Lahore, Muhammad Siddique Malik, DG Legal GEPCO WAPDA, Dr. Muhammad Akram Nawaz, GM Postal Life Insurance, Post office Service Management Board, Niaz Sardar, Deputy Director Admin WAPDA, Rao Akram Khurram, Advocate on behalf of Pakistan Insurance Corporation, Muhammad Nusrat Hussain, ED (OPS) NICL, Khan Bacha, Senior Superintendent WAPDA Office CE (P) Tarbela, Mahmud Raza Khan, Advocate on behalf of Chairman Pakistan Insurance Corporation and Jibran Khalil, Law Officer Government of Punjab.

Shariat Petition No.59-I of 1992

For petitioner:

Roshan Din Roshan (in person).

For respondents:

Khalid Umar Chaudhary, Law Officer Punjab Bar Council, Salah ud Din Khan Gandopar, Sindh Bar Council, HCB (Annexue) Karachi, Muhammad Farooq Malik, DM, SLIC, Abdul Shakoor Saqib, Deputy DAO Rawalpindi, Syed Wajahit Ali, ADPLI Lahore and Zain ul Abideen, Secretary Sindh Bar Council.

S.S.M.No.02-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, DAG for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

S.S.M. No.03-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.04-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.05-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.06-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.07-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.08-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.09-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.10-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Suo-Motu No.11-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar, Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan and Shafqat Rasool, Advocate NICL.

Shariat Suo-Motu No.13-I of 1992

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Petition No.04-I of 2003

For petitioner:

Rai Khan Muhammad, Advocate.

For respondents:

Deputy Attorney General for Pakistan.

Shariat Petition No.02-L of 2004

For petitioner:

Rana Ghulam Sarwar, Advocate, Noor Ahmad, Assistant Board of Revenue Tehsil Municipal Administration Kasur, Muhammad Abid, Municipal Officer (Finance) Municipal Corporation Kasur, Rashid Mehmood, Municipal Officer Retd Municipal Corporation Kasur, Idrees Khan, Municipal Officer Regulations Municipal Committee Kasur and Khalil Ahmed, Tehsil Municipal Administration Government of Punjab Kasur.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Ibrahim, (AEI) Energy Department Punjab, Iqbal Ahmed Khan, respondent No.16, Muhammad Yaseen, Director Technical Power, Muhammad Adnan Khan, Senior Law Officer Board of Revenue Punjab, Tariq Nazeer, Law Officer, Board of Revenue Punjab on behalf of respondents Nos.5 and 9. Raja Mehmood Subhani, Manager Legal on behalf of Chief Secretary Punjab.

Shariat Petition No.04-L of 2003

For petitioner:

Muhammad Ismail Qureshi, Advocate, Abdul Bais, Dy. Director Admn WAPDA, Muhammad Siddique Malik, D.G. Legal GEPCO WAPDA and Niaz Sardar, Deputy Director Admin WAPDA.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Ibrahim, (AEI) Energy Department Punjab, Muhammad Yaseen, Director Technical Power, Muhammad Adnan Khan, Senior Law Officer Board of Revenue Punjab, Muhammad Siddique Malik, D.G. Legal GEPCO, Tariq Nazeer Law Officer, Board of Revenue Punjab on behalf of respondents Nos.5 and 9 and Raja Mehmood Subhani, Manager Legal on behalf of Chief Secretary Punjab.

Shariat Petition No.06-L of 2003

For petitioner:

Justice (Retd) Muhammad Munir Paracha, Advocate for GEPCO, Gujranwala, Aurangzeb Mirza, Advocate for petitioner, Abdul Bais, Dy. Director Admn WAPDA, Muhammad Siddique Malik, D.G. Legal GEPCO WAPDA and Niaz Sardar, Deputy Director Admin WAPDA.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK, Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Ibrahim, (AEI) Energy Department Punjab, Muhammad Siddique, DG Legal GEPCO, Muhammad Yaseen, Director Technical Power, Muhammad Adnan Khan, Senior Law Officer Board of Revenue Punjab, Tariq Nazeer, Law Officer, Board of Revenue Punjab on behalf of respondents Nos.5 and 9 and Raja Mehmood Subhani, Manager Legal on behalf of Chief Secretary Punjab.

Shariat Petition No.09-L of 2003

For petitioner:

Aurangzeb, Advocate, Muhammad Siddique Malik, DG Legal GEPCO WAPDA, Niaz Sardar, Deputy Director Admin WAPDA.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh, Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan, Muhammad Ibrahim, (AEI) Energy Department Punjab, Muhammad Siddique Malik, DG Legal on behalf of GEPCO Limited Gujranwala, Muhammad Yaseen, Director Technical Power, Muhammad Adnan Khan Senior Law Officer Board of Revenue Punjab, Abdul Bais, Dy. Director Admn WAPDA and Tariq Nazeer, Law Officer, Board of Revenue Punjab on behalf of respondents Nos.5 and 9.

Shariat Petition No.01-I of 2004

For petitioner:

Syed Kazim Hussain Kazmi, Advocate and Naeem Ahmed Awan, Advocate for GENCO-III, Muzaffargarh, Muhammad Ashraf Sheikh, Advocate for NPGCL, TPS, Muzaffargarh, Muhammad Usman Sheikh, Advocate for GENCO-III, Muzaffargarh, Muqarras Iqbal, Chief HRM Admn, NPGCL, on behalf of petition, Muhammad Iqbal Anjum, CEO NGPCL, TPS through CEO WAPDA, Thermal Power Station Muzaffargarh, Muqarrab Iqbal, Chief Human Rights NPGCL, Salamat Ali Jogi, (DM) on behalf of Chairman State Life Insurance Corporation of Pakistan and Musa Bashir Janjua, Advocate.

For respondents:

Ch. Ishtiaq Meharban, Deputy Attorney General for Pakistan, Salamat Ali Jogi, D.M. on behalf of Chairman State Life Insurance Corporation of Pakistan.

Shariat Misc. Application No.08-I of 2007

For petitioner:

Syed Muhammad Baqir Ali Gilani (in person).

For respondents:

Syed Ali Zafar, Advocate.

Shariat Petition No.01-L of 2008

For petitioner:

Mst. Shaista Yasmeen (in person), Mian Ghulam Ullah Khan Joiya, Advocate, Muhammad Ahmed Hassan Khan, Advocate, Muhammad Javed-ur-Rehman Rana, Advocate, Syed Muhammad Ilyas Chairman Awam Dost Part, Chief Editor Hafiza Newspaper, Lahore.

For respondents:

Salman Akram Raja, Advocate for SBP, Tahir Latif Sheikh and Nasir Javed Virk, Advocates for respondent No.2 HBFC, Rehan Nawaz, Advocate for respondent No.4 State Bank of Pakistan, Hashmat Habib, Advocate for HBFCL Karachi, Shafqat Rasool, Manager Legal HBFCL, Zahid Ali Khan former G.M. HBFC Lahore, Dil Afroz Subhani, Advocate for respondents Nos. 4 to 7, Muhammad Amin, Officer Grade-I SBP Lahore, Muhammad Nawaz Waseer, Standing Counsel for Federal Government, Zafaraullah Khan, GM, Legal, HBFC, Abid Ali Baig, Law Officer HBFC, Irshad Ali Khan, Officer Grade-I on behalf of State Bank of Pakistan, Hamza Liaquat, Manager Legal HBFCL and Shafqat Rasool, Manager Legal, HBFC.

Shariat Petition No.02-K of 2008

For petitioner:

Manzoor Ahmed Yousfani (in person).

For respondents:

Muhammad Aslam, D.A.G.

Shariat Petition No.12-I of 2013

For petitioner:

Muhammad Kokab Iqbal, Advocate and Ghulam Fareed Sanotra and Rai Bashir Ahmad and Rai Usman, Advocates, Muhammad Younas Meo, Advocate and M. Asad Manzoor Butt, Advocate, Muhammad Rafique Nizami, Advocate and Atif Waheed, Incharge IRTS Quran Academy Lahore.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Petition No.03-I of 2014

For petitioner:

Raja Farrukh Arif Bhatti, Advocate.

For respondents:

Khalid Javed, Attorney General for Pakistan, Ch. Ishtiaq Meharban, D.A.G. for Pakistan, Ch. Saleem Murtaza Mughal, Addl. Advocate General Punjab, Arshad Khan, Addl. A.G. KPK. Sardar Ali Raza, Addl. A.G. KPK, Muhammad Fareed Dogar, A.A.G. Balochistan, Ahsan Hameed Dogar Advocate on behalf of A.G. Sindh and Muhammad Ayaz Khan Swati, Addl. A.G. Balochistan.

Shariat Petition No.01-I of 2019

For petitioner:

Atif Waheed (in person) and Muhammad Younas Meo, Advocate.

For respondents:

P L D 2023 Federal Shariat Court 265

Present: Dr. Syed Muhammad Anwer, ACJ and Khadim Hussain M. Shaikh, J

ALI AZHAR---Petitioner

Versus

PROVINCE OF SINDH through Secretary Law, Parliamentary Affairs and

Criminal Prosecution Department and 5 others---Respondents

Shariat Petition No. 05/I of 2022, decided on 6th March, 2023.

(a) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court, jurisdiction of---Relief in personam---Grant of relief in personam is beyond the jurisdiction of the Federal Shariat Court and, therefore, cannot be granted.

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

----Ss. 2(a), 8 & Preamble---Constitution of Pakistan, Art. 203-D---Shariat petition---Setting the age of 18, as mentioned in S. 2(a) of the Sindh Child Marriages Restraint Act, 2013, as the minimum legal age for males and females for the purposes of marriage---Repugnancy to Injunctions of Islam---Relation of marriage does not depend only on the fact that whether the parties to a marriage have attained the age of puberty or not, but it requires certain mental maturity also---Time period to attain sexual puberty and mental maturity may and may not be the same---One who does not have the means to have a healthy marital life must wait for having better economic and other conditions necessary to lead a healthy marital life---Act of setting a minimum age limit for marriage and setting age for an adult eligible to solemnize marriage vide impugned S. 2(a) of the Sindh Child Marriages Restraint Act, 2013 is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah.

According to Islam a marriage is not only confined to legitimate sexual relationship between a man and woman but it also establishes the rights and duties of the couple. So far as rights of husband and wife over each other are concerned both husband and wife are equal, however Islam puts husband under obligation and made him duty bound to protect his wife and provide sustenance to her according to his strength and abilities. Both the spouses are necessary for each other for their individual and collective sustenance, care, survival and protection of each other, etc. Such a relationship requires mental maturity, psychological stability, economic sustainability, etc. This relation is not restricted and limited to sexual relationship only. Hence, this important relation of a human being does not depend only on the fact that whether the parties to a marriage have attained the age of puberty or not, but it requires certain mental maturity also, which is commonly called as 'Rushd' according to the injunctions of the Holy Quran and Sunnah of the Prophet (SAW).

Verse-228 of Surah Al-Baqarah; Verse 187 of Surah Al-Baqarah and Verse 6 of Surah Al-Nisa ref.

Sexual maturity (Balugh) is different from mental maturity (Rushd), therefore, a different age is set for a normal person to attain mental maturity (Rushd). Time period to attain sexual puberty and mental maturity may and may not be the same but normally mental maturity comes later than sexual puberty due to many external factors associated with the intellectual and emotional development of a person and formal education is the most important one for the mental development of a human being.

Al-Sarakhsi, Al-Mabsoot 23-24, page 161, Qamoos al-Fiqh Maulana Saifullah Rehman Vol. 3 [Page 480], Ahkam Ul Quran Jasas; Tafseer of Ayat 6 of Surah An-Nisa (Tafseer Ahkam ul Quran by Jasas, Tafseer al-Qurtubi, Tafheem al-Quran, Zia-u-Quran, etc.; Ma'ariful Qur'an, Page-323-324, Volume-2 and ref.

As sexual maturity is only one aspect necessary for marriage under Islamic law, there are other requirements also which are considered necessary and appropriate to enter into a marriage contract, which may include financial condition, health and mental maturity, etc. The fact that the legality of marriage is subject to the ability of the person from different aspects, this act is at the same time considered as Fard, Wajib, Mustahib, Makruh and even Haram depending on the physical and economic and mental condition of a person who wants to marry. One who does not have the means to have a healthy marital life must wait for having better economic and other conditions necessary to lead a healthy marital life, otherwise one must avoid to enter into a marriage contract.

Verse 33 of Surah An-Nur and Surah An-Nisa (Verse 25) ref.

The setting a minimum age for marriage i.e an act which is "Mobah" (permissible) and not absolutely mandatory (Fard) like marriage is in accordance with the injunctions of Islam, because such fixation of minimum age limit provides reasonable time period to girls to complete basic education at least, which normally helps in developing mental maturity (Rushd) in a person. That act of the legislature to fix a minimum age for marriage is also in accordance with injunctions of Islam as laid down in the Quran and Sunnah from the aspect of principles of goals of Shariah or Maqasid Al-Shariah and other principles set out by the Holy Quran and Sunnah.

Farooq Omar Bhoja v. The Federation of Pakistan PLD 2022 FSC 1 ref.

Duty of a Muslim State is to block the means of harm or evil that may be attached to child marriage under the concept/principle of Islamic law, called Sadd al-Dara'i. According to the said principle i.e. blocking means that cause harm, the State through legislation can take steps and set certain minimum thresholds for undertaking an act to protect a person or category of persons. Such steps taken by the State fall within the category of Masalaih Mursalah i.e. the consideration of public interest.

The fixing of an age limit to enter into marriage by the State or a government, as is done in the impugned law, is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah. The act of setting a minimum age limit for marriage and setting age for an adult eligible to solemnize marriage vide impugned section 2(a) of the Sindh Child Marriages Restraint Act, 2013 is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah. Shariat petition was dismissed.

Muhammad Nizar Tanoli for Petitioner.

Sagheer Ahmed Abbasi, Assistant A.G., Sindh for the State.

P L D 2023 Federal Shariat Court 283

Before Dr. Syed Muhammad Anwer, A.C.J. and Khadim Hussain M. Shaikh, J

NADEEM SIDDIQUI, ADVOCATE SUPREME COURT---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Law and Justice---Respondent

Shariat Petition No. 10/I of 2013, decided on 21st November, 2022.

(a) House Building Finance Corporation Act (XVIII of 1952) [since repealed]---

----Ss. 28, 29 & 30---Constitution of Pakistan, Art. 203-D---Shariat petition---Impugned law already repealed---Rights of Corporation in cases of default---Power to call for payment before agreed period---Repugnancy to Injunctions of Islam---Plea of petitioner that S. 28 of the House Building Finance Corporation Act, 1952 ("Act of 1952") gives unfettered power to the House Building Finance Corporation ("Corporation") to sell out the house of a borrower in case of default in repayment of the loan amount, which renders the Corporation into a money lender engaged in usury, which is forbidden by the express command of the Holy Quran; that similarly, S. 29 of the Act of 1952 is un-Islamic as it gives absolute right to the Corporation to direct the borrower to repay the whole loan amount, in case the borrower fails to pay even one installment; that likewise, S. 30 of the Act of 1952 is also repugnant to the injunctions of Islam as it restricts the borrower's rights towards his mortgaged property---Validity---House Building Finance Corporation Act, 1952 ("Act of 1952") had already been repealed vide the House Building Finance Corporation (Repeal) Act, 2018 ("Act of 2018"), dated 24-05-2018---However, perusal of the repealing law revealed that the nomenclature of the law, which was to be repealed, was wrongly mentioned as "The House Building Finance Corporation (Repeal) Act, 1952 (XVIII of 1952)" instead of "The House Building Finance Corporation Act, 1952 (XVIII of 1952)"---Law Officer informed that Federal Shariat Court that the mistake had been rectified, and the expression "(Repeal)" in S. 2 of the House Building Finance Corporation (Repeal) Act, 2018 was omitted by way of a Corrigenda issued by the Senate Secretariat dated 01-11-2022---Since the impugned law had already been repealed, therefore, the present Shariat petition became infructuous and was accordingly dismissed.

(b) Legislation---

----Legislative drafting---Mistake---State cannot afford even the slightest error in drafting of laws, as it may cause serious legal complications---Mistake of only one word, in a legislation, may defeat its very purpose---Federal Shariat Court directed Secretary Law and Justice to ensure special care in legislative drafting.

Nemo for Petitioner.

Raja Muhammad Jawad Arsalan, Assistant Attorney General, Ms. Amna Ali, Assistant A.G. Punjab, Ahsan Hameed Dogar, Assistant A.G. Sindh, Mubashir Manzoor, Assistant A.G., Khyber Pakhtunkhwa and Fareed Ahmad Dogar, Assistant A.G. Balochistan for Respondent.

P L D 2023 Federal Shariat Court 286

Before Dr. Syed Muhammad Anwer, A.C.J. and Khadim Hussain M. Shaikh, J

KHURRAM SHEHZAD---Petitioner

Versus

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

Shariat Petition No. 11-I of 2022, decided on 7th February, 2023.

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

----S.10(4)---Constitution of Pakistan, Art. 203-D---Shariat petition---Dissolution of marriage---"Khula"----Khula granted under S. 10(4) of the Family Courts Act, 1964 without consent of the husband---Repugnancy to Injunctions of Islam---Present matter had already been decided by the Federal Shariat Court in the case reported as "Saleem Ahmad and others v. Government of Pakistan and others", reported as PLD 2014 FSC 43, wherein it was held that the Quran does not specifically create a bar for court of competent jurisdiction to decree a case of "Khula" when reconciliation fails; that courts can decide all types of matters including, dissolution of marriage on certain grounds, and that they are authorized to decide the case of Khula, if a husband does not at all agree to the divorce of his wife and all the reconciliatory efforts fail---Shariat petition was dismissed.

Saleem Ahmad and others v. Government of Pakistan and others PLD 2014 FSC 43 ref.

(b) Islamic law---

----'Khula' and 'Talaq'---Distinction between their legal effect---'Halala'---Scope---According to Shariah, Khula operates as a single irrevocable divorce, which means that both the spouses can contract a fresh marriage with mutual consent, of course if they want to, without any intermediary marriage of the wife with another person, which is known as "Halala"---Iddat shall be incumbent upon the wife if she wants to contract marriage with someone else after Khula---However, when a husband pronounces divorce (Talaq) to his wife for the third time and that attains finality, then if he wants to remarry that lady, a Halala is required i.e. the lady marries somebody else and that marriage dissolves in normal course either by divorce or due to the death of her second husband and she becomes a widow.

Major Qamar Zaman Qadir v. Judge Family Court, Jehlum and others PLD 2013 Lah. 88; Danish v. Mst. Fozia Danish and another PLD 2013 Sindh 209; Attiq Ahmed Khan v. Noor-ul-Saba and another 2011 CLC 1211; Muhammad Ayub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar. 131; Fazli-e-Subhan v. Mst. Sabereen and 3 others PLD 2003 Peshawar 169; Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447 and Mst. Nawab Bibi and 14 others v. Mst. Anwar Bibi and 6 others PLD 1970 Lah. 1 ref.

P L D 2023 Federal Shariat Court 291

Present: Dr. Syed Muhammad Anwer, ACJ and Khadim Hussain M. Shaikh, J

Messrs NAJAAT WELFARE FOUNDATION through General Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Central Secretariat, Shaharah-e-Dastoor, Islamabad

and 4 others---Respondents

Shariat Petition No. 25-I of 2022, decided on 28th March, 2023.

(a) Constitution of Pakistan---

----Arts. 203-D & 263(1)(a)---General Clauses Act (X of 1897), S. 13---Shariat petition---Appointment of woman judge---Repugnancy to Injunctions of Islam---Duty of establishing rights and duties, to enjoin good and forbid evil in a society according to the dictation of Allah and His Prophet (SAW) is clearly and categorically placed by the Almighty Allah upon Muslim men and women equally, which is the prime responsibility of the Judiciary in any society---Contention that the words "she" and "her" are alien to the chapter of Judicature of the Constitution, is misconceived as use of the masculine gender in any statute and law includes female unless there is anything repugnant in the subject or context---Said principle of law is contained in S. 13 of the General Clauses Act, 1897, and also in Art. 263 of the Constitution---Islam is the only religion which is based upon a revealed book of Allah in which a substantial portion of beliefs and practices are based on those traditions or Hadiths which are narrated by female companions of the Holy Prophet (PBUH) in general and by the wives of the Holy Prophet (SAW) in particular---Great portion of Islamic religion, faith, beliefs and practices are transmitted to the Ummah through these highly exalted and revered ladies i.e. the Mothers of the Faithful, which tells one of the actual elevated status, whereupon Islam places women---Some Umahat al-Moomineen would give Juristic opinions commonly called the 'Fatwas'---Books of Ahadith including Sahih Bukhari and Sahih Muslim contain Fatwas of Hazrat Ayesha (RA) i.e. the legal opinions of Hazrat Ayesha (RA) so much so that there are reported instances where very senior Ashaab al-Rasool (RA) sought legal opinion from Hazat Ayesha (RA)---In the light of such strong tradition and history of Islam which acknowledges the legal and jurisprudential scholarship of women, the appointment of female judges subject to the provisions of any law and the Constitution is not against the injunctions of Islam as laid down in the Holy Quran and Sunnah---Shariat petition was dismissed.

Verse 7 of Surah Al-Anbiya; Verse 43 of Surah An-Nahl; Verse 109 of Surah Yousuf; Verse 34 of Surah An-Nisa; Verse 228 of Surah Al-Baqarah and Verse 36 of Surah Al-Ahzab distinguished.

Ayah 71 of Surah Taubah; PLD 1983 FSC 73; Verse 34 of Surah Al-Ahzab; ; and ref.

(b) Constitution of Pakistan---

----Art. 203B(c)---Federal Shariat Court, jurisdiction of---Scope---No provision of the Constitution can be challenged through a Shariat petition.

Zafarullah Khan Ghumman for Petitioner.

P L D 2023 Federal Shariat Court 301

Before Dr. Syed Muhammad Anwer, A.C.J. and Khadim Hussain M. Shaikh, J

HAMMAD HUSSAIN and others---Petitioners

Versus

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

Shariat Petitions Nos. 5/I, 6/I of 2020, 5/I, 6/I of 2021, 2/I, 3/I, 6/I, 7/I, 14/I, 18/I, 20/I of 2022 and 1/I of 2023, decided on 19th May, 2023.

(a) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 4(f)---National Database and Registration Authority (Application for National Identity Card) Regulations, 2002, Regln. 13(1) [since deleted]---Constitution of Pakistan, Art. 203-D---Shariat petitions---Intersex persons---Right to perform Hajj or Umrah---Plea raised by the intersex persons that they cannot perform Umrah or Hajj with CNIC Cards having gender Mark "X", is a very serious issue, therefore, National Database and Registration Authority (NADRA) must develop some rules or criteria of issuing CNIC Cards to Khunsa persons so that they can perform Hajj---Impugned Regulation 13(1) of the National Database and Registration Authority (Application for National Identity Card) Regulations, 2002 had been deleted by NADRA during the proceedings of present petitions through the National Database and Registration Authority (Application for National Identity Card) (Amendment) Regulations, 2022---Shariat petitions were disposed as having become infructuous.

(b) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S.2(1)(n)---Constitution of Pakistan, Art. 203-D---Shariat petitions---Transgender person---Definition---Scope---Terms Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira included in the definition of "transgender person" under the Transgender Persons (Protection of Rights) Act, 2018---Repugnancy to injunctions of Islam---Five terms (Intersex (Khusra), Eunuch, Transgender Man, Transgender Woman and KhawajaSira), which are included in the definition of "transgender person" in S. 2(1)(n) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act'), are not identical and similar---Combining the said five terms under one definition of 'transgender person' can be considered a circular definition fallacy as it implies that all these terms are the same or interchangeable---Terms Intersex, Eunuch and KhawajaSira refer to biological variations in sex characteristics, while 'Transgender man' and 'Transgender woman' refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically---Not only are all persons who fall within the category of any of the five terms used in S. 2(1)(n) different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different---Section 2(1)(n)(i) of the impugned Act which defines the term Intersex (Khusra) is not against the injunctions of Islam---Section 2(1)(n)(ii) of the impugned Act, which mentions Eunuchs is also not against the injunctions of Islam but needs clarity as according to Islamic injunctions a person cannot undergo castration to become eunuch at his will---However, S. 2(1)(n)(iii) of the impugned Act is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) because many Islamic injunctions and direction are subjected to and are based on the biological sex of a person (male or female) which cannot be based on the basis of the innermost feelings or self-perceived identity of a person (male or female) about his or her "gender" being different from the sex he or she has since birth.

Islamic injunctions recognize the existence of an intersex person. In Arabic such persons are called Khunsa and in Urdu they are called Khusra, as is also mentioned in Section 2(1)(n)(i) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act'). Islamic law and jurisprudence provide intersex person all those rights which are mentioned in the impugned Act. An Islamic State may even take affirmative actions to support intersex persons and their communities being special persons. Section 2(1)(n)(i) of the impugned Act which defines the term Intersex (Khusra) is not against the injunctions of Islam.

The inclusion of term 'intersex' within the meaning of term 'Transgender person', as is done in the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act'), is one of the main sources of misunderstanding and confusion regarding the impugned law; the inclusion of the two terms within the meaning as synonymous to one another is a main source of conflation. Both the terms 'intersex' and 'transgender' have two different meanings. This is a fundamental flaw in the term 'transgender person' as defined in the impugned Act, because the "gender identity" of intersex persons is associated with the sex assigned to them at the time of birth; whereas "Transgender" is a term, which describes people whose internal sense of being male or female, does not match with the sex they were assigned at the time of birth.

https://www.oulgbtq.org/trans-and-intersex-glossary.html; https://lgbtqia.ucdavis.edu/trans-101; https://www.medicalnewstoday.com/articles/what-is-transgender#vs-intersex

and

https://www.huffingtonpost.co.uk/2017/02/08/intersex-vs-transgender-heres-what-you-need-to-know_a_21709480/ ref.

Terms 'intersex' and 'transgender' are two different categories of persons and a 'transgender' person cannot be called an 'intersex' person or vice versa. Whereas, the impugned Act includes the term intersex within the definition of 'Transgender Person' in Section 2(1)(n) which is one of the causes of confusion and misunderstanding in the impugned Act.

Islamic law recognizes the "gender identity" of an intersex person which is based on some physical attributes or biological feature of a person, but does not recognize the "gender identity" of a transgender persons which is based on their self-perception and innermost feelings about their sex.

Similarly, Islamic injunctions do recognize the existence of eunuch persons, which are called as Khasi in Arabic and in Urdu. In Urdu they are also called KhawajaSira, which term is wrongly placed in Section 2(1)(n)(iii) of the impugned Act instead of Section 2(1)(n)(ii) being Urdu translation of English word, eunuch. Furthermore, according to Islamic injunctions a person cannot do castration to become eunuch at his will. It is only allowed due to health concerns or on medical grounds. Eunuchs are considered as male persons with serious and permanent sexual infirmity in their male sexual organs. They also fall in the category of special persons and deserve special attention of the society and the State. Hence, Section 2(1)(n)(ii) of the impugned Act is not against the injunctions of Islam but needs clarity as identified hereinabove that according to Islamic injunctions a person cannot undergo castration to become eunuch at his will. It is only allowed as a medical requirement and on medical grounds.

Historically, the term eunuch refers to a man who had been castrated, often for social or cultural reasons. The term is considered outdated and may be considered derogatory by some. In contemporary usage, the term is sometimes used to refer to individuals who have had their testes removed either due to some serious medical conditions like cancer, etc. or due to some accident.

Henry Campbell Black, M.A., Black's Law Dictionary, Revised 4th Ed., 1968, St. Paul, Minn. West Publishing Co. and Corpus Juris Secundum by Francis J. Ludes and Harold J. Gilbert (Vol.31), 3rd Reprint (1980) ref.

Section 2(1)(n)(ii) of the impugned Act talks about a eunuch person, which includes male person who undergoes excision or castration. Such persons are referred to in Arabic by the term Khassi, which is also used in Urdu in the same meaning, whereas in Urdu the terms of "Khawaja Sira", and "Aakhta" are used for castrated male person. For castrated male there are many terms used in Urdu language in addition to Khawaja Sira and are generally considered as derogatory terms.

Shan ul Haqq Haqqi, Oxford English-Urdu Dictionary, ISBN-13: 978-0195793406;

:

ref.

The term "KhawajaSira" used in Section 2(1)(n)(iii) of the impugned Act is inappropriately used, because, it is an Urdu translation of the English word eunuch or castrated male. Hence, this misplacement of the term of KhwajaSira in the impugned Act is a source of another confusion regarding the impugned Act and can be a source of abuse of the law as well. The process of undergoing genital excision or castration cannot be left upon the personal will and whim of a person. Furthermore, the procedure of castration is only associated to male persons. It may only be done in response to serious medical requirement in exceptional cases because generally under Islamic law no one is allowed to undergo genital excision or castration. It is prohibited for a person to do castration deliberately to himself or to someone else. The act of castration generally comes under a prohibited act that amounts to, alteration of creation of Allah.

Nayl al-Awtar min Hadith Sayyid al-Akhyar, 8/249 and Al-Sunan al-Kubra, 10/24; Mustadrak al-Wasa'il wa Mustanbat al-Masa'il, 8 287, No. 9463 (Quoted from the Commander of the Faithful Imam 'Ali - A.S.) ref.

The definition of eunuch, as it is defined in Section 2(1)(n)(ii) of the impugned Act is against the injunctions of Islam, because no one is allowed to undergo genital excision or castration in the light of Islamic injunctions. However, the genital excision or castration is only permissible in exceptional cases where it is so advised by expert medical professionals in order to cure certain disease. The provision for this exception is missing from the impugned Act, which has to be there compulsorily because otherwise it gives room for interpretation that 'excision of genitals' or 'castration' of a male person is legal and permissible without any restriction. Causing genital excision or castration of another person is a sin and a crime under Islamic law, which is also punishable under different sections of Pakistan Penal Code, 1860 under Chapter 19, which is relevant to offences affecting the human body including the crime of committing Itlaf-i-Udw and Itlaf-i-Salahiyat-i-Udw.

So far as the term "KhawajaSira" is concerned, as it is used in the impugned Act in Section 2(1)(n)(iii), it is misplaced because it is Urdu translation of the English word "eunuch" or "castrated male"; therefore, such misplacement of this term is a source of confusion and misuse of the impugned Act because under Islamic law no one is allowed to undergo genital excision or castration without any valid medical reason. Hence, the process of undergoing genital excision or castration cannot be left upon the personal will and whim of a person without any medical requirement in exceptional cases. In the impugned Act the term of KhawajaSira instead of being mentioned in Section 2(1)(n)(ii) as an Urdu translation of an English word eunuch, is erroneously mentioned in Section 2(1)(n)(iii) which not only causes irregularity in the legislation but also causes confusion in understanding the law. The placement of this term (KhawajaSira) at an improper place i.e. in Section 2(1)(n)(iii) instead of Section 2(1)(n)(ii) affects and undermines the purpose of the law.

Al -Mawsoo'ah al-Fiqhiyyah vol. 19 pages 120, 121 ref.

The definition of term ' transgender person' as contained in section 2(1)(n) of the impugned Act, suffers from serious mistakes of legislative drafting. Combining the different terms of (i) intersex, (ii) eunuch, (iii) transgender man, (iv) transgender woman and (v) KhwajaSira under one definition of 'transgender person' can be considered a circular definition fallacy as it implies that all these terms are the same or interchangeable. The terms Intersex, Eunuch and KhawajaSira refer to biological variations in sex characteristics, while 'transgender man' and 'transgender woman, refer to individuals whose self-perceived gender identity differs from the sex they were assigned at birth or from the sex they have biologically. The inclusion of all these different terms in one single term is the main cause of confusion and conflation about the impugned Act because not only all those persons who fall within the category of any of the five categories of persons used in section 2(1)(n) are different physically but the ruling of Islamic injunctions according to Quran and Sunnah about them are also different.

Section 2(1)(n)(iii) of the impugned Act is against the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) and will cease to have any legal effect immediately because many Islamic injunctions and direction are subjected to and are based on the biological sex of a person (male or female) which cannot be based on the basis of the innermost feelings or self-perceived identity of a person (male or female) about his or her "gender" being different from the sex he or she has since birth. Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to section 2(1)(n)(iii) of impugned Act, shall also cease to have legal effect. Shariat petitions were disposed of.

(c) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 2(1)(n)(i)---Constitution of Pakistan, Art. 203-D---Shariat petitions---Intersex person---Medical procedure to treat any physical or biological infirmity---Repugnancy to Injunctions of Islam---Islam promotes protection and promotion of life or Hifz al-Nafs, and, protection and promotion of progeny or Hifz al-Nasl, which are two of the five basic goals of Shariah (Maqasid Al Shariah)---Therefore, on the basis of these two principles of Shariah, the medical treatment of intersex persons to treat any physical and biological infirmity in their sexual organs and reproductive system is not only permissible but desirable under Shariah Law according to the Islamic injunctions---In accordance with these principles of Shariah, any medical treatment and cure of intersex persons which helps them in their complete sex affirmation as either male or female is preferable under the principles of Maqasid Al Shariah.

Islam being a pro-life religion permits all types of medical cures and treatment for human beings that are lifesaving and promote the cure and health in human beings. Any kind of medical treatment and cure is legal and permissible which is related to the cure of reproductive infirmity. Hence, according to the injunctions of Islam in accordance with the principle of Hifz al-Nasl i.e. protection of life, the treatment of any infirmity in the sexual organs or reproductive system does not make any male or female into a person of a gender different from the one which conforms to his or her biological sex. If a woman loses her ability to reproduce due to any reason, then that does not change her gender. Even in case of the complete loss of her reproductive ability, her gender will remain the same, and all the injunctions of Islam i.e. Ahkamat according to directions of Allah and the Holy Prophet (pbuh)

which are meant for women will continue to apply on her. Same is the case of male persons that in the event of any infirmity in their sexual organs or reproductive system, their gender will not change. Therefore, any kind of corrective surgery in the reproductive organs is permissible according to the injunctions of Islam on the basic principles of Shariah i.e. Hifz-al-Nafs i.e. protection of life and Hifz al-Nasl i.e. protection of progeny. Any kind of medical intervention in a human

body which adversely affects the sexual ability and reproductive ability of that person without any valid medical reason is not permissible. All such medical treatments must be carried out in accordance with the governing principle that the gender of a person must conform to the sex of a person. Shariat petitions were disposed of.

(d) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 2(1)(n)--- Constitution of Pakistan, Art. 203-D--- Shariat petitions---Whether sex or gender provides the basis for gender identity of a person as male or female in the light of the injunctions of Islam as laid down in the Holy Quran and Sunnah---Held, that Islam gives recognition to only two sexes i.e. male sex and female sex and, therefore, it makes sex as the basis of identity of a male person and a female person and not their gender---Any law, rule or regulation which gives gender of a person legal precedence over sex is illegal and void being against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh)---In Islam since 'sex' is the basis of identity of male and female therefore, Islam does not allow the voluntary change of sex by any male or female, either by way of medical or hormonal etc. intervention.

Sex and gender are two different words or terms. Term "sex" refers to the physical differences between people who are male or female.

In some cultures and societies a person or a human being is defined and identified by his or her 'gender' and not by his or her 'sex'. In those cultures and societies the gender of a person has precedence over his or her sex. This is relatively a recent phenomenon but is getting ground very fast in some cultures and societies. However, in Islam the defining factor for a human being in this context is "sex" not the "gender". According to the teachings of Islam, a person has to be identified from his or her biological and physiological identity which is his or her "sex". Islam requires both the male and female persons to make their gender subject to their respective sexes. Islam gives recognition to only two sexes i.e. male sex and female sex and, therefore, it makes sex as the basis of identity of a male person and a female person and not their gender.

An-Nisaa, 4:1; Al-A'raf, 7:189; Al-Hujuraat, 49:13; An-Nisaa, 4:1 and Al-Qiyaama, 75:38-39 ref.

According to the injunction of Islam there is no other sex or gender other than male and female. Any human being who has some 'defect' or 'deficiency' in his or her sexual, biological, physiological or hormonal characteristic from that of his or her natal sex then Islamic Law or Shariah does not consider such a human being as a person of some other sex or gender. Islam clearly refers to such a person as member of either of the two sexes i.e. male or female. Such persons are called Khunsa in Arabic which are divided into "male Khunsa' and 'female Khunsa' and which are closely translated into English as 'intersex' persons.

In Islam since 'sex' is the basis of identity of male and female therefore, Islam does not allow altering sexual organs or the voluntary change of sex by any male or female, either by way of medical or hormonal etc. intervention.

In Islam males as well as females are not allowed to act and behave as an opposite sex to the one which was assigned to him or her at the time of his or her birth.

Reported by Abu Dawood, 4928 and others See Saheeh al-Jaami', 2502

Hence, according to Islamic injunctions as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh), the sex of any person has precedence over gender, be it male or female. Therefore, any law, rule or regulation which gives gender of a person legal precedence over sex is illegal and void being against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh). Shariat petitions were disposed of.

(e) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----Ss. 2(1)(e) & 2(1)(f)---Constitution of Pakistan, Art. 203-D---Shariat petitions---'Gender identity' and 'gender expression'---Term 'gender identity' as defined in S. 2(1)(f) and the term 'gender expression" as defined in S. 2(1)(e) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act') and as they are used in different provisions of the impugned Act---Repugnancy to injunctions of Islam---Definition of "gender identity" in S. 2(1)(f) of the impugned Act does not conform to the criteria of identity of a male person and a female person according to the injunctions of Islam---In Islam, the basis of "gender identity" of a male or female is the sex of that person---According to injunctions of Islam the gender identity of a person cannot be based on inner most feelings or as per self-perception of a person which is other than the biological sex of that person as stated in S. 2(1)(f) of the impugned Act---Similarly, the gender identity of a person cannot be based on the basis of his or her attire or outer look or how a person presents his or her gender as stated in S. 2(1)(e) of the impugned Act.

The Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act') makes "gender" as the basis of" "gender identity" and permits any person to identify himself or herself in accordance to his or her innermost and individual sense as either "transgender man" or transgender woman" in accordance with section 2(1)(n)(iii) of the impugned Act. By having this form of "gender identity", male or female, which is different from the sex of person assigned to him or her at birth, Section 2(1)(f) of the impugned Act makes it possible for a person to be identified as (i) Male; (ii) Female; (iii) A blend of both, or; (iv) Neither of them.

Definition of "gender identity" in section 2(1)(f) of the impugned Act does not conform to the criteria of identity of a male person and a female person according to the injunctions of Islam. In Islam, the basis of "gender identity" of a male or female is the sex of that person. It is the sex of a person which defines a person as a male and female. The gender should conform to the sex, and sex should not be made to conform to the gender. In Islam self-perception of a person which is opposite to the biological sex of that person does not make the basis of 'gender identity" of that person (male or female). The basis of 'gender identity' of a person is only the biological sex of that person. Hence, the use of term "transgender" for gender identity on the basis of self-perceived identity, which is contrary to the biological sex of the person, is against the injunctions of Islam.

According to injunctions of Islam the gender identity of a person cannot be based on inner most feelings or as per self-perception of a person which is other than the biological sex of that person as stated in Section 2(1)(f) of the impugned Act. Similarly, the gender identity of a person cannot be based on the basis of his or her attire or outer look or how a person presents his or her gender as stated in Section 2(1)(e) of the impugned Act.

Islam assigns many religious roles and duties to every Muslim on the basis of their sex, like:

i. All the directions and injunctions regarding marriage in the Holy Quran and Sunnah of the Holy Prophet (pbuh) are based on sex, and not the basis of "self-perceived gender" of a person, like consummation of marriage, the solemnization of Nikah, settlement of Mehr and pronouncement of Talaq and Khula, etc. All the directions of Allah and the Holy Prophet (PBUH) regarding marriage are divided upon the male and female persons. Such directions cannot be executed in accordance with the injunctions of Islam based on Holy Quran and Sunnah if the gender identity of a person is allowed to be made on the basis of the term "gender identity" as defined in Section 2(1)(f) of the impugned Act.

(ii) Some of the directions regarding Taharah in Islam are based on sex of a person, and not on the gender of a person, like the directions to women for the period of menstruation have direct linkages with the performance of Salat, Soam, and even the Hajj. Meaning thereby a person whose sex is female by birth or who is a woman and feels that her gender is that of a male on the basis of her "innermost feelings" and starts "self-perceiving" herself as "male and thinks it is permissible for her to perform Salat or keep fasting during the period of menstruation cannot be allowed in Islam. This change in her "gender identity" will also affect the religious rights of the public at large because for example such a female person, who becomes a 'male' on the basis of her self-perception, will not be allowed to stand in between the Suf of males in a Masjid (mosque), as there are rules for males and for females of making Suf in a Masjid to offer prayer.

(iii) In performance of Hajj, if the gender as perceived by someone for himself or herself is made the basis of 'gender identity' and not the sex, then there may occur a serious problem in performance of Hajj, as the Ahram for male and female persons is different. If a person, who is a female by sex but perceives herself as male, and consequently changes her identity as a man in the documents of National Database and Registration Authority (NADRA), etc. and accordingly she insists to wear the Ahram of man to perform Hajj, then naturally she cannot be allowed to do so. Likewise, a male person, whose sex is male by birth and subsequently he starts perceiving himself as a female and changes his documentation with NADRA and accordingly insists to perform Hajj by wearing a female Ahram on the basis of his right of "gender expression' which is defined in section 2(1)(e) of the impugned Act and seeks permission to have accommodation with females while performing Hajj on the basis of Section 14, which provides the right of access to public places, then naturally it cannot be allowed. These are serious problems, which the people will face and as a result of which they will not be permitted to perform Hajj in accordance with the injunctions of Islam.

Section 2(1)(f) of the impugned Act containing definition of "gender identity", is against the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH) and will cease to have any legal effect immediately. Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to section 2(1)(f) of impugned Act, shall also cease to have legal effect.

(f) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----Ss. 7(2) & 2(1)(f)---Constitution of Pakistan, Art. 203-D---Shariat petitions---'Gender identity'---Transgender person---Inheritance, right of---Section 7(2) of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act')---Repugnancy to injunctions of Islam---According to the wordings of S. 7(2) of the impugned Act, the share in inheritance of a transgender person shall be determined as per his/her gender declared on CNIC, which means if a woman starts feeling that she is a male person and gets herself registered as a male person in the record of National Database and Registration Authority (NADRA) and accordingly gets CNIC, then she will be entitled to get the share of a male out of the inheritable property---All the directions of Islam regarding division and distribution of inheritance shares are based on the basis of sex of the legal heirs of a deceased; it is the sex of a person, which has the defining status to decide how much share that person will get from the inheritance---Male person cannot get the share of a female person and a female person cannot get the share of a male person---Therefore, the right to inherit as mentioned in S. 7(2) of the impugned Act is against the injunctions of the Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (pbuh) and will cease to have any legal effect immediately---Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 7(2) of impugned Act, shall also cease to have legal effect---Shariat petitions were disposed of.

(g) Transgender Persons (Protection of Rights) Act (XIII of 2018)---

----S. 3---Constitution of Pakistan, Art. 203-D---Shariat petitions---Section 3 of the Transgender Persons (Protection of Rights) Act, 2018 ('the impugned Act') permitting a person to get his or her "gender identity" changed from his or her biological sex in identity documents including with National Database and Registration Authority (NADRA) on the CNIC, Child Registration Certificate (CRC), Driving Licence and Passport etc.---Repugnancy to Injunctions of Islam---Permitting any person, male or female, to change his or her gender in accordance to his or her inner feelings, or self-perceived identity, which may not conform to the sex assigned to that person at the time of birth, will create many serious religious, legal and social problems in society---Right to privacy of females in the society will become vulnerable and can be violated---Such law will pave the way for criminals in the society to easily commit crimes like sexual molestation, sexual assault and even rape against females because it will make it easy for a biological male to get access to the exclusive spaces and gatherings of females in the disguise of a "transgender woman"---Blocking the way of evil in a society is the duty of the State under the principles of "Sadd adh-dhara'i'" or the principle of blocking of evil---Hence, S. 3 of the Transgender Persons (Protection of Rights) Act, 2018is against the injunctions of Islam as laid down in the Holy Quran and Sunnah and will cease to have any legal effect immediately as only the biological sex of a person can determine his/her gender identity as male or female---Any provisions of the Transgender Persons (Protection of Rights) Rules, 2020 relating to S. 2 of impugned Act, shall also cease to have legal effect---Shariat petitions were disposed of.

For Petitioners:

Kamran Murtaza and Rizwan Aijaz for Petitioner (in S.P. No.14/I/2022).

Imran Shafique for Petitioner (in S.P. No. 05/I/2020).

Umar Farooq Malana and Mazhar ul Haq Hashmi in person (in S.P. No. 05/I/2020).

Abdur Rehman Petitioner in person (in S.P.No.2/I/2022, S.P.No.05/I/2020 and S.P. No.6/I/2021).

Muhammad Younas Mayo for Petitioners (in S. P. No.1/I/ 2023).

Syed Sikander Abbas Gillani and Faiz Rasool Jalbni for Petitioner Syed Iftikhar Hussain Naqvi Al-Najfi (in S.P.No.05/I/2020).

Ch. Ehsan Majeed Gujjar and Ghulam Mujtaba Ch. for Petitioner (in S.P. No.20/I/2022).

Ms. Misbah Akram in person (in S.P.No.05/I/2020).

Orya Maqbool Abbasi, Petitioner in person (in S.P. No. 05/I/2020).

Hammad Hussain, Petitioner in-person (in S.P.No.05/I/2020, S.P. No.6/I/2021, S.P. No.3/I/2022 and S.P. No.6/I/2022).

Muhammad Irfan Khan Petitioner in-person (in S.P. No.06/I/2020 and S.P. No.6/I/ 2021).

Muhammad Bin Sajid, Petitioner in-person (in S.P. No.5/I/ 2021).

Safdar Hayat, Executive Director, RJS Life Care (NGO), Petitioner in-person (in S.P. No. 7/I/2022).

Muhammad Younas Qureshi, Petitioner in-person (in S.P. No.18/I/2022).

Najib-ul-Haq and Muhammad Irfan, Petitioners in-person (in S.P. No. 05/I/2020).

Saad Mehmood, Petitioner in-person (in S.P. No. 05/I/2020).

Ms. Almas Bobby, Petitioner in-person (in S.P.No.05/I/2020).

Muhammad Shoaib, Petitioner in-person (in S.P.No.05/I/2020, S.P.No.06/I/2021 and S.P. No.02/I/2022).

Ansar Javaid, Chairman Birth Defects Foundation (in S.P. No.05/I/2020).

For Respondents:

Ch. Ishtiaq Mehrban, Khaleeq Ahmad and Mian Muhammad Faisal Irfan, D.A.Gs. for Federation.

Raja Muhammad Jawad Arsalan and Sarbuland Khan, Asst. Attorney General for Federation.

Ms. Shazeen Abdullah and Imran Shaukat Rao, Assistant A.G., Punjab.

Barrister Ahsan Hameed Dogar on behalf of Advocate General, Sindh.

Muhammad Bashar Naveed and Naseer-ud-Shah, Asst. Advocate General, K.P.

Zahid Yousif, AOR/Law Officer, K.P.

Fareed Ahmad Dogar, Assistant A.G., Balochistan.

Adeel Obaid, Ghulam Hassan, Ms. Maimana Khattak, Raja Qaiser Mehmood, and Muhammad Hassan, Law Officers, Ministry of Human Rights, Islamabad.

Ali Raza Bhutta, Secretary, Ministry of Human Rights.

Muhammad Hassan Mangi, D.G., Ministry of Human Rights.

Ms. Rubina Kausar, Focal Person, Ministry of Human Rights.

Iqbal Pasha, Director, Ministry of Human Rights.

Naveed Ahmad, Inayat Ali Khan, Mohsin Matloob, Ubaid-ur-Rehman and Ms. Sameera Maqsood (Law Officers), NADRA.

Kashif Nazar (Director Operations), Saqib Jamal (Director Legal), Mujahid Khan and Ch. Muhammad Farooq (Deputy Director-Legal) and Hassan Iqbal (Asst. Director), NADRA.

Farhat Ullah Babar, Advocate in-person (in S.P.No.05/I/2020).

Ms. Sara Malkani, Advocate for Shahzad Ahmed Ujjan alias Shahzadi Rai (in S.P. No. 05/I/2020).

Muhammad Sherkan Malik, Respondent in-person (in S.P. No.05/I/2020).

Attaullah H. Kundi, Advocate for Respondent Muhammad Sarim Imran alias Saro Imran (in S.P. No. 05/I/2020).

Nadeem-uz-Zafar Khan alias Kashish and Julie Malik, Respondents in-person (in S.P. No. 05/I/2020).

Barrister Qasim Nawaz Abbasi, Advocate for Nayyab Ali (in S.P.No.05/I/2020).

Asad Jamal, Advocate for Respondents Malik Rizwan Mehmood alias Bubbli Malik and Aisha Mughal.

Ibrar-ul-Hassan, Deputy Director and Malik Zafar Ali, Assistant Director (Legal), BISP.

G.M. Jakhrani, Deputy Director, Ministry of Health.

Muhammad Asim Sharif alias Reem Sharif, Respondent in-person.

As Experts:

Ms. Rabiya Javeri Agha (Chairperson), Muhammad Arshad (D.G), Mian Waqar Ahmed and Muhammad Mubeen (Law Officers), National Commission for Human Rights.

Asif Sohail, Director (Lit), Ministry of NHSR&C.

Ms. Fozia Jalal (Director) Council of Islamic Ideology, Islamabad.

Mufti Muhammad Zubair, Member Council of Islamic Ideology, Karachi.

Muhammad Ali, Law Officer, Transgender Protection Center, Islamabad.

Awais Malik, Child Protection Officer, Child Protection Institute, Islamabad.

Azizullah Khan, Section Officer (Hajj Policy), Ministry of Religious Affairs.

Muhammad Irfan Gondal (PCRDP Director Programs), Muhammad Shahid Rana (Director), Iftikhar Ahmad Buttar (Dy. Director), Tariq Ismail and Umme Umaira, (Litigation Officer), Social Welfare Department and Bait-ul-Mal, Punjab.

Muhammad Qayyum, Deputy Director on behalf of Secretary Social Welfare Department, KP.

Ibrar Ullah, A.D., Social Welfare Department, KP.

Syed Atta Ullah Shah, Additional Secretary, Social Welfare Department, Sindh.

Social Welfare Department and Bait ul Mal, Rawalpindi.

Ms. Saeeda Manan, Director Social Welfare Department, Balochistan.

Zamurrad Khan, CEO, Pakistan Sweet Home and Khurshid Malik, Pakistan Sweet Home.

Azam Nazir Hashmi, Advocate on behalf of Akhuwat Foundation.

Dr. Syed Imran Murtaza (Medical Superintendent), Mudassar Ali (Manager Research Associate) and Muhammad Ashraf (Project Manager - Khawaja Sira Support Program), Akhuwat Fountain House, Lahore.

P L D 2023 High Court (AJK) 1

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

ABDUL WAHEED QASMI and 3 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 16 others---Respondents

Writ Petition No. 2753 of 2016, decided on 22nd January, 2020.\

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

----Art. 44---Writ jurisdiction---Direction to legislature---Scope---Petitioners sought a direction to the respondents to add to the Azad Jammu and Kashmir Interim Constitution, 1974, that Quadianis/ Ahmadis or Lahori group are non-muslims---Validity---Writ petition was filed before the High Court prior to 12th amendment in the Azad Jammu and Kashmir Interim Constitution, 1974---After amendment, the situation had changed and the legislature had inserted the definition of non-muslim in Art. 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Grievance of the petitioners to this extent had been remedied---Writ petition was disposed of accordingly.

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

----Art. 44---Penal Code (XLV of 1860), S. 298-C---Writ petition---Alternate remedy---Scope---Petitioners sought a direction to the respondents to stop unlawful activities of Quadianis in the State for preaching Ahmadism under the cover of word Muslims---Validity---Writ jurisdiction under Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 could be exercised only if there was no alternate remedy available to the petitioners---Section 298-C, P.P.C., provided an alternate remedy to the petitioners---Section 298-C, P.P.C., provided that it was an offence to preach or propagate a faith by Quadianis group or Lahori group or by any other name and was punishable under the Penal Code---Writ petition was disposed of accordingly.

1993 SCMR 1718 rel.

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

----Art. 44---Writ jurisdiction---Direction to Legislature---Scope---Petitioners sought a direction to the respondents to prepare a separate Electoral Roll for non-muslims (Quadianis and Lahori groups)---Validity---Quadianis/Ahmadis were indeed non-muslims, however, there was no calculation on record to ascertain the number of such non-muslims in the territory of Azad Jammu and Kashmir so as to consider that whether a separate seat for such non-muslims could be created in the Legislative Assembly of Azad Jammu and Kashmir---Number of seats in the Legislative Assembly of Azad Jammu and Kashmir was created by the Constitution---Direction in this behalf could not be issued while exercising writ jurisdiction---Writ petition was disposed of accordingly.

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

----Preamble & Art. 3-C---Islamic way of life---Scope---Preamble of the Azad Jammu and Kashmir Interim Constitution, 1974, provides that Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah---Constitutional liability of the Government to enable the Muslim State Subjects individually and collectively to order their lives in accordance with the commands of Quran and Sunnah---Requirement of the Constitution to make teachings of Holy Quran and Islamiat compulsory and to encourage and facilitate learning of Arabic language---Government of Azad Jammu and Kashmir is supposed to abide by the commands of the Constitution which is supreme law of the land.

(e) Interpretation of Constitution---

----Direction to Legislature---Scope---Direction to Parliament cannot be issued to add or modify a particular provision of the Constitution.

Riaz Hanif Rahi v. Federation of Pakistan and 9 others PLD 2015 Isl. 7 rel.

(f) Interpretation of Constitution---

----Direction to Legislature---Scope---Courts are empowered to interpret the Constitution and law---High Court in its writ jurisdiction is empowered to set aside a provision of law or Constitution only if it is violative of the Constitution itself.

1999 SCMR 1379 rel.

(g) Administration of justice---

----Direction to legislature---Scope---No direction can be issued to the legislature to legislate a particular law.

1999 SCMR 1379 rel.

Muhammad Noorullah Qureshi for Petitioners.

P L D 2023 High Court (AJK) 11

Before Sardar Liaqat Hussain and Syed Shahid Bahar, JJ

MUHAMMAD WASEEM MUGHAL---Appellant

Versus

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

Criminal Appeal No. 22 of 2022, decided on 1st March, 2022.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 29---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Possession of narcotics---Dispatch of sample for test or analysis---Bail, grant of---Scope---Accused was alleged to have been found in possession of 1220 grams of charas and 30 bore pistol---Recovered contraband under R. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, was required to be sent to the nearest narcotic testing laboratory by the Investigating Agency within 3 days but this mandatory requirement was not complied with---Arrow of presumption of illicit recovered articles as per S. 29 of Control of Narcotic Substances Act, 1997, to some extent had been fixed against the accused but it needed to be taken into consideration only when the Investigation Agency had stricto sensu given adherence to the codal modalities and mandatory provisions of special law---Accused was admitted to bail, in circumstances.

2018 PCr.LJ 590 and 2013 SC 270 ref.

PLD 1995 SC 334; Muhammad Sarfraz Ansari v. State and others PLD 2021 SC 738; Hayatullah v. Lal Badshah PLD 2009 Pesh. 28 and Jamal Din's case 2012 SCMR 573 rel.

(b) Interpretation of statutes---

----Special and general law---Scope---Special law has got an overriding effect over the general law.

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

----S. 497---Bail---Scope---Bail is not a licence of acquittal or exoneration but simply a change of custody and in case of bail the place of custody is only substituted and the court after satisfying itself changes the custody from police and give it to the hands of sureties.

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

----S. 497---Bail---Heinousness of offence---Scope---Heinousness of offences is per se no ground for rejection of bail.

(e) Criminal trial---

----Burden of proof---Scope---If any dent is appearing in the case of prosecution, same is always to be resolved in favour of accused and burden of proving the allegation levelled against the accused is solely on the shoulders of the prosecution.

Raja Shujat Ali Khan for Accused-Appellant.

P L D 2023 High Court (AJK) 17

Before Sadaqat Hussain Raja, A.C.J.

ABDUL MAJID KHAN and 12 others---Petitioners

Versus

ELECTION COMMISSION OF AZAD JAMMU AND KASHMIR through Secretary

and 14 others---Respondents

Writ Petition No. 185 of 2021, decided on 28th April, 2021.

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

----Art. 44---Azad Jammu and Kashmir Election Commission Act (XVIII of 2020), S. 21---Writ petition---Preparation of electoral rolls---Scope---Petitioners called in question the vires of notifications issued by the Election Commission regarding formation of committees for verification of Electoral Rolls for the Constituencies of Refugees settled in Pakistan---Validity---Impugned notifications were issued in accordance with S.21(1) of the Azad Jammu and Kashmir Election Commission Act, 2020, with clear cut objective to enroll all the state subjects who were not holding State Subject Certificate---Election Commission after the consultation with all the concerned political parties had issued the impugned notifications correctly and rightly---Formation of committees also revealed that the committees did not consist upon the members of a single party rather the member of rival political parties were included in the committees having clash of interest, hence, no question of mala fide or arbitrariness or unreasonableness arose---Writ petition was dismissed.

Imran Khan's case 2012 SCMR 448; Imran Khan's case PLD 2013 SC 120; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranawala and others PLD 2014 Lah. 221; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Malik Ameer Haider Sangha and another v. Mrs. Sumaira Malik and others 2018 SCMR 1166; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Muhammad Siddique Baloch v. Jehangir Khan Tareen and others PLD 2016 SC 97; Syed Mehmood Akhtar Naqvi and others v. Federation of Pakistan and others 2013 SCMR 1; Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others PLD 2014 SC 668 and Province of Punjab through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531 distinguished.

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

----Art. 2(1)---"State Subject"---Scope---State Subject Certificate is the de facto citizenship certificate of the people residing in or belonging to the State of Jammu and Kashmir, currently divided into two parties i.e. Azad Kashmir and Indian Occupied Kashmir.

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

----Art. 2(1)---"State Subject"---Scope---Fundamental Rights are guaranteed to all the state subjects and not to the State Subject Certificate holder---Person who is state subject as defined in the Constitution has all rights guaranteed by the Constitution whether he is holding the State Subject Certificate or not and no one can be deprived of from his fundamental or legal right on the ground that he is not holding the State Subject Certificate.

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

----Arts.44 & 50---Writ petition---Election Commission---Maintainability---Scope---Election Commission of Azad Jammu and Kashmir is empowered under Art. 50 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to conduct elections of the Legislative Assembly of Azad Jammu and Kashmir---Election Commission is a constitutional body which performs its functions independently, freely, fairly and transparently---Acts done by Election Commission should not be interfered in an ordinary manner---Powers vested to the Election Commission are trust and can be expected to be performed objectively, reasonably, independently and in accordance with law---However, the possibility of breach of law, arbitrariness and mala fide cannot be overruled---In any constitutional petition, it is necessary for the petitioner to prove that the impugned act of the Commission is against the law, arbitrary or with mala fide, otherwise, the writ petition is not maintainable for academic discussions and it will amount to interference in the election process which is not warranted by law.

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

----Art. 44---Writ jurisdiction---Necessary party---Scope---No writ can be issued in the absence of a necessary party.

Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commissioner, Islamabad PLD 2003 Lah. 125; Zahid Mehmood Shah and 24 others v. Azad Govt. and 14 others 2011 SCR 159 and Shafqat Hayyat v. Muhammad Shahid Ashraf and 18 others 2005 SCR 57 rel.

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

----Art.44---Writ jurisdiction---Necessary party---Proper party---Scope---Writ petition, in absence of a necessary party, itself is incompetent---Necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings.

1998 PLC (C.S.) 153; 1990 CLC 1355; 1994 SCR 19; 1996 CLC 1502; 1996 SCR 161; 2003 SCR 142; 2013 SCR 222 and 2001 YLR 3271 ref.

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

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

PLD 1998 SC (AJ&K) 7 ref.

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

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

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

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

----Art. 44---Writ jurisdiction---Scope---Order can only be set aside in exercise of writ jurisdiction, if it violates any provision of law.

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

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

----Art. 44---Writ jurisdiction---Judicial review---Scope---Courts do not normally interfere a policy made by the Government unless it is proved mala fide or made in a colorful exercise of authority.

Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another PLD 2005 Lah. 428 rel.

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

----Art. 44---Writ jurisdiction---Judicial review---Scope---Courts have vast powers for judicial review of any action of any functionary of the State but such power should not be exercised to interfere within constitutional or legal domain of any other organ of the State---Such exercise of the powers is also against the concept of trichotomy as provided by the Constitution.

Farrukh Shahzad Dall, Raja Yasir Ali, Kh. Muhammad Maqbool War, Raja Gul Majeed Khan and Miss Farkhanda Ibrar for Petitioners.

P L D 2023 High Court (AJ&K) 38

Before Syed Shahid Bahar, J

SAEEDA BIBI---Petitioner

Versus

JUDGE FAMILY COURT, MUZAFFARABAD and 2 others---Respondents

Writ Petition No. 4504 of 2021, decided on 8th March, 2022.

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S.5, Sched.---Suits for dower, dowry articles, monthly maintenance---Petitioner/plaintiff filed application before trial Court for summoning two documents: a divorce deed and an agreement regarding receiving of dower amount from respondent, which was rejected by the Court after hearing and considering objections thereto---Petitioner categorically alleged in the application that both the said documents had been obviously in the power and the possession of respondent and in such situation it was incumbent upon the Court to order for production of such documents; that such documents were bearing pivotal role for adjudication of the case (whether dower had been paid or not)---Held, that both the parties simultaneously were denying the possession of the documents sought to be produced---Such was purely disputed question of fact which could be resolved by the Trial Court after recording evidence and the initial burden of proof was on the shoulder of the petitioner to adduce the evidence in that regard---Petitioner had alternate remedy to pray for framing of specific issue regarding possession of said documents but she did not apt to do so---Mere assertion of having no alternate remedy against interim orders was not sufficient to claim issuance of writ at random---Writ petition was dismissed accordingly.

(b) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 22---Interlocatory orders---Remedy---Azad Jammu and Kashmir Family Courts Act, 1993 and Rules made thereunder had not recognized any sort of statutory remedy against the interlocutory orders and the wisdom of the legislature was manifest and evident from scheme of law itself---Practice of attacking interlocutory orders of Family Court in constitutional jurisdiction was liable to be buried in its very inception as right of appeal/revision/review were admittedly creatures of statute---Such practice was burdening the Court with unnecessary litigation and frustrated the basic intent/purpose of special law.

P L D 2023 High Court (AJK) 41

Before Mian Arif Hussain and Syed Shahid Bahar, JJ

Raja ZAIN AKBAR KHAN and another---Petitioners

Versus

SECRETARY PUBLIC WORKS DEPARTMENT (PWD) AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 6 others---Respondents

Writ Petition No. 2646 of 2022, decided on 25th October, 2022.

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

----Art. 44---Azad Jammu and Kashmir Public Procurement Regulatory Authority Rules, 2017, R. 48---Writ petition---Alternate remedy, availability of---Scope---Petitioners assailed the decisions of Grievance Redressal Committee and work order issued in favour of private respondent---Validity---Petitioners after adjudication of the matter by Grievance Redressal Committee instead of filing an appeal before the Authority in view of R. 48(7) of the Azad Jammu and Kashmir Public Procurement Regulatory Authority Rules, 2017 opted to directly file the writ petition---Wisdom of an appellate fora was missing, particularly aspects and modalities with a cross version could have better been judged by the appellate fora as per scheme of special law and thereafter the petitioners could have come forward to attack both the decisions rendered by Grievance Redressal Committee and Authority in writ jurisdiction by pointing out any violation of law---Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 did not confer any substantive right on any party but provided only an additional remedy under extraordinary jurisdiction---Non-availability of adequate alternate remedy was also one of the primary test in this regard, beside other protocols---Writ petition was dismissed.

Muhammad Muneer v. Chairperson Board of Intermediate 2006 SCR 29 and Mst. Kaneez Fatima v. Muhammad Salim 2001 SCMR 1993 rel.

(b) Administration of justice---

----Right of appeal, review and revision---Scope---Right of appeal, review and revision are creature of statute, rationally bestowed to and provided as remedial purpose to provide a fora for adjudication of a matter.

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

----Art. 44---Writ petition---Disputed questions of fact---Scope---Controversial question of facts adjudication of which is possible only after obtaining all types of evidence in power and possession of the parties can be determined only by Courts having plenary jurisdiction in the matter and on such ground writ petition is incompetent.

State Life Insurance Corporation v. Pakistan Tobacco Company PLD 1983 SC 28 rel.

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

----Art. 44---Writ jurisdiction---Alternate remedy---Scope---Alternate remedy cannot be bypassed at random---Remedy of writ in its very nature is an extraordinary relief which is exercised in extraordinary circumstances with due care and caution; that too when violation of law or any statutory provision, fundamental right is oozing from the record which attracts the conscious of the Court qua indulgence.

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

----Art. 44---Writ jurisdiction---Alternate remedy---Scope---Rule of exhaustion of alternate remedy is not an absolute one as there may be exceptional cases wherein a petitioner may be allowed to seek his/her remedy by way of judicial review in spite of the existence of an alternative remedy, but casual deviation from such general rule will burden the constitutional courts with such matters where grievance of petitioner can be well redressed by any alternate forum---Further, the strict compliance to such settled principle will also help to improve the working of other statutory machineries to handle such disputes instead of invoking the constitutional jurisdiction of judicial review.

Ch. Muhammad Ismail's case PLD 1996 SC 246 and Khalid Mehmood's case 1999 SCMR 1881 rel.

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

----Art. 44---Writ jurisdiction---Alternate remedy---Scope---Under common law, remedy of judicial review through writ jurisdiction is not available in the presence of adequate alternate remedy---Remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which would provide efficacious redressal, have been properly exhausted by a litigant.

R. v. IRC, Ex parte Preston's case [1985] BTC 208; Regina v. Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477 and Glencore Energy UK Ltd.'s case [2017] EWHC 1476 rel.

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

----Art. 44---Writ jurisdiction---Alternate remedy---Scope---Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 does not confer any substantive right on any party but provides a person only an additional remedy under extraordinary jurisdiction.

Raja Shujat Ali Khan for Petitioners.

Asad Khan, Legal Advisor on behalf of Department.

P L D 2023 High Court (AJK) 51

Before Sardar Liaqat Hussain, J

Mst. CHAND BIBI (Widow) and 6 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 11 others---Respondents

Writ Petition No. 235 of 2015, decided on 30th November, 2022.

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

----Art. 44---Land Acquisition Act (I of 1894), S. 6---Declaration that land was required for a public purpose---Scope---Government department got awarded certain land for construction of residential accommodation of the Government officials---Petitioner alleged that the land in his ownership and possession was dedicated for shrine/religious purpose and approached the Prime Minister, whereupon, the Prime Minister directed the concerned department to issue notification for de-award---Approval of the Prime Minister was not implemented by the respondents, as such, petitioner approached the High Court for implementation of the approval---Validity---Only those approvals/ directives of the Chief Executive could be implemented which were in line with the law, rendered on a duly processed file---Disputed land was situated at a place where the approach had been proposed and due to de-award of the land, the scheme/plan of whole project would be destroyed---Respondents were directed to carry out the plan and complete the same within the stipulated period---Writ petition was dismissed.

2021 SCR 665; 2012 YLR 1580; 2019 SCR 703 and 2001 YLR 3367 ref.

2010 PLC (C.S.) 1195 and 2014 SCR 298 rel.

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

----S. 6---Declaration that land is required for a public purpose---Scope---Prerogative of the acquiring agency to acquire any land subject to reasonable compensation or de-award the same, if the same is not required for the proposed project or has become surplus.

Raja Muhammad Haneef Khan for Petitioners.

P L D 2023 High Court (AJK) 55

Before Sardar Habib Zia, Mian Arif Hussain and Syed Shahid Bahar, JJ

MUHAMMAD AYAN ALI RAJA---Petitioner

Versus

AZAD JAMMU AND KASHMIR LEGISLATIVE ASSEMBLY through Secretary and 4 others---Respondents

Writ Petition No. 2992 of 2022, decided on 14th December, 2022.

(a) Azad Jammu and Kashmir Local Government Act (VII of 1990)---

----S. 19 & Second Sched. Part II, Entry No. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Arts. 44, 4(4)(1) & 4(4)(15)---Writ petition---Local Government elections---Elected members---Disqualifications of candidates---Age limit---Scope---Case of petitioner is that the upper age limit prescribed for contesting election of local bodies is ultra vires to the constitutionally fundamental guaranteed rights---Validity---Law recognizes such person as a voter who attains the age of eighteen years meaning thereby that he/she is qualified to elect his/her representative as per his/her choice and sweet will but simultaneously he/she is qualified to contest election of local bodies until he/she attains the age of twenty five years (which is a marked difference of seven years)---Such like barrier is not convincing enough for a prudent mind to accept this analogy as to how a person can be put out of arena to contest election of local bodies without exhibiting any rationale in this regard, thus, although in logical and rational parlance, age of eighteen years itself is sufficient equally for the purpose of contesting election of local bodies on the yardstick of constitutionally fundamental guaranteed rights i.e. Arts. 4(4)(1) & 4(4)(15) of the Azad Jammu and Kashmir Interim Constitution, 1974, but it is up to the Legislature to expose its wisdom and to bring it in consonance with the constitutional guarantees---However, age of twenty-one years as unanimously prescribed by all the four provinces of Pakistan seems plausible in this regard at local bodies level---To declass a person/voter randomly in the guise of age is not a reasonable classification as no legislation or specific expertise is rationally required in this regard---Schedule 2 Part II Entry No. 3 of the Azad Jammu and Kashmir Local Government Act, 1990 inserted through Azad Jammu and Kashmir Local Government (Amendment) Act, 2021 is severable from the rest of Act---Impugned provision in parlance of the scheme of Constitution cannot stand ex proprio vigore and lacking the ratio legis (the reason or purpose of making a law)---Impugned legislation is liable to be sent in hibernation---Constitutional petition was accepted, in circumstances.

2002 CLC 1130 ref.

Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206 rel.

(b) Azad Jammu and Kashmir Local Government Act (VII of 1990)---

----Ss. 19, 8, 9, 11 & Second Sched. Part II, Entry No. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Arts. 44, 4(4)(1) & 4(4)(15)---Writ petition---Local Government elections---Elected members---Disqualifications of candidates---Age limit---Scope---Case of petitioner is that the upper age limit prescribed for contesting election of local bodies is ultra vires to the constitutionally fundamental guaranteed rights---Validity---At the local bodies level no legislation or law-making is required at any stage---Scope and area of working/ performing duties of the members of local bodies is limited merely to the extent of local geographic limits---Working area and spheres have been circumscribed to the extent of local government issues meant for development schemes and uplifting the undeveloped areas---While on the other hand the public representatives in higher public fora i.e. Assembly and Senate have been bestowed with totally different job and are burdened with onerous liabilities qua legislation/law making, that is why the prescribed age limit for such like fora in different countries is even more than twenty-five years and the wisdom behind the same is crystal clear that the cumbersome task of law making and legislation inter alia with other qualities requires adequate maturity coupled with mental agility---Although maturity improves wisdom but information technology has rapidly brought the entire world even closer by introducing the concept of "Global Village" thus, wisdom and maturity ipso facto cannot be bracketed and tagged with age---Through the Azad Jammu and Kashmir Local Government (Amendment) Act, 2021 certain amendments have been introduced by the legislature inter alia by providing room to the women and youth members at the ratio of 12.5% each of the total number of seats for the District Council, Local Council/Union Council, Town Committee and Municipal Committee---When the law itself allows the entry of youth in local bodies by allocating/reserving seats (without prescribing age limit) then 25 years' barrier is meaningless and does not seem to serve the very purpose of law---Barrier of the age of 25 years has stood left or for that matter become redundant in this view of the matter after subsequent amendment---Impugned legislation is liable to be sent in hibernation---Constitutional petition was accepted, in circumstances.

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

----Art. 4(4)(15)---All State subjects equal before 'law' and entitled to equal protection of 'law'---'Law'---Meaning and scope---Word 'law' in the former expression is used in a philosophical sense whereas the word 'law' in the latter expression denotes specific laws in force---Former implies the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, while the latter is a more positive concept implying equality of treatment in equal circumstances.

Nazir Hashmi v. Capital Development Authority PLD 1976 Lah. 1115 and Yahya Bakhtiar v. The State NLR 1980 Quetta 815 rel.

(d) Words and phrases---

----Youth---Meaning.

Youth; the time of life when a person is young, especially the time before a child become adult, the quality or state of being young.

Oxford Dictionary ref.

(e) Interpretation of statutes---

----When a word has not been defined in the statute the ordinary dictionary meaning is to be looked at.

Chairman Pakistan Railway v. Shah Jahan Shah PLD 2016 SC 534 rel.

(f) Interpretation of statutes---

----Legislative intention is the paramount criterion in statutory interpretation.

(g) Interpretation of statutes---

----Functional construction---Scope---Functional construction rule provides aid for practical purpose (which requires a strained construction to be given to the enactment).

(h) Interpretation of statutes---

----Statutes are often prepared unscientifically, the limitation of language and human foresight makes it impossible for the legislator to cover every eventuality---It is function of the Judge to cooperate with the legislature in providing through interpretation a systematic treatment of the whole field of legal relationship.

Interpretation of statutes by Vepa P. Sarathi ref.

(i) Interpretation of statutes---

----Work of interpretation in one sense is enduring and in another sense ephemeral; what is good in it endures, what is erroneous is pretty sure to perish, the good remains the foundation in which new structures will be built and the bad will be rejected and cast off in the laboratory of the years.

The nature of the Judicial process By Benjimun N Cardozo ref.

(j) Interpretation of statutes---

----Literal rule---Scope---Courts of law are bound to interpret a statutory provision as it is and not as it should be---If the language is plain and unambiguous, it cannot be ignored and must be adhered to.

(k) Interpretation of statutes---

----Mischief rule---Scope---Crux of mischief rules is that it proceeds on the presumption that the Parliament (law-making organ of the State) is taken to do nothing without a reason, meaning thereby there must be reason for passing an Act and an enactment therein.

(l) Interpretation of statutes---

----Golden rule---Scope---If there is nothing absurd in the statute, etc. you can rely on connotation of the crucial words---Mythology of canons of construction rests upon rationale to discern the legislative intention enunciated in the words---In this connection all the rules/techniques and tools of interpretation are not available in a static manner rather they are dynamic and vary from time to time.

(m) Interpretation of statutes---

----Orthodox view of the judicial function to the duty of interpretation of an enactment is search for the intention of the legislature from the words used---Judge is not to discover actually what the legislature intended as contra distinguished from what its words express, but what is the meaning of the word it used---Difficulties of so called interpretation arise when the legislature has had no meaning at all when the question which is raised on the statute never occurred to it, then what the Judges have to do is not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not presented to its mind if the point had been present.

Fundamental Law of Pakistan by A.K. Brohi rel.

(n) Interpretation of statutes---

----Casus Omissus---Scope and extent.

Casus Omissus i.e. case omitted a point omitted can in no case, be supplied by the Court of law as that would amount to altering the provision Court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them.

PLD 2013 SC 279 ref.

It is for the legislature to resolve a casus omissus in a statute by suitable amendment and not for the Court to remedy the defect.

Air 1943 Lah. 48 and PLD 1966 Dacca 117 ref.

If there is an accidental omission in a statute and the intention of the legislature can be clearly culled from the word of statute, the omission can be supplied by the Court to serve the purpose of law.

PLD 1972 Lah. 374 ref.

Court can supply an obvious omission in a particular provision of statute or omit the same which is apparently redundant in the context of the provision keeping in view the principle to advance the object of the Act and not to frustrate the same.

PLD 2009 SC 809 ref.

Doctrine of casus omissus will come into play where any statutory defect is liable to cure while doctrine of reading in provides aid and is available where constitutional defect requires repairment through this technique.

Technique of reading in is available to cure constitutional defect while the doctrine of casus omissus is helpful where defect is oozing from a peace of legislation requiring repairment through this interpretative approach.

Aam Log Party v. The Election Commission of Pakistan PLD 2022 SC 39 rel.

There are several guiding principles laid down by the superior courts qua supplying an omission such as, that interpretation in possible construction should be preferred which carries into effect the object of the statute.

Court can supply an obvious omission in a particular provision of statutes or omit the same which is apparently redundant in the context of the provision keeping in view to advance object of the Act and not to frustrate the same.

Shah Hussain v. The State PLD 2009 SC 809 ref.

Manzoor Hussain Raja for Petitioner.

Tahir Aziz Khan on behalf of Azad Jammu and Kashmir Election Commission.

P L D 2023 High Court (AJK) 75

Before Sadaqat Hussain Raja, C.J., Mian Arif Hussain, Sardar Liaqat Hussain, Syed Shahid Bahar,Sardar Muhammad Ijaz Khan and Chaudhary Khalid Rasheed, JJ

ROBKAR ADALAT

Versus

TANVIR ILYAS, PRIME MINISTER GOVERNMENT OF AZAD JAMMU AND KASHMIR

Decided on 11th April, 2023.

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

----Art. 45---Contempt of court---Derogatory statements against Superior judiciary---Disqualification of Prime Minister (AJ&K)---Unconditional apology---Respondent (Prime Minister) appeared before the Court and admitted the contents of the clippings of the newspaper in open Court---Prima facie in his statement contemptuous wording had been used which was against the prestige and independence of the judiciary---Respondent tendered unconditional apology and placed himself at the mercy of the Court---As the contemner himself admitted remarks pertaining to contempt of Court and he also denied to submit any other objection or reply in response of show cause notice, hence, it could safely be held that his act came within the ambit of contempt of Court under Art. 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Article 45 was fully attracted to the speeches made by the respondent-contemnor as he has made derogatory statement against superior judiciary in public meeting, attempted to spoil the prestige of the superior judiciary and also flexed his muscles to prejudice the determination of the cases pending before the High Court (AJ&K)---As the contemnor has tendered unconditional apology before the Court, hence, opting to take a lenient view, the High Court (AJ&K) punished him till rising of the Court under Art. 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and directed that as the respondent had been punished he stood disqualified for being elected or chosen or for being a Member of Legislative Assembly or to hold any public office for two years from the date of present order.

Advocate General, Azad Jammu and Kashmir.

P L D 2023 High Court (AJK) 79

Before Chaudhary Khalid Rasheed, J

KHURSHEED AHMED UQABI and 2 others---Appellants

Versus

TALIB HUSSAIN and 13 others---Respondents

Civil Appeal No. 45 of 2017, decided on 23rd January, 2023.

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

----S. 193---Criminal Procedure Code (V of 1898), Ss. 476 & 195---Giving false evidence---Scope---Appellants assailed order passed by District Judge whereby the application filed by respondent for cancellation of succession certificate was accepted and appellants were ordered to be proceeded under law for giving false evidence---Validity---Appellants had admitted in their objections before the court that they intentionally gave false evidence to deprive the legal heirs of deceased and include an unconcerned person in the list of his legal heirs to obtain share from the legacy of deceased, thus they were liable to be taken to task for their illegal act---Appeal was dismissed.

2014 SCR 372 ref.

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

----S. 193---Giving false evidence---Scope---Section 193 of the P.P.C. envisages that whoever intentionally gives false evidence in a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

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

----S. 193---Giving false evidence---Scope---Perjury is one of the most heinous social and moral offences which adversely affects the administration of justice---Any person who deliberately utters a false statement during the solemn proceedings of a Court of law, knowing it to be false does not deserve any leniency and ought never be let off lightly---Tendency on the part of the Courts to take a tolerant and indulgent view of such cases tends to encourage perjury in the Courts with the result that it has now become so common that witnesses do not feel any qualm of conscience while making a false statement in a Court of law and have ceased to consider it as an act involving any moral turpitude---Courts must rest this tendency with a firm hand and do everything in their power to eradicate this evil from its roots by awarding stiffer sentences, which would be a positive step in this direction.

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

----S. 193---Giving false evidence---Scope---When the statement of a witness apparently appears to be false to his knowledge, he should be tried for perjury and if the offence is proved he should be awarded exemplary punishment so that the professional witnesses are eliminated from the proceedings in the courts of justice.

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

----S. 193---Giving false evidence---Scope---Preliminary inquiry is

not mandatory against a witness for giving false evidence and a complaint can be filed without hearing person to be proceeded against---Court is duty bound to lodge complaint against the offending person.

PLD 1981 SC (AJK) 86 and PLD 1981 SC (AJK) 3 ref.

PLJ 1990 SC (AJK) 115 rel.

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

----S. 154---Information in cognizable cases---Scope---It is not the requirement of law to provide a right of hearing to an accused before registration of the case.

PLJ 1990 SC (AJK) 115 rel.

Raja Muhammad Saghir Khan for Appellants.

Mirza Abdul Aziz Ratalvi for Respondents Nos. 1, 7, 9, 10

P L D 2023 High Court (AJ&K) 84

Before Chaudhary Khalid Rasheed, J

ASAD-UR-REHMAN---Appellant

Versus

USMAN SHAHID and 8 others---Respondents

Civil Appeal No. 133 of 2020, decided on 17th January, 2023.

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

----Arts. 17 & 79---Suit for specific performance of agreements to sell and cancellation of gift deed--- Appellants mainly pressed that respondents/plaintiffs failed to prove the execution of agreements as required under Arts. 17 & 79 of Qanun-e-Shahadat, 1984, because they failed to produce two attesting witnesses of the agreements, thus, the suit was liable to be dismissed---Validity---Respondents/plaintiffs produced one marginal witness who deposed that agreements to sell were written and signed in his presence and he also verified his signatures on the said agreements---Petition writer deposed that agreement to sell was handed down by him in accordance with the consent and deposition of both the parties---As petition writer stated in his statement that he wrote agreement to sell and signatures and thumb impressions of executant were put in his presence, hence he could be considered as an attesting witness of the agreement to sell because as mentioned above, the attesting witness is the one who had observed a document being executed and also signed the same as a witness---Normally scribe of an agreement to sell was not a substitute for an attesting witnesses and did not legally qualify to be so, therefore, his evidence may have a supportive value but neither is it in line with the mandate of law nor did it meet the test of Art. 79 of Qunun-e-Shahadat, 1984, but in the present case, scribe deposed that executant put his signature and thumb impression in his presence, thus scribe of the document was also an attesting witness, hence the requirement of Art. 17 of Qanun-e-Shahadat, , 1984, was fulfilled---Appeal was dismissed, in circumstances.

PLD 2015 SC 187 and 2017 CLC 70 ref.

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

----Art.79---Suit for specific performance of agreements to sell and cancellation of gift deed---Where one of attesting witnesses dies---Effect---Under Art. 79 of Qanun-e-Shahadat, 1984, an agreement to sell being an instrument pertaining to financial or future obligation would not be used in evidence unless at least two attesting witnesses were examined for such purpose, provided that they were alive and capable of evidence---For beneficiary of an agreement to sell, it is mandatory to produce two attesting witnesses to prove the execution of the agreement, however, producing two attesting witnesses is subject to condition that they are alive and capable of giving evidence---In the present case, one of marginal wittiness of agreement had died due to which he could not be produced as witness, however, perusal of record revealed that statement of said wittiness was recorded in the court in another suit filed by the respondents/plaintiffs which was decreed ex parte and said witness verified his signature and also deposed that vendor agreed to sell the land along with shop to plaintiff and had received consideration amount---Said statement of deceased witness had been made part of the file of the Trial Court, thus, the plaintiff succeeded to prove the execution of agreement to sell----Appeal was dismissed, in circumstances.

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

----Art.79---Suit for specific performance of agreements to sell and cancellation of gift deed---Scribe of document as a witness---Scope---Attesting witness is one who not only witnessed a document being executed but also signed it as a witness---Person who writes or scribes a documents is as good witness as anybody else, if he had signed the document as a witness---Where in addition to one of the marginal witnesses scribe of the document appears in the Trial Court and deposes that agreement was scribed by him and thumb impressions and signatures were put by the defendant such statement of the writer can be considered to be a statement of marginal witness.

2008 SCMR 1639 ref.

Sajjad Ahmed Khan for Appellant.

P L D 2023 High Court (AJ&K) 89

Before Syed Shahid Bahar, J

ZUBAIR and 16 others---Petitioners

Versus

SENIOR SUPERINTENDENT POLICE, JHELUM VALLEY and others---Respondents

Writ Petition No. 984 of 2020, decided on 10th February, 2023.

(a) Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985)---

----Ss. 11, 16 & 19---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Writ petition---Quashing of FIR---Scope---Accused persons sought quashing of FIR registered against them under Ss. 11, 16 & 19 of the Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985 ---Main accused had not stated a single word about his marital ties with the victim and had simply alleged that he had been falsely implicated in the criminal case while at arguments stage, he had taken an abrupt U-turn and had come forward with the stance that he was husband of victim (who was stated to be pregnant) and also claimed to be father of a daughter aged 02 years from the wedlock---Nikah of victim with one of the respondents was an admitted fact while rest of the subsequent story was shrouded in mystery which required detailed evidence, probe and investigation which was not a job of the High Court---Investigation agency was allowed to probe into the matter in order to dig out the veracity of allegation, however, the accused persons could exhaust multiple statutory remedies available to them---Writ petition was dismissed.

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

----S.154---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Writ petition---Quashing of FIR---Scope---It is not a rule to decline interference in a extraordinary jurisdiction by shutting the door of Court qua quashing of an FIR in a mathematical manner, but it varies from case to case, and if facts of the case demand and extraordinary circumstances are oozing from the record High Court can move ahead to rescue the person from such a situation.

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. DPO District Khanewal and 2 others 2004 P.Cr.LJ 606; Ghulam Qadir Faraz alias Babar v. S.H.O. P.S. Saddar Kamoke and 2 others 2012 PCr.LJ 638 and Mumtaz Hussain v. The State and 2 others PLD 2017 Lah. 889 ref.

Anwar Ahmed Khan v. The State 1996 SCMR 24 rel.

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

----Art. 44---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), Ss. 154 & 561-A---Writ petition---Quashing of FIR---Scope---High Court should not interfere with the normal course of trial and quash the criminal proceedings under Article 199 of the Constitution or S. 561-A, Cr.P.C.

Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; Allied Bank of Pakistan Limited v. Khalid Farooq 1991 SCMR 599; A. Habib Ahmed v. M.K.G. Scot Christian and 5 others PLD 1992 SC 353 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

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

----S. 154---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Writ petition---Information in cognizable cases---Eventualities where an FIR can be quashed, detailed.

Following are the eventualities where an FIR can be quashed---

(i) Where the allegations made in the First Information Report do not prima facie constitute any offence or make out a case against the accused;

(ii) Where the allegations in the First Information Report do not disclose a cognizable offence but constitute only a non-cognizable offence;

(iii) Where the allegations made in the First Information Report are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(iv) Where there is an express bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings;

(v) Where there is a specific provision in the Code or the concerned Act, providing efficacious redressal for the grievance of the aggrieved party; and

(vi) Where a criminal proceeding is manifestly attended with mala fide ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

State of Haryana and others v. Ch. Bhajan Lal and others AIR 1992 SC 604 fol.

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

----Art. 44---Writ petition---Locus standi---Scope---In the absence of locus standi and legal grievance, no one can ask for indulgence of High Court in its extraordinary writ jurisdiction.

(f) Words and phrases---

----Locus standi---Meaning.

Place of sitting. The right to bring in action or to be heard in a given forum.

Black's Law Dictionary Eleventh Edition rel.

(g) Words and phrases---

----Aggrieved---Meaning.

Having legal rights that are adversely affected; being harmed by an infringement of legal rights, angry or sad on grounds of perceived unfair treatment.

Black's Law Dictionary Eleventh Edition rel.

(h) Words and phrases---

----Aggrieved party---Meaning.

A party entitled to a remedy, a party whose personal pecuniary or property rights have been adversely affected by another person's actions or by a court's decree of judgment.

Black's Law Dictionary Eleventh Edition rel.

(i) Islamic law---

----Marriage---Scope---Marriage among Muslims is in the nature of a civil contract---Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contact between the parties which can be the subject of dissolution for good cause.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 ref.

(j) Islamic law---

----Marriage---Scope---Husband is given the right to divorce his wife, though of course arbitrary divorces are discountenanced---There is a saying of the Holy Prophet (Peace And Blessings Be Upon Him And His Family) to the effect that "the most detestable of lawful things in Allah's view is divorce"---Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility.

Sunan Abu-Daood, Book 6, Hadith No.2173 rel.

(k) Islamic law---

----Divorce---Scope---Holy Quran declares that women have rights against men, similar to whose that the men have against women according to well-known rules of equity---Husband should either retain his wife, according to well-recognized custom or release her with grace---Word of Allah enjoins the husband not to cling to the woman, in order to cause her injury---Furthermore a hadith declares that "Let no harm be done, nor harm be suffered".

Sunan Ibn Majah, Hadith # 2341 rel.

Holy Quran Surah 2: Verse 229 ref.

Ch. Shoukat Aziz for Petitioners.

Raja Saeed Khan, A.A.G for the State.

Raja Ayaz Ahmed for Respondent No.5.

P L D 2023 High Court (AJ&K) 100

Before Sardar Muhammad Ejaz Khan, J

HUMAYUN LATIF---Petitioner

Versus

STATE through Advocate General Azad Jammu and Kashmir and another---Respondents

Criminal Miscellaneous No. 52 of 2022, decided on 1st February, 2023.

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

----S. 497(1), fourth proviso---Expression "hardened, desperate or dangerous criminal" as used in the fourth proviso to S. 497(1), Cr.P.C.---Scope of the expression "hardened, desperate or dangerous criminal" explained.

Words hardened, desperate and dangerous criminal connote that 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. 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. However, the previous criminal record of an accused person is kept in mind but the same is considered in view of peculiar circumstances of the case for which a previous conviction of an accused does not have(sic) matter while 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) of Cr.P.C. in the peculiar facts and circumstances of a case, and may lead the Court to form an opinion that the accused is a hardened desperate and dangerous criminal. Manner in which the occurrence took place is very important factor to declare an accused hardened desperate and dangerous criminal. Three words (i) hardened, (ii) desperate and (iii) dangerous criminal, have different scope and definitions. Hence, the person who creates a sense of insecurity, panic and unrest in the society can be called a dangerous criminal for which even in the absence of previous record, an accused can be declared hardened desperate or dangerous criminal subject to act, mode and manner of occurrence in that very case.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 114 & 109---Azad Jammu and Kashmir Arms and Ammunition Act (III of 2016), S. 15(2)---Qalt-i-amd, punishment for wrongful restraint, abettor present when offence is committed and abetment---Bail, refusal of---Desperate and hardened criminal---Alleged occurrence took place at a public place, which was a main chowk of Bazar while the manner in which the occurrence took place appeared to have caused horror, threat and fear in general public---Case of accused undoubtedly fell within the definition of dangerous criminal due to gravity of manner of occurrence---Tentative assessment of contents of FIR, autopsy report of deceased and statements of prosecution witnesses, prima-facie, depicted that the accused repeatedly fired 6/7 bullet shots in a public place i.e. main chowk---Bail application was dismissed, in circumstances.

Barrister Humayun Nawaz Khan for Petitioner.

Sardar Kamran Khalil for the Complainant.

P L D 2023 High Court (AJ&K) 108

Before Sardar Liaqat Hussain and Syed Shahid Bahar, JJ

Raja MUHAMMAD BASHIR KHAN---Petitioner

Versus

JUSTICE OF PEACE/DISTRICT AND SESSIONS JUDGE, MUZAFFARABAD and 2 others---Respondents

Writ Petition No. 177 of 2021, decided on 24th January, 2023.

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

----Ss. 22-A, 22-B & 154---Powers of Ex-officio Justice of Peace---Information in cognizable cases---Registration of second FIR---Scope---Petitioner assailed order passed by Ex-officio Justice of Peace whereby second FIR of the incident, portraying a different angle, was ordered to be lodged---Validity---Section 154, Cr.P.C. was a key in the hand of an informer to get activated the investigation by the police and nothing more than that---Contention of petitioner that second FIR was not permissible, was discarded---No infirmity, illegality or judicial error was found in the impugned order---Writ petition was dismissed.

2016 YLR 1065; 2022 PC.LJ 235 and Kh. Muhammad Naeem v. Justice of Peace 2014 SCR 1049 ref.

PLD 2018 SC 595 distinguished.

Ch. Muhammad Younas Arvi and 2 others v. Abdul Aziz and 4 others 2011 SCR 50; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; 2014 SCR 1049; Muhammad Baqar and 10 others v. The State and 6 others (Criminal Miscellaneous Petition No.359 of 2022) and Syed Tauqeer Hamdai v. The State PLJ 2022 AJ&K 119 rel.

(b) Words and phrases---

----Stare decisis---Meaning.

Stare decisis is a latin term, which means "to stand by things decided". It is the doctrine that courts will adhere to precedent in making their decisions. The doctrine of stare decisis is expressed in the maxim "stare decisis et non quieta movere" which means "to stand by decisions and not to disturb what is settled".

Kimble v. Marvel Entertainment, LLC 576 U.S. 446 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

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

----Art. 42-B---Decisions of Supreme Court binding on other Courts---Scope---Article 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974 ordains every court of AJ&K including High Court to adhere to the ratio decidendi laid down by our apex Court in letter and spirit.

Raja Gul Majeed Khan for Petitioner.

Syed Tabish Hazoor Imam Kazmi for Respondent No.2.

P L D 2023 High Court (AJ&K) 116

Before Syed Shahid Bahar, J

JUNAID ABBASI---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others---Respondents

Writ Petition No. 3331 of 2022, decided on 19th September, 2022.

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

----Art. 44(2)---Writ petition---Laches, doctrine of---Public auction of Government property---Bid money, withdrawal of---No locus standi to challenge auction proceedings---Scope---Plot in question, which belonged to a department of the Government of Azad Jammu and Kashmir (AJ&K), was sold out through a public auction---Petitioner, who claimed to be the second highest bidder for the plot, challenged the auction proceedings---Held, that petitioner never remained a successful bidder in the first auction, while the successful bidder also failed to comply with the terms of bid, which ensued into a second bid process, which too had a similar fate---Third auction proceedings were conducted after giving advertisement for auction in a newspaper, however, in the said auction proceedings, petitioner did not participate, and one of the respondents was declared successful bidder ('the successful bidder')---Final acceptance of bid of successful bidder was issued including the payments' schedule, which had further been confirmed by the Cabinet of AJ&K Government---Said aspects postulated that the bid had been conducted in an open manner, wherein petitioner had not participated in any manner---Record further postulated that petitioner was part of 1st auction proceedings, whereby he himself withdrew his initial seed money, hence, his legal right to challenge the auction proceedings could not survive---Plot in question was sold out to the successful bidder and payment had also been made by it and the said plot had also been transferred to it, hence, present writ petition had also been filed at belated stage, and was hit by the doctrine of laches---Petitioner in 1st round of litigation approached the Islamabad High Court by filing a writ petition---After dismissal of the same, he opted to switch over and filed the present writ petition after about 05 years---Writ petition was dismissed.

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

----Art. 44(2)---Writ jurisdiction of High Court, Azad Jammu and Kashmir (AJ&K)---Scope---Relief in writ jurisdiction is equitable in its nature, and the person who asks for such relief must come promptly with clean hands in the attire of bona-fide, that too by following and observing all the protocols required to be adhered to, qua equitable relief i.e. delay defeats equity; he who seeks equity must come with clean hands; and law helps vigilant and lulls indolent.

Muhammad Arif v. Uzma Afzal and others as 2011 SCMR 374 ref.

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

----Art. 44(2)---Writ jurisdiction of High Court, Azad Jammu & Kashmir (AJ&K)---Scope---Law shut its eyes from a person who himself sleeps over his/her rights and thereafter tries to seek aid after deep slumber.

P L D 2023 High Court (AJK) 121

Before Chaudhary Khalid Rasheed, J

WALAYAT ALI---Appellant

Versus

SAFEER HUSSAIN SHAH and 4 others---Respondents

Civil Appeal No. 84 of 2014, decided on 23rd January, 2023.

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

----S. 12(2)---Ex-parte judgement and decree, setting aside of---Respondent filed application under S. 12(2), C.P.C., for setting aside ex-parte decree allegedly obtained by fraud---Appellant/respondent filed objections therein---Civil Court framed issues in the light of pleadings, provided the parties opportunity to lead evidence and dismissed the application for want of proof and non-compliance of court order---District Court accepted the appeal of applicant---Held, that perusal of the order passed by the Trial Court revealed that the Civil Judge failed to appreciate the statements of the two witnesses produced by the applicant and simply stated that evidence produced by the applicant was insufficient, hence, the District Judge was justified to hold that the Trial Court had failed to appreciate the evidence led by the applicant in a legal fashion and passed the impugned order in a hasty manner---As some serious allegations had been levelled in the application which could only be resolved after recording evidence, therefore, the order recorded by the District Judge to allow the applicant by giving a chance to produce his entire evidence was justified irrespective of the fact that applicant was allowed sufficient opportunities to lead evidence---Law demands that cases should be decided on its merits and reasonable opportunity should be provided to the parties to prove their pleadings---Appeal was dismissed, in circumstances.

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

----S. 12(2)---Order recorded by Court under S.12(2), C.P.C.---Second appeal---Appeal filed by appellant was not competent because under the law an appeal could be filed against an order or decree if the same was specifically provided in the statute---As no right of appeal is provided in the statute against an order recorded by the court while deciding an application under S. 12(2), C.P.C., thus, the order recorded by the Court under S.12(2), C.P.C., can be assailed through revision petition and an order recorded by the Court in revisional jurisdiction can be assailed only through writ petition---Though appeal before the District Judge against the order recorded by the Trial Court in the application under S. 12(2), C.P.C., was not competent however, it was now a well settled precept that if first appellate Court had entertained and decided the mater as an appeal then same could be treated as decision of revision which was competent---Thus, the appeal filed by appellant was also liable to be dismissed on the ground of its maintainability.

2014 MLD 109 rel.

Khalid Mehmood Khokhar for Appellant.

Sardar Mansha Jamal for Respondents.

P L D 2023 High Court (AJK) 124

Before Mian Arif Hussain and Syed Shahid Bahar, JJ

SERAAJ DIN and 5 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Works and Communication, Muzaffarabd and 11 others---Respondents

Writ Petition No. 1406 of 2022, decided on 11th October, 2022.

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

----Art. 44---Writ petition--- Extraordinary jurisdiction--- Factual controversy---Scope---High Court in its extraordinary jurisdiction cannot sit over and step in the policy/administrative decisions of the government functionaries qua the welfare projects particularly when the stance of the petitioner is objected by the other side on factual grounds---Proper recourse in this regard is to file the civil suit in order to establish a specific fact by providing oral as well as documentary evidence---Extraordinary relief is justified only in extraordinary circumstances in favour of an aggrieved person, if any infringement of law or for that matter violation of constitutionally guaranteed fundamental rights is involved.

(b) Public functionaries---

----Government functionaries are under bounden duty to perform their duties strictly in accordance with law.

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

----S. 21---Locus poenitentiae---Scope---An authority can exercise the powers of modification by re-visiting the order of instrument already passed but the power is not unqualified and subject to the condition that in case of implementation of such like order or instrument where decisions or steps have been taken as a result of which certain rights have been created in favour of a party, then exercise of power under this doctrine is not available.

Ch. Shoukat Aziz for Petitioners.

Mohammad Asad Khan, Legal Advisor for Respondents Nos. 1 to 8.

P L D 2023 Islamabad 1

Before Miangul Hassan Aurangzeb andArbab Muhammad Tahir, JJ

PAKISTAN MEDICAL COMMISSION ('PMC') through Secretary (Successor of Registrar PMDC), Islamabad Capital Territory---Appellant

Versus

CONSTRUCTION EXPERTS (PVT.) LIMITED through Chief Executive/ Director, Islamabad and another---Respondents

F.A.O. No. 35 of 2021, decided on 8th September, 2022.

Arbitration Act (X of 1940)---

----Ss. 5, 11, 20, 30 & 39 (iv)---Appointment of arbitrator---Designated arbitrator, change of---Influence on arbitrator---Dispute was with regard to appointment of arbitrator other than the one nominated in arbitration agreement between the parties and influence of National Accountability Bureau over the arbitrator so appointed---Validity---Basic idea of arbitration was settlement of disputes by tribunals chosen by parties themselves whose decision was to be accepted as final between themselves---Due weight had to be given to arrangement made by parties themselves relating to personnel and machinery for settlement of their disputes---In the case of a named arbitrator, reference had to be made to him and a party was precluded from approaching the Court for appointing an arbitrator other than the named arbitrator---Once a party entered into an agreement with eyes wide open, it could not wriggle out of the situation on the claim that designated person would not be impartial or objective---If at the conclusion of arbitration proceedings respondent felt that arbitrator had not acted independently or impartially or had suffered bias while rendering the award, it was always open to it to take such as a ground in its application under S. 30 of Arbitration Act, 1940 for setting aside the award---During the course of arbitration proceedings, if arbitrator had proceeded with the reference in a manner as to give reason to respondent to believe that he was misconducting the proceedings, he could file application under S.5 of Arbitration Act, 1940 to revoke authority of arbitrator---Application under S. 11 of Arbitration Act, 1940 could also be filed for removal of arbitrator---If NAB were to interfere with arbitrator, it would not just amount to perversion of the course of justice but would also be an actionable wrong---Where the arbitrator let himself be influenced by such a rank outsider to the contract while rendering an award, it would amount to "misconduct" not just as is understood in the arbitration parlance but also in the true sense of the word, i.e. wrongdoing---Very essence of impartial adjudication was defeated where an adjudicator would allow his mind to be influenced by a third party who did not have any statutory power or contractual authority to administer the contract---Adjudicator must not let himself be coerced into deciding a claim one way or the other---High Court maintained order of Trial Court referring the disputes between the parties to arbitration but set aside appointment of arbitrator other than the one designated by parties---Appeal was allowed accordingly.

Shan Muhammad v. Nawab PLD 2001 Lah. 239; Punjab State v. Dina Nath 2007 (5) SCC 28; K.K. Modi v. K.N. Modi 1998 (3) SCC 573; Bihar State Mineral Development Corporation v. Encon Building 2003 (7) SCC 418; Girdhari Lal Bansal v. Bhakhra Beas Management Board AIR 1985 Punjab and Haryana 219; State of U.P. v. Sardul Singh Kulwant Singh AIR 1985 Allahabad 67; Prahraj Partners v. State of Orissa AIR 1981 Orissa 104 and Pak. U.K. Association (Pvt.) Ltd. v. The Hashemite Kingdom of Jordan 2017 CLC 599 rel.

Taimoor Aslam Khan for Appellant.

Sardar Muhammad Qadeer Hussain along with Fawad Butt, C.E.O. for Respondent No.1.

Sardar Zafar Ullah Khan, Legal Advisor for Respondent No.2.

P L D 2023 Islamabad 17

Before Sardar Ejaz Ishaq Khan, J

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION through Director General, Islamabad and others---Appellants

Versus

EJAZ AHMED KHAN and 3 others---Respondents

Regular First Appeals Nos. 50 and 59 of 2017, decided on 3rd August, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Contract Act (IX of 1872), S. 18(1)---Suit for declaration and injunction---Allotment of plot---Misrepresentation---Vicarious liability, principle of---Negligence of employee of company---Effect---Plaintiff was transferee of suit plot which was in the management defendant Foundation---Plaintiff sold suit plot to another person but defendant Foundation few years after the transfer made by plaintiff, cancelled his allotment on the plea that it was made by fraud---Suit filed by plaintiff was dismissed by Trial Court---Validity---Defendant Foundation was vicariously responsible for loss occasioned by negligence of its employees---Barring some exceptions, such was the doctrine of vicarious liability having a good commercial rationale---Defendant Foundation was a company that charged transfer fee and had issued a document of title---Defendant Foundation held out to the world at large that its document of title was one on the basis of which title holder could transact the plot---Result would be monstrous, if defendant Foundation could turn around and disclaim its title document as bereft of any credence---Provisions of S. 18(1) of Contract Act, 1872, enumerated ingredients of misrepresentation which made actual knowledge of person making representation of it being untrue, irrelevant---Even if defendant Foundation as a corporate body did not know at the relevant time that transfer letter in question was not genuine, its employees per inquiry report knew so and their acts were vicariously attributable to defendant Foundation---Plaintiff carried out his due diligence of plot files at defendant Foundation's office---Plaintiff was entitled to rely on transfer letter regarding title document issued by defendant Foundation to his predecessor-in-interest---Defendant Foundation was entitled to cancel the plot once it had found out that transfer letter was issued as a result of what the defendant Foundation called a fraud in which its employees were complicit with fake persons or such was an instance of gross negligence---Defendant Foundation was vicariously liable for negligence act of its employees, per its inquiry report, and was liable to compensate plaintiff---High Court set aside judgment and decree passed by Trial Court---Appeal was allowed accordingly.

A M Mohamud v. WM Morrison Supermarkets PLC 2016 SCMR 963 and Mian Nisar Elahi v. Lahore Stock Exchane(G) Limited and 4 others 2007 CLD 376 ref.

Muhammad Nazir Jawad for Appellants.

Syed Shajjar Abbas Hamdani for Respondent No.1.

Mirza Irfan Ghazanfar for Respondents Nos. 3 and 4.

P L D 2023 Islamabad 34

Before Babar Sattar, J

SHAHAB SAQIB through Attorney---Petitioner

Versus

SADAF RASHEED and 2 others---Respondents

Writ Petition No. 2355 of 2015, decided on 3rd May, 2021.

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

----O. XLI, R. 23---Remand of case---Principle---Remand order must not be passed as a matter of routine---Proceedings in appeal are continuation of trial and to the extent that Appellate Court is able to adjudicate matter before it in view of the record and evidence before it, there arises no occasion to remand the matter to Trial Court---Order of remand delays adjudication of case and execution of adjudicatory order---Such delay inevitably benefits party that has an interest in delaying enforcement of adjudicatory order.

Fateh Ali v. Pir Muhammad 1975 SCMR 221; Nasir Ahmed v. Khuda Bakhsh 1976 SCMR 388; Chairman Wapda, Lahore v. Gulbat Khan 1996 SCMR 230; Ashiq Ali v. Mst. Zamir Fatima PLD 2004 SC 10 and Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Fair trial and due process of law---Principle---Non-availing of due process of law---Effect---Rights of opponent party---Scope---Due process under Art. 10-A of the Constitution is afforded to a person whose rights are being determined---Such person cannot chose to benefit from due process, if he elects not to avail opportunity to be heard---Providing such person repeat opportunities tantamount to undermining due process rights of other persons whose rights and interests are also tied up in litigation.

(c) Jurisprudence---

----Customs and personal law---Scope---Certain relationships, such as marriage and interactions within family, are left outside the domain of public law and are regulated by personal law of community in question---Customs and personal laws of communities are guided by their respective religious beliefs and edicts---Process of codification of personal laws of communities begins taking root, so codified statutory provisions as well as uncodified personal law both constitute sources of law guiding courts in reaching decisions in areas that traditionally belong to province of private law.

(d) Constitution of Pakistan---

----Arts. 189 & 201---Judgments by Supreme Court and High Court---Judgments of Supreme Court are binding on everyone in terms of Art. 189 of the Constitution and judgments of High Courts are binding on all subordinate forums in terms of Art. 201 of the Constitution.

(e) Constitution of Pakistan---

----Arts. 178 & 194---Oath of Judges---Duties and obligations---Judges under the oath sworn by them are obliged to dispense justice in accordance with law and Constitution---Judges are not legislators and their personal, religious and moral beliefs can play no part in influencing discharge of their judicial functions.

(f) Constitution of Pakistan---

----Art.228---Council of Islamic Ideology---Object, purpose and scope---Council of Islamic Ideology (Council) has been created under Art. 228 of the Constitution---Authority has been conferred upon the Council to make recommendations to the Parliament and Provincial Assemblies as to ways and means to enable Muslims of Pakistan to enable their lives in accordance with injunctions of Islam---Parliament is to amend existing laws or promulgate new laws for such purpose.

(g) Constitution of Pakistan---

----Arts.199, 203-C & 228---Constitutional jurisdiction of High Court---Judge's own understanding of Islam---Laws in conformity to injunctions of Islam---Declaration---High Court is not to usurp jurisdiction of Federal Shariat Court on one hand or Council of Islamic Ideology comprising religious scholars and the Parliament on the other by importing one's personal understanding of principles emanating from the Quran and the Sunnah in deciding cases in the presence of clear statutory provisions addressing the subject matter.

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

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance of wife---Deferred dower---Working woman---Failure to live with her husband---Effect---Suit for recovery of maintenance and deferred dower was filed by respondent / wife against petitioner/ husband---Trial Court and Lower Appellate Court concurrently passed ex-parte judgments and decrees against petitioner / husband---Plea raised by petitioner / husband was that respondent / wife was a working woman and she was not entitled to receive her maintenance as she was not residing with him---Validity---No condition exists in S.9 of Muslim Family Laws Ordinance, 1961, that needed to be satisfied prior to establishing eligibility of wife, who remained in bond of marriage, to maintenance and none could be imported into it on the basis of commentaries in various treatises on the principles of Islamic Law---Provision of S. 9 of Muslim Family Laws Ordinance, 1961, was not ambiguous and consequently conditions for grant of maintenance to a wife could not be read into it by virtue of erstwhile S. 488, Cr.P.C. or S. 2 of Muslim Personal Law (Shariat Application) Act, 1937 [since repealed], or case law evolved at a time when such statutory provisions were in the field---Respondent / wife was entitled to maintenance for entire period that she remained married to petitioner unconditionally and preconditions could be imposed, the satisfaction of which was a prerequisite to assert her entitlement to maintenance---Lower Appellate Court made no mistake in law in granting maintenance to respondent/ wife---High Court in view of clearly affixed obligation under S. 9 of Muslim Family Laws Ordinance, 1961, declined to interfere in ex-parte judgments and decrees passed by two Courts below---Constitutional petition was dismissed, in circumstances.

Bashir Hussain Shah v. Mujeeb Ahmed Khan 2012 SCMR 1235; Mst. Parveen Akhtar v. Subash Chandar 2016 MLD 1596; Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi 1994 CLC 1216; Khairati and 4 others v. Aleem-ud-Din and another PLD 1973 SC 295; Ghulam Rasool v. Muhammad Hussain and others PLD 2011 SC 119; Fazal Jan v. Roshan Din PLD 1992 SC 811; Ghulam Zohra and others v. Nazar Hussain 2007 SCMR 1117; Sardar Muhammad v. Mst. Nasima Bibi and others PLD 1966 Lah. 703; Muhammad Nawaz v. Mst. Khurhsid Begum PLD 1972 SC 302; Ghulam Rasool v. Collector, Lahore PLD 1974 Lah. 495; Mohd. Ahmed Khan v. Shah Bano Begum and others AIR 1985 SC 945; Muhammad Najeeb v. Mst. Talat Shahnaz 1989 SCMR 119; Aqal Zaman v. Mst. Azad Bibi 2003 CLC 702; Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457; Abdul Rafay Butt v. Additional District Judge and others PLD 2015 Lah. 258; Manzoor Hussain v. Mst. Safiya Bibi PLD 2015 Lah. 683; Haji Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lah. 930; Muhammad Usman Iqbal Jadoon v. Mst. Saadia Usman and others 2010 YLR 1539; Saadia Usman v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior PLD 1992 SC 595; Malik Muhammad Mumtaz Qadri v. The State and others PLD 2016 SC 17; Nature of the Judicial Process by Benjamin N. Cardozo (13th Ed. Yale University Press, 1946; P.14); Sir John Salmond's Jurisprudence page 175; D.F Mulla's Principles of Mohammedan Law (Page 795) paras. 227, 278; Mst. Resham Bibi v. Muhammad Shafi PLD 1967 AJ&K 32; Majida Khatun Bibi v. Paghalu Muhammad PLD 1963 Dacca 583; Mst. Shazia Kausar v. Muhammad Ahmed 2006 CLC 251; Ghulam Yasin v. Mst. Nasreen 2006 YLR 967; Mian Muhammad Sabir v. Mst. Uzma Parveen PLD 2012 Lah. 154; Majid Hussain v. Farrah Naz 2019 MLD 1999; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Dr. Anees Ahmed v. Mst. Uzma PLD 1998 Lah. 52 and Muhammad Azam v. Addl. District Judge 2006 YLR 33 ref.

(i) Interpretation of statutes---

----Casus omissus, principle of---Applicability---Jurisprudence and principle of law can be used as a tool for interpretation of statutes where text of statute in view of its plain meaning can be accorded more than one interpretation---If language of statute unequivocally conveys intent of law, no external source of law can be employed to read into that statute---Jurisprudence and principle of law do not trump the principle of casus omissus---Court cannot supply to a statute language that is not provided therein.

Naseer Anjum Awan for Petitioner.

Aman Ullah Kayani for Respondents.

P L D 2023 Islamabad 75

Before Miangul Hassan Aurangzeb, J

ALI EJAZ---Petitioner

Versus

ARBITRATION COUNCIL and another---Respondents

Writ Petition No. 3153 of 2022, decided on 11th October, 2022.

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

----S. 7---Talaq---Mubaraat---Meaning and scope.

Mutual revocation of the contract of marriage is known as Mubaraat and the same is irrevocable from the date of its execution.

Mubaraat is an extra-judicial form of joint divorce applicable to a Muslim husband and wife. It is a dissolution of marriage by mutual consent of the spouses. The law does not insist on a particular form in which such mutual agreement is to be made. What is essential is the meeting of minds of the parties to such an agreement. When both the parties enter into Mubaraat, all mutual rights and obligations come to an end. It is an irrevocable divorce. The offer for a divorce through Mubaraat may proceed from the wife or from the husband but once it is accepted, the dissolution of marriage is complete and irrevocable.

Ameer Ali's Commentaries on Muhammadan Law (Fifth Edition) and Muhammadan Law by D.F. Mulla (Eighth Edition) rel.

When both the parties enter into Mubaraat, all matrimonial rights that they possess against each other fall to the ground.

Ameer Ali's Commentaries on Muhammadan Law (Fifth Edition) rel.

Mubaraat is a dissolution of marriage by agreement. When the aversion between a husband and wife is mutual and both the sides desire a separation, the transaction is called Mubaraat. Once the offer for the dissolution of marriage made either by the husband or wife is accepted by the other, the dissolution is complete and it operates as Talaq-e-Bain. In case of Talaq-e-Bain, there is no question of reconciliation. Such Talaq becomes effective the moment it is pronounced.

Muhammadan Law by D.F. Mulla (Eighth Edition) rel.

Talaq-e-Bain operates as an irrevocable divorce and takes effect irrespective of Iddat. It leads to a definite dissolution of marriage without reservation of the power of retraction.

Mst. Zarina Begum v. Major Aziz ul Haq 2006 CLC 1525 ref.

Roheela Yasmin v. Neelofar Hassan 2014 YLR 2315 rel.

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

----Ss. 7 & 8---Talaq---Mubaraat---Period of iddat---Scope.

Where the pronouncement of divorce is in the form of Mubaraat (i.e. agreement to dissolve marriage with the consent of both parties), one party cannot unilaterally revive the contract of marriage without the consent of the other.

Mst. Ambreen Shah v. Chairman, Union (Arbitration) Council 2002 MLD 778 rel.

Divorce which is in the nature of Mubaraat becomes irrevocable from the date of its execution and the provision for revocation of divorce contained in S. 7 of the Muslim Family Laws Ordinance, 1961, is inapplicable to such a divorce.

Muhammad Shahbaz Ahmad v. Sher Muhammad 1987 CLC 1496 rel.

If the divorce is with the mutual consent of the husband and wife and on the basis of Mubaraat, neither party can retract or withdraw the divorce nor does the Chairman, Union Council have any authority to adjudicate upon the validity of the divorce. Chairman, Union Council, is bound to issue a certificate for the effectiveness of divorce and has no power in law to entertain a notice for the withdrawal of divorce or to start proceedings on the basis thereof.

Muhammad Shahbaz Ahmad v. Sher Muhammad and others 1987 CLC 1496 and Prince Aiysha Yasmeen Abbasi v. Maqbool Hussain Qureshi PLD 1979 Lah. 241 ref.

Mst. Shamshad Mai v. Chairman, Union Council 2000 MLD 173 rel.

Talaq in the nature of Mubaraat through mutual agreement of husband and wife is final and the provision for revocation contained in S.7 of the Muslim Family Laws Ordinance, 1961 is not applicable and the husband has no authority to revoke the divorce.

Abdul Rashid v. S.H.O. Police Station Sadar Rehnala 1995 PCr.LJ 1247 rel.

Divorce executed by the parties through mutual agreement is "Talaq Mubaraat" and irrevocable. In case of a divorce on the basis of an agreement, S. 8 of the Muslim Family Laws Ordinance, 1961, would be applicable and not S. 7 of the Muslim Family Laws Ordinance, 1961. Section 7 of the Muslim Family Laws Ordinance, 1961 deals only with divorce by a husband and other forms of divorce recognized by Islam are not covered by S.7 of the Muslim Family Laws Ordinance, 1961.

Dr. Iftikhar Ahmad Minhas v. Mst. Aisha Mahmood 1997 CLC 1985 rel.

Divorce as Mubaraat becomes effective immediately upon its execution, unlike Talaq-e-Ahsan which becomes irrevocable on expiry of the Iddat period, and Talaq-e-Hasan which becomes irrevocable on the third pronouncement irrespective of the Iddat period---Talaq-e-Bain, like Mubaraat, becomes irrevocable immediately on its pronouncement irrespective of Iddat.

Ms. Natalya Kamal for Petitioner.

Abid Hussain Chaudhary and Mian Nadeem Aziz Jatala for Respondents.

P L D 2023 Islamabad 83

Before Babar Sattar, J

AHMED BILAL---Petitioner

Versus

KHURRAM JAVED and 3 others---Respondents

Writ Petition No. 2383 of 2021, decided on 16th June, 2022.

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

----Ss. 15, 19 (b), 25 & 41(1)(e)---Islamabad Capital Territory Child Protection Act (XXI of 2018), Ss. 4 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of child---Restriction on parents---Pre-condition---Poor economic condition of father---Petitioner was father of minor girl who was deprived of custody and guardianship of his minor daughter on the plea that respondent who was his mother-in-law had better economic condition than him---Validity---Father could not be declared unfit to serve as guardian of his own child whom he had brought into the world, merely because he was poor or uneducated or that his relatives or relatives of his former spouses were better educated or financial better off or possessed better accommodation---Only relevant consideration was bond of love and affection between the parent and the child and willingness of the parent to look after wellbeing of the child---No evidence, material or basis for Family Court were available to determine that petitioner was unfit to act as a guardian for the person or property of his own daughter---To appoint another guardian in his stead while he was alive and well and eager and willing to act as a guardian of his own daughter, who was already deprived of her natural mother, was in breach of provisions of Ss. 19(b) & 41(1)(e) of Guardians and Wards Act, 1890---No third party, caregiver or guardian could be appointed a guardian in the stead of a biological parent of the child while biological parent was alive and not found unfit by Family Court to act as guardian of his or her own child---High Court directed Chief Commissioner in his capacity as Provincial Government for purposes of Islamabad Capital Territory to put together panel of duly qualified professional psychologists and psychiatrists who could be consulted by Family Courts seized of guardianship matters---High Court further directed that Chief Commissioner, Islamabad Capital Territory would ensure that such professionals were compensated for the services that they provide to Family Courts in assessing needs of children subject to guardianship decisions---High Court set aside judgment and decrees passed by two Courts below and declared petitioner as sole guardian of his minor daughter---Constitutional petition was allowed accordingly.

Zohra Begum v. Maimuna Khatun PLD 1965 Dacca 290; Mst. Fahmida Begum v. Habib Ahmed PLD 1968 Lah. 1112; Rahimullah Choudhury v. Helali Begum 1974 SCMR 305; Imtiaz Begum v. Tariq Mahmood 1995 CLC 800; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mst. Firdous Iqbal v. Shifaat

Ali 2000 SCMR 838; Khan Muhammad v. Mst. Surrayya Bibi

2008 SCMR 480 and Nasir Raza v. Addl. District Judge 2018 SCMR 590 rel.

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

----Ss. 15, 19 (b), 25 & 41(1)(e)---Islamabad Capital Territory Child Protection Act (XXI of 2018), Ss. 2 (1)(v) & 16---Custody of minor---Disentitling parents from guardianship---Principle---Test for declaring that a third party, caregiver or guardian must be appointed for welfare of child while one or both of his or her biological parents are still alive is that provided under S. 16 of Islamabad Capital Territory Child Protection Act, 2018 i.e. that the child should be at the risk of significant harm, abuse or exploitation if he or she were to remain in the custody of the parent, or in a situation where the child has been abandoned by the living parent or parents and is deemed to be an unattended child as defined in S. 2(1)(v) of the Islamabad Capital Territory Child Protection Act.

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

----Ss. 15 & 19---Guardian other than parents---Court, duty of---Principle---Where Family Court appoints a guardian who is not biological parent of child in place of his or her biological parent, the Court is under continuing obligation to oversee welfare of the child and to ensure that emotional, physiological and psychological wellbeing of child is being catered for in the guardianship arrangement made by the Court---Such arrangement has to be reviewed on an ongoing basis at least once in a year to ensure that guardianship decision rendered by the Court continues to serve as a source of welfare for the child---In reaching a custody and guardianship decision, Court must rely on professional assessment regarding emotional, physiological and psychological needs of child---For such assessment Courts concerned are not trained to make independently.

Muhammad Waqas Ali Malik for Petitioner.

Raja Yasir Shakeel Janjua and Muhammad Aamir Naeem for Respondents.

Ms. Hadiya Aziz, (amicus).

P L D 2023 Islamabad 105

Before Miangul Hassan Aurangzeb, J

BETTER ENGINEERED SOLUTIONS (PVT.) LTD. through authorized Representative/Director---Appellant

Versus

BALOCHISTAN DEVELOPMENT AUTHORITY, QUETTA through Chairman and another---Respondents

F.A.O. No. 149 of 2017, decided on 30th August, 2022.

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

----S.9(b)---Pre-requests to be fulfilled before there can be a valid appointment of a sole arbitrator under S.9(b) enumerated.

The following prerequisites must be fulfilled before there can be a valid appointment of a sole arbitrator under section 9(b):--

(i) There must be a valid arbitration agreement between the parties providing for reference to two arbitrators, one to be appointed by each party;

(ii) The party willing to exercise this power must have appointed its own arbitrator before service of notice on the other party;

(iii) After appointing its own arbitrator, the party must serve a notice on the other party intimating about the appointment of its own arbitrator and calling upon the other party to appoint its arbitrator;

(iv) There must be a default or failure of the other party to appoint its arbitrator for a period of 15 clear days from the date of service of the notice;

(v) On the expiry of this period of 15 clear days from the date of service of the notice, the party who had appointed its own arbitrator acquires the right to appoint its own arbitrator as the sole arbitrator;

(vi) The right to appoint its own arbitrator as the sole arbitrator has to be exercised by the party that has already appointed its arbitrator and notice of such appointment has to be given to the other party. The appointment of a sole arbitrator is subject to the contingency that the Court may set-aside any such appointment and allow further time to the defaulting party to appoint an arbitrator or pass such order as it thinks fit.

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

----S. 9(b)---Term "may appoint that arbitrator to act as sole arbitrator"---Scope---Term "may appoint that arbitrator to act as sole arbitrator" in S. 9(b) of Arbitration Act, 1940 connotes appointment of sole arbitrator by serving a notice about such appointment on the party that failed or refused to appoint its arbitrator within fifteen-day period.

Thomas v. Fredrick (1847 (10) Q.B. 775; Hari Chand v. Lachhman Das AIR 1948 EP 11; Satya Narayan Agarwall v. Baidyanath Mandal AIR 1972 Patna 29; Abdul Khaleq v. Province of East Pakistan PLD 1964 Dacca 166 and Tradax Export S.A. v. Volkswagenwerk A.G. [1970] 1 All ER 420 rel.

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

----S. 9(b), proviso---Sole arbitrator---Appointment setting aside of---Scope---Court can set-aside appointment of a sole arbitrator made under S. 9(b) of Arbitration Act 1940, where defaulting party comes up with equitable grounds---Court can allow further time to such party to appoint an arbitrator---Defaulting party is not required to show sufficient cause or explain delay of each and every day but has to satisfy Court that he has not been obstructive or evasive and has acted with due diligence---Order under proviso to S. 9(b) of Arbitration Act, 1940 enables defaulting party to remedy his failure to make appointment within 15 days after receipt of notice.

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

----Ss. 8, 9, 20 & 30---Award, setting aside of---Appointment of arbitrator---Procedure---Dispute was with regard to award given by sole arbitrator which award was set aside by Trial Court on the ground that sole arbitrator could not have been appointed---Validity---Application under S.8(2) of Arbitration Act, 1940 for appointment of arbitrator(s) could be made only if arbitrator(s) who neglected or refused to act or had become incapable of acting or had died, had been appointed with the consent of the parties or by the Court under S.8 or 20 of Arbitration Act, 1940 but not where such arbitrator had been appointed by any party without the other part's consent---Provision of S. 8 of Arbitration Act 1940, referred to power of Court to appoint an arbitrator or an umpire in case of neglect, refusal to act, incapability of acting, death of the appointed arbitrator, when parties did not concur in appointment of an arbitrator or umpire---Provision of S. 9 of Arbitration Act 1940, empowered a party to appoint his arbitrator as the sole arbitrator and was applicable only when arbitration agreement provided that reference would be to two arbitrators, one to be appointed by each party---Arbitration clause in agreements between parties provided for two arbitrators to be appointed by each of the parties, element of consent of parties was lacking, therefore, provision of S. 8 of Arbitration Act, 1940 was of no relevance---High Court maintained order setting aside of the award rendered by sole arbitrator---Appeal was dismissed, in circumstances.

Karachi Dock Labour Board v. Quality Builders Ltd. PLD

2016 SC 121; Akbar Hussain v. Wadero Muhammad Tayyab PLD 1996 Kar. 545; Alpha Insurance Co. Limited v. Ch. Niazam Din & Sons 2001 CLC 289 and Subal Chandra v. MD. Ibrahim AIR 1943 Calcutta 484 ref.

Muhammad Shahid Kamal Khan, Malik Fazal Ali and Rana Tanveer Ahmed Khan for Appellant.

Abdul Zahir Kakar for Respondent No.1.

Saif Khojak, J.M. (Legal), Balochistan Development Authority.

P L D 2023 Islamabad 124

Before Aamer Farooq, J

MUHAMMAD SULEMAN---Petitioner

Versus

MUHAMMAD SAAD NASEEM and 2 others---Respondents

Writ Petition No. 2163 of 2019, decided on 18th August, 2022.

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

----Ss. 241-A & 244---Qanun-e-Shahadat (10 of 1984), Art. 18---Evidence for prosecution---Supply of statements and documents to accused---Production of documents---Scope---Accused, in a trial under S. 489-F, P.P.C., objected to the complainant's exhibition of certain original documents during his evidence, copies whereof had been provided to the police during the course of investigation---Magistrate sustained the objection and discarded the documents which formed part of the evidence---Complainant filed a revision petition before the Sessions Court, which was allowed---Held, that the police authorities ought to have taken the original bank receipts or at least complainant ought to have provided them during the course of investigation, however, even if the same was not done and subsequently during the course of trial the original documents were produced in evidence, there was no impediment in law which barred the prosecution from doing so---By virtue of Art. 18 of the Qanun-e-Shahadat, 1984, any evidence which proved the fact and issue was to be allowed by the Court---Mere admissibility of document in evidence did not necessarily prove it---Method to prove a document was altogether distinct from adducing it in evidence---Trial Court could not have discarded the documents---Revisional Court had rightly explained the position of law and no exception could be taken thereto---Writ petition was dismissed.

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

----Arts. 72, 73, 74, 75, 76 & 77---Documentary evidence---Proof of contents of documents---Primary evidence---Secondary evidence---Proof of documents by documentary evidence---Cases in which secondary evidence relating to documents may be given---Rules as to notice to produce---Scope---Contents of documents may be proved either by primary or by secondary evidence---Article 73 of the Qanun-e-Shahadat, 1984, explains evidence to mean the document itself produced for the inspection of the Court, whereas under Art. 74, secondary evidence means and includes certified copies; copies made from the original by mechanism processes which in themselves ensure the accuracy of the copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it---Article 75 clearly and in unambiguous terms states that documents must be proved by primary evidence except in the circumstances as mentioned in the Qanun-e-Shahadat, 1984---Exceptional circumstances in which secondary evidence can be admissible are contained in Art. 76 of the Qanun-e-Shahadat, 1984; when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it; when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; when due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern device; when the original is of such a nature as not to be easily moveable; when original is a public document as provided in Art. 85; when original is a document of which a certified copy is permitted by the Order or by any other law; when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and when original document forming part of a judicial record is not available and only certified copy thereof is available---Article 77 states that secondary evidence of the contents of the documents as mentioned in Art. 76 would not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances.

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

----Ss. 265-C & 241-A---Supply of statements and documents to the accused---Scope---Before commencement of the trial under Chap. XXIIA, Cr.P.C., in all cases instituted upon the police report, copies of the following documents are to be provided to the accused free of cost not later than 07 days before the commencement of the trial namely FIR, the police report, statements of all the witnesses recorded under Ss. 161 & 164, Cr.P.C. and inspection note recorded by the Investigating Officer on his first visit to the place of occurrence and note recorded by him on recovery memo, if any---In case of trial before the Magistrate, under Chap. XX, Cr.P.C., in all cases instituted upon police report except those tried summarily or punishable with fine or imprisonment not exceeding six months, copies of statement of witnesses recorded under Ss. 161 & 164, Cr.P.C. as well as inspection note recorded by Investigating Officer on his first visit to the place of occurrence shall be supplied free of cost to the accused not later than 07 days before the commencement of trial.

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

----Art. 18---Evidence may be given of facts in issue and relevant facts---Documentary evidence, de-exhibiting of---Scope---No concept of de-exhibition of any document existed, however, if there is any objection as to the admissibility or proof of the document, same is to be decided by the Trial Court in accordance with law while adjudicating the matter and choose not to rely on documentary evidence as exhibited for the reasons recorded by it.

Muhammad Arif alias APPO v. The State 1998 PCr.LJ 271 rel.

(e) Evidence---

----Tendering document in evidence and making it does not per se prove the document and same is to be proved in accordance with the provisions of the Qanun-e-Shahadat, 1984.

(f) Evidence---

----Admissibility of document cannot be disputed or questioned on the ground that they are fabricated; it is for the Trial Court to determine at the time of decision whether they are reliable and genuine documents.

Muhammad Arif alias APPO v. The State 1998 PCr.LJ 271 rel.

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

----Art. 18---Production of documents---Scope---Under Art. 18 of the Qanun-e-Shahadat, 1984, the Court cannot refuse to admit the documents which are relevant for decision of the case---Parties, in view of O. XIII, Rr. 1 & 2, C.P.C., are required to attach with plaint all the documents on which reliance is placed, whereas there is no corresponding provision in Criminal Procedure Code for placing any embargo on the powers of the Court to receive any document at belated stage provided it is relevant under Art. 18 of the Qanun-e-Shahadat, 1984.

Muhammad Arif alias APPO v. The State 1998 PCr.LJ 271 rel.

(h) Evidence---

----Receiving a document in evidence and marking it as exhibit does not bar other party from questioning its admissibility later---Likewise, merely exhibiting a document does not dispense with the onus to prove the same---Admitting a document in evidence does not determine its evidentiary value nor does its admissibility attain finality; it only becomes part of the record and is marked as exhibit.

Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569 rel.

(i) Evidence---

----Proof---Standard of proof in civil and criminal cases---Scope---Degree of proof required in the civil and criminal cases is different viz. in the former, mere preponderance of probability is sufficient and benefit of reasonable doubt need not necessarily go to the defendant but in the latter the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable men beyond all reasonable doubt.

Zakaullah Khan v. Muhammad Aslam and another 1991 SCMR 2126 rel.

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

----Art. 18---Production of documents---Scope---No bar existed to produce a document, especially when a particular question is asked by the defence to witness regarding the production of the same before the police during investigation---One may visualize a situation in which valuable documents may have been omitted to be placed on record by the Investigating Officer during investigation and yet in the interest of justice they may be admitted during trial---Mechanism of the Courts and procedure is only intended to advance the justice.

Khizar Hayat v. Judicial Magistrate and 2 others 2015 PCr.LJ 1566 rel.

Qaiser Imam Ch. for Petitioner.

Mian Asad Hayat for Respondent No.1.

Zohaib Hassan Gondal, State Counsel and Nasrullah, ASI.

P L D 2023 Islamabad 132

Before Aamer Farooq, C.J.

TAUSIF AHMED---Applicant

Versus

MUHAMMAD WAKEEL and another---Respondents

C.M. No. 1205 of 2021, decided on 30th November, 2022.

(a) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. I, Pt. A, R. 9---Office objection---Scope---Petitioner sought extension in time for removal of office objection---Factual position of the case was that two suits were pending before Civil Court, which were decided through a consolidated judgment and single decree sheet was prepared, which was in violation of the dictum laid down in "Zahid Zaman Khan and others v. Khan Afsar and others" [PLD 2016 Supreme Court 409]---Act of the court shall not prejudice anyone, hence failure to draw up separate decree sheets did not prejudice the appellant in any way---One appeal against decision of two suits was permissible but two separate decree sheets were to be appended---Application was allowed.

Tahira Naseem v. Arshad Mehmood and others 2021 PCr.LJ 682; Siraj Din and 11 others v. Rajada 1992 SCMR 979; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom PLD 1991 SC 973; Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD PLD 2014 Lah. 436 and Muhammad Rasool v. Ajab Khan and others 2019 CLC 897 ref.

(b) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. I, Pt. A, R. 9---Office objection---Scope---High Court while hearing an objection case is performing an administrative function and only after an office objection is overruled, the case is matured on the judicial side and formally enters the area of the jurisdiction of the Court accordingly.

Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD PLD 2014 Lah. 436 rel.

(c) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. I, Pt. A, R. 9---General Clauses Act (X of 1897), S. 21---Office objection---Power to make, include power to add to, amend, vary or rescind orders, rules or bye­laws---Scope---Proceedings before the administrative judge are not judicial rather the same are administrative in nature---In such proceedings, absence of power of review is not impediment to recall any earlier order if it is found to be contrary to law; resort can be made to S. 21 of the General Clauses Act, 1897, which provides that the authority, competent to pass an order even in absence of expressed provision, can also revoke, rescind or recall the same until the decisive act is taken.

Tahira Naseem v. Arshad Mehmood and others 2021 PCr.LJ 682 rel.

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

----S. 33 & O. XX, R. 6---Consolidated suits---Separate decrees---Scope---Where two or more suits have been consolidated and disposed of through a common judgment, all trial court must draw up separate decree sheets with all the material particulars.

P L D 2023 Islamabad 135

Before Saman Rafat Imtiaz, J

Malik MUSAWAR KHAN---Petitioner

Versus

Mst. NADIA YASEEN MALIK and others---Respondents

Writ Petition No. 438 of 2020, decided on 5th January, 2022.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Divorce on the basis of khula---Scope---Where the wife had stated in her plaint that she had faced agony at the hands of the husband and that it was not possible for her to live with him while abiding by the limits of Allah; the parties had been living separately for years; the pre-trial reconciliation proceedings had not succeeded in the Family Judge's own opinion, High Court observed that such factors were sufficient grounds for the grant of a decree for dissolution of marriage by way of khula in order to avoid a hateful union even if the grounds alleged by the wife for dissolution of marriage were not proved through evidence in the opinion of the Family Court as no woman could be forced to live with a man without her consent or liking.

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

----Ss. 5, Sched. & 14---Suit for dissolution of marriage---Appeal---Scope---Decree of dissolution of marriage by way of khula is neither revocable nor appealable---Having said that there is no cavil to the contention that a decree of khula constitutes one divorce and as such the husband and wife are at liberty to remarry each other by performing Nikah if they wish to reunite---However, the parties do not require any pronouncement from the Court for the said purpose nor can the Court direct the parties to do so.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Divorce on the basis of khula---Scope---Decree for khula may be granted even where no ground for dissolution of marriage as alleged by the wife exists and the wife has omitted to demand khula, if the Court is of the opinion that in the event that decree for dissolution of marriage is not granted, it will give birth to a hateful union and the spouses may not be able to live with each other within the limits prescribed by Allah.

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

----S. 5, Sched.---Suit for dissolution of marriage---Divorce on the basis of khula---Scope---Khula is a right given to a woman as the right to divorce is vested in a man with the difference that khula can be obtained only through a decree of Court and on payment of such consideration as may be fixed by Court.

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

----S. 5, Sched.---Suit for dissolution of marriage---Divorce on the basis of khula---Scope---Woman can release herself from the tie of marriage by giving up some property in return in consideration of which the husband has to give her khula---Khula is repudiation with the consent and at the instance of the wife in which she agrees to give consideration to the husband for her release from the marital tie---However, the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah.

Atiq Ahmed Khan v. Noor Ul Saba and another 2011 CLC 1211 and Ana Liaqat v. Additional District Judge, Gujranwala PLD 2021 Lah. 757 rel.

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

----S. 5 & Sched.---Suit for dissolution of marriage---Divorce on the basis of khula---Scope---Husband can refuse to give 'Talaq' but at the same time it would create an environment causing the wife to seek khula, which would entitle him to the benefit of retaining deferred dower and/or getting back prompt dower property/amount---Thus, where the Court through legal, cogent and convincing evidence comes to the conclusion that the husband has compelled the wife to ask for dissolution of marriage on the ground of khula then the Court shall have the power to refuse the return of the prompt dowered property/amount to husband or to release him from the liability of payment of deferred dower.

Ana Liaqat v. Additional District Judge, Gujranwala PLD 2021 Lah. 757 and Mt. Saima Irum and 3 others v. Tariq Javaid and another 2006 MLD 83 rel.

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

----S. 5, Sched.---Suit for dissolution of marriage---Divorce on the basis of khula---Scope---Contention that in case of khula, the wife ipso facto should return the benefits is not correct---If a wife seeks khula without pointing any fault of the husband and the Court finds it proper to grant khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit.

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

----S. 5, Sched.---Suit for dissolution of marriage---Divorce on the basis of khula---Scope---Deferred dower does not mean that it cannot be considered while granting khula---It is obligatory on Courts granting khula to take into consideration dower regardless of whether it is prompt or deferred.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ii)---Suit for dissolution of marriage---Grounds for decree for dissolution of marriage---Scope---Failure to maintain the wife even if for less than the statutory period which entitles a wife to a decree for dissolution of marriage under S. 2(ii) of the Dissolution of Muslim Marriages Act, 1939, would at the very least show that the wife has approached the Court for dissolution of marriage on account of fault of the husband, in which case, the wife is entitled to recovery of outstanding dower.

Ghulam Muhammad Khan for Petitioner.

Raja Ahmed Abdul Rafay for Respondents Nos. 1 to 3.

P L D 2023 Islamabad 145

Before Athar Minallah, C.J., Mohsin Akhtar Kayani, Miangul Hassan Aurangzeb, Tariq Mehmood Jahangiri and Babar Sattar, JJ

The STATE through Advocate General---Petitioner

Versus

IMRAN AHMAD KHAN NIAZI---Respondent

Criminal Original No. 150 of 2022, decided on 3rd October, 2022.

Per Athar Minallah C.J.; Mohsin Akhter Kayani; Miangul Hassan Aurangzeb; Tariq Mehmood Jahangiri and Babar Sattar, JJ, Agreeing--

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

----S. 3---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Contempt proceedings---Onus to prove---In contempt proceedings matter of placing onus is totally different from a case under criminal law, which presumes innocence of accused and places burden on prosecution to establish charge against latter beyond a reasonable doubt---Onus is entirely upon person charged, to prove his innocence.

Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 and The State v. Khalid Masood PLD 1996 SC 42 rel.

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

----Ss.3 & 5---Contempt proceedings---Apology, tendering of---Effect---Contempt is essentially between Court and contemnor---Taking action against contemnor or accepting an apology is entirely a matter between alleged contemnor and Court and subject to the latter's satisfaction.

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

----Ss. 3 & 5---Contempt proceedings---Benefit of doubt, extention of---Principle---Extending benefit of doubt has to be treated as embedded in proceedings relating to contempt---Benefit cannot be denied to alleged contemnor---Principle of extending benefit of doubt forms an integral part of contempt proceedings.

Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Dr. Mazhar Ali Hashmi v. Abdul Qadir and 2 others PLD 1971 Lah. 278; Abdul Sattar v. Shamim Akhtar and others 1997 SCMR 457; Abdul Sattar v. Income-Tax Officer Circle XV, East Zone, Karachi and another PLD 1989 Kar. 264; Dr. Asaf Hussain Jafri v. K.B. Bhutto, Advocate PLD 1990 Kar. 173 and Contempt Proceedings against Imran Khan, Chairman, Pakistan Tehreek-i-Insaf PLD 2014 SC 367 rel.

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

----Ss. 3 & 5---Contempt proceedings---Apology, tendering of---Satisfaction of Court---Pre-conditions---Respondent/contemnor was a politician who during a public speech passed derogatory remarks against a Judge conducting a criminal trial---High Court issued contempt notice to respondent/contemnor who tendered his apology to the words used by him during public speech---Validity---Question of tendering an apology becomes relevant when Court upon conclusion of proceedings was satisfied that charge of contempt had been established, and no case was made out to extend benefit of doubt---Satisfaction of Court was the foundational principle in such regard---Apology might not be expressly tendered, but Court could be satisfied that its bona fides stood impliedly established by conduct or written submissions of contemnor---Satisfaction of Court could not be restricted to any particular mode, form or nature of an apology---Court was to be satisfied that contemnor regretfully acknowledged having committed contempt and such acknowledgment must appeared to be bona fide---Court could be satisfied, even if an unconditional apology was not been tendered---Speech of respondent/contemnor was not followed by any other action and only actus reus was speech in question---High Court declined to refuse extending benefit of doubt to respondent/contemnor---Conduct of respondent/contemnor unambiguously manifested acurative effect---High Court did not dispute bona fide of regretful acknowledgment on the part of respondent/contemnor manifested through his conduct, tendering appearances before High Court explaining his stance and reiterating it by executing affidavit in apology---Despite extending benefit of doubt, the apology tended by respondent/contemnor was bona fide and High Court did not form a different opinion---High court discharged respondent/contemnor from contempt notice---Contempt proceedings were withdrawn in circumstances.

Senator Nehal Hashmi's case 2018 SCMR 556; Suo motu contempt proceedings initiated against Daniyal Aziz PLD 2018 SC 738 and Suo motu contempt proceedings initiated against Talal Chaudhary PLD 2018 SC 773 distinguished.

Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383; Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. The State and another PLD 1962 SC 457; Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; The State v. Khalid Masood PLD 1996 SC 42 and Syed Ahmad Shah and Feroze Din v. The State and another PLD 1967 SC 42 rel.

(e) Contempt of Court Ordinance (IV of 2003)---

----S. 5---Contempt proceedings---Apology, tendering of---Influence, use of---Contemnor must not be influenced in any manner to tender apology in a particular mode or manner---Statue expressly provides that, in case of contempt, truth is a valid defence.

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

----Ss. 3 & 5---Contempt proceedings---Court, duty of---Attributes of grace, magnanimity and forgiveness, inherent to status of Court are a safeguard against conviction and sentencing for contempt when curative effect of proceedings becomes obvious.

Per Mohsin Akhter Kayani, J

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

----S. 18---Contempt proceedings---Substantial detriment---Satisfaction of Court---Scope---

(h) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3 & 5---Contempt proceedings---Benefit of doubt---Principle of---Applicability---

(i) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3 & 5---Contempt proceedings---Apology, tendering of---Benefit of doubt, extending of---Principle---Non-framing of charge---Effect---Respondent/contemnor was a politician who during a public speech passed derogatory remarks against a Judge conducting a criminal trial---High Court issued contempt notice to respondent/contemnor who tendered his apology to the words used by him during public speech---Validity---

Per Babar Sattar, J

(j) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3 & 5---Contempt proceedings---Apology, tendering of---Explaining context of actions---Scope---Mere fact that alleged contemnor seeks to explain context of actions that has attracted contempt proceedings is not a basis to conclude that apology accompanying such explanation and defence must be rejected for lacking bona fides---While provision of S. 5(2) of Contempt of Court Ordinance, 2003, provides that an apology may be tendered at any stage---Apology tendered at fag end of judicial proceedings in a contempt matter, where prospect of conviction has crystallized would be deemed to be an afterthought and not an expression of sincere and genuine remorse---To impose a requirement of furnishing unconditional apology or an apology without any explanation or justification would not sit well within the explicit text of S. 5(2) of Contempt of Court Ordinance, 2003 and explanation provided therein.

Senator Nehal Hashmi's case 2018 SCMR 556; Talal Ahmed Chaudhary v. The State 2019 SCMR 542; S. Israr Hussain v. The Crown PLD 1954 FC 313 and Ch. Iftikhar Ahmed, I.G., Islamabad v. The State 2018 SCMR 1385 rel.

(k) Contempt of Court Ordinance (IV of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt of Court---Public speech---Scope---Law of contempt backed by Art. 204 of the Constitution and provisions of Contempt of Court Ordinance, 2003, reflect that the Legislature has determined in its wisdom that speech, unless in temperate language and unless its content does not impute illegal motives to a Judge and does not impugn integrity and impartiality of the Judge would amount to contempt of court.

(l) Contempt of Court Ordinance (IV of 2003)---

----S.3---Contempt of Court---Criminal and judicial contempt---Scope---Determination of requisite intent in relation to criminal or judicial contempt is to be undertaken on an objective basis---Alleged contemnor may claim that his actions were not backed by mens rea, or intent to commit contempt, or may even be willing to lead evidence in support of his actual intent at relevant time---Test applicable for purposes of constructing intent is not subjective but is objective---Raison d'etre of contempt law is not to punish but to determine conduct that interferes with or obstruct justice---Contempt of Court is not a strict liability offence---In determining mens rea on an objective basis, it is the effect that law focuses on and not the subjective intent of contemnor---Even where objectional conduct is deleterious to authority of Court, unless the effect is quantified and found capable of causing substantial detriment to administration of justice, the offending act does not attract conviction and punishment---Conduct found capable of interfering with and becoming a substantial detriment to administration of justice also keeps evolving with time.

Federation of Pakistan v. Yousuf Ali Khan PLD 1977 SC 236; Habibul Wahhab Alkheiri v. Abdul Wali Khan PLD 1978 SC 85; Ch. Iftikhar Ahmed, I.G., Islamabad v. The State 2018 SCMR 1385; Contempt proceedings against Syed Yousaf Raza Gillani PLD 2012 SC 553 and Sir Edward Snelson, KBE Secretary to the Government of West Pakistan Ministry of Law v. The Judges of High Court of Pakistan, Lahore and others PLD 1961 SC 237 rel.

For Petitioners

Ashtar Ausaf, Attorney General for Pakistan and Jahangir Khan Jadoon, Advocate General Islamabad.

Amir Rehman and Munawar Iqbal Duggal, Additional Attorneys General.

Ahsan Raza Kazmi, Mian Faisal Irfan, Fazal ur Rehman Niazi and Arshad Mahmood Kayani, Deputy Attorney Generals.

Usman Rasool Ghuman, Assistant Attorneys General.

For Respondents

Hamid Khan, Barrister Salman Safdar, Muhammad Waqar Rana, Niaz Ullah Khan Niazi, Muhammad Shoaib Shaheen, Syed Qamber Abbas, Murtaza Hussain Turi, Mirza Asim Baig, Malik Naseem Abbas Nasir, Barrister Hassan Niazi, Khalid Yousaf Chaudhry, Intaizar Hussain Panjutha, Naeem Haider Panjutha, Ali Ijaz Buttar, Ajmal Ghaffar Toor, Mubashir Najib Khattak and Kalsum Khaliq for the respondent/contemnor.

Munir A. Malik, Senior ASC/Amicus Curiae.

Makhdoom Ali Khan, Senior ASC/Amicus Curiae.

Akhtar Hussain, Senior ASC/Amicus Curiae on behalf of Pakistan Bar Council.

P L D 2023 Islamabad 184

Before Aamer Farooq, C.J.

MUHAMMAD AZAM KHAN SWATI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 4 others---Respondents

Writ Petition No. 4441 of 2022, decided on 2nd December, 2022.

(a) Constitution of Pakistan---

----Arts. 19-A, 149 & 199---Rules of Business, 1973, Sched. II, Entry No. 18, Serial No. 18---Constitutional petition---Right to information---Directions to Provinces in certain cases---Territorial jurisdiction---Scope---Petitioner sought a direction to the Secretary, Ministry of Interior to provide information about the cases pending against him in the Provinces of Sindh and Balochistan as well as with Federal Investigation Agency with respect to the Social media tweets made by him against Armed Forces of Pakistan---Petitioner in order to fortify his case placed reliance on Serial No. 18 of Entry No. 18 to the Second Schedule of the Rules of Business, 1973 ('Serial No.18') which provided for coordination of policy matters, relating to Police---Likewise, reference was also made to Art. 149 of the Constitution, which empowered the Federal Government to issue directions to the Provinces---Validity---Examination of the Serial No. 18 showed that it did not confer any right in any citizen/individual to seek information regarding pendency of cases---Stretching the concepts provided in Art. 149 and the Rules of Business, 1973, did not entitle the petitioner in any manner to seek such information---No person could be arrested for an offence without being informed of the grounds of such arrest---On one cause more than one FIR cannot be registered against a person---Only first FIR prevailed and other cases succumbed to the first one and in such regard, the petitioner would be entitled to seek appropriate remedy before the Court(s) of competent jurisdiction---Since the other cases had been registered against the petitioner beyond the territorial jurisdiction of (Islamabad) High Court, no writ could be issued against the Provinces of Balochistan and Sindh---Writ petition was disposed of accordingly.

Sh. Ihsanul Haq Piracha v. Wasim Sajjad and others PLD 1986 SC 200 and Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of mandamus---Scope---In order to exercise jurisdiction in the nature of mandamus under Art. 199 of the Constitution, it is sine qua non that there should exist a legal right in favour of the person who is seeking such relief.

The State of Pakistan and another v. Mehrajuddin PLD 1959 SC 147 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court ---Writ of mandamus---Scope---Applicant for mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought.

Fazal-E-Haq, Accountant General, West Pakistan v. The State PLD 1960 SC 295 ref.

The State of Pakistan and another v. Mehrajuddin PLD 1959 SC 147 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of mandamus---Writ of certiorari---Discretionary jurisdiction---Scope---Order in the nature of writ of certiorari or mandamus is a discretionary order and its object is to foster justice and right a wrong---Person can be permitted to invoke this discretionary power of a Court but it must be shown that the orders sought to be set aside had occasioned some injustice to the parties.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commission and others PLD 1973 SC 236 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of mandamus---Principles for issuance of a writ of mandamus, enumerated.

Following are the principles for issuance of a writ of mandamus:

(i) An applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought.

(ii) In order that a mandamus may be issued to compel something to be done under a statute, it must be shown that the statute imposed a legal duty.

(iii) It is only in respect of a legal right that mandamus will be issued.

(iv) The legal right to enforce the performance of a duty must be in the applicant himself. The Court will only enforce the performance of statutory duty by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance.

Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 fol.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Writ of mandamus---Scope---Mandamus is only issued where there is a legal right in the performance of duty by a statutory body and the failure thereof can cause injustice to him.

Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 ref.

Dr Babar Awan, Fazal Maula, Hassan Ali Khan and Ms. Kalsoom Khaliq for Petitioner.

Munawar Iqbal Duggal, Additional Attorney General.

Azmat Bashir Tarar, Assistant Attorney General.

Zohaib Hassan Gondal, State Counsel.

P L D 2023 Islamabad 189

Before Mohsin Akhtar Kayani, J

AIR BLUE (PVT.) LIMITED through M.D. and another---Petitioners

Versus

JUDGE CONSUMER COURT (WEST), ISLAMABAD and another---Respondents

Writ Petitions No. 1422 and 2579 of 2019, decided on 21st October, 2022.

Islamabad Consumer Protection Act (II of 1995)---

----S. 2(c) & (e)---Carriage by Air Act (IV of 2012), Ss. 4, 33 & 34---Constitution of Pakistan, Art. 199---Constitutional petition---Consumer rights---Travel by air---Liability of airline---Forum of adjudication---Petitioner/Airline was aggrieved of proceedings initiated under Islamabad Consumer Protection Act, 1995, for imposing damages upon it for loss of baggage of respondent/passenger---Validity---Manner of determining liability of a carrier and quantum whereof were matters covered by the First Schedule to the Carriage by Air Act, 2012---Person, for whose benefit such claim could be made, came within the ambit of Second Schedule---In either case general provisions of law stood excluded and matter was to be determined within the four corners of Carriage by Air Act, 2012, read with its Conventions referred to in the Schedules---Said Act was special act and only provided mechanism to quantify damages under terms of Conventions---There was no exclusion provision in Carriage by Air Act, 2012, to exclude jurisdiction of any other court, tribunal or forum---Legislative intent was to be considered accordingly and claim submitted against petitioner required no interference---Consumer or complainant or any passenger who suffered loss at the hands of any carriage by air company or airline could either approach Consumer Court to claim his original amounts of loss suffered as consumer or could claim further damages, special damages, pecuniary damages from plenary court of civil jurisdiction---Rights of consumer with reference to damages or loss suffered could only be calculated on the yardstick provided in Carriage by Air Act, 2012---High Court declined to interfere in proceedings pending adjudication before Court under Islamabad Consumer Protection Act, 1995--- Constitutional petition was dismissed, in circumstances.

Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262; The Gujranwala Central Co-operative Bank Ltd. Hafizabad v. Muhammad Feroze PLD 1969 SC 252; Chalna Fiber Company Ltd. v. Abdul Jabbar PLD 1968 SC 381; Regional Manager, Adamjee Insurance Company Ltd. v. Presiding Officer, District Consumer Court, Lahore and 3 others 2012 CLD 846; Pakistan Mobile Communication Ltd v. Judge District Consumer Court, Gujranwala and 3 others PLD 2015 Lah. 204 and Dr. Naheed Fatima and 3 others v. Messrs Pakistan International Air Corporation (PIAC) through Chairman and another PLD 2011 Kar. 514 ref.

Muhammad Ikhlaq Awan for Petitioners.

P L D 2023 Islamabad 195

Before Aamer Farooq, C.J.

LEGAL AID FOUNDATION FOR VICTIMS OF RAPE AND SEXUAL ASSAULT (LRSA) through Authorized person and 2 others---Petitioners

Versus

FEDERAL GOVERNMENT through Secretary, Interior Division and others---Respondents

Writ Petition No. 3555 of 2019, decided on 16th December, 2022.

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

----S.154---Criminal case, non-registration of---Effect---In case of refusal to register a case, even upon coming to know about commission of cognizable offence, non-registration of same would amount to denial of duty and attract separate proceedings against concerned police officer, not only confined to in charge of police station, but also his superior.

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

----S. 4(l)---Constitution of Pakistan, Art. 10A---Fair trial---Investigation---Duty of investigating officer---Scope---Investigation is to be carried out by officer entrusted with same diligently, effectively and honestly, without having any preset notion---Investigating officer should collect entire evidence that is inculpatory and exculpatory---Fair trial requires that entire evidence collected by investigating agency, whether inculpatory or exculpatory is to be presented before the court, so that while reaching to conclusion regarding guilt of accused or otherwise the adjudicating authority has benefit of the same.

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

----Ss. 201, 302, 364-A & 365-B---Child abuse and rape cases---Criminal justice system---Petitioner was a Non-Governmental Organization and sought directions in case of rape of a minor child---Directions given by the High Court---High Court directed that all Medico Legal Officers would adhere to Standard Operating Procedures and any violation thereof should be taken as a breach of their duties---Ministry of Human Rights, as well as other departments of Government, should ensure implementation of conventions on rights of child through effective legislation, if the same had not been done---Enforcement of Zainab Alert, Response and Recovery Act, 2020, should be followed in letter and spirit as law of the land---Effective implementation of Islamabad Capital Territory Child Protection Act, 2018 and Juvenile Justice System Act, 2018, should be ensured---Investigation of a case of crime that is sexual in nature and/or pertains to a child should be assigned to a female police officer and/or a person duly sensitized on the issues and implications pertaining to such cases---No child survivor should be held in police custody overnight, even if it may be on the text of medical examination---All efforts should be made to provide medical aid, testing for any sexually transmitted diseases and pregnancy and trained therapist to a child survivor before and after medical exam and reasons for failure to do so should be recorded in writing---For every child survivor, their statement under S. 164, Cr.P.C., should be recorded within 10 days of perpetration of crime or within 10 days of recovery of the child, in a child friendly atmosphere or at hospital if need be and presence of a parent or trusted person may only be refused if Magistrate believes the child stands to be intimidated or uncomfortable due to such presence and statement should be recorded in verbatim and be supplemented by an audio recording---Child survivors should never be placed in direct presence of accused, either during police investigation or trial in any circumstances---Islamabad Capital Territory police should set up community policing initiative in order to gain citizen's assistance in prevention of crimes against children and maintenance of law and order---Constitutional petition was disposed of accordingly.

Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; Karamat Ali and others v. Federation of Pakistan through the Secretary, Ministry of Interior and others PLD 2018 Sindh 8; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203; Kainat Soomro and 2 others v. Province of Sindh through Chief Secretary and 4 others PLD 2020 Sindh 611; Kainat Soomro v. Province of Sindh (C.P. No.5920/2015); Muhammad Yousaf v. Inspector General of Police and 4 others PLD 1997 Lah. 135; Sawant v. SHO, Police Station Saddar, Kasur and another PLD 1975 Lah. 733; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Shafiur Rehman v. Jan Bahadur Khan, SHO Zaida and 6 others 1998 MLD 1161; Qazi Muhammad Javed v. SSP Gujranwala PLD 1998 Lah. 214; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Altaf Hussain v. The State 2019 SCMR 274; Muhammad Awais Khan v. SHO, Police Station City Mian Channu, District Khanewal and 2 others 2018 PCr.LJ 1128; Abdul Latif v. Inspector General of Police and others 1999 PCr.LJ 1357; Allah Bakhush v. S.H.O. and another 2013 MLD 885; Madawa through President v. Inspector General of Police, Punjab and 15 others PLD 2013 Lah. 442; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Human Rights Case No.20107-G/2013 2014 SCMR 287 and Sheikh Ahsan ud Din, Advocate and 2 others v. Federation of Pakistan and others 2014 CLC 451 rel.

Faisal Siddiqi, Advocate Supreme Court, assisted by Ms. Sheeza Ahmed and Ms. Natalya Kamal for Petitioners.

Fazal Ur Rehman Khan Niaz, Deputy Attorney General, Zohaib Hassan Gondal and Ms. Khadija Ali, State Counsel, Arshad Nazir Mirza, Amicus Curiae, Fahad Azhar, Muhammad Riaz, Inspector, Fazal, S.I and Shahzad, ASI for Respondents.

P L D 2023 Islamabad 209

Before Mohsin Akhtar Kayani, J

ABDUL JABBAR KHAN BANGASH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and another---Respondents

Writ Petition No. 3178 of 2016, decided on 7th March, 2023.

(a) Interpretation of statutes---

----Literal rule---Scope---Literal rule applies where words and phrases used in statute should be read keeping in view their plain meaning.

Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice PLD 2012 SC 923; Ghulam Haider v. Murad through Legal Representatives PLD 2012 SC 501; Pakistan International Airlines Corporation, Karachi v. Wafaqi Mohtasib 1998 SCMR 841 and Muhammad Akhtar alias Hussain v. The State PLD 2007 SC 447 rel.

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

----Ss. 11 & 12---Islamabad Capital Territory Local Government Act (X of 2015), Ss. 3 (3)(4), 71 & 73---Islamabad Land Disposal Regulations, 2005, Regln. 3 (3)---Convention on the Rights of Child, Art. 18---Universal Declaration of Human Rights, Art. 25 (2)---International Convention on Economics, Social and Cultural Rights, Art. 10(2)---Constitution of Pakistan, Arts.37(e) & 199---Constitutional petition---Women and children rights---Daycare centers, establishing of---Residential building---Scope---Dispute was with regard to establishing daycare centers in residential buildings in residential areas---Validity---Status of daycare facility on any residential building as well as its related business activity cannot be considered legally justified to run such facility by any individual---Daycare facility under Regln. 3(3) of Islamabad Land Disposal Regulation, 2005, falls within the concept of community buildings like Educational Institution, Hospitals, Dispensaries, Maternity Homes etc.---Capital Development Authority is custodian of any scheme under Ss. 11 & 12 of Capital Development Authority Ordinance, 1960, and is empowered to include daycare facility/center in the Islamabad Land Disposal Regulation, 2005, in accordance with their Board decisions by settling criteria of such plot, if such plot has been provided by Capital Development Authority, thereafter the step should be taken by Metropolitan Corporation Islamabad in terms of powers conferred under S. 73 of Islamabad Capital Territory Local Government Act, 2015, which deals with the functions of Metropolitan Corporation to recognize daycare service/facility/profession---State is under obligation to consider Conventions on the Rights of Child (CRC), Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICCPR), Convention on Elimination of All Forms of Discrimination against Women (CEDAW)---All such conventions have been ratified by the State of Pakistan and have to given effect in shape of separate legislation or in shape of policy under Art. 37(e) of the Constitution---Labour Policy, 2010, acknowledges application of ILO conventions in which international labor standards provide daycare center/childcare facility in every residential area, establishment, office, organization, company as well as in the judicial hierarchy including District Courts, High Courts, etc., where such facility has to be provided accordingly so that all working parents, especially, the rights of mother and the child are given protection---High Court directed Federal Government to take all necessary steps for establishment of childcare facility in public and private institutions within Islamabad Capital Territory---Constitutional petition was disposed of accordingly.

MCI v. Chairman, CDA PLD 2021 Isl. 144 ref.

Mohkam Bajwa and Haider Omer Hayat for Petitioner.

Usman Rasool Ghuman, A.A.G. for Respondent No.1.

Ch. Kamil Hayat for Respondent No.2.

P L D 2023 Islamabad 220

Before Miangul Hassan Aurangzeb and Sardar Ejaz Ishaq Khan, JJ

NAMOOS ZAHEER---Appellant

Versus

AZFAR HASNAIN and another---Respondents

R.F.A. No. 28 of 2020, decided on 4th April, 2023.

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

----S. 13 & O. VIII, R. 5---Qanun-e-Shahadat (10 of 1984), Arts. 89, 96 & 114---Execution of foreign judgment---Production of photocopy of foreign judgment---Failure to specifically deny a fact---Estoppel---Scope---Appellant objected to the respondents' suit, based on a Foreign Judgment, arguing that the respondents were obligated to provide the original judgment or a certified copy, accompanied by a certificate from a notary public or a Pakistan Consul, in accordance with Arts. 89(5) & 96(1) of the Qanun-e-Shahadat, 1984---Validity---Mode adopted by the respondents to prove the Foreign Judgment did not meet the requirements of these Articles and they had submitted a photocopy of the Foreign Judgment with their suit----Surprisingly, the appellant had not raised any objection during the hearing regarding the authenticity of the copy----In fact, this very judgment had been filed by the appellant in her previous suits---By submitting copies of the Foreign Judgment in Courts of Pakistan, the appellant had effectively admitted its existence and contents---Therefore, the factum of the judgment's existence and contents was considered to be admitted and did not require further proof---In her written statement, the appellant had not denied the Foreign Judgment's existence but had argued that the trial before the Foreign Court lacked compliance with natural justice---Appellant was estopped in terms of Art. 114 of the Qanun-e-Shahadat, 1984 from resisting the enforcement of the judgment---Appeal was dismissed with costs.

National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. 1996 CLC 79; Moselle Ellias v. Ahmed Said PLD 1959 (W.P.) Kar. 760; Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567 and Bhatinda Chemicals Ltd. v. M.V. "X-PRESS NUPTSE" AIR 2006 Bom. 311 rel.

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

----Ss. 13, 2(6) & 2(5)---When foreign judgment not conclusive---"Foreign Judgment"---"Foreign Court"---Scope---"Foreign judgment" has been defined in S. 2(6), C.P.C. to mean the judgment of a Foreign Court---"Foreign Court" has been defined in S. 2(5) of C.P.C. to mean a Court situated beyond the limits of Pakistan which has no authority in Pakistan and is not established or continued by the Federal Government---S. 13, C.P.C. makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon between the same parties---If the foreign judgment falls under any of the clauses (a) to (f) of S. 13, C.P.C., it will cease to be conclusive as to any matter thereby adjudicated upon---Where a foreign judgment ceases to be conclusive it will then be open to a collateral attack---In other words, when a holder of a foreign judgment approaches the appropriate Court in Pakistan to which the provisions of C.P.C. apply, unless the defendant succeeds in establishing any one or some of the objections enumerated under Clauses (a) to (f) of S. 13, the judgment of the foreign court is conclusive as to any matter that is directly adjudicated between the same parties and a decree is required to be passed in terms of the said foreign judgment by the Pakistani Court---Thereafter, the decree can be executed in the manner provided in the C.P.C.

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

----S. 13---When foreign judgment not conclusive---Scope---Judgment pronounced by a foreign court in a personal action in absentum, the absent party having submitted himself to the jurisdiction and authority of such Court, would not be a nullity but enforceable with the judgment-debtor being entitled to raise all defenses arising under S. 13, C.P.C.---Unless the party against whom a foreign judgment is sought to be enforced voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim, the judgment of the foreign court cannot be relied upon.

Munawar Ali Khan v. Marfani & Co. Ltd. PLD 2003 Kar. 382; Shaligram v. Daulat Ram AIR 1967 SC 739; Narhari Shivram Shet Narvekar v. Pannalal Umediram AIR 1977 SC 164; Sheo Tahal Ram v. Binaek Shukul AIR 1931 Allahabad 689 and Namoos Zaheer v. Mr. Azfar Hussain 2016 CLC 1425 rel.

Hamza Siddiqui and Areeba Altaf for Appellant.

Umer Ijaz Gillani for Respondents.

P L D 2023 Islamabad 238

Before Aamer Farooq, C.J. and Saman Rafat Imtiaz, J

TANVIR HUSSAIN MANJI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

Writ Petition No. 2908 of 2014, decided on 4th May, 2023.

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

----S. 25(b)---Contract Act (IX of 1872), S. 16(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Plea bargain---Incidental charges---Scope---Undue influence---Proof---Petitioner accused before National Accountability Bureau (NAB) who entered into plea bargain with NAB but assailed imposition of 15% incidental charges over and above the liability so determined---Validity---National Accountability Bureau had no right to demand such incidental charges either in law or equity---Petitioner while he was deprived of his freedom agreed to the same which indicated use of undue influence---Such use of authority resulted in an unfair advantage over the other---National Accountability Bureau obtained an unfair advantage over the petitioner by extracting an amount from him not otherwise due by using its dominant position over petitioner---"Incidental charges" as part of plea bargain were unconscionable---According to section 16 (3) of Contract Act, 1872, burden of proof that contract was not induced by undue influence was on the person who was in a position to dominate the will of another when he entered into contract with such person and where transaction had appeared to be unconscionable---National Accountability Bureau was unable to explain what incidental charges, if any, were incurred in respect of a plea bargain---Law did not authorize NAB to charge the same and NAB had failed to discharge its burden of proof---Public functionaries were expected to act fairly and justly and could not be allowed to profit from predicament of a person in their custody---High Court condoned delay in invoking Constitutional jurisdiction by petitioner---In absence of law and/or expenses incurred by NAB, the clause of plea bargain whereby petitioner agreed to pay incidental charges was unenforceable for lack of free consent---High Court declared that such clause of plea bargain entered into by petitioner was void to the extent of 15% incidental charges and the same could not be recovered from petitioner---Constitutional petition was allowed, in circumstances.

Asghar Ali v. National Accountability Bureau 2016 PCr.LJ 477; Haji Khan Muhammad v. Government of Pakistan, National Accountability Bureau 2013 PCr.LJ 1571; Zaheer Afzal Chatha v. National Accountability Bureau 2018 PCr.LJ Note 9; Pakistan Agriculture Storage v. Crescent Jute Products 2004 CLD 849; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Amber Ahmed Khan v. Pakistan International Airlines, Karachi Airport Karachi PLD 2003 Kar. 405; A.R. Azhar v. Pakistan through Chairman Railway Board P.W.R. Lahore and 5 others 1980 PLC (C.S.) 139 and Zahid Shafiq v. National Accountability Bureau (W.P. No. 3068 of 2016) rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches, principle of---Applicability---Laches may be condoned where act of which petitioner is aggrieved is patently illegal and/or to avoid grave injustice.

Abdul Majid v. Mst. Zubeda Begum 2007 SCMR 866 and Hafiz Muhammad Sharaf-ud-Din v. District Judge, Khushab 2015 MLD 1081 rel.

Abid Jalil for Petitioner.

Muhammad Rafay Maqsood, Special Prosecutor, NAB and Zahid Usman, A.D./I.O., NAB for Respondents.

P L D 2023 Islamabad 253

Before Aamer Farooq, C.J.

TASHARAF ALI alias KHANZADA---Petitioner/Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1223 of 2022, decided on 11th January, 2023.

Criminal Procedure Code (V of 1898)---

----Ss.382-B & 561-A---Penal Code (XLV of 1860), Ss. 302 & 427---Qatl-i-amd and mischief causing damage---Pre-conviction detention---Benefit, grant of---Inherent jurisdiction of High Court---Death sentence awarded to applicant by Trial Court was converted into imprisonment for life---Plea raised by applicant was that he was not awarded benefit of pre-conviction detention as provided under S.382-B, Cr.P.C.---Validity---Benefit under S. 382-B, Cr.P.C. could be sought at any time, even where Trial Court or for that matter High Court, while hearing appeal, had omitted to grant the same---Even where sentence was maintained till the Supreme Court and conversion from death sentence to life imprisonment was made by President, benefit of S. 382-B, Cr.P.C. could be allowed by High Court---For time spent in detention prior to conviction, and the time spent in some other case, the benefit of S. 382-B, Cr.P.C. could be allowed---There was no bar for grant of benefit of S. 382-B, Cr.P.C. to the applicant---Remissions available to applicant under the law would reduce the sentence accordingly---Application was allowed, in circumstances.

Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department Peshawar and others v. Mehmood Khan 2017 SCMR 2044; Akhtar Maqsood v. Superintendent of Camp Jail, Lahore and 4 others 2020 P Cr.LJ 447 and Muhammad Hussain and others v. The State 1995 PCr.LJ 37 rel.

Saleem Raza for Petitioner.

Qaiser Iqbal for Respondent No.2.

P L D 2023 Islamabad 255

Before Saman Rafat Imtiaz, J

PETROSIN SERVICES HARO (PVT.) LTD., ISLAMABAD---Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY (NHA) HEADQUARTERS, ISLAMABAD and another---Respondents

Writ Petition No. 881 of 2023, decided on 31st March, 2023.

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

----S. 105---Easements Act (V of 1882), S. 52---Lease and license---Distinction---Lease involves transfer of right of enjoyment in immovable property whereas license is simply permission or a privilege to use immovable property in a way which would be unlawful in the absence of such permission---Such permission does not confer any physical rights in immovable property---One chief consideration while determining whether an agreement creates a lease or a license is whether there is any right of exclusive possession given, which when present indicates a lease rather than a license---Lease involves transfer of right in rem, which is heritable / assignable whereas a license is a right in personam which is neither assignable nor transferable.

Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others PLD 1963 (W.P.) Lahore 418; Muhammad Tobria v. The Board of Trustee 2021 YLR 2278; H. Nizam Din and Sons Pvt. Ltd. v. Pakistan Defence Officers Housing Authority 2018 MLD 802 and Messrs Zaidi's Enterprises v. Civil Aviation Authority PLD 1999 Kar. 181 rel.

(b) Easements Act (V of 1882)---

----S. 60---Specific Relief Act (I of 1877), Ss. 21(d) & 56(f)---License coupled with interest---Proof---Revocable contract---Service Areas on motorway---Petitioner claimed that Concession Agreement granted it an exclusive right to undertake the project in question---Validity---Prima facie the Concession Agreement did not envisage transfer of any right in Concession Area---Right granted to petitioner in Concession Area was merely a license to undertake the project at the Concession Area---For a finding of license coupled with interest, the licensee must have executed work of permanent character---Possession was not with petitioner therefore, question of execution of work of permanent character did not arise---License was revocable in nature and could not be specifically enforced in view of the bar contained in S. 21(d) of Specific Relief Act, 1877---High Court declined to issue any injunction under S. 56(f) of Specific Relief Act, 1877---Petitioner was not entitled to possession of land under Concession Agreement, pending arbitration---In case petitioner would succeed in pending arbitrations, regarding possession as well as regarding legality of the agreement between respondents, the petitioner would not suffer any irreparable harm as the respondent was required to hand over possession of Concession Area to the petitioner---On the other hand if the stay was granted and petitioner would fail in one or the other pending arbitration matters in respect of the Concession Agreement, the respondent would be unnecessarily prejudiced by delay and along with it the public which was deprived of access to basic facilities required while travelling on the motorway and as such balance of convenience was also against the petitioner---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Sharif Ullah Khan v. Pakistan International Airlines Limited 2023 CLC 372; M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83; Ali Asghar v. Raja M. Asghar 2021 CLC 1348 and Muhammad Din v. Sher Muhammad 1999 CLC 1526 ref.

Afnan Karim Kundi, Misbah ul Mustafa and Adeel Aftab for Petitioner.

Sardar Haroon Sami for Respondent.

P L D 2023 Islamabad 272

Before Mohsin Akhtar Kayani, J

Syed MOHSIN SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad

and 3 others---Respondents

Writ Petitions Nos. 1355, 2489 and 1809 of 2020, decided on 15th June, 2021.

(a) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Legislation touching the vested rights of an individual cannot be given retrospective effect---However, civil servants cannot claim their vested right to continue serving after completing 20 years of service until the age of superannuation, as it is already a part of their terms and conditions under S.13(1)(i) of the Civil Servants Act, 1973---Said provision ensures that they are protected and allowed to continue their service until the 20th year, unless they have been affected by the concept of misconduct---Therefore, the terms and conditions of service stipulated in the Civil Servants (Directory Retirement from Service) Rules, 2020, do not create any other rights, as interpreted by the petitioners, except those provided in the statute---Constitutional petitions were dismissed.

(b) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R.5---Civil Servants Act (LXXI of 1973), Ss. 13 & 25---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Section 25 of the Civil Servants Act, 1973, extends the authority to the President to make rules for carrying out the purpose of the Act---President has delegated its authority to the Prime Minister of Pakistan in exercise of powers conferred by subsection (1) of S. 25 of the Civil Servants Act, 1973 vide SRO No.120(I)/98, dated 27-02-1998, to make rules under the Act---In this case the Prime Minister of Pakistan had promulgated the impugned Rules, hence the salient characteristics qua the rulemaking authority are the powers conferred in the statute---Second characteristic is the approval of the Government or statutory sanction which has clearly been observed as the rules have been notified through SRO No.230(I)/2020, therefore, the minimum requirements of law have been fulfilled---Constitutional petitions were dismissed.

(c) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), Ss. 13 & 3---Retirement---Grounds for retirement---Terms and conditions of service, variation of---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Contention of petitioners was that under S. 3 of the Civil Servants Act, 1973, the terms and conditions of their service could not be varied to their disadvantage---Validity---Section 3 though confirmed the rights of the civil servants but the same had to be regulated under the law and it was settled that no adverse action could be taken against the civil servant, except in accordance with law---Even the impugned rules were within the framework of the Civil Servants Act, 1973 and the same did not create a disadvantageous position for a civil servant in any manner---Constitutional petitions were dismissed.

(d) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Qanun-e-Shahadat (10 of 1984), Art. 114---Retirement---Grounds for retirement---Estoppel---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---When a civil servant acknowledges his offer letter and joins the service, he is bound by the terms and conditions highlighted in the Civil Servants Act, 1973 and the rules framed thereunder, therefore, law of estoppel applies, which precludes the civil servant to challenge the provisions of law, especially when S. 13 has already been considered on the touchstone of Holy Quran and Sunnah by the Shariat Appellate Bench of the Supreme Court in the judgment reported as "Pakistan and others v. Public-at-Large" [PLD 1987 Supreme Court 304].

Abdul Majeed v. Government of Pakistan 2006 SCMR 1415; Muhammad Qadeer v. Secretary Defence Production 2003 PLC (C.S.) 1389 and Chairman Censor Board v. Muhammad Ali Shah 2004 PLC (C.S.) 707 ref.

(e) Civil Servants Act (LXXI of 1973)---

----S. 13---Civil Servants (Directory Retirement from Service) Rules, 2020, Rr. 3, 4 & 5---Constitution of Pakistan, Art. 14---Inviolability of dignity of man---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Competent authority of a civil servant is the best judge to determine the factors to be given preference and to what extent, per se, after due consideration of the powers highlighted in S. 13(1)(i) and Civil Servants (Directory Retirement from Service) Rules, 2020---Test, criteria, qualifications, eligibility, and methodology provided in the Civil Servants (Directory Retirement from Service) Rules, 2020, is based on the subjective evaluation of each case, as conducted by a committee under R. 4 (for the retirement of civil servants in BPS-16 & BPS-17 to 19) and a Retirement Board constituted under Rule 3 (for the retirement of civil servants in BPS-20 or above)---These bodies are the best judges to assess each case and determine whether a civil servant has demonstrated average performance or has obtained adverse remarks regarding his efficiency---If a civil servant has been recommended for supersession by the CSB (Central Selection Board) on two occasions, despite having some time to serve till the age of superannuation and the higher position requires a high standard on the administrative side where an inefficient civil servant is not desirable; in such cases, if the civil servant continues to serve, he would not be considered an asset but rather a burden to the exchequer---Therefore, these individuals need to be granted a secure exit through a directory retirement concept, especially when they do not fall within the purview of compulsory retirement due to misconduct---Hence, the challenged Rules were formulated while considering the dignity of civil servants, as outlined in Art. 14 of the Constitution---Constitutional petitions were dismissed.

(f) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 5 & 8---Constitution of Pakistan, Arts. 4 & 10-A---Right to fair trial---Retirement---Grounds for retirement---Right of appeal or review---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Right of appeal or review as enshrined in R. 8 of the Civil Servants (Directory Retirement from Service) Rules, 2020, fulfills the constitutional requirements, which expand the principle of natural justice, well defined in our jurisprudence and the same are treated as inherent rights with underline element of fairness, both in terms of hearing as well as impartiality of the forums---Hence, the minimum requirement of Art. 10-A of the Constitution, has also been adhered to in the impugned Rules by the rulemaking authority---Such preconditions fulfill the minimum conditions of due process, fair trial and other fundamental rights protected by the Constitution---Constitutional petitions were dismissed.

New Jubilee Insurance Co. Ltd. v. National Bank of Pakistan PLD 1999 SC 1126 and (Suo Motu Case No.4 of 2020) PLD 2012 SC 553 ref.

(g) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---National Accountability Ordinance (XVIII of 1999), Ss. 2(n), 25 & 15---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Voluntary return and plea bargain---Disqualification to hold public office---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Petitioners contended that, after accepting the voluntary return under S. 25 of the National Accountability Ordinance, 1999, the department could not punish the civil servant by enforcing directory retirement---Validity---Plain reading of the words used by the legislature in National Accountability Ordinance, 1999, revealed that it does not preclude a civil servant to be dealt with on its departmental side, though he has gained the status of discharged from the criminal liability---Legislative intent clearly spells out from the language used whereby only a criminal liability has been avoided but, it does not mean that a person who is involved in such type of practices has been given a premium for his wrong doing so that he might continue with his services, though the effect of discharge means discharge of all liabilities--- Such an argument is misplaced on the ground that when any civil servant who has voluntarily returned the proceeds of corruption, though considered as discharged from a criminal liability but, his act falls within the ambit of misconduct, against which he can be proceeded on departmental side---There is no bar for parallel proceedings against a civil servant on departmental side---Constitutional petitions were dismissed.

Ishtiaq Ahmad v. Hon'ble Competent Authority 2016 SCMR 943 rel.

Dan Gunnar Bjarne Anderson v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2019 Isl. 566; Muhammad Islam Khan v. ZTBL 2013 PLC (C.S.) 795; State v. Hanif Haider 2016 SCMR 2031 and Habib Bank Limited v. Shahid Masou Malik 2001 SCMR 2018 ref.

PTVC v. Inland Revenue (LTU), Islamabad 2019 SCMR 282 and Secretary Housing and Physical Environmental Planning and PHE v. Muhammad Ramzan 2018 SCMR 301 distinguished.

(h) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Prospective application---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---One of the arguments put forth by the petitioners pertained to the prospective application of the challenged Rules---Validity---Rules have to be applied prospectively but, the argument advanced by the learned counsel qua prospective application with the view that the Rules have to be applied after the year 2020 upon those civil servants who have been appointed after the said year is misplaced, rather it applies to all those who have completed 20 years of their service as the pre-condition of S. 13(1)(i) of the Civil Servants Act, 1973, is completion of 20 years of service by a civil servant and, as such, the Rules are made applicable to those civil servants only---Constitutional petitions were dismissed.

Muhammad Ramiz Ullah v. Secretary Establishment Division, Rawalpindi and others 1987 PLC (C.S.) 531 and Secretary Housing and Environmental and PHE Department, Government of Punjab v. Muhammad Ramzan and others 2018 SCMR 301 ref.

(i) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Civil Servants (Directory Retirement from Service) Rules, 2020, cannot be challenged by the civil servants as same are not contrary to their fundamental rights and under the Constitution no vested right is available to the civil servants to challenge this policy matter where Rules have been framed within the scope of law---Even otherwise, it is settled proposition that the competent authority i.e. the Federal Government is in a better position to settle their requirements to engage the services of a civil servant, whose services are required or otherwise in the public interest---This executive discretion cannot be interfered with---Constitutional petitions were dismissed.

Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Dr. Akhtar Hussain Khan v. Federation of Pakistan 2012 SCMR 455; Ellahi Cotton Ltd. v. Federation of Pakistan PLD 1997 SC 582 and Power Construction Corporation of China v. WAPDA PLD 2017 SC 83 ref.

(j) Civil Servants Act (LXXI of 1973)---

----S. 13---Retirement---Scope---Plain language of S. 13(1) of the Civil Servants Act, 1973 explicitly states that a civil servant has the right to serve up to the 20th year of his service, except in cases of misconduct---Afterward, the concept of vested right is replaced with the discretion of the competent authority in the public interest---In this context, a civil servant cannot claim to continue his service beyond the 20-year period until the age of superannuation as it is subject to conditions that require evaluation by the competent authority---Similarly, in cases of promotion, the determination of eligibility criteria is an essential administrative matter falling within the exclusive domain and policy-making of the government---Courts cannot interfere in these matters, as no vested right is granted to a government employee regarding promotion or the rules that determine his eligibility or fitness---Constitutional petition was dismissed.

Dr. Muhammad Hussain v. Principal, Ayub Medical College PLD 2003 SC 143; Government of Khyber Pakhtunkhwa v. Hayat Hussain 2016 SCMR 1021 and The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 ref.

(k) Civil Servants Act (LXXI of 1973)---

----S. 13---Retirement---Scope---Paramount consideration for retiring a civil servant after completion of his 20 years of service is the will and choice of the competent authority as to whether it is interested to allow the civil servant to continue his service or otherwise but, the predominant factor is the public interest, which can only be evaluated by the competent authority, hence the exclusive domain of the competent authority cannot be questioned if it is based on the concept of fitness i.e. whether the particular post and position necessitate a qualified person amongst his peers having eligibility to tackle the highest skill position in the larger public interest.

(l) Civil Servants Act (LXXI of 1973)---

----Ss. 4 & 13---Tenure of office of civil servants---Pleasure doctrine---Scope---Retirement---Scope---Pleasure doctrine is not based on any special prerogative of the Government but is rooted in public policy and serves the public interest---Underlying principle of the pleasure doctrine is that the public has a significant stake in the efficiency and integrity of the civil servants---Therefore, public policy necessitates that the public can demand that a civil servant who is inefficient, dishonest, corrupt, or has become a security risk should not be allowed to continue in service.

Malik Muhammad Bashir Lakhesar, Assistant Advocate General Punjab v. Government of Punjab 2019 PLC (C.S.) 266 ref.

(m) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 2(1)(c) & 5(1)(e)---Government Servants (Efficiency and Discipline) Rules, 1973, R. 2(4)---Civil Servants Act (LXXI of 1973), S. 13---Retirement---"Conduct unbecoming" as distinguished from "misconduct"---Scope---Inclusion of term unbecoming of civil servant in terms of Rule 5(1)(e), though a negative phrase but an exception has been created from the definition of misconduct provided in Government Servants (Efficiency and Discipline) Rules, 1973, in order to protect a civil servant from a stigma and to give him a way out from the civil service with his pensionary benefits without declaring him guilty under the concept of misconduct.

Krushnakant B. Parmar v. Union of India (2012) 3 SCC 178; Muhammad Asad Ullah Sheikh v. Government of Pakistan 2003 SCMR 392 and Wazir Zada v. Chief of Air Staff, Pakistan Air Force 1998 SCMR 1579 rel.

(n) Civil Servants (Directory Retirement from Service) Rules, 2020---

----R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Directory retirement is not a punishment or stigma upon the civil servant, rather the absolute authority vests with the Federal Government to consider a person to continue with his job after 20 years of his service based on certain objective criteria as laid down in the Civil Servants (Directory Retirement from Service) Rules, 2020 and it is not a choice of the civil servant to claim exemption from the rules, which have been made by the competent authority after due consideration and subject to a transparent process including but not limited to right of hearing, evaluation, show cause notice, etc.

(o) Civil Servants (Directory Retirement from Service) Rules, 2020---

----Rr. 5 & 6---Constitution of Pakistan, Art. 10-A---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Right to fair trial---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Absolute authority given under S. 13 of the Civil Servants Act, 1973, has been regulated through the Civil Servants (Directory Retirement from Service) Rules, 2020, as such, the Rules have provided a separate remedy of appeal and review to retired servant if he is aggrieved by the decision of the competent authority---Due protection of Art. 10-A of the Constitution has been envisaged in the Rules, hence it is not justified to declare them ultra vires to the Constitution as the test laid down in different pronouncements of the Supreme Court has fully been observed while making the Rules more effective which are also need of the hour to save the Country from all those officials whose services are no more required in the public interest---Moreover, under Rule 6(6) of the Rules a complete procedure, including issuing show cause notice and affording opportunity of personal hearing, is provided, as such, a civil servant, who has been proposed for directory retirement would have full opportunity to explain his position and he cannot claim that he has been condemned unheard.

Muhammad Qadeer v. The Secretary, Defence Production Division 2003 PLC (C.S.) 1389; Chairman, Central Board of Film Censors, Islamabad v. S. Muhammad Ali Shah 2004 PLC (C.S.) 707 and Abdul Majeed v. Government of Pakistan through Secretary, Establishment Division 2006 SCMR 1415 ref.

(p) Interpretation of statutes---

----Prospective application---Scope---Legislation that touches the vested rights of individual cannot be given retrospective effect unless clearly indicated by the legislature.

The Collector of Sales Tax and Federal Excise v. Agro Chemical (Pvt.) Ltd. 2020 PTD 679 ref.

(q) Interpretation of statutes---

----Delegated legislation---Scope---Delegated legislation cannot override the statute either by exceeding authority or by making provision inconsistent with parent statute---General power to make rules or legislation for carrying out or giving effect to statute is strictly ancillary to its nature and cannot enable the authority on which the power is conferred to extend the scope of general operation of the statute---Similarly, the authority cannot extend the purpose of statute or add new or different meaning of carrying it out or depart from or vary its terms---Any rule/regulation which the authority has power to make is liable to be declared invalid if powers entrusted for one purpose are deliberately used with design of achieving another or if it shows on its face misconstruction of law or failure to comply with conditions prescribed under the parent statute for the exercise of the powers or if it is not capable of being related to any purpose mentioned in the parent statute.

Ahmad Mehmood v. Government of Punjab PLD 2019 Lah. 206 ref.

(r) Interpretation of statutes---

----Delegated legislation---Scope---Criteria to consider the subordinate/delegated legislation to be given protection or to declare it otherwise is to be settled by way of a test, whether the same surpasses the parent statute, per se.

Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Pakistan through Secretary Finance v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar 2003 SCMR 370 and ZTBL v. Said Rehman 2013 SCMR 642 ref.

(s) Words and phrases---

----Public interest---Definition.

The general welfare of public that warrants recognition and protection or something in which the public as a whole has a stake, especially an interest that justified governmental regulation.

Black's Law Dictionary (8th Edition) rel.

Something in which public at large had some interest or by which their rights or liabilities were affected, but would not mean interest of a particular person.

English Biscuits Manufacturers (Pvt.) Ltd. v. Monopoly Control Authority and another 2005 CLD 264 and Janata Dal v. H.S. Chowdhary and others AIR 1993 SC 892 rel.

(t) Constitution of Pakistan---

----Arts. 10-A & 4---Right to fair trial---Rights of individuals to be dealt in accordance with law---Scope---Article 10-A of the Constitution provides a right to fair trial and due process at all forums, which is the fundamental right, as such, any deviation from such principle conclusively vitiates the proceedings, if any---Similarly, Art. 4 acknowledges the right of due process where a person shall have a notice of proceedings which affected his right; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess composite jurisdiction.

New Jubilee Insurance Co. Ltd. v. National Bank of Pakistan PLD 1999 SC 1126 ref.

(u) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Right of fair trial means grant of proper hearing to an accused person by an unbiased competent forum and that justice should not only be done but be seen to be done---Adjudicatory tribunal or forum is duty bound to treat a person in accordance with law, to grant him a fair hearing, and for itself to be an impartial and fair tribunal.

(Suo Motu Case No.4/2020) PLD 2012 SC 553 ref.

(v) Constitution of Pakistan---

----Art. 199---Public interest litigation---Scope---Pro bono publico can only be applied in those cases where public interest is the primary factor and secondly for the public good or welfare of general public.

Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Premium Battery Industries Limited v. Karachi Water Sewerage Board 2018 SCMR 365 and Muhammad Ahmad Pansota and others v. Federation of Pakistan PLD 2020 Lah. 229 rel.

(w) Civil service---

----Termination from service---Scope---Powers of the Government to terminate the service of an employee in public interest , though not unqualified or unrestricted, are to be regulated in the manner and in the interest of efficiency of public bodies, however the Government should have the authority to terminate the employment of inefficient, corrupt, indolent character and disobedient employee---However, said authority must be exercised fairly, objectively and independently, and the occasions for exercise must be delimited with precision and clarity---Further, there should be adequate reasons for the use of such power, and the decision in this regard has to be taken in a manner showing fairness, that avoids arbitrariness and evokes credibility.

Delhi Transport Corporation v. DTC Mazdoor Congress AIR 1991 SC 101 rel.

(x) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Policy decision---Scope---High Court cannot sit as a court of appeal over the policy decision and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or same is arbitrary or devoid of any justification.

Institute of Chartered Accountants of Pakistan, Karachi v. Federation of Pakistan 1998 SCMR 2679 ref.

(y) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Legislative enactment, vires of---Judicial review---Scope---Courts are guided by certain set of rules in discharging their solemn duty to declare laws passed by legislature unconstitutional or otherwise in which the foremost principle applied is when a law is enacted by the Parliament, the presumption is that the Parliament had competently enacted it (law) and if the vires of the same (law) are challenged, the burden is always upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or provision of the Constitution---In a case where two opinions with regard to the constitutionality of the enactment are possible, the one in favour of validity of enactment is to be adopted---It is also cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed---Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional.

Messrs Sui Sothern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

Petitioners by:

Omar Farouk Adam and Ms. Ghanwa Ejaz Khan for Petitioner (in W.P. No.1355 of 2020).

Muhammad Shaoib Shaheen, Mirza Waqas Qayoom and Saif-ur-Rehman Shah Bukhari for Petitioner (in W.P. No.1809 of 2020).

Barrister Zafarullah Khan for Petitioner (in W.P. No.2489 of 2020).

Respondents by:

Barrister Muhammad Mumtaz Ali, A.A.G.

Anita Turab, Joint Secretary (CP-II), Ayesha Bashir Wani, J.S. Litigation, Muhammad Saleem Khattak, D.S. (CP-IV), Ms. Nisha, Deputy Secretary (CP-I), Mehmood Khan Lakho, S.O. Lit.VI, Nadeem Arshad, S.O. Lit.V, Abdul Qayoom Kakar, S.O. (CP-VI), for Establishment Division, Islamabad.

P L D 2023 Sindh 1

Before Nadeem Akhtar, J

AIJAZ HUSSAIN JAKHRANI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and another---Respondents

Constitutional Petition No. D-1528 of 2020, decided on 15th August, 2022.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)---Letters Patent of High Court, clause 26---High Court (Lahore) Rules and Orders, Vol. V, Chap. 4-H, R. 5---Constitution of Pakistan, Art.199---Constitutional petition---Bail subject to deposit of liability amount---Scope---Matter pertained to decision of bail when one Judge of Division Bench granted bail subject to deposit of total liability amount while the other Judge dismissed the same---Validity---Referee Judge did not have jurisdiction to hear or decide whole case as the whole case was not before him---Jurisdiction of Referee Judge was limited to the extent of resolving difference between members of Division Bench of High Court who continued to retain jurisdiction over the matter---Duty of Referee Judge to remit his opinion to Division Bench of High Court for disposal of the case by announcing final order based on the majority opinion---Referee Judge agreed with the opinion declining bail to accused subject to deposit of liability amount---Constitutional petition was liable to be dismissed, in circumstances.

Muhammad Sayyar v. Vice-Chancellor, University of Peshawar and others PLD 1974 SC 257; Maher Alavi v. Pakistan and 5 others PLD 1980 Kar. 609 and Muzamil Niazi and others v. The State PLD 2003 Kar. 526 ref.

Makhdoom Ali Khan along with Mohsin Qadir Shahwani, Ghulam Hussain Shah, Fahad Khan and Sami-ur-Rehman for Petitioner.

Mujeeb-ur-Rehman Soomro, Special Prosecutor NAB along with I.O. and Mujtaba Khan, Deputy Director NAB for Respondents Nos. 1 and 2.

P L D 2023 Sindh 11

Before Muhammad Shafi Siddiqui and Rashida Asad, JJ

Haji IBRAHIM through Special Attorney and 6 others---Appellants

Versus

ABDUL QADIR LAKHANI and 5 others---Respondents

High Court Appeal No. 210 of 2022, decided on 13th July, 2022.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Mandatory injunction---Interim relief---Object, purpose and scope---Interlocutory order may either be of prohibitory nature or mandatory in character---Such discretion as being exercised should reveal exercise of some sound principles and standards as already recognized---Relief of mandatory injunction is a discretionary relief and can be granted in the circumstances specified under Specific Relief Act, 1877---Standards of passing mandatory interlocutory orders, and that too ex-parte, have now been settled conclusively---If a Court is called upon to grant any relief on any interlocutory application, which when granted would mean granting substantially the relief claimed in the suit and/or to restore status as existed on the day suit was filed, the Court ought to be very careful and circumspect in the matter of granting any such prayer---No absolute bar in granting such relief and Court should not lay down absolute proposition when such are not necessary and consequently forge fetters for itself but such exercise of discretion should be limited to rare and exceptional cases---Such orders of injunctions or for that matter any interlocutory order of mandatory nature are passed where rights sought to be protected are clear and/or based on comprehensive undisputed report and not where it is doubtful, cloudy or needed trial---Injunction cannot be granted to establish a new state of things differing from state of things which existed on the date when proceedings were instituted and picture for undisputed possession of plaintiffs of suit was not at all clear when suit was filed---Interlocutory mandatory injunction can only under those compelling circumstances be granted in case Court is satisfied that matter is urgent one and an immediate assistance is needed to prevent irreparable injury being done to legal or equitable rights of a claimant---Where passing of mandatory injunction is inevitable leading principle, which may be conducive for the situation, is to limit exercise of discretion to the extent it is needed---Leading rationale which ought, in normal circumstances, to be guide of Court and to regulate its discretion in granting injunction is that only such restraint should be imposed or such powers be exercised as may suffice to stop the mischief complained of---If restraining order of ex-parte nature is sufficient to handle given situation then it is not conceivable that maximum cap of discretion be utilized, though it is within Court's discretion.

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

----Ss. 39 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for cancellation, injunction, rendition of accounts and recovery of damages---Interim injunction, setting aside of---Over a dispute of dispossession, Judge in Chambers of High Court directed Court official to replace locks and seal suit property---Validity---Mandatory injunction could not to be granted on interlocutory application in absence of special circumstances---Only in clear cases either where Court thought that the matter was to be decided at once or where injunction was directed at a simple and summary act which could be easily remedied or where defendant had attempted to steal a march on the plaintiff---Before granting mandatory interlocutory injunction Court had to feel a high degree of assurance that at the trial it would appear that injunction was rightly granted---Where Court came to the conclusion that party in contravention of order passed under O. XXXIX, Rr. 1 & 2, C.P.C. did something to its advantage and to prejudice of other party, Court could exercise its inherent power to bring back the party to a position where it originally stood before such contravention---No party could be allowed to take advantage of his own wrong inspite of order made by Court---Such order was more likely to be passed after served notice---Division Bench of High Court directed to remove the seal, as ordered by Single Judge of High Court by same official who sealed suit property---Division Bench of High Court further directed to restore possession and till the controversy was decided by Single Judge of High Court, no third party interest would be created---Intra Court Appeal was allowed accordingly.

Nandan Pictures Ltd. v. Art Pictures Ltd. AIR 1956 Cal. 428 rel.

Ahmed Ali Hussain for Appellants.

Ahmed Masood for Respondents Nos.1 and 2.

Muhammad Najeeb Jamali for Respondent No.3.

None for Respondent No.4.

Asad Iftikhar, A.A.G. for Respondents Nos.5 and 6.

P L D 2023 Sindh 23

Before Nadeem Akhtar, J

Haji UMAR LAKHANY through legal heirs---Appellants

Versus

Mst. KHATOOBAI HAJI NOOR MUHAMMAD and others---Respondents

Civil Revision Application No. S-60 of 2016, decided on 6th October, 2022.

Civil Procedure Code (V of 1908)---

----S. 115 & O.XLI, R. 17(1)---Limitation Act (IX of 1908), Arts. 168 & 181---Restoration of appeal---Limitation---Date of hearing---Scope---Appeal filed by petitioner was dismissed by Lower Appellate Court for non-prosecution and application to restore the same was also dismissed for barred by limitation---Validity---Appeal was dismissed by Lower Appellate Court before receiving and without examining record and proceedings, which was summoned by the court itself through a judicial order which order was in field when appeal was dismissed---Lower Appellate Court was duty bound to adjourn the matter on relevant date for compliance of its direction for summoning of record and proceedings---By not discharging such duty, Lower Appellate Court acted mechanically, without being aware of its discretionary power to not dismiss the appeal---Order of dismissal made by Lower Appellate Court in ignorance of jurisdiction was void and nullity---Appeal was dismissed for non-prosecution under O. XLI, R. 17(1), C.P.C., although it was not listed for hearing on that date---Such order of dismissal was not an order under O.XLI, R.17(1), C.P.C.---Lower Appellate Court wrongly applied Art. 168 of Limitation Act, 1908 to application for restoration filed by petitioner---Application for restoration of appeal was within time as Art. 181 of Limitation Act, 1908 was applicable, providing limitation of three years for its filing---Application for restoration being not barred by time, order in question of its dismissal on the ground of limitation was a nullity---High Court in exercise of its revisional jurisdiction set aside two orders passed by Lower Appellate Court, dismissing appeal for non-prosecution as well as refusing to restore the application---High Court remanded the matter to Lower Appellate Court for decision on appeal afresh---Revision was allowed, in circumstances.

Tehsil Municipal Administrator, Faisalabad v. Muhammad Saleem and others 2016 SCMR 2009 and Muhammad Adalat Khan and others v. Additional Rent Controller and others PLD 1982 Lah. 616 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

Imran Ahmed for Applicants.

None present for Respondents.

P L D 2023 Sindh 27

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

Messrs MOHLIB ENTERPRISES through Proprietor---Petitioner

Versus

The PROVINCE OF SINDH through Secretary Education and 2 others---Respondents

Constitutional Petition No. D-3856 of 2019, decided on 30th September, 2021.

Sindh Public Procurement Rules, 2010---

----Rr. 29 & 32---Constitution of Pakistan, Art. 199---Constitutional petition---Public procurement---Eligibility criteria---Scope---Alternate remedy, non-availing of---Petitioner without availing remedies provided under Sindh Public Procurement Rules, 2010, assailed order disqualifying it from tender proceedings---Validity---Petitioner could not prove eligibility criteria as mentioned in Tender Notice in order to determine its eligibility as per law---If bidder whose bid was determined to be the lowest but who did not have capability to perform the contract his bid was to be rejected---Petitioner after decision of Grievance Redressal Committee did not approach to Review Committee through filing an appeal as provided in R. 32 of Sindh Public Procurement Rules, 2010---Petitioner approached High Court without availing remedy of appeal---High Court declined to interfere in the matter as decision of disqualifying petitioner from tender proceedings was neither against the law nor any substantial error or procedural defect was committed and no material point of law was left undecided---Constitutional petition was dismissed, in circumstances.

2011 YLR 746 rel.

Syed Muhammad Nehal Hashmi for Petitioner.

Jawad Dero, Addl. A.G, Sindh for Respondent No.1.

Ms. Farkhunda Shaheen for Respondent No.2.

Muhammad Vawda for Respondent No.3.

P L D 2023 Sindh 35

Before Muhammad Faisal Kamal Alam, J

MOIN US SAMAD KHAN---Plaintiff

Versus

Mrs. TANVEER QAZI---Defendant

Suit No. 66 of 2009, decided on 22nd August, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts.17 (2)(a), 74, 76, 84, 117 & 120---Suit for recovery of money on the basis of Promissory Note---Secondary evidence---Procedure---Comparison of signature---Court, jurisdiction of---Plaintiff sought recovery of money received by defendant along with mesne profit for making investments of that money in apartments---Validity---When defendant alleged that sale agreement and receipts were fake in respect of sale transaction of property and defendant did not produce original agreement or receipts on the plea that the same were lost, evidence with reward to loss of documents should have been produced first and then secondary evidence could be led---If loss of documents was not true, then secondary evidence had become useless---Signature or writing could be proved by adducing evidence of a person or persons conversant or equated with such signature---Alternatively, signature or writing could be examined by an expert and in failure to do so, burden was not shifted to other side and the suit should fail---Court in terms of Art. 84 of Qanun-e-Shahadat, 1984, could itself ascertain whether a handwriting or signature was genuine or not by comparing disputed handwriting or signature with admitted signatures, and then arrived at its own findings---One who pleaded fraud, onus was on him to prove the same and mere statement was not sufficient---For a Promissory Note, attestation was not a legal requirement as envisaged in Art. 17(2)(a) of Qanun-e-Shahadat, 1984---Not mandatory to refer document and signatures to handwriting expert, particularly in a situation where other party did not deny his signatures on number of documents---Witness was not cross-examined on material part of evidence and that part of testimony was considered to be admitted---During cross-examination, a witness stated that it was not within his knowledge, which meant that such witness was not sure about the assertion---Apartments in question were purchased by funds of plaintiff which was acknowledged by defendant in two documents---Defendant was liable to pay amount in question to plaintiff with 10% markup from the date of filing of suit, till realization of the amount---Suit was decreed accordingly.

Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam 2014 SCMR 1562; Khalil-ur-Rehman v. Mst. Halim Khatoon PLD 2001 Lah. 63; Muhammad Din v. Liaqat Ali 1991 MLD 1070; Dil Murad and others v. Akbar Shah 1986 SCMR 306; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Haroon Zia Malik v. Mst. Fariha Razzak and others 2018 YLR 1667; Musarratullah Siddiqui v. City District Government, Karachi through Nazim-e-Ala and another 2015 CLC 214; Mst. Bakht-e-Rawida v. Ghulam Habib and 2 others PLD 1992 Kar. 46; Ghulam Hussain v. Muhammad Ali and another 2020 MLD 1166; Mushtaq Ahmed through its Special Attorney Gulzar Ahmed v. Shahid Hussain and 4 others 1999 YLR 1518; Muhammad Din v. Liaqat Ali 1991 MLD 1070; Rashid Ahmad and others v. Allah Ditta 2014 YLR 1748; Khalil-ur-Rehman v. Mst. Halim Khatoon PLD 2001 Lah. 63; Zakaullah Khan v. Muhammad Aslam and another 1991 SCMR 2126; Dr. Obaid-ur-Rehman and 2 others v. Mrs. Neelofer Khalid and 10 others 2020 YLR 1783; Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237; Abdul Aziz v. Muhammad Rafiq Qureshi PLD 1994 Kar. 474 and Abdul Ghaffar v. Muhammad Sharif 1993 CLC 1779 ref.

Abdullah Azzam and Waqar Ahmed for the Plaintiff.

Nasir J.R. Shaikh and Faizan Nasir for Defendant No.1.

Nemo for Defendant No. 2.

P L D 2023 Sindh 44

Before Muhammad Junaid Ghaffar, J

LAL BUX and 2 others---Appellants

Versus

GOVERNMENT OF SINDH through Executive District Officer (Revenue), Khairpur and 4 others---Respondents

IInd Appeal No. S-02 of 2009, decided on 4th March, 2022.

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

----O. IX, R. 6---Ex-parte proceedings---Duty of Court---Scope---Appellants filed suit for declaration and injunction on basis of inquiry report before Trial Court, which proceeded ex-parte against respondents---Trial Court dismissed the suit and Appellate Court also dismissed appeal thereagainst---Held, that the case in hand of the appellants was hit by the provisions of O. II, R. 2, of the C.P.C., as earlier, a suit was also filed by the same parties wherein the plaint was rejected under O. VII, R. 11 of the C.P.C, as being barred in terms of S. 42 of Specific Relief Act, 1877 hence, the second suit was not maintainable---Said findings had been set aside through impugned judgment by deciding the same in favor of the appellants, whereas, no appeal had been preferred by the respondents, hence, the said issue did not need to be addressed by High Court---Respondents had failed to lead any evidence before Trial Court, however, they had filed their written statement which was a matter of record and the entire contention of the appellants had been controverted and denied---Respondents failed to lead any evidence nor cross-examined the witnesses of the appellants, nor had led any arguments in the case---Where ex-parte proceedings are carried on, additional burden and duty was cast upon the Court to ensure that the ends of justice are met and the interest of the party who has not been able to defend its case for any reason, whatsoever, should be protected and must be dealt with in accordance with law---Court is required to examine the evidence as well as material brought on record and to see that the contention so raised is supported by evidence and supporting material or not---Trial Court had to see whether the plaintiff/appellant is entitled to the relief being claimed and if yes, then to what extent---Suit could not be decreed as prayed in such matters---Trial Court and Appellate Court were fully justified in dismissing the suit of the appellants as no case was made out either on facts or in law---Appeal was dismissed, in circumstances.

Nisar Ahmed and another v. Habib Bank Limited 1980 CLC 981 and Messrs Al-Pak Ghee Mills through Managing Partner v. Zeeshan Traders through Proprietor 2008 CLC 120 rel.

The Evacuee Trust Property Board v. Haji Ghulam Rasul Khokhar 1990 SCMR 725; Muhammad Sidik v. Ghulam Hyder PLD 1961 (WP) Kar. 511; Sheikh Akhtar Aziz v. Mst. Shabnam Begum 2019 SCMR 524; Muhammad Akram Qureshi v. Pakistan Defence Housing Authority 2017 CLC 495 and Imam Bux v. Daim PLD 2007 Kar. 358 and Fateh Muhammad v. Pervaiz Ali 2021 CLC 1644 distinguished.

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

----Art. 85---Admissibility of public document---Scope---Inquiry report not a title document---Appellants' (plaintiff) counsel contented that since no evidence was led on behalf of the respondents, whereas, reliance was placed on public documents by the plaintiffs, their suit could not have been dismissed---Validity---Said argument was misconceived and was not tenable in the given facts and circumstances of case in hand---Public documents, were admissible in terms of Art.85 of the Qanun-e-Shahadat, 1984 and need not to be proved strictly; however it was not always true in each and every case---Onus was on the plaintiffs to prove their case first---Nothing was available on record to substantiate the claim of plaintiffs, except an inquiry report purportedly held back in 1921; even prior to creation of Pakistan---Subsequent entries and the entire record being claimed as public document was based on that inquiry, which by itself was not a title document, nor had been proved in any manner---Claim of the appellants was denied on the ground that it was Government land belonging to the Forest department and had been encroached upon by influential persons on the basis of forged and managed documents---In such a situation protection under Art. 85 of the Order, 1984, appeared to be a far-fetched proposition and apparently could not come to rescue of the appellants---Appeal was dismissed.

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

----S.41---Revenue record---Mutation entry---Scope---Mutation entry in Revenue Record can neither create nor extinguish title to property as these are only maintained for fiscal purposes---Right to title or ownership of any property depends entirely on the title, source of acquisition of the right while an entry in the records of rights is not conclusive evidence of the right of ownership---Mere mutation does not confer any right in any property on anyone and the mutation entry raises a rebuttable presumption in favour of person in whose favour the same is made---In the present case the appellants (plaintiffs) failed to discharge the burden which in the given facts lay on them heavily as their only piece of evidence and document was some inquiry report of the year 1921 which they could not prove satisfactorily---Appeal was dismissed.

Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245; Bahadur Khan v. Qabool Ahmed 2005 CLC 1937 and Ghulam Ahmed v. Muzafara Begum 2011 YLR 2991 rel.

Deedar Ali M. Chohan holding brief for Malik Naeem Iqbal for Appellants.

Ahmed Ali Shahani, Assistant Advocate General Sindh for Respondents.

P L D 2023 Sindh 53

Before Muhammad Iqbal Kalhoro, J

LALOO---Applicant

Versus

SENIOR SUPERINTENDENT OF POLICE, MIRPUR KHAS, SINDH and 3 others---Respondents

Criminal Miscellaneous Application No. S-177 of 2022, decided on 30th September, 2022.

Sindh Hindus Marriage (Amendment) Act (XLIX of 2018)---

----Ss.11 & 14---Criminal Procedure Code (V of 1898), S. 561-A---Rule Nisi---Change of faith---Marriage without divorce---Recovery of wife---Petition to Court---Procedure---Petitioner's wife converted to Islam and contracted marriage with respondent without waiting for Iddat (intervening period)---Petitioner sought recovery of his wife and two minor daughters---High Court sent the wife to Darul Amann to remain there till decision of petition---Validity---High Court declared that marriage with respondent contracted during Iddat period was Fasid (irregular) and not Batil (void) and released the wife from Darul Amman and she could enter into Nikkah with respondent a fresh, if she so wished---High Court declared that if a married, non-Muslim woman embraced Islam, she was to file petition in Family Court for termination / dissolution of marriage and Family Court would summon her husband, inform him of her conversion, and would offer him to accept Islam, Family Court then would wait till expiry of her Iddat period for reply/decision of her husband---High Court further directed that if husband in response to offer embraced Islam within the period of Iddat, the marriage would continue but if he remained non-Muslim even after expiry of Iddat period, the Court could pass a decree of termination/dissolution of marriage and the woman, thereafter, would be free to marry a Muslim man if so, wished---High Court further directed that Iddat was compulsory after dissolution of marriage of any character and Iddat was imposed in order to provide an opportunity to non-Muslim husband to consider whether he wished to embrace Islam and also as a matter of public policy in order to ascertain whether the woman was pregnant by earlier husband, so as to avoid confusion of parentage---Family Court in case in such petition filed by women, fresh convert to Islam,[or a petition filed by parents or any guardian pleading forced marriage of their underage (below 18 years) daughter] would proceed to determine on evidence in each case whether the conversion or marriage was prima facie genuine (and was not forced), or only a pretext and decide accordingly---In the first case, findings would operate as a defense against criminal prosecution and in the latter, it would make the perpetrator of act, offender of law---High Court declined to interfere in the matter---Constitutional petition was dismissed accordingly.

PLD 1988 SC 713; Sardar Masih v. Haider Masih PLD 1988 FSC 78; NLR 1989 SD 640; Mst. Safia Bibi v. Muhammad Arif, A.S.I. and 3 others 1997 MLD 158; PLD 2020 Lah. 489 and Writ Petitions Nos.4110, 3885 of 1995 and 15214 of 1994; Muhammadan Law by Syed Amir Ali, Vol. II, p. 346 (7th Edn.); (11) Outlines of Muhammadan Law by A.A. Fyzee pp.173-176); Mullah Sections 264 and 267; Outlines of Muhammadan Law by Asaf A.A. Fayzee (Oxford University Press, 1964 (pp. 169, 173); Rakeya Bibi v. Aneel Kumar Mukar Jee (1948) 2 Cal. 119; Noor Jehan v. Euqene Tischenko; (1942) 2 Cal. 165; Sayenda Khatoon v. M. Obadiah (1949) 2 CWN 745; Robaba Khanum v. Khodadad Bomanji Irani (1946) 48 Bom. LR 864 and Faiz Ali Shah v. Ghulam Akbar Shah PLD 1952 Azad J&K 32 rel.

Raja Hans Raj Naurang for Applicant along with Applicant.

Mehfooz Ali Laghari for Respondents Nos.3 and 4 along with Respondents Nos. 3 and 4.

Mst. Murk produced from Darul Amann.

Mrs. Razia Ali Zaman Khan, Ishrat Ali Lohar, Muhammad Jamil Ahmed and Sajjad Ahmed Chandio, amici curiae.

Shahzado Saleem Nahiyoon, Additional P.G. for Official Respondents.

P L D 2023 Sindh 66

Before Muhammad Shafi Siddiqui, J

PAKISTAN SUGAR MILLS ASSOCIATION through authorized representative and 5 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and

Justice, Government of Pakistan and 2 others---Defendants

Suits Nos. 2272, 2273, 2455 and 2474 of 2021, decided on 13th June, 2022.

Competition Act (XIX of 2010)---

----Ss.14, 24 & 28---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Reading down, principle of---Applicability---Casting vote---Procedure to cast---Dispute was with regard to casting of vote by Chairperson for second time as there was equality of votes---Chairperson had cast vote second time in exercise of powers under Ss.24 (1)(5)(6) & 28 of Competition Act, 2010---Validity---Any member on the Commission was to be free from any preconceived or predetermined thoughts---Conclusiveness of dispute in the mind of a member before sitting on Commission, was a loss to ensure fair trial and due process and such situation could be idealized close to parti pris---Judge or a member in a quasi-judicial proceeding, untying naughts should not be the one already utilized---Such would negate the assurance of fair trial and due process guaranteed under Art. 10-A of the Constitution---If statute required a decision started from a query, investigation, report, proceedings and/or then adjudication by any odd number of judges, with its lower and upper cap, it should be seen that each member was of independent and impartial mind and should not be carrying any weight of preconceived conclusion---Such situation of even number of member of commission in a quasi-judicial proceeding should not have happened---In the event of equality of votes reached the Chairman/Chairperson and / or any other member already rendered opinion, could not be saddled with additional responsibility to cast a vote to untie knot as it would destroy balance of each independent judicial mind being applied to a triable question under adjudication---Provision of S. 24(5) of Competition Act, 2010 was to be read down to administrative functions and operations of Commission only arising under Competition Commission (Conduct of Business) Regulations 2007 and was distinguished by the other regulation i.e. Competition Commission (General Enforcement) Regulations, 2007---Option of carrying out such exercise of casting vote again was not available in view of above understanding of law---High Court granted injunction to the extent of casting vote decision of Chairman/Chairperson, excluding casting vote decision of Chairperson, as it was a split decision by 2 vs. 2---Application was allowed accordingly.

Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197; Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159; Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab PLD 2016 Lah. 321; Sardar Sher Bahadur Khan v. Election Commission of Pakistan PLD 2018 SC 97; Ibrahim & Sons v. Punjab Text Book Board 2006 SCMR 875; Chief Kwame Asante, Tredahone v. Chief Kwame Tawia 9 DLR 686 (PC); Aam Log Ittehad v. The Election Commission of Pakistan PLD 2022 SC 39; Mrs. K.L. Sahgal v. State of U.P. and others AIR 1965 All. 465; Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhry PLD 2016 SC 637; H.M. Abdullah v. Income Tax Officer 1993 SCMR 1195; Collector of Customs v. Askari Cement (Pvt.) Limited 2020 SCMR 649; Murlidhar v. University of Karachi PLD 1966 SC 841; Abdul Wahab v. Secretary Government of Balochistan 2009 SCMR 1354; Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Government of the Punjab v. Abdur Rehman 2022 SCMR 25; Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119; Naveed Asghar v. State PLD 2021 SC 600; LPG Association of Pakistan v. Federation of Pakistan 2021 CLD 214; Dr. Syed Muhammad Ali Shah v. Chairman Pakistan Cricket Board 2010 MLD 1241; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Haroon-ur-Rashid v. LDA 2016 SCMR 931; Total PARKO Pakistan Limited v. Pakistan PTCL 2021 CL 576; Pakistan v. Hazrat Hussain 2018 SCMR 939; Mahindra Electric Mobility Ltd. v. Competition Commission of India 2019 SCC Delhi 8032 and Shobhana Shankar Patil v. Ramchandra Shirodkar AIR 1996 Bombay 217 ref.

Makhdoom Ali Khan, Khawaja Aizaz Ahsan and Sami-ur-Rehman for Plaintiffs (in Suit No.2272 of 2021).

Abdul Sattar Pirzada and Mamoon N. Chaudhry for Plaintiffs (in Suits Nos. 2273, 2455 and 2474 of 2021).

Muhammad Ahmed, Assistant Attorney General for Respondent No.1 (in all suits).

Faisal Siddiqui, Saad Fayaz and Shakoor Zulqarnain for Defendants Nos. 2 and 3 (in all suits).

P L D 2023 Sindh 90

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

EKRAM UD DIN KHAN---Petitioner

Versus

The D.G. F.I.A. and 3 others---Respondents

Constitutional Petition No. D-2179 of 2021, decided on 27th May, 2022.

Central Law Officers Ordinance (VII of 1970)---

----S. 4A---Civil Procedure Code (V of 1908), Ss. 151 & 114---Constitution of Pakistan, Art.199---Constitutional petition---Contempt proceedings---Prosecutor, appointment of---Review of order---Dispute was with regard to appointing prosecutor in contempt proceedings from Advocate General's office instead of from Attorney General's office---Validity---Contempt proceedings were not included under S. 4A Central Law Officers Ordinance, 1970---Such proceedings were a different category of proceedings, whereby prosecutor was usually a persona designata and it was a deliberate omission by the Legislature---Provisions of Central Law Officers Ordinance, 1970 only related to Federal Law Officers and did not cover position of Provincial Law Officers in such matters---Original proceedings commenced before Family Court at 'K', petition was moved before High Court, cause of original action arose in "K"---Allegedly contempt was made before High Court of Sindh, therefore, prosecutor was to be Advocate General of Sindh or a person designated by him from his office---High Court declined to interfere in the order appointing prosecutor from office of Advocate General's office as there was no error floating on the face of record---High Court directed Advocate General or a person designated by him, amongst the A.A.G's. working in his office, to prosecute contempt proceedings, who would provide all necessary documents to alleged contemnor---Review petition was dismissed in circumstances.

Justice Qazi Faez Isa and others v. The President of Pakistan and others (Civil Review Petitions Nos. 296 to 301, 308, 309 and 509 of 2020 and C.M.A. No. 4533 of 2020) PLD 2022 SC 119; Sayyed Hassan through Legal Heirs v. Chief Land Commission, Punjab, Lahore and others 2000 SCMR 1440; (Criminal Miscellaneous Application No.296 of 2008 in/and Criminal Original Petition No. 38 of 2009) 2009 SCMR 780 and The State v. Muhammad Akbar Cheema PLD 1993 Lah. 658 ref.

Naushaba Kazi, XII Civil Judge, Karachi (South) v. Mehjabeen Rarzana, Advocate 2003 PCr.LJ 277 rel.

Petitioner is present in person.

Sarwar Khan, Additional Advocate General.

Irshad Ali, Assistant Attorney General.

Iqbal Awan, A.P.G.

Muhammad Ahmed alleged contemnor.

Badar Alam for the alleged contemnor.

P L D 2023 Sindh 96

Before Zulfiqar Ahmad Khan, J

Ms. GULNAR---Plaintiff

Versus

MUHAMMAD YOUSUF BARAKZAI and 5 others---Defendants

Suit No. 1534 of 2012, decided on 1st July, 2022.

(a) Constitution of Pakistan---

----Art. 10-A---Right of fair trial---Scope---Right to fair trial as enunciated vide Art. 10-A of the Constitution, is right of every citizen and is a fundamental right---Such is Constitutional reassurance envisaged and envisioned both procedural standards that Courts must uphold in order to protect peoples' personal liberty and a range of liberty interests that statutes and regulations must not infringe---On insertion of such fundamental right in Constitution, High Court has to analyze and survey the laws and rules/regulations framed thereunder to comprehend whether such indispensable right is accessible or deprived of---In case of stringency and rigidity in affording right of fair trail, it is the function rather a responsibility of Court to protect this right so that no injustice and unfairness should be done to anybody---To give a fair right of audience and proper disposal of the issues, it is necessary to address issue one after another.

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

----Art. 72---Documentary evidence---For Court to look into document for deciding its probative or evidentiary value, it is necessary to tender the document legally first---When opposite party 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.

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

----S. 42---Right---Scope---Denial of a right constitutes a cause of action to maintain an action under S. 42 of Specific Relief Act, 1877---Relief of declaration is a discretionary relief and can be granted in the case where substantial injury is established---In absence of denial of right no relief of declaration can be granted---Legal character as used in S. 42 of Specific Relief Act, 1877 is equivalent to legal status and legal status is a legal right when it involves a peculiarity of personality arising from anything unconnected with the nature of act itself which the person of inherence can enforce against the person of incidence.

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

----Ss. 8, 39, 42 & 54---Transfer of Property Act (IV of 1882), S. 52---Suit for recovery of possession, cancellation of document, declaration and injunction---Lis pendens, principle of---Applicability---Plaintiff and defendant were wife and husband respectively and their marriage ended in divorce---Plaintiff claimed to be a working lady who had paid half consideration amount to purchase suit property but defendant purchased the same in his name only---Validity---Plaintiff was able to show that she shared 50% sale consideration towards purchasing the suit property---Suit property was sold by defendant during pendency of the suit while he was restrained from selling and/or creating a third party interest in the suit property---Such act of defendant was barred by S. 52 of the Transfer of Property Act, 1882--- Suit property was wrongfully sold by defendant--- Suit was decreed in circumstances.

Major General Shanta Shansher Jung Bahadur Rana v. Kemani Brother Private Ltd. AIR 1959 Bom. 201; ILR 39 Mad 80 = AIR 1915 Mad. 584; AIR 1955 Mad. 111; AIR 1940 Cal. 225; Jurisprudence by Salmond; Lord Cottonham in Taylor v. Salmon; Arif Majeed Malik and others v. Board of Governors, Karachi Grammar School 2004 CLC 1029; Cf. Ashwender v. Teinessee Valley Authority, 297 U.S. 288 at p. 325: L, Ed. 688 at p. 699 and Anand and Iyer's, Commentary on Specific Relief Act. 11th Edition. Page 927 ref.

Plaintiff in person.

Usman Tufail Shaikh for Defendant No. 1.

Nemo for Defendants Nos. 3, 4 and Defendants Nos. 2, 5 and 6 are ex parte.

P L D 2023 Sindh 110

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

PAKISTAN TEHREEK-E-INSAAF and others---Petitioners

Versus

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

Constitutional Petitions Nos. D-4954 and D-5041 of 2022, decided on 18th November, 2022.

Constitution of Pakistan---

----Arts. 140-A, 199, 219(d) & 220---Constitutional petition---Local Bodies elections---Provincial Government, duty of---Petitioner was a political party and aggrieved of postponing of local bodies elections repeatedly by Provincial Government on one pretext or the other---Held; the election was repeatedly postponed for almost 4 months and a definite future date was still not in sight---There was considerable time for an appropriate solution to have been found, and the matter could not indefinitely be kept in abeyance by Provincial administration continuing to withhold the aid it was duty bound to provide to Election Commission of Pakistan on the pretext of flood duties---High Court refrained from dictating date of Election nor directed the manner in which election was to be conducted or policed---High Court expected that Election Commission of Pakistan would notify polling date, preferably within a period of 15 days specifying a fresh polling date, or indeed date(s) as the case could be in the event that it was deemed expedient to stagger the process but so as to preferably conclude overall exercise of Election in any event within a total period of 60 days---High Court directed Provincial Government to ensure that requisite assistance, whether by way of adequate security or otherwise, was rendered to Election Commission of Pakistan in the matter, as per Art. 220 of the Constitution---High Court directed the Chief Secretary of Sindh and Inspector General of Police to ensure that any preparatory or organizational steps as were required for the purpose would be taken well in advance of the date(s) so that any and all impediments in that regard were surmounted by then---Constitutional petition was disposed of accordingly.

M.Q.M. (Pakistan) and others v. Pakistan through Secretary Cabinet Division, Government of Pakistan and others PLD 2022 SC 439; Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629; Sheikh Rasheed Ahmed v. Government of Punjab and others PLD 2010 SC 573 and Administrator Municipal Corporation, Peshawar and others v. Taimur Hussain Amin and others 2021 SCMR 714 rel.

Abdul Wahab Balouch, Mumtaz Gopang, Abdul Lateef and Muhammad Imran Qureshi for Petitioners (in C.P. No. D-4954 of 2022).

Usman Farooque and Saifuddin for Petitioner (in C.P. No. D-5041 of 2022).

Kazi Abdul Hameed Siddiqui, D.A.G. along with Zia Arif Janjua, Law Officer, Pakistan Rangers, Sindh.

Hassan Akbar, Advocate General, Sindh, Muhammad Jawwad Dero, Zeeshan Adhi, and Ch. Muhammad Rafique Rajorvi, Additional Advocates General, Sindh, Saifullah, Assistant Advocate General, Sindh, along with Muhammad Sohail Rajput, Chief Secretary, Sindh, Ghulam Nabi Memon, Inspector General of Police and Fazal Hussain, Additional Secretary, Local Government.

Aijaz Anwar Chohan, Provincial Election Commissioner, Sindh, Ali Raza Sial, Joint Provincial Election Commissioner, Abdullah Hanjrah, Sr. Law Officer and Sarmad Sarwar, Law Officer, Election Commission of Pakistan.

Tariq Mansoor, Ahmed Zameer and Naeem Siddiqui along with Khawaja Izhar-ul-Haq and Waseem Akhtar, for the MQM Pakistan, the Intervener.

P L D 2023 Sindh 123

Before Adnan Iqbal Chaudhry, J

EATON PHOENIXTEC MMPL CO., LTD. and another---Plaintiffs

Versus

Messrs NEW RABIA ENTERPRISES through Sole Proprietor and another---Defendants

Suit No. 1256 of 2019, decided on 22nd November, 2022.

Civil Procedure Code (V of 1908)---

----O.XII, R.6---Suit for recovery of foreign currency, interest and damages---Admission---Phrase "without waiting for the determination of any other question between the parties"---Set off---Effect---Plaintiff company sought decree on admission of defendant for recovery of consideration of goods supplied to defendant---Defendant raised plea of set off to recovery sought by plaintiff---Validity---Admission was unambiguous, categorical and unconditional and mere presence of plea of set-off was not suffice to defeat application under O. XII, R. 6, C.P.C. lest the words "without waiting for the determination of any other question between the parties" appearing therein would become meaningless---In final analysis, a decree under O. XII, R. 6, C.P.C. would remain a discretion of the Court, and it could be that given the facts of a particular set-off before it, the Court was not inclined to exercise such discretion---Admission made by defendant in the present case was unambiguous, categorical and unconditional---Equitable set-off sought by defendant was no impediment---High Court passed a partial decree of USD 100,665.30/- or Pak Rupees equivalent thereof as on the date of payment, plus interest at the rate of 10% per annum from the date of suit until realization or Pak Rupees equivalent thereof as on the date of payment---Application was allowed accordingly.

Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. 1996 SCMR 696; Khalil (Pvt.) Ltd. v. M.V. WALES II 2012 CLD 276 and Qatar Airways v. Genyis International (Pvt.) Ltd. 2002 CLC 449 rel.

Ms. Alizeh Bashir for Plaintiff.

Syed Daanish Ghazi for Defendant.

P L D 2023 Sindh 127

Before Irfan Saadat Khan and Zulfiqar Ahmad Khan, JJ

A. M. QURESHI through legal representative---Appellant

Versus

DEPUTY COMMISSIONER, DISTRICT EAST, KARACHI and others---Respondents

High Court Appeal No. 274 of 2022, decided on 22nd November, 2022.

Civil Procedure Code (V of 1908)---

----O. I, R. 10--- Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Necessary party, impleading of---Dispute as to paternity---Determination---Dispute was between the parties with regard to property left by deceased owner---Respondents sought to be impleaded to the proceedings as legal heirs of deceased owner but appellants questioned their paternity---Validity---Matter was excessively contested where appellants were even questioning paternity of other legal heirs---Interest of justice could only be resolved by way of framing proper issues in such regard, adducing evidences and calling for witnesses etc., and thereafter have the matter decided in accordance with law---Parties could also furnish their respective issues as required, under O. XIV, C.P.C. and it would be for the Court to frame the issues and thereafter decide the matter after hearing the parties in accordance with law---High Court declined to interfere in the order passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed in circumstances.

PLD 2010 SC 913 ref.

Muhammad Baqar v. Mst. Ghulam Parver and others 2017 SCMR 1062; Ghulam Ahmed Chaudhry v. Akbar Hussain through Legal Heirs and another PLD 2002 SC 615 and Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111 rel.

Syed Mureed Ali Shah for Appellant.

Naeem Akhtar Talpur, A.A.G. for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Nemo for Respondent No.4.

Khalil Ahmed Siddiqui and Zulfiqar Ali for Respondent No.5.

Naeem Akhtar Talpur, A.A.G. for Respondent No.6.

Nemo for Respondent No.7.

Nemo for Respondent No.8.

Muzaffar Leghari for Respondent No.9.

Nemo for Respondent No.10.

Nemo for Respondent No.11.

P L D 2023 Sindh 133

Before Muhammad Junaid Ghaffar, J

ABDUL RASHEED---Applicant

Versus

MUHAMMAD BUXAL and 4 others---Respondents

Criminal Transfer Application No. S-24 and Criminal Miscellaneous No. S-150 of 2021, decided on 30th September, 2021.

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

----S. 497 (5)---Penal Code (XLV of 1860), Ss. 302, 337-A(i), 337-F(i), 114 & 148---Qatl-i-amd, Shajjah-i-Khafifah, Ghayr-Jaifah Damihah and rioting armed with deadly weapons---Bail, cancellation of---Direction, non-compliance of---Effect---Change of advocate---Trial Court earlier declined bail to accused but subsequently on same facts bail was allowed by same Judge on the ground of non-compliance of directions of High Court---Validity---Concept of granting bail on failure to comply with any directions of superior court while disposing of bail application of accused was never mandatory---Law itself provided procedure under S.497(1)(b), Cr.P.C.---Course adopted by Trial Court was against mandate of law---For Trial Court to finally settle petitioner's alleged culpability and offence made thereunder on the strength of evidence and available material constituted "reasonable grounds" within the contemplation of S. 497, Cr.P.C. so as to bring his case within the remit of prohibition provided thereunder---There was no occasion for Trial Court to release accused on bail---Grant of bail was a discretionary relief and exercise of discretion was to be structured on sound judicial considerations, particularly in cases punishable with imprisonment of ten years or above---High Court cancelled bail of accused---Application was allowed, in circumstances.

Talat Ishaq v. National Accountability Bureau PLD 2019 SC 112; Nisar Ahmed v. The State PLD 2016 SC 11; Hazrat Nabi Shah alias Hazrat Khan v. The State 2020 SCMR 1672; Abid Hussain v. Tassawar Hussain and another 2021 SCMR 518; Muhammad Waheed v. The State 2020 SCMR 2066; Sidra Abbas v. The State 2020 SCMR 2089; Samiullah v. Laiq Zada 2020 SCMR 1115; The State/ANF v. Rafique Ahmed Channa 2010 SCMR 580 and Noor Aslam v. The State 2021 SCMR 1225 rel.

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

----S. 526---Penal Code (XLV of 1860), Ss. 302, 337-A(i), 337-F(i), 114 & 148---Qatl-i-amd, Shajjah-i-Khafifah, Ghayr-JaifahDamihah and rioting armed with deadly weapons---Transfer of case---Misconduct---Grant of relief by change of advocate---Trial Court earlier declined bail to accused but subsequently on same facts bail was allowed by same Judge and only advocate of accused was replaced---Complainant sought transfer of case from Trial Court to some other Court of competent jurisdiction---Validity---Such conduct of Trial Court warranted interference to the extent of transfer application---Documents relied upon showed that another counsel had appeared before Trial Court while granting bail---High Court directed to transfer the case from Trial Court to another Court of competent jurisdiction---Application was allowed accordingly.

Ghulam Shabbir Shar for Applicant (in Crl. Transfer App. No. S-24 of 2021 and Crl. Misc. App. No. S-150 of 2021).

Shewak Ram Valecha for Respondents Nos. 2 and 3 (in Crl. Transfer App. No. S-24 of 2021 and for Respondents Nos.1 and 2 in Cr. Misc. App. No. S-150 of 2021).

Zulfiqar Ali Jatoi, Additional Prosecutor General.

P L D 2023 Sindh 142

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

MUHAMMAD AKBAR and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Cooperative Department and others---Respondents

Constitutional Petitions Nos. D-3478 and D-418 of 2022, decided on 16th November, 2022.

(a) Sindh Food Authority Act, 2016 (XIV of 2017)---

----S. 19---Licensing of food business---Scope---Petitioners being vendors or wholesalers of edible oil in open form assailed the notification issued by the Sindh Food Authority whereby sale of edible oil in open form was banned and their business' premises were sealed---No sealing orders were enclosed with the comments submitted on behalf of the respondents nor any material was placed on record to demonstrate the quality standards devised by the Sindh Food Authority in respect of edible oil as a logical precursor to the impugned notification---Subsequently, certain additional documents were filed which reflected that ban on the sale of oil/ghee in open form had been recommended by Scientific Panel of the Sindh Food Authority---Validity---So-called recommendation of the Scientific Panel was bereft of any real scientific basis/analysis---Imposition of ban in the absence of defined standards raised a question as to whether the step validly fell within the competence of the Sindh Food Authority---Respondents pointed out that the petitioners did not have a valid license as prescribed by S. 19(1) of the Sindh Food Authority Act, 2016---High Court observed that the petitioners had no legal standing to carry on any food business within the Province and lacked locus standi to challenge the impugned notification---Petitions were disposed of while maintaining an interim order for de-sealing the business' premises of the petitioners while leaving the Sindh Food Authority at liberty to exercise its powers under the Sindh Food Authority Act, 2016.

Messrs Lung Fung Chinese Restaurant, Lahore and others v. Punjab Food Authority and others PLD 2021 SC 684 ref.

(b) Sindh Food Authority Act, 2016 (XIV of 2017)---

----S. 7---Powers and functions of the Food Authority---Scope---Sindh Food Authority stands constituted under the Sindh Food Authority Act, 2016, with a mandate in terms of S. 7(1) of regulating and monitoring the "food business" in order to ensure provision of "safe food"---Section 7(2) of the Sindh Food Authority Act, 2016, goes on to provide inter alia that the Authority may "formulate standards, procedures, processes and guidelines in relation to any aspect of food including food business, food labeling, food additive, and specify appropriate enforcement systems" and "do any other thing which is incidental to or necessary for the discharge of its functions" with S. 7(3) clarifying that the Authority shall exercise those functions "as far as possible, in accordance with the well-established scientific principles and international best practices".

Petitioner in person (in C.P. No. D-418 of 2022).

Muhammad Yaseen Azad, Sarmad Khan Azad, Muhammad Qasim Iqbal and Mehreen Ibrahim for Petitioners (in C. P. No. D-3487 of 2022).

Muhammad Zeeshan Adhi and Leela Kalpana Devi, Additional Advocates General, Sindh for Province of Sindh.

M. S. Bukhari and Rajesh Kumar Khageja for the Sindh Food Authority (in C.Ps. Nos. D-418 and D-3487 of 2022) respectively, along with Dr. S. M. Ghufran Saeed, Assistant Professor, Department of Food Science and Technology.

Muhammad Qaiser Hassan Khan for the Intervener (in C.P. No. D-3487 of 2022).

P L D 2023 Sindh 151

Before Muhammad Shafi Siddiqui and Irshad Ali Shah, JJ

ZUBAIR AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-81 of 2019, decided on 17th November, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 231, 353 & 537---Constitution of Pakistan, Art. 10-A---Recall of witnesses when charge altered---Evidence to be taken in presence of accused---Scope---Where evidence already recorded in first round of litigation, after framing of fresh charge, was adopted not only by the prosecution but also by the defense, High Court observed that such adoption of evidence was against the spirit of S. 231, Cr.P.C. which prescribed that if the charge was altered, added or amended, then the witnesses already examined were to be re-called and re-examined, on point of alteration, addition or amendment so made in the charge---Adoption of such evidence was also contrary to the mandate contained in S. 353, Cr.P.C., which prescribed that the evidence of witnesses shall be taken in presence of accused facing trial---Procedure adopted by the Trial Court being incurable had not only occasioned in failure of justice, as defined in subsection (b) of S. 537, Cr.P.C. but had prejudiced the appellant in his defense seriously, which was against the mandate contained in Art. 10-A of the Constitution, which guaranteed chance of fair trial and due process to every citizen for determination of his civil/criminal rights and obligations---Case was remanded to the Trial Court for fresh/de novo trial.

Zahid Karim and others v. The State and others 2005 PCr.LJ 998 rel.

Khawaja Naveed Ahmed for Appellant.

Complainant in person.

Ms. Sana Memon, A.P.G. for the State.

P L D 2023 Sindh 154

Before Aqeel Ahmed Abbasi and Abdul Mobeen Lakho, JJ

GOVERNMENT OF SINDH through Secretary, Home Department and others---Appellants

Versus

MUHAMMAD SARWAR and 11 others---Respondents

High Court Appeal No. 369 of 2017, decided on 1st April, 2022.

(a) Fatal Accidents Act (XIII of 1885)---

----S. 1---Suit for compensation---Custodial death---Scope---Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855, claiming therein that his son was tortured to death at CIA Centre while in police custody---Single Bench of the High Court decreed the suit---Contention of appellants was that deceased had died because of natural death, whereas, the injuries found on the body of deceased, as per post-mortem report, were not so fatal as to cause death---Validity---Respondent stated on oath that the police officials caught hold of the deceased without any lawful reason and legal justification; that he was taken to CIA Centre where he was mercilessly tortured and assaulted violently for more than five hours constantly; that the deceased got fatal injuries and died on account of wrongful acts of the police officials; that the police officials instead of taking his son to the hospital lodged an FIR under S. 13-D of the Arms Ordinance, 1965 in order to justify the illegal arrest; that his son was ultimately taken to hospital where he was finally pronounced dead; that the inquest report was manipulated wherein injury column was silent about any injury upon the deceased; that the inquest report was again prepared under the supervision of Magistrate, which proved that the death was caused by torture and harsh beating; that the reports of Chemical Examiner and Pathologist corroborated the factum of death on account of injuries by torture and beating and that a judicial inquiry was ordered by the Secretary, Home Department, report of which supported the claim of respondent---In spite of service of notice upon the appellants, none had appeared to cross-examine the respondent---Appellants had not produced any witness or evidence in support of their defence---Respondent had successfully discharged the burden of proof for the purpose of claiming compensation/damages and also estimating the quantum of damages as claimed---Appeal was dismissed.

Samiullah Khan Marwat v. Government of Pakistan 2003 SCMR 1140; Punjab Road Transport Corporation v. Zahida Afzal 2006 SCMR 207; Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005; Islamic Republic of Pakistan Through Ministry of Railways v. Abdul Wahid 2011 SCMR 1836; Government of NWFP through Collector, Mardan and others v. Saidur Rahman 2004 CLC 1682; Rahamat Ali v. Emperor AIR 1927 Lahore 634; Hira Das v. Shiromani Gurdwara Prabandhak Committee and others AIR 1932 Lahore 147; Amar Singh v. Bhagwan Das and others AIR 1933 Lahore 770 and Joshi Ram Krishan v. Mst. Bukmini Bai AIR (36) 1949 Allahabad 449 ref.

(b) Fatal Accidents Act (XIII of 1885)---

----S. 1---Suit for compensation---Custodial death---Scope---Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855, claiming therein that his son was tortured to death at CIA Centre while in police custody---Single Bench of High Court decreed the suit---Contention of appellants was that the custodial death of an accused was not covered under the definition of "actionable wrong"---Validity---Each and every case of custodial death where the cause of death of a person in police custody was natural and not on account of torture, assault, beating, wrongful acts, negligence or default on the part of police officials, would not attract the provision of the Fatal Accidents Act, 1855, unless it was established that loss occasioned by death was on account of actionable wrong---Respondent, in the instant case, had successfully established that the death of his son was not natural death---Appeal was dismissed.

(c) Fatal Accidents Act (XIII of 1885)---

----S. 1---Suit for compensation---Custodial death---Acquittal in criminal case---Effect---Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855 claiming therein that his son was tortured to death at CIA Centre while in police custody---Single Bench of High Court decreed the suit---Contention of appellants was that since they had been acquitted in the criminal case registered against them pursuant to a direct complaint filed by the plaintiff on similar allegations, therefore, the present suit was not maintainable---Validity---Deceased, who was a young man of 24 years of age having no medical condition had suddenly died while in police custody---Circumstances reflected that the police was supporting the appellants as no FIR of the incident was registered---Charge of murder was not established beyond reasonable doubt due to faulty investigation of the police---Scope of civil proceedings was different and distinct from the scope of criminal proceedings pursuant to direct complaint filed by the plaintiff against appellants---Contention of the appellants being misconceived in fact and law was rejected---Appeal was dismissed.

(d) Administration of justice---

----Civil and criminal proceedings---Scope---Where an aggrieved party has two different remedies by way of filing criminal case and/or to file a civil suit before the Court of civil jurisdiction, both such cases can proceed simultaneously, and would not affect the merits of the other case, which has to be decided independently on the basis of evidence produced and the relief claimed therein as per law.

(e) Administration of justice---

----Civil and criminal proceedings---Scope---Parameter of establishing a criminal charge against accused person(s) and standards of appraising evidence and deciding a criminal case are different from the parameters of establishing a prima facie case as per pleadings, standard of appraising evidence and deciding a case under civil jurisdiction---Decision in a criminal case in such circumstances would not affect the proceeding before a Civil Court, whereas, proceedings before a Civil Court, in appropriate cases, can be given preferential consideration over proceedings in criminal proceedings because of stringent standards of appraising evidence in civil proceedings.

Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005 rel.

Syed Aley Maqbool Rizvi, Addl. Advocate-General, Sindh along with Jawwad Dero, Addl. A.G. Sindh and Ziauddin Junejo, Asst. A.G. Sindh for Appellants Nos. 1 to 6.

Anwar Alam Subhani for Appellants Nos. 8, 9, 12 and 13.

Nasir Maqsood along with Qaiser Jawed for Respondent.

DSP (Legal) Raza Mian and SIP Ghulam Hussain from Police Station Mithadar are present.

P L D 2023 Sindh 174

Before Muhammad Shafi Siddiqui, J

PAKISTAN STATE OIL COMPANY LIMITED---Plaintiff

Versus

ABDUL ALI and 3 others---Defendants

Suit No. 182 of 2011, decided on 8th November, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Defense (Special Powers) Rules, 1951, R.10---Constitution of Pakistan, Arts. 4, 23 & 24---Suit of declaration and injunction---Property rights---Plaintiff company claimed that its installation was Key Point Installation Category I-A and had sought restriction upon defendants not to raise structure/construction over their land within a distance of 200 Sq. Yds. from plaintiff's installation, under the provisions of rule 10 of Civil Defense (Special Powers) Rules, 1951---Validity---Federal Government could impose in terms of R. 10 of Civil Defense (Special Powers) Rules, 1951, condition only for the purposes of rendering building of adjacent land owner more secured and protected for persons using the same---Defendants were not precluded from using their land in pursuance of R. 10 of Civil Defense (Special Powers) Rules, 1951, however reasonable restriction for security and safety of the occupants were to be adhered to---Such restrictions could not be arbitrary and fanciful and that such restriction would not be of such magnitude as would materially render and disentitle neighboring land owners from utilizing their land in accordance with law as it would then be in violation of Arts. 4, 23 & 24 of the Constitution---Suit was dismissed, in circumstances.

Pakistan Refinery Limited v. Maskatiya Industries (Pvt.) Ltd. SBLR 2011 Sindh 711; Barrett Hodgson Pakistan (Pvt.) Ltd. v. Pakistan Refinery Ltd. 2009 MLD 1100; Pakistan Refinery Limited v. International School of Choueifat 2009 YLR 2000; Pakistan Refinery Limited v. Barret Hodgson Pakistan PLD 2009 Kar. 315; Pakistan Refinery Ltd. v. Barrett Hodgson Pakistan (Pvt.) Ltd. 2019 SCMR 1726 and Girilanandini Devi v. Bijendra Narain Choudhry AIR 1967 SC 1124 ref.

Asim Iqbal for Plaintiff.

.Zia-ul-Haq Makhdoom for Defendant No.1.

None present Defendants Nos.2 to 4.

P L D 2023 Sindh 182

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

Moulvi IQBAL HAIDER---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

Constitutional Petition No. D-7170 of 2022, decided on 25th November, 2022.

(a) Sindh Motion Pictures Act, 2011 (IV of 2012)---

----Ss. 6 & 8---Constitution of Pakistan, Arts. 199 & 227---Certification of films---Constitutional petition---Maintainability---Petitioner sought an order imposing ban on a film so as to restrain its release for the reason that it portrays a relationship between a married man and a transgender woman, which storyline violates Islamic teachings and the Constitution of Pakistan---Validity---Perusal of Art. 227 reflects that it simply stipulates inter alia that "All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions", hence apparently it bears no applicability to a mere film per se---It does not necessarily follow that a film would be prejudicial to the "glory of Islam" merely because its theme or storyline does not strictly conform with social or cultural values---Islam, being the great global religion that it is, is strong enough to withstand a cinematic work portraying a purely fictional account of a relationship humanising a transgender character, and are equally sanguine that our society is not so weak as to crumble as a consequence---Transgender persons are equal citizens of Pakistan in all respects and the stories of their life, their struggles and their human relationships deserve equal space and recognition---Petitioner also does not properly qualify as an "aggrieved person" for the purpose of Art. 199, as his fundamental rights have not been infringed---Constitutional petition is dismissed.

(b) Sindh Motion Pictures Act, 2011 (IV of 2012)---

----Ss. 6 & 8---Constitution of Pakistan, Arts. 199 & 19---Constitutional petition---Freedom of speech---Principles of guidance in certifying films---Powers to suspend exhibition of films in certain cases---Scope---Where a cinematic work has passed through the censors, who have examined its content and cleared it for release with an appropriate certification, an individual cannot be allowed to trump that decision through a Court proceeding based on his conception of morality---Indeed, it is not the function of the Court under Art. 199 of the Constitution to make a moral judgment so as to curtail the freedom of speech and expression of a filmmaker, as safeguarded under Art. 19 of the Constitution---Default position of the Court under Art. 199 ought to be that of fully safeguarding the fundamental right by giving as expansive an interpretation to Art. 19 as possible, and in the event of a restriction being imposed by the Board or any other authority that may be competent in that regard, testing the reasonableness of that restriction stringently, so as to ensure that the same is "reasonable" in the strictest conceivable sense--- As such, in the absence of any restriction imposed by the concerned quarter, whether that be the Board or Provincial Government, it does not fall to the Court to morally police the public by making a determination of what should or should not be viewed and to take on the function of itself devising and imposing a restriction---Suffice it to say that unnecessary censorship suffocates a society and stifles its creativity and growth.

(c) Sindh Motion Pictures Act, 2011 (IV of 2012)---

----Ss. 6 & 8---Principles of guidance in certifying films---Powers to suspend exhibition of films in certain cases---Scope---Prejudice to the "glory of Islam" may qualify as a reasonable restriction to freedom of speech and expression enshrined under Art. 19 of the Constitution---Section 6 of Sindh Motion Pictures Act, 2011, specifically envisages such a consideration as a ground for denying certification to a film---Additionally, S. 8 envisages the very same consideration as a possible ground for the Provincial Government to decertify a film.

Petitioner in person.

P L D 2023 Sindh 187

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

GHULAM ASGHAR PATHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-5913 of 2018 and D-1222 of 2021, decided on 20th February, 2023.

(a) Sindh Civil Courts Ordinance (II of 1962)---

----S. 7---Original jurisdiction of the court of District Judge---Original jurisdiction of High Court ---Scope---Commercial cases---Petitioners argued that S. 7 of the Sindh Civil Courts Ordinance, 1962, concentrated cases which should be heard in the ordinary courts of civil judicature under the aegis of District Judge, instead of the High Court---Petitioners claimed that limiting the pecuniary jurisdiction of District Courts in Karachi District was discriminatory, as such jurisdiction was unlimited in all other districts and throughout the country---Held, that while preserving the jurisdiction for commercial disputes was important, the singular basis of a pecuniary threshold was unworkable, as it lead to an overwhelming number of non-commercial cases inundating the forum and delaying the resolution of commercial disputes---Most of the pending civil cases in the High Court are of a non-commercial nature and they could have been handled at the district level, creating an unnecessary bottleneck on the original side and constricting the smooth passage of cases---Establishment of commercial courts, similar to those established in Punjab by the Lahore High Court, can provide a solution to this problem, especially given Karachi's status as a center of commerce and the economic engine of the country---Provincial Government was directed to consider taking remedial action, including tabling an amendment to S. 7 and related provisions of the Sindh Civil Courts Ordinance, 1962 (the 'Ordinance')---Amendment can either eliminate the exception to the jurisdiction of the District Judge in Karachi district or limit it to encompass only those civil suits and proceedings that fall above the prescribed pecuniary threshold and involve commercial disputes.

Province of Sindh v. Haji Razzaq and others PLD 2017 SC 207 and Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 rel.

(b) Constitution of Pakistan---

----Art.37---Promotion of social justice and eradication of social evils---Scope---Speedy justice is not about rushing the disposal of cases to clear the backlog in courts---Rather, it refers to delivering justice fairly and promptly by following due process of law---Effective dispensation of justice plays a crucial role in creating an environment conducive to a country's development, and the importance of this cannot be overstated---However, prolonged delays in dispensing justice can erode people's faith in the system and courts bogged down by an uncontrollable number of cases and delays cannot fulfill their true purpose---It is a common misconception that judges are solely responsible for addressing delays in the justice system---In reality, it is the responsibility of the State, specifically the Provincial Government, as outlined in Art. 37(d) under Part II of Chap. 2 of the Constitution---Primary objective of the justice system is to dispense justice effectively in accordance with the law and the litigants are the real stakeholders in this process---Therefore, it is essential to address any systemic failures practically rather than just rhetorically to ensure an administratively capable system.

Attorney-General v. Times Newspapers Ltd. (1973) 3 All ER 54; Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corp. (1981) 1 All ER 289 and Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.R/s. and another PLD 2022 SC 99 rel.

Petitioner No.1 in person (in C.P. No. D-5913 of 2018).

Petitioner in person (in C.P. No. D-1222 of 2021).

Fahim Zia and Raja Muhammad, Members, Sindh Bar Council, Muhammad Saleem Mangrio and Aamir Nawaz Warraich, President and General Secretary, Sindh High Court Bar Association, Amir Saleem, President Karachi Bar Association, Abdul Hafeez Balouch, General Secretary, Malir Bar Association for Respondents.

Kazi Abdul Hameed Siddiqui, D.A.G. and Mubashir Mirza, Asstt. A.G. for Respondents.

Hassan Akbar, Advocate General, Sindh assisted by Muhammad Jawad Dero, Addl. A.G. Sindh, Saifullah and Saima Imdad Mangi, Asstt. Advocates General, Sindh, along with Abdul Sattar Pathan; Nadeem Ahmed Qureshi, Law Officers, Law Department, Government of Sindh and Dr. Liaquat Ali Abro, Consultant Law to Chief Secretary, Government of Sindh.

Khawaja Shams-ul-Islam, Muhammad Ali Lakhani, Ali Murad Gulzar, Taimoor Ali Mirza, Mujtaba Sohail Raja and Aijaz Ahmed and Arif Mustafa Jatoi, Member of the Provincial Assembly of Sindh, Interveners.

P L D 2023 Sindh 202

Before Zulfiqar Ahmad Khan, J

PAKISTAN DEVELOPERS PVT. LTD.---Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY through Director General and another---Defendants

Suit No. 1018 of 2007, decided on 27th September, 2022.

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

----O. VII, R.11 (a), (c)---Phrases "cause of action" and "suit barred by law"---Applicability---Accrual of "cause of action" and that a "suit is barred by law", are two distinct attributes and characteristics---Non-existence of cause of action does not concomitantly mean that suit is also barred by law---Expression "cause of action" means a bundle of facts, which, if traversed, a suitor claiming relief was required to prove for obtaining judgment---Not only a party seeking relief is to have a cause of action with regards to transaction or alleged act having been done but also at the time of institution of the claim---Suitor is required to show that not only a right had been infringed in a manner to entitle him to a relief but also that when he approached the Court, the right to seek relief was also in existence.

(b) Constitution of Pakistan---

----Arts. 23 & 24---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Right to hold property---Corporation, right of---Scope---Non-availability of plot---Alternate plot, allotment of---Plaintiff was a company aggrieved of non-delivery of possession of suit plot by defendants despite receipt of full consideration amount---Plea raised by defendants was that plot claimed by plaintiff was not available for allotment---Validity---Provision of Art. 24 of the Constitution is not confined in its application to citizens only---Such right also applies to corporations and it is indefeasible right of every citizen to practice a profession provided he fulfills requirement as to standard prescribed by law---Actions of defendants of not handing over possession of suit plot was against such fundamental right---High Court directed authorities to allot an alternate plot to plaintiff equal in size and equal in location in lieu of suit plot---Such allotment would satisfy rule of fundamental right to property, as enshrined by Art. 23 of the Constitution---When buyer was deprived from his valuable property rights at the fault of defendants, he was entitled to general damages as claimed---Suit was decreed accordingly.

Arif Majeed Malik and others v. Board of Governors, Karachi Grammar School 2004 CLC 1029; Haji Noor Muhammad and others v. KDA and others PLD 1975 Kar. 373; Muhammad Bachal v. Muhammad Arif Memon 2019 YLR 1040 and Dr. Faisal Masud v. Umer Rasool, Director General, Lahore Development Authority 2017 SCMR 287 ref.

(c) Damages---

----Classification---Distinction---Damages can be classified into two kinds/types/sorts, such as general damages and special damages---Difference between general damages and special damages is that the former is initially quantified by the person making the claim, while the latter is assessed by the Court.

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

----Arts. 117 & 120---Damages---Onus to prove---Principle---Onus of proof for damages lies on the shoulders of claimant/plaintiff---Without discharging such onus, damages cannot be granted straight away---Even fixed amount of damages cannot be granted until and unless quantum of loss or damages actually suffered is proved through sufficient evidence---Damages are firstly to be pleaded and thereafter to be proved by leading reliable, trustworthy and cogent evidence---Damages cannot be awarded on expectation or on hearsay evidence.

Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore PLD 1996 SC 737 rel.

Muhammad Aqil and Amir Khosa for Plaintiff.

Ms. Afsheen Aman for KDA assisted by Abid Hussain Zaidi, Additional Director Land, KDA and Imran Shah, Assistant Director Land, KDA and Ms. Falak Naz Fatima for Defendants.

P L D 2023 Sindh 214

Before Amjad Ali Sahito, J

RAJ RAM and another---Petitioners

Versus

SHIRMATI REETA and 4 others---Respondents

Constitutional Petition No. S-56 of 2020, decided on 1st December, 2022.

(a) Constitution of Pakistan---

----Arts. 35 & 37---Family life---Social justice---Scope---It is social justice and not legal justice, which is to be advanced---This is also the obligation of state and the Principles of Policy, as provided in the Constitution, which charges the Executive to advance social justice and eradicate evil and protect the weakest section of the society.

Sohail Muhammad Shees Farooq v. Mst. Minza Roomana and another 1998 MLD 1972 rel.

(b) Pakistan Bait-ul-Mal Act, 1991 (I of 1992)---

----S.4---Family Courts Act (XXXV of 1964), S. 5---Hindu Adoption and Maintenance Act (LXXVIII of 1956) [as applicable in India], S.21---Hindu personal law---Maintenance---Grandfather, responsibility of---Bait-ul-Mal, propose of---Jurisdiction---Petitioner was grandfather of respondents/minors who were children of his deceased son---Petitioner was aggrieved of judgment and decree passed by Trial Court directing petitioner to pay monthly maintenance allowance to the minors---Validity---It is the State who has to provide basic necessities of life such as food, clothing, housing, education and medical relief for all citizens, irrespective of their sex, caste, creed or race, who are permanently or temporarily unable to earn their livelihood on account of sickness or unemployment or circumstances beyond their control---State is to protect the family, mother and child and has to promote social and economic well-being of people---Government of Pakistan beside other departments established Pakistan Bait-ul-Mal for providing funds or assistance to destitute and needy widows, orphans, invalid, infirm and such other persons to save them from hardship, suffering and to enable them to lead a comfortable/honorable life in the society---High Court directed Pakistan Bait-ul-Mal to register respondent minors as regular beneficiaries from Pakistan Bait-ul-Mal and to pay Rupees 10,000/- to each minor on monthly basis without fail continuously till their marriage with increase of 10% annually, through their mother---Constitutional petition was allowed accordingly.

Mulchand v. Shrimati Indra and others PLD 1985 Kar. 362 ref.

Sarfraz Shahid (Sofia) and Makhdoom Tahir Abbas Shah for Petitioners.

Nadeem A. Khoso for Respondent No.1.

Munawar Ali Abbasi, Assistant Advocate General for Respondents Nos. 4 and 5 along with Shahzad Ahmed Kharal, Assistant Commissioner, Jacobabad.

P L D 2023 Sindh 221

Before Zulfiqar Ahmad Khan, J

HASHIM ALI RIZVI---Plaintiff

Versus

OWNERS OF THE VESSEL m.v. ECO EKRAM---Defendant

Admiralty Suit No. 37 of 2021, decided on 4th January, 2023.

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

----S. 4---Action in rem and action in personam---Distinction---Plaintiff under action in rem is allowed to commence proceeding by going after piece of property, the ship or the cargo or certain other associated property---It is not a proceeding against any one person or other, nor does it deal with this or that person's title to the thing---It is a legal device employed for satisfying, under conditions of seafaring life and exigencies of international maritime transactions and the claim of a person who has suffered damage or injury---Distinguishing feature of action in rem has always been ability of maritime claim to proceed against ship directly, which is regarded as defendant i.e., ship being personified---Action in personam is of the same nature as ordinarily common law action commences by summons served on a defendant which is a person, natural or juridical.

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

----S. 4---Recovery of wages---Sister-ship, recovery from---Action in rem---Plaintiff sought recovery of his wages from his employer company which owned defendant ship---Validity---Plaintiff served on a vessel owned by the same owner and defendant vessel was a sister ship---Claim of plaintiff against owner of the vessel (sister-ship vessel) praying for his unpaid wages was valid and tenable under Admiralty Jurisdiction of High Courts Ordinance, 1980---Defendant's witness himself did not dispute that 49 crew members filed admiralty suits against same vessel and all of those claimants were paid off---Plaintiff was entitled to recovery of his dues from defendant---Suit was decreed accordingly.

Abdus Samad Khan v. m.v. Al-Aida 1989 CLC 2168; C.V. Lemon Bay v. Sadruddin 2012 CLD 1319; Azhar Ahmad Khan v. M.V. Ashar PLD 1985 Quetta 278; 1990 MLD 1205 and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 rel.

Abdul Razzak for Plaintiff.

Agha Zafar Ahmed along with Adnan Ahmed for Defendant.

P L D 2023 Sindh 231

Before Adnan Iqbal Chaudhry, J

MUHAMMAD RAFIQUE AGHANI ---Appellant

Versus

MUHAMMAD ALI AGHANI and 2 others---Respondents

Second Civil Appeal No. S-07 of 2015, decided on 26th January, 2023.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance---Proof of execution of document required by law to be attested---Scope---Plaintiff assailed the concurrent dismissal of his suit for specific performance---Validity---Plaintiff had got examined only one of the two witnesses who had allegedly attested the execution of the sale agreement---Plaintiff had although argued that the other witness had passed away but no evidence was produced to this effect---Requirement of Art. 79 of the Qanun-e-Shahadat, 1984, was not met and consequently the plaintiff had not proved execution of the sale agreement---Alleged payment had not been proved independently---Suit land had been granted by the Government to respondent on harap basis, and it could not have been sold/transferred in any case---Impugned judgments and decrees did not suffer from any legal infirmity---Appeal was dismissed.

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

----Art. 79---Proof of execution of document required by law to be attested---Scope---Requirement of Art. 79 of the Qanun-e-Shahadat, 1984, is that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

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

----Arts. 79 & 129(g)---Proof of execution of document required by law to be attested---Withholding best evidence---Scope---Where mandatory requirement of Art. 79 of the Qanun-e-Shahadat, 1984, is not met by examining only one of the attesting witnesses, the Court may draw an adverse presumption under Illustration (g) of Art. 129 that had the second witness been called, he would not have supported the case of the plaintiff.

Farid Bakhsh v. Jind Wadda 2015 SCMR 1044 and Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241 ref.

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

----O. XLI, R. 31---Contents of judgment---Scope---Where the appellate court does not reverse the findings of the Trial Court, a decision on each issue may not be distinctly recorded as long as the provision of O. XLI, R. 31, C.P.C. is complied with in substance.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868 and Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 rel.

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

----O. XLI, R. 31---Contents of judgment---Scope---It is substantial compliance of O. XLI, R. 31, C.P.C., if the finding on a question of fact has been arrived on proper and legal evidence.

Roshi v. Fateh 1982 SCMR 542 and Zaitoon Bibi v. Dilawar Muhammad 2004 SCMR 877 rel.

Ghulam Dastagir A. Shahani for Appellant.

Tahir Abbas Shah for Respondents.

P L D 2023 Sindh 235

Before Salahuddin Panhwar, J

MUHAMMAD YOUNUS BILLOO---Appellants

Versus

Mrs. PIYARI SADIQ WAHAB and others---Respondents

Constitution Petition No. S-513 of 2019, decided on 18th December, 2020.

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

----S.2(e)---Agreement, interpretation of---Heading of agreement---Scope---It is not the heading or caption of an agreement which exclusively determines nature of contract but various clauses thereof are material in determining real nature of agreement.

PLD 2004 SC 860 rel.

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

----S.15---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment proceedings---Maintainability---Relationship of landlady and tenant---Specific performance of agreement to sell---Possession of premises---Part performance of agreement---Petitioner/tenant entered into agreement with respondent/landlady to purchase the demised premises---Respondent/landlady sought ejectment of petitioner/tenant on the plea of default in payment of monthly rent---Rent Controller and Lower Appellate Court concurrently passed eviction orders against petitioner/ tenant---Validity---Execution of 'sale agreement' was with consent of parties whereby both of them from their conduct proved termination of earlier rent agreement---Respondent/landlady herself accepted earlier paid advance monthly rent as part of sale consideration---Respondent/ landlady also received/accepted other amount as part of sale consideration---Such conduct and attitude of respondent/landlady affirmed execution of a valid sale agreement---Purchaser could only demand complete and perfect title in his favour by making final payment or least readiness of making such payment---High Court declared that possession of petitioner/tenant over premises was within the capacity of buyer and not that of 'tenant'---High Court set aside findings of two courts below regarding relationship of landlord and tenant between the parties as the same were not in accordance with law and ejectment application was dismissed---Constitutional petition was allowed, in circumstances.

Muhammad Yaseen Siddiqui v. Tahseen Jwaid Siddiqui 2003 MLD 319; Muhammad Maroof Ahsan v. Messrs Beach Developers through Partner 2011 MLD 36; PLD 1974 SC 139; 2019 CLC 1266; 2017 YLR 453; 2017 CLC Note 197; PLD 20004 Kar. 502; 2011 SCMR 320; 2006 SCMR 1068; 2019 YLR 1763; 2015 CLC 1451, 2013 YLR 2011; 2020 CLC 1599; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; 2011 MLD 45; Mst. Mobin Fatima v. Muhammad Yamin and 2 orders PLD 2006 SC 214 and Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Kar. 17 ref.

Farrukh Aziz Shaikh for Petitioner.

Ms. Maria Ahmed for Respondent No.1.

P L D 2023 Sindh 248

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

Mst. RAANA ALWI and another---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, EAST KARACHI and 8 others---Respondents

Constitution Petition No.D-5714 of 2022, decided on 3rd October, 2022.

Succession Act (XXXIX of 1925)---

----Ss. 383 & 384---Constitution of Pakistan, Art. 199---Constitutional petition---Revocation of Succession certificate---Forum---Dispute was with regard to revocation of succession certificate already issued---Validity---Recourse under S. 383 of Succession Act, 1925, was independent of an appeal which could otherwise be filed under S. 384 of Succession Act, 1925, against the grant or refusal of a certificate---Application for revocation would lie to the Court that made the grant and in the event such application was accepted and certificate was revoked, appeal would then also lie to High Court---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Rukhsana Kausar and another v. Additional District and Sessions Judge, Khanewal and 11 others 2000 CLC 585; Sh. Muhammad Mushtaq and others v. Public-at-large and others PLD 1994 Lah. 373; Najbuddin and others v. Sharfuddin and others 1989 MLD 2203; Petitioners v. Mansoor Ahmed 2000 CLC 585 and Bisesar Sheodayal Soonar v. Jairam Bariyar Soonar AIR 1940 Nagpur 162 distinguished.

P L D 2023 Sindh 251

Before Irfan Saadat Khan and Zulfiqar Ahmad Khan, JJ

MUHAMMAD AMIR---Petitioner

Versus

DEPARTMENT OF PLANT PROTECTION and 2 others---Respondents

Constitution Petition No. D-4335 of 2019, decided on 12th October, 2022.

(a) Pakistan Plant Quarantine Rules, 2019---

----Rr. 8, 44, 46 (4) & 56---Import Policy Order, 2022, Sr. No. 78, Pt-IV---Plant and Plant Products, import of---Necessary documents---Petitioner was auction purchaser of consignment of Dark Red Kidney Beans---Plant Protection Authorities declined to issue Plant Protection Release Order (PPRO) as petitioner did not have Phytosanitary Certificate issued by concerned authority of exporting country, resultantly the consignment could not be released from the port---Validity---Consignment of Red Kidney Beans could only have been imported under Sr. No. 78, Pt-IV titled Import of Plant and Plant Products of the Import Policy Order, 2022, along with (i) Valid Import Permit issued by DPP (ii) Phytosanitary Certificate from National Plant Protection Organization (NPPO) of country of origin and Phytosanitary Certificate for re-export if the country of export was other than the country of origin, and (iii) compliance with food safety requirements---In absence of such essential requisites, respondent authority could not be compelled to provide Plant Protection Release Order-PPRO, nor an order for conducting phytosanitary inspection of the consignment at such stage could be passed as it would frustrate the entire scheme of law posing serious bio hazards---Plant protection and phytosanitary laws, rules, conventions and guidelines were put into place globally to protect indigenous plants and crops from pests and diseases that could accompany plants and plant products imported into the country of import, which would have ultimate effect on public health and could danger the eco- balance---Such regime was to ensure local plants, flora and fauna's protection and aimed to save crops from pests and diseases---It was for such public purpose that stringent border controls were created and phytosanitary standards were made compulsory at the highest levels in World Trade Organization (WTO)---Only option available to custom authorities in respect of such phytosanitary-offensive consignment would be that such consignments was confiscated, destroyed, or returned to the port of origin at the expense of the importer---Such goods could never be permitted to be let out to reach national soil or waters, resultantly the exercise to have the goods auctioned was not only illegal but also without any application of sound mind exhibiting complete lack of coordination between different organs of Custom authorities---High Court directed Custom authorities to have the consignment returned to port of origin at the expense of importer or in alternate, to have complete consignment destroyed and return auction amounts submitted by petitioner to him along with all taxes paid by him in such pursuit---Constitutional petition was dismissed, in circumstances.

(b) Maxim---

----Quando aliquid prohibetur ex directo, prohibetur et per obliquum---Meaning---When anything is prohibited directly, it is prohibited also indirectly.

Pervez Iqbal and Ms. Falak Naz Fatima for Petitioner.

Rashid Arfi for Respondents Nos. 2 and 3/Customs Department.

G.M. Bhutto, D.A.G. and M. Ishaque Pirzada for Respondents.

Allah Ditta Abid, Plant Protection Adviser and Director General of Respondent No.1

P L D 2023 Sindh 263

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

FEROZ BARI---Petitioner

Versus

Syed AYAZ HUSSAIN and 3 others---Respondents

Constitution Petition No. D-8512 of 2019, decided on 6th March, 2023.

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

----S. 12---Civil Procedure Code (V of 1908), Ss. 12(2) & O. IX, R.13---Suit for specific performance of agreement to sell---Setting aside ex parte decree---Scope---Petitioner assailed the ex-parte judgment and decree passed by Trial Court whereby the respondent's suit for specific performance of oral agreement to sell was decreed---Validity---Respondent had placed reliance on a handwritten receipt issued by the petitioner while receiving part payment through cheque---Petitioner while denying any privity of contract and issuance of the receipt had claimed that it was a forged and fabricated document---However, he had not submitted any application challenging his alleged handwritten receipt---Nor had he even attempted to get framed an additional issue of referring the matter to handwriting expert during hearing of the application under S. 12(2), C.P.C. by the Trial Court---Nonetheless, the petitioner had admitted during evidence that he had issued a receipt in terms of the cheque to the respondent---Petitioner had not only en-cashed the cheque but had also issued the receipt, inter alia, undertaking to transfer the property---Petitioner had been playing hide and seek during the judicial proceedings as while answering the notices/letters of the housing society, he ignored the court summons/notices delivered through bailiff and courier inscribing the same Postal Address---Constitutional petition was dismissed.

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

----S. 12---Civil Procedure Code (V of 1908), S. 47---Suit for specific performance---Questions to be determined by the court executing decree---Relocation of suit property---Scope---Defendant in a suit for specific performance of agreement to sell objected to the execution proceedings on the ground that the suit property had been relocated by the housing society, as such, the Executing Court could not order for the transfer of relocated property to the plaintiff---Held; it was not the case of the defendant that the property did not exist at all or the number of the property (later adjusted with the relocated property) was incorrect---Technicalities of law could not obstruct the way of justice as the rules and procedure are framed to foster the cause of justice and not otherwise---Executing Court had the power to interpret the decree considering the judgment---Constitutional petition was dismissed.

Ayaz Ahmed Ansari for Petitioner.

Zeeshan Haider for Respondent No.1.

P L D 2023 Sindh 270

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

UNION FABRICS PRIVATE LIMITED and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Chairman, Economic Co-ordination Committee, Islamabad and others---Respondents

Constitution Petitions Nos. D-1676, D-1621, D-1675, D-1677, D-1693, D-1694, D-1697, D-1720, D-1724, D-1725 to D-1727, D-1730, D-1734, D-1751, D-1778, D-1830, D-1861, D-1862, D-1885, D-1891, D-1899, D-1926, D-1983, D-1988, D-2002, D-2004, D-2007, D-2051, D-2071, D-2073, D-2080, D-2112, D-2113, D-2128, D-2129, D-2156, D-2169, D-2154 and D-2220 of 2023, decided on 9th May, 2023.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy matter---Subsidy, with-drawal of---Petitioner companies were engaged in textile export and were aggrieved of withdrawal of subsidy in electricity tariff under ZRI Package---Validity---Federal Government in its decision mentioned that Federal Cabinet approved discontinuance of ZRI Package for supply of electricity to export oriented sectors---No mala fide was found on the part of Government---Subsidy was introduced by Government for export oriented textile sector and the same had been withdrawn in public interest---This was purely an administrative matter relating to policy decision of Government with which Superior Courts were always reluctant to interfere---Interest of public at large was to prevail over individual rights or interests---Subsidy was not a right but a benefit and could not be claimed as of right or as a fundamental right that could be agitated under Art. 199 of the Constitution---High Court declined to interfere in policy decision made by Federal Government---Constitutional petition was dismissed, in circumstances.

Pakistan through Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439; Pakistan through Secretary Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Shahnawaz (Pvt.) Ltd. through Director Finance v. Pakistan through Secretary Ministry of Finance Government of Pakistan Islamabad and another 2011 PTD 1558; Anwar Yahya and 3 others v. Federation of Pakistan through Secretary and 4 others 2017 PTD 1069; Uzma Manzoor and others v. Vice-Chancellor Khushal Khan Khattak University Karak and others 2022 SCMR 694; Inspector General of Police Quetta and another v. Fida Muhammad and others 2022 SCMR 1583; The State of Jharkhand and others v. Brahmputra Metallics Ltd. Ranchi and another Civil Appeals Nos.3860-3862 of 2020; Sapphire Textile Mills Limited v. Federation of Pakistan and others C.P. No. D-8233 of 2019; K-Electric Ltd. through its Chief Executive Officer and others v. Federation of Pakistan and others PLD 2023 SC 412; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Government of Khyber Pakhtunkhawa through Chief Secretary Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021 ref.

Mian Muhammad Afzal v. Province of Punjab and others 2004 SCMR 1570 and Messrs Bolan Steel Industries (Pvt.) Ltd. through Managing Director and others v. Water and Power Development Authority (WAPDA) through Chairman and others PLD 2014 Bal. 173 rel.

For Petitioners:

Taimur Ali Mirza and Ali Nawaz Khuhawar (in C. Ps.

Nos. D-1675, D-1676, D-1778, D-1730, D-1885, D-1926, D-2080 and 2220 of 2023).

Naeem Suleman and Arshad Hussain Shahzad (in C. Ps.

Nos.D-1621, D-1697, D-1725 and D-1983 of 2023).

Abdul Karim Khan and Zeeshan Naeem (in C.P. No.D-1677 of 2023)

Hamza Maqsood Habib (in C.Ps. Nos. D-1693, D-1694, D-1988 and D-2071 of 2023).

Qazi Umair Ali and Muhammad Imzimam Sharif (in C.Ps. Nos.D-1722 and D-1734 of 2023).

Ameen Bandukda (in C.Ps. Nos. D-1727, D-1830, D-2002 and D-2154 of 2023).

M.A. Rehman Khurram (in C.Ps. Nos. D-1861 and D-1862 of 2023).

Syed Mohsin Ali (in C.Ps. Nos. D-1720, D-1724, D-1899, D-2007 and D-2129 of 2023).

Ghulam Muhammad (in C.Ps. Nos. D-1727 and D-1830 of 2023).

Faiz Durrani, Gharib Shah, Ghulam Muhammad and Ms. Maryam Riaz (in C.P. No. D-1891 of 2023).

Saifullah Abbasi and Qamar Hussain (in C.P. No. D-2051 of 2023).

Ms. Sofia Saeed Shah, Umer Sikandar and Tasleem Hussain (in C.Ps. Nos. D-2128 and D-2169 of 2023).

Ms. Sadia Sumera (in C.P. No. D-2113 of 2023).

For Respondents:

Malik Sadaqat Khan, Addl. Attorney General, Pir Riaz Muhammad Shah and Khaliq Ahmed, DAGs and G.M. Bhutto, Asstt. Attorney General.

Syed Waqar-ul-Hassan, Special Secretary and Mehfooz Bhatti, Joint Secretary, Power Division, Islamabad.

Abid S. Zuberi, Ayan Mustafa Memon, Hasaan Qamar and Eesha Azmat for K-Electric.

Syed Moonis Abdullah Alvi, CEO (K-E).

Syed Irfan Ali Shah, Director Legal K.E.

Jam Mohsin Aftab, DGM (K-E).

Kashif Hanif and Sarmad Ali for NEPRA.

Syed Amir Ali Shah Jeelani along with Zahid Hussain Shoro, Law Officer of Respondent No.6 (in C.Ps. Nos. D-1675 and D-1676 of 2023)

P L D 2023 Sindh 278

Before Muhammad Shafi Siddiqui and Agha Faisal, JJ

Messrs TANDLIANWALA SUGAR MILLS LTD. through Senior General Manager Export---Petitioner

Versus

PROVINCE OF SINDH through Secretary Excise, Taxation and Narcotics and another---Respondents

C.Ps. Nos. D-1781 of 2015 along with C.Ps. Nos.D-3915, 3916, 3917, 3940, 3941, 3942, 3943, 3971, 3974, 3975, 4045, 4067, 4109, 4166, 4397, 4704 and 5124 of 2014 and C.P. No.D-3847 of 2021, decided on 12th April, 2023.

(a) Sindh Abkari Act (V of 1878)---

----Ss. 19, 19A & 35-A---Storage fee, levy of---Legality---Manner of levying duty---Power of Director General to frame rules---Scope---Petitioners challenged the imposition of a fee on the storage of "rectified spirit" in private bonded warehouses and questioned its validity---Impugned notification was based on the powers conferred by Ss. 19A & 35A of the Sindh Abkari Act, 1878---Section 19 emphasizes that an "excise duty" or "countervailing duty" may be imposed either generally or for any specified local area or excisable article---However, it does not mention any fee as a quid pro quo to legitimize the claim---Section 19 is completely silent regarding the levy of a storage fee---Section 19A is only relevant to the duties mentioned in the preceding section and pertains to the rules that may be framed to regulate the time, place, and manner of payment, which may be levied in one or more ways as described therein---When read in conjunction with S. 19, the provision of S. 19A does not directly apply to the subject levy (storage fee), rendering it erroneous---Section 35A(d) authorizes the prescription of the scale or rate of the fee or the manner in which it is to be paid, but it does not provide for the charge, levy, or imposition of the fee itself---Unless the parent statute explicitly allows for such a levy, subordinate legislation in the form of rules cannot legitimize it---Since the collection mechanism outlined in the purported notification goes beyond the comprehension of the main statute, it is deemed to be in conflict with the principal law---Therefore, the impugned notification, along with the accompanying gazette, is without jurisdiction and has no legal effect---Petitions were allowed as prayed.

Pakcom Limited v. Federation of Pakistan and others PLD 2011 SC 44; Collector of Customs v. Haji Mehmood Essa 2017 SCMR 884; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Pakistan Television v. CIT 2019 PTD 484; Pakistan Television v. Commissioner Inland Revenue 2017 SCMR 1136 and Indus Motor Company Ltd. v. Federation of Pakistan 2021 PTD 460 ref.

(b) Sindh Abkari Act (V of 1878)---

----S. 35A---Power of Director General to frame rules---Scope---Section 35A empowers the Director General to make rules in terms of mandate within the statute---Rules can never be framed to pierce the contour of the statue itself.

(c) Interpretation of statutes---

----Subordinate legislation---Rules made under a statute---Scope---Concept of subordinate legislation by way of rules is to toe the object of the main statute and not to collide with scheme of law---Subordinate rules can only function in conformity with the main statue in order to give effect to the statutory provisions.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630; Hirjina Salt Chemicals v. Union Council Gharo 1982 SCMR 522 and Sami Pharmaceutical (Pvt.) Ltd. v. Province of Sindh and others 2021 PTD 731 ref.

Muhammad Farogh Naseem and Muhammad Altaf for Petitioner.

Kafeel Ahmed Abbasi, Addl. Advocate General Sindh for Respondents.

P L D 2023 Sindh 282

Before Nadeem Akhtar, J

MUHAMMAD ZUBAIR---Petitioner

Versus

Mst. LUBNA IMRAN and others---Respondents

C.P. No. S-387 of 2020, decided on 4th May, 2023.

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

----S. 15---Eviction of tenant---Fixation of the case, for a particular purpose (of evidence etc.), by the Reader of the Court---Legality---Stage of raising question of law---Scope---Rent Controller was on leave on one of the dates of hearing ('date-in-question') of rent-case and the Reader of the Court gave next date of hearing of the case for cross-examination of the respondent/landlady and her witnesses---On next date of hearing, Rent Controller debarred the petitioner from cross-examination and subsequently passed eviction order---Appellate Court maintained the findings passed by the Rent Controller---Contention of the petitioner/tenant was that on date-in-question, the Reader of the Court could not give next date for particular purpose (of cross-examination); and that the respondent/landlady and her witnesses were not present on (next) date and he was debarred from cross-examining them---Respondent/landlady contended that the plea that Reader could not give next date of hearing could not be agitated before the High Court as the same plea had not be raised earlier before the Appellate Court---Validity---Diary-sheet of the present case revealed that on the date-in-question the Rent Controller was on leave when the case was adjourned to the next date for the cross-examination of the respondent/landlady---However, on next date, only the counsel of the respondent/landlady was present and she and her witnesses were absent so said absence became relevant as they (respondent, her counsel and her witnesses) were present on the immediately preceding two dates before date-in-question---Contention of the petitioner/tenant regarding absence of respondent/landlady and her witnesses was correct---Admittedly on date-in-question, the next date of hearing for the cross-examination (of respondent/land lady and her witnesses) was given by the Reader and not by the Rent Controller himself---Said next date could not to be treated/deemed as a date fixed by the Rent Controller for cross-examination---Reader of the Court was not competent to fix the case for hearing or evidence, and he (Reader) could only give the next date for further proceedings---Reader ought to have simply given the next date for further proceedings; and, on next date, the Rent Controller ought to have himself given the next date for cross-examination, instead of taking up the case for cross-examination and debarring the petitioner/tent from cross-examining respondent/ landlady---Thus, not only the order given on date-in-question but all the subsequent orders were void---Objection of the respondent/landlady that plea of Petitioner/tenant that Reader could not give next date of hearing could not be urged before High Court was not sustainable as a ground involving a question of law could be raised at any stage---Impugned judgment and order passed by both the Courts below were set-aside, in circumstances---High Court remanded the matter to the Rent Controller for decision afresh from the stage of affording the petitioner/tenant opportunity to cross-examine the respondent/landlady and her witnesses---Constitutional petition was allowed in circumstances.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092 and Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218 ref.

Nadir Khan Burdi for Petitioner.

Ali Ahmed Zaidi for Respondent No.1.

Naeem Suleman for Respondents Nos.2(c) to 2(g).

P L D 2023 Sindh 288

Before Zulfiqar Ali Sangi, J

MUHAMMAD BUX alias BABU and another---Applications

Versus

STATION HOUSE OFFICER, POLICE STATION MIRPUR MATHELO and 2 others---Respondents

Criminal Miscellaneous Application No. S-286 of 2021, decided on 23rd August, 2021.

Criminal Procedure Code (V of 1898)---

----Ss.154, 161, 22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of second FIR---Scope--- First Information Report was registered by the State through an Assistant Sub-Inspector against the son of respondent in respect of causing murder of his own sister in the name of honour---Trial was pending adjudication before the concerned court; however, Ex-officio Justice of Peace ordered for registration of second FIR in respect of the same incident---Respondent had approached the Ex-officio Justice of Peace for registration of FIR with the version that the present applicants had murdered his daughter, therefore, his statement may be recorded under S. 154, Cr.P.C.---Held; that the latter version was available with the respondent at the time when investigation was being conducted in the FIR; however, at that time he had not recorded his version before Investigating Officer---During the investigation conducted after registration of an FIR the Investigating Officer might record any number of versions of the same incident brought to his notice by different persons which versions were to be recorded by him under S. 161, Cr.P.C., in the same case---No separate FIR was to be recorded for any new version of the same incident---Order passed by Ex-officio Justice of Peace was set aside; however, it was left open to the respondent to approach the Investigating Officer for recording his statement under S. 161, Cr.P.C.

Sughran Bibi's case PLD 2018 SC 595 fol.

Alam Sher Bozdar for Applicants.

Gul Feroze Kalwar for Respondents.

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

P L D 2023 Sindh 293

Before Nadeem Akhtar and Zulfiqar Ali Sangi, JJ

HUSSAIN DAWOOD through Authorized representative---Appellant

Versus

Haji MAQBOOL AHMED and 8 others---Respondents

High Court Appeal No. 173 of 2022, decided on 4th May, 2023.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Necessary party---Scope---Addition of a person in a suit without hearing him---Scope---Application under O. I, R. 10 of Civil Procedure Code, 1908, was moved by the plaintiff contending that appellant be added as a defendant to the suit as he (appellant ) had allegedly purchased suit-property---Appellant opposed the application by rendering counter affidavit, however, Court accepted said application in the absence of appellant at the time of arguments---Held, that while making an order under sub-Rule (2) of R. 10 of O. I of Civil Procedure Code, 1908, the main criteria should be whether or not the presence of the person, who was seeking to be added as a party or whose addition was sought by any of the parties, was necessary to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely---Court, before adding any personas a party to suit, had to ensure that the suit could not proceed in his absence nor the question involved therein could be decided effectively and completely in his absence---Application under R. 10 of O. I of Civil Procedure Code, 1908 was allowed, in the present case, on the sole ground that the suit-property had been sold to him (appellant) by the defendant's mother, thus concluding him (appellant) as a necessary party---Said order was passed admittedly in the absence of the appellant, without affording him an opportunity of hearing---Court, in the impugned order, had not considered/decided the question as to whether the appellant was to be deemed as a necessary party by purchasing the suit-property when the suit was not pending whereas said point/question, inter alia, was specifically raised by the appellant in his counter affidavit---Addition of a person as a defendant in a suit, without his consent and despite his opposition, cast a heavy responsibility and duty upon him to defend the suit by going through the rigors of formal and lengthy court proceedings, by facing consequences of such proceedings and also by incurring heavy expenses---If appellant, had opposed his addition as a party to the proceedings, a fair opportunity of hearing should have been given to him---Fate of the application under R. 10 of O. I of Civil Procedure Code, 1908, ought to have been decided after hearing the appellant, especially when he was on notice and he had filed a detailed counter affidavit to oppose the said application---Impugned order passed by the Single Judge of the High Court was set aside and matter was remanded for decision afresh, in circumstances---Appeal was disposed of accordingly.

Arshad M. Tayebaly for Appellant.

Abdul Qadir Khan for Respondent No.1.

P L D 2023 Sindh 296

Before Zulfiqar Ahmad Khan, J

DOLLAR INDUSTRIES (PVT.) LIMITED through Authorized Signatory/Director and another---Plaintiffs

Versus

KAMRAN AKHLAQ---Defendant

Civil Suit No. 142 of 2012, decided on 15th September, 2022.

Copyright Ordinance (XXXIV of 1962)---

----Ss. 56, 60, 60A, 66 & 72---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Intellectual property---Infringement of copy right work---Plaintiffs claimed to be the first original creator, adopter, sole owner and exclusive right holder of a cartoon character named "Dollar Mascot" and its various forms and variation including colour scheme and artistic work which was duly registered under Copyright Ordinance, 1962---Plaintiffs alleged that defendant in order to deceive and cause confusion amongst the buyers displayed, uploaded and offered for sale the same cartoon character and its various forms/modes through an internet website---Validity---Offering independent protection to fictional characters would limit the pool of raw material and would do a great disservice to public---Main concern of copyright law was to promote progress of arts and at the same time to secure an everlasting source of revenue for the creator of a fictional characters---Defendant infringed copyrighted work of plaintiffs, as he took entire work from plaintiffs' platform and offered it for sale (or downloads) to third parties, not only infringing copyright but at the same time inducing dilution of plaintiffs' trademark rights in that character---Where a copyright in any way was infringed, its owner was entitled to all such remedies by way of injunction, damages and accounts--- Civil remedies for such infringement were provided in S. 60 of Copyright Ordinance, 1962, whereas S. 60A of Copyright Ordinance, 1962, offered special remedies to apply to a court for immediate relief, notwithstanding regular proceedings in the form of a suit or civil proceedings which were not initiated by then---Eventualities as to how a copyright work stood infringed were enumerated in S. 56 of Copyright Ordinance, 1962, while S. 66 of Copyright Ordinance, 1962, was responsible for punishment, and S. 72 of Copyright Ordinance, 1962, suggested procedure for criminal cases---Defendant left no stone unturned to infringe plaintiffs' copyrighted work and scheme of law fully supported the plaintiffs---Suit was decreed, in circumstances.

Nichols v. Universal Pictures Corp., 45 F.2d 119, 7 U.S.P.Q. 84 (2d Cir. 1930); 216 F.2d 945, 950 (9th Cir. 1954); Walt Disney Productions v. Air Pirates, 581 F.2d 751; Detective Comics, Inc., v. Bruns Publications, 111 F.2d 432; Copyrightability of Cartoon Characters by Cathy J. Lalor PTC Research; Foundation of the Franklin Pierce Law IDEA: The Journal of Law and Technology; 2003 CLD 1531; Ferozsons Pvt. Ltd. v. Dr. Col. Retd. K.U. Kureshi 2003 CLD 1052 and Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 ref.

Rafiq Ahmed Kalwar for Plaintiffs.

Nemo for Defendant.

P L D 2023 Sindh 306

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

SALMAN TALIBUDDIN and another---Petitioners

Versus

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

Constitutional Petitions Nos. D-7029 of 2021 and D-452 of 2022, decided on 7th April, 2023.

Import Policy Order, 2020---

----Cl. 21---Notification S.R.O. 833(I)/2018 dated 03-07-2018 ('the SRO')---Vintage or classic cars, import of---Exemption from import duty---Non-speaking order---Effect---Petitioners were aggrieved of decision of Federal Cabinet declining grant of a one-time relaxation/permit to petitioner for import of vintage cars in question---Customs Authorities intended to auction cars in question---Held, that for purpose of making a determination under Import Policy Order, 2020, in terms of judgment of High Court in earlier petitions, the Cabinet was required to exercise its discretion bonafidely, ascribing valid reasons and while attending to the matter before it upon considering all relevant factors and without being influenced by extraneous or irrelevant considerations---Process or decision falling short of reason was arbitrary or capricious---Decision of public authority/functionary that was bereft of reasons, or if made without considering relevant considerations or was based on irrelevant/ extraneous considerations, did not satisfy the test of reasonableness---Matter remained to be decided by the Cabinet in terms of earlier judgment of High Court, notwithstanding the subsequent rescission of the SRO on 07-03-2022, in as much as the case for clearance/release of the subject vehicles by petitioners and earlier determination on that score in prior petitions took place during its subsistence---Division Bench of High Court set aside decision of Federal Cabinet to the extent of vehicles in question---Division Bench of High Court remanded the matter for decision afresh through a speaking order on the basis of a proper summary to be prepared by the Ministry and placed before the Cabinet, incorporating relevant paragraphs of earlier judgment---High Court restrained the authorities from auction of subject vehicles which would remain in abeyance pending such determination---Constitutional petition was allowed accordingly.

Moin Jamal Abbasi v. Federation of Pakistan through Secretary and 2 others 2020 PTD 660 and Multiline Associates v Ardeshir Cowasjee 1995 SCMR 362 ref.

C.Ps. Nos. 1434 and 3911 of 2021; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 PLC (C.S.) 771; In re: Corruption in Hajj Arrangements 2010 PLD 2011 SC 963; Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817 and Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] 2 All ER 680 rel.

Maria Ahmed for Petitioners (in C. P. No. D-7029 of 2021).

Rashid Mureed for Petitioner (in C. P. No. D-452 of 2022).

Kazi Abdul Hameed Siddiqui, D.A.G. for Respondents.

Khalid Rajper for the Collectorate of Customs Appraisement (East), Karachi.

P L D 2023 Sindh 321

Before Nadeem Akhtar, J

Mst. NAZ BIBI through L.Rs. and others---Appellants

Versus

WAHID BUX through L.Rs. and others---Respondents

Second Appeal No. 85 of 2019, decided on 2nd August, 2021.

(a) Islamic law---

----Inheritance---Tarkah---Scope---Legal heirs of a deceased person can inherit only from the estate/tarkah of the deceased---Any property, right or benefit that does not form part of the estate/tarkah, is not inheritable.

(b) Islamic law---

----Inheritance---Tarkah---Scope---Only such property of the deceased person is inheritable and shall form part of his estate/tarkah that was in his ownership at the time of his death, or he had acquired an absolute right in law to claim it during his lifetime.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

(c) Islamic law---

----Inheritance---Tarkah---Nominee, entitlement of---Scope---Nominee is not entitled to exclusively claim or receive any property or benefit falling in the category of tarkah of the deceased; nomination does not confer any title in favour of the nominee; and, a nominee is merely a trustee and does not become the owner.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Lt. Muhammad Sohail Anjum Khan and others v. Abdul Rasheed Khan and others 2003 MLD 1095 ref.

(d) Islamic law---

----Inheritance---Tarkah---Service benefits---Scope---Benevolent fund does not fall within the definition of such property of a deceased employee that could be deemed to have been owned by him at the time of his death nor could he claim the same during his lifetime as a matter of right; such grant or donation is payable to the employee after his retirement from service or to his legal heirs upon his death---Forced deduction of certain amount from the salary of the employee as contribution/donation for such fund shall not change the above position as after contributing/donating the fund, such amount does not remain the property of the employee; thus, benevolent fund cannot be treated as tarkah---Said principle shall also apply to group insurance---Family pension and death gratuity, payable by the employer to the family members of its deceased employee as per the applicable service rules and regulations, are considered as grants/donations, and thus are not inheritable nor do they fall within the definition of tarkah.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

(e) Islamic law---

----Inheritance---Tarkah---Service benefits---Scope---Any service benefit that an employee is legally entitled to claim from his employer in his lifetime, or has become due and payable to him in his lifetime but has remained unpaid for any reason, shall be treated as his absolute right and thus shall form part of his tarkah and shall be inheritable, according to the personal law of the deceased employee, by all his legal heirs according to their respective shares---Whereas, a service benefit, that had not fallen due to the deceased employee in his lifetime, or is a kind of grant, donation, bounty, concession and/or compensation by the employer, the amount thereof payable after the death of the employee shall be distributed only to those members of his family who are entitled for the same as per the prevailing rules and regulations of service or under the relevant and applicable provision(s) of law---Discretion to make rules and regulations for payment of any grant, donation, bounty, concession or compensation to any particular member or class of members of the family of the deceased employee, vests solely with the employer, provided such rules and regulations must not be inconsistent with or contrary to Shariah or any law for the time being in force.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

(f) Islamic law---

----Inheritance---Tarkah---Service benefits---Scope---Service benefit falling under any of the categories of grant, donation, bounty, concession or compensation, payable after the death of the employee, shall not form part of his tarkah---Only such beneficiary(ies) or nominee(s) shall be entitled to receive the same who were made beneficiary(ies) or nominee(s) under the prevailing rules and regulations of service or under the relevant and applicable provision(s) of law; and, other legal heir(s) of the deceased employee, not being beneficiary(ies) or nominee(s) of such service benefits, shall not be entitled to claim any share therein.

Wafaqi Hakumut Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731 rel.

Arif Ali Bhatti for Appellants.

Muhammad Asif Zai for Respondent No.1.

Muhammad Ilyas Dars for Respondent No.2.

Muhammad Humayoon Khan, D.A.G. for Respondents Nos. 3 and 4.

P L D 2023 Sindh 328

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

INSTITUTE OF CHARTERED ACCOUNTANTS OF PAKISTAN through Secretary and 2 others---Appellants

Versus

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

Constitutional Petition No. D-4529 of 2015, decided on 11th November, 2022.

(a) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Regulation by Certification---Scope---Certification is a less intrusive and exhaustive form of regulation---It is a stamp of approval given to an individual for meeting pre-determined requirements, which may entail their entry to a sanctioned register---Certification is often associated with monopoly to use a specific title or professional designation and undertake occupational functions restricted to holders of that title or designation, but does not prevent other persons engaging in other aspects of particular occupation without using such title or enjoying privileges that it may confer---Certification protects members of public seeking particular professional services by signifying qualifications and competence of title/designation holders so that an informed decision may be made as to whether they are qualified to render the same.

(b) Constitution of Pakistan---

----Art. 18---Freedom of profession---Regulation by License---Scope---License is a more restrictive form of professional regulation, where profession is restricted, and it is legally forbidden to practice the profession unless specific requirements are met---Such system provides an occupational group with monopoly control over who can practice in a profession and restricts the profession to only those individuals who have met specific requirements and have been issued a "license" to practice.

(c) Chartered Accountants Ordinance (X of 1961)---

----Ss. 21 & 22---Cost and Management Accountants Act (XIV of 1966), Ss. 21 & 22---Constitution of Pakistan, Art. 18---Constitutional petition---Freedom of trade, business and profession---Alternate and efficacious remedy---Petitioners/Institutes were regulating education, training and certification of persons aspiring to those particular qualifications and accreditations under Chartered Accountants Ordinance, 1961 and Cost and Management Accountants Act, 1966---Petitioners/Institutes were aggrieved of respondent/Institute operating as a parallel institute---Plea raised by petitioners/Institutes was that respondent/institute was operating illegally---Validity--- Even if actions of respondent/Institute were offending Ss. 21 & 22 of Chartered Accountants Ordinance, 1961 and Ss.21 & 22 of Cost and Management Accountants Act, 1966, the statutes themselves provided relevant mechanism for appropriate proceedings to be initiated in that regard---Petitioners/Institutes could proceed accordingly in the manner envisaged---High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to afford any room for petitioners/Institutes to give vent to the grievance that was espoused---Constitutional petition was dismissed, in circumstances.

Zeeshan Khan and Jawwad Raza for Petitioners.

Kazi Abdul Hameed Siddiqui, D.A.G. for Respondent No.1.

Nemo for Respondent No.2.

Nemo for Respondent No.3.

Muhammad Shoaib and Afzal Hussain for Respondent No.4.

Intervenor : UAE Chapter and others

P L D 2023 Sindh 346

Before Irfan Saadat Khan and Mahmood A. Khan, JJ

BURSHANE LPG (PAKISTAN) LIMITED through duly Constituted Attorney and 3 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary/Chairman Revenue Division, Islamabad and 4 others---Respondents

Constitutional Petition No. D-5162 of 2020, decided on 20th June, 2022.

(a) Anti-Money Laundering Act (VII of 2010)---

----S. 20---Predicate offence---Jurisdiction---Where predicate offence has been committed or any property has been acquired etc. by way of proceeds of crime, the same is triable by Court as defined under S. 20 of Anti-Money Laundering Act, 2010.

(b) Anti-Money Laundering Act (VII of 2010)---

----Ss. 3, 4, 8, 20, 21, 22 & Sched. I---Income Tax Ordinance (XLIX of 2001), Ss. 192, 192-A & 203---Predicate offence, commission of---Jurisdiction of Trial Court---Determination---Petitioners were aggrieved of complaint filed by Income Tax Authorities under Ss. 192, 192-A & 203 of Income Tax Ordinance, 2001, read with Ss. 3, 4, 8, 20, 21 & 22 of Anti-Money Laundering Act, 2010---Petitioners assailed jurisdiction assumed by Trial Court under S. 20 of Anti-Money Laundering Act, 2010---Validity---It was only Anti-Money Laundering Court which had jurisdiction to deal with matters concerning any money laundering falling under definition of predicate offence or acquiring etc. of any property by way of proceeds of crime--- Such facts were yet to be determined, therefore, petitioners were at liberty to proceed the matter before Trial Court in accordance with law by furnishing their defence---In case petitioners were found innocent or not guilty they would be acquitted by concerned Court---High Court declined to interfere in the matter as there was no jurisdictional defect or wrongful assumption of jurisdiction by concerned Court so as to whittle down the proceedings emanating from the complaint---Constitutional petition was dismissed, in circumstances.

Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1; Govind Ram v. The Federation of Pakistan through Secretary Finance and 2 others 2022 PTD 634; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Land Acquisition Collector and 6 others v. Muhammad Nawaz and 6 others PLD 2010 SC 745; Messrs WAK Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (Now Commissioner Inland Revenue, LTU, Lahore) and others 2018 SCMR 1474; Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa through Senior Member Board of Revenue, KP and others 2019 PLC (C.S.) 1014; Waris MEAH's case PLD 1957 SC 157 and Muhammad Iqbal Khan Noori and another v. National Accountability Bureau NAB) and others PLD 2021 SC 916 distinguished.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55; Mir Shakil ur Rehman v. Messrs Creek Developers (Private) Limited and another PLD 2019 Sindh 670; Bashir Ahmed v. Zafar-ul -Islam and others PLD 2004 SC 298; President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260; Mohtarma Benazir Bhutto, M.N.A. and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447; Federation of Pakistan through General Manager/Operation Pakistan Railways, Headquarters Office, Lahore and others v. Shah Muhammad 2021 SCMR 1249; Shoaib Ahmed Shaikh and 2 others v. Federation of Pakistan through Secretary and others PLD 2016 Sindh 607 and Slackness in the progress of pending Enquiries relating to fake Bank Accounts and others 2018 SCMR 1851 ref.

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

----S. 154---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of FIR---Criminal issues---While exercising Constitutional jurisdiction, matters concerning quashing of FIR and criminal issues are usually not amenable before High Court.

Dr. Sikandar Ali Mohi ud Din v. Station House Officer and others 2021 SCMR 1486 rel.

Mushtaq Hussain Qazi for Petitioners Nos. 1 and 3.

Amer Raza Naqvi for Petitioners Nos. 2 and 4.

Kafeel Ahmed Abbasi, D.A.G. for Respondents Nos.1 and 2.

Sarfaraz Ali Metlo for Respondent No.3.

Ghulam Asghar Pathan for Respondents Nos.4 and 5.

P L D 2023 Sindh 367

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

AITBAR ALI alias BABLU---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. D-05 of 2021, decided on 26th October, 2021.

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

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possession of narcotic substances---Right of accused to have the recovered narcotics reweighed---Fair trial---Scope---Application was filed by the petitioner/accused, during the trial, to re-weigh the Charas allegedly recovered from him---Trial Court dismissed said application on the basis that the accused had denied the prosecution case and not owned/admitted the case-property---Validity---Accused had a right to a fair trial under Article 10-A of the Constitution; it was his right to move application for re-sending the case-property to the Chemical Examiner for re-examination---When an accused questioned weight of the very narcotic substance showed by the prosecution to have been recovered from him, the Court would be bound to resolve the same before proceeding further in the case---It was not necessary for the accused to admit the property first to gain a right of requesting for re-weighing etc.---Petitioner /accused was essentially challenging the prosecution case over weight of recovered Charas which needed to be resolved for fair dispensation of justice---Trial Court, in the present case, had erred in not appreciating the said aspect of the case---Accused who either had questioned validity of chemical report or weight of the alleged recovered narcotic substance would not be asked first to admit the prosecution case or own the property because if said logic was accepted, there would be no reason/need to either send the property for re-examination or re-weighing/re-measurement---High Court set-aside the impugned order being not sustainable in law and allowed the application of the petitioner/accused directing the Trial Court to re-weigh the Charas allegedly recovered from the accused in the presence of all the parties concerned---Criminal revision was allowed, in circumstances.

Ali Muhammad v. The State PLD 2010 SC 623 ref.

Ishrat Ali Lohar for Applicant.

P L D 2023 Sindh 369

Before Zafar Ahmed Rajput, J

HASCOL PETROLEUM LIMITED---Petitioner

Versus

IIIRD SENIOR CIVIL JUDGE/RENT CONTROLLER, KARACHI and another---Respondents

Constitutional Petition No. S-964 of 2021, decided on 20th April, 2022.

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

----S. 13---Arbitration Act (X of 1940), S. 34---Eviction of tenant---Power to stay legal proceedings where there is an arbitration agreement---Scope---Respondent sought eviction of petitioner---In response, the petitioner filed an application invoking S. 34 of the Arbitration Act, 1940, read with S. 94 of the C.P.C.---Application requested a stay on the rent case proceedings and an order referring the parties to arbitration in accordance with the Lease Deed---However, the Rent Controller dismissed the application---Validity---Specific nature of disputes to be referred to arbitration was outlined in Clause 11 of the Lease Deed---Said clause stipulated that any questions, differences, objections, or disputes relating to the Lease Deed or the rights, duties, or liabilities of either party would be referred to arbitration with the petitioner company's General Manager Retail---Nevertheless, the clause appeared to exclude disputes concerning arrears of rent between the parties from arbitration---Moreover, the petitioner's reliance on the Lease Deed was deemed inconsequential due to other clauses that governed the matter of recovery of arrears---Sindh Rented Premises Ordinance, 1979, prescribed a specific procedure for ejecting a tenant under S. 13, and it did not allow the Rent Controller to order or disallow eviction based on an arbitration award---Rent Controller, operating under the Sindh Rented Premises Ordinance, 1979, held a limited scope of inquiry to determine the existence of grounds for eviction---Arbitration was not contemplated within this limited jurisdiction---Additionally, as the Rent Controller was not a Civil Court, as such he lacked the authority to receive an award from an arbitrator and make it binding---Entire framework of the Sindh Rented Premises Ordinance, 1979, clearly intended to exclude the settlement of disputes between landlords and tenants through arbitration---Constitutional petition was dismissed.

Masood Hussain Anwar v. Sheikh Muhammad Amin 1982 CLC 1777 ref.

Ms. Amna Salman for Petitioner.

Respondent No. 1 in person.

Munim Masood for Respondent No. 2.

P L D 2023 Sindh 374

Before Muhammad Karim Khan Agha and Arshad Hussain Khan, JJ

MUHAMMAD IMRAN SAWATI---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Home Department and another---Respondents

Constitution Petition No. 7503 of 2022, decided on 16th December, 2022.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Word "satisfaction"---Scope---Arrest after acquittal---Petitioner was arrested by authorities under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, after he was released on his acquittal in a criminal trial---Validity---Keyword in S. 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960 was "satisfaction"---Authority had to satisfy that based on the material placed before it, the other consequences referred to in the order could flow---Standard must be high, as no person could be lightly deprived of his right to life and liberty, especially if they already spent nine years in jail and had been acquitted by appellate Court---At the time of issuing order in question Provincial Government did not lodge any appeal against acquittal before Supreme Court---Police acted malafidely in its overzealousness to appease public and media without giving sufficient weight to liberty of petitioner and others named in the order---Whole exercise leading up to issuance of order in question was a colorable exercise of authority by the executive---No reasonable person could have been satisfied on the material which was placed before the authority for issuing order in question---High Court struck down order of detention of petitioner as it was illegal and had been passed without lawful authority---Constitutional petition was allowed accordingly.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 rel.

Liaquat Ali v. Government of Sind through Secretary, Home Department and another PLD 1973 Kar. 78; Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538; Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary Home Department, Sindh Civil Secretariat, Karachi and another 1999 PCr.LJ 747; Government of Sindh and others v. Mst. Najma 2001 SCMR 8; Muhammad Nasim v. District Magistrate, Mansehra and 2 others 1997 MLD 1236; Muhammad Abdullah v. District Magistrate West, Karachi and others 1988 PCr.LJ 1087; Iffat Razi v. Government of Punjab and others PLD 2002 Lah. 194; Muhammad Shafi v. District Coordination Officer, Multan and 5 others 2011 PCr.LJ 1482; Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others 2016 PCr.LJ 424; Asad Khan v. Deputy Commissioner Manshera and others 2016 PCr.LJ 1502; Liaqat Ali Khan v. District Coordination Officer, Bahawalpur and 3 others PLD 2012 Lah. 335; Sheikh Rashid Ahmad v. D.M. Rawalpindi and others PLJ 2004 Lahore 1221; Azhar Abbas Haideri v. Government of the Punjab and others PLD 2022 Lah. 278; Behram v. Government of Balochistan through Chief Secretary and another 2020 YLR 1015; Ameer Hussain v. Government of Punjab and others PLD 2021 Lah. 699; Mst. Aziza Naeem v. State PLD 2021 Sindh 178 and Ahmed Omar Shaikh v. GOS 2022 YLR 217 ref.

Mehmood A. Qureshi and Jamshed Iqbal for Petitioner.

Barrister Zeeshan Adhi, Additional Advocate General Sindh for Respondents/State.

Ghulam Nabi Memon, IGP, Sindh, Saeed Ahmed Mangnajo, Home Secretary, Government of Sindh and Faisal Bashir Memon, SSP West, on Court Notice.

P L D 2023 Sindh 391

Before Zulfiqar Ahmad Khan, J

MUHAMMAD ANWAR---Plaintiff

Versus

PAKISTAN through Secretary to the Government of Pakistan Ministry of Finance, Islamabad and 6 others---Defendants

Suit No. 212 of 1984, decided on 9th June, 2022.

Income Tax Ordinance (XXXI of 1979)---

----S. 162---Damages, recovery of---Civil suit---Maintainability---Negligence of authorities---Quantum of loss, determination of---Mental shock, agony and torture---Proof---Plaintiff claimed that ship purchased by him for breaking sank near shore and 2100 metric tons of scrap remained under water and Income Tax Authorities/defendants restrained plaintiff from cutting, scrapping, removing and lifting that scrap from capsized ship, which resulted into loss---Authorities raised plea of bar of S. 162 Income Tax Ordinance, 1979, regarding maintainability of suit---Plaintiff claimed recovery of damages for the loss sustained by him---Validity---When certain actions of officials of Income Tax Department were called in question and they were found to be in excess of jurisdiction and tainted with malafide then bar contained in S. 162 of Income Tax Ordinance, 1979, was not attracted and suit was maintainable---For relief of damages as claimed by plaintiff, there was no hard and fast rule to calculate quantum of compensation, as well as there was also no yardstick to measure the sufferings---Plaintiff claimed damages on account of huge present and future economic loss and on account of undergoing irreversible phase of perpetual mental torture and loss of reputation---Mental shock, agony and torture implied a state of mind, which could be proved only by positive assertion of one who had experienced the same---Plaintiff claimed that owing to illegal act of authorities jointly and severally he suffered mental shock and agony but he could not produce any medical record to bolster/strengthen such contention---Plaintiff introduced on record that owing to acts of authorities whereby they directed plaintiff to stop work of breaking/cutting the vessel which he was legally entitled to perform, he suffered a lot and detailed out the same in his plaint---Quantum of damages would have been different if plaintiff had produced medical record in support of his claim of damages on account of mental torture---High Court awarded damages against officials of Income Tax department as their illegal acts tainted with mala fide and aggravated by their ex facie maladministration, were proved---Excessive use of lawful power was itself unlawful---Due to the actions of officials, plaintiff was prevented at least to a certain degree, from use and enjoyment of the vessel which he imported---High Court directed officials to pay the damages awarded against them jointly and severally, considering the principle of vicarious liability---Where government functionaries were guilty of committing illegality of such a degree, then they had to compensate the person wronged---Suit was decreed accordingly.

Amanullah Khan v. Mst. Akhtar Begum 1993 SCMR 504; Abbasia Cooperative Bank and another v. Hakeem Hafiz Muhammad Ghous and 5 others PLD 1997 SC 3; Al-Riaz Pvt. Ltd. v. Muhammad Ismail 2018 CLC 596; PLD 2021 Sindh 1 and 1996 CLC 627 rel.

Plaintiff present in person.

Nemo for Defendants.

P L D 2023 Sindh 400

Before Muhammad Shafi Siddiqui and Rashida Asad, JJ

MUHAMMAD AQEEL and 3 others---Appellant

Versus

FEDERATION OF PAKISTAN through Ministry of Defence and 11 others---Respondents

High Court Appeal No. 192 of 2022, decided on 27th June, 2022.

Civil Procedure Code (V of 1908)---

----S.151 & O.XXXIX, Rr. 1 & 2---Additional interim order---Scope---Post remand proceedings---Appellant was aggrieved of order passed by Judge in Chambers of High Court in post remand proceedings granting additional interim order restraining raising of further construction on suit land along with an earlier ad interim order restraining creation of no third party interest---Validity---Passing orders after hearing of an application did not mean that Judge in Chambers of High Court was not empowered to pass any interlocutory order keeping in mind the interest of parties---Interim orders could be passed on tentative or partly hearing the matter and Court could also make up a mind as to what interim order would be beneficial for the parties to a litigation during pendency of application and/or suit---After remand of the matter, Judge in Chambers of High Court partly heard application and had come to a tentative conclusion that as there were so many claimants of land in question and documents were yet to be filed, therefore, no individual should be allowed to carry on construction over the subject land---Disposal of earlier appeal by Division Bench of High Court did not have any bearing on the merits of injunction application which could be decided on its own merits keeping in view three ingredients i.e. [i] prima facie case [ii] balance of convenience and [iii] irreparable loss and injury---Earlier Division Bench of High Court passed an order of not creating third party interest but at the same time did not restrict powers of Judge in Chambers of High Court to pass any other order during pendency of an application or at the time of disposing of the application---Against an earlier order of status quo which was prevailing before dismissal of injunction application, no appeal was preferred by the appellants---Division Bench of High Court declined to interfere in order passed by Judge in Chambers of High Court at present point in time, more importantly when main application itself was pending and it is expected to be decided preferably in a shortest possible time in terms of observation of Division Bench of High Court in its earlier order---Intra Court Appeal was dismissed, in circumstances.

Kishore Kumar Khaitan and another v. Praveen Kumar Singh Case No. Appeal (Civil) 1101 of 2006 distinguished.

Zia-ul-Haq Makhdoom for Appellants.

Kafeel Ahmed Abbasi, D.A.G. for Respondent No.1.

Jawwad Ali Dero, Addl. A.G. for Respondent No.2.

Javed Ali Sangi for Respondent No.3/KDA.

Mrs. Rehmatunnisa for Respondent No.6.

Ali Nawaz Khuhawar for Respondent No.7.

Raheel Nafees Siddiqui, in person for Respondent No.10(ii).

P L D 2023 Sindh 405

Before Muhammad Faisal Kamal Alam, J

Shaikh KHALID SAFDAR and 4 others---Plaintiffs

Versus

ALI HUSSAIN and another---Respondents

Suit No. 341 of 2009, decided on 29th September, 2022.

Limitation Act (IX of 1908)---

----S. 3 & Art. 91---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Rejecting of plaint---Gift deed, assailing of---Limitation---Plaintiffs assailed gift deed executed by defendant/husband in favour of defendant/wife---Defendant/wife claimed that suit property was gifted to her vide registered instrument of Gift dated 31-01-1996 by defendant/husband and sought rejection of plaint on the plea of limitation---Validity---It is not necessary that question of limitation can only be determined after a trial but if limitation issue can be decided by looking at undisputed facts and record, then no evidence is required and application under O. VII, R. 11 C.P.C., can be decided---All ingredients of a valid gift were present, as defendant/husband who was the exclusive owner as donor had gifted suit property, which gift was accepted by defendant/wife as donee and the transaction was witnessed by one of the plaintiffs---Possession was also handed over by defendant/husband as donor to defendant/wife as donee---If plaintiffs were allowed to reside in suit property with them, then exclusive possession of suit property could not be considered with defendants from the beginning---Instrument of gift deed was a valid gift and not a void one, therefore, question of limitation had arisen and provision of Art. 91 of Limitation Act, 1908, was applicable---Suit was not filed within three years from the registration of gift deed but was filed after around thirteen years, therefore, claim of plaintiffs was hopelessly time barred---Plaint was rejected, in circumstances.

Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569; Mst. Parveen Raza Jadun through L.Rs. and others v. Bashir Ahmed Chandio and 5 others 2020 YLR 1506; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Sardar Arshid Hussain and others v. Mst. Zenat Un Nisa and another 2017 SCMR 608; Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; Khalid Hussain and others v, Nazir Ahmad and others 2021 SCMR 1986; Khushi Muhammad and others v, Noor Bibi and others 2005 YLR 2645 and Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 ref.

Agha Syed Mushtaque Ali Shah versus Bibi Gul Jan 2016 SCMR 910 rel.

Abdul Wajid Wyne and Waqas Wajid Wyne for Plaintiffs Nos.1 and 2.

None for Plaintiffs Nos.3 to 5.

Ghulam Rehman for Defendant No.1.

Nabeel Ahmed Khan for Defendant No.2.

P L D 2023 Sindh 411

Before Salahuddin Panhwar, J

MUHAMMAD SALIK ATHAR through Attorney---Petitioner

Versus

MUHAMMAD OBAID and 3 others---Respondents

Constitution Petition No. S-306 of 2023, decided on 14th April, 2023.

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

----S. 15---Constitution of Pakistan, Art. 199---Writ of certiorari---Scope---Eviction of tenant---Petitioner/tenant invoked constitutional jurisdiction of the High Court to assail concurrent findings passed against him---Validity---High Court , normally, does not operate as a Court of appeal in rent matters, rather its jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice---Finality in rent hierarchy is attached to the Appellate Court, and when there are concurrent findings of both the rent authorities, the scope becomes rather tight---Present petition falls within writ of certiorari against the judgments passed by both the Courts below in rent jurisdiction, which cannot be disturbed until and unless it is proved that the same is result of mis-reading and non-reading of evidence---No illegality or infirmity was noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed in limine in circumstances.

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

----S.15---Eviction of tenant---Willful default in payment of rent---Bona fide personal need---Relationship of landlord and tenant, denial of---Sale-agreement---Goodwill/Pagri---Scope---Concurrent findings were passed against the tenant---Contention of the petitioner/tenant was that he was lawful purchaser/owner of the demised premises under sale-agreement having paid huge amount of sale-consideration to the respondent/landlord---Validity---Sale-agreement was not a title agreement but, at the most, a right to sue for such title or rights arising out of such agreement---Such rights never came to an end even if order of ejectment was recorded in Rent jurisdiction nor such order could legally cause any prejudice to legal entitlement of the purchaser if he would succeed in such lis---Attorney of the petitioner/tenant, however, had admitted that suit for specific performance filed by the petitioner against the respondent /landlord had been rejected by the Court of competent jurisdiction---Even contents of the sale-agreement mentioned that the payment was being made as part-payment towards "total goodwill sale amount" in respect of demised premises---Term 'goodwill' was not recognized under provisions of Sindh Rented Premises Ordinance, 1979 (' the Ordinance 1979'), however, the superior Courts had equated the same with term "Pagri"---Plea of tenant that he had paid goodwill for premises , in no manner, could succeed as a ground of defence when eviction of tenant was being sought by the landlord---Goodwill amount, if be presumed in the present case, was paid in respect of demised premises, even then it would not debar the respondent/landlord to seek eviction of the petitioner on the ground of personal bona fide need---Evidence of the respondent/landlord regarding his bona fide need remained unshaken---Such claim was not specifically denied by the petitioner/tenant---Mere bald denial of relationship, therefore, by the petitioner without any cogent evidence could not be given any weight---Default of even a day was sufficient to entitle the landlord for ejectment of tenant from the demised premises---No illegality or infirmity was noticed in the impugned judgments and orders passed by both the Courts below, constitutional petition was dismissed in limine, in circumstances.

Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Nargis Bano v. Rehman Bhai 1993 CLC 266; Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 and Mohammad Sharif v. Iftikhar Hussain Khan 1996 MLD 1505 ref.

Qazi Hifz-ur-Rehman for Petitioner.

Nemo for Respondents.

P L D 2023 Sindh 421

[Sindh]

Before Muhammad Shafi Siddiqui, J

The HUB POWER COMPANY LTD. and 2 others---Plaintiffs

Versus

CHINA POWER HUB GENERATION COMPANY (PRIVATE) LIMITED and 3 others---Defendants

Suit No. 1797 of 2022, decided on 7th December, 2022.

(a) Interpretation of document---

----Letter of credit---Principle of autonomy---Applicability---In Letter of Credit transaction, Principle of autonomy is a cardinal principle---Principle of autonomy governs international trade through commitments of financial institutions as undertaken---Such undertaking makes the documentary credit as a powerful tool in financing international trade---In contract between issuer Bank and beneficiary, the bank is obliged to pay the beneficiary if documents are presented for credit drawing, regardless of any dispute between the beneficiary and the applicant.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Encashing Standby Letter of Credit---Principle of autonomy---Plaintiff company was aggrieved by a call to encash Standby Letter of Credit (SBLC) by defendant company---Contention of plaintiff company was that the project was essentially completed in year 2019 when its commercial operation started and despite such fact the lenders refused to acknowledge date of completion of project and in consequence whereof plaintiff company was open to risk of encashment of subject SBLC---Validity---Principle of autonomy stemed from the fact that system of documentary credits in international trade was developed to give to seller on assurance that no sooner the holder of such credit documents presented the conforming documents, he would be paid before he parted with control of goods/services/performances, regardless of any dispute that one might have with the buyer regarding performance of contract---SBLC evolved as one of the kind of Letter of Credit and formed an independent guarantee such as performance bond/suretyship guarantee---If a document was labeled as standby and beneficiary presented it for encashment, it was unlikely that a judicial interference is made to investigate any extraneous facts, not in the court's jurisdiction---Rules in relation to independent guarantee were similar to those of commercial Letter of Credit---It was the autonomy of credit that governed events and governing principle was that independent guarantee just like commercial credit was an irrevocable undertaking of Bank and was to be dealt with independently under law--- High Court declined to grant interim injunction in favour of plaintiff company--- Application was dismissed, in circumstances.

EFU General Insurance Ltd v. Zhongxing Telecom Pakistan (Pvt.) Ltd and others 2022 SCMR 1994; BS Mount Sophia Pte Ltd. v. Join-Aim Pte Ltd. (2012) SGCA 28; State Life Insurance Corporation of Pakitan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Uzin Export v. Messrs M. Iftikhar 1993 SCMR 866; FAL Oil Company Ltd. v. Pakistan State Oil Company Ltd PLD 2014 Sindh 427; Mir Jeeand Badini v. Model Collectorate of Custom Appraisement and others 2020 PTD 213; Sazco (Pvt) Ltd v. Askari Commercial Bank Ltd. 2021 SCMR 558; Sambu Construction Co. Ltd v. Laraib Energy Ltd. 2021 CLC 1914; Wartsila Pakistan (Pvt.) Ltd. v. Gul Ahmed Energy Ltd. and another Order dated 28.3.2019 passed in Suit No.2349 of 2018; Allied Plastic Industries (Pvt.) Ltd. v. ICC Chemicacl Corporation 2020 CLD 720; SepcoIII Electric Constructions Co. Ltd. v. Federation of Pakistan PLD 2022 Lah. 628; Bharat Aluminum Co. v. Kaiser Aluminum Technical 2012 9 (SCC) 5252; Shipyard K. Damen International v. Karachi Shipyard Engineering 2003 CLD 1; Messrs EFU General Insurance Ltd v. Messrs Duty Free Shops Ltd 2013 CLD 1313; UCP 600 Article 14-A, corresponding provision of UCP 500 Article 13; United City Merchants (Investments) Ltd v. Royal Bank of Canada (1983) 1-AC 168 183 (Lord Diplock); United Trading Corporation SA v. Allied Arab Bank Ltd and others [1985] 2 Lloyd's Rep 554, 561; Bocotra Construction Pte Ltd v. A-G (No.2) (1995) 2SLR 733; GHL Pte Ltd v. Unit Track Building Construction Pte Ltd and another (1999) 4SLR 604 (16); Douphin Case (2000) 1 SLR 657 (4); Eltraco International (2000) 4SLR 290 (30); Bolivinter Oil SA v. Chase Manhattan Bank [1984] 1 All E.R. 351 by Sir John Donaldson, Master of Rolls; Edward Owen Engineering Ltd. v. Barclays Bank International Ltd [1978] 1 All E.R. 976 = [1977] 3 W.L.R. 764; R.D. Harbottle (Mercantile) Ltd v. National Westminister Bank Ltd [1977] 2 All E.R. 862 = [1977] 3 W.L.R. 752; Howe Richardson Scale Co. Ltd v. Polimex-Cekop and National Westminister Bank Ltd (June 23, 1977: Bar Library Transcript No.270), by Roskill Lj; Wartsila Pakistan (Pvt.) Ltd. v. Gul Ahmed Energy Ltd. and another (Unreported). Order dated 28.3.2019 passed in Suit No.2349 of 2018 and Bharat Aluminum Co. v. Kaiser Aluminum Technical [2012 (SCC) 552 Supreme Court of India] ref.

Rashid Anwar for Plaintiffs.

Zahid F. Ebrahim for Defendant No. 1.

Ch. Atif Rafiq for Defendants Nos. 2 and 3.

P L D 2023 Lahore 1

Before Shahid Karim, J

KAREEM NAWAZ and 4 others---Petitioners

Versus

DISTRICT COLLECTOR/DEPUTY COMMISSIONER MULTAN and 14 others---Respondents

W.P. No. 2576 of 2022, heard on 12th May, 2022.

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

----Ss. 17(1)(2) & 17(4)---Acquisition of land---Special powers in cases of urgency---Pre-condition---Words "in cases where in the opinion of the Commissioner the provisions of subsection (1) or subsection (2) are applicable"---Scope---Legislature requires Commissioner to form an opinion---Opinion must be expressed in writing and cannot be presumed to exist in the mind of Commissioner without finding expression in a written order.

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

----Ss. 4, 5, 5-A, 9(1), 17(1)(2) & 17(4)---Acquisition of land---Case of urgency--- Fundamental rights, violation of--- Petitioners assailed notifications whereby land in question was acquired treating the matter as case of urgency, without compliance of mandatory provisions of law---Validity---Provisions of Ss. 5 & 5-A of Land Acquisition Act, 1894, and all other provisions up till publication of notice under S. 9 of Land Acquisition Act, 1894, were to be complied with and carried out to full effect---Notification was to be issued under S. 5 of Land Acquisition Act, 1894, that land was needed for public purpose or company---Right of hearing under S. 5-A of Land Acquisition Act, 1894, was conferred on any person interested in any land which was notified under S. 5 of Land Acquisition Act, 1894 and to object to acquisition of land---Such right was fundamental to the process of acquisition and was inviolate even in case of urgency contemplated by S. 17(1) of Land Acquisition Act, 1894---Possession could only be taken after publication of notice mentioned in S. 9(1) of Land Acquisition Act, 1894---No such proceedings took place in the present case and requirements of S. 17(1) of Land Acquisition Act, 1894, had gone abegging---If such was the situation, then S. 17(4) of Land Acquisition Act, 1894 could not have come into play as the provision was subject to applicability of S. 17(1) & (2) of Land Acquisition Act, 1894---Such power was further subject to another important rider which was contained in proviso to S. 17(1) of Land Acquisition Act, 1894, which related to deposit by department of Government, the local authority or company for which land was being acquired to first deposit estimated cost of acquisition of such land as determined by Collector of the District---Notice mentioned in S. 9(1) of Land Acquisition Act, 1894 which was to be issued after compliance of Ss. 5 & 5-A of Land Acquisition Act, 1894 had already taken place---Such provisions were to be reconciled and read in harmony---Intention of such provisions was only be to dispense with normal procedure in case of emergency and to proceed to take possession, immediately---Only thing left then was giving of compensation---Act of Commissioner in the present case of issuing second notification under Ss. 17(4) & 6 of Land Acquisition Act, 1894, was null and without lawful authority---High Court struck down notifications under Ss. 4, 17(4) & 6 of Land Acquisition Act, 1894--- Constitutional petition was allowed, in circumstances.

Abul Ala Maudoodi's case PLD 1964 SC 673; Federation of Pakistan v. Muhammad Saifullah PLD 1989 SC 166 and Benazir Bhutto's case PLD 1998 SC 388 rel.

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

----S. 17(4)---Punjab Land Acquisition Rules, 1983, Rr. 10 & 11---Acquisition of land---Forming of opinion by Commissioner---Preserving agriculture economy---Scope---Before exercise of power under S. 17(4) of Land Acquisition Act, 1894, by Commissioner, he has to form opinion on the basis of material placed before him and duly considered by Commissioner at the time when he forms the opinion---Grounds and circumstances forming basis of opinion must have a direct nexus with exercise of power conferred under S. 17(4) of Land Acquisition Act, 1894 and must not be based on irrelevant considerations---Reading of R. 11 of Punjab Land Acquisition Rules, 1983, shows that Commissioner while forming opinion has to return a finding as to whether it would be proper to acquire a certain piece of land so as to minimize loss to agricultural economy---Special emphasis has been laid for preserving agricultural economy and while acquiring land special care has to be taken with regard to preservation of agricultural economy and public health---Such is the underlying theme of Rr. 10 & 11 of Punjab Land Acquisition Rules, 1983, and corresponding obligation is cast upon Commissioner of the Division while forming an opinion.

(d) Words and phrases---

----Urgency---Meaning---Urgency in common parlance, connotes taking of immediate steps.

Muhammad Sohail Iqbal Bhatti for Petitioners.

Mehar Zameer Hussain Sandhal, D.A.G. and Aziz ur Rehman Khan, Assistant Advocate General with Rana Riaz Ahmad, Naib Tehsildar for Respondents.

P L D 2023 Lahore 19

Before Tariq Saleem Sheikh, J

MUBARIK ALI alias MAKHAN---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 27557 of 2021, heard on 16th May, 2022.

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

----S. 401---Power to suspend or remit sentences---Compassionate release---Concept---Terminal illness---Scope.

Concept of "compassionate release" allows release of terminally ill and some other categories of very sick prisoners from custody before the completion of their sentence. It is based on the hypothesis that changes in the convict's health status may alter the justification for his imprisonment and completion of sentence.

Terminal illness is an illness or condition which cannot be cured and is likely to lead to someone's death. It is sometimes called a life-limiting illness.

Terminal illness is a medical term to describe an active and progressive illness that cannot be cured or adequately treated and that is reasonably expected to result in the death of the patient. It is also described as a malignant disease for which there is no cure and the prognosis is fatal.

Terminal illness is an irreversible illness that, without life-sustaining procedures, will result in death in the near future or a state of permanent unconsciousness from which recovery is unlikely. Some examples, among others, of terminal illness, may include advanced cancer, advanced heart disease, full blown AIDS etc.

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

----Ss. 401, 402, 402-A, 402-B, 402-C & 402-D---Power to suspend or remit sentence---Scope---Section 401(1), Cr.P.C., empowers the Provincial Government to conditionally or unconditionally suspend the execution of a convict's sentence or remit the same in whole or in part at any time---Section 402, Cr.P.C., explains that the Provincial Government is competent to commute any sentence without the convict's consent---Section 402-A, Cr.P.C., stipulates that, in case of a sentence of death, the President of Pakistan may also exercise such powers---Section 402-B, Cr.P.C., says that the Provincial Government shall not, except with the previous approval of the President, exercise the powers under Ss. 401 & 402, Cr.P.C., if the President has already granted pardon, reprieve, respite, remission, suspension or commutation of sentence under Art. 45 of the Constitution---Section 402-C, Cr.P.C. stipulates that the Provincial Government, the Federal Government or the President shall not, without the consent of the victim or his legal heirs, suspend, remit or commute the sentence passed under any of the sections in Chap. XVI of the P.P.C.---Section 402-D, Cr.P.C., bars the Provincial Government from granting any relief in rape cases.

(c) Constitution of Pakistan---

----Art. 45---President's power to grant pardon---Scope---Article 45 of the Constitution empowers the President to grant pardon, reprieve and respite, and remit, suspend or commute any sentence passed by any court, tribunal or authority.

Hakim Khan and 3 others v. Government of Pakistan through the Secretary Interior and others PLD 1992 SC 595; Mst. Sakina Bibi and 14 others v. Akram Beg and 7 others 1994 SCMR 1511; Shah Hussain v. The State PLD 2009 SC 460 and Abdul Malik and others v. The State and others PLD 2006 SC 365 ref.

Bhai Khan and others v. The State PLD 1992 SC 14 and Nazar Hussain and another v. The State PLD 2010 SC 1021 rel.

(d) Constitution of Pakistan---

----Art. 45---Criminal Procedure Code (V of 1898), S. 402-C---President's power to grant pardon---Remission or commutation of certain sentences not to be without consent---Scope---Authority granted to the President by Art. 45 of the Constitution is on a high pedestal---Such is separate from the Code of Criminal Procedure, 1898 and is not subject to its syncopation or that of the other subsidiary statutory or executive provision---Section 402-C, Cr.P.C., insofar as it clogs that authority is ultra vires the Constitution and has no force.

Hakim Khan and 3 others v. Government of Pakistan through the Secretary Interior and others PLD 1992 SC 595; Mst. Sakina Bibi and 14 others v. Akram Beg and 7 others 1994 SCMR 1511; Shah Hussain v. The State PLD 2009 SC 460 and Abdul Malik and others v. The State and others PLD 2006 SC 365 ref.

Bhai Khan and others v. The State PLD 1992 SC 14 and Nazar Hussain and another v. The State PLD 2010 SC 1021 rel.

(e) Constitution of Pakistan---

----Arts. 45 & 9---Criminal Procedure Code (V of 1898), S. 402-B---President's power to grant pardon---Security of person---Certain restrictions on the exercise of powers by Provincial Government---Scope---Article 9 of the Constitution guarantees the right of life---Article includes the right to live with dignity and all that goes along with it---Convicts and prisoners are not denuded of their fundamental rights, including the right of life---Prisoners can be subjected only to such restrictions as are permitted by law---Every convict and under-trial prisoner has a fundamental right to be treated humanely and with dignity at all times, even when he is incarcerated for the most heinous offence---Convict must be protected against all types of cruelty---Prisoners suffering from a serious illness and those who are old and infirm have a right to be considered for premature release---Jail Superintendents are obligated to report such cases to the Inspector General of Prisons who should submit them to the Provincial Government for appropriate orders---In extreme cases where the Code of Criminal Procedure places an embargo on the Provincial Government (like offences under Chap. XVI of the P.P.C.), it may forward the case to the President with a request to consider it for remission or commutation of sentence under Art. 45 of the Constitution---Eligible convict may also approach President directly under Art. 45 of the Constitution for relief.

Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Nilabati Behera v. State of Orissa and others 1993 (2) SCC 746 fol.

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

----S. 2---Power of Government to release by license on conditions imposed by it---Scope---Good Conduct Prisoners' Probational Release Act, 1926, does not impose any condition that a prisoner who is suffering from a serious illness cannot be released on parole, as such, the Director General cannot give any instructions which limits the scope of the Act or otherwise conflicts with the Act.

(g) International law---

----International Human rights---Treaties ratified by Pakistan---Effect---General rule is that the provisions of a treaty are not automatically incorporated into the municipal law and a country's legislature must pass legislation to implement them---High Court observed that courts in Pakistan are required to interpret and apply every statute, so far as its language admits, in accordance with the principle of comity of nations and the recognized norms of international law, even in situations where no such law has been enacted.

Hanover Fire Insurance Company v. Messrs Muralidhar Banechand PLD 1958 SC 138; Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan and 3 others 1999 SCMR 1379; Human Rights Case No.29388-K of 2013 PLD 2014 SC 305; Najib Zarab Limited v. Government of Pakistan and 4 others PLD 1993 Kar. 93 and Khadim Hussain v. Secretary, Ministry of Human Rights, Islamabad, and others PLD 2020 Isl. 268 ref.

Imran Humayoun Cheema and Kh. Waseem Abbas for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General, with Dr. Muhammad Qadeer Alam, Assistant Inspector General (Judicial and Legal), Punjab Prisons, Lahore, and Muhammad Afsar Khan, Medical Officer, Central Jail, Lahore for Respondents Nos. 1 and 2.

Barrister Amar Saeed for Respondent No.3.

Nemo for Respondent No.4.

Dr. M. Aslam Khaki, Amicus curiae.

P L D 2023 Lahore 38

Before Ali Baqar Najafi, J

Syed SAJID HUSSAIN ABIDI---Petitioner

Versus

IRAM SHEHZADI ABIDI and others---Respondents

Writ Petition No. 9471 of 2017, decided on 11th May, 2022.

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

‎----S. 7---Family Courts Act (XXXV of 1964), Ss. 5, ‎‎ Sched. & 10---Suit for dissolution of marriage---‎Fiqah-e-Jafria--- Non-pronounce-ment of seegha---‎Effect---Petitioner assailed order passed by Family ‎Court whereby the marriage between the ‎petitioner and respondent was dissolved on the ‎basis of Khula in view of their statements ‎recorded on the same day---Contention of ‎petitioner was that according to Shia personal ‎law, the marriage could not be dissolved unless ‎the "Seeghajaat" were read in presence of the ‎parties wither by the husband or his representative/nominee/wakeel in presence of ‎respondent or her representative/nominee/wakeel---Validity---Shia male could always ‎pronounce divorce in accordance with Shia Law ‎which would be protected only by reading the "Seeghajaat" directly or through a representative/wakeel in the presence of female or her ‎representative/wakeel whereafter divorce could ‎become effective---Such exercise could be ‎undertaken in the present case even with ‎retrospective effect, if need be---Writ petition was ‎disposed of accordingly.

Naheed Fatima v. Syed Amir Azam Rizvi and others PLD 1987 Kar. 670; Mst. Sharifan v. Abdul Khaliq and another 1983 CLC 1296; Mst. Resham Bibi v. Muhammad Shafi PLD 1967 Azad J&K 32 and Mst. Maryam Bano v. Hussain Ali and another 1984 CLC 1961 ref.‎

Syed Ali Nawaz Shah Gardezi v. Lt.-Col. Muhammad Yousaf Khan, Commissioner, Quetta Division PLD 1962 (W.P.) Lah. 558; Syed Azharul Hussain Naqvi v. Hamida Bibi alias Eshrat Jahan and 3 others 1987 CLC 1041; The State v. Syedda Salma Begum and another PLD 1965 (W.P.) Kar. 185; Mst. Asmat Nigar v. Sayed Ibrar Hussain Shah and 2 others 2004 YLR 111; Syed Asad Raza Naqvi v. Mst. Saima Fatima and another 2014 MLD 254; Mst. Zeba v. Abdul Ali 2002 SCMR 1315 and Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 rel.‎

Fida Hussain Matta for Petitioner.

P L D 2023 Lahore 47

Before Jawad Hassan, J

HABIB BANK LIMITED---Petitioner

Versus

AYUB-UL-HASSAN KHOKHAR and others---Respondents

Writ Petition No. 36795 of 2019, heard on 14th November, 2022.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 24(1) & (2)---Sindh Rented Premises Ordinance (XVII of 1979), Ss. 8(1) & (2)---Rate of rent, determination of---Principle---Rent Controller under S. 8(1) & (2) of Sindh Rented Premises Ordinance, 1979, exercises his discretion in order to determine fair rent, which is premised on the factors which include rent of similar premises situated in similar circumstances in same or adjoining locality, rise in cost of construction and repair charges, annual value of premises etc.---Such factors can well be read so as to tentatively determine rate of rent or amount of rent as envisaged under Punjab Rented Premises Act, 2009.

State Life Insurance Corporation of Pakistan and another v. Messrs British Head and Footwear Stores and others 2018 SCMR 581; Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954; Tariq Ali Baqar v. New Goodwill Computers and others 2011 SCMR 554; Messrs Oceanic International (Pvt.) Limited v. Messrs Lalazar Enterprises (Pvt.) Limited and others 2010 SCMR 737; Messrs Victor Restaurant through Partners v. State Life Insurance Corporation of Pakistan and others 2010 SCMR 745; Muhammad Raheel Kamran v. 1st Additional District Judge, Karachi (East) and 2 others PLD 2022 Sindh 52; Habib Bank Limited v. Rais Ahmed Khan and 6 others PLD 2017 Sindh 542 and Syed Gulzar Ali Shah v. Additional District Judge and others 2014 CLC 929 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 24---Eviction of tenant---Default in payment of tentative rent fixed by Rent Tribunal ---Petitioner/tenant committed default in payment of tentative rent fixed by Rent Tribunal and eviction order was passed against it---Validity---Rate of rent was not denied by petitioner/tenant---Rent Tribunal rightly directed petitioner/tenant to deposit monthly rent on tentative basis in Court till 10th of each month by subjecting the said payment to adjustment at final stage in the rent dues payable towards it---Behavior of petitioner/tenant was irresponsible with regard to payment of tentative rent as directed by Rent Tribunal in its order---High Court declined to interfere in final ejectment order passed in terms of S.24 of Punjab Rented Premises Act, 2009, as it was justified---No illegality or perversity was found in ejectment order passed against petitioner/tenant---Constitutional petition was dismissed in circumstances.

Mian Umar Ikram-Ul-Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186; Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623; Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmed Khan and others 2012 SCMR 91; Mahboob Hussain Malik v. Additional District Judge Lahore 2013 YLR 473; Khalil Ahmed v. Additional District Judge and others 2013 CLC 258 and Muhammad Asad Malik v. Rent Controller, Bahawalpur and others 2012 CLC 888 rel.

Zia Ullah Shah v. Syed Riaz Ahmad 1981 SCMR 538; Abdul Latif and another v. Messrs Parmacie Plus 2019 SCMR 627 and Sheraz Pervaiz Mustafa v. The Special Judge (Rent), Lahore and others 2019 MLD 2095 ref.

Sardar Kalim Ilyas, Advocate Supreme Court assisted by Khurram Hussain for Petitioner.

Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza Naqvi for Respondents.

P L D 2023 Lahore 61

Before Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ

BANK ALFALAH LIMITED, LAHORE through Muhammad Rafiq and Syed Aqeel Abbas---Appellant

Versus

PUNJAB SMALL INDUSTRIES CORPORATION through Managing Director ---Respondent

Regular First Appeal No. 29881 of 2017, heard on 13th October, 2021.

(a) Interpretation of document---

----Terms for settlement of contract---Scope---When parties sign a document containing terms on which, both the parties agree, the invitation to treat or correspondence led parties to stage at which, they signed the contract, does not have precedent and the signed document is binding on the parties.

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

----S.62---Alteration and novation of contract---Difference---Difference existed between alteration and novation of contract in S. 62 of Contract Act, 1872---Novation is complete substitution of original contract with a new contract---Original contract remains no more in existence and parties are not required to perform that---Contrarily an alteration of a contract is variation, modification or change in one or more respects which introduces new elements into details of contract, cancels some of them but leaves the general purpose and effect undisturbed---Generally modifications are read into and become part of original contract---Original terms also continue to be part of the contract and are not rescinded and/or superseded except in so far as they are inconsistent with the modifications---Those of the original terms which cannot make sense when read with the alterations must be rejected.

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

----S. 62---"Alteration" and "recission" of contracts---Distinction---Alteration may produce two consequences, firstly, where modified contract possesses an independent contractual force, or enables the parties to sue upon second contract alone as if the original contract does not exist, it is deemed that the original contract is rescinded---Secondly, where modified contract does not possess any independent contractual force or does not enable the parties to sue upon modified arrangement, then modifications are read into and become part of original contract---Original terms also continue to be part of the contract and are not rescinded and/or superseded except in so far as they are inconsistent with the modifications.

Morris v. Baron and Company [1908] AC 1; Century Spinning and Manufacturing Co. Ltd. Bombay v. Motilal Dhariwal Son of Dulichand (Madhya Pradesh) AIR 1966 (M.P) 313; Chrisomar Corporation v. MJR Steels Private Limited 2017 (11) Scale 453; Juggilal Kamlapat v. N.V. Internationale Crediet-En-Handels Vereeninging 'Rotterdam' AIR 1955 (Calcutta) 65 and Makers Dev. Service Pvt. v. M. Visvesvaraya Industrial Research and Dev. (Bombay) 2008 (4) ALL MR 1 rel.

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

----Ss. 54 & 62---Civil Procedure Code (V of 1908), O.XXIII, R.1(3)---Suit for recovery of money---Reciprocal promises---Novation, recission and alteration---Performance of contact---Principle---Dispute was with regard to investment along with profit at market rate from date of maturity of Deposit Certificates---Trial Court decreed the suit in favour of respondent/plaintiff---Plea raised by appellant/Bank was that letter relied upon by respondent/plaintiff was not an offer rather it was a pre-contract and invitation to investment---Validity---When parties to a contract agreed to substitute a new contract in place of previous one, then performance of original contract was dispensed with---Where modified contract did not possess any independent contractual force then modified contract was read into the original contract except in so far the terms were inconsistence with the modifications---After compromise agreement, rules governing Profit and Loss Sharing Term Deposit were not applicable to the profit of 15% per annum on Deposit Certificates---No default of reciprocal obligations under the compromise agreement---Respondent/plaintiff was entitled for 15% profit regardless of terms given in Account Opening Form and certificates---Earlier suit filed by respondent/plaintiff was withdrawn without permission to file fresh suit, in that earlier suit, respondent/ plaintiff challenged various letters issued by appellant/Bank about revised rates, whereas subsequent suit was regarding recovery of profit amount, which was absolutely a different cause of action---Suit was not hit by O.XXIII, R.1(3), C.P.C.---Issues for which onus to prove was on appellant/Bank and no evidence was produced by appellant/Bank to support such issues, the same were lawfully decided by Trial Court against appellant/Bank---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed accordingly.

Executive Vice-President and others v. Brig. (Retd.) Mian Hameed-ud-Din 2010 CLD 823; Sheikh Inayat Ali v. National Bank of Pakistan and others 2007 CLD 99; Muhammad Javaid Anjum v. Industrial Development Bank of Pakistan 2004 CLD 520; Muhammad Afaz Shamsi and others v. National Accountability Bureau and others PLD 2001 Kar. 24; Mst. Waris Jan and others v. Liaqat Ali and others PLD 2019 Lah. 333; Messrs Digital Link and others v. Messrs Hangzhou Hikvision and others 2020 CLC 2108; Anson's Law of Contract; Treitel's the law of Contract; Cheshire and Fifoot's Law of Contract; Bank of India v. O.P. Swarnakar AIR 2003 (SC) 858; Ganeswar Biswal v. State of Orissa (Orissa) 2012 (109) AIC 893; Sri Gopal Chandra Jaiswal v. Messrs Birla Tyres, (Calcutta) 2017 (2) Cal. L.T. 303 and Carlill v. Carbolic Smoke Bali Company, (1893) 1 QB 256 ref.

Sui Southern Gas Company Limited v. Data Steel Pipe Industries (Pvt.) Limited and others 2021 CLC 892 rel.

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

----S.54---Reciprocal promises---Performance---Principle---When a contract consists of reciprocal promises such that one of them cannot be performed and the promisor of last mentioned fails to perform it, such promisor, not only cannot claim specific performance but must pay compensation for the resulting loss under the provision of S. 54 of Contract Act, 1872.

Syed Muhammad Saleem v. Ashfaq Ahmad Khan and others 1989 CLC 1883 and Pushkarnarayan.s.Masheswari v. Kubrabai Gulamamli (Bompany) 1969 (71) Bom. LR 769 rel.

Uzair Karamat Bhandari and Ms. Hoor-ul-Aien Asim for Appellant.

M. Irfan Khan Ghaznavi along with Umer Ishaque, Assistant Director (Legal) for Respondent.

P L D 2023 Lahore 81

Before Faisal Zaman Khan, J

WALI MUHAMMAD and another---Petitioners

Versus

SHAUKAT ALI and 7 others---Respondents

Writ Petition No. 226293 of 2018, heard on 31st January, 2022.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S.6---Written statement---Delay in filing written statement---Effect---Respondents filed a suit for partition wherein the petitioners filed a written statement after 30 days of their first appearance---Trial Court dismissed the respondents' application for striking off the defence of petitioners, however, Appellate Court accepted the same---Contention of petitioners was that since time was granted by the Trial Court for filing the written statement, thus the petitioners could not be penalized due to act of the Court---Validity---Mandate of S. 6 of Punjab Partition of Immovable Property Act, 2012, was very clear and unequivocal as a categoric duty had been cast upon the defendant with regard to filing the written statement within the stipulated time and the Court was not invested with the power to extend such period---Since the consequence of non-fulfilling the provision of law was also given thus the mandate of introducing such a penal provision would be frustrated if the argument was accepted---Constitutional petition was dismissed.

(b) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 6---Written statement---Delay in filing written statement---Mandatory provision---Scope---Section 6 of the Punjab Partition of Immovable Property Act, 2012, provides a period of 30 days to a defendant for filing the written statement which starts from the date of first appearance of defendant before the Court---Under subsection (2) of S. 6, penalty has been provided if the written statement is not filed within the stipulated time and in case of such default, the Court "shall" strike off the defence of the defendant as a consequence of which he shall also not be allowed to lead his evidence.

(c) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 6---Written statement---Delay in filing written statement---Mandatory provision---Scope---Use of word "shall" in S. 6 gives a clear indication that the provision is mandatory in nature and has to be adhered to by the courts in letter and spirit and no exception can be created.

Province of Punjab through Conservator of Forest, Faisalabad and others 2021 SCMR 328 and Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305 rel.

M. Mehmood Chaudhry for Petitioners.

Ch. Muhammad Arshad for Respondents Nos.1 to 3.

Nemo for Respondents Nos. 4 to 7.

P L D 2023 Lahore 86

Before Tariq Saleem Sheikh, J

ABID HUSSAIN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, EX-OFFICIO JUSTICE OF PEACE, SARGODHA and 5 others---Respondents

Transfer Application No. 62606 of 2021, decided on 11th October, 2021.

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

----Ss. 526, 22-A & 22-B---Powers of Ex-officio Justice of Peace---Transfer application---Scope---Petitioner through application under S.526, Cr.P.C. seeks transfer of case from Ex-officio Justice of Peace to another in the district---Section 22, Cr.P.C. empowers the Provincial Government to appoint one or more Justices of Peace for a local area and Ss. 22-A & 22-B describe their powers and duties respectively---Section 25 stipulates that by virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of Peace for their entire district of the province in which they are serving---Proceedings under Ss. 22-A & 22-B before the Sessions Judge or the Additional Sessions Judge do not become judicial merely because they are judges and exercise judicial power in other matters---One must look at the nature of the duty or work in which the officer concerned is engaged---In order that it may be judicial proceeding, he must act in a judicial capacity---Ex-office Justice of Peace is not a court within the meaning of S. 20, P.P.C., read with S.4(2), Cr.P.C.---Section 526, Cr.P.C., empowers the High Court to transfer cases pending before the criminal courts only---Petition for transfer of case from one Ex-officio Justice of Peace to another was dismissed.

Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 and Muhammad Ali v. Additional I. G., Faisalabad and others PLD 2014 SC 753 ref.

(b) Jurisdiction---

----Court should decide the issue of maintainability before taking any other steps in the proceedings.

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

----S. 526---High Court may transfer cases or itself try it---Scope---Section 526, Cr.P.C., empowers the High Court to transfer cases pending before the criminal courts only.

(d) Words and phrases---

----"Court"---Connotation.

Originally the term 'court' meant, among other things, the sovereign's place. In the legal context it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the Sovereign.

Halsbury's Laws of England, Fifth Edition, Vol. 24, p. 326 ref.

Court is an organ of the government consisting of one person or of several persons called upon and authorized to administer justice. Three elements are essential for the conception of court which include: (1) time when judicial functions may be exercised; (2) a place for the exercise of judicial functions; and (3) a person or persons exercising judicial functions.

Ballentine's Law Dictionary, Third Edition, p. 281 ref.

Unless a person or body of persons can pronounce an authoritative and binding judgment he or they cannot be reckoned as a court.

Brajnandan Sinha v. Jyoti Narain AIR 1956 SC 66 ref.

Cooper v. Wilson, (1937) 2 KB 309 rel.

Pendency of lis, duty to hear the parties and pronouncement of definitive judgment are essential attributes of court.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 and Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others PLD 1983 Quetta 52 ref.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

The determination of a dispute relating to a right or liability, the recording of evidence, including the right of cross-examination, a hearing of the arguments of the parties and reasoned judgment are essential attributes of a court of law. [p. 93] H

Allah Dino Khan Bhayo v. Election Commission of Pakistan and others PLD 2020 SC 591; Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service PLD 1958 SC (Pak) 437 and Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 ref.

Pronouncement of a definitive judgment is the sine qua non of a Court-a judgment which is delivered by the presiding officer acting judicially.

(e) Court---

----Criteria for determination of a court, detailed.

Criteria for determining whether a particular forum is a court: (1) the person or persons constituting such court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law; (2) such person or persons must derive the power of so deciding questions, from the State, and therefore will be exercising the judicial powers of the State; and (3) the appointment of the person or persons constituting a court should be by the Government; these persons should receive payment for their services exclusively out of the Government funds and they should not be liable to removal by any authority other than the Government.

Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak) 91 fol.

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

----Ss.6 & 4(1)(m)---Classes of criminal courts---Judicial proceedings---Scope---Section 6, Cr.P.C., stipulates that in addition to the High Court and the courts constituted under different laws for the time being in force, there shall be two classes of criminal courts in Pakistan, namely, the Courts of Sessions and the Courts of Magistrates---Latter have three classes---Code defines the expression "judicial proceeding" only in S. 4(1)(m), Cr.P.C. and states that it includes any proceeding in the course of which evidence as or may legally be taken on oath---The definitions of "Judge" and "Court of Justice" in Ss. 19 & 20 of Pakistan Penal Code, 1860, are incorporated in it by reference through S. 4(2), Cr.P.C.

(g) Words and phrases---

----"Judge"---"Court of Justice"---Distinction.

Terms "Judge" and "Court" are often used interchangeably but the distinction between them is subtle. Judge is an individual while the Court is the seat of justice as an institution. Generally speaking, a Judge is properly identified with the Court in relation to something done in exercise of the jurisdiction of the Court. Judge's personality otherwise remains distinct from the Court. As an individual he remains subject to the laws of the land like the rest of the citizenry, except when expressly exempted.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315 ref.

Arsalan Yousaf for Petitioner.

P L D 2023 Lahore 97

Before Jawad Hassan, J

Malik MEHBOOB---Petitioner

Versus

COMMISSIONER, RAWALPINDI and others---Respondents

Writ Petition No. 2353 of 2022, heard on 28th September, 2022.

(a) Punjab Civil Administration Act (III of 2017)---

----Ss. 15 & 19---Constitution of Pakistan, Art. 199---Constitutional petition---Revenue record, correction of---Powers of Deputy Commissioner---Scope---Petitioner filed application under S. 19 of Punjab Civil Administration Act, 2017 for conducting an inquiry regarding maladministration of Sub-Registrar/Revenue Functionary regarding irregularities in revenue record---Validity---Deputy Commissioner under S. 15 of Punjab Civil Administration Act, 2017 on his own or on the request of head of local government or head of district police could convene a meeting for purposes of maintaining public order and public safety and safeguarding public or private properties in the district---Provision of Ss. 15 & 19 of Punjab Civil Administration Act, 2017 were intertwined---Provision of S. 15 of Punjab Civil Administration Act, 2017 only dealt with safeguarding public or private properties and not declaration of title of any property---Intent of Legislature as depicted from Preamble of Punjab Civil Administration Act, 2017 was only to empower Deputy Commissioner to institute a comprehensive system of civil administration in Punjab for (i) efficient administration; (ii) improved service delivery; (iii) better coordination; (iv) supervision; and (v) regulatory enforcement---Provision of S. 15(2) of Punjab Civil Administration Act, 2017 could not be applied separately without fulfilling requirement of S.15 (1) of Punjab Civil Administration Act, 2017---Deputy Commissioner had no powers to go beyond his functions and was bound to fulfill requirements of Punjab Civil Administration Act, 2017---High Court declined to interfere in the matter as there was no illegality or irregularity in order in question---Constitutional petition was dismissed, in circumstances.

Tariq Iqbal Malik v. Messrs Multiplierz Group Pvt. Ltd. and 4 others 2022 CLD 468 rel.

(b) Interpretation of statutes---

----Preamble---Scope---Statute in general and subsection of a section are to be read together with the Preamble to understand true purpose and meaning of a particular provision.

Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; R. V. Venkataswami Naidu v. Narasram AIR 1966 SC 361; Tehsildar Singh v. State of U. P. AIR 1959 SC 1012; Gurmej Singh v. Partab Singh AIR 1960 SC 122; State of Bihar v. Hiralal AIR 1960 SC 47; Chenab Flour and General Mills and others v. Federation of Pakistan through Secretary Revenue Division and others PLD 2021 Lah. 343; ABWA Knowledge Pvt. Ltd. v. Federation of Pakistan and others PLD 2021 Lah. 436 and ABWA Knowledge Village Pvt. Ltd. through Director and another v. Federation of Pakistan, through Secretary, National Health Services and another 2021 MLD 1455 rel.

Riaz H. Rahi, Advocate Supreme Court for Petitioner.

Mirza Asif Abbas, Assistant Advocate-General with Saqib Manan, Commissioner, Rawalpindi, Hafiz Mohsin Ali Zafar, Law Officer and Zarina Siraj, Assistant Commissioner (Revenue), Rawalpindi for Respondents.

P L D 2023 Lahore 105

Before Muhammad Ameer Bhatti, C.J.

MUHAMMAD HAMZA SHAHBAZ SHARIF---Petitioner

Versus

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

Writ Petition No. 25671 of 2022, decided on 27th April, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---High Court, powers of---Administration of justice---High Court is custodian to protect, observe and defend the Constitution---High Court is in all respects justified to exercise powers provided under Art. 199 of the Constitution for supremacy of law as none whosoever highly placed is above law.

(b) Constitution of Pakistan---

----Arts. 199 & 255---Constitutional petition---Oath of office---Delay, causing of---Dispute was with regard to administering oath to newly elected Chief Minister as Governor was reluctant either to take oath himself nor had appointed some other person in such regard---Validity---All enabling provisions/Articles of the Constitution, suggested prompt formation of Governments, i.e. Provincial and Federal---For such matter, expeditious administration of oath either by the President or by Governor or their nominee, as the case could be, was mandatory---All expected reasons/options causing delay were excluded/procured by suggesting/providing alternate mechanism---Vacuum or space existed in the Constitution for causing any delay in administration of oath required under the Constitution---Province of Punjab was being operated without functional Government for the last 25- days since acceptance of resignation of the then Chief Minister---Oath of newly elected Chief Minister, Punjab was being delayed on one pretext or the other, which was not only against democratic norms but also against scheme of the Constitution---High Court suggested / advised / proposed that Governor would ensure completion of process of administration of oath of Chief Minister Punjab, either himself or through his nominee, in terms of Art. 255 of the Constitution, within two days---High Court suggested the President of Pakistan to play his role mandated by the Constitution/Law, ensuring a functional Provincial Government in Punjab, as he was also under Constitutional obligation to facilitate expeditious administration of oath of Prime Minister or Chief Minister in any Province---Constitutional petition was allowed accordingly.

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 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 rel.

Ashter Ausaf Ali, Senior Advocate Supreme Court, Khalid Ishaq (Advocate Supreme Court), Ch. Sultan Mehmood, Attaullah Tarar, Sardar Akbar Ali Dogar, Qamar Hayat, Zahir Abbas, Barrister Asad Rahim Khan, Nimra Arshad, Kashif Akbar Bandesha, Sardar Khalil Tahir Sandhu, Rana Afzal Razzaq, Atif Mohtashim Khan, Rana Muhammad Ashraf, Khawar Ikram Bhatti, Kh. Mohsin Abbas, Muhammad Asif Mehmood, Abid Hussain Sial, Wajahat Ali, Adeel Shahid Karim, Faizan Ahmed, Rahil Riaz, Danyal Akbar, Ahmed Saeed, Usman Nassir, Ali Javed Bajwa, Faiqa Dawood, Malik Muhammad Abbas Farooq, Raja Khurram Shahzad, Mian Imran Ali, M. Irfan-ul-Haq, Imtiaz Elahi, Muhammad Nasir Chohan, Sitar Sahil, Rafaqat Dogar, Khawaja Aurangzeb Alamgir, Malik Mohsin Ali Awan, Ch. Arshad Hussain, Ch. Waseem Ahsan, Syed Abbas, Ch. Sultan Mahmood, Samran Mushtaq Ch. and Ahmad Hassan Khan Shahani for Petitioners.

Ahmad Awais, Advocate General Punjab, Umair Khan Niazi, Anees Ali Hashmi, Fayyaz Ahmad Mehar and Mian Shakeel Ahmad, Additional Advocates General for Respondents.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for Respondents.

Mirza Nassar Ahmad, Additional Attorney General along with Tahir Mehmood Ahmad Khokhar, Deputy Attorney General for Respondents.

P L D 2023 Lahore 116

Before Shahid Karim, J

POSCO INTERNATIONAL CORPORATION through Authorised Officer--- Plaintiff

Versus

RIKANS INTERNATIONAL through Managing Partner/Director and 4 others--- Defendants

C.O.S. No. 53422 of 2020, decided on 26th May, 2022.

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

----Arts. II & V(1)(a) of Schedule---Terms "incapacity" and "parties to the agreement" ---Connotation---Term "incapacity" used in Art.V(1)(a) of Schedule to Recognition and Enforcement (Arbitration Agreements and foreign Arbitral Awards) Act, 2011, has a reference to capacity of parties to enter into a contract in the first place---Words "parties to the agreement" referred to in Article II of Schedule to Recognition and Enforcement (Arbitration Agreements and foreign Arbitral Awards) Act, 2011, are closely tied in with the words "under some incapacity".

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

----Art. V (1)(b) of Schedule---Terms "public policy"---Effect---Recognition and enforcement of an arbitral award may be refused if competent authority in the country finds that the award would be contrary to the public policy of that country---Term "public policy" has been subject of interpretation of Courts all around the world and still remains an extremely fluid term not capable of definite meaning---Concept of public policy gained wide-ranging and polycentric traction and scope of its application became broader---Same principles have been used interchangeably for both foreign and domestic awards losing sight of the purpose and intent in enacting law for enforcement of foreign awards to which different set of principles narrower in scope, must by applied---Such is necessary to maintain integrity of international commercial contracts and trust in Pakistani Courts to enforce foreign awards---Trust may be shaken irretrievably if Courts of Pakistan are to evince an anti-enforcement policy by seeking shelter in nebulous concept of "public policy".

Renusaghar Power Company Ltd. v. General Electric Company 1994 SCC Supl. (1) 644 and Associated Builders v. Delhi Development Authority 2014 (4) ARBLR 307 (SC) distinguished.

(c) Jurisprudence---

----Justice and morality---Scope---Justice or morality do not signify any concept of precision---Morality may fluctuate from one community to another and from one country to the other---Courts are not required to enforce moral standards but as Courts of law are merely concerned with enforcement of law enacted by Legislature.

(d) Arbitration---

----Agreement---Scope---Arbitration agreement not only imposes a "positive" obligation upon parties to proceed with a dispute but also creates negative undertaking for parties which obligates them not to bring any claims falling within the scope of arbitration agreement, in a forum other than arbitration.

AES [2013] 1 W.L.R. 1889 and West Tankers Inc. [2007] UKHL 4 ref.

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

----Ss. 3, 6 & Art. V (1)(a)(b) of Schedule---Foreign Arbitral Award---Recognition and enforcement---Challenge to award---Plea of "Public policy"---Applicability---Civil suit, pendency of---Effect---Applicant company sought recognition and enforcement of foreign arbitral award---Respondent company raised plea of pendency of civil suit before Civil Court in Pakistan---Validity---There was a need to fence the power so that opinion of Courts exuded deference to Legislative intent---Arbitral award was contrary to public policy, if it had offended a Constitutional mandate or was forbidden by law or would defeat provisions of any law---Such were the only grounds on which a public policy challenge could succeed---Multiplicity of proceedings, conflicting decisions (between Arbitral Tribunal and Courts in Pakistan) and futility were not grounds covered by the doctrine of public policy---High Court recognized the Foreign Award in question as a binding and enforceable award---High Court granted judgment in the amount represented in the Foreign Award and the same would be executed as a decree of High Court---High Court in terms of O. XXI, R. 10, C.P.C. converted the application into execution proceedings---Application was allowed accordingly.

Orient Power Company (Private) Ltd. through Authorized Officer v. Sui Northern Gas Pipelines Ltd. through Managing Director 2021 SCMR 1728 and Words and Phrases, Permanent Edition, 35A (2006) ref.

Mian Sami ud Din, Ali Uzair Bhendari and Ms. Fatima A. Malik for Plaintiffs.

Muhammad Ali Raza and Ms. Habiba Alvi for Respondent No.1.

Sardar Taimoor Aslam Khan for Respondent No.5.

P L D 2023 Lahore 136

Before Muhammad Ameer Bhatti, C.J.

MUHAMMAD HAMZA SHAHBAZ SHARIF---Petitioner

Versus

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

Writ Petition No. 24320 of 2022, heard on 22nd April, 2022.

Constitution of Pakistan---

----Arts. 104, 130(5) & 199---Constitutional petition---Oath of Chief Minister---Governor refusing to administer oath---Powers of the President of Pakistan---Dispute was with regard to refusal of Governor to administer oath to newly elected Chief Minister---Effect---Governor through Advocate General had categorically informed High Court regarding non-administering oath of newly elected Chief Minister for the reason to be recorded in letter addressed to the President of Pakistan---High Court directed its office to transmit its order through fax to office of the President for its placement before President of Pakistan for exercising power provided under Art. 104 of the Constitution, for nomination of another person, keeping in view the peculiar circumstances for administration of newly elected Chief Minister's oath---High Court expected that the President of Pakistan to exercise any option except to ask newly elected Chief Minister to assume office by administering oath promptly---Constitutional petition was disposed of accordingly.

Mustafa Impex's case PLD 2016 SC 808 ref.

Ashter Ausaf Ali, Khalid Ishaq, Sardar Akbar Ali Dogar, Kh. Mohsin Abbas, Malik Muhammad Abbas Farooq, Ahmad Saeed, Danyal Akber, Faizan Ahmad, Qamar Hayat, Adeel Shahid Karim, Mirza Waqas Baigh, Abid Sial, Ch. Sultan Mahmood, Zahir Abbas, Muhammad Arif Mehmood, Khalil Tahir Sandhu, Imtiaz Elahi, Muhammad Irfan-ul-Haq, Mian Imran Ali, Muhammad Nasir Chohan, Samran Mushtaq, Ch. Kh. Aurangzeb Alamgir, Khawar Ikram Bhatti, Rafaqat Dogar, Attahullah Tarar, Raja Zulqarnain, Malik Mohsin Sadiq Awan, Barrister Asad Rahim Khan, Kashif Akbar Bandesha and Nimra Arshad for Petitioners.

Ahmad Awais, Advocate General Punjab, Rai Shahid Saleem, Umair Khan Niazi, Khadim Hussain Qaiser and Anis Ali Hashmi Additional Advocates General for Respondents.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for Respondents.

P L D 2023 Lahore 139

Before Abid Hussain Chattha, J

MAHMOOD TEXTILE MILLS LIMITED through Technical Director Power of the Company---Petitioner

Versus

SUI-NORTHERN GAS PIPELINES, SNGPL through Managing Director, Lahore and 5 others---Respondents

Writ Petition No. 16225 of 2020, heard on 6th May, 2022.

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

----Ss. 6, 7(10) & 7(11)---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XVI, R. 1 [as amended by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018]---Billing dispute---List of witnesses---Amendment in law---Civil Procedure Code, 1908, provisions of---Applicability---Petitioner/plaintiff filed suit for declaration and injunction disputing bill issued by respondent/ Company---Grievance of petitioner/plaintiff was that Trial Court held that list of witnesses was not to be filed by respondent/company---Validity---Trial Court was bound to follow provisions of Civil Procedure Code, 1908, in all matters which were not expressly excluded through provision of special procedure in Gas (Theft Control and Recovery) Act, 2016---Where Gas (Theft Control and Recovery) Act, 2016 did not provide special procedure to do a particular thing in a particular manner, provisions of Civil Procedure Code, 1908 were applicable---Once Petition for Leave to Appear (PLA) was granted, it was treated as a written statement as envisioned by C.P.C.---Summary procedure regarding trial of the suit was converted into ordinary procedure requiring Trial Court to frame issues and record evidence as provided in C.P.C. and Qanun-e-Shahadat, 1984 subject to the provisions of Gas (Theft Control and Recovery) Act, 2016---After grant of PLA, unless defendant failed to fulfill condition attached to it, if any, the only concession provided to the parties to the suit was permission or facility to file affidavits in respect of examination-in-chief of their witnesses---Suit and application for permission to submit list of witnesses were filed on 29-11-2017 and 24-01-2020, respectively and order in question was passed on 03-11-2020 when the amendment by Lahore High Court, Notification No. 273/Legis/XI-Y-26 dated 15-08-2018 had come into effect on 01-11-2020---Amendment was in the form of substitution in O. XVI, R, 1, C.P.C. was procedural, beneficial and curative in nature which was enforced before decision of the application, therefore, substituted text of O.XVI, R.1, C.P.C. was applicable---Provisions of Civil Procedure Code, 1908 were applicable to a suit instituted under section 6 of Gas (Theft Control and Recovery) Act, 2016 in all matters, where provisions of Gas (Theft Control and Recovery) Act, 2016 did not prescribe a special procedure regarding any aspect of the trial---Respondent/company was required to submit list of witnesses as provision of O.XVI, R. 1, C.P.C. was applicable to suit under S. 6 of Gas (Theft Control and Recovery) Act, 2016---Non-submission of list of witnesses did not bar respondent/company to produce its own witnesses for recording of evidence and production of documents on the date fixed by Trial Court for recording of evidence---High Court declined to interfere in the order passed by Trial Court---Constitutional petition was dismissed, in circumstances.

PLD 2002 Pb. St. 122; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Amjad Khan v. Muhammad Irshad (deceased) through LRs. 2020 SCMR 2155; Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Noor Muhammad v. Additional District Judge, Chakwal and 7 others PLD 1994 Lah. 170 and Shumaila Mehmood v. Additional District Judge and 4 others 2020 CLC 10 rel.

Malik Muhammad Tariq Rajwana for Petitioner.

Rao Muhammad Iqbal for Respondents.

P L D 2023 Lahore 149

Before Ch. Muhammad Iqbal, J

Messrs GIBRALTAR (SMC-PVT.) LIMITED through Sole Director and CEO and another---Petitioners

Versus

Messrs SAMAD RUBBER WORKS (PVT.) LTD. through Director and 6 others---Respondents

Writ Petition No. 28102 of 2017, heard on 31st March, 2022.

Civil Procedure Code (V of 1908)---

----S. 24---High Court (Lahore) Rules and Orders, Vol. I, Chap. 13---Punjab Civil Courts Ordinance (II of 1962), S. 15---Transfer of suits---Power to distribute business---Scope---Grievance of the petitioner was that Civil Judge was not competent to entertain the suit under O. XXXVII, C.P.C. filed by respondent and instead of making reference to the District Judge, the Civil Judge should have returned the plaint to the respondent---Second objection of the petitioner was that the District Judge illegally entertained the reference and entrusted the case to an Additional District Judge---Validity---Under Chapter 13, Volume I of the High Court (Lahore) Rules and Orders, the Civil Courts were competent to make a reference of a case to superior authority for its entrustment to any other Court of competent jurisdiction---No illegality had been committed by the Civil Judge and further by way of these proceedings, no prejudice had being caused to the petitioner---District Judge under S. 15 of the Punjab Civil Courts Ordinance, 1962, was competent to entrust / distribute the cases among the Courts of competent jurisdiction---Under S. 24, C.P.C., the District Judge on the application of any of the parties and after notice to the parties or of his own motion, without such notice, could transfer any case or withdraw any case or appeal, etc pending before court subordinate to it---Constitutional petition was dismissed.

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 rel.

Messrs Sh. Siraj and Company and another v. Habib Bank Ltd., Lahore 1969 SCMR 784 ref.

Imran Khan Klair for Petitioners.

Hassan Fareed for Respondent No.2.

Muhammad Irshad Ali for Respondent No.3.

P L D 2023 Lahore 154

Before Abid Aziz Sheikh, Ch. Muhammad Iqbal, Tariq Saleem Sheikh, Muzamil Akhtar Shabir and Asim Hafeez, JJ

Chaudhary PARVEZ ELAHI---Petitioner

Versus

GOVERNOR PUNJAB and others---Respondents

Writ Petitions Nos. 82603 of 2022, decided on 12th January, 2023.

Constitution of Pakistan---

----Arts. 130(7) & 133---Rules of Procedure of Provincial Assembly of the Punjab, 1997, R. 22 (7)---Vote of confidence---Dissolution of assembly---Governor of Punjab exercising powers under Art. 130(7) of the Constitution required petitioner/Chief Minister to take vote of confidence and on his failure to do so, dissolved the Assembly---Petitioner was allowed to continue to perform functions under Art. 133 of the Constitution, till next Chief Minister was to take charge of the office---Subsequently petitioner/Chief Minister obtained vote of confidence from the Assembly---Validity---Order of Governor stood complied with by petitioner/Chief Minister and the Governor had affirmed his pleasure, who was not proceeding against the petitioner under Art. 130(7) of the Constitution---Petitioner/Chief Minister had taken vote of confidence successfully passing the floor test, which is required under Art. 130(7) of the Constitution---High Court declined to interfere in the matter as the petition had borne fruit---Constitutional petition was disposed of accordingly.

Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738 rel.

Barrister Syed Ali Zafar, Zahid Nawaz Cheema, Barrister Ahmad Asfand Yar Waheed, Ms. Fareeha Arif, Ms. Asna Ahsan, Ms. Sara Majeed, Abdullah Arif, Barrister Asfandyar Lodhi and Sikandar Sultan Chaudhry for Petitioner.

Amir Saeed Rawn, Imdad Hussain Chandio and Adam Saeed Rawn, for Petitioner.

Ch. Adnan Faiz Kalaar and Ch. Rizwan Kashif Kalaar for Petitioner.

Ms. Shamim Akhtar and Sheikh Zaheer Ahmad for Petitioner.

Ashhad Ali Azhar, Dr. Ali Qazil Bash, Ahmad Imran Ghazi, Munir Ahmad, Mian Shabir Asmail, Ms. Salma Riaz, Ms. Amna Liaqat and Barrister Nudra B Majeed for Petitioner.

Saqib Haroon Chishti for Petitioner.

Adnan Ramay for Petitioner.

Yasir Islam Chaudhary for Petitioner.

Hafiz Arslan Gujjar for Petitioner.

Mansoor Usman Awan, Khalid Ishaq, Ch. M. Jawad Yaqub, Barrister Hamza Shehram Sarwar, Haris Irfan, Faizan Ahmad, Ahmad Saeed, Abid Sial, Usman Nasir Awan, M. Zikria Sheikh, Khalil Tahir Sindhu, Mian Shahzaib Quddous, Asad Zaman Tarar and Kamal Ali Khan for Respondent No.1.

Mirza Nasar Ahmad, Addl. Attorney General, Muhammad Javed Awan, Addl. Attorney General, Syed Tanvir Ahmad Hashmi, Dy. Attorney General, Ch. Badar Munir Malik, Dy. Attorney General, Tahir Mehmood Khokhar, Dy. AG, Ahmad Raza Chattha, AAG-PK, M. Mansoor Ali Sial, AAG-PK, M. Hassam Kayani, AAG-PK and Usman Ghani, AAG-PK for Federation of Pakistan.

Ahmad Awais, Advocate General Punjab, Javed Awan, Addl. A.G-I, Tipu Salman, Addl. A.G., Zafar Zulqarnain Sahi, Addl. A.G., Hamid Shabir Azar, Addl. A.G, S.N. Khawar Khan, Addl. A.G., Fayyaz Ahmad Mehr, Addl. A.G, Mukhtar Ahmad Ranjha, Addl. A.G, Saqib Akram Gondal, Addl. A.G., Muhammad Barjees Tahir, A.A.G., Sardar Aqeel Ahmad Bhatti, A.A.G., Rai Shahid Saleem Khan, A.A.G., Muhammad Akbar Baba, A.A.G., Irfan Kalaar, A.A.G., Ch. Shahid Mahmood, A.A.G., Ch. Usman Ghani, A.A.G., Ch. Naseer Ahmad Gujjar, A.A.G., Ch. Muhammad Zain Qazi, A.A.G., Muhammad Anwar Khan, A.A.G., Mian Mian Swad Hanif, A.A.G. Punjab, Hanif, A.A.G., Ch. Muhammad Jehanzaib, A.A.G., Safdar Hayat Bosal, A.A.G., Mustafa Shaukat Imran Pasha, A.A.G., Kashif Bashir, A.A.G., Awais Ahsan Joyia, A.A.G., Rana Zain Tahir, A.A.G., Ch. Attique Zaman Wains, A.A.G., Barrister Tayeeb Jan, A.A.G., Barrister Shahayar Riaz, A.A.G. and Zakarya Yousaf Toor, A.A.G. for Respondent No.2.

Bilal Awais and Ms. Sidra Kanwal for Respondent.

P L D 2023 Lahore 157

Before Ahmad Nadeem Arshad, J

Mst. IQBAL BIBI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Revision No. 1620 of 2016, heard on 29th November, 2022.

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

----S.48---Law Reforms Ordinance (XII of 1972), Preamble---Limitation Act (IX of 1908), Art. 181---Execution of decree---Limitation period, computing of---Limitation for filing of an execution petition is not provided in limitation law---After enforcement of Law Reforms Ordinance, 1972 first application for execution of a decree is to be governed by residuary Art. 181 of Limitation Act, 1908, which provides period of 03 years and any subsequent application runs by limitation provided in S. 48, C.P.C. which prescribes period of six years---No other law is relevant or applicable in execution proceedings.

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

----S.12---Limitation Act (IX of 1908), Art. 181---Civil Procedure Code (V of 1908), Ss. 48 & 115---Suit for specific performance of agreement to sell---Execution of decree---Limitation---Possession with decree-holder---Petitioner/judgment-debtor was aggrieved of order passed by Lower Appellate Court declaring Execution petition filed by respondent/ decree-holder to be within limitation---Validity---Suit for specific performance was always suit for possession and as possession was already with respondent/decree-holder, therefore, she did not require to file execution petition for possession of decretal land---Performance of second part was upon petitioner/judgment-debtor and respondent /decree-holder could file execution petition on her refusal for execution of remaining part of decree---Lower Appellate Court rightly set-aside order passed by Executing Court---High Court in exercise of revisional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as petitioner/judgment-debtor failed to point out any illegality or irregularity in judgment of Lower Appellate Court---Revision was dismissed in circumstances.

Mst. Kaham Bibi Bibi through L.Rs v. Khushi Muhammad through L.Rs. 2007 SCMR 983; Mst, Budhan Bibi and 8 others v. Khushi Muhammad and 8 others 2010 YLR 1436; Atta Ullah and 2 others v. Akbar 2014 YLR 1034; Syed Hakeem Shah (deceased) through LRs and others v. Muhammad Idrees and others 2017 SCMR 316; Muhammad Baaz v. Halqa Putwari Muza Mathra, Peshwar and another 2021 CLC 689; Trustees of The Fort of Karachi v. Muhammad Saleem 1994 SCMR 2213; Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 ref.

Kanwar Sajid Ali for Petitioners.

Muhammad Nasir Javed Khan for Respondent No. 3(i).

P L D 2023 Lahore 164

Before Jawad Hassan, J

ZAFAR KHIZER---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 505 of 2022, decided on 11th October, 2022.

Constitution of Pakistan---

----Arts. 4, 9, 14, 25A, 35 & 38---Punjab Government Rules of Business 2011, R. 3(3) & Second Sched. ---Child citizen---Fundamental Rights---Right to nutritious food, right to proper development and right to education---Provincial Food and School Education Departments, powers of---Scope---Petitioner sought betterment of legislation on child citizens' fundamental rights, including right to life and dignity, right to proper growth and development through strict enforcement of their right to nutritious food and education---Held, that the Provincial Food and School Education Departments had the mandate under Second Schedule of the Punjab Government Rules of Business, 2011 to make proper policy/legislation on the issues raised by the petitioner---High Court disposed of the Constitutional petition with various directions to the respondents, including that they would (i) make proper legislation on the child citizens' fundamental rights in light of the relevant provisions of the (Federal) Rules of Business, 1973 and the Punjab Government Rules of Business, 2011, and if proper legislation already holds the field then ensure its enforcement; (ii) formulate a national policy on such rights under the Rules, after carefully going through the respective laws, by conducting surveys in the relevant fields and also taking steps for addressing the issue of malnourishment/ malnutrition in the child citizens; and then (iii) ensure implementation of the said policy in its true sense.

Muhammad Ahmad Pansota and others v. Federation of Pakistan and others PLD 2020 Lah. 229; Al-Bakoi International and others v. Federation of Pakistan and others PLD 2021 Lah. 1 and Muhammad Yousaf v. The Secretary Finance and others PLD 2021 Lah. 156 ref.

Barrister Muhammad Ahmad Pansota, Advocate Supreme Court for Petitioner along with Ms. Eamaan Noor Bandial and Ms. Noor Iman.

Muhammad Sajid Khan Tanoli, Deputy Attorney General along with Asif Ikram, Assistant Attorney General.

Mushtaq Ahmad Mohal, Additional Advocate General Punjab along with Mirza Asif Abbas and Waheed Asad Raja, Assistant Advocates General Punjab.

Muhammad Ikram Abbasi, Litigation Officer, CEO/DEA, Rawalpindi on behalf of Respondent No.5.

Akhtar Javaid, Secretary Law and Parliamentary Affairs, Punjab.

Waheed Akhtar, Superintendent O/O Deputy Director Food, Rawalpindi Division on behalf of Respondent No.11.

Muhammad Naveed Akhtar, Child Protection Officer, Child Protection and Welfare Bureau, Government of Punjab.

"In 1895 the London satirical magazine Punch published a famous cartoon in which a bishop says to a curate at breakfast, 'I'm afraid you've got a bad egg, Mr. Jones'. The curate replies, 'Oh no, my lord, I assure you that parts of it are excellent'."

SHORT ORDER

JAWAD HASSAN, J.---For detailed reasons to be recorded later on and subject to what is outset therein by way of amplification, today's short order is aimed at disposing the instant writ petition in terms elaborated herein below. The good news is that this Court appreciates the effort made by the Petitioner with regard to the betterment of legislation on Pakistani child citizens' fundamental rights, including right to life and dignity, right to proper growth and development through strict enforcement of their right to nutritious food and education. Whereas the bad news in one aspect, at least for the Petitioner, is that he, prior to knocking the door of this Court, has not approached the concerned governmental authorities for the enforcement of such fundamental rights under the relevant laws because in their report and para-wise comments, the answering Respondents have mentioned the proper legislation introduced by the legislator from time to time for the protection and expansion of said fundamental rights (of child citizens). This one aspect aside, it is a thoroughly good egg. The concept of "curate's egg" has been developed by the English Courts.

1. This constitutional petition has been filed by the Petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") for the protection of fundamental rights of child citizens of this country as enshrined in Chapters 1 and 2 (under Part-II) of the Constitution. The Petitioner has sought directions to both the Federal as well as the Provincial Governments to declare the fundamental rights of child citizens, including right to nutritious food, right to proper development (to maximize benefit from education) and right to education, as an unqualified right and to further expand the said rights in light of provisions of Articles 4, 9, 14, 25A and 38 of the Constitution. The first issue to be resolved by this Court is whether the word child citizen can be referred in the Constitution in light of different words used in the Constitution i.e. (a) citizen; (b) party; (c) person; and (d) individual in order to invoke such provisions. In this regard, stance of the learned counsel for the Petitioner is that the Constitution itself elucidates the word children under the newly added Article 25A, which specifies that free and compulsory education is fundamental right of all the children of the age of five to sixteen years. They further asserted that the word "children" is mentioned in Article 11(3) and also used in Article 25(3) while Article 35 of the Constitution protects the marriage, the family, the mother and the child, hence, the word child used in the Constitution can be stretched with the words citizen and person.

2. Barrister Muhammad Ahmad Pansota, ASC submitted that the Petitioner, being an overseas Pakistani, has done a lot of work through a non-profit organization for protection of child citizens' rights by providing free pre-schooling and primary education to over ten thousand children in about fifty centres set-up in underdeveloped areas of Bangladesh and Pakistan, and he has approached this Court to highlight the indifference, lassitude and inaction of the Respondents towards the Pakistani child citizens who are future of this country and deserve strict protection of their fundamental rights as guaranteed/protected under the Constitution and through this petition, he is seeking indulgence of the Court on the issue of proper legislation with regard to the enforcement of said fundamental rights. He further submitted that the Petitioner has invoked the constitutional jurisdiction of this Court, after passing of the landmark judgment on right to food in the case of Muhammad Ahmad Pansota and others v. Federation of Pakistan and others (PLD 2020 Lahore 229), just to maximize the potential of children as well as the youth through education due to the severe reluctance of and inaction on part of the Government to make legislation and manage child rights issues, including hunger and malnutrition in Pakistani children. He contended that in the aforesaid judgment, this Court has expanded the scope of right to life and right to food by discussing in detail the Islamic principles and moral standards derived from the Holy Quran and Sunnah in view of the importance of food and ramification of hunger and held that Islam imposes a duty on privileged Muslims to share their wealth and help the ones in need. In the said judgment, this Court has further elaborated the principles of policy as well as the purpose and intent of fundamental rights for which they have been framed, hence, to further develop the rights of Pakistani child citizens, the Petitioner has brought this matter before the Court. Ms. Eamaan Noor Bandial, Advocate further explained that Article 199 of the Constitution uses the word 'person', Article 4 of the Constitution defines the word 'citizen', while somewhere in the Constitution the word 'individual' is mentioned and they are all intertwined, hence, the term 'child citizens' falls within the framework of the Constitution. She next argued that Article 4 of the Constitution gives an inalienable right to every citizen which is defined under Article 260 of the Constitution and if it is read with the definitions referred above, the scope is large because the word 'party' is involved therein. She submitted that the issue in hand relates to the Federal as well the Provincial Government and legislative authorities of both the governments to first introduce laws under their respective Rules of Business and then to perform their statutory roles in administering the said laws, therefore, they are fully responsible for the protection of rights of Pakistani child citizens. Ms. Eamaan Noor Bandial, Advocate further submitted that the concept 'right to food' has been developed in the World Health Organization (the "WHO") which highlights the very aspect that the latest National Nutrition Survey (the "NNS"), conducted in 2011, shows the highest levels of child malnutrition in Pakistan as compared to other developing countries and also reports a global acute malnutrition (wasting) rate of 15.1% among children, which is higher than the 13% figure of the previous NNS 2001, conducted in Pakistan.

3. Ms. Eamaan Noor Bandial, Advocate argued that due to the prevailing condition of mortality, poor health, poor physical and cognitive development, poor school performance, reduced capacity to work even later in life, the Commission of Child Welfare and Development (the "CCWD") was established in 1980, under the Ministry of Human Rights, to protect the interest of children in accordance with law, however, no commendable efforts were made by the CCWD to review the enforcement of fundamental rights of the child citizens. She submitted that the reason to agitate the matter before this Court as a public interest litigation is the principles settled by this Court in Muhammad Ahmad Pansota Case (supra) as well as the judgments cited as Subay Khan v. Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253), Sheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664) and Muhammad Tahir Jamal, Advocate v. Government of the Punjab and others (PLD 2020 Lahore 407). She has also drawn attention towards the latest judgment passed by this Court in the case of Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346), in which the scope of right to life and right to dignity of man has been expanded under the provisions of Articles 9 and 14 of the Constitution. She further contended that the issue in hand also relates to right to education of child citizens, which will be badly affected if proper food is not provided to them, in line with the mechanism adopted in all other countries, as mentioned in this petition. She placed reliance on the recent judgment passed by this Court on right to education in the case of Al-Bakoi International and others v. Federation of Pakistan and others (PLD 2021 Lahore 1) wherein much emphasis has been laid down on the importance of education, by holding that "Education is the most essential instrument of change and can close the gap between rich and poor within a society. A quality public education for all can be a powerful engine for greater equality and can equip men and women - rich and poor alike - with equal voice and power." In this judgment, the Court has further observed that under Article 25-A of the Constitution it is sole and utmost responsibility of the State (the Federal and the Provincial Government) to secure fundamental right of education of all the children and also to promote the education and well-being. She added that under Article 35 of the Constitution the State is fully responsible to protect the marriage, the family and the child and scope of this Article has already been expanded by this Court in Sana Khursheed's Case (supra) by holding that "the State should undertake special legislative, administrative and judicial initiatives to ensure protection of the rights of women and children." It is to be noted that on intervention/directions of this Court in different cases, in the last four years, various laws (Acts, Ordinances and Policies) have been made by the legislator, after forming committees of experts from lawyers and other relevant fields, and subsequently, the said laws were also implemented by the executive. Details of which is mentioned in paragraph No.28 of the judgment passed in Sana Khursheed Case (supra) in the following manner:

| | | | | --- | --- | --- | | Sr. No. | Law/Legislation | Cases | | 1. | The Punjab Domestic Workers Act, 2019 | Subay Khan v. Sohail Shahzad Secretary Labour Govt. of Punjab and others (PLD 2019 Lahore 253) | | 2. | Punjab Food Authority (Disposal of Excess Food), Regulation, 2019 | Barrister Muhammad Ahmed Pansota v. Federation of Pakistan and others (PLD 2020 Lahore 229) | | 3. | Commercial Courts Ordinance, 2021 | M.C.R. (Pvt.) Ltd., franchisee of Pizza Hut v. Multan Development Authority and others (2021 CLD 639) | | 4. | The Punjab High Security Zones (Establishment) Act, 2020 | Mian Ali Asghar v. Government of the Punjab, and others (2020 CLC Lahore 157 = 2021 MLD 370) | | 5. | Urban Forest Policy | Sheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664) | | 6. | The Punjab Empowerment of Persons with Different Abilities Act, 2022 | Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346) |

1. Pursuant to the direction issued by this Court on 23.02.2022, Respondents Nos.1, 2, 3, 7 and 10 have submitted their report and para-wise comments by conceding the fact that there is need to further strengthen the scope of fundamental rights of child citizens of this country. They, while supporting the Petitioner's stance about protection and expansion of the fundamental rights of child citizens, have referred to various laws specifically, the legislation introduced by the legislative authorities of both the Federal and Provisional Governments on this issue, besides mentioning efforts being made by the relevant governmental departments to enforce provisions of the said laws.

2. Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs, Punjab, who is present in the Court today in another case, has put in appearance (on Court call) to render assistance in this matter as well and informed that he will look into the matter and examine the relevant laws/ policies and then suggest the relevant department for making laws/ policies, as and when required. It is to be noted that already a similar matter was taken up by Mrs. Justice Ayesha A. Malik (the then Judge of this Court now the Judge of the Hon'ble Supreme Court of Pakistan) on 15.10.2021 in Writ Petition No.33518/2015, in which the issue of nutritious food to every child under the age of ten especially poverty stricken children, was raised and specific direction was issued by this Court to the government to improve the nutrition of children under ten years of age and of expecting mothers by demonstrating various programs underway. Relevant part of the said order (from Paragraph-3) is reproduced hereunder:-

"After hearing the learned counsel for the parties and going through the reports filed by the Respondents, it appears that an effort is being made by the government on this issue which is a continuous effort to uplift the food and health of women and children. Given the interest of the Petitioner in this issue, it is best to pursue the matter at the policy level to ensure that efforts continue and to collect data on the subject. At this stage, as the government has admitted that efforts must be made to improve the nutrition of the children under ten years of age and of expecting mothers and have demonstrated the various programs underway, accordingly."

Pertinently, already directions have been issued by this Court in above said order and on confrontation, whether the same have been complied with or not, the Secretary Law and Parliamentary Affairs, Punjab stated that certain progress has been made however, he has assured that he will discuss the matter with the relevant authorities and also make hectic efforts for resolution of this issue on immediate basis.

1. Learned counsel for the Petitioner argued that the words 'person' and 'citizen' fall within the framework of the Constitution and pertinently this petition deals with the fundamental rights of child and children as the Constitution itself recognizes their rights under the principle of policy, Part-2, Chapter-I because the word 'children' is defined under Article 25-A and word 'child' is mentioned under Articles 11(3) and 35 of the Constitution therefore, the Respondents under their respective Rules of Business, if provided, can make legislation and prepare policy, if so advised. After 18th Amendment in the Constitution, this Court has discussed the role and functions of the Federal and Provincial Governments with respect to their respective rules of business in Muhammad Yousaf v. The Secretary Finance and others (PLD 2021 Lahore 156) by observing that:

"Primarily the governments in Pakistan are divided into "Federal Government" and "Provincial Government". The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Article 129 read with Article 137, and under Article 139 conduct of business is made along with Punjab Government Rules of Business, 2011. The law made by either Federal Government or Provincial Government originates through legislative procedure provided under Article 70 of the Constitution. After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakistan and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls within the ambit and purview of their executive authority and legislative competence.

P L D 2023 Lahore 171

Before Tariq Saleem Sheikh, J

GUL SHER---Petitioner

Versus

ADDITIONAL AND SESSIONS JUDGE/EX OFFICIO JUSTICE

OF PEACE, BHOWANA and 3 others---Respondents

Writ Petition No. 67567 of 2021, heard on 23rd February, 2022.

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

----S. 489-F---Contract Act (IX of 1872), S. 24---Dishonestly issuing a cheque---Agreements void, if considerations and objects unlawful in part---Scope---Petitioner gave a cheque as a guarantee to the effect that an accused in a murder trial would give the hand of his daughter in marriage to the victim party and in the event of default the petitioner would pay the amount mentioned in cheque as penalty---Accused refused to marry his daughter as per settlement and the cheque in question also bounced---Respondent moved an application before the Ex-officio Justice of Peace contending therein that the accused was liable to be prosecuted for an offence under S. 489-F, P.P.C. and the application was accepted---Held, that the compromise was effected in terms that the accused would marry his daughter in the victim party's family and the petitioner gave cheque as security for due performance of that agreement---Panchayat had, in fact, enforced the custom of vani/swara which was not only un-Islamic but also illegal---Compromise was void ab initio---So far as the cheque was concerned, it was also void under S. 24 of the Contract Act, 1872, because the consideration therefor was unlawful and against public policy---Respondent could neither sue the petitioner on the basis thereof nor invoke S. 489-F, P.P.C. for a criminal prosecution---Constitutional petition was accepted and the impugned order was set aside.

(b) Constitution of Pakistan---

----Arts. 25, 34, 36 & 37---Equality of citizens---Full participation of women in national life---Protection of minorities---Promotion of social justice and eradication of social evils---Scope---Constitution of Pakistan guarantees equal rights to women and prohibits any discrimination on the basis of sex---Principles of Policy obligate the State to take steps to ensure full participation of women in all spheres of national life and to protect the marriage, the family, the mother and the child and make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.

(c) Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Scope---Gender based violence impairs women's and girls' fundamental rights, particularly their right to life and dignity.

Atif Zareef and others v. The State PLD 2021 SC 550 rel.

(d) Constitution of Pakistan---

----Art. 8---Penal Code (XLV of 1860), S. 310-A---Laws inconsistent with or in derogation of Fundamental Rights to be void---Punishment for giving a female in marriage or otherwise in badle-e-sulh, wanni or swara---Scope---Article 8(1) of the Constitution mandates that all laws, customs and usages which are inconsistent with or in derogation of the Fundamental Rights are void---Custom of vani/swara falls within the mischief of Art. 8(1) and cannot, therefore, be practiced.

Mst. Sakeena Bibi and 2 others's case PLD 2022 FSC 57; National Commission on Status of Women and others v. Government of Pakistan and others PLD 2019 SC 218 and Muhammad Siddique v. The State PLD 2002 Lah. 444 rel.

(e) Constitution of Pakistan---

----Arts. 4, 8, 10A & 25---'Jirgas', 'panchayats' and 'council of elders'---Scope---Jirga or panchayat must operate within the law---Jirga cannot make any decision which is arbitrary, unjust, illegal or contrary to the fundamental rights guaranteed by the Constitution.

National Commission on Status of Women and others v. Government of Pakistan and others PLD 2019 SC 218 fol.

Hasnain Akhtar v. Justice of Peace 2015 YLR 2294 rel.

Malik Muhammad Sajjad Nawaz for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondents Nos.1 to 3.

Muhammad Sohail Khan Chadhar for Respondent No.4.

Date of hearing: 23rd February, 2022.

| | | | --- | --- | | | I represent Fatima Zehra, Maryam, Rabia Basri, I ensured your survival and your race's continuity Bore the burdens and hardships throughout. Yet I was treated as a merchandise, without doubt. O! Why weren't my rights recognized by others? O! Why wasn't I given the rights I deserved? - Saraiki poem from South Punjab1 |

JUDGMENT

TARIQ SALEEM SHEIKH, J.---On 02.04.2015 Faraz, the brother of Respondent No.4, was murdered in respect of which FIR No.168/2015 was registered against Nawaz son of Mahna at Police Station Bhowana. Nawaz was arrested and while he was in jail his family approached the village elders to help broker a compromise with the deceased's legal heirs. They convened a Panchayat which decided that Nawaz would give the hand of his daughter in marriage to the victim party and in the event of default the Petitioner would pay them Rs.10,00,000/- as penalty. Accordingly, the Petitioner gave Cheque No.1556117547 dated 26.09.2019 for the said sum to Respondent No.4. Subsequently Nawaz refused to marry his daughter as per settlement and the Cheque in question also bounced. On 02.10.2021 Respondent No.4 moved an application under section 22-A, Cr.P.C. before the Ex-officio Justice of Peace, Bhowana, contending that the Petitioner was liable to be prosecuted for an offence under section 489-F, P.P.C. (dishonestly issuing a cheque) and prayed that a direction be issued to the Respondent SHO for registration of FIR against him as it was a cognizable offence. The Ex-officio Justice of Peace accepted that application vide order dated 16.10.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged that order before this Court.

1. Heard. Record perused.

2. Article 1 of the Universal Declaration of Human Rights (UDHR) proclaims that all human beings are born free and equal in dignity and rights. Article 2 prohibits distinction in rights on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The UDHR together with the ICCPR2 and ICESCR3 are considered the International Bill of Human Rights. On 18 December 1979, the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to focus on all those areas in which women are denied equality with men. This Convention does not explicitly mention violence against women and girls but the CEDAW Committee4 held in General Recommendation No.19 that "gender-based violence (GBV) is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on the basis of equality with men so the definition of discrimination given in Article 1 of CEDAW includes GBV."5 The 1993 Declaration on the Elimination of Violence against Women (DEVAW) is the first international instrument which specifically addresses the issue of violence against women and provides a framework for national and international action.6 DEVAW was adopted without a vote by the UN General Assembly through Resolution 48/104 of 20 December 1993. Pakistan ratified CEDAW on 3 December 1996.

3. The 1993 World Conference on Human Rights recognized violence against women as a human rights violation and called for the appointment of a Special Rapporteur in the Vienna Declaration and Program of Action.7

4. Article 1 of DEVAW explains that "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. Article 2 adds that the aforementioned expression includes (but is not limited to) the following:

a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

1. The Constitution of Pakistan (1973) guarantees equal rights to women and prohibits any discrimination on the basis of sex (Article 25). The Principles of Policy obligate the State to take steps to ensure full participation of women in all spheres of national life (Article 34) and to protect the marriage, the family, the mother and the child (Article 36) and make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment [Article 37 (e)].

2. GBV impairs women's and girls' fundamental rights, particularly their rights to life and dignity. In Atif Zareef and others v. The State (PLD 2021 SC 550) the Hon'ble Supreme Court of Pakistan held:

"[A woman's] right to dignity under Article 14 of the Constitution is an absolute right and not subject to law. Dignity means human worth: simply put, every person matters. No life is dispensable, disposable or demeanable. Every person has the right to live, and the right to live means right to live with dignity. A person should live as 'person' and no less. Human dignity hovers over our laws like a guardian angel; it underlies every norm of a just legal system and provides an ultimate justification for every legal rule. Therefore, [the] right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable."

1. In various parts of Pakistan there is custom of vani or swara under which girls are given in marriage or servitude to an aggrieved family as compensation to end feuds, generally murder and rape. It is a punishment decided by a Jirga (council of tribal elders). The result of vani or swara is that the criminal "gets away with his crime and one or more girls have to pay the price of the crime for the rest of their lives."8 Such nefarious practices cannot be preserved even in the name of culture. In Cooper et al. v. Aaron 358 U.S. 1 (1958), Frankfurter J. said:

"Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law."

1. The custom of vani or swara is un-Islamic. In Surah Al-Fatir, Ayah 18, the Quran says:

"No bearer will bear the burden of any other person."

Similarly, Surah Al-Anaam, Ayah 164 says:

"And every soul earns not (blame) except against itself, and no bearer of burdens will bear the burden of another."

1. In Mst. Sakeena Bibi and 2 others (PLD 2022 FSC 57), relying upon the above-mentioned Quranic Verses and the Last Sermon and two other Ahadith (Traditions) of Holy Prophet Muhammad (peace be upon him), the Federal Shariat Court has also declared that vani and swara are un-Islamic. It ruled:

"This evil practice of forced marriages of girls in the name of compensation of murder, raping and settling of other disputes has been in prevalence in different parts of Pakistan by different names like vani, swara, sharam, khoon baha, sang chatti and karo-kari, etc. All such evil practices in which females are given in Nikah or otherwise to the victim party in the name of consideration for compromise or badal-i-sulh are un-Islamic and against the principles of Holy Quran and Sunnah."

1. Article 8(1) of the Constitution mandates that all laws, customs and usages which are inconsistent with or in derogation of the Fundamental Rights are void. The custom of vani / swara falls within the mischief of Article 8(1) and cannot, therefore, be practised. In National Commission on Status of Women and others v. Government of Pakistan and others (PLD 2019 SC 218) the Hon'ble Supreme Court held that "honour killings for retribution of the patriarchal concept of honour or compelling women to be wed without their consent as a means of settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the Constitution which enjoins that no custom in derogation of any fundamental right can prevail under the law." In Muhammad Siddique v. The State (PLD 2002 Lah. 444) a Division Bench of this Court held: "No tradition is sacred, no convention is indispensable and no precedent worth emulation if it does not stand the test of the fundamentals of a civil society generally expressed through law and the Constitution."

2. In view of the above, the Legislature has criminalized vani/swara through section 310-A, P.P.C. which reads as under:

310-A. Punishment for giving a female in marriage or otherwise in badla-e-sulh, wanni or swara. Whoever gives a female in marriage or otherwise compels her to enter into marriage, as badal-e-sulh, wanni, or swara or any other custom or practice under any name, in consideration of setting a civil dispute or a criminal liability, shall be punished with imprisonment of either description for a term which may extend to seven years but shall not be less than three years and shall also be liable to fine of five hundred thousand rupees.

1. Let's now come to the case at hand. A bare perusal of the application of Respondent No.4 under section 22-A Cr.P.C. shows that the compromise between the accused, Nawaz, and the legal heirs of Faraz deceased was brokered by a Panchayat. In National Commission on Status of Women and others v. Government of Pakistan and others (PLD 2019 SC 218) the apex Court held that the Jirga or Panchayat must operate within the law. It cannot make any decision which is arbitrary, unjust, illegal or contrary to the fundamental rights guaranteed by the Constitution. As regards the criminal cases, the Supreme Court approvingly cited the following excerpt from Hasnain Akhtar v. Justice of Peace (2015 YLR 2294):

P L D 2023 Lahore 179

Before Jawad Hassan, J

PAKISTAN TEHREEK-E-INSAAF through General Secretary and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos. 5851, 6118, 6093 and 6119 of 2023, decided on 10th February, 2023.

(a) Constitution of Pakistan---

----Arts. 105(3), 112, 218(3), 219(d), 220 & 224---Elections Act (XXXIII of 2017), Preamble---Elections of Provincial Assembly---Constitutional obligation of the Election Commission of Pakistan to announce date of elections under the doctrine of penumbra---Scope---On advice by the Chief Minister, the Governor abstained from exercising his constitutional powers to dissolve the Provincial Assembly, however, the Assembly stood dissolved by operation of law in terms of Article 105 of the Constitution---Although, Art. 224(2) read with Arts. 105 & 112 of the Constitution do not specifically mention the authority to declare a date of election in a Provincial Assembly in case it stands dissolved by operation of law but when Arts. 218(3), 219(d), 224(2) & 220 of the Constitution are considered together being connecting and relevant provisions, the obligation and duty of the Election Commission of Pakistan to declare the date of general election for the Province comes within the penumbra of these constitutional provisions and elections laws.

Without any shadow of doubt, 90 days' time is mandated in the Constitution for fixing/announcing the "date of election" of Provincial Assembly after its dissolution in terms of Article 105 and time frame provided under Articles 112 and 224(2) of the Constitution.

Under Article of 105(3) of the Constitution where the governor dissolves the Provincial Assembly he has to first give a date of holding general elections and then to appoint caretaker government. Perusal of Article 105 of the Constitution makes it quite clear that it covers two eventualities; the first eventuality deals with the situation where on the advice of the Chief Minister, the Governor exercises his constitutional power to dissolve the assembly while second eventuality deals with a situation where on such advice by the Chief Minister, the Governor abstains from exercising his constitutional powers and the assembly stands dissolved by operation of law. In the first eventuality, where the Governor uses his constitutional powers to dissolve the assembly, he is clearly bound under Article 105(3)(a) to appoint a date not later than ninety days from the date of dissolution, for the holding of general elections to the Assembly but Article 105 is silent and does not clearly specify as to who is the authority to declare the date of election in the second eventuality.

Election Commission of Pakistan ('ECP') is the ultimate authority to ensure the conduct of elections in accordance with law i.e. the provisions of the Constitution as well as the Elections Act, 2017 ('the Act'), and such authority is not limited to the election day or subsequent to it but also to all stages prior to it, while the election process starts with issuance of election program which in turn starts with the declaration of date of election.

Tariq Iqbal v. Election Commission of Pakistan and others PLD 2022 Lah. 607; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; PLD 2021 SC 480; Sheikh Rashid Ahmed v. Government of Punjab and others PLD 2010 SC 573 and Administrator Municipal Corporation, Peshawar and others v. Taimur Hussain Amin and others 2021 SCMR 714 ref.

Although, Article 224(2) read with Article 105 and 112 of the Constitution do not specifically mention the authority to declare a date of election in a provincial assembly in case it stands dissolved by operation of law but when Articles 218(3), 219(d), 224(2) and 220 of the Constitution are considered together being connecting and relevant provisions, the obligation and duty of the ECP to declare the date of general election for the Province comes within the penumbra of these constitutional provisions and elections laws.

High Court directed the ECP to immediately announce the date of election of the Provincial Assembly with the Notification specifying reasons, after consultation with the Governor, to ensure that the elections are held not later than ninety days as per the mandate of the Constitution. Constitutional petitions were allowed.

(b) Interpretation of Constitution---

----Doctrine of penumbra---Scope---Doctrine of penumbra refers to a legal principle that recognizes certain unenumerated rights and obligations as implicit in the guarantees of the Constitution which can also be termed as constitutional penumbras---Under this doctrine, a specific provision of a Constitution or a statute should not be read in isolation and it must be considered in the context of other relevant and connecting provisions of a constitution or a statute with underlying values and principles of the constitution as a whole---Doctrine of penumbra enables the Courts in interpreting various provisions of the constitution in order to enforce those rights and obligations which are explicitly mentioned in the text of a particular provision of the constitution or a law.

For Petitioners

Senator Barrister Syed Ali Zafar, Uzair Karamat Bhandari, Barrister Ahmad Pansota, Dr. Ali Qazilbash, Safdar Shaheen Pirzada, Advocates Supreme Court, Syed Mohammad Aslam Rizvi, Saad Ullah, Barrister Ahtasham Mukhtar, Imran Iqbal, Ahmad Abdul Rehman, Barrister Ahmad Asfandyar Waheed, Asna Ahsan, Sara Majeed, Fariha Arif, Sikandar Sultan Ch., Abdullah Arif, Muhammad Asfandyar Khan Lodhi, Rabbiya Ali, Mian Ihsan ul Haq Sajid.

Asad Umar, Fawad Ahmad Ch., Ahsan Khawar, Shibli Faraz, Omar Ayub, Major Sarwar, Riaz Fatyana, Mian Aslam Iqbal, Sibtain Khan and Ashraf Sohna.

Mohammad Azhar Siddique, Advocate Supreme Court with Ahmad Imran Ghazi, Ashad Azhar, Mian Shabbir Ismail, Irfan Mukhtar, Munir Ahmad, Salma Riaz and Amna Liaqat (in W.P. No.6118 of 2023).

Muhammad Nouman Shams (in W.P. No. 6093 of 2023) with Petitioner, Zaman Khan Vardag.

Ch. Shahid Iqbal (in W.P. No. 6119 of 2023).

For Respondents.

Muhammad Shahzad Shaukat with Muhammad Nasir Chohan, Rana Asadullah, Rana Mashood Ahmad, Advocates Supreme Court, Barrister Taha, Shaukat, Barkaat Asif, Muhammad Ahsan Nasrullah Dhillon, Saad Salman Parvez, Ali Raza Shah for the Respondent No.1.

Shezada Mazhar, Advocate Supreme Court with M. Jawwad Khan Lodhi, Asad Raza and M. Ahmad Khan Niazi along with Khurram Shahzad, A.D.G. Legal, Ch. Umar Hayat, Director Legal, Imran Arif Ranjha, Legal Advisor and Hafiz Adeel Ashraf, Assistant Law Officer for Election Commission of Pakistan.

Mirza Nasar Ahmad, Additional Attorney General with Nasir Javed Ghuman, Deputy Attorney General and Asad Abbas Dhother, Assistant Advocate General.

Zahid Zaman, Chief Secretary, Government of Punjab.

Dr. Usman Anwar, Inspector General of Police, Punjab.

Dr. Asim Murtaza Cheema, Civil Judge/Research Officer, Lahore High Court, Lahore.

Dates of hearing: 30th January, 3rd, 9th and 10th February, 2023.

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

P L D 2023 Lahore 193

Before Muhammad Ameer Bhatti, C.J.

MUHAMMAD HAMZA SHAHBAZ SHARIF---Petitioner

Versus

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

Writ Petitions Nos. 21710 and 21711 of 2022, decided on 13th April, 2022.

(a) Rules of Procedure of the Provincial Assembly of the Punjab, 1997---

----Rr. 17, 18, 20 & 25---Constitution of Pakistan, Arts. 53(3) & 130(3)---Deputy Speaker Provincial Assembly---Power to act as Speaker---Withdrawal of powers---Scope---Dispute was with regard to presiding over the session of Punjab Assembly by Deputy Speaker in which Speaker himself was contesting election of Chief Minister---Speaker withdrew powers of Deputy Speaker to act as Speaker so that he could not preside over the session---Validity---Speaker who was contesting election for the office of Chief Minister was unable to perform functions on the principle of propriety as well---By virtue of Art. 53 of Constitution, Deputy Speaker was rightly acting as a Speaker---When Art. 53 of the Constitution had entrusted all powers to Deputy Speaker in absence of Speaker, rules framed under the Constitution, which empowered Speaker to entrust his powers to Deputy Speaker by notifying it, did not mean absence of any such notification---By issuing any notification Speaker could not take away or curtail any power of Deputy Speaker to act as Speaker---Rules of Procedure of Provincial Assembly of the Punjab, 1997 were subservient to the Constitution---When Constitutional provisions itself entrusted all powers of Speaker to Deputy Speaker on account of his non-availability or dis-functioning, it did not demand from Speaker to notify in such regard---If Speaker had no right of issuing notification to entrust any power while exercising provisions of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, then recalling or withdrawing of any power, which was otherwise within the domain of Deputy Speaker by virtue of Art. 53(3) of the Constitution, the same was un-Constitutional and unlawful---Any order issued by Speaker withholding of any power of Deputy Speaker for the purpose of session in question when Speaker was contesting candidate of Chief Minister himself, was unwarranted and against the Constitution---High Court directed that Deputy Speaker on the date fixed would proceed to elect Chief Minister in terms of Art. 130(3) of the Constitution read with R. 20 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, and all other enabling provisions and powers in such behalf---High Court further directed that Deputy Speaker and all other persons including Provincial Government were to act impartially, justly and fairly to ensure supremacy of the Constitution---High Court declared that order issued by Speaker whereby powers of Deputy Speaker in terms of R. 25 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, were withdrawn, was contrary to Art. 53(3) of the Constitution and the same was set aside---Constitutional petition was allowed accordingly.

Mustafa Impex's case PLD 2016 SC 808; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif and 9 others PLD 2017 SC 265; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61; Brig. (Retd.) F. B. Ali and another v. The State PLD 1975 SC 506; Muhammad Naeem Akhtar v. Speaker, Sindh Assembly and others 1992 CLC 2043; Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker PLD 2006 Queta 36; Munir Hussain Bhatti v. Federation of Pakistan and others PLD 2011 SC 407; Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774; Pakistan v. Ahmad Saeed Kirmani and others PLD 1958 SC (Pak) 397; BNP (Pvt.) Ltd. v. Capital Development Authority and others 2016 CLC 1169; Wasi Zafar v. Speaker Provincial Assembly PLD 1990 Lah. 401; Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others PLD 2014 Lah. 670; Riaz Hanif Rahi v. Federation of Pakistan and 14 others PLD 2019 Isl. 230 and Suo Motu Case No.01 of 2022 rel.

(b) Constitution of Pakistan---

----Art. 67, 127 & 130 (3)---Rules of Procedure of the Provincial Assembly of the Punjab, 1997, Rr. 17, 18, 19 & 20---Election of Chief Minister---Duration---Whenever office of Chief Minister falls vacant, the same has to be filled promptly by election keeping in view desire of the Constitution and Rr. 17, 18, 19 & 20 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, framed under the mandate of the Constitution in terms of Arts. 67 & 127 of the Constitution, which provide procedure for completion of election within two unified days from summoning of the Session.

(c) Rules of Procedure of the Provincial Assembly of the Punjab, 1997---

----R.12---Removal of Speaker or Deputy Speaker---Presiding of session---Principle---Prohibition contained in the Constitution for presiding over session by Speaker and Deputy Speaker against whom no-confidence is pending, is with regard to preside the session in which that resolution has to be considered---Other sessions do not affect powers of Speaker or Deputy Speaker to preside over.

Azam Nazeer Tarar, Khalid Ishaque, Ch. Sultan Mahmood, Attaullah Tarar, Asadullah Chathha, Atif Mohtashim Khan, Ch. Asif Mehmood, Qamar Hayat, Usama Mohtashim Khan, Rana Afzal Razzaq, Rana Muhammad Ashraf Khan, Muhammad Arshad Malik, Nasir Javed Ghumman, Abid Hussain, Sardar Ali Akbar Dogar, Zahir Abbas, Kh. Mohsin Abbas, Mazhar Ali Ghallu, Kh. Aurangzeb Alamgir, Khalil Tahir Sandhu, Muhammad Nasir Chohan, Imtiaz Elahi, Rana Shahzad Khalid and Khawar Ikram Bhatti for Petitioner (in Writ Petition No.21710 of 2022).

Barrister Muhammad Umer Riaz, Usama Khawar, Waqas Umer Sial, Rana Rehan, Muhammad Amin, Muhammad Zulfiqar, Mahad Ghafoor, Mian Asif Habib, Kashif Bashir, Waheed Ashraf Bhatti for Petitioner (in W.P. No. 21711 of 2022).

Barrister Syed Ali Zafar, Zahid Nawaz Cheema, Talib Hussain and Jehanzeb Sukhera for Respondents.

Imtiaz Rashid Siddiqui, Barrister Shehryar Kasuri, Raza Imtiaz Siddiqui, Muhammad Humzah Sheikh, Jamshid Alam, Qadeer Ahmad Kalyar and Sabeel Tariq Mann for Respondents (in both the petitions).

Aamir Saeed Rawn and Safdar Shaheen Pirzada for Applicant-Respondent (in miscellaneous applications filed in both petitions).

Ashfaq Ahmed Kharal, Malik Mohsin Sadiq, Misbah Sarwar Goraya and Irfan Mehmood Ranjha for Respondents.

Ahmad Awais, Advocate General Punjab, Rai Shahid Saleem, Umair Khan Niazi, Muhammad Arif Raja, Anis Ali Hashmi and Arshad Jehangir A-Jojha, Additional Advocates General.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for Respondent.

Muhammad Khan Bhatti, Secretary, Provincial Assembly of the Punjab.

P L D 2023 Lahore 216

Before Mirza Viqas Rauf and Jawad Hassan, JJ

MUNAWAR HUSSAIN and 5 others---Appellants

Versus

GOVERNMENT OF PUNJAB through District Collector Jhelum and 2 others---Respondents

Regular First Appeal No. 150 of 2016, decided on 7th February, 2022.

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

----S.96 & O.XLI, Rr.11, 12, 16, 17(1)---Limitation Act (IX of 1908), Arts.168 & 181---Remedy against original decree---Procedure for hearing appeal---Dismissal of appeal---Scope---Consequences of default---Applicants were seeking recall of order, whereby their appeal was dismissed for non-prosecution, whereas another (latter) application was for condonation of delay---Respondents had submitted their reply whereas respondent No.2 was proceeded ex-parte---Held, that Part VII of the C.P.C., deals with the appeals from original decree---Section 96 of the C.P.C., provides the remedy of appeal against original decree---Order XLI of the C.P.C., lays down the procedure in appeals---Rule 11 of O.XLI of the C.P.C. describes that Appellate Court is vested with the power to dismiss the appeal without sending notice to the Trial Court---Rule 11 (2) of O.XLI describes that if on the day fixed or any other day to which the hearing is adjourned, if the appellant does not appear when the appeal is called on hearing, the Appellate Court may make an order of dismissal of appeal---If the appeal is not dismissed in terms of R. 11 of O.XLI of the C.P.C. the Appellate Court shall fix a day for hearing appeal---Rule 16 of O.XLI prescribes the procedure on hearing which expression presumes compliance of all earlier steps---Provisions of O.XLI, R.17(1) of the C.P.C. provide the consequences of default of the appellant to appear on the day fixed or any other day to which the hearing is adjourned---Expression "hearing" used in O.XLI, R.17(1) of the C.P.C., corresponds to the adherence of all steps outlined by Rr. 11 to 16 of O.XLI of the C.P.C.---In the present case it was apparent from application itself that the applicants had been able to canvas sufficient cause for their non-appearance, which was quite enough---Even otherwise order resulting into dismissal of appeal was not tenable, in the circumstances---Applications were allowed and main appeal was restored.

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

----Arts.168 & 181---Civil Procedure Code (V of 1908), O.XLI, R.17(1)---Limitation period for re-admission of appeal---Article 168 of the Limitation Act, 1908, provides thirty days for an application for seeking re-admission of the appeal dismissed for non-prosecution under O.XLI, R.17(1) of the C.P.C., from the date of dismissal---However in the present case the residuary Art.181 of the Limitation Act, 1908, would come into play ,which provides three years period of limitation---Application seeking restoration was thus well within time.

Tehsil Municipal Administrator, Faisalabad v. Muhammad Saleem and others 2016 SCMR 2009 ref.

(c) Administration of justice---

----Case should be decided on merit---Law favours the adjudication on merits instead of knocking out the litigants on the basis of technicalities.

Ch. Imran Hassan Ali for Applicants/appellants.

P L D 2023 Lahore 225

Before Sultan Tanvir Ahmad, J

ABDUL MALIK alias BADSHAH KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 5 others---Respondents

Writ Petition No. 5651 of 2022/BWP, heard on 3rd August, 2022.

Punjab Rented Premises Act (VII 2009)---

----Ss. 19 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Title of ownership---Determination---Petitioner/tenant assailed eviction order on the plea that after rejecting application for leave to defend the case, Rent Tribunal recorded evidence of respondent/ ejectment petitioner---Validity---Rent Tribunal concluded that title/ ownership of demised premises could be decided by adducing further evidence from the side of respondent/ejectment petitioner---To determine that respondent/ejectment petitioner was landlord of the demised premises, ex-parte evidence was directed to be produced---Such approach adopted by Rent Tribunal and ignored by Lower Appellate Court, was contrary to the intention of legislature, provisions of Punjab Rented Premises Act, 2009 and procedure laid therein---High Court set aside ejectment orders and remanded the matter to Rent Tribunal for decision afresh on ejectment petition as well as leave application of petitioner/tenant---Constitutional petition was allowed accordingly.

Muhammad Yousaf and 7 others v. Falak Sher Khan and 7 others 2018 CLC Note 133; Ch. Abdul Waheed through L.Rs. v. Zahida Parveen alias Nagina and 5 others 2021 YLR 1973; Mst. Zarina Khan v. Mst. Farzana Shoaib 2017 SCMR 330; Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623; Noor-un-Nisa and others v. United Bank Limited through Authorized Officers and 2 others PLD 2021 Lah. 90; Haji Muhammad Saeed v. Additional District Judge 2012 MLD 108; Nishan Ahmad alias Zeeshan v. Civil Judge and others 2021 MLD 1613; Ayesha Moeen v. Appellate Rent Tribunal/Additional District Judge, Lahore and 4 others 2016 CLC 1832; Muhammad Liaqat Ali v. Majid Ali and others Writ Petition No. 221102 of 2018 and

Haji Muhammad Latif v. Muhammad Sharif and others 2021 SCMR 1430 ref.

Muhammad Fahad Khan for Petitioner.

A.R. Aurangzeb and Ali Khan for Respondents Nos.3 to 5.

P L D 2023 Lahore 233

Before Ali Zia Bajwa, J

EHSAN ULLAH CHAUDHRY---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No. 52999 of 2022, heard on 22nd September, 2022.

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

----Ss. 173, 169 & 190---Police Rules, 1934, R. 24.7---General Clauses Act (X of 1897), S.24-A---Cancellation report prepared by police in respect of FIR---Agreement by the Magistrate--- Cancellation report was verified and forwarded by the DSP/SDPO, instead of Superintendent of Police concerned---Legality---Words used in R. 24.7 of Police Rules, 1934, 'Superintendent shall send' clearly indicated that it was mandatory and required due compliance---Sending cancellation report under S. 173, Cr.P.C., through the Superintendent of Police concerned, was neither a formality nor that office was merely a post office, instead he must forward that cancellation report after applying his independent mind---Magistrate passed the impugned order in sheer violation of principle of natural justice ( audi alteram partem ) in a slipshod manner---Section 24-A of General Clauses Act, 1897, casts an affirmative duty upon Court/Authority/Forum to pass an order or judgment with reason by giving all the parties an opportunity to present their submissions---Petition was allowed and impugned order was set side.

(b) Police Rules, 1934---

----Vol. III, Chap. II, R.24.7---Police Order (22 of 2002), R.18(10)---Sending cancellation report under S. 173, Cr.P.C., through the Superintendent of Police concerned---Such requirement was neither a formality nor the office of Superintendent of Police was merely a post office, instead he must forward the cancellation report after applying his mind, otherwise, the very purpose of R. 24.7 of the Police Rules, 1934 shall be defeated---Supervisory Officer" has been introduced in new system of investigation for timely "completion" and "verification" of investigation---Deputy Superintendent of Police (DSP) may call upon investigation officer to review the case and if it is deemed appropriate, he can write a police diary in that regard---Such enhanced level of Supervision was bestowed upon DSP as a check on investigation officers to improve the quality of investigation as well as to clog up aberrant investigation---By virtue of R. 24.7 of the Police Rules, 1934, it was the Superintendent of Police who was solely authorized to send the cancellation report of a criminal case to the Magistrate---Use of word 'may' in Art. 18(10) of the Order and word 'shall' in R. 24.7 of Police Rules, 1934, clearly reflects the legislature's intent and mandatory nature of the Rule.

(c) Constitution of Pakistan---

----Art. 10-A---Natural justice, principle of---Right to fair trial---Scope---Principle of natural justice (audi alteram partem) is enshrined in the Constitution and forms the bedrock of any decision-making process which affects the right of any party---Right to be heard is read as an integral part of every statute affecting the rights of a person, especially after the insertion of Art. 10-A of the Constitution---All the pre-trial proceedings including investigation are covered under the right to a fair trial as guaranteed under Art. 10-A of the Constitution---Fundamental right to have a fair trial and due process should be read into every statute affecting the rights of a person.

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

----S. 24-A---Exercise of power under enactments---Scope---Section 24-A of General Clauses Act, 1897, casts an affirmative duty upon Courts/Authority/Forum to pass an order or judgment with reason by giving all parties an opportunity to present their submission.

Shafqat Ali Langah for Petitioner.

Muhammad Nawaz Chaudhry, Assistant Advocate General, Hafiz Asghar Ali, Deputy Prosecutor General Punjab with Iftikhar Hussain DSP-Legal (Additional Charge S.P. Investigation, Mandi Baha-ud-Din), Sagheer Hussain, SI/SHO and Muhammad Irfan ASI for the State.

Ch. Shahid Ehsan Warraich and Ch. Fakhar-uz-Zaman for Respondent No.4.

Mian Ali Haider, Amicus Curiae.

P L D 2023 Lahore 241

Before Shujaat Ali Khan and Rasaal Hasan Syed, JJ

TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY through Chief Executive Officer---Appellant

Versus

MUHAMMAD ARSHAD and another---Respondents

I.C.A. No. 22963 of 2019, heard on 3rd October, 2022.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Constitution of Pakistan, Art.199---Intra Court Appeal---Maintainability---Remedy of Intra Court Appeal is not available if the constitutional petition filed in terms of Art. 199 of the Constitution, arose out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order---Admittedly, respondent-employee assailed the orders passed by the Competent Authority, Appellate Authority and Revisional Authority in the constitutional petition; hence the bar contained under proviso to S. 3(2) of the Law Reforms Ordinance, 1972, came into play and impeded the way of the appellant-employer to maintain the appeal---Intra Court Appeal was dismissed being not maintainable.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited PLD 2015 Lah. 661 distinguished.

JS Bank Limited, Karachi and others v. Province of Punjab through Secretary Food, Lahore and others 2021 SCMR 1617; SME Bank Limited through President Islamabad and others v. Izhar ul Haq 2019 SCMR 939; Messrs Punjab Sugar Mills v. Government of Punjab and others 2011 SCMR 1950 and ECHO West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others PLD 2009 SC 406 ref.

(b) Interpretation of statutes---

----While interpreting a provision of law its plain meanings are to be taken.

Barrister Pirzada Aurang Zaib for Appellant.

Nemo for Respondent No.1.

Rana Shamshad Khan, Additional Advocate-General, Punjab for Respondent No.2.

P L D 2023 Lahore 245

Before Mirza Viqas Rauf, J

KHURSHEED AHMAD and 3 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector and 9 others---Respondents

Writ Petition No. 500 of 2022, decided on 6th July, 2022.

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

----Ss. 4, 7 & 48---General Clauses Act (X of 1897), S. 21---Publication of preliminary notification, challenge to---Scope---Petitioners were aggrieved of issuance of third notification under S. 4 of the Land Acquisition Act, 1894 while the earlier two were de-notified---Contention of petitioners was that the impugned notification was the outcome of mala fide and that the Collector had no power to de-notify the acquisition proceedings in terms of S. 48 of the Land Acquisition Act, 1894 because such authority only vested with the Commissioner---Validity---Petitioners were bound to plead the facts resulting into mala fide in a specific manner---Mala fide was one of the most difficult things to prove---When stance of the petitioners was examined, it became clear that the edifice of the petitioners' was without any sound basis---High Court observed that acquisition was not merely a step ahead for getting something but it was more than that---Move in terms of S. 4 of Land Acquisition Act, 1894, was only an initial step for the purpose of preliminary investigation to determine the feasibility of the proposed land needed or likely to be notified for any public purpose---Act of acquisition matured only when the Collector issued an order for the acquisition of the land in terms of S. 7 of the Land Acquisition Act, 1894---Notification under S. 4 of the Land Acquisition Act, 1894, fell within the competence of the Collector---When the Collector was empowered to issue the notification, he was also competent to de-notify the same in terms of S. 21 of the General Clauses Act, 1897--- Petitioners remained unable to highlight any illegality or perversity in the impugned proceedings---Constitutional petition was dismissed.

Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Khurshid 2021 SCMR 369; 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; Qasim Ali and 2 others v. Province of Punjab through Secretary, Irrigation Department, Lahore 2021 YLR 1261 and Muhammad Nawaz v. Government of Punjab, through Chief Secretary, Lahore and others 2017 MLD 1719 distinguished.

(b) Constitution of Pakistan---

----Arts. 23 & 24---Provision as to property---Protection of property rights---Scope---Right to property is one of the fundamental rights recognized and guaranteed by the Constitution---Such right is, however, neither unfettered nor unbridled---Article 23 of the Constitution ordains that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.

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

----Preamble---Scope---Land Acquisition Act, 1984, was promulgated for the purpose of acquisition of land needed for the public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition.

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

----Ss. 4, 5, 5-A, 6, 7, 8, 9 & 10---Acquisition proceedings---Preliminary investigation---Hearing of objections---Declaration of intended acquisition---Scope---Section 4 of the Land Acquisition Act, 1894, authorizes the Collector of the District whenever it appears to him that land in any locality is needed or is likely to be needed for any public purpose or for a Company, to publish in the official gazette a notification to that effect and cause public notice of the substance of such notification to be given at convenient places in the locality---Preliminary investigation to this effect is to be made under Ss. 4 & 5 of the Land Acquisition Act, 1894, whereas objections from any person interested in any land which has been notified under S. 4 are to be dealt with under S. 5-A---Declaration of intended acquisition is to be made in line with Ss. 6 to 10 of the Land Acquisition Act, 1894.

(e) Mala fide---

----Public functionary---Scope---Mala fide cannot be attributed to the Executive/Government functionary, performing functions in furtherance of a legal mandate---In absence of any cogent and convincing material in support of plea of mala fide, it shall be presumed that the action taken by the Executive/Government functionary in pursuance to a lawful mandate is not tainted with mala fide.

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

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

(f) Words and phrases---

----"Acquisition"---Meanings.

Following are the means ings of "acquisition":

(a) The process by which one gains knowledge or learns a skill. The gaining of possession or control over something; esp., the act of getting land, power, money, etc. Something acquired; esp., something one has obtained by buying it or being given it.

Black's Law Dictionary (Tenth Edition) rel.

(b) The act of getting something, especially knowledge, a skill, etc. Something that someone buys to add to what they already own, usually something valuable. A company, piece of land, etc., bought by someone especially another company; the act of buying it.

Oxford Advanced Learner's Dictionary (International Student's Edition, New 9th Edition) rel.

(c) The process of getting something. Something that someone buys, often to add to a collection of things. Something such as a building, another company, or a piece of land that is bought by a company, or the act of buying it.

Cambridge Advanced Learner's Dictionary (Fourth Edition) rel.

(d) The act of acquiring or gaining possession. Something acquired. The act or process of achieving mastery of a language or a linguistic rule or element.

Random House Webster's unabridged dictionary (Second Edition) rel.

Muhammad Amir Butt for Petitioners.

Razzaq A. Mirza, Additional Advocate General with Salman Akbar, Assistant Commissioner, Chakwal and M. Ahsan Javed, SDO for Respondents Nos.1 and 2.

Syed Moazzam Ali Rizvi for Respondent No.3.

Nemo for Respondents Nos. 4 to 9.

Mian Nazar Muhammad Arain, Advocate/Legal Advisor with M. Naqash Rasheed D.M (L) NTDC for Respondent No.10.

P L D 2023 Lahore 257

Before Shahid Jamil Khan, J

Messrs Malik MAZHAR HUSSAIN GORAYA---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 18004 of 2022, decided on 23rd December, 2022.

Punjab Local Government Act (XXIII of 2022)---

----Ss. 4, 71 & 205---Punjab Local Government (Works) Rules, 2017, R. 5(2)---Punjab Local Government Budget Rules, 2017, R. 3(b)---Development funds, allocation of---Members of National Assembly (MNA) and Member of Provincial Assembly (MPA)---Entitlement---Dispute pertained to allocating of Development Funds to ruling and other MNAs and MPAs---Validity---New development projects, not approved by Defunct Local Government, by Administrator, on recommendation of MNAs and MPAs or otherwise were without lawful authority---Appointment of Administrators and assigning of functions and power under Notification dated 21-10-2022, by Chief Minister Punjab, without approval of Cabinet was without lawful authority---Functions, not powers to be exercised by elected Local Government, could be ratified and continued by the Administrators appointed in accordance with law---All new development projects, not approved by Defunct Local Government, were declared without lawful authority, which could only be continued if ratified and approved, in accordance with law by Local Government, to be constituted after forthcoming elections---Any executive order, allocating grants to MNAs and MPAs for development work within the domain of a Local Government, was illegal and any regulation or law permitting allocation of such grant was unenforceable in view of S. 4 of Punjab Local Government Act, 2022, in force---High Court directed Election Commission to hold elections forthwith, on completion of delimitation as scheduled, in accordance with relevant provision under Punjab Local Government Act, 2022, in force, read with the Constitution and in light of judgments by Supreme Court---Constitutional petition was disposed of accordingly.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Fauji Sugar Mills v. Market Committee, Tando Muhammad Khan and another 1988 SCMR 155; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Rasheed Ahmed Khan v. Pakistan through Secretary Ministry of Defence and others 2023 CLC 219; Administrator Municipal Corporation, Peshawar and others v. Taimur Hussain Amin and others 2021 SCMR 714; Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 and M.Q.M. (Pakistan) and others v. Pakistan through Secretary Cabinet Division, Government of Pakistan and others PLD 2022 SC 439 ref.

Abdul Samad Ali and Muhammad Ilyas Jamil for Petitioner.

Rana Muhammad Arif Kamal Noon, Additional Advocate General Punjab, Atta Muhammad Khan, Law Officer, LG&CD, South Punjab, Bahawalpur, Muhammad Ameen Awaisi, Secretary, Local Government and Community Development Department South Punjab, Muhammad Arshad, Additional Secretary, Local Government and Community Development Department South Punjab for Respondents.

P L D 2023 Lahore 275

Before Shahid Bilal Hassan, J

Mian ABDUL GHAFFAR---Petitioner

Versus

MUHAMMAD ANWAR SAEED (deceased) through L.Rs. and others---Respondents

Writ Petition No. 211205 of 2018, decided on 18th November, 2022.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 151---Challenging the validity of judgment or order on the basis of fraud and misrepresentation---Conversion of application under S. 12(2), C.P.C. into application under S. 151, C.P.C.--- Inherent powers of court---Exercise of---Petitioner withdrew his suit on the basis of compromise but the cheque on the basis of which the compromise was affected was dishonoured with remarks "payment was stopped by the drawer"---Petitioner's application under S.12(2) read with S.151, C.P.C. was accepted by Trial Court restoring the suit of the petitioner but revisional court set aside the judgment of the Trial Court---Validity---Trial Court had rightly exercised inherent jurisdiction under S. 151, Code of Civil Procedure, 1908 because valuable rights of the petitioner were involved and he could not be knocked out of the arena of litigation merely on the basis of technicalities---Courts are to protect the valuable rights of the parties, that is why the inherent powers under S. 151, Code of Civil Procedure, 1908 have been conferred upon the Courts---Revisional Court, without keeping in view the peculiar facts and circumstances of the case in hand had roamed in oblivion, because an application under S. 12(2), C.P.C. could be converted into application under S. 151, C.P.C. in order to administer safer justice to the litigant public, whose interest were being infringed on the basis of order obtained by fraud---Impugned order was set aside and petition was allowed, in circumstances.

Wazir Khan and 8 others v. Sardar Ali and 25 others 2001 SCMR 750 rel.

Mian Khalid Habib Elahi for Petitioner.

Khawaja Muhammad Saeed for Respondents.

P L D 2023 Lahore 278

Before Sultan Tanvir Ahmad, J

The LAHORE GYMKHANA---Petitioner

Versus

The PUNJAB INFORMATION COMMISSION and others---Respondents

Writ Petition No. 73648 of 2022, heard on 16th December, 2022.

(a) Words and phrases---

----Substance---Meaning.

Chambers Dictionary (Twelfth Edition) rel.

(b) Words and phrases---

----Substantial---Meaning.

Bangalore Turf Club Limited v. State Information Commissioner (W.P. No.18449 of 2015); Ifci Ltd. v. Ravinder Balwani (W.P. No.4596 of 2007); Concise Oxford English Dictionary (twelfth edition) and Mother Dairy Fruit and Vegetable Private Limited v. Hatim Ali and another (W.P. (C) 3110 of 2011 and C.M. 6577 of 2011 rel.

(c) Punjab Transparency and Right to Information Act (XXV of 2013)---

----Ss. 2(h)(iv) & 6---Constitution of Pakistan, Arts. 19-A & 199---Constitutional petition---Access to information---Public body---Words "substantially financed by the Government"---Scope---Petitioner club was aggrieved of direction issued by the Commissioner to provide certain information to respondents as the club was substantially financed by the Government---Validity---It was not necessary to measure financing in percentage---Contribution of Government was not required to be more than fifty percent or having major portion or dominant and majority part but it was sufficient if financial assistance was material and important or when such contribution was fairly large and it was having essential role in existence of an entity/body---Legislature promulgated Punjab Transparency and Right to Information Act, 2013, in order to confirm transparency and to provide freedom of information to ensure that the citizens have improved access to public information; to enforce fundamental right of the citizens to have access to information in all matters of public importance and to provide assistance for ancillary matters---One of the main purposes of Punjab Transparency and Right to Information Act, 2013, was to make Government of the Punjab more accountable to citizens---High Court declined to interfere in the order passed by the Commissioner---Constitutional petition was dismissed, in circumstances.

Soneri Travel and Tours Ltd. through Chief Executive/Director/ Secretary v. Soneri Bank Limited 2011 CLD 193; Muhammad Hussain v. Messrs Adamjee Sheikh Jeevanjee and another 2001 MLD 1183; Thalappalam Service Cooperative Bank Limited and others v. State of Kerala and others (2013) 16 Supreme Court Cases 82; Aitex Pakistan v. Government of Pakistan and others PLD 2020 Lah. 1; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472; Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Province of Punjab v. Qaiser Iqbal and others PLD 2018 Lah. 198; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292) and Dr. Shahid Masood and others v. Federation of Pakistan and others 2010 SCMR 1849 and Muhammad Ijaz-ul-Haq v. Executive District Officer and others 2006 SCMR 989 ref.

(d) Interpretation of statutes---

----Ejusdem generis, rule of---Applicability---General word if followed by specific words of the same nature is presumed to be restricted to the same genus as those in the specific words---If statute shows that wider sense is intended or there are provisions in the statute which reflect that certain other categories are included out of the suggested genus, the rule of ejusdem generis does not apply.

Don Basco High School v. The Assistant Director, E.O.B.I. and others PLD 1989 SC 128 rel.

Barrister Rafey Zeeshan Altaf, Advocate Supreme Court for Petitioner.

Barrister Tayeeb Jan, Assistant Advocate General.

Azhar Siddique, Advocate Supreme Court for Respondents.

Abdullah Malik (Respondent No.2 in W.P. No.73651-2022) in person.

P L D 2023 Lahore 291

Before Muhammad Amjad Rafiq, J

MUHAMMAD USMAN GHANI---Appellant

Versus

The STATE and others---Respondents

Criminal Revision No. 5 of 2022, heard on 14th February, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 265-D, 242 & 249---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S.9(7)---Issuance of process against accused---Summoning of accused by Trial Court to face trial despite their names being placed in column No. 2 of the Challan---Validity---Section 265-D, Cr.P.C. required the Court to peruse the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution before framing of charge---Court was bound to give it due consideration on the touch stone of evidential test and public interest test---If after considering the police report, case review/result of assessment, statements of witnesses and any other document, Court was of the view that sufficient material was available to frame the charge, it would proceed accordingly, but if not, then in converse would be obliged to discharge the accused---Discharge of accused was a legal requirement that could be resorted to under S. 265-D of Cr.P.C.---Court when opted to summon any accused in the process at early or subsequent stage should also attend to such consideration as set out above because mere mentioning of the name in the police report or deposing it by a witness was no ground to issue process in blindfold---However, if an accused had been summoned to face the process, even then before framing of charge, material must be examined in the light of criteria highlighted above which is the command and mandate of law---Discharged accused could be summoned at any subsequent stage if any evidence worth appreciating was made available against him---In a magisterial trial where a provision like 265-D, Cr.P.C. was not available yet there was no prohibition in S. 242, Cr.P.C. as to not consider the material before framing of charge---Situation was now clearer in the light of provision of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 ('CPS Act'), that required the court to give due consideration to the result of assessment submitted by the prosecutor---CPS Act being special law shall prevail over the general law---If the prosecutor recommends, the case as not worthy of prosecution or discharges the accused due to deficient evidence but the Court has a different observation and expected that evidence could be made available, it could frame the charge but otherwise court still had two options for the time being, either to discharge the accused or stay the proceedings under S. 249 of Cr.P.C.---Revision petition was dismissed.

Azizullah Khan v. S.H.O. Police Station Sadar Mianwali and 4 others 2013 PCr.LJ 1411 and Nadeem alias Deema v. District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823 ref.

Chief Ehtesab Commissioner, Chief Ehtesabh Commissioner's Secretariat, Islamabad v. Aftab Ahmad Khan Sherpao, Ex-Chief Minister, N.-W.F.P. Feshawar and others PLD 2005 SC 408; Sarfraz Ahmed v. Pakistan and 2 others PLD 1982 Lah. 120; Mst. Ashrafunnisa v. The State and 8 others 1983 PCr.LJ 1428; Umubyeyiu Christine v. The State 1993 PCr.LJ 1606; Abdur Razzaq and another v. The State 1997 PCr.LJ 741; The State v. Aftab Ahmed Khan Sherpao and another 1998 MLD 209; Mahazulla v. The State 2000 PCr.LJ 534; The State v. Shukoor Jan and another 2017 MLD 916; Nasir Ali v. Mst. Zakia 2021 MLD 1532; Monia Jee and others v. The State and another 2004 YLR 1802; Idrees Kiani and others v. The State through Advocate General 2004 MLD 1762 and Sher Muhammad Unar and others v. The State PLD 2012 SC 179 rel.

Muhammad Tariq Khan for Petitioner.

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.

Rana Muhammad Nadeem Kanju for Respondent No. 2.

P L D 2023 Lahore 300

Before Ali Zia Bajwa, J

FAYYAZ HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 235 of 2021, heard on 3rd December, 2021.

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

----Art. 133---High Court (Lahore) Rules and Orders, Vol. III, Chap. 24, Part C, R. 1---Closing of right of cross-examination---Effect---Accused was charged for committing rape with complainant---During the course of trial, examination-in-chief of two prosecution witnesses were recorded---Several opportunities were provided to petitioner (accused) to cross-examine the said witnesses but upon his failure, his right to cross-examine was struck off---Validity---Right of cross-examination was a statutory right recognized and provided under Art. 133, Qanun-e-Shahadat, 1984---In a criminal case, it was obligatory upon the court to fulfill such statutory requirement in its true spirit---Right to fair trial, which is now enshrined in Constitution under Art. 10-A of the Constitution, included right of an accused to confront his accuser---Despite that fact, the accused could not be allowed to hijack the trial proceedings in garb of safeguarding the right to fair trial---Accused at times attempted to linger on the trial proceedings with nefarious designs to tamper with the prosecution evidence or avoid his expected conviction and penal consequences, which should not be permitted by the Trial Court---Trial Court was not helpless to proceed further without violating the right to fair trial, especially right to confront one's accuser---Under R. 1, Part C, Vol. 3, Chap. 24 of the High Court (Lahore) Rules and Orders, if an accused was unrepresented in a Sessions case and he could not afford to engage a counsel, the Sessions Judge/Additional Sessions Judge was bound to make arrangement to employ a counsel at government expense for the said accused---Keeping in view the literal meaning of term 'unrepresented' as used in R. 1, Part C, Vol. 3, Chap. 24 of the High Court (Lahore) Rules and Orders, an accused, who although had arranged a counsel, who also filed his power of attorney on his behalf, would deem to be 'unrepresented' if his counsel did not appear before the court and unnecessary delay was caused in early conclusion of trial---Whenever a Trial Court was confronted with such situation, there would be two options available to such court, first was to adjourn the case for a future date or if Trial Court did not deem it appropriate to adjourn the case, then to provide a capable and skilled counsel to the accused on state expenses to carry out cross-examination on prosecution witnesses or court witnesses, if any---In the present case defence counsel gave an undertaking on behalf of petitioner that prosecution witnesses would be cross-examined at the first date of hearing High Court observed and directed that if the same was not done, Trial Court should appoint counsel on State expense as envisaged under R. 1, Part C, Vol. 3, Chap. 24 of the High Court (Lahore) Rules and Orders and should proceed with the trial expeditiously without letting petitioner/accused abuse the process of law any further---Revision petition was allowed by setting aside impugned order accordingly.

Muhammad Bashir v. Rukhsar PLD 2020 SC 334; Muhammad Aslam v. The State and others 2017 PCr.LJ 1264; Abdul Raoof v. The State PLD 2001 Lah. 463; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Ghafoor v. The State 2011 SCMR 23; Mujahid Hussain v. The State and another 2016 MLD 1206; Muhammad Ajmal and others v. The State and another 2018 SCMR 141; Syed Kanchan Ali v. Shahjahan and others PLD 1962 Dacca 192; Ghaffar alias Kali v. The State and others 2021 MLD 2058 and Hakim Ali v. The State 1975 SCMR 1 rel.

Syed Shamshad Ali Rizvi for Petitioner.

Rana Muhammad Arif Kamal Noon, Prosecutor General Punjab, Muhammad Abdul Wadood, A.P.G., Ansar Yasin, D.P.G., Muhammad Adnan Sheikh, D.P.G., Mst. Asmat Parveen, D.D.P.P. and Nadeem Haider Rizvi, D.D.P.P. for the State.

Malik Muhammad Siddique Kamboh and Malik Atta Ullah Kharal for Respondent No.2.

P L D 2023 Lahore 313

Before Abid Aziz Sheikh, J

MURATIB ALI ALVI---Petitioner

Versus

The PUNJAB BAR COUNCIL, LAHORE through Chairman---Respondent

Writ Petition No. 63835 of 2021, heard on 26th January, 2022.

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

---Ss. 5 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Provincial Bar Council, actions of---Petitioner was aggrieved of subscription of General Fund and Benevolent Fund on the plea of exorbitant---Validity---Other than Advocate General of the Province who was ex-officio member and chairman of Punjab Bar Council, nothing in Legal Practitioners and Bar Councils Act, 1973 suggested that any administrative or financial control was exercised by Federal or Provincial Government over the affairs of Punjab Bar Council---Punjab Bar Council was not performing any function in connection with affairs of Federation or Province or a local authority---For the purpose of maintainability of Constitutional petition, status of Punjab Bar Council was to be that of a status of Pakistan Bar Council---Punjab Bar Council was an autonomous private body without any government control, though constituted under Legal Practitioners and Bar Councils Act, 1973---High Court declined to interfere in the matter as Constitutional petition against Punjab Bar Council was not maintainable---Constitutional petition was dismissed, in circumstances.

Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others 2021 SCMR 425; Mirza Muhammad Nazakat Baig v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another 2020 SCMR 631 and Sardar Qurban Ali Dogar v. Pakistan Bar Council and others (Writ Petition No.228 of 2022) rel.

Petitioner in person.

Barrister Tayeeb Jan, Assistant Advocate-General, Punjab for Respondent.

P L D 2023 Lahore 317

Before Ch. Muhammad Iqbal, J

MUHAMMAD RIAZ AHMAD---Petitioner

Versus

Mst. SHAHEEN AKHTAR and 3 others---Respondents

Writ Petition No. 40877 of 2020, decided on 10th November, 2022.

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

----S. 5---Divorced parents---Marriage expenses of unmarried daughter, quantum of---Determination---Appellate court partially accepted the appeal of the father/petitioner, modified the judgment and decree of the Trial Court and decreed the amount of marriage expense from Rs.1,50,000/- to 1,00,000/.---Father/petitioner from his earlier wedlock, had been maintaining his five daughters without any inconvenience or any excuse of any financial hardship---Father/petitioner had not disputed the solemnization of marriage of his daughter/respondent rather he was objecting the claim towards payment of expenses incurred during her marriage---Such contumacious refusal of the father to pay marriage expenses of his daughter amounted to penalizing her due to the reason that she was living with her mother, who had been divorced by the father---Such dissimilar treatment was evident discrimination among the daughters applied by the father---Mother and daughter, through their suit, prayed for grant of Rs.300,000/- as marriage expenses whereas the Family Court accepted the claim to the tune of Rs.150,000/- only---Father challenged the said decree through an appeal and the appellate Court, reduced the quantum of amount to Rs.100,000/-.---Once again, the father/petitioner, instead of paying the said amount to the respondents filed the present petition which showed his callousness towards his daughter---Amount granted by the appellate Court, keeping in view the current financial needs as well as the social norms did not seem to be excessive as compared to the financial status of the father---Findings of Appellate Court did not require any indulgence by the High Court in its constitutional jurisdiction---Petition was dismissed in limine.

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

----S. 9---Maintenance---Definition---Marriage expenses of unmarried daughter---Word 'maintenance' was derived from Arabic word 'Nafaq' which means 'to spend' and in literal sense, the word 'nafaqah' means what a person spends on his family---It is an inclusive explanation of the concept, not exhaustive and is only indicative in nature---Other liabilities are also included within the sweep of the concept of maintenance i.e. medical expenses, education expenses etc.---Right of maintenance does not limit itself only to food, raiment and lodging but also entails all the other necessary expenses for the mental and physical wellbeing of the recipient---Maintenance paid by a father to his child is not a courtesy rather a religious, legal, moral and social duty which cannot be put aside on frail grounds, therefore, it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter---Responsibility of the Muslim father was to act as guardian of his unmarried daughter---Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony---Father must function as guardian on her behalf in such marriage to enable his daughter into the contract of marriage---Paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage were met by him---Father has the indisputable obligation to maintain his unmarried daughter and he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly, as such the legal obligation to meet the reasonable marriage expenses of his daughter, is part of his obligation to pay maintenance to her---Admittedly, a father is bound to maintain his daughter till her marriage but such burden of 'maintenance'/monetary obligation cannot be shifted to a mother, who does not figure , anywhere in the compulsion to provide 'maintenance' to the children; this will not only financially burden the mother to bear the marriage expenses of her daughter but also will be against the legal norms.

Ismayil v. Fathima 2011 (3) KHC 825 rel.

P L D 2023 Lahore 324

Before Mirza Viqas Rauf, J

Mrs. KANEEZ FATIMA---Petitioner

Versus

The ISLAMIC REPUBLIC OF PAKISTAN and others---Respondents

Writ Petition No. 1659 of 2021, heard on 27th April, 2022.

(a) Constitution of Pakistan---

----Arts. 193, 175-A, 205 & Fifth Sched.---Appointment of High Court Judges---Remuneration of Judges---Scope---Appointment of a Judge of the High Court is to be made under Article 193 of the Constitution which provides that Chief Justice and each Judge of the High Court shall be appointed by the President in accordance with Art. 175-A of the Constitution---Article 205 of the Constitution prescribes the remuneration and other terms and conditions of service of a Judge of Superior Court---In terms of Paragraph 2 of the Fifth Schedule to the Constitution a Judge of High Court is entitled for the remuneration in the form of salary, allowances, privileges and pension as determined by the President---In order to determine the privileges, allowances and the rights in respect of leave of absence and pension, the High Court Judges (Leave, Pension and Privileges) Order, 1997 was promulgated.

Constitution Petition No.127 of 2012 (Regarding pensionary benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such Judges PLD 2013 SC 829 ref.

(b) High Court Judges (Leave, Pension and Privileges) Order (3 of 1997)---

----Paras. 28 & 29---Facilities for retired Judges---Subsidiary conditions of service---Scope---Paragraph 28 of the High Court Judges (Leave, Pension and Privileges) Order, 1997, deals with the facilities to Retired Judges and it also lays down benefits to the spouse of a Judge on his retirement and after his death---Paragraph 29 of the Order provides subsidiary conditions of service---Privileges of a Judge or his/her spouse are neither limited nor restricted to Paragraph 28 of the Order but a Judge or his/her spouse as the case may be can also become entitled for other privileges if any other provision is made by President in this behalf as determined by the rules for the time being applicable to an officer appointed by the President and holding the rank of Secretary to the Government of Pakistan in terms of Paragraph 29.

(c) High Court Judges (Leave, Pension and Privileges) Order (3 of 1997)---

----Paras. 28 & 29---Facilities for retired Judges---Subsidiary conditions of service---Scope---Interpretation that a Judge or his/her spouse can only be allowed privileges and facilities in terms of Paragraph 28 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 and that Paragraph 29 is restricted to the officers of civil services is fallacious---Paragraph 29 is not in negation of Paragraph 28 but is actually in addition and furtherance to the said provision, so the privileges and rights of Judge or his/her spouse cannot be curtailed to the limits of Paragraph 28 of the High Court Judges (Leave, Pension and Privileges) Order, 1997.

(d) Words and phrases---

----Office Memorandum---Meaning.

Officer Memorandum is a special order of the Government. Basically, an Office Memorandum is a document released by a proper authority stating the government's policy or decision. It is recognized as an order from the government or a circular released by the executive branch. An Office Memorandum is not a stray paper rather it has the force of law.

Secretary to the Government of Punjab, Irrigation and Power Department, Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others 1991 SCMR 628 ref.

Muhammad Saleem v. Federal Public Service Commission and others 2020 SCMR 221 rel.

(e) Words and phrases---

----Vested right---Meaning.

A right having stemmed out from a legal origin is always a vested right, which cannot be obviated by the executive.

(f) Locus poenitentiae, principle of---

----Once a benefit has accrued from legal source and it is availed by its recipients it can neither be transgressed nor rescinded thereafter, as such right becomes indefeasible and absolute.

Province of Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and others v. Atta Muhammad Zafar and others 2021 SCMR 1195 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814 ref.

Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others 2018 SCMR 691 rel.

Ch. Imran Hassan Ali for Petitioner.

Saqlain Haider Awan, Assistant Attorney General for Pakistan along with Sajjad Mustafa, Section Officer, Ministry of Law and Justice for Respondents Nos.1 to 1-D.

Rao Muhammad Akram Khurram, Assistant Advocate General for Punjab for Respondents Nos. 2-A to 3.

P L D 2023 Lahore 334

Before Ch. Abdul Aziz, J

NADEEM SULTAN and another---Petitioners

Versus

HAMZA SHAMIM and 2 others---Respondents

Criminal Revision No. 91 of 2022, decided on 22nd July, 2022.

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

----S. 344---Power to postpone or adjourn proceedings---Sine die adjournment---Scope---Case had been adjourned sine die solely because one of the co-accused had not been arrested yet---Validity---Such reason alone did not justify the sine die adjournment of the case to the extent of the petitioners---Accused had a right to an expeditious decision in a criminal case and the pending lis could not have been used as a sword of damocles through a sine die adjournment---Continuation of the trial in the normal course would have served the ends of justice better---Although one of the co-accused was still at large, no one could say with certainty when the police would apprehend him---Recording of the prosecution evidence would have preserved the statements of the prosecution witnesses---If any of them were unavailable due to death or for any other reason upon the arrest of the absconding co-accused, their deposition could be legally brought on record in accordance with Art. 47 of the Qanun-e-Shahadat, 1984---Impugned order was set aside, in circumstances.

Sadullah and another v. The State PLD 2018 Bal. 39 rel.

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

----S. 344---Power to postpone or adjourn proceedings---Scope---Section 344(1) of the Cr.P.C. lays down guidelines for the postponement or adjournment of a case---It prohibits the Sessions Court from adjourning a case without specifying a date or for an indefinite period---Use of the expression "from time to time" in the provision indicates that the case can only be adjourned for a specific date and not indefinitely---Adjournment can only be made due to the absence of witnesses or for any other reasonable cause---Therefore, the Sessions Judge is empowered to adjourn the case from time to time and, if necessary or advisable, for a specific date---Section 344(1) explicitly states that the case must be adjourned to a specific date and the provision restrains the Sessions Judge from adjourning or postponing a case indefinitely.

Muhammad Amin v. Momin Khan and 2 others PLD 2014 Pesh. 49 rel.

The State through Prosecutor General, Sindh v. Shahzad Riaz and others 2021 PCr.LJ 656; Abdul Rauf Gujjar v. Judge ATC-III, Lahore and others 2020 PCr.LJ 1259; Bakhtiar Khan v. The State 2018 MLD 72 and Barkat Hayat v. The State 2017 PCr.LJ 167 ref.

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

----Ss. 249 & 344---Power to stop proceedings when no complaint---Power to postpone or adjourn proceedings---Scope---Legislature has placed a specific embargo on the use of S. 249 of the CrPC in complaint cases and this provision only applies to State cases---Trial proceedings can be stopped by the Magistrate with the mandatory previous sanction of the Sessions Judge---Chapter XX of the Cr.P.C. exclusively deals with trials conducted by Magistrates and thus does not apply to trials conducted by Sessions Courts.

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

----Chap. XXII-A [Ss. 265A to 265N]---Trials before High Courts and Courts of Session---Sine die adjournment---Scope---Criminal Procedure Code, 1898 stipulates that sessions trials must adhere to the protocol outlined in Chapter XXII-A, Cr.P.C.---However, this chapter does not contain any specific provision that allows a sessions trial to be postponed indefinitely without a definite date.

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

----Art. 47---Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated---Scope---Evidence given by a witness in judicial proceeding is relevant in a subsequent judicial proceeding between the same parties, if such witness is dead or cannot be found or becomes incapable of giving evidence or is kept out of the way by the adverse party.

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

----Art. 2(c)---Evidence---Scope---Evidence includes all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and all documents produced for the inspection of court.

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

----Art. 4(m)---Judicial proceedings---Scope---Judicial proceedings include any proceeding in the course of which evidence is or may be legally taken on oath.

(h) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Concept of due process rests in the idea that the legal proceedings be carried out in accordance with the established rules, express statutory provisions and settled principles for deciding the rights of litigants. [p. 343] M

(i) Interpretation of statutes---

----Dictionary meaning---If a word or expression is not defined in the Act from which the lis is arising, it is permissible to consult its dictionary meanings.

Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jahan Shah PLD 2016 SC 534 rel.

(j) Interpretation of statutes---

----Courts can only interpret the law for applying it in letter and spirit---Giving a self-devised meaning or interpretation to a statutory provision is otherwise not permissible.

(k) Interpretation of statutes---

----Literal interpretation---Golden rule of interpretation---Mischief rule---Purposive approach---Scope---Statutory interpretation involves four rules, with the literal rule being the first, followed by the golden rule, the mischief rule, and finally the purposive approach---Literal rule enables the Court to interpret the legal provision in its literal and ordinary sense and it cannot examine the intent of the Legislature---Golden rule can only be given effect if the literal interpretation gives rise to some irrationality---Under such rule, the Court can look into the legislative intent of a provision or a statute---Third rule of mischief can be used to see the unconstitutionality of the legislation---Purposive rule can be set in motion for ensuring the effectiveness of the law in accordance with the will of Parliament.

(l) Words and phrases---

----Sine die---Definition.

Black's Law Dictionary 10th Edition and Webster's Unabridged Dictionary, 2nd Edition ref.

Dr. Zaheer-ud-Din Babar, Rai Tajamal Hussain and Barrister Abdulla Babar Awan for Petitioners.

Malik Waheed Anjum for Respondents.

Ms. Memoona Ehsan-ul-Haq, Deputy District Public Prosecutor for the State.

P L D 2023 Lahore 344

Before Sultan Tanvir Ahmad, J

SOHNEY KHAN and 2 others---Petitioners

Versus

GHULAM MUHAMMAD and 8 others---Respondents

F.A.O. No. 23 of 2020/BWP, decided on 6th April, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXIII, Rr.1(3) & 3---Suit for declaration and injunction---Compromise---Binding effect---Precondition---Earlier suit filed by respondents/plaintiffs was withdrawn unilaterally thereafter they filed instant suit for implementing a promise made by appellant/defendant in earlier proceedings---Trial Court rejected the plaint but Lower Appellate Court set aside the order and remanded the matter to Trial Court for decision afresh---Validity---Statement was given in absence of opponent party and even without any notice on application to withdraw earlier suit---Compromise could become effective only when the two or more parties agreed to settle a real or supposed claim in which each party had surrendered something in concession to each other---Unilateral statement given by respondents/plaintiffs and that too in absence of other side could not be taken as mutual concession or mutual promise, having any binding effect, especially when statement regarding so-called out of court compromise was not backed by any document---Such statement did not fulfill requirements of O. XXIII, R. 3, C.P.C., which necessitated satisfaction of the Court---If such an easy way of escaping restriction contained in O. XXIII, R. 1(3), C.P.C. by simply giving unilateral statement as to compromise was permitted, the very purpose of the provision of O. XXIII, C.P.C., would be negated---High Court set aside the order passed by Lower Appellate Court and restored that of Trial Court---Appeal was allowed, in circumstances.

Mst. Yasmeen and another v. Sahib Zarin and 6 others 2013 CLC 1417; Rozi Khan Gojar and another v. Mst. Rehmat Bibi 2004 CLC 466; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs and others 2013 CLC 464; Muhammad Yasin v. Additional District Judge-VII, West, Islamabad and others 2022 MLD 186; Muhammad Shafique and 4 others v. Muhammad Rafique and another 2012 YLR 2801; Qadir Bakhsh v. Saeed Ahmad Qureshi 2015 YLR 89; Basaoo and others v. Jagan Nath and another AIR 1931 Oudh 127; Fazal Maqsood and another v. Mst. Naseem Begum and 3 others 2020 CLC 884 and Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 rel.

Khizar Hayat Abbasi for Petitioner.

Syed Muhammad Arfa Shahraz Bukhari and Rao Nasir Mehmood for Respondents Nos. 1 to 5.

Ch. Shahid Mehmood, A.A.G. for Respondents Nos. 6 to 8.

P L D 2023 Lahore 352

Before Shahid Jamil Khan, J

EHSAN ULLAH and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Finance, Islamabad and 3 others---Respondents

Writ Petition No. 63221 of 2020, heard on 11th March, 2022.

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

----Ss. 18, 21 & 22---Constitution of Pakistan, Arts.4, 10A, 19A & 199---Constitutional petition---Show-cause notice---Pre-conditions---Failure to give mandatory details---Benami transaction---Proof---Calling for information---Petitioner was served with summons by authorities for holding Benami properties in his name---Validity---No incriminating material was confronted in summons and no notice or proceedings under Ss. 18, 21 & 22 of Benami Transactions (Prohibition) Act, 2017, respectively were disclosed---Powers under S. 18 of Benami Transactions (Prohibition) Act, 2017, could be exercised only after taking cognizance of the matter under the law---At initial stage summons were not envisaged under S. 21 of Benami Transactions (Prohibition) Act, 2017---After insertion of Arts. 19A & 10A in the Constitution, it could not be termed as notice under S. 22 of Benami Transactions (Prohibition) Act, 2017---It was fundamental right of a person proceeded against under law that information regarding mandatory proceedings and necessary information/material requiring action under the law was duly provided and confronted in show-cause notice---Any notice proposing legal action under the law was not enforceable if it lacked mandatory details---High Court declared that summons for calling petitioner to give statement and affidavit was without jurisdiction and in absence of any lawful authority---Constitutional petition was allowed accordingly.

Faisal Rasheed Ghouri, Yasir Hameed and Muhammad Adnan Afzal for Petitioners.

Monim Sultan, Assistant Attorney General for Pakistan and Adeel Shahid Karim for Respondents.

P L D 2023 Lahore 359

Before Tariq Saleem Sheikh, J

Sheikh SHAN ILAHI---Petitioner

Versus

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

Writ Petitions Nos. 30013 and 5743 of 2021, decided on 31st January, 2022.

(a) Constitution of Pakistan---

----Part II, Chapter 1---Fundamental rights---Categories---Absolute and others---Distinction---Clear distinction has been made by the Constitution between fundamental rights that are absolute and others which are not---Non-absolute are those fundamental rights which are "subject to law" or "subject to reasonable restrictions imposed by law"---No fundamental right can be surrendered or waived and limitations, if any, can be imposed only in public interest and in accordance with law.

Pakistan Muslim League (N) and others v. Federation of Pakistan and others PLD 2007 SC 642 rel.

(b) Constitution of Pakistan---

----Arts. 4, 9 &15---Universal Declaration of Human Rights, 1948, Art. 13---International Covenant on Civil and Political Rights, 1966, Art. 12---Right to travel abroad---Scope---Right to travel abroad is not expressly guaranteed by Art. 15 of the Constitution or any other provision in Chapter 1 of Part II of the Constitution---Courts invoke Art. 4 (right to be treated in accordance with law) and Art. 9(right to life and liberty)of the Constitution to support it.

Pakistan Muslim League (N) and others v. Federation of Pakistan and others PLD 2007 SC 642; Maneka Gandhi v. Union of India AIR 1978 SC 597; Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others PLD 2020 SC 1; Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1; Bauer v. Acheson, Secretary of State, 106 F. Supp. 445 (1952); Leonard B. Boudin v. John Foster Dulles, Secretary of State, 136 F. Supp. 218 (1955); Kent and others v. Dulles, Secretary of State 357 US 116 (1958); Aptheker and others v. Secretary of State, 378 US 500 (1964); Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India AIR 1967 SC 1836; Fazal Karim, Judicial Review of Public Actions, Second Edition, p.1117; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Mian Muhammad Shahbaz Sharif v. Federation of Pakistan and others PLD 2004 SC 583 rel.

(c) Constitution of Pakistan---

----Art. 199---Mala fide action of Execute---Judicial review---Scope---Executive has no inherent power except what is conferred on it by law---Action which is malafide or colourable or taken upon extraneous or irrelevant considerations is not regarded as action in accordance with law---Action taken by an authority on no ground or without application of mind is unlawful and liable to be struck down.

(d) Words and phrases---

----Blacklist---Meaning.

Meriam-Webster Online Dictionary defines "blacklist"; Oxford Advanced Learners' Dictionary and Black's Law Dictionary rel.

(e) Passports Act (XX of 1974)---

----S. 8---Cancelling of passport and blacklist of a person---Scope---Blacklisting cannot be equated with cancellation, impounding or confiscation of passport.

(f) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Good governance---Discretion of officials---Functioning of official business---Procedure---Government is competent to issue instructions and guidelines for smooth running of its departments and offices and, more particularly, to structure discretion of officers which is imperative for good governance---Such instructions and guidelines should not be strident with the Constitution, statutory law and rules validly framed thereunder.

Khan Faizullah Khan v. Government of Pakistan through the Establish-ment Secretary, Cabinet Secretariat and another PLD 1974 SC 291; Mst. Mumtaz Begum through Legal Heirs and others v. Muhammad Shafique and others PLD 2009 Lahore 418; Messrs Sufi Steel Industries (Pvt.) Ltd. v. Federation of Pakistan and others 2018 PTD 378 and Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 SC 694 rel.

(g) Passports Act (XX of 1974)---

----S. 8---Passports Rules, 1974---Passport and Visa Manual, 2006, Para, 51---Exit from Pakistan (Control) Ordinance (XLVI of 1981), S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Blacklisting---Non-issuance of passport---Travel abroad, restriction on---Petitioners (accused) were facing criminal charges and their names were entered in Blacklist maintained for imposing restrictions to travel abroad under para 51 of Passport and Visa Manual, 2006---Validity---Passport and Visa Manual, 2006, was prepared to carry out aims and objects of Passports Act, 1974, as the same was the governing law---Provision of S. 8 of Passports Act, 1974, talked only about cancellation, impounding and confiscation of passport and did not say anything about blacklisting which was a category apart---Passports Rules, 1974, were equally silent on the issue---Para 51 of Passports Rules, 1974, went beyond the legislative policy of Passports Act, 1974 and was, therefore, ultra vires---It was in public interest that offenders should be brought to justice, and the same was more true in respect of fugitives from law---Every case had its own facts and Federal Government could not cancel, impound, confiscate or for that matter blacklist a person mechanically---Each case was to be thoroughly examined before taking any action---Pendency of case against accused could not be a ground to deprive him of the right to travel abroad---High Court declared blacklisting of accused persons to be without lawful authority and of no legal effect---Constitutional petition was allowed, in circumstances.

Citizens' Savings & Loan Association v. Topeka, 20 Wall. 655, 662 (U.S. 1874); Citizens' Savings and Loan Association v. Topeka 20 Wall. 655, 662 (U.S. 1874); West Virginia State Board of Education and others v. Walter Barnette and others (1943) 319 US 624; Moses Hinds and 3 others v. The Queen (1976) 1 All ER 353, 369; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Pakistan Muslim League (N) and others v. Federation of Pakistan and others PLD 2007 SC 642; Sweezy v. New Hampshire (1957) 354 US 234; Al-Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher (1979) 3 All ER 21; Maneka Gandhi v. Union of India AIR 1978 SC 597; London Artists Limited v. Littler (1962) 2 All ER 193, 198; Reynolds v. Times Newspaper (1999) 4 All ER 609, 615; Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372; Tariq Mehmood v. Ministry of Interior, Government of Pakistan and others PLD 2016 Isl. 32; Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan etc. (2018) (M) C.L.R. 1670; The State through Director General FIA, Islamabad v. Alif Rehman 2021 CLD 472; Federation of Pakistan v. General (Retd) Pervez Musharraf PLD 2016 SC 570; Federal Government v. Ayyan Ali 2017 SCMR 1179 and Shabana Noor Ahmed v. Director General Immigration and Passport, Islamabad, and others PLD 2019 Sindh 456 rel.

Mehmood A. Sheikh for Petitioner (in Writ Petition No. 30013 of 2021).

Asad Ali Bajwa, Deputy Attorney General, and Syed Muhammad Haider Kazmi, Assistant Attorney General for Respondents Nos.1-3, 5 and 6 (in Writ Petition No. 30013 of 2021).

Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondent No.4 (in Writ Petition No. 30013 of 2021).

S. Shahryar Khan, Advocate for Respondent No.7 (in Writ Petition No. 30013 of 2021).

Syed Moazzam Ali Shah for Petitioner (in Writ Petition No.5734 of 2021).

Asad Ali Bajwa, Deputy Attorney General, and Syed Muhammad Haider Kazmi, Assistant Attorney General for Respondents Nos.1-4 (in Writ Petition No. 5734 of 2021).

Date of hearing: 31st January, 2022.

"It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism."

P L D 2023 Lahore 380

Before Sultan Tanvir Ahmad, J

Mst. KANEEZA BIBI and 4 others---Petitioners

Versus

SABIR HUSSAIN and 3 others---Respondents

Civil Revision No. 296-D of 2012, decided on 4th October, 2022.

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

----Ss. 39 & 42---Punjab Land Revenue Act (XVII of 1967), S. 42---Punjab Land Revenue Rules, 1968, R. 34---Qanun-e-Shahadat (10 of 1984), Art. 71---Suit for declaration and cancellation of mutation--- Consideration, not proved---Hearsay evidence---Scope---Plaintiff assailed the validity of sale mutation entered in favour of the defendant---Trial Court decreed the suit whereas Appellate Court dismissed the suit---Validity---Preferred witnesses as per S. 42 of the Punjab Land Revenue Act, 1967, i.e. the lamberdar or the members of union councils were not present at the time when concerned revenue officer had allegedly obtained signatures of the parties---Revenue officer had never appeared to depose in favour of the mutation or face cross-examination---Alleged witnesses of agreement to sell had never seen the seller receiving any payment---Deed writer had also admitted that he was not witness of payment of consideration---Judgment and decree passed by Appellate Court was set aside while that of Trial Court was upheld---Revision petition was allowed.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Abdul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Ghulam Qadir v. Kalay Khan and others 2007 SCMR 1184 and Muhammad Ilyas v. Mst. Ijazan and another 1991 SCMR 1508 ref.

Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009 rel.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Punjab Land Revenue Rules, 1968, R. 34---Making of that part of periodical records which relates to land-owners---Roznamcha Waqiati to be maintained by the Patwari---Scope---Section 42 of the Punjab Land Revenue Act, 1967 and R. 34 of the Punjab Land Revenue Rules, 1968 clearly reflect that unless the mutation is of inheritance or it is followed by a registered deed or it is being incorporated on an order of the Court, the same is required to be caused in presence of the person whose right has been acquired and it is necessary that such person is identified by two respectable persons preferably Lambardar, Member Union Committee, Union Council or Town Committee---In the absence of fulfillment of the said requirement of law, the factum of entry in the record cannot carry any presumption of truth---Mere entry in the diary or the relevant page of the diary is not primary evidence, especially when the revenue officer effecting the entry has not himself produced the daily diary before the Court and he has not faced the cross-examination of the rival party.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582 and Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 71--- Suit for declaration--- Consideration, proof of--- Scope--- Payment of consideration is something that can be seen, therefore, there should be some reliable statement(s) of the witnesses who can confirm that they have seen payment being made by the purchaser to the seller.

Farid Ullah Khan v. Irfan Ullah Khan 2022 SCMR 1231; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 and Gulzar Ahmad and others v. Muhammad Anwar and others 2003 SCMR 1008 ref.

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

----Arts. 117 & 188---Onus of proof---Onus is normally on the one who asserts---Person seeking relief fails when he has not led evidence in his support---Where both the parties have led their respective evidence, the Court has to evaluate the evidence on the balance of probabilities and the case is to be decided in favour of one party, unless the evidence of rival arises to the same degree of cogency as is required to discharge the burden in civil matters.

Miller v. Minister of Pensions 1947 All England Law Reports, Vol-2, Page 372 and Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986 rel.

Muhammad Faisal Bashir Chaudhary for Petitioners.

Malik Muhammad Zafar Iqbal for Respondents.

P L D 2023 Lahore 392

Before Jawad Hassan, J

STATE BANK OF PAKISTAN---Petitioner

Versus

FEDERATION OF PAKISTAN and 4 others---Respondents

Writ Petition No. 1026 of 2018, heard on 26th September, 2022.

(a) State Bank of Pakistan Act (XXXIII of 1956)---

----Ss. 4(3), 4B, 4C, 17H & 37---SBP Banking Services Corporation Ordinance (XVII of 2001), S. 5---Cantonments Act (II of 1924), Ss. 60 & 99(2)(f)---Constitution of Pakistan, Art. 165---Property tax, exemption from---State Bank of Pakistan ("SBP"), properties of---Levy of property tax by Cantonment Board---Legality---Whether properties of SBP in the record of Cantonment Board were exempted from payment of property tax by virtue of Art. 165 of the Constitution read with S. 99(2)(f) of the Cantonments Act, 1924---Held, that functions of the State Bank of Pakistan ("SBP") are indeed functions of the Federal Government, and the "SBP" is a statutory corporation under the control of Federal Government---Title of the subject property in occupation of the State Bank of Pakistan ("SBP") indeed vests in the Federal Government and the Cantonment Board has no authority to levy and demand property tax from the "SBP".

Subject premises owned by the State Bank of Pakistan ("SBP") are occupied by the SBP-Banking Services Corporation ("SBP Corporation"), which is a wholly owned subsidiary of "SBP" and functions under the SBP Banking Services Corporation Ordinance, 2001 (the "SBP Ordinance"). The "SBP Corporation" performs only those functions which are delegated by the "SBP" and the "SBP Corporation" is fully owned by the "SBP".

After looking at the regulatory regime of the "SBP" under provisions of the respective law, it can be safely concluded that the functions of the "SBP" are indeed functions of the Federal Government because the regulatory powers conferred on the "SBP", through the State Bank of Pakistan Act, 1956 ("SBP Act") as well as other enactment, covers a broad range of areas which play a vital role in the country's economy. Functions being performed by the "SBP" are in relation to affairs of the Federation.

The "SBP" is a statutory corporation under the control of Federal Government, since all its shares vest in the Federal Government, its income is actually income of the Federal Government and also exempted from income tax, super tax and wealth tax as provided in the SBP Act.

Even under the provincial legislation property tax cannot be levied on properties of the "SBP" and if any tax cannot be levied under the provincial legislation then the same cannot be levied under Section 60 of the Cantonments Act, 1924 ("Cantonment Act") as well. Tax on immovable properties is a provincial subject and Article 165 of the Constitution is relevant in context of determining the application of property tax on "SBP". Most importantly, the contesting respondents have nowhere denied or brought on record any law, rules or regulation that the Federal Government cannot own property through a corporation. Accordingly, in view of the exercise of sovereign powers by the "SBP" and performance of public service in the premises owned by it.

State Bank of Pakistan through Chief Manager, Peshawar v. Federation of Pakistan through Secretary, Ministry of Defense, Rawalpindi and 5 others PLD 2022 Pesh. 46; Central Board of Revenue and another v. S.I.T.E. PLD 1985 SC 97; Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 468 and Water and Power Development Authority through Director Services and Estates v. Excise and Taxation Department, Government of the Punjab through Director General and 4 others 2017 CLC 716 ref.

As regards the contention raised by respondents that the "SBP" is estopped by its conduct to claim exemption from payment of property tax, suffice to mention that it is settled law that no estoppel operates against the law. The question that the "SBP" has been paying the property tax previously is immaterial and does not even arise because if a right originates by provision of a law then such right cannot be withheld simply on the basis of estoppel.

The title of the subject property in occupation of the State Bank of Pakistan ("SBP") indeed vests in the Federal Government and the Cantonment Board has no authority to levy and demand property tax from the "SBP". Resultantly,notices/challan forms laying a demand for payment of property tax from the State Bank of Pakistan are held to be without lawful authority and of no legal effect. Constitutional petition is accordingly, allowed.

State Bank of Pakistan through Chief Manager, Peshawar v. Federation of Pakistan through Secretary, Ministry of Defense, Rawalpindi and 5 others PLD 2022 Pesh. 46 ref.

(b) Words and meaning---

----'Public service'---Meaning.

Black's Law Dictionary 9th Edition ref.

(c) Estoppel---

----No estoppel operates against the law or the Constitution.

Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others PLD 2019 SC 509 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---Maintainability---Non-availing of alternate remedy---Entertaining a writ petition in the presence of other appropriate remedy, will not oust jurisdiction of the High Court when impugned order of a statutory body is without lawful authority, partial, unjust and based on mala fide.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1979 SC 279 ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---Maintainability---Non-availing of alternate remedy of revision---Not exhausting the remedy of revision is not fatal for a Constitutional petition before the High Court.

Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395 and Mrs. Razia Begum v. Cantonment Board, Clifton through Executive Officer, having office at 2-B, East Street, Defence Housing Authority, Karachi and another 2000 YLR 2114 ref.

Salman Ajaib along with Raza Mohsin Qazilbash, Director Legal and Muhammad Nazir Rana, Law Officer for State Bank of Pakistan for Petitioner.

Muhammad Sajid Khan Tanoli, Deputy Attorney General along with Asif Ikram, Assistant Attorney General for Respondents.

Waqar-ul-Haq Sheikh, Advocate Supreme Court along with Ch. Muhammad Yaqoob, Advocate Supreme Court for Respondents.

Date of hearing: 26th September, 2022.

"As Justice Oliver Wendell Holmes put it: "We do not inquire what the legislature meant; we ask only what the statute means."1

P L D 2023 Lahore 412

Before Raheel Kamran, J

Mst. SADAF RASHEED---Petitioner

Versus

SENIOR CIVIL JUDGE and others---Respondents

Writ Petition No. 81201 of 2022, heard on 25th January, 2023.

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

----Ss. 7 & 25---Custody of minor girl---Welfare of minor---Decision upon the custody of minor girl, as far as practicable, must be made on merit on the basis of her welfare being paramount consideration in law.

Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Mirajam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427 ref.

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

----Ss. 7 & 25---Constitution of Pakistan, Art. 10-A---Custody of minor girl---Welfare of minor---Due service---Fair trial---Guardian Court dismissed application of the petitioner/ mother for setting aside ex-parte judgment and decree---Held, that in the absence of proper service and adequate opportunity of hearing granted to both sides, any determination of welfare of the minor could not be termed as lawful and satisfying the requirement of fundamental right to fair trial as guaranteed under Art. 10-A of the Constitution of Pakistan---Constitutional Petition of mother was allowed.

Yaqoob Ali through LRs and others v. Muhammad Ayub and others PLD 2021 Lah. 678 ref.

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

----Ss. 7 & 25---Family Courts Act (XXXV of 1964 ), S. 8---Application for the custody of minor girl---Due service---Fair trial---Service upon the defendant---Presumption---Mother and minor girl were living at a place/district different from the place/district where the father moved application for custody---Guardian Court dismissed application of the petitioner/mother for setting aside ex-parte judgment and decree---Petitioner/ mother claimed that neither she was personally served nor she had any knowledge of the case proceedings---Held, that primary controversy for the Court, in the present case, was that whether the mother was served in accordance with law before decree was passed against her---Without framing issues and recording evidence, the Court below had decided the factual controversy qua residential address of the mother/petitioner while relying on the photocopy of her alleged second marriage in district 'K', produced by the respondent/father---Court also presumed the petitioner's knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her district 'K' address and that notice was also proclaimed in the newspaper having been circulated/published from relevant division---Neither the process server was produced as a witness, in the present case, to establish personal service of summons under S.8 of the Family Courts Act, 1964, upon the mother/petitioner in accordance with law, nor any reference to his (process server's) report to the said effect had been made in the impugned order---In the absence of any acknowledgement due available on record, service of the notice had been presumed by the Court below merely on the basis of postal receipt available on record---Without establishing on record that the mother/petitioner could not be served personally, reliance on publication of the notice could not be considered safe to presume service of the mother/petitioner, particularly when father/respondent himself alleged in his petition for custody that she was an illiterate villager---High Court set-aside impugned order and allowed the application of mother/ petitioner for setting aside ex-parte judgment and decree---Application of father for the custody of minor girl would be deemed to be pending, at the place mother and minor were residing, for decision afresh in accordance with law---Constitutional petition was allowed, in circumstances.

Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mirajam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427; Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCMR 664; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110; Pehalwan Khan v. Mrs. Najma Mujtaba 1986 CLC 1735 and Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240 ref.

Zahoor Nasir Tagga for Petitioner.

A.D. Shahid for Respondent No.2.

P L D 2023 Lahore 416

Before Tariq Saleem Sheikh, J

SABEEN ASGHAR and others---Petitioners

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Writ Petition No. 51488 of 2022, heard on 20th September, 2022.

(a) Constitution of Pakistan---

----Arts. 35 & 37 (c)---Protection of family and social justice---Maternity rights of women---Safeguards---State is obligated under Art. 35 of the Constitution to protect the marriage, the family, the mother and the child and Art. 37(c) of the Constitution requires it to ensure maternity benefits for women in employment.

(b) Constitution of Pakistan---

----Art. 25---Gender discrimination---Scope---Sex discrimination occurs when women's health needs, such as maternity care, are neglected---Violation of right to safe motherhood constitutes an infringement of Art. 25 of the Constitution and also offends women's right to dignity guaranteed by Art. 14(1)of the Constitution---Such right is absolute, non-negotiable and inviolable.

Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right, Cambridge University Press rel.

(c) Constitution of Pakistan---

----Arts. 3, 8(2), 11 & 199---Maternity leave---Object, purpose and scope---Motherhood, protection of---Policy violating fundamental rights---Petitioner ladies were internees with Punjab Workers Welfare Board and their grievance pertained to declining of maternity leave under Internship/Retainership Policy, 2014---Validity---Maternity leave for working women is essential for safe motherhood---It is the basic element of maternity protection---Safe motherhood is the fundamental right of every woman and right to maternity leave should also have the same status---Such right may also be justified under Arts. 3 & 11 of the Constitution which obligates the State to ensure elimination of all forms of exploitation and gradual fulfillment of the principle from each according to his ability to each according to his work---All forms of forced labour are prohibited under Art. 11 of the Constitution---Provisions of Art. 11 of the Constitution would be violated if a woman is compelled to work during advanced stages of pregnancy or immediately after childbirth---Safe motherhood is the fundamental right of every woman and right to maternity leave is its subset and has the same status and should be reckoned as such---Authorities could not deny that right to petitioners merely because Internship/Retainership Policy of 2014 did not provide for it---State is prohibited under Art. 8(2) of the Constitution from making any law - and by extension, any policy - that bereaves or abridges the rights guaranteed by Chap. 1 of Part II of the Constitution---Petitioners were entitled to avail maternity leave with pay without any impact on their career---High Court pointed that out that the authorities should have followed the dictum laid down in an earlier case by the (Lahore) High Court---Constitutional petition was allowed, in circumstances.

Sobia Nazir v. Province of the Punjab 2022 LHC 2414 (Writ Petition No. 16478 of 2022, decided on 21-03-2022) fol.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Government of Sindh and others v. Nizakat Ali and others 2011 SCMR 592; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Sweezy v. New Hampshire (1957) 354 US 234; Al-Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher (1979) 3 All ER 21; West Virginia State Board of Education et.al v. Barnette et.al. (1943) 319 U.S. 624; A (FC) and others v. Secretary of State for the Home Department (2004) UKHL 56; Maneka Gandhi v. Union of India AIR 1978 SC 597; Government of Sindh and others v. Mst. Najma 2001 SCMR 8; Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others PLD 2020 SC 1; Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Olympic Association and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221; Noor Badshah v. United Bank Limited and others 2019 PLC (C.S.) 1433; Dr. Aamna Saleem Khan v. National University of Sciences and Technology, Islamabad, and 4 others 2021 PLC (C.S.) 212; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others 2001 SCMR 909; Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi 2001 SCMR 1733; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132; Seema Gupta v. Guru Nanak Institute of Management 135 (2006) DLT 404; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others AIR 1981 SC 746; Fred Khumalo v. Bantubonke Harrington Holomisa 2002 (5) SA 401 and Barrister Asfandyar Khan and others v. Government of Punjab and others PLD 2018 Lah. 300 rel.

Usama Mushtaq for Petitioners.

Muhammad Nawaz Chaudhry, Assistant Advocate General, with Khalid Amir, Director Education, PWWB; Muhammad Tariq, Deputy Director (Admn), PWWB and Ch. Tariq Javed, Legal Advisor, PWWB for Respondents.

P L D 2023 Lahore 433

Before Raheel Kamran, J

SAIMA NAZIR---Petitioner

Versus

GUARDIAN JUDGE (IV), LAHORE and another---Respondents

Writ Petition No. 41017 of 2022, decided on 3rd February, 2023.

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

----S. 5, Sched. & Sr. Nos. 5 & 6, Part I---Mental Health Ordinance (VIII of 2001), S. 60---Jurisdiction of Family Court---Custody of minors---Guardianship---Visitation rights---Scope---Question before High Court was whether the provisions of Mental Health Ordinance, 2001, contradict and repeal the Family Courts Act, 1964, to take away jurisdiction of the Family Court qua custody of minors who are suffering from any mental disability and vest the same in the Court of Protection---Held; main crux of the Mental Health Ordinance, 2001, essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the Mental Health Ordinance, 2001---Dispute inter se parents of a minor for his or her custody and/or guardianship is manifestly not a subject matter of the Mental Health Ordinance, 2001, which falls within the exclusive domain of Family Court even when the minor suffers from any disability---Provisions of Mental Health Ordinance, 2001, do not contradict and repeal the provisions of S. 5 read with Entries Nos. 5 and 6 of Part I of the Schedule to the Family Courts Act, 1964 to take away jurisdiction of the Family Court in disputes amongst parents regarding guardianship and/or custody of minors who are suffering from any mental disability---Overriding effect of the Mental Health Ordinance, 2001, as provided in S. 60 thereof, is limited to cases of conflict.

Muhammad Khalid Karim v. Mst. Saadia Yaqoob PLD 2012 SC 66 and Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 rel.

Sabar Khan v. Amir Hussain and another PLD 1995 Pesh. 14 and Aurangzeb v. Public at large PLD 2006 Pesh. 116 ref.

Yasmin Jang v. Advocate General, Punjab and others PLD 2022 Lah. 495 distinguished.

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

----S. 5, Sched.---Mental Health Ordinance (VIII of 2001), Ss. 29, 30, 31, 32, 33 & 60---Jurisdiction of Family Court---Judicial proceedings for appointment of guardian of mentally disordered person---Custody of minors---Scope---No doubt Ss. 32 & 33 of the Mental Health Ordinance, 2001, vest authority in the Court of Protection for the appointment of guardian of a mentally disordered person who is incapable of taking care of himself or the manager of his property when he is incapable of managing his property, however, judicial proceedings in that regard are governed by the provisions of Ss. 29 to 31---Requirements of possession of property by the person alleged to be mentally disordered and consent in writing of the Advocate General Punjab prescribed in S. 29 are mandatory prerequisites for judicial proceedings qua appointment of guardian and/or manager under the Mental Health Ordinance, 2001, whereas none of that is required for the assumption and exercise of jurisdiction by the Family Court under the Family Courts Act, 1964, since no minor can be left without a guardian and custodian.

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

----S. 12---Family Courts Act (XXXV of 1964), S. 14---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim custody of minor---Constitutional petition against an order passed under S. 12 of the Guardians and Wards Act, 1890, for the grant of interim custody is maintainable because the remedy of appeal against such an order is not available, as per S. 14(3) of the Family Courts Act, 1964.

Zahida Tahir v. Javed Iqbal and others 2019 YLR 785 and Sarosh Sikander and others v. Guardian Judge, Lahore and others 2021 YLR 1989 ref.

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

----Ss. 4(2) & 25---Family Courts Act (XXXV of 1964), S. 5, Sched.---Custody of minors---"Guardian"---Maintenance, right to---Scope---Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardians and Wards Act, 1890 ('Act')---Definition of "guardian" in S. 4(2) seems to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor---Custody under the Act involves a right to upbringing of a minor---On the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child---Father is considered to be a natural guardian of a minor, even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor---Liability to maintain the minor is not only religious and moral but also legal---Right of custody of father is subordinate to the fundamental principle i.e. welfare of the minor---Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin 1995 SCMR 1206; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mst. Atia Waris v. Sultan Ahmed Khan PLD 1959 Lah. 205; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Nazan Bibi v. Additional District Judge, Jhang and others 2009 YLR 991; Habib-ur-Rehman v. Hina Saeed 2010 MLD 544; Masroor Hussain v. Additional District Judge, Islamabad 2011 CLC 851; Bushra Asghar v. Dr. Rehmat Ali and 3 others 2012 MLD 1755 and Ms. Shazia Akbar Ghalzai and another v. Additional District Judge, Islamabad (East) and 2 others 2021 MLD 817 ref.

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

----Ss. 25 & 12---Custody of minors---Custody of minor girl---Mother, entitlement of---Scope---Mother of minor girls is entitled to their custody unless there is anything available on record to disentitle her.

Mst. Tahira v. Additional District Judge, Rawalpindi and others 1990 SCMR 852 and Mir Bat Khan v. Mst. Sherin Bibi and others 2019 SCMR 520 ref.

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

----S. 12---Interim custody of minor---Scope---Section 12 of the Guardians and Wards Act, 1890, enacts the power to make interlocutory order for production of minor and interim protection of person and property.

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

----S. 4---'Minor'---'Guardian'---'Ward'---Meaning---Unless there is something repugnant in the subject or context, S. 4 of the Guardians and Wards Act, 1890, defines the 'Minor' as a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority; the 'Guardian' means a person having the care of the person of a minor or his property, or of both his person and property and the 'Ward' means a minor for whose person or property or both there is a guardian.

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

----Ss. 1, 5, Sched. 25 & Preamble---Guardians and Wards Act (VIII of 1890), S. 25---Jurisdiction of Family Courts---Custody of minor---Scope---As evident from its Preamble, the Family Courts Act, 1964, has been enacted for the establishment of Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith---Subject to the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, exclusive jurisdiction has been conferred upon the Family Courts to entertain, hear and adjudicate upon matters specified in Part I of the Sched. to the Family Courts Act, 1964---Said subject matters include custody of children and the visitation rights of the parents to meet them as specified in Entry No.5 of Part I of the Sched. whereas the matters of Guardianship are also stipulated in Entry No.6 thereof---Section 25 of the Family Courts Act, 1964, deems the Family Court to be a District Court for the purposes of Guardians and Wards Act , 1890---Barring a few exceptions specified in subsections (4) & (5) of S. 1 of the Family Courts Act, 1964, jurisdiction of the Family Court over matters of custody is exclusive and no other Court including the Guardian Judge has any jurisdiction to deal with such matters.

Muhammad Khalid Karim v. Mst. Saadia Yaqoob PLD 2012 SC 66 and Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 rel.

(i) Interpretation of statutes---

----Repeal by implication---Scope---Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute book with the intention of repealing the one with the other, without expressing an intention to do so---Such an intention cannot be imputed to the legislature without strong reasons and unless that is inevitable---Before adopting the last-mentioned course, it is necessary for the courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication.

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

Ms. Aaminah Qadir for Petitioner.

Rai Shahid Saleem Khan and Hamid Shabbir Azar, Additional Advocates General, Punjab for Respondents.

Birjees Tahir, Ch. Shamshad Ullah Malhi and Bilal Awais, Assistant Advocates General, Punjab.

Iftikhar Gull Khan for Respondent No.2.

P L D 2023 Lahore 446

Before Anwaarul Haq Punnun, J

MUHAMMAD FAYYAZ and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 5899 of 2020, decided on 21st September, 2021.

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

----S. 5, Sched.---Suit for recovery of dower---Wakeel of Nikahnama, liability of---Scope---Plaintiff claimed deferred dower by filing a suit against her father-in-law (defendant) as he had acted as a wakeel of her late husband---Validity---Defendant was a party to the Nikahnama and his name was clearly mentioned in column No. 9 as the 'wakeel of the bridegroom'---Nikahnama also bore his thumb impression---Undeniably, it was primarily duty and obligation of the husband to pay dower to his wife---However, there was no bar or prohibition on another person binding himself as a surety by putting his signature on the Nikahnama, ensuring the payment---Such a surety cannot wriggle out from this legal obligation when a suit for the recovery of dower is brought against him by the wife---Subordinate courts had rightly decreed the suit---Constitutional petition was dismissed.

Gul Akbar and another v. Jameela Afridi and 4 others PLD 2016 Pesh. 109 ref.

Muhammad Anwar Khan v. Sabia Khanam and another PLD 2010 Lah. 119 and Mst. Faqraz Bibi v. Elahi Bakhsh and 2 others 1994 SCMR 686 rel.

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

----S. 5, Sched.---Suit for recovery of dower---Father-in-law, liability of---Scope---Suit for recovery of dower can validly be filed against father-in-law.

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

----S. 5, Sched.---Suit for recovery of dower---Wakeel (Father-in-law) in Nikahnama, liability of---Scope---Word 'wakeel' is synonymous to English word agent----Agency may be created expressly i.e. in writing or through implication; it can even be inferred from the circumstances of the case, from things spoken or written or on the basis of ordinarily course of dealings---By creating agency, the principal confers certain authorities to agent and agent owes certain liabilities in exchange towards principal---Agency remains intact unless rescinded or some act of agent renders him incapable of continuing his authority---Normally agent is not held responsible for enforcement of contract entered by him on behalf of the principal---However, under Islamic law a departure to the general rule in case pertaining to the marriage has been made, particularly, where father had acted as a wakeel of his son/bridegroom---In absence of tangibly expressed repudiation of such authority the agent/wakeel cannot get rid of the liabilities imposed upon him being wakeel/father of bridegroom.

Maulana Mujeebullah Nadvi at page 644, Volume II of his Book "Islami Fiqha" and 'Urdu Daaira Maarif Islamia' at page 21, Volume 23 rel.

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

----S. 5, Sched.---Suit for recovery of dower---Wakeel in Nikahnama, liability of---Scope---Family Court under Section 5 of the Family Court Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband, only bridegroom/husband can be impleaded in the suit for recovery of dower and none else---If another person has stood surety or has guaranteed the payment of dower, he/she can lawfully be impleaded in the suit---Surety and guarantor to the dower are as much party and liable to pay dower as the bridegroom himself.

Khan Asadullah Khan and others v. Sheikh Islamud Din PLD 1978 Lah. 711 rel.

(e) Islamic law---

----Nikah---Scope---Nikah is a civil contract that binds the parties and can be solemnized through an agent or wakeel---All Islamic Schools of thought recognize the nikah performed through a wakeel as valid.

The law of Lexicon with Legal Maxims and Words and phrases reprint Edition 1996 at page 1329 and Urdu English Law Dictionary Edition 2000 published Irfan law Book house page 515 rel.

Muhammad Naeem Bhatti for Petitioners.

Rao Muhammad Ashraf Idrees and Dr. Malik M. Hafeez for Respondents.

Assistance Rendered by Muhammad Javed Khan and Miss Mehwish Mahmood, Research Officers.

P L D 2023 Lahore 453

Before Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ

Mst. SHABEENA YOUNAS---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents

I.C.A. No. 69878 of 2022, decided on 7th November, 2022.

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

----Ss. 12 & 47---Family Courts Act (XXXV of 1964), S. 14(1)---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Maintainability---Custody of minor---Remedy of appeal---Appellant was aggrieved of order passed by Judge in Chambers of High Court dismissing constitutional petition filed against order passed by Lower Appellate Court---Validity---Guardian Court retrieved minor from father and handed over the custody to mother---To such extent finality was attached to the order that had been passed on an application under S. 12 of Guardians and Wards Act, 1890 and was challengeable before Lower Appellate Court as "a decision given" in terms of S. 14(1) of Family Courts Act, 1964---Such appeal was entertained by Lower Appellate Court and had reversed the order which order was challenged through Constitutional petition---In view of availability of appeal under S. 14(1) Family Courts Act, 1964, question that appeal was not provided under S. 47 of Guardians and Wards Act, 1890, against order passed on application under S. 12 of Guardians and Wards Act, 1890, had lost its efficacy---Intra Court Appeal was not maintainable against order passed by Judge in Chambers of High Court in exercise of Constitutional jurisdiction as Lower Appellate Court in appellate jurisdiction has passed order against original order passed by Guardian Court---Intra Court Appeal was dismissed, in circumstances.

Basai v. Qaim Ali and 8 others PLD 2003 SC 325; Syed Muhammad Taqi Raza Naqvi v. Judge Family Court and others 2019 [M] SLR 306; Maliha Hussain v. Additional District Judge-V and another 2017 MLD 485; Mst. Lali v. Muhammad Raheem Bakhsh and another 1987 MLD 2563; Ms. Quratulain Aleem v. Muhammad Rehan Khan 2006 YLR 2604; Shazia Akbar v. Maqsood Ahmed and another 2012 YLR 2266 and Mst. Hafeeza Barohi v. Guardian Judge/Family Judge and another 1987 CLC 1630 ref.

Mst. Karim Bibi and others v. Hussain Baksh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner Centre-I, Lahore PLD 1985 SC 107; Deputy Commissioner/Administrator, District Council, Attock and another v. Lawrencepur Woolen Textile Mills Limited 1999 SCMR 1357 and M. Aslam Sukhera v. Collector Land Acquisition PLD 2005 SC 45 rel.

P L D 2023 Lahore 458

Before Mirza Viqas Rauf, J

Col. (R) MUHAMMAD SHABIR AWAN---Petitioner

Versus

Raja SAGHIR AHMED and 4 others---Respondents

Election Petition No. 01 of 2022, decided on 26th January, 2023.

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

----S. 144---Civil Procedure Code (V of 1908), O. VI, R. 15 & S. 139---Notaries Ordinance (XIX of 1961), S. 8---Contents of Election Petition---Verification of pleadings---"Notary" and "Oath Commissioner"---Distinction---Question for determination before High Court was as to whether "Oath Commissioner" and "Notary Public" was the same for the purposes of S. 144 of the Elections Act, 2017---Held; a Notary is to be appointed under the Notaries Ordinance, 1961---Power to appoint Notary vests in the Provincial Government---Functions of the Notary are laid down in S. 8 of the Notaries Ordinance, 1961---Contrary to this an Oath Commissioner is to be appointed by the High Court under S. 139(b) of C.P.C. and S. 539 of Cr.P.C.---Prime object of appointing Oath Commissioner is to attest affidavits to be produced before a court to prove any particular fact or facts---When subsection (4) of S. 144 of the Elections Act, 2017 mandates that an election petition and its annexures shall be signed by the petitioner and affidavit shall be verified in the manner laid down in the C.P.C. for the verification of pleadings, one would have no other option except to proceed strictly in terms thereof---After reading jointly O. VI, R. 15 and S. 139 of C.P.C. no other inference can be drawn except that pleadings shall be verified on oath and said oaths is to be administered by a person who is duly authorized in this behalf---In terms of S. 139(b) of C.P.C. such an officer or person can only be one whom the High Court may appoint in this behalf, which in no way can be Notary---"Oath Commissioner" and "Notary" are both different and distinct terms/offices---Intermingling of both would result into serious legal complications---When a procedure is prescribed by law for the performance of an act that should be done in that (prescribed) way but in no other way, which command of law is always deemed to be mandatory.

Mushtaq Ahmed v. Sardar Aftab Akbar Khan and others 2019 MLD 1313; Attaullah Khan v. Ali Azam Afridi and others 2021 SCMR 1979 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70 distinguished.

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

----Ss. 139, 142, 143, 144 & 145---Civil Procedure Code (V of 1908), O. VII, R. 11---Election petition---Presentation of petition---Parties to the petition---Contents of petition---Procedure before the Election Tribunal---Rejection of petition---Scope---Chapter IX of the Elections Act, 2017, lays down a procedure for the settlement of election disputes---In terms of S. 139, no election shall be called in question except by an election petition filed by a candidate for that election---For the trial of election petitions under the Elections Act, 2017, the Election Commission of Pakistan appoints as many Election Tribunals as may be necessary for swift disposal of election petitions---Election petition is to be presented in a manner provided under S. 142, and S. 144 lays down necessary pre- conditions for the election petition---Subsection (4) of S. 144 ordains that an election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Civil Procedure Code for the verification of pleadings---Section 145 prescribes a procedure before the Election Tribunal---Subsection (1) of S. 145 contemplates if any provision of S. 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition---Once the Election Tribunal reaches the conclusion that petition is not proceedable it cannot wait till the culmination of the proceedings through regular trial---Mandate of law is to nip the evil in the bud---Civil Procedure Code also bestows power upon the Civil Court to reject the plaint summarily in terms of O. VII, R. 11, if it suffers with the flaws mentioned in the said provision---Election Tribunal, thus, can proceed on the same pari materia and reject the election petition at any stage---Tribunal is even vested with the power to adopt any other procedure for the expeditious disposal depending upon the circumstances of the case---Provisions of the Elections Act, 2017, are unequivocal and clear to this extent that a petitioner while presenting the election petition is obliged to adhere the mandate of Ss. 142, 143 & 144 of the Elections Act, 2017---Non- compliance of any of the said provisions renders automatic rejection of the election petition.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 and Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 ref.

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

----S. 144---Civil Procedure Code (V of 1908), O. VI, R. 15 & S. 139---Contents of election petition---Verification of pleadings---Oath on affidavit by whom to be administered---Scope---Subsection (4) of S. 144 prescribes that the election petition and its annexures shall be signed by the petitioner and it shall be verified in the manner laid down in the Civil Procedure Code for the verification of pleadings---Manner of verification of the pleadings is laid down in O. VI, R. 15, C.P.C.---Said provision of law is to be read with S. 139 of the C.P.C.---Joint reading of both the said provisions clearly shows that the pleadings shall be verified on oath and the oath is to be administered by a person who is duly authorized in this behalf.

Raja Habib ur Rehman for Petitioner.

Barrister Taimoor Aslam Khan for Respondent No.1.

Ex-parte: Respondents Nos. 2 to 5.

P L D 2023 Lahore 465

Before Muhammad Sajid Mehmood Sethi, J

RAHIM DAD---Appellant

Versus

SAEEDA KHANUM---Respondent

Civil Revision No. 30037 of 2021, decided on 26th November, 2021.

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

----S. 8---Civil Procedure Code (V of 1908), S. 2(12)---Punjab Tenancy Act (XVI of 1887), S. 43---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for possession and mesne profits---Application to Revenue Officer for ejectment---Estoppel---Scope---Petitioner assailed the judgment and decree whereby the respondent's suit for possession along with recovery of mesne profits was decreed and the petitioner's suit for specific performance of oral agreement to sell regarding the same suit property was dismissed---Contention of petitioner was that the respondent's suit was not maintainable before the Civil Court rather the same was triable on revenue side---Validity---Petitioner by filing a suit for specific performance of contract had himself denied his status of a tenant---Similarly, in the suit for possession, he reiterated his position to be the owner of the suit land rather than holding that under the landlord---Petitioner, under the principle of estoppel, was estopped from claiming that Revenue Court was required to decide the eviction suit against him under the Punjab Tenancy Act, 1887---Even otherwise, the tenancy between the parties had long extinguished, but the petitioner neither had got the period of his tenancy extended nor had he vacated the possession of the suit land, therefore, his possession over the suit land could not be better than that of an illegal occupant---As regards recovery of mesne profits, Appellate Court had rightly observed that since the petitioner's claim of oral agreement could not be proved and he had been in possession over the suit land without paying even a single penny, therefore, he was directed to pay a certain amount, which was equivalent to the last paid lease money, as mesne profit along with 10% annual mark-up---Revision petition was dismissed.

Messrs Tanveer Spinning And Weaving Mills (Pvt.) Ltd. through Authorized Executive Director Finance v. Tariq Saeed through Shahzad Akber and 2 others 2017 YLR 1762 and Muhammad Parvez v. Additional Rent Controller Walton, Lahore and 2 others 2013 YLR 2714 rel.

Muhammad Aslam v. Muhammad Ismail and others 1999 SCMR 1331; Mst. Nazir Mai v. Additional Secretary and 5 others 2011 YLR 972; Ghulam Rasool v. Government of Punjab through District Officer (Revenue), Sahiwal and 4 others 2016 MLD 1660 and Messrs Tanveer Spinning And Weaving Mills (Pvt.) Ltd. through Authorized Executive Director Finance v. Tariq Saeed through Shahzad Akber and 2 others 2017 YLR 1762 ref.

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

----Art. 114---Estoppel---Scope---Estoppel is a collective name given to a bunch of legal doctrines whereby a person is prevented from making assertions, which are contradictory to his prior position on certain matters before the Court.

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

----Art. 114---Estoppel---Scope---For the applicability of the doctrine of judicial estoppel, three conditions are required to be satisfied: (i) the party's later position must be clearly inconsistent with its earlier position; (ii) whether the first Court had accepted the earlier position; and (iii) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped---Nevertheless, the two crucial conditions are the first and the third---If they are met, even if the second condition is unsatisfied, still the doctrine of judicial estoppel would apply.

New Hampshire v. Maine 532 U.S. 742 rel.

Shri Surendra Nayak v. A.M. Mohammed Shafi 2016 (4) KCCR 3606 ref.

Khawaja Mohsin Abbas, Farrukh Ilyas Cheema, Rizwan Afzal Tarrar and Shehzad Ahmad Cheema for Petitioner.

Malik Muhammad Awais Khalid, M. Siraj-ul-Islam Khan and Mohammad Osman Khan for Respondent.

Research by Muhammad Imran Sheikh, Additional District Judge/Senior Research Officer and Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.

P L D 2023 Lahore 471

Before Jawad Hassan, J

SERVICE GLOBAL FOOTWEAR LIMITED and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 58683 of 2022 (and other connected Petitions), decided on 27th June, 2023.

(a) Income Tax Ordinance (XLIX of 2001)---

----Ss. 2(42), 4, 4C, 80, 114, 120, First Sched., Chap. V, Part-I, Division-I & First Proviso, Division-II B [as inserted by Finance Act, 2022]---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Vires of Super Tax---Discrimination---Term 'person'---Textualism, doctrine of---Applicability---Petitioners/taxpayers assailed imposing of Super Tax on the plea of discrimination---Validity---Term 'person' had wider amplitude and was used in broad sense---All petitioners fell within the definition of a 'person' under S. 2(42) read with S. 80(1)(b) of Income Tax Ordinance, 2001---Petitioners'/ taxpayers' liability to pay tax for income tax had arisen under Chapter II, S. 4 of Income Tax Ordinance, 2001---Liability of petitioners/taxpayers to pay tax, even if created by charging provision, materialized upon filing of return in terms of S. 114 of Income Tax Ordinance, 2001, which was treated as an assessment order under S. 120 of Income Tax Ordinance, 2001, and procedure and method to file return was provided under S. 118(2) of Income Tax Ordinance, 2001---Super Tax imposed for persons other than banking company having income equal to or exceeding Rs.500 million was gradually reduced between years 2018 to 2022 from 3% to 0% as per Division IIA of Income Tax Ordinance, 2001, while at the same time, a new Super Tax was imposed through S. 4C of Income Tax Ordinance, 2001---As per Division IIB of Income Tax Ordinance, 2001, an exorbitant and sudden increase in super tax @ 10% (which was equal to 250% increase from normal maximum rates of super tax) was imposed which was unreasonable and unjustified as compared to Super Tax earlier imposed through S. 4B of Income Tax Ordinance, 2001---There was no basis of imposing 10% Super Tax because already Supreme Court had reduced rate of Super Tax from 10% to 4%---High Court declared First Proviso to Division IIB of Part I of the First Schedule of Income Tax Ordinance, 2001 to be discriminatory on the basis of doctrine of Textualism and documents produced in Court, including budget speech and policy statement---High Court reduced rate of Super Tax to 4% from 10%---Constitutional petition was allowed accordingly.

Shell Pakistan Limited through Legal Counsel and others v. Federation of Pakistan through Secretary Ministry of Finance and others 2023 PTD 607; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan and others 1993 SCMR 1905; Lotte Pakistan PTA Ltd. through Chief Financial Officer and Company Secretary v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2011 PTD 2229 and FBR through Chairman, Islamabad and others v. Messrs Wazir Ali and Company and others 2020 SCMR 959 ref.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 74---Tax year---Types---Special tax year---Scope---There are two types of tax years; one is normal tax year while the other is special tax year---Period of both of tax years in terms of S. 74 of Income Tax Ordinance, 2001 is twelve months---Availing special tax year under S.74(3) of Income Tax Ordinance, 2001, is subject to applying in writing to the Commissioner to use a twelve months' period other than normal tax years---Such permission is further subject to S. 74(5) of Income Tax Ordinance 2001---Availing any special tax year for payment, tax liability is just to accommodate that category of taxpayers and not for the purpose to evade payment of income tax due in a normal tax year.

(c) Interpretation of statutes---

----Fiscal statute---Textualism, doctrine of---Scope---Doctrine of Textualism envisages a method of statutory interpretation that asserts a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history.

(d) Constitution of Pakistan---

----Art. 25---Discrimination---Intelligible differentia, doctrine of---Applicability---Differential treatment of persons who are not similarly placed has been allowed under Art. 25 of the Constitution, under reasonable classification---In order to justify such difference in treatment, reasonable classification must be based on intelligible differentia that has a rational nexus with the object being sought to be achieved---Any distinct treatment meted out to a class of persons can only be sustained under Art. 25 of the Constitution, if such test is satisfied.

Hadayat Ullah and others v. Federation of Pakistan and others 2022 SCMR 1691; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another 2022 SCMR 201 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 rel.

Petitioner(s) by:

Salman Akram Raja, ASC, Malik Ahsan Mehmood, Arslan Riaz and Barrister Raja Hamza Anwar, Advocates (in W.Ps. Nos. 58672, 64994, 67221 and 65025 of 2023).

Mansoor Usman Awan, ASC, Haris Irfan and Hamza Shehram Sarwar, Advocates (in W.Ps. Nos.12761, 58689, 59245, 59251, 59911 and 12768 of 2023).

Barrister Haroon Dugal, ASC with Subhe Nasib, Advocate (in W.P. No.75277 of 2022).

Zoe K. Khan, Advocate (in W.P. No. 75528 of 2022).

Shazib Masud, ASC, M. Asad Buttar, ASC and Jawad Jamil Mailk, Advocate (in W.Ps. Nos.56758, 83260 and 59133 of 2023).

Dr. Mazhar Ilahi, Advocate with Barrister Asfandyar Khan Tareen, Arslan Saleem Chaudhry and M. Siddique Butt, Advocates (in W.Ps. Nos. 567, 829 and 1043 of 2023).

Muhammad Shahbaz Butt, ASC with Khurram Shahbaz Butt, Muhammad Hassan Dogar, Advocates (in W.Ps. Nos. 403, 530, 2452, 4359, 5291, 11364, 11635, 11646, 13559, 13615, 20124, 83497, 67867, 67979, 68023, 68017, 74076, 78120, 79612, 82816 of 2023, 83497 and 83301, 83126, 83311, 5297, 5299, 5347, 83320, 83323 of 2022 and 2023).

Abdul Waheed Habib, Mirza Mubashar Baig and Jawad Ahmad, Advocates (in W.Ps. Nos. 404 of 2023, 83485 and 83486 of 2022).

Munawar ul Salam, ASC, Muhammad Shoaib Rashid, ASC and Hassan Pervaiz, Advocate (in W.Ps. Nos. 60340 and 83294 of 2022).

Adil Umar Bandial and Sajjad Ali, Advocates (in W.P. No.82429 of 2022).

Scheherezade Shaharyar, Advocate (in W.P. No. 78882 of 2022).

Khalil-ur-Rehman, Saad Ullah and Azam Jan Muhammad, Advocates (in W.Ps. Nos. 93, 8245, 323, 10273, 571, 14746, 17747, 83231, 13464, 83098, 83384, 83484, 83473, 930, 6960, 2359 and 23807 of 2023).

Muhammad Nauman Yahya and Shakeel Ahmad Basra, Advocates (in W.Ps. Nos. 108 and 1211 of 2023).

Bashir Ahmad Khalid and M.A. Rizwan Kamboh, Advocates (in W.Ps. Nos. 112, 379, 3423 of 2023, 81874, 82187, 81884, 82192, 82788, 82969, 83482, 83371 and 82805 of 2022).

Jahangir Ahmad, Advocate (in W.Ps. Nos. 163 of 2023 and 83400 of 2022).

Nadir Ali Sherazi, Barrister M. Abubakar and Muhammad Usman, Advocates (in W.Ps. Nos. 200, 312, 627, 1998, 2531, 5550, 6347, 9987, 20606 of 2023, 82897, 82899, 82905, 83321, 83293, 82908, 82910, 66947, 82917, 83417, 83418, 83019, 83023 and 83025 of 2022).

Faisal Rasheed Ghouri and Omar Iqbal Khawaja, Advocates (in W.Ps. Nos. 206, 518, 3455, 2483, 9824, 9825 of 2023 and 67998, 83335, 66678, 68018, 66716, 66947, 67096, 83665, 83667, 83668 of 2022).

Mustafa Kamal, Advocate (in W.Ps. Nos.250, 1339, 1837, 2415, 3397, 4958, 5913, 6645, 12858, 13416, 14899 of 2023, 60348, 64237, 66560, 79617, 80573, 82706, 82905, 83302, 81930, 82935, 83106, 83133, 83322, 83331, 83413, 83446 and 83571 of 2022).

Zia Haidar Rizvi and Zahid Imran Gondal, Advocates (in W.Ps. Nos.304 of 2023, 83590 and 83610 of 2022).

Muhammad Zulqarnain, Advocate (in W.Ps. Nos. 436, 83503 and 83505 of 2023).

Muhamad Asif Rana and Amir Khan, Advocates.

H. M. Majid Siddiqi, Advocate (in W.Ps. Nos. 497 and 1989 of 2023).

Muhammad Faisal Hafeez, Advocate (in W.P. No.556 of 2023).

Ahmad Yar Khan and Hashim Aslam Butt, Advocates (in W.Ps. Nos. 557, 1999, 83392, 83410 and 83433 of 2023).

S.M. Raheel, Advocate (in W.P. No. 577 of 2023).

Mudassar Shujauddin and Shahid Pervez Jami, Advocates (in W.Ps. Nos. 653, 655, 2345, 4736, 82430, 82749, 82769, 82980, 83154, 83156, 83477, 83480, 2251, 83507, 83508, 83349, 83476, 83510 and 83514 of 2023).

Usman Javaid Qazi, Muhammad Waseem and Javed Iqbal Qazi, Advocates (in W.Ps. Nos. 820, 3237 and 3302 of 2023).

Muhammad Zafar Iqbal Mian, Rana Muhammad Ishaq M. Rashid Tobassam and Mar Shoakat Hayat, Advocates (in W.Ps. Nos. 990 and 83166 of 2023).

Muhammad Ashraf Chaudhry and Jamil Akhtar Baig, Advocates (in W.P. No.1012 of 2023).

Basharat Ali Awan, Advocate (in W.Ps. Nos.1137 and 2040 of 2023).

Muhammad Humzah, Advocate (in W.P. 1195 of 2023).

Babar Murtaza Khan, Sajjad Ali Chaudhry and Mian Muzaffar Hussain, Advocates (in W.P. No.1285 of 2023).

Ch. Qamar-uz-Zaman, M. Waqar Akram, Muhammad Khalid, Rai Inam Qadir, Arif Munir, Zeba Munir, Ali Raza Cheema and Muhammad Bilal, Advocates (in W.Ps. Nos. 1404, 1409, 83624, 7096 and 1404 of 2023).

Allah Nawaz Nasir, Advocate (in W.P. No.1851 of 2023).

Waqar Hasan, Advocate (in W.Ps. Nos. 2067 and 2251 of 2023).

Muhammad Naeem and Muhammad Aslam Sheikh, Advocates (in W.Ps. Nos.90, 2362, 5545 and 5576 of 2023).

Ch. Anwaar ul Haq Arif and Shahnawaz, Advocates (in W.Ps. Nos.76770 and 2399 of 2023).

Rai Amer Ijaz Kharal, Advocate (in W.Ps. Nos.3434 and 2403 of 2023).

Amir Fahim Chaudhry, Abbas Ali Awan, Zaheer Ahmad and Abrar Hussain, Advocates (in W.Ps. Nos. 2324, 14472 and 15259 of 2023).

Muhammad Amjal Khan, Khawaja Riaz Hussain, Babar Zaman, Omer Wahab, Rana Usman Habib Khan, Muhammad Ahsan Nawaz and Noureen Fouzia, Advocates (in W.Ps. Nos. 2429, 5427, 12198, 13955, 14272, 83419 and 2630 of 2023).

Muhammad Naeem Munawar and Farhan Ahmed Jan, Advocates (in W.Ps. Nos. 2636, 7192 and 2639 of 2023).

Syed Saif-ur-Rehman Gillani and Asif Hayat Khattak, Advocates (in W.P. No.2715 of 2023).

Muhammad Mohsin Virk, Arfan Ahmad Chattha, Syed Tanzeel Haider, Hamza Habib Shaikh, Ch. Shoaib Ilyas, Tahir Shabbir, Waleed Akbar Chattha and Hassan Irtaza Tarar, Advocates (in W.Ps. Nos.2726, 81772 and 5832 of 2023).

Syed Najaf Hussain Shah, Advocate (in W.Ps. Nos. 3261, 8371, 7868, 7869, 7872, 7874 and 8371 of 2023).

Ahsan Ahmed Munir, Ghias Ahmad and Ramsha Shahid, Advocates (in W.P. No.3431 of 2023).

Rana Muhammad Afzal and Matie-ur-Rehman, Advocates (in W.Ps. Nos. 3442, 83358, 83396, 83422, 83316, 83298, 83223 and 83356 of 2023).

Zeeshan Asif and Rizwan Anwar Baig, Advocates (in W.Ps. Nos. 3704, 3707, 3746 and 3750 of 2023).

Hassan Ali, Waqqas Ahmad Mir, Ahmad Hassan, Momna Taufeeq, Saad Mazhar and Hamza Hayat, Advocates (in W.Ps. Nos. 83141 of 2022 and 3743 of 2023).

Zahid Imran Gondal, Advocate (in W.P. No. 4119 of 2023).

Mahmood Ahmad, Mehmood Arif and Asmar, Advocates Tariq (in W.Ps. Nos.4198 and 5803 of 2023).

Shafaqat Ali, Hassan Maqsood Ahmad Aujla, Waris Nishaber Ali Cheema and Muhammad Idrees Aslam Chauhan, Advocates (in W.Ps. Nos. 4615, 9493, 18117, 4839, 5297, 5299 and 5347 of 2023).

Sardar Abdul Majeed Dogar, Syed Qasim Askari and Sardar M. Arslan Raza Dogar, Advocates (in W.Ps. Nos. 4659 and 8111 of 2023).

Farhan Ahmed Jan, Advocate (in W.P. No.5454 of 2023).

M. Zohaib Ali Sidhu, Syed Ali Tarab, Ali Aqib Shah and Usman Latif, Advocate (in W.P. No.5916 of 2023).

Zahid Ateeq Choudhary, Advocate (in W.P. No.6293 of 2023).

Fahad Majeed Rathor, Advocate (in W.P. No.6300 of 2023).

Javed Farooq, Usman Khalil, Shahzaib ul Hassan Chattha, Ali Ijaz Shah and Tauqeer Ahmad Ranjha, Advocates (in W.Ps. Nos.6549 and 6560 of 2023).

Mahmood Ahmad, Shahid Rasool and Saad Asif, Advocates (in W.P. No.6708 of 2023).

Zahid Ateeq Choudhry, Advocate (in W.P. No.6925 of 2023).

Waseem Ahmad Malik, Mahmood Ahmad, Mehmood Arif and Asmar Tariq, Advocates (in W.Ps. Nos.9221, 83548, 83549 and 75893 of 2023).

Zaheer-ud-Din Babar, Advocate (in W.P. No. 11525 of 2023).

Muhammad Younas Khalid and Umer Farooq, Advocates (in W.P. No.12485 of 2023).

Syed Zeeshan Ali and Syed Muhammad Baqir Ali, Advocates (in W.P. No.12800 of 2023).

Saad Nusrullah and Irtiza Shoukat, Advocates (in W.P. No.13276 of 2023).

Mirza Mubasher Baig, Advocate (in W.P. No.15958 of 2023).

Hassan Kamran Bashir, Sikandar Ali and Asim Bin Majeed, Advocates (in W.Ps. Nos.13154, 16149, 59809, 78738 and 59809 of 2023).

Akmal Inayat Butt, Advocate (in W.P. No.18716 of 2023).

Shehzad A. Elahi, Mussadiq Islam, Salman Zaheer Khan and Ch. Muhammad Ali, Advocates (in W.Ps. Nos. 60005 of 2022, 60425, 81376, 81380, 81384, 81390 and 68129 of 2023).

Malik Faiz Rasool Rajwana, ASC, Barrister Malik Kashif Rajwana, ASC and Malik Asif Rajwana, Advocate (in W.P. No. 64130 of 2022).

Sheikh Anwar-ul-Haq, Sheikh Naveed Anwaar and Sajjid Ali Baloch, Advocates (in W.P. No.65256 of 2022).

Muhammad Asif, Advocate (in W.P. No.65917 of 2022).

Naved A. Andrabi, ASC and Khurram Saleem, Advocate (in W.Ps. Nos.66055, 82705 and 67781 of 2022).

Ahsan Ahmed Munir, Ghiaz Ahmed and Ramsha Shahid, Advocates (in W.Ps. Nos.66883 and 66898 of 2022).

Dr. Ilyas Zafar, ASC with Syed Nasir Ali Gillani, Advocate (in W.P. No.67937 of 2022).

Hamad-ul-Hassan Hanjra, Muhammad Nasir Khan and Muhammad Awais, Advocates (in W.P. No.74210 of 2022).

Sh. Aqeel Ahmad, Advocate (in W.Ps. Nos. 83411, 83412, 75186 and 83424 of 2022).

Sultan Haider Ali Malik, Usman Khalil, Shahzaib ul Hassan Chattha, Ali Ijaz Shah and Tauqeer Ahmad Ranjha, Advocates (in W.Ps. Nos.75811 and 75861 of 2022).

A.W. Chaddha, ASC with Jahanzaib Ahmad and Raja Ali Feroz, Advocates (in W.P. No.75869 of 2022).

Muhammad Jawad Zafar, ASC with Khawar Shabbir Khan and Muhammad Talha Mushtaq, Advocates (in W.P. No.80898 of 2022).

H.M. Majid Siddiqi, Advocate (in W.Ps. Nos. 82101, 83062 and 83079 of 2022).

Muhammad Afzal, Waqas Ahmad Virk and Waseem Bhatti, Advocates (in W.P. No.82260 of 2022).

Barrister Muhammad Abubakar, Advocate (in W.Ps. Nos. 82264, 82420 and 82265 of 2022).

Muhammad Muqaddam Sukhera, Muhammad Mansha Sukhera and Muhammad Ali Awan, Advocates (in W.Ps. Nos.82221 and 82277 of 2022).

Muhammad Ajmal Khan, ASC with Saleem Iqbal Rathor, Omer Wahab, Rana Usman Habib Khan, Muhammad Ahsan Nawaz and Noreen Fouzia, Advocates (in W.Ps. Nos.82305, 82753 and 83295 of 2022).

Salman Aslam Butt, ASC with Muhammad Shoaib Rashid, Furqan Naveed and Manahil Khan, Advocates (in W.Ps. Nos. 83307, 82791 and 82378 of 2022).

Muhammad Ijaz Lashari, ASC (in W.P. No.82670 of 2022).

Mian Abdul Bari Rashid, ASC with Mian Sajid Salam and Asim Mehmood, Advocates (in W.Ps. Nos. 83033, 83035 and 82692 of 2022).

Jamshaid Anwar and Muhammad Riaz, Advocates (in W.P. No.82941 of 2022).

Hamad Ul Hassan Hanjra, Advocate (in W.Ps. Nos. 83048 and 83051 of 2022).

Muhammad Rafique Ch. and Shahbaz Siddique, Advocates (in W.P. No.83149 of 2022).

Barrister Sheharyar Kasuri, ASC, Raza Imtiaz Siddiqui, Jamshid Alam, Muhammad Humza, Sabeel Tariq Mann, Qadeer Kalyar and Fasih-ur-Rehman, Advocates (in W.Ps. Nos.83181, 82708, 82716, 82131, 82721 and 82727 of 2022).

Sumair Saeed Ahmed and Akhtar Ali, Advocates (in W.Ps. Nos.83182, 83185, 83189, 83299, 83289, 83262 and 83318 of 2022).

Syed Alamdar Hussain Naqvi, Rana Sajid Rasool and Rai Abdullah Zahid Khan, Advocates (in W.P. No.83217 of 2022).

Yawar Mehdi Naqvi and Shahid Hussain Ch. , Advocates (in W.P. No.83224 of 2022).

Muhammad Bilal Pervaiz, Advocate (in W.P. No. 83547 of 2022).

Mirza Mahmood Ahmad, ASC with Barrister Muhammad Saram Israr, Advocate (in W.P. No.83256 of 2022).

Munawar us Salam, ASC with Muhammad Shoaib Rashid, Advocate (in W.P. No.83294 of 2022).

Ch. Babar Waheed, ASC with Jawad Latif Chughtai, Moazzam Jaryal, Hamza Sajid and Akash Gohar, Advocates (in W.P. No.83297 of 2022).

Adil Khalid Tirmizey, Barrister Aun Ali Raza, Rida Aslam Bhatti and Ahmed Nisar Khan, Advocates (in W.P. No.83308 of 2022).

Faisal Naseer Rana and Muhammad Mujahid Arshad Tarar, Advocates (in W.P. No.83310 of 2022).

Tanzil-ur-Rehman Hotiana, Advocate (in W.P. No. 83313 of 2022).

Moiz Tariq, ASC with Mian Mansoor Akbar, Advocate (in W.Ps. Nos.83315, 83319, 83332, 83430 and 83436 of 2022).

Zia Haider Rizvi, ASC with Zahid Imran Gondal, Advocate (in W.P. No.83341 of 2022).

Khuram Ahmed Saeed and Muhammad Javed Arshad, Advocates (in W.P. No.83401 of 2022).

Muhammad Ifan, Asaad Fazil Shaikh, Faisal Ismail and Mian Dawood, Advocates (in W.P. No.83414 of 2022).

Muhammad Amir Rehman and Shahbaz Siddique, Advocates (in W.P. No.83425 of 2022).

Sheikh Aqeel Ahmad, Advocate (in W.Ps. Nos. 83437, 83439, 83442, 83426, 83428, 83434, 83435 and 83444 of 2022).

Hassan Shakil, Advocate (in W.P. No.83479 of 2022).

Akhtar Javed, Waseem Ahmed Malik and Mehmood Arif, Advocates (in W.Ps. Nos.83541 and 83546 of 2022).

Rana Munir Hussain, ASC with Shahbaz Siddique, Advocate (in W.P .No.83613 of 2022).

Muhammad Ishaq Beryar and Farhan Shahzad, Advocates (in W.Ps. Nos. 83615, 83617, 83619 and 83620 of 2022).

Respondent(s) by

Nasir Javed Ghumman, Deputy Attorney General for Respondent No.1.

Khalid Ishaq, ASC, Nida Aftab, Ahmad Pervaiz, ASC, Jawad H. Tarar and Syed Zain-ul-Abidin Bukhari, Advocates for Respondent No.2/FBR.

Ms. Asma Hamid, ASC for Respondent No.3/CIR assisted by Noor Ahsan, Hammad Hussain, Muhammad Bilal Munir and Sana Azhar, Advocates along with Mir Badsha Khan Wazir, Chief Commissioner, IR, LTO, Lahore, Muhammad Majid Chudhary, Commissioner, IR, LTO Lahore and Ms. Laila Ghafoor, Director Law, IR Lahore.

Hussain Ibrahim Muhammad, Assistant Advocate General.

Dr. Asim Murtaza Cheema, Civil Judge/Research Officer, Lahore High Court, Lahore.

Dates of hearing: 8th, 9th, 16th, 20th, 21st, 22nd, 29th, 30th, 31st March, 3rd, 4th, 5th, 6th, 7th, 10th, 11th and 12th April, 2023.

"Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes."

P L D 2023 Lahore 503

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD YOUSAF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others---Respondents

Writ Petition No. 30112 of 2021, heard on 5th October, 2021.

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

----S. 12---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for specific performance---Un-partitioned property---Application for impleadment as necessary and proper party by co-sharer---Scope---Petitioner sought enforcement of an agreement to sell against the defendant, but the intervenor appeared with the stance that, as an owner in joint khewat, he should also be impleaded in the suit---Validity---If petitioner succeeded in obtaining a decree of specific performance, it would not harm the intervenor's ownership rights---Furthermore, there was no legal obstacle to proceeding with the suit without including the intervenor and his presence was not required to resolve the points of contention between the petitioner and the defendant---Intervenor was neither necessary nor proper party to the suit and the application for impleadment was dismissed---Constitutional petition was allowed.

Muhammad Baqar v. Mst. Ghulam Parwar and others 2017 SCMR 1062 ref.

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

----O. I, R. 10---"Necessary party"---"Proper party"---Distinction---Party, without whose absence a suit cannot be proceeded with and a final and binding decree cannot be passed, is called "necessary party"---Person whose presence is necessary for the adjudication of all issues and matters involved in the suit and whose interest in or against the relief or the subject matter of the suit may be marginal, nominal, limited or none, is a "proper party"---Person against whom no relief is asked for could hardly be a necessary party but may be a proper party---Another difference between the effect of non-impleadment of a necessary or a proper party is that a suit in which a necessary party is not impleaded, is bad while a suit in which a proper party is not impleaded, is not bad.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591; Muhammad Ayub v. Lahore Development Authority and others 2000 MLD 1809; Lahore Cantt. Cooperative Housing Society Ltd. through Secretary v. Muhammad Anwar and 11 others 2007 CLC 160; Muhammad Shaukat and others v. Ghulam Muhammad and others 2013 CLC 135; Abdul Jabbar and 8 others v. Ghulam Mustafa and 6 others 2019 CLC 704 and Ali Asghar v. Raja M. Siddique and others 2021 CLC 1348 ref.

(c) Co-sharer---

----Partition---Rights of vendee from co-sharer regarding possession---Scope---Vendee purchasing property from a co-sharer, who owns an undivided joint property, is clothed with the same rights in the property, no more or no less than that of the vendor---If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to the vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua ownership rights in the joint property, to the extent of the area purchased, provided that the area in question does not exceed the share which the transferor owns in the whole property---Alienation of specific portion to the vendee would only entitle the latter to retain ostensible possession till such time as an actual legal partition by metes and bounds takes place between the co-sharers.

Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884; Zardad Khan v. Mst. Safia Begum 1998 CLC 2006; Abdur Rehman v. Muhammad Siddique through L.Rs. 2006 MLD 442; Munawar Hussain and 2 others v. Amanat Ali and 6 others PLD 2007 Lah. 83; Nisar Akbar Khan and 15 others v. Jamal Nasir Khan and 4 others 2014 CLC 254 and Ansar Iqbal and others v. Muhammad Ahsan Khan and others 2021 CLC 1394 ref.

Mian Asmatullah and Mian Khursheed Ali Zafar for Petitioner.

Sarfraz Ahmad Bhatti for Respondent No.3.

Nemo for Respondent No.4.

Research by: Muhammad Imran Sh., Addl. District Judge/Senior Research Officer, LHCRC, Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC.

P L D 2023 Lahore 507

Before Faisal Zaman Khan, J

GHULAM ALI---Petitioner

Versus

Rana BABAR KHAN and 3 others---Respondents

Writ Petition No. 49479 of 2020, heard on 26th October, 2022.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 26, 31& 34---Civil Procedure Code (V of 1908), S. 12(2)---Rent proceedings---Civil Procedure Code, 1908, applicability of---Rent Tribunal passed an eviction order in the rent proceedings in which the petitioner was not impleaded---Petitioner moved the Rent Tribunal by filing an application for suspension of eviction order which was dismissed with the observation that since the suspension was sought on the ground that order had been obtained through fraud, therefore, the remedy available to the petitioner was to file an application under S. 12(2) of Civil Procedure Code, 1908---Appellate Court maintained the order passed by the Rent Tribunal---Contention of the petitioner was that his application (for suspension of eviction order) should be decided on merits as an application under S. 12(2) of C.P.C., 1908 could not be filed before the Rent Tribunal in view of bar contained in Ss. 26 & 34 of the Punjab Rented Premises Act, 2009---Held, that the Ss. 26 & 34 of the Punjab Rented Premises Act, 2009 ('the Act 2009') stipulated that, with the exception of the provisions of C.P.C. mentioned in section 26 of the Act 2009, there was a clear ouster of applicability of the provisions of Qanun-e-Shahadat, 1984, and C.P.C. to the Act, 2009 --In view of S. 31 of the Act, 2009, Rent Tribunal would execute the orders passed under the Act, 2009 as a decree of a Civil Court and for said purpose the Rent Tribunal could exercise any or all the powers as a Civil Court---Although in view of S. 26 of the Act 2009, Rent Tribunal could exercise limited powers as contemplated in C.P.C. and by virtue of bar contained in S. 34 of the Act, 2009, there was a bar as to applicability of the remaining provisions of C.P.C., 1908, yet keeping in view the import of S. 31 of the Act, 2009 Rent Tribunal was invested with powers to execute its orders passed under the Act, 2009 as a Civil Court, therefore, Rent Tribunal by virtue of ordinary rule of interpretation could exercise all the powers as contemplated in C.P.C., 1908---Since in view of S. 31 of the Act, 2009, Rent Tribunal could exercise/invoke the provisions of C.P.C.,1908 and could exercise the jurisdiction accordingly, thus where a person was aggrieved of an order passed by the Tribunal under the Act, 2009 on the basis of fraud he could challenge the same through an application under S. 12(2) of the C.P.C. and the ouster as contained in Ss. 26 & 34 of the Act, 2009 would not apply---No illegality or infirmity was noticed in the impugned orders and judgments passed by both the Courts below---Constitutional petition was dismissed, in circumstances .

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 ref.

Mehar Abdul Shakoor for Petitioner.

Nemo for Respondents.

P L D 2023 Lahore 512

Before Ali Zia Bajwa, J

ZULFIQAR ALI---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

Writ Petition No. 47617 of 2022, decided on 26th October, 2022.

Criminal Procedure Code ( V of 1898)---

----Ss. 491 & 497---Constitution of Pakistan, Art. 199---Petition(s) before the High Court---Relief(s) sought from the High Court in petition(s) [of bail/harassment/habeas corpus etc.] moved by a petitioner/accused---Criminal history of such petitioner/accused, submission of---Scope and effect---Non-mentioning of criminal cases(s) in which acquittal of the accused was already secured---Held, that the it was common practice of police to produce a list of criminal cases registered against the petitioner, knocking at the door of the High Court for relief, during the adjudication of petitions pertaining to bail, harassment and habeas corpus etc.---It was done with the purpose of establishing criminal antecedents of the petitioner/accused seeking relief from the Court---Previous criminal history had, sometimes, profound impact and was often considered by the Court(s) while granting bail, which was a relief discretionary in nature or other relief rooted in equity---High Court observed that, more than often, criminal history of a petitioner was placed on the record which contained a number of cases in which he had already earned acquittal---Criminal history must only reflect the cases where the petitioner/accused was convicted, including the suspended sentences and all pending FIRs wherein he stood arraigned as an accused---Whereas cases resulting in acquittal or discharge, and FIRs having been quashed or withdrawn, could not be enlisted against the accused---Report submitted by concerned Police Officer stated that in order to computerize the record of a criminal case, Police Station Record Management System (PSRMS) had been developed, in which all FIRs and their data related data was saved, including the final fate of a criminal case; that all police stations in the Province had been connected with the said system; that instructions had been issued to all District Heads of Punjab Police to upgrade the record of all accused after the decision of the Court and a monthly review would be conducted ; that all record having been duly entered into PSRMS would be produced before the High Court after having duly been verified by the DSP Legal at District level---After the digitalization of the entire police record, obtaining an accurate criminal history of any person would be just a 'click' away---Mentioning of any case in criminal history list in which acquittal had been secured by a petitioner/accused, being irrelevant, was violative of his fundamental rights and was an attempt to prejudice the mind of the Court through misrepresentation---Practice of submitting only a list of criminal case(s) registered against the petitioner/accused without the final fate or present status of such case(s) was deprecated by the High Court---High Court issued directions for submission of criminal history of the petitioner/accused before the High Court with the same(list/history) showing true and updated status( pending or having been decided by the Trial Court)of criminal case(s) after having entered into police register as well as PSRMS with co-ordination of all concerned at police hierarchy---Constitutional petition was disposed of accordingly.

Naveed Ahmed Khawaja for Petitioner.

Muhammad Yar Gondal, A.A.G. with Muhammad Ahsan Younas, DIG (I.T.), Mohammad Zohaib Nasrullah Ranjha, S.P/C.R.O, Lahore, Mian Tanvir Ahmed, DSP-Legal (C.P.O.), Shahid Siddique, DSP-Legal (Additional I.G. Investigation) and Malik Khuda Yar, Inspector-Legal for Respondents.

P L D 2023 Lahore 516

Before Muhammad Sajid Mehmood Sethi, J

The INDUS MOTOR COMPANY LIMITED---Appellant

Versus

ABDUL KHALID GILL and another---Respondents

F.A.O. No. 03 of 2018/BWP, decided on 8th February, 2021.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 25---Defective part/item of sold product (car)---Warranty offered by the manufacturing company---Scope---Consumer Court directed the appellant to replace the defective engine of the vehicle with new one without any charges---Contention of the appellant/motor vehicle manufacturing company('company') was that the quality of engine had been compromised on account of improper periodic maintenance and use of non-branded/substandard lubricants/filters as maintenance of the vehicle was not carried out by its(company's) dealer---Held, that the documentary evidence produced by the respondent/claimant, inter alia, showed that engine oil and filters of a branded company were used after regular intervals---Contents of the Warranty Booklet did not impose any burden upon the respondent for carrying out maintenance from authorized dealer(s), rather free maintenance service was offered and the customer was advised to follow the instructions regarding maintenance contained in Owner's Manual for efficient working of the vehicle---Furthermore, "engine" fell within the items which were covered by the Warranty; and it was mentioned in the Warranty Booklet that the company would either repair or replace any part which would be revealed defective in material or workmanship under normal use within certain basic coverage period---Documents relied upon by the respondent for coverage of such period had not been disputed by the appellant/company---Vehicle-in-question was also within warranty period when the defect was communicated to the appellant/company---High Court maintained the order passed by the Consumer Court that the appellant/company was bound to replace the defective engine of the vehicle with new one without any charges---Appeal was dismissed, in circumstances.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 25---Defective part/item of sold product (car)---Warranty offered by the manufacturing company---Expert opinion---Not necessary where malfunction admitted---Consumer Court directed the appellant/company to replace the defective engine with new one without any charges---Contention of the appellant/motor vehicle manufacturing company ('company') was that the Consumer Court was obliged to invite expert evidence to establish the condition of the engine---Held, that the appellant/company had not denied malfunctioning of the engine and its stance was that the defect occurred due to negligence of respondent/consumer---Consumer Court had rightly appreciated the facts and evidence while not calling for any expert evidence---High Court maintained the order passed by the Court below that appellant/company was bound to replace the defective engine of the vehicle with new one without any charges---Appeal was dismissed, in circumstances.

(c) Punjab Consumer Protection Act (II of 2005)---

----Ss. 10 & 25---Defective part/item of sold product (car)---Warranty offered by the manufacturing company---Damages, award of---Scope---Consumer Court ordered the appellant/company to pay damages to the respondent/consumer while directing the appellant to replace the defective engine of the vehicle with new one without any charges---Held, that the respondent/consumer was under heavy duty to substantiate financial loss, mental torture/agony at the hands of appellant/company through independent and reliable evidence, which he (respondent/consumer) had failed to produce---Respondent had not suffered any damage from the vehicle, rather the defect was observed during a routine check-up---Restriction contained in the S. 10 of Punjab Consumer Protection Act, 2005 which stated that "where the consumer has not suffered any damage from the product except the loss of utility, the manufacturer shall not be liable for any damages except a return of the consideration or a part thereof and the costs"---Consumer Court had though rightly appreciated the facts and evidence while coming to the conclusion that the appellant/company was bound to replace the defective engine of the vehicle with new one without any charges, however, the Court below was not justified to award damages to the respondent/consumer---Claim of the respondent/consumer to the extent of damages was declined---Appeal was partly allowed.

(d) Punjab Consumer Protection Act (II of 2005)---

----Ss. 25 & 28---Defective part/item of sold product (car)---Claim of the consumer in light of the warranty offered by the manufacturing company---Cause of action, accrual of---Limitation---Consumer Court directed the appellant to replace the defective engine of the vehicle with new one without any charges---Contention of the appellant/motor vehicle manufacturing company ('company') was that the claim of the respondent/consumer was time-barred as the cause of action accrued when the matter was reported for the first time by the complainant, whereas he filed complaint after about forty-six (46) days of said reporting---Validity---Record revealed that the prescribed notice in terms of S. 28(1) of the Punjab Consumer Protection Act, 2005 ('the Act 2005') was issued to the appellant about seventeen (17) days after the defect had been reported---Reply to the said notice, denying the claim of the respondent/consumer, was transmitted by the appellant after thirty (30) days of reporting but fifteen (15) days of sending of notice---Cause of action, in the present case, accrued on said date of denial of claim by the appellant/company, thus the complaint having been filed after about fourteen (14) days of said denial was well within time prescribed in S. 28(4) of the Act, 2005---High Court maintained the order passed by the Consumer Court that the appellant/company was bound to replace the defective engine of the vehicle with new one without any charges---Appeal was dismissed, in circumstances.

Messrs Deltex Courier Service v. Sajid Imran Gill and others 2019 CLC 1041 ref.

Sheikh Usman Ahmad and Shehryar Sindhu for Appellant.

Nadeem Iqbal Ch., Rana Rizwan Ahmad and Nusrat Jabeen for Respondents.

P L D 2023 Lahore 522

Before Raheel Kamran, J

RUKHSANA BIBI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 33181 of 2023, decided on 23rd May, 2023.

Passport and Visa Manual, 2006---

----Cls. 33 & 51---Constitution of Pakistan, Arts. 4, 9 & 15---Emigration Ordinance (XVIII of 1979), S. 22---Black listing of a person---Fugitive from law---Right to return to Pakistan to face proceedings---Scope---Criminal case was registered against the husband of the petitioner under S. 22 of the Emigration Ordinance, 1979, for allegedly having fraudulently received a huge amount for sending a few persons abroad---Accused (the husband of petitioner) left Pakistan during the pendency of trial of the said case and his name was placed in the blacklist and his passport also expired while abroad---Petitioner (wife of accused) invoked constitutional jurisdiction of the High Court contending that her husband's name from the blacklist be removed for his return to Pakistan in order to renew his passport as well as to face trial---Validity---Though Cl. 51 of the Passport and Visa Manual, 2006 ('the Manual 2006') prescribed procedure, certain conditions, proceedings etc. for blacklisting, however, the same (provisions) could only be invoked for any citizen of Pakistan wanting to leave country---However, in the present case petitioner's husband was desirous of entering Pakistan---Astonishingly, on one hand his name had been placed in the blacklist due to his involvement in a criminal case and managed to leave Pakistan to avoid trial in the said case whereas, on the other hand, his entry in Pakistan had been refused---Article 4 of the Constitution guaranteed the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law ; and Art. 9 of the Constitution assured that no person be deprived of life or liberty except in accordance with law; and Art. 15 of the Constitution gave every citizen the right to remain in, enter and move freely throughout Pakistan and to reside and settle in part thereof subject to any reasonable restriction imposed by law in the public interest---Although being a fugitive from law, the accused lost some of his rights such as right to audience as well as right to have an advocate to defend him, however, loss of such rights was till such time the accused surrendered himself before the Court---Right to return to the homeland to surrender before the Court or the concerned Law Enforcement Agency to face proceedings in accordance with law was something a citizen was not to be deprived of owing to his obscondance---Name of petitioner's husband had wrongly been placed in the blacklist , however, since the petitioner's husband was involved in a criminal case, therefore, he had to face trial in the same (case)---Under Cl. 33 of Passport and Visa Manual 2006, for repatriation from abroad , a single sheet emergency passport could be issued valid only for return to Pakistan---High Court directed the respondents to remove name of the petitioner's husband from blacklist with direction to issue single sheet emergency passport to the petitioner's husband for fifteen days only under Clause 33 of Passport and Visa Manual 2006, enabling his return to Pakistan to face the trial in criminal case---Constitutional petition was disposed off accordingly .

Hayat Bakhsh and others v. The State PLD 1981 SC 265; Lahore High Court Bar Association and others v. General (Retd.) Pervez Musharraf and others 2019 SCMR 1029 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 ref.

Mian Shahid Mehmood for Petitioner.

Muhammad Mansoor Ali Sial, Assistant Attorney General for Pakistan for Respondents.

P L D 2023 Lahore 528

Before Aalia Neelum and Farooq Haider, JJ

ZAHEER AHMED---Petitioner

Versus

JUDGE, SPECIAL COURT and others---Respondents

Criminal Revision No. 23556 of 2022, heard on 31st January, 2023.

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

----Art. 161---Criminal Procedure Code (V of 1898), S~~s~~. 94 & 540---High Court (Lahore) Rules and Orders, Volume III, Chap. 1-E, R.2---Evidence, summoning/examining of---Lacuna, filling of---Disputed signatures on bank cheques---Withdrawal of amount through two cheques from two bank accounts of deceased father of the petitioner/ complainant was disclosed to him---Petitioner/complainant filed complaint before the Special Court (Offences in Respect of Banks) against accused persons alleging that they managed forged signatures on the disputed cheques as his octogenarian ailing father was bed-ridden and unable to sign any cheque---After summoning of the accused persons by the Trial Court, the Petitioner/complainant moved an application to send record available with the banks to the Punjab Forensic Science Agency for comparison of disputed signatures on cheques-in-question with the original/admitted signatures of his late father having been put/taken at the time of opening of bank account on Specimen Signatures Cards (SS Card)---Trial Court dismissed the application moved by the petitioner/complainant---Contention of the petitioner/complainant was that comparison of the signatures prayed for was necessary for just decision of the case---Validity---Entire controversy in the present case revolved around the disputed signatures of the petitioner's father on cheques which were encashed from the banks---Criminal justice system was not adversarial rather inquisitorial and the Court had to reach at just decision of the case, any piece of evidence which was essential for just decision of the case had to be brought on record irrespective of the fact that either the same would have favoured one party or the other---Similarly, filling lacuna in the case was immaterial if said piece of evidence was otherwise necessary for securing ends of justice---Dealing with recording of evidence in criminal cases under Chapter-E of Volume III of the High Court (Lahore) Rules and Orders, its R. 2 prescribed the duty of the Court to elucidate facts while Art. 161 of Qanun-e-Shahadat, 1984 gave wide powers to the judge to put question or to order production in order to discover/obtain proper proof of relevant facts---Section 94 of the Criminal Procedure Code, 1898, also empowered the Court for summoning to produce document or other thing---Section 540 of the Criminal Procedure Code, 1898, stipulated various directory as well as mandatory powers to the Court regarding summoning or examining, thus, as far as filling lacuna left by any party was concerned, if any evidence/ material was necessary for just decision of case, then it became mandatory for the Court to summon and examine such evidence/material---High Court set-aside impugned order passed by the Special Court (Offences in Respect of Banks), and allowed the application moved by the petitioner/complainant, and directed the Trial Court to send record to the Punjab Forensic Science Agency to have comparison of signatures of deceased father of the petitioner/ complainant available on the disputed cheques with the admitted signatures of the said deceased available on Specimen Signatures Card---Criminal revision was allowed, in circumstances .

Abdul Latif Aasi v. The State 1999 MLD 1069; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 ref.

Abid Mehmood Sandhu and M. Usman Hanif Qureshi for Petitioner.

Ms. Amera Salam, Assistant Attorney General for the State.

Nemo (Although name of learned counsel for respondents Nos.2 to 5 reflects in the Daily Cause List issued for today as apprised by Addl. Registrar (Court)).

Sarmad Ali Khan, vice for Respondent No.6.

Ch. Sohail Khursheed for Respondent No.7.

P L D 2023 Lahore 536

Before Mirza Viqas Rauf, J

ATIF RIAZ---Petitioner

Versus

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

Writ Petition No. 2571 of 2021, decided on 11th February, 2022.

(a) Constitution of Pakistan---

----Art. 199 (1)(a)(ii)---Writ of certiorari---Object, purpose and scope---Through a writ of certiorari, High Court on one hand is vested with power to correct errors committed by inferior Courts or Tribunals and on the other hand to annul acts or proceedings taken by inferior bodies without any lawful authority---Order of certiorari is issued out of High Court and is directed to judge or officer of an inferior tribunal to bring proceedings in a cause of matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant of the order may have more sure and speedy justice; it may be had in either civil or criminal proceedings---Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction---Character and scope of certiorari issued is for correcting error of jurisdiction---High Court is empowered to interfere in all cases of excess of jurisdiction, whether the person exceeding jurisdiction is a Court, a judicial or a quasi-judicial body or a purely executive or administrative Tribunal or officer, provided such body, authority or officer is performing functions in connection with the affairs of the Federation, a Province or a local authority---Writ of certiorari cannot be used as a substitute of appeal or revision as its scope is limited.

Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others 2009 SCMR 210; Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 and Bashir Ahmad Khan v. Additional Sessions Judge and others 2020 MLD 42 rel.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIV of 1975)---

----Ss. 25 & 30---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of lessee---Vested right---Malice in fact---Factual controversy---Petitioner was aggrieved of his ejectment from the evacuee property which was leased out to him---Validity---Federal Government is competent under S. 25 of Evacuee Trust Properties (Management and Disposal) Act, 1975, to eject any person in possession or occupation of any evacuee trust property, if it is required for an object considered to be for public purpose---Evacuee properties are mainly meant for charitable, religious and educational purposes---Question as to a whether a property is required for public purpose, exclusively falls within the domain of Federal Government---Lessee has no vested right to get it enforced through Constitutional petition---Terms and conditions of lease agreement cannot be implemented by resorting to Constitutional jurisdiction of High Court---Contention of petitioner that he was made victim of malice in fact by itself was question requiring factual determination---Constitutional jurisdiction could not be exercised for determining a question of fact---No fetters could be put to powers of executive to utilize such property for public welfare only on the whims and caprice of the lessee---Such exercise or ejectment of petitioner would not cause prejudice to the rights of respondent as the lease property was no more available---High Court in exercise of jurisdiction under Art. 199 (1)(a)(ii) of the Constitution declined to interfere in the matter as order cancelling lease was not without lawful authority---Constitutional petition was dismissed, in circumstances.

Abdullah and 7 others v. Province of Balochistan through Secretary Education Civil Secretariat and another 2021 PLC (C.S.) 272; Suo Motu Case No.13 of 2009 PLD 2011 SC 619 and Dr. Mrs. Nasim Qureshi v. Deputy Administrator, Evacuee Trust Property, Karachi and another 1987 CLC 213 distinguished.

Food Corporation of India and others v. Jagannath Dutta and others 1993 SCMR 2249; Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252; Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others PLD 1961 SC 426; Kalua v. The State of Uttar Pradesh PLD 1958 SC (Ind.) 347; "Judicial Review of Public Actions" Volume 2 (Second Edition); Alconbury Developments Ltd v. Secretary of State for the Environment, Transport and the Regions and other cases 2001 UKHL 23; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Punjab National Bank and others v. Manjeet Singh and another AIR 2007 SC 262; The Tariq Transport Company, Lahore v. (1) The Sargodha-Bhera Bus Service, Sargodha, (2) The Regional Transport Authority, Lahore and (3) The Provincial Transport Authority, Lahore PLD 1958 SC (Pak.) 437 and Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 rel.

(c) Words and phrases---

----Eject---Meaning.

Advanced Law Lexicon 5th Edition and Black's Law Dictionary Tenth Edition rel.

(d) Interpretation of statutes---

----Mandatory provision---Determining factor---Provision of any law can only be termed as mandatory when on account of its non-compliance some penal consequences are also provided---In absence of any penal consequences generally such provision can be treated as directory.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Malik Qamar Afzal for Petitioner.

Sajeel Shahryar Swati, Ramshah Kamran, Saman Mamoon and Tahir Malik, Assistant Attorney General, Pakistan for Respondent No.1.

Mudassar Ikram Ch. for Respondents Nos.2 to 4.

Muhammad Waqas Malik for Respondent No.5.

Rao M. Akram Khurram, Assistant Advocate General Punjab and Riaz M. Moazzami for Respondent No.6.

P L D 2023 Lahore 555

Before Sultan Tanvir Ahmad, J

MUHAMMAD IBRAHIM QURESHI---Petitioner

Versus

MUHAMMAD ASLAM and 3 others---Respondents

Civil Revision No. 177-D of 2020, heard on 1st June, 2022.

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

----S. 12---Bar to further suit---Scope---Section 12(1), C.P.C. provides that when a person is precluded by rules in respect of any particular cause of action then on such cause of action he is not entitled to institute a further or separate suit in any court---Subsection (2) of S. 12, C.P.C. provides the remedy of filing application against the judgment and decree or order, if obtained by fraud, misrepresentation or want of jurisdiction---Combined reading of the two subsections makes it profusely clear that application under S. 12(2) of the Code can only be made if the misrepresentation is made or fraud is committed with respect to the subject matter of the suit on which the order, judgment or decree is passed, as the aggrieved litigant is precluded under S.12(1) of the Code to pursue an independent remedy.

Haleema Shuja v. Mst. Syeda Mehmooda Begum (Deceased) through L.R. and others PLD 2021 Lah. 533; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Bashir Ahmad through Legal Representative and others v. Muhammad Hussain and others PLD 2019 SC 504; Niamatullah Khan Advocate and others v. Federation of Pakistan and others 2022 SCMR 171 and Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 ref.

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

----S. 12---Bar to further suit---Scope---Fraud and misrepresentation, which are grounds for the application of S. 12(2) of the Code, should have been practiced during the proceedings in the Court and not outside the Court.

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

----S. 12---Bar to further suit---Recording of evidence---Scope---Framing of issues and recording the evidence is obligatory when the Court considers that any such issue is raised in the application which is required to be resolved by leading evidence, however, when the Court dealing with the application is satisfied that the application can be decided even without framing the issues and the same does not involve any complicated question of fact, the framing of issue or recording evidence is not inevitable---It is primarily the satisfaction of the Court of first instance dealing with the application under S. 12(2), C.P.C., which is important and no yardstick for the same is fixed and the same varies from case to case.

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

----S. 12---Bar to further suit---Recording of evidence---Scope---Allegations of fraud and misrepresentation normally involve investigation into questions of fact but not in every case it is obligatory for the Court to frame issues and record evidence.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 and Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 ref.

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

----S. 12---Bar to further suit---Recording of evidence---Limitation---Scope---Recording of evidence is not mandatory when the pleadings do not disclose mixed question of law and facts---When the question of limitation is one which can be resolved purely on the basis of law, without adverting to the facts, the same can be resolved even without framing the issues.

Shumail Waheed v. Rabia Khan 2021 MLD 252 rel.

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

----S. 5---Condonation of delay---Scope---Date of knowledge---Where application under S. 5 of the Limitation Act, 1908 was filed with the averments that the Court had been contacted as and when the petitioner came to know about the decree impugned therein, High Court observed that the contention was not plausible as no specific date of knowledge was given.

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

----S. 5---Condonation of delay---Scope---Facility regarding extension of time for challenging an order cannot be legitimately stretched to any length of unreasonable period at the whims, choices or sweet will of the delinquent party and date of knowledge of the challenged order must be established on sound basis.

Muhammad Raz Khan v. Government of N.W.F.P. and another PLD 1997 SC 397; Bashir Ahmed through Legal Representative and others v. Muhammad Hussain and others PLD 2019 SC 504 and Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158 ref.

Muhammad Saleem Faiz, Riaz Ahmad and Mian Muhammad Haroon for Petitioner.

Muhammad Tahir Saeed Ramay, Shabbir Ahmad Bajwa, A.R. Aurangzeb and Malik Muhammad Altaf Nawaz for Respondents.

P L D 2023 Lahore 564

Before Safdar Saleem Shahid, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

WASEEM ARSHAD and others---Respondents

Civil Revision No. 205 of 2016/BWP, heard on 4th October, 2021.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30---Punjab Land Revenue Act (XVII of 1967), S. 45---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Acquisition of proprietary rights---Restriction on variation of entries in records---Scope---Respondents filed a suit seeking a declaration as to their ownership of the suit land and alleged that the order by the Board of Revenue whereby it had cancelled the allotment in favour of original allottee, was void ab initio and requested for a permanent injunction as consequential relief---Trial Court decreed the suit whereas Appellate Court dismissed the appeal filed by petitioners---Validity---Collector's order had confirmed the original allottee's proprietary rights through a registered deed---Original allottee had subsequently sold the land to the predecessor-in-interest of the respondents, who had transferred it to the present respondents---Despite occupying the land since 1993, the revenue authorities had neither issued any notice nor raised any objection---Revenue authorities had failed to provide evidence that the original allottee was not entitled to the land or that he had violated the scheme's conditions---Original allottee had complied with the scheme, paid the required amount, and received Patta Malkiyat for the original allotted land---Revenue authorities had initiated proceedings against the original allottee but had not involved the present respondents---Provincial Government had no right to claim ownership---Punjab Land Revenue Act, 1967 stipulates that reviews of mutations or revenue records should be done within a specific time and if any fraud is detected it can only be challenged through a civil suit---Revenue authorities had no right to take action when the revenue record showed a registered sale deed and the names of the new owners---No notice was issued to the new owners during the proceedings---Board of Revenue's order, after the issuance of Patta Malkiyat and registration of the conveyance deed, was unlawful---Revision petition was dismissed.

Province of the Punjab, through District Officer, Toba Tek Singh and others v. Nazir Ahmed and 9 others 2008 SCMR 749 and Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD 441 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30---Acquisition of proprietary rights---Scope---After confirming proprietary rights and registration of conveyance deed, allottee would become absolute owner of the land.

Abdul Rehman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another 2006 CLC 543 rel.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30---Acquisition of proprietary rights---Scope---After payment of full price of land such person becomes absolute owner of the same and property comes out of the ambit of Colony/Revenue authorities and after the grant of proprietary rights and registration of conveyance deed no further action can be taken by the revenue department including Board of Revenue---Revenue authorities cannot cancel the allotment of the land---Thereafter, under such circumstance, no proceeding can be done under S. 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 and no order can be passed.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30---Acquisition of proprietary rights---Scope---After proprietary right and registered sale deed, the powers of the revenue authorities to review or to take any action regarding the revenue record/allottee, allotment of land on the allegation of fraud or any other illegality is against the law.

Noor Ahmad v. Member, Board of Revenue 1986 MLD 2065 and Muhammad Tariq v. Member, Board of Revenue, Punjab, Lahore and others 2007 CLC 1123 rel.

(e) Administration of justice---

----Nobody can be condemned unheard.

Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 ref.

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

----S. 9---Courts to try all suits unless barred---Scope---Civil court is the court of ultimate jurisdiction and as such, it has jurisdiction to interfere in the matters where illegality is committed.

Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521; Muhammad Nazir Khan v. Ahmad and 2 others 2007 YLR 1696 and Muhammad Jaffar Khan and others v. Muhammad Ali Tariq and others 2015 MLD 763 rel.

Malik Shah Nawaz Kalyar, A.A.G. for Petitioners.

Ahmad Mansoor Chishti for Respondents Nos. 1 and 3.

P L D 2023 Lahore 572

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD ALI GHORI and another---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Ministry of Transport and Communication, Lahore and others---Respondents

Writ Petition No. 8317 of 2020, decided on 22nd February, 2021.

Punjab Motor Vehicle Rules, 1969---

----Rr. 96 & 267(1)---Rules 96 and 267(1) of Punjab Motor Vehicle Rules, 1969, vires of---Delegated legislation---Scope---Rules are subordinate and delegated legislation deriving authority and legal cover from the provisions of main statute and cannot override provisions of the statute---To determine vires of delegated legislation, High Court has to examine whether such delegated legislation was beyond the power granted by enabling legislation and whether such delegated legislation was consistent with the parent statute---Rule of interpretation is that delegated legislation can only be struck down if it was directly repugnant to general purpose of the statute which authorized it or was repugnant to well established principle of statute---Provisions of R. 267(1) of Punjab Motor Vehicle Rules, 1969, were framed granting right of appeal in respect of matters enumerated in Chapter VIII of Punjab Motor Vehicle Rules, 1969, which had been framed by deriving authority from S. 96 of Provincial Motor Vehicle Ordinance, 1965, the parent statute---Power of delegated legislation bestowed by Provincial Motor Vehicle Ordinance, 1965, was rightly exercised while framing Punjab Motor Vehicle Rules, 1969, especially the rules assailed by petitioner---High Court declared the rules intra vires the parent statute as there was nothing on record to suggest that Rr. 96 & 267 (1) of Punjab Motor Vehicle Rules, 1969, were framed without any sanction of law rather they were validly framed by exercising authority of delegated legislation conferred by parent statute.

Syed Masroor Shah and others v. The State PLD 2005 SC 173 and Waqas Amjad and others v. Additional Sessions Judge and others PLD 2019 Lah. 111 rel.

Bilal Ahmad Qazi and Nadeem Iqbal Chaudhry for Petitioners.

Jam Abdul Maalik, Assistant Advocate General for Respondents.

Nawazish Ali Peerzada and Muhammad Aslam Khan Dhukkar, Legal Advisors for Respondent No.4.

P L D 2023 Lahore 578

Before Syed Shahbaz Ali Rizvi and Ali Zia Bajwa, JJ

SUBHAN ALLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 43716 of 2022, decided on 14th July, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 172 & 94---Qanun-e-Shahadat (10 of 1984), Arts. 158 & 161---Police Rules, 1934, Chap. XXII, Rr. 48, 70 & 72---Diary of proceedings in investigation---Police registers---Whether privileged documents---Application for summoning of different registers from the police station was dismissed solely on the ground that registers requested to be summoned were privileged documents under S. 172, Cr.P.C---Validity---Requested registers were a complete record of all events which taken place at the police station---Thus, it should record not only the movements and activities of all Police Officers but also visits of outsiders, whether officials or non-officials, coming or brought to the police station for any purpose whatsoever---Register II was a station dairy---Register No. XIX contained the details of every article placed in the storeroom and removed therefrom---Register No. XXI was a bound book of road certificates, which were issued for a variety of purposes---Registers requested to be summoned were public documents and with no stretch of the imagination were covered by the prohibition contained under S. 172, Cr.P.C. as misunderstood by the Trial Court---Petitioner was standing trial for keeping explosive material in his possession and he was allegedly arrested along with his co-accused with explosive material in their possession---All the abovementioned police registers were not only relevant but also necessary for the just decision of the case---Thus, there was no legal provision available on the statute books to consider those police registers as privileged---Purpose of a fair trial was to find out the truth and prevent miscarriage of justice---For that purpose, the Trial Court was fully equipped with all the necessary powers under Cr.P.C. and Qanun-e-Shahadat, 1984---Role of a Trial Court should not be of a silent spectator, rather a participatory role should be played to ensure that truth must be arrived at---Very purpose of a fair trial would be defeated if the petitioner was not provided a fair opportunity to prove his innocence---Under S. 94, Cr.P.C. read with Arts. 158 & 161 of Qanun-e-Shahadat, 1984, wide powers had been conferred upon the Court to summon any document or thing if the production of that document was desirable and necessary for the purpose of the trial---Said provisions were enabling provisions of law which were aimed at arming the Court to ensure the production of any document or thing to arrive at a just decision---Sound role of construction was that procedural enactments should be construed liberally and in such a manner as to render the substantive rights effective---Petition was allowed by setting aside the impugned order and the Trial Court was directed to summon the registers as requested by the petitioner.

Muhammad Idrees and another v. The State and others 2021 SCMR 612; Queen Empress v. Mannu ILR Allahabad VoL XIX 390; Shivani Sharma v. Ram Chander and others 2015 ACJ 1547 and The Law of Criminal Procedure by Justice (R) Fazal Karim at Page 35 rel.

Muhammad Ali for Petitioner.

Sultan Asghar Chatha, Deputy Prosecutor General for the State.

P L D 2023 Lahore 585

Before Muzamil Akhtar Shabir, J

MUHAMMAD MAJID---Petitioner

Versus

Dr. MUHAMMAD SHAHID IQBAL---Respondent

Criminal Original No. 29909 in Writ Petition No. 13278 of 2022, heard on 15th September, 2022.

(a) Administration of justice---

----Practice and procedure---Dead person, proceedings against---Principle---Any type of proceedings, whether suit, appeal, Constitutional petition, other applications and petitions, execution proceedings or miscellaneous application, etc. filed against a dead person are a nullity in the eyes of law---Even if matter is decided in favour of a party and against dead person, that party cannot be permitted to take benefit of the same.

Mehr Muhammad v. Deputy Settlement Commissioner and others 1979 SCMR 182; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Ahmed alias Ahmed Ali v. Falak Sher (Deceased) through LRs and others 2021 CLC 58; Capt. Umer Naveed Pirzada v. Rana Abdur Raheem and 3 others 2021 CLC 684; Abdul Samad and 3 others v. Habib Bank Limited through President and another 2018 CLD 1203; Nazir Ahmad v. Barkat Masih 2009 MLD 461; Mian Muhammad Akram and others v. Muhammad Chiragh and others PLD 2003 Lah. 804; Imtiaz Ahmed v. Additional District Judge and 14 others PLD 2012 Lah. 240; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Messrs Ashok Transport Agency v. Awadhesh Kumar and another AIR 1999 SC 1484 and Muhammad Sadiq v. Settlement Commissioner and others 1983 CLC 2550 rel.

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

----Ss. 3 & 4---Constitution of Pakistan, Art. 204---Contempt of Court proceedings---Death of contemner---Effect---Petitioner invoked contempt of Court proceedings against the official who allegedly did not comply with the order passed by High Court---Official against whom contempt proceedings were initiated had already died prior to initiation of the order which was allegedly violated---Validity---Cause of action was personal to deceased and did not survive after his death---In the cases of commission of contempt of Court by a person through any personal disobedience or action resulting in scandalizing the Court, tort, defamation, etc., such personal action dies with the person---Court has suo motu powers to initiate contempt of Court proceedings against the alleged contemner---Deceased was impleaded as only respondent in the petition for contempt of Court and no other respondent had been impleaded, therefore, the petition which was filed against dead person was void ab initio as a whole and not in piecemeal and hence nullity in the eye of law---High Court declined substitution of deceased respondent by impleading another incumbent---Fresh petition could be maintainable as cause of action relating to contempt of Court against the person holding the post of Medical Superintendent was still subsisting---High Court did not initiate suo motu proceedings for contempt of Court against incumbent of the office of Medical Superintendent for the reason that petitioner failed to point out who was holding the position and whether the matter of petitioner was placed before that official for decision in terms of order passed by High Court---Petitioner also failed to clarify as to whether the matter was placed before the incumbent for consideration and was decided or not---Petitioner himself was not sure as to which specific person had to decide his representation---Petition was dismissed, in circumstances.

Muhammad Javed v. Federation of Pakistan through Secretary Finance and 3 others 2016 CLD 477; Muhammad Yaqoob v. Ali Shan and 8 others 1994 MLD 1843; Mir Shakeel-ur-Rehman v. Yahya Bakhtiar PLD 2010 SC 612; Qari Muhammad Yasin v. Abdul Latif and others 2019 PLC (C.S.) 462; Mst. Sara Bai and 7 others v. Iqbal 2006 MLD 1429; Government of Punjab through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC 404; Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration Embassy of United States of America 1989 CLC 511; Mercantile Cooperative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967 Kar. 755; Sardar Muhammad Ali and others v. Pakistan PLD 1961 Kar. 88; M. Veerappa v. Evelyn Sequeria 1989 MLD 3225; Mahant Salig Ram v. Charan Dass and another AIR 1939 Lah. 492; Maniramlala Baliramlala v. Mt. Chattibai AIR 1937 Nagpur 216; Cuttack Municipality v. Shyamsunder Behera AIR 1977 Orissa 137; Muhammad Yar (Deceased) through L.Rs and others v. Muhammad Amin (deceased) through L.Rs and others 2013 SCMR 464; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Mst. Sardar Begum v. Assistant Settlement Commissioner and others 1986 MLD 2435 rel.

For Petitioner:

Mahar Sohail Zafar Sipra.

For Respondents:

Barrister Amar Saeed for Respondent.

Muhammad Jahanzaib and Muhammad Arshad Manzoor, Assistant Advocates General, Punjab.

Abdul Mannan Sipra, Syed Sabahat Hussain Hamdani, Barrister Hassan Safdar Khan, Muhammad Farooq Khokar, Ahmad Hassan Khan Khichi, Dr. Muhammad Azeem Raja, Nasrullah Khan Baber, Ch. Muhammad Omer Riaz, Syed Imran Ehsan, Malik Khalid Shafiq, Ch. Muhammad Shahid Iqbal, Mirza Shehryar Farhan Baig, Atif Suhail Butt, Ch. Muhammad Naseer, Syed Muhammad Haider Kazmi, Ch. Imtiaz Ullah Warraich, Muhammad Raza, Mazhar Hussain Tahir and Alamdar Hussain.

Ms. Zarish Fatima and Ms. Sadia Malik.

Mir Haroon-ul-Rasheed, Assistant Attorney General for Pakistan.

P L D 2023 Lahore 601

Before Shams Mehmood Mirza, J

KAMILA AAMIR and another---Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Writ Petition No. 27395 of 2021, decided on 19th June, 2023.

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

----O. II, R.2---Cause of action---Scope---Cause of action comprises material facts constituting right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it---Cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates right to sue which gives rise to a claim enforceable in court---Each cause of action consists of points the plaintiff must prove, and all such elements must be satisfied before Court can take action---Such broad categorization of O. II, R. 2, C.P.C. is in accord with the scheme of Civil Procedure Code, 1908.

Stone v. Cass 34 Okla. 5, 124 P. 960 and Om Prakash Srivastava v. Union of India and another 2006 6 SCC 207 rel.

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

----O. II, R. 2---Whole claim, including of---Splitting of claim, bar against---Bar contained in O. II, R. 2, C.P.C., is against splitting claim in respect of cause of action and not the cause of action itself---Cause of action is simply technical and legal name representing the facts which give rise to a claim enforceable in Court---Term claim is generally used interchangeably with cause of action, its use within the confines of O. II, R. 2, C.P.C. refers to a right which would be enforceable if decreed by Court---Cause of action signifies and provides pivotal ingredients for establishing basis for legal claim and is also relevant for other purposes such as computation of limitation period, determination of proper forum for filing of claim (jurisdiction) and locus standi etc.---Cause of action broadly speaking is the factual matrix forming basis of claim and also identifies legal nature of those claims, which is the technical meaning of a cause of action.

1309489 Ontario Inc. (formerly known as Xincon Technology (Canada) Inc.) v. BMO Bank of Montreal et al. 2011 ONSC 5505 rel.

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

----O. II, R.2---Terms "claim" and "cause of action"---Distinction---Claim must be distinguished from relief which relates to form of remedy a person seeks from Court---Relief or remedy is the means through which cause of action is effectuated and the wrong is redressed.

Balbir Singh v. Atma Ram AIR 1977 Allahabad 211 rel.

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

----O.II, R.2---Whole claim---Inclusion in plaint---Object, purpose and scope---Plaintiff is prevented under O. II, R. 2, C.P.C. from splitting claims and reliefs which are based on same cause of action with the aim that a single cause should not be segregated among several suits---Objective is to safeguard against defendant being vexed twice in respect of same cause of action underpinning the claim---In case of omission to sue or intentional relinquishment of a claim, O. II, R. 2, C.P.C. places a bar on bringing subsequent action in regard thereto---Plaintiff is compelled under O. II, R. 2, C.P.C. to sue for all reliefs arising from same cause of action---In case of omission of plaintiff to do so, he is barred from such relief in a subsequent suit except where he took leave from Court.

Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625; V. Kalyanswamy (D) By Lrs. and others v. L. Bakthavatsalam (D) By Lrs. and others 2020(3) RCR (Civil) 404; Secor v. Sturgis I6 N. Y. 548; Barrow v. Bankside Agency Ltd. [1996] 1 W.L.R. 257; Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047; Mohammad Khalil v. Mahbub Ali AIR 1949 PC 78; Joinder and Splitting of Causes of Action [Michigan Law Review, Vol. 25, No. 4 (Feb., 1927) and Abdul Hakim and 2 others v. Saadullah Khan and others PLD 1970 SC 63 rel.

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

----O. II, R. 2 & O. VII, R.11---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Rejecting of plaint---Omission of claim---Splitting of claim, bar against---Petitioners/plaintiffs filed two suits; in the first one they claimed shares of their mothers in the estate of deceased owner and had challenged Registered Deed of Family Settlement and Surrender Deed through which suit properties were distributed amongst legal representatives of deceased owner---While the first suit was pending, petitioners/plaintiffs instituted the second suit for declaration, possession and cancellation of documents---Respondents/defendant sought rejection of second suit under O. VII, R. 11, C.P.C. which application was dismissed by Trial Court but Lower Appellate Court in exercise of revisional jurisdiction allowed the same and rejected the plaint---Validity---Principle embodied in O. II, R. 2, C.P.C. directs that plaintiff has no right to maintain two separate actions involving same subject matter in same court and against same defendant---Provision of O. II, R. 2, C.P.C. puts bar on a party from bringing claims arising from same set of facts in successive suits---Party cannot split up the claim and bring only a portion thereof before court on which relief is sought and leave the rest to be prosecuted in a subsequent suit---Petitioners/plaintiffs violated mandatory rule and thus the bar on the second suit by terms of O. II, R. 2, C.P.C. was applicable to the present case---High Court declined to interfere in the order passed by Lower Appellate Court which rightly held that second suit instituted by petitioners/plaintiffs was hit by bar contained in O. II, R. 2, C.P.C.---Constitutional petition was dismissed accordingly.

Rasul Khan v. Qalandar Din and 4 others 1988 CLC 323; Mahndi v. Muhammad Ramzan and 3 others 1994 MLD 686; AIR 1925 Lahore 459; AIR 1930 Lahore 634; Messrs Virgo Industries (Eng.) Pvt. Ltd. v. Messrs Venturetch Solutions Pvt. Ltd. (2013) SC 290; Adams v. California Dep't of Health Servs. 487 F.3d 684, 688- 689; Hartsel Springs Ranch of Colorado, Inc. v. Bluegreen, 296 F.3d 982 (10th Cir. 2002; Katz v. Gerardi 655 F.3d 1212, 1219; Vanover v. NCO Fin. Servs. Inc., 857 F.3d 833, 840 n.3 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 rel.

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

----S.11 & O.II, R.2---Principle of res judicata and bar against splitting of claim---Scope and distinction---Principle of res judicata states that where there is a judgment inter parties a fresh suit on the same subject matter is barred---Principle contained in O. II, R. 2, C.P.C., by contrast simply bars second suit in case plaintiff omitted or relinquished any claim/relief that he could seek in the first suit---Where Civil Procedure Code, 1908, required, as in S. 11, C.P.C., it expressly stated its intention of having a final decision in prior proceedings---There is a marked difference between the two principles---Rule of claim/relief splitting in its exposition and despite its subtleties does not admit of a construction requiring mandatorily a final decision on merits in the first suit.

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

----O.II, R.2 & O.VII, R.11---Splitting of claim, bar against---Effect---Determination that a suit is barred under O. II, R. 2, C.P.C. can only translate into rejection of plaint under the provisions contained in O. VII, R. 11, C.P.C.

Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 rel.

Azhar Maqbool Shah for Petitioner No. 1.

Muhammad Shahzad Shaukat for Petitioner No.2.

Sh. Usman Karim ud Din for Respondent No.2.

Mian Kashif Ashfaq for Respondents Nos.3 to 8.

Khalid Ishaq, Faizan Ahmad, Ahmer Waseem Malik, Usman Nair Awan, Adeel Shahid Kareem, Ahmad Saeed, Abid Sial and Wajahat Ali for Respondent No.10.

Date of hearing: 2nd June, 2023.

The orders passed by the courts below are at variance on an application filed by respondents No.2 under Order VII Rule 11 of the Code of Civil Procedure 1908 (the Code). The trial court dismissed the application on 16.10.2020 whereas the additional district judge while accepting the revision of respondent No.2 on 31.03.2021 allowed the application and rejected the plaint of the suit of the petitioners in terms of Order II, Rule 2 of the Code.

1. The relevant facts necessary for the decision on the issue involved in this petition may be stated as follows. The parties who are closely related with each other are litigating over the estate left by Mian Muhammad Sharif, their predecessor-in-interest. Mst. Naseem Akhtan and Shughfta Saleem, the mothers of the petitioners, were the daughters of Mian Muhammad Sharif. The petitioners in the two suits filed by them claimed share of their mothers in the estate of Mian Muhammad Sharif and challenged the Deed of Family Settlement registered on 03.08.1991 (deed of family settlement) and Surrender Deed registered on 13.08.1999 (surrender deed) through which the properties left behind by Mian Muhammad Sharif were distributed amongst his legal representatives.

2. The first suit was filed on 12.05.2016 by petitioner No.1 (first suit) in which petitioner No.2 was cited as defendant No. 10. She was subsequently transposed as co-plaintiff. This suit made a challenge to the surrender deed.

3. While the first suit was pending, the petitioners instituted the second suit on 16.01.2020 (second suit) for declaration, possession and cancellation of documents i.e. deed of family settlement, surrender deed and Hibas.

4. The application under Order VII, Rule 11 of the Code was filed by respondent No.2 on 10.02.2020 in the second suit for rejection of the plaint, inter alia, stating that the first suit filed by the petitioners seeking cancellation of the surrender deed is pending and during its pendency the petitioners could not have instituted the second suit. The petitioners contested the application by filing their reply. The trial court, as noted above, dismissed the said application which was allowed in the revision filed by respondent No.2 and the plaint of the suit was rejected in view of the bar contained in Order II Rule 2 on the ground that the claim made by the petitioners in the second suit was not included in the first suit.

5. Learned counsel for the petitioners submit that the plaint could not be rejected summarily and that at best an issue ought to have been framed for receiving evidence from the parties. It was furthermore submitted that while passing decision on the application the court was only required to look at the averments of the plaint to ascertain whether the suit is barred by any law or whether the plaint does not disclose any cause of action. It is added that respondent No.2 could not have filed the application under Order VII Rule 11 without first filing the written statement. It was also the case of the petitioners that the decision in the first suit was necessary before invoking the provisions of Order II, Rule 2.

6. Learned counsel for the respondents controverted the stance of the petitioners by stating that the facts regarding filing of the two suits were admitted and as such there was no requirement for framing of an issue and recording of evidence of the parties. The learned counsel informed that the written statement was filed in the suit. The attention of this Court was drawn towards the first suit in which the petitioners in paragraph No.2 categorically admitted the deed of family settlement which was subsequently challenged in the second suit. The respondents also referred to the suit filed by Mrs. Farkhanda Anwar, one of the legal representatives of Mian Muhammad Sharif, for laying a challenge to the deed of family settlement in which proceedings the mothers of the petitioners were also party who filed their written statement accepting the deed of family settlement. The suit was decided on the basis of the compromise entered on 18.02.2000 between the parties and that the mothers of the petitioners appeared in person and got recorded their statements before the court. It was thus contended that the additional district judge was correct in applying the provisions of Order II, Rule 2.

7. To understand the controversy, it is essential that the causes agitated, and the claims made in the two suits be considered and analyzed. The first suit sought declaration regarding the surrender deed which was executed in favour of respondent No.2 by the other legal representatives of Mian Muhammad Sharif in respect of certain plots which were to be exempted in lieu of acquisition of land belonging to Mian Muhammad Sharif. It was stated in the first suit that the surrender deed was executed on the understanding that after the conclusion of litigation and clearance of the plots the same shall be delivered by respondent No.2 to the other legal representatives of Mian Muhammad Sharif as per their share. The suit was filed on account of failure and refusal of respondent No.2 to hand over the plots and his claim of ownership on the said plots. The petitioners of course claimed the share of their mothers in the plots. It may be pointed out that the petitioners admitted in the plaint that after the death of Mian Muhammad Sharif his legal representatives distributed their properties through the deed of family settlement. The plaint also mentioned the suit by one of the legal heirs namely Farkhanda Anwar challenging the deed of family settlement which was decided through a compromise between the parties. It was accordingly stated in paragraph 2 of the plaint that "So, the parties left with no controversy between them in respect of family settlement deed dated 3/08/1991 thus, the Family Settlement Deed attained finality."

8. Notwithstanding the admission made in the first suit regarding the veracity of the deed of family settlement, the petitioners filed the second suit, inter alia, for laying a challenge to the deed of family settlement. After giving details of the properties in paragraph 2 of the plaint including the plots that were subject matter of the first suit, it was specifically alleged in paragraph 3 that the legal heirs of Mian Muhammad Sharif including the mothers of the petitioners became owners of his properties through inheritance. Most importantly, the petitioners stated in the plaint that the cause of action arose from the date of demise of Mian Muhammad Sharif. The petitioners sought declaration in respect of the entitlement of their mothers to share in the inheritance of Mian Muhammad Sharif. The petitioners also sought declaration in respect of the deed of family settlement and surrender deed on the basis that these instruments were illegal, void and non-existent. The Hibas made in the year 1985 and 1988 were also brought under challenge.

9. The order passed by the Additional District Judge on 31.03.2021 in allowing the revision of respondent No.2 placed reliance on Order II, Rule 2, C.P.C. for rejection of plaint in the second suit by holding that "In view of the bar contained under Order II, Rule 2, C.P.C., no useful purpose would be served to try this suit."

10. The provisions contained in Order II Rule 2 in so far as they are relevant read as under.

2. Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

1. A cursory look at the provision indicates that it has the following three main aspects (i) Every suit shall include the whole of the claim a plaintiff is entitled to make in respect of a cause of action; the plaintiff can, however, relinquish any portion of his claim; (ii) where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make, he shall not afterwards be permitted to sue for the portion of the claim that has been omitted or relinquished; (iii) where a plaintiff is entitled to more than one relief on a particular cause of action, he may sue for all or any of such reliefs. Omission to sue for all such reliefs, except with the leave of the court, shall preclude him from bringing a subsequent suit to claim the relief so omitted.

2. The Additional District Judge dealt with the issue in a rather straightforward manner, but this Court is required to consider several interrelated matters which were raised by the parties at the hearing to determine what rules will apply to resolve the competing claims. It will be the endeavour of this Court to conduct an in-depth analysis of the rule against claim/relief splitting as contemplated by Ordre II Rule 2 with reference to judgments from this jurisdiction and foreign jurisdictions.

3. There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief.

4. The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I and II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass 34 Okla. 5, 124 P. 960, the Court stated that "There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded." Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.

5. The Indian Supreme Court in the case of Om Prakash Srivastava v. Union of India and another 2006 6 SCC 207 expressed the principle of cause of action on the following terms which are not very dissimilar to what has been stated above:

The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. (Emphasis Added)

1. Order II, Rule 2 requires that a plaintiff must join all claims arising from the same set of facts in a single proceeding instead of bringing successive actions. The bar contained in the rule is against splitting the claim in respect of the cause of action and not the cause of action itself. A cause of action is simply the technical, legal name representing the facts which give rise to a claim enforceable in court. Although the term claim is generally used interchangeably with cause of action, its use within the confines of the rule refers to a right which would be enforceable if decreed by the court. The cause of action signifies and provides the pivotal ingredients for establishing the basis for legal claim and is also relevant for other purposes such as computation of limitation period, determination of the proper forum for filing of claim (jurisdiction) and locus standi etc. In the case of breach of contract, for example, the injured party might sue for damages or specific performance both of which shall be the claims and facts supporting the breach of contract and losses sustained by the injured party shall constitute the cause of action. A cause of action broadly speaking is the factual matrix forming basis of the claim and it also identifies the legal nature of those claims, which is the technical meaning of a cause of action. This position is best illustrated by 1309489 Ontario Inc. (formerly known as Xincon Technology (Canada) Inc.) v. BMO Bank of Montreal et al. 2011 ONSC 5505 in which Justice Lauwers of the Ontario Superior Court of Justice noted as follow:

[18] As I observed in Ivany v. Financiere Telco Inc., [2011] O.J. No. 4162, 2011 ONSC 2785, the proper definition of the term "cause of action" is somewhat elusive even though lawyers and judges routinely use it. Halsbury's Laws of England, 5th ed., vol. 11 (London: LexisNexis, 2008), at para. 21, explains:

'Cause of action "has been defined as meaning simply the facts the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute."

Cause of action "has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action.

The same facts or the same transaction or event may give rise to more than one effective cause of action." (Internal footnotes omitted)

[19] Note the two expressions used in this excerpt: "cause of action" and "technical cause of action". These identify the two senses in which lawyers and judges use the term "cause of action". Sometimes they are speaking of a factual matrix, that is, the factual cause of the plaintiff's complaint. At other times, however, lawyers and judges use the term "cause of action" to identify the legal nature of the claim; recognized causes of action in this legal sense include, for example, breach of contract, negligence, breach of fiduciary duty and so on, each of which has its own constituent elements. (Emphasis supplied)

The Court thus made the distinction between the claim on the one hand and cause of action on the other by holding cause of action as the factual matrix and claim being the legal basis upon which relief is based.

1. The claim must, however, be distinguished from relief which relates to the form of remedy a person seeks from the court. Relief or remedy is the means through which the cause of action is effectuated and the wrong is redressed (see Balbir Singh v. Atma Ram AIR 1977 Allahabad 211). Generally speaking, there are four types of reliefs available in a civil action i.e. declaratory remedy, equitable relief, restitution, recovery and financial damages. Relief, it may be stated, does not form part of the cause of action.

2. The rule prevents the plaintiff from splitting the claims and the reliefs which are based on the same cause of action with the aim that a single cause should not be segregated among several suits. The objective appears to safeguard against the defendant being vexed twice in respect of the same cause of action underpinning the claim. In case of omission to sue or intentional relinquishment of a claim, the rule places a bar on bringing a subsequent action in regard thereto. Similarly, the rule compels a plaintiff to sue for all reliefs arising from the same cause of action and in case of his omission to do so he shall be barred from that relief in a subsequent suit except where he took the leave from the court.

3. The Supreme Court in Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 described the claim/relief splitting rule on the following terms.

9. The reading of the said provision in very clear terms discloses that omission or failure to include any of the reliefs operates as relinquishment of such claim, it is essential that party instituting proceedings should include all reliefs flowing out of main grievance, otherwise omission would be fatal, as such, it would be essential for the plaintiff to assert claimable reliefs concerning the grievance of cause of action. However, if any such relief which flows out of basic grievance is not claimed or omitted, then such party stands precluded from agitating those reliefs subsequently. The main object of the above provisions is to avoid splitting of claim and restrict multiplicity of litigation in the matter. (Emphasis added)

This excerpt captures the essence of and in fact endorses what has been discussed above regarding the difference between claim and cause of action. It is worth noting that the Supreme Court being cognizant of the true import of the rule on purpose avoided the expression cause of action rather the term main grievance or basic grievance was employed. The judgment explicitly states that any omission to sue for relief emanating from the main/basic grievance in the first suit would bar a second suit subsequently.

1. While interpreting Rule 2 of Order II, C.P.C., the Indian Supreme Court in the case of Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625 held as follows:

9. ...It is, therefore, clear from a conjoint reading of the provisions of Order 2, Rules 2(2) and (3), C.P.C. that the aforesaid two sub-rules of Order 2, Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.

1. Similarly, in the case of V. Kalyanswamy (D) By Lrs. and another v. L. Bakthavatsalam (D) By Lrs. and others 2020(3) RCR (Civil) 404, the Indian Supreme Court made the following important observations.

The difference between Order 2, Rule 2 (2) and Order 2, Rule (3) of the C.P.C. may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit. However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order 2, Rule 2 (1) of the C.P.C. which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order 2, Rule 2 (2) of the C.P.C. (Emphasis supplied)

1. In the case of Secor v. Sturgis I6 N. Y. 548, the principle was stated by the Court of Appeal as follows:

The principle is settled beyond dispute that a judgment concludes the rights of parties in respect of the cause of action stated in the pleadings on which it is rendered, whether the suit embraced the whole or only part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first be pleaded in abatement of the others, and a judgment on merits in either will be available as a bar in the other suits.

1. Barrow v. Bankside Agency Ltd. [1996] 1 W.L.R. 257 was a case in which negligent underwriting was in issue. Barrow being the member of an action group had successfully sued a number of members' agent and recovered a portion of the damages. Barrow subsequently initiated fresh proceedings against his members' agent on a different ground. The English Court of Appeal held as under:

The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.

1. The principle underlying Order II, C.P.C. cannot be properly grasped without considering the principle of joinder of parties and joinder of causes of actions. The two suits filed by the petitioners involved joinder of plaintiffs and defendants. The provisions of Order I Rules 1 and 3 provide guidelines for who may be joined as plaintiffs and defendants. Rule 1 of Order I states that all persons may be joined as plaintiff in one suit in whom any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative. The provision also specifies the test for such joinder to the effect that if separate suits were brought by such persons, any common question of law or fact would arise. Rule 3 is a similar provision regarding the joinder of defendants. Order II Rule 3 permits for joinder of causes of actions by a plaintiff in the same suit against the same defendant or the same defendants jointly. Order II Rule 4 qualifies the scope of joinder of causes of actions concerning recovery of immovable property by making leave of court as a necessary pre-condition. There are, however, certain exceptions to the rule one of which is where claim in which the relief sought is based on the same cause of action. These provisions illustrate that two or more causes of action and remedies may now be secured in a single action and by extension making it permissible for joinder of parties. The rule of joinder of parties and causes of actions informs that any narrow interpretation limiting the scope of cause of action to a single legal claim may limit or even prevent the effective operation of these provisions.

2. It can thus be seen that the Code provides a fairly liberal regime for joinder of parties and causes of action. The Code made these provisions not on account of any problem relating to pleading rather what was aimed at was that all the matters at issue between the parties or set of parties should be settled as shortly and speedily as possible through one action.

3. It was contended before the Supreme Court in the case of Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047 that the cause of action in the earlier suit for specific performance was different from the cause of action alleged in the subsequent suit relating to compensation for improvement. The contention of the petitioner was not accepted and it was held that

The cause of action in both the suits, namely, one for the specific performance of agreement to sell and the other for compensation of improvement could be joined in one suit and having omitted the latter cause of action, the bar of Order II, rule 2, C.P.C. was fully attracted to the case.

The Supreme Court thus liberally construed the rule in order that the judgment may decide all related issues of controversy related to a claim to avoid unnecessary multiplicity of litigation for due administration of justice.

1. The Courts have applied various tests for the application of the rule against splitting of claims by stating that the evidence in the two suits must be identical or that there must be the same findings and judgment involved or that there must be a single right violated. The Privy Council in the case of Mohammad Khalil v. Mahbub Ali AIR 1949 PC 78 held that the test for determining what separates the cause of action in two suits is to see whether the same evidence will maintain both actions. These tests may be suggestive but cannot be treated as conclusive for the reason, as has been stated by Charles E. Clark in "Joinder and Splitting of Causes of Action" [Michigan Law Review, Vol. 25, No. 4 (Feb., 1927)], that "the search for an automatic rule of thumb is illusory as in law generally, particularly procedural law. Such tests as identity of the evidence, or of the right involved, are not true, if applied in the ordinary sense of the terms, since the rule applies even though the suggested requisites do not exist." This proposition is exemplified by Abdul Hakim and 2 others v. Saadullah Khan and others PLD 1970 SC 63 in which the Supreme Court came exactly to the same conclusion by holding that the only issue to be resolved under this rule is to see whether the claim/relief has been split or not. It was stated as under.

...... A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievance caused to him by the infringement of his rights by the defendant in the course of the same transaction….. (Emphasis Added)

1. Having laid down the foundation of the rule against claim/relief splitting, we may now turn our attention towards the two suits filed by the petitioners to judge what was the claim made, the right alleged and whether the facts stated therein constituted the same claim or the cause of action. It may be reiterated that surrender deed was registered on 13.08.1999 whereas the deed of family was registered on 08.08.1991. The first suit was filed on 12.05.2016 to seek a declaration on the basis of inheritance regarding the plots situated in Mustafa Town, Lahore together with the prayer that the surrender deed executed in favour of respondent No.2 be declared to be void and invalid. The fact that the petitioners mentioned the deed of family settlement and accepted its veracity in the first suit is of no importance to the resolution of the issue involved in this case. The acceptance of the deed of family settlement by the mothers of the petitioners in the suit filed by Mrs. Farkhnada Anwar is also of no avail to the respondents. These facts may constitute estoppel by pleading or estoppel by conduct, but it shall have no decisive effect on the outcome of this case in so far as the bar contained in Order II Rule 2 is concerned. This Court also considers it irrelevant to accord any importance to the fact that the mothers of the petitioners in their lifetime did not lay a challenge to the two registered instruments. Of significance for this Court are the claims made by the petitioners in the two suits regarding the estate of Mian Muhammad Sharif and right of their mothers to share in the properties left behind by the deceased and denial of that right by respondent No.2 and other legal representatives. The claim asserted in both the suits related to right of inheritance and the wrong committed in particular by respondent No.2 in denying that right and the legal consequences flowing therefrom which constituted the causes of action in the two suits. It is a settled principle as set forth in the afore-noted Canadian case that "The same facts or the same transaction or event may give rise to more than one effective cause of action." That is why the Supreme Court in Abdul Hakim and 2 others v. Saadullah Khan and others PLD 1970 SC 63 suggested that the issue be approached by looking at the substance of the transaction and not on form of the suits for the reason that violation of same right on different occasions may give rise to separate causes and similarly the act constituting the wrong may give rise to several causes. In substance, the subject matter of both the suits related to the right of inheritance and according to the petitioners the surrender deed and the deed of family settlement were successive violations of that right. On the principles discussed above, the violations allegedly committed by the respondents in denying the right of inheritance gave rise to a single claim or cause of action and that is how the facts stated in the two suits must be construed.

2. As noted above, the petitioners cause for grievance arose in respect of denial of share their mothers were entitled to from the inheritance of Mian Muhammad Sharif. The deed of family settlement and the surrender deed were both in existence at the time of institution of the first suit. The accrual of cause of action to the petitioners in respect of the deed of family settlement at the time of institution of the first suit is thus undeniable. This cause of action granted a right to the petitioners to impugn the deed of family settlement in the first suit. In fact, as noted above, the petitioners in the second suit stated that the cause of action arose at the time of death of Mian Muhammad Sharif. The petitioners were thus under a legal duty to have sued for the entire claim arising from the same set of facts in the first suit. The matter also falls under the second limb of the rule against relief splitting. The petitioners also sought relief of declaration in both the suits qua the two registered instruments. The petitioners could very well seek the relief of declaration in respect of the deed of family settlement at the time of institution of the first suit. Their omission to do so was fatal to the second suit filed by them. There is yet another aspect of the matter. The two suits joined the petitioners as plaintiffs and the respondents as defendants on account of the right of relief the petitioners had against the respondents. This right to relief was clearly in respect of the estate left behind by Muhammad Sharif and thus it was mandatory for the petitioners to have sought the relief against both the deed of family settlement and surrender deed in one suit.

3. The petitioners as per the contents of the plaints of the two suits were aggrieved by both the registered instruments and were obliged by the terms of the rule to bring the whole claim before the court and yet they omitted to sue on the deed of family settlement in the first suit or intentionally relinquished it. Either way, their second suit comes within the mischief of Order II Rule 2. The principle embodied in Order II Rule 2 directs that the plaintiff has no right to maintain two separate actions involving the same subject matter in the same court and against the same defendant. It puts a bar on a party from bringing claims arising from the same set of facts in successive suits. In other words, a party cannot split up the claim and bring only a portion thereof before the court on which relief is sought and leave the rest to be prosecuted in a subsequent suit. The petitioners violated the mandatory rule and thus the bar on the second suit by the terms of Order II Rule 2 is applicable to the facts of the present case.

4. The petitioners' next submission was that the decision in the prior suit is a necessary pre-condition for the applicability of the rule against claim splitting. The judgments in the cases of Rasul Khan v. Qalandar Din and 4 others 1988 CLC 323 and Mahndi v. Muhammad Ramzan and 3 others 1994 MLD 686 were cited as precedents supporting this proposition. It was also contended that the rule of splitting of claims is essentially akin to or can be treated as a variation of the principle of constructive res judicata which would necessarily require adjudication on merits of the earlier suit. Neither of the propositions are true.

5. Section 11 embodies the principle of res judicata which provision assumes decision on merits in the former suit as per its explanation I. The text of Order II Rule 2, however, does not command the decision in the first suit. The precedents cited by the petitioners also do not support such principle. The case of Rasul Khan simply reiterated the principle that if the previous suit was found to be defective or incompetent and was dismissed as such it shall not bar the plaintiff from bringing the second suit. On the facts of the case, the Court in Rasul Khan concluded that the second suit was based on an entirely different cause of action. Furthermore, the cases (AIR 1925 Lahore 459 and AIR 1930 Lahore 634) on which reliance was placed in the case of Rasul Khan simply restated that where the relief under the law could not be granted in first suit it shall be no bar for a second suit and that where the causes of action are different in both the suits the principle of claim splitting shall not apply in the subsequent suit. The judgment in Mahndi's case was similarly based on authorities (mentioned at page 689) in which it was held that the dismissal of the earlier suits for declaration and permanent injunction on the ground that the plaintiff was not in possession and that no relief for possession was sought was no bar on the subsequent suit. The judgments in the cases of Rasul Khan and Mahndi do not lay down an absolute rule that a decision on merits in the previous suit is mandatory for attracting the mischief of Order II Rule 2.

6. The Indian Supreme Court in Messrs Virgo Industries (Eng.) Pvt. Ltd. v. Messrs Venturetch Solutions Pvt. Ltd. (2013) SC 290 took a similar view that a final decision in the first suit is not a necessary pre-condition for invoking the provisions of Order II, Rule 2, C.P.C. The relevant excerpt of the judgment reads as under:

The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R.Vimalchand and M.Ratanchand v. Ramalingam, T. Srinivasalu and T. Venkatesaperumal (supra) [reported as (2002) 3 MLJ 177] holding that the provisions of Order II, Rule 2, of the C.P.C. would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II, Rule 2 of the C.P.C. as already discussed by us, namely, that Order II, Rule 2 of the C.P.C. seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II, Rule 2 of the C.P.C. will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the C.P.C. will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram[7] [relevant citation is (1894) ILR 16 All 165] and by the Bombay High Court in Krishnaji v. Raghunath[8] [relevant citation is AIR 1954 BOM 125]. (Emphasis Added)

The facts of Abdul Hakim 's case decided by the Supreme Court also shows that the second suit was filed during the pendency of the first suit.

1. The authorities from American jurisdiction also provide useful insight on the issue as the claim splitting doctrine in that jurisdiction is identical to the one contained in the Code. In Adams v. California Dep't of Health Servs. 487 F.3d 684, 688- 689, the US Court of Appeal for Ninth Circuit clarified that:

.in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same.

The Court affirmed dismissal of second suit for claim-splitting while first suit was still pending.

Similarly, the US Court of Appeal for Tenth Circuit in Hartsel Springs Ranch of Colorado, Inc. v. Bluegreen, 296 F.3d 982 (10th Cir. 2002), looked directly at the issue of whether a final judgment on the merits in the first suit was required. Id. at 987 n. 1. It was held as under:

It is clear that a motion to dismiss based on improper claim splitting need not - indeed, often cannot wait until the first suit reaches final judgment, (citations omitted) . . . [I]n the claim-splitting context, the appropriate inquiry is whether, assuming that the first suit were already final, the second suit could be precluded pursuant to claim preclusion.

(Emphasis added)

The US Court of Appeal for Tenth Circuit in Katz v. Gerardi 655 F.3d 1212, 1219 stated that

If the party challenging a second suit on the basis of claim splitting had to wait until the first suit was final, the rule would be meaningless.

Likewise, the US Court of Appeal for Eleventh Circuit in Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 840 n.3 held that

The 'claim splitting doctrine' applies where a second suit has been filed before the first suit has reached a final judgment."

These rules state the correct position of law and are squarely applicable to a case coming under the mischief of Order II Rule 2 of the Code.

1. The rule against claim splitting is not synonymous with the doctrine of res judicata although the two rules serve some of the same policies. The intent and scope of the principle of res judicata was explained by Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 on the following terms.

7. The rule of res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgment, therefore, no second suit can be filed on the basis of same cause of action unless it is shown that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in the subsequent litigation. This is settled law that if matter in issue in the subsequent litigation was not substantially decided in the earlier litigation, it would not be res judicata actually or constructively because for res judicata, it is essential to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact.

In simple terms the principle of res judicata states that where there is a judgment inter partes a fresh suit on the same subject matter shall be barred. The principle contained in Order II Rule 2 by contrast simply bars the second suit in case the plaintiff omitted or relinquished the claim/relief that he could seek in the first suit. Where the Code required, as in section 11, it expressly stated its intention of having a final decision in the prior proceedings. There is, therefore, a marked difference between the two principles. The rule of claim/relief splitting in its exposition and despite its subtleties does not admit of a construction requiring mandatorily a final decision on merits in the first suit.

1. The petitioners also contended that the plaint could not be rejected under Order VII, Rule 11, C.P.C. without recording evidence of the parties. In support of that proposition, it was also added that for exercise of power under that provision only the contents of the plaint must be looked at for making a determination that it discloses a cause of action and that the suit is not barred under any law. That proposition is not absolute, although it may be stated that there are grounds on which it may be supported. There is a valid exception to the rule to which I shall shortly advert to. It is clear that a determination that a suit is barred under Order II, Rule 2, C.P.C. can only translate into rejection of plaint under the provisions contained in Order VII, Rule 11, C.P.C. Respondent No.2 in the present case pleaded to claim/relief splitting rule by filing an application in which necessary facts were stated and the copy of the plaint of the first suit was appended. The petitioners in reply to that application admitted all the facts stated therein. In the circumstances, there was no need to go through the process of submission of documentary evidence after framing of an issue as all the facts pleaded in the application were accepted by the petitioners. The short answer to the submission that only the contents of the plaint can be looked at for rejecting the plaint is that it depends on the nature of the plea raised by the defendant for invoking the said provision. As is not uncommon on issues like this, there is an overabundance of authorities on both sides. And the parties hereto dutifully provided lengthy lists of cases supporting their respective stance. The only construction that can be placed on judgments deviating from the principle is that if the facts presented by the defendant are incontrovertible or admitted and clearly demonstrate that the suit is barred under some law or that the plaint does not disclose the cause of action the courts will not permit the suit to proceed to the stage of evidence thereby prolonging the agony of the parties and shall reject the plaint. This formulation is validated by the Supreme Court in the case of Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 in which the principle cited by the petitioners in support of their stance was not given the central importance. While agreeing with the proposition that in rejecting plaint the court cannot consider any plea raised in the written statement it was nevertheless held that

P L D 2023 Lahore 621

Before Jawad Hassan, J

Messrs TRADHOL INTERNATIONAL SA SOCIEDAD UNIPERSONAL-- Applicant

Versus

Messrs SHAKARGANJ LIMITED---Respondent

Civil Original Suit No. 80492 of 2017, decided on 28th April, 2023.

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

----S. 5---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art. IV---Documents, reliance on---Scope---Court has to only examine documents filed, in order to enforce such award under the doctrine of pro-enforcement bias.

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

----S. 7---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art. II, cl. 2 & Art. V (1) (a)---Invalidity of agreement---Electronic communication---Plea raised by objector to award was that agreement between the parties was invalid---Validity---Communications were exchanged between the parties and were sent through automated information system--- Such communication squarely came within the meaning of terms defined in Electronic Transactions Ordinance, 2002, as well as within the meaning of "agreement in writing" defined in Art. II, cl. 2 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

Louis Dreyfus Commodities Suisse S.A. v. Acro Textile Mills Ltd. PLD 2018 Lah. 597; Hitachi Limited v. Rupali Polyester 1998 SCMR 1618; Enka Insaat Ve Sanayi AS v. Insurance Company Chubb [2020] UKSC 38 and Kabab-Ji SAL v. Kout Food Group [2021] UKSC 48 rel.

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

----S. 7---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art. V(2)(b)---Final award---Unenforceability---Public policy, contrary to---Plea raised by objector to award was that the award was contrary to public policy in Pakistan---Validity---Recognition and enforcement of an arbitral award under S. 7 of Agreements and Foreign Arbitral Awards Act, 2011 and New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, could be refused if competent authority in Pakistan would find that recognition or enforcement of the award was contrary to "public policy" of Pakistan---To avail benefit of Art. V(2)(b) of New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, the objector had to satisfy the High Court that the recognition or enforcement of award was contrary to "public policy" of Pakistan---Parties to an arbitration agreement were compelled under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 to take their claims to Tribunals agreed for resolution of disputes by parties and further required the Courts in Pakistan to refer the parties to arbitration---This was the public policy of Pakistan and had be adhered to---There was no violation of Pakistani law or public policy in such circumstances.

Orient Power Company (Private) Limited through Authorized Officer v. Sui Northern Gas Pipelines Limited through Managing Director 2019 CLD 1069 and Scherk v. Alberto-Culver Co, 417 US 506 (1974) rel.

(d) Interpretation of statutes---

----Preamble---Object, purpose and scope---Preamble means an introductory statement in a Constitution, Statute or Act---It explains the basis and objective of such a document---Though Preamble to a statute is not an operational part of the enactment but it is a gateway, which discusses purpose and intent of Legislature to necessitate the legislation on the subject---Preamble sheds clear light on the goals that Legislator aims to secure through introduction of such law---Preamble of a statute holds a pivotal role for the purposes of interpretation in order to dissect true purpose and intent of law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447; Orient Power Company v. Sui Northern Gas Pipelines PLD 2019 Lah. 607 and Dhanya Agro-Industrial (Pvt.) Limited through Attorney v. Quetta Textile Mills Ltd. through Chief Executive 2019 CLD 160 rel.

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

----Preamble & S. 2(e)---Foreign arbitral award---Court, jurisdiction of---Scope---Preamble of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided expeditious mechanism for recognition and enforcement of foreign arbitral agreements and foreign arbitral awards pursuant to New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958---Final Award was made by London Court of International Arbitration against the parties who belonged to consented countries and were bound by New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, therefore, it came within the meaning of S. 2(e) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011.

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

----S. 7---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art. V(2)(b)---Recognition and enforcement of foreign arbitral award---Pro-enforcement bias---Object, purpose and scope---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, in Art. V advocates 'pro-enforcement bias' policy in dealing with applications of recognition and enforcement of international arbitral awards---General principle has been set forth that each contracting state has to recognize arbitral awards as binding and enforce them---As a result, foreign awards are entitled to a prima facie right to enforcement in the contracting states---Essentially it means pro-enforcement attitude of national courts enforcing foreign award---After ratifying New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 and Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, Courts in Pakistan have enforced the awards through pronouncements of judgments and such enforcement casts a duty upon the Courts to build the confidence of investors by protecting the sanctity of arbitration agreements.

Yukos Oil v. Dardana, [2001] EWCA Civ 1077 and M.C.R. (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639 rel.

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

----Ss. 6 & 7---New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art. V(2)(b)---Civil Procedure Code (V of 1908), O. XXI, R. 10---Recognition and enforcement of foreign arbitral award---Pro-enforcement bias---Effect---Applicant filed application seeking recognition and enforcement of foreign arbitral award in Pakistan, issued by London Court of International Arbitration---Objector to the award raised plea of pro-enforcement bias---Validity---Pro-enforcement policy under New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, refers to a legal approach that favors recognition and enforcement of foreign arbitral awards---Such approach is based on the principle of comity, which requires countries to show respect and deference to legal systems and decisions of other countries and arbitral tribunals---Pro-enforcement policy under New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, is important because it promotes finality and enforceability of arbitration awards---When parties agree to resolve their disputes through arbitration, they expect that resulting award is final and binding---Pro-enforcement policy helps to ensure that parties can rely on arbitration process to resolve their disputes and that resulting awards are enforced in other countries---In practice, a pro-enforcement policy means that courts should apply a narrow standard of review when considering applications for recognition and enforcement of foreign arbitral awards---Such standard requires courts to limit their review to procedural matters and to refrain from re-examining substance of dispute---Such approach ensures that recognition and enforcement process is swift and efficient, which benefits both parties and promotes international trade and commerce---Pro-enforcement policy under New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, is essential to promote recognition and enforcement of foreign arbitral awards---Such approach reflects importance of promoting finality and enforceability in arbitration process, which in turn contributes to stability and predictability of international commerce---High Court is bound to implement it as such---Objector failed to defend its foreign arbitration award on the grounds raised under S. 7 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 read with Art. V(2)(b) of New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, by its conduct while appearing before London Court of International Arbitration Award, and by not filing proper documents under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 and even by its reply filed before High Court---Objector filed reply (four pages only) without any document/annexure by taking preliminary objections, whereas, applicant filed application under S. 6 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, read with Art. IV of New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, and had met with all requirements for enforcement of the "Final Award"---High Court recognized the "Final Award" as binding---High Court passed judgment in the amount represented in the "Final Award", which would be executed as decree of High Court---High Court in exercise of powers under O. XXI, R. 10, C.P.C. converted the application into execution proceedings--- Application was allowed accordingly.

Tariq Iqbal Malik v. Messrs Mltiplierz Group Pvt. Ltd. and 4 others 2022 CLD 468; Malik Mehboob v. Commissioner, Rawalpindi and others PLD 2023 Lah. 97; Abdullah v. Messrs CNAN Group SPA through Chief Executive/Managing Director and another PLD 2014 Sindh 349 and Louis Dreyfus Commodities Suisse S.A. v. ACRO Textile Mills Ltd. PLD 2018 Lah. 597 ref.

Barrister Iftikhar ud Din Riaz, Advocate Supreme Court with Ahmad Abdul Rehman, Smam Mir and Mehrunisa Virk for Applicant.

Deeba Tasneem Anwar, Mirza Nasar Ahmad, Advocate Supreme Court, Jam Waseem Haider, Haseeb Ahsan Javed, Ch. Nabeel Rafaqat and Jawad Jamil Malik for Respondent.

P L D 2023 Lahore 669

Before Anwaar Hussain, J

MUHAMMAD AFZAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents

Writ Petition No. 57778 of 2022, heard on 26th April, 2023.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Husband's (petitioner) case was that there was no evidence that the car was given at the time of marriage as part of the dowry and that the Appellate Court had wrongly decreed the suit---Validity---Petitioner in response to the respondent's (wife) plaint had stated that the car was purchased with the cash provided by him, as such, it was also registered in his name in token of acknowledgment---Response of the petitioner, in his written statement, had exhibited an admission on part of the petitioner that the car, in fact, was purchased and transferred in the name of the petitioner, at the time of wedding, albeit with cash amount given by the petitioner---Petitioner had not proved his stance by leading any evidence---Moreover, there was no explanation as to why the petitioner remained mum and did not demand the delivery of the car, from the father of respondent for a considerable period of time, when the marriage between the parties was subsisting and the relationship was cordial, therefore, the assertion of petitioner that no such car was ever purchased or delivered to the petitioner was baseless and hence, discarded---Constitutional petitions were disposed of accordingly.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Alternate price of dowry articles---Appreciation of value of dowry articles---Scope---Husband's (petitioner) case was that there was no evidence that the car was given at the time of marriage as part of the dowry and that the Appellate Court had wrongly decreed the suit---Wife's (respondent) case was that alternate price of the car had not been properly determined/ascertained by the Appellate Court and the prayer was made for award of current market value of the car and not the date on which it was given---Validity---In case of articles such as the car, while determining/ascertaining amount of money as an alternate price, the principle of appreciation should be kept in mind inasmuch as if the principle of depreciation is to be considered with respect to one set of the dowry articles such as furniture, etc., which involves depreciation of articles on account of wear and tear, the principle of appreciation must also be taken into account with respect to such other articles that involve increase in value---Failure to do so would not only by iniquitous but would also put premium on the unlawful retention of such dowry articles by the husband even after the dissolution of marriage or demand for return of the same by the wife---Wife was held entitled to recover the market value of the car as on the date of realization of the decree---Constitutional petitions were disposed of accordingly.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Alternate price of dowry articles---Appreciation and depreciation of value of dowry articles---Scope---Primarily a suit for the return of dowry articles, whenever decided, is decreed by the Courts as such with the observation that in case of failure, on the part of the judgment-debtor, to return the said articles, as an alternate, the amount equivalent to the price of dowry articles is to be paid and while determining the alternate value of the dowry articles, the Courts consider the depreciation of most of the dowry articles on account of normal and natural wear and tear thereof that takes place over the passage of time since marriage of the parties---Rationale underlying the application of principle of depreciation is that the dowry articles are to be returned in their current position and if the same is not done, their price is to be paid as an alternate and since most of the value of dowry articles put to use during subsistence of marriage do undergo depreciation on account of daily use, therefore, while determining the alternate price, it is justifiable that the depreciation in value of such articles is to be taken into account---However, one cannot lose sight of the fact that there may be some articles forming part of the dowry, for instance, the gold ornaments or the vehicles or even few electrical appliances, etc., value whereof may appreciate over the years.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Gold ornaments---Scope---Gold ornaments are always possessed by females unless snatching is not only alleged but also proved.

Javed Iqbal v. Additional District Judge Faisalabad and another 2017 CLC Note 25 and Muhammad Saeed v. Additional District Judge and others 2019 CLC 1008 ref.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Dowry articles---Meaning---Any gift given to the groom at the time of engagement, cannot be treated as part of the dowry as the same is not the property of wife rather ownership vests with the husband---Dowry is only such articles that are given at the time of marriage to the bride and not the gifts to the bridegroom at the time of engagement.

Abdul Razzaq Younas for Petitioner.

Muhammad Younas Bhullar for Respondents Nos.3 and 4.

P L D 2023 Lahore 677

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Asim Hafeez, JJ

HASSAN NAIMAT ULLAH KHAN and another---Appellants

Versus

MUMTAZ CITY through CEO and 5 others---Respondents

R.F.A. No. 31 of 2021, decided on 29th June, 2022.

(a) Companies Act (XIX of 2017)---

----S. 441---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), S. 9, O. VI, R. 5 & O. VII, Rr. 1, 2---Suit for specific performance of agreement, declaration and injunction---Rejecting of plaint---Civil Court, jurisdiction of---Better statement---Scope---Plaintiff was CEO of company which claimed to be owner of suit land and had sought specific performance of agreement, declaration and injunction regarding suit property---Trial Court rejected the plaint on the ground that plaintiff company had not been incorporated under S. 441 of Companies Act, 2017, with Securities and Exchange Commission of Pakistan--- Validity--- Some of the rights/claims pleaded were exclusive to plaintiff CEO having no proximity to plaintiff company---There was no determination regarding such aspect in the decision of Trial Court---Contents pleaded required deeper appreciation for the purpose of ascertaining nature of causes of action---Trial Court also failed to exercise jurisdiction to call for further/better statement, in exercise of powers under O. VI, R. 5, C.P.C., if at all some clarity was required---Any deficiency found was curable defect, which situation did not warrant exercise of jurisdiction under O. VII, R. 11 C.P.C.---Trial Court was eligible and empowered to reject plaint by referring to legal disability under S. 441 of Companies Act, 2017, when jurisdiction of Civil Court was barred with respect to the matters coming under Companies Act, 2017 and otherwise jurisdictional defects needed determination in context of provisions of Civil Procedure Code, 1908---Legal disability provided in terms of S. 441 of Companies Act, 2017, was attracted or could be invoked while exercising jurisdiction under S. 9, C.P.C., if it was established that plaintiff company was a foreign company---High Court set aside order passed against plaintiffs and remanded the matter to Trial Court for determination of questions upon framing of issues---Appeal was allowed accordingly.

Mol Pakistan Oil and Gas Company through Authorized Officers v. The Islamabad Capital Territory Administration through Chief Commissioner and others 2022 CLD 492; Gemalto Middle East FZ-LLC v. Federation of Pakistan through Secretary, Finance Division and others 2020 CLD 151; China Annang Construction Corporation through Project Manager v. K.A. Construction Co. through Attorney 2001 SCMR 1877; Hala Spinning Mills Ltd v. International Finance Corporation and another 2002 SCMR 450; Trek Technologies Limited v. Icondor Telecom (Private) Limited and another 2018 CLD 668 and Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 ref.

(b) Jurisdiction---

----Existence and exercise---Principle---Existence of jurisdiction and exercise thereof are distinct concepts---Conferment of jurisdiction is legislative attribute and exercise thereof is embodied of or expression of exercise of jurisdiction conferred by law.

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

----S. 9---Civil Court, jurisdiction of---Scope---Civil Court is Court of plenary jurisdiction vested with authority/jurisdiction to determine jurisdictional fact concerning its own jurisdiction upon considering averments made in plaint---Party pleading ouster of jurisdiction has to establish such fact.

Syeda Nida Zahra for Appellants.

Atif Mumtaz Butt for Respondents Nos. 1, 2 and 3.

Kashif Ali Malik for Respondents Nos. 4 and 5.

Muhammad Furqan Shabbir for Respondent No. 6.

P L D 2023 Lahore 694

Before Muhammad Ameer Bhatti, C.J.

MUHAMMAD ASHFAQ and 4 others---Petitioners

Versus

IMRAN NADEEM and 3 others---Respondents

C. M. No. 41049 of 2023 in Writ Petition No. 10408 of 2021, decided on 16th June, 2023.

(a) Constitution of Pakistan---

----Art.199(1)(a)(i)---Writ of mandamus---Meaning---Article 199(1)(a)(i) of the Constitution empowers the High Court to issue direction to the authorities working within its territorial jurisdiction who have failed to decide any pending matter and thus have not performed their duties as required by law---High Court can (and must) issue direction to every functionary to do the needful provided that this is done in accordance with law as it is their duty to act fairly, justly and reasonably in the discharge of the said duties.

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

----S. 12(2)---Constitution of Pakistan, Art. 199(1)(a)(i)---Writ of mandamus---Application filed under S. 12(2), C.P.C. for setting-aside a writ of mandamus issued by the High Court---Respondent had filed a Constitutional petition whereby he made complaint about the inaction of the Director General, Faisalabad Development Authority (DG, FDA) regarding non-deciding his pending application and sought direction to FDA for disposal of his pending application expeditiously---High Court issued writ of mandamus to the DG, FDA with the direction that respondent's application shall be decided strictly in accordance with law by providing opportunity of hearing to all concerned, within a period of one month---Present applicants filed an application under S. 12(2), C.P.C., for recalling/setting-aside the High Court's order on the plea that on account of inaction of the FDA regarding respondent's application he instituted a declaratory suit for obtaining the same relief, which was dismissed, and appeal thereagainst was also dismissed as withdrawn by the first appellate Court; that in such circumstances, the application filed by the respondent before the FDA had become infructuous, and thus, there was no occasion for the respondent to file the writ petition for getting direction from the High Court, which directions was obtained by concealment of facts and fraud---Validity---If the FDA made an incorrect decision, it did not create any right in favour of any party to approach the High Court to ask for recalling/setting-aside the impugned order of mandamus, as that concerned only the decision of the pending application which was to be decided in accordance with law---Direction of the High Court was only to take a decision on the undecided/unattended application in accordance with law---It should have been decided by the FDA after considering all the facts and circumstances of the case, relevant laws and affording proper opportunity of hearing to both the parties---If any illegality had been committed by the FDA while deciding the application by not giving due weight to the documentary evidence produced by the applicants, in such eventuality, the said order was liable to be challenged on the same grounds before an appropriate forum---Concealment of facts may be a good ground to challenge the validity of the order but it cannot be considered a ground for setting-aside the order passed by the High Court---It was never the intention of the High Court while issuing the impugned direction to favour any of the parties but the only purpose of the direction was to point out to that FDA to perform its duty qua a pending issue within parameters of the law---Application under S. 12(2), C.P.C was dismissed as being not maintainable.

(c) Constitution of Pakistan---

----Art. 199(1)(a)(i)---Writ of mandamus issued to an Authority by the High Court---Scope---Applicant mistakenly filing an application before an incompetent Authority, having no jurisdiction in the matter---High Court issuing a writ to such Authority on basis of which such Authority assumes jurisdiction---Legality---Assumption of such jurisdiction is wrong---It is the duty of any such Authority that upon receiving any direction from the High Court, it has to first decide its competency about decision making powers regarding the matter concerned and on the basis of that either return the application or forward the same to the concerned competent Authority for its decision along with a copy of order of the High Court---Assumption of jurisdiction on the basis of the High Court's direction does not make any incompetent Authority's order in accordance with law even if such a decision arises under the misconception that jurisdiction was assumed under the direction of the High Court.

P L D 2023 Lahore 699

Before Shahid Bilal Hassan, J

BASHARAT ALI and another---Petitioners

Versus

MUHAMMAD ARIF and others---Respondents

Writ Petition No. 22235 of 2020, heard on 4th October, 2022.

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

----O. III, R. 1 & O. XXIII, Rr. 1, 2---Counsel engaged by the party, authority of---Wakalatnama (Power of Attorney), singing of---Scope and effect---Proceedings conducted by the counsel---Withdrawal of suit--- Suit was withdrawn on the statement recorded by the counsel of the plaintiffs, however, the plaintiffs later moved application for restoration of the suit which was dismissed by the Trial Court---Appellate Court partly allowed revision moved by the plaintiffs against which order the defendants invoked constitutional jurisdiction of the High Court---Validity---Engagement of counsel and conduct of proceedings by him on the behalf of respondents/plaintiffs under O. III, R. 1 of the Civil Procedure Code, 1908, was admitted one---Respondents had appointed the said advocate as their counsel and had signed the power of attorney on their behalf which authorized conducting of suit including recording of any kind of statement---Record revealed that the statement of the counsel was recorded after having moved application while one of the respondents/plaintiffs was also present---Trial Court recorded the statement and ordered to produce the case next day (which date was already fixed for hearing); and on next date/day order with regard to withdrawal of the suit was passed---By signing Wakalatnama, all the powers including withdrawal of suit or to take any step and conduct proceedings had been delegated upon the counsel---Party is always bound by the statement of his counsel unless there is anything contrary in the power of attorney placing restriction on the authority delegated upon the counsel to compromise or abandon the claim on behalf of client(s)---High Court set aside the order passed by the Appellate Court; and consequently order passed by the Trial Court dismissing the application for restoration of suit filed by the respondents/plaintiffs, stood maintained---Constitutional petition was allowed, in circumstances.

Fateh Khan v. Manzoor and 5 others PLD 1993 Lah. 76; Noor Muhammad and others v. Muhammad Siddique and others 1994 SCMR 1248; Hassan Akhtar and others v. Azhar Hameed and others PLD 2010 SC 657 and Afzal and others v. Abdul Ghani 2005 SCMR 946 ref.

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

----O. III, R. 1 & O. XXIII, Rr. 1, 2---Constitution of Pakistan, Art. 199---Counsel engaged by the party, authority of---Wakalatnama (Power of Attorney), singing of---Scope and effect---Suit was withdrawn on the statement recorded by the counsel of the plaintiffs, however, the plaintiffs later moved application for restoration of the suit, which application was dismissed by the Trial Court---Appellate Court partly allowed revision petition moved by the plaintiffs against which order the defendants invoked constitutional jurisdiction of the High Court---Validity---Appellate Court had incorrectly construed law on the subject and had failed to exercise vested jurisdiction as per mandate of law---High Court in exercise of its constitutional jurisdiction under Art. 199 of the Constitution was not denuded of correcting the wrong committed by the Court below---High Court set aside the order passed by the Appellate Court and consequently order passed by the Trial Court dismissing an application for restoration of suit filed by the respondents/plaintiffs stood maintained---Constitutional petition was allowed, in circumstances.

Muhammad Mehmood Chaudhry for Petitioners.

Mubeen Arif and Ihsan Ullah Ranjha for Respondents.

P L D 2023 Peshawar 1

Before Qaiser Rashid Khan, C.J.

The STATE---Petitioner

Versus

WAQAR AHMAD and others---Respondents

References Nos. 1-P and 2-P of 2022, decided on 9th June, 2022.

Criminal Procedure Code (V of 1898)---

----Ss.172, 182, 185(1)& 526---High Court (Lahore) Rules and Orders, R.3, Chapter 26, Vol. III---Reference---Place of trial---Determination---Principle---Transfer of case---Dispute was with regard to trials of two criminal cases arising out of two FIR registered at two different districts "M" and "C" about abduction of a person from one district and his murder in other---Validity---When an offence was committed in parts in two different areas, or continued to be committed in more local areas, then it was prerogative of either of the Courts to take cognizance of the matter having jurisdiction over any of such areas---Legislation itself had conferred concurrent jurisdiction upon both the Courts to adjudicate upon the matter in respect of the offences which were / had been committed in their respective jurisdiction---On the touchstone of Rule 3 of Chapter 26 of Volume III of High Court (Lahore) Rules and Orders, it was also to be seen as to which Court was more suitable for both the parties---Both the parties and complainant party as well as prosecution witnesses hailed from District "C" therefore the Court who took cognizance of the matter regarding abduction of the deceased was more suitable to also adjudicate upon the matter regarding murder of the abductee---High Court in exercise of jurisdiction/ power as envisaged under S. 526, Cr.P.C. transferred case pending at district "M" to Court at district "C"---Reference was answered accordingly.

2020 SCMR 1200; 2017 PCr.LJ 46; PLD 2015 Bal. 54; PLD 2008 Quetta 101; AIR 1970 Calcutta 81; AIR 1952 Calcutta 563; AIR 1933 Lahore 852 and AIR 1933 Oudh 45 ref.

Shumail Ahmad Butt, Advocate General, Khyber Pakhtunkhwa (on 30.05.2022) and Syed Sikandar Hayat Shah, Additional Advocate General (on 09.06.2022) for the State.

Assisted by: Zaib Ullah, Judicial Assistant, Research Wing, Peshawar High Court.

P L D 2023 Peshawar 6

Before Muhammad Naeem Anwar, J

Mst. HAYAT BEGUM---Petitioner

Versus

REHMAN MALIK and others---Respondents

Civil Revision No. 441-M of 2019, decided on 23rd June, 2022.

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

----S. 4---Succession---Widow of predeceased son---Entitlement---Scope---Petitioner filed a suit for declaration to the effect that she being the widow of predeceased son of propositus was entitled in the legacy of her father-in-law---Validity---Section 4 of Muslim Family Laws Ordinance, 1961 clearly reflected the intention of legislature that in order to cater the suffering of sons or daughters of predeceased son, they could get their share as if the predeceased son or daughter was alive at the time of death of his/her propositus---Question as to whether other legal heirs of predeceased son or daughter could also be benefited from the provisions of S. 4, remained controversial, however, S. 4 could not be interpreted other than as it was and for whose benefit it was promulgated---In fact, the benefit was provided to the sons and daughters of a predeceased in the legacy of their propositus whereas the other legal heirs of a predeceased son/daughter might not be the legal heirs of grandfather or grandmother either in accordance with the text of the Holy Quran or tables provided by Islamic Law, especially the widow of predeceased son with relation to the legacy of her father-in-law or mother-in-law, had got no concerned, whatsoever---Neither she was sharer nor residuary---Legacy of her father-in-law or mother-in-law, in the event of the death of her husband in the lifetime of his father/mother, being predeceased son is not entitled---Revision petition was dismissed.

Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others 2005 SCMR 1595 and Mian Mazhar Ali and others v. Tahir Sarfraz and others PLD 2011 Lah. 23 distinguished.

Haji Muhammad Hanif v. Muhammad Ibrahim and others 2005 MLD 1 and Saif-ur-Rahman and another v. Sher Muhammad through L.Rs. 2007 SCMR 387 rel.

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

----S. 4---Constitution of Pakistan, Art. 203-D---Succession---Powers of Federal Shariat Court---Scope---Section 4 of the Muslim Family Laws Ordinance, 1961, notwithstanding the fact that it has been declared repugnant to the injunctions of Islam by the Federal Shariat Court in the case of "Allah Rakha and others v. Federation of Pakistan and others" [PLD 2000 Federal Shariat Court 1] still holds the field in view of proviso to Art. 203-D(2) of the Constitution---Decision of Federal Shariat Court was assailed before the Supreme Court in appeal and same is still pending adjudication, thus, in accordance with the proviso to Art.203-D(2) of the Constitution, the decision of the Federal Shariat Court before disposal of the appeal by the Supreme Court is not effective.

Muhammad Khan and others v. Muhammad Ishaq and others 2005 CLC 1240 ref.

Mst. Fazeelat Jan and others v. Sikandar through his legal heirs and others PLD 2003 SC 475 rel.

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

----S. 4---Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2---Principle of "per stripes"---Scope---Section 4 of the Muslim Family Laws Ordinance, 1961, has been enacted to remove the difficulties and sufferings of grandchildren but it cannot be interpreted so as to decrease the shares of the other descendants of the propositus---Section 4 in spite of being non-obstante clause, has to be interpreted in the light of S. 2 of the Muslim Personal Law (Shariat) Application Act, 1962 and both the statutes çan stand together.

Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 rel.

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

----S. 4---Succession---Scope---Son/daughter of a predeceased son can get their share in the property of their grandfather, but it would be subject to the shares as provided in the Holy Quran and if the distribution of share under the provisions of S. 4 is overlapping or inconsistent then Shariat would prevail.

Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 and Mst. Aqsa Sabir and another v. Dr. Sajjad Hussain and others 2015 MLD 652 ref.

Syed Abdul Haq for Petitioner.

P L D 2023 Peshawar 12

Before Syed Arshad Ali, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

AMEER BAHADUR and others---Respondents

Civil Revision No. 915-P of 2012, decided on 28th December, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Inheritance---Concurrent findings of two Courts below---Mutation of inheritance was assailed---Locus standi---Mutation of inheritance attested on 27-03-1922 on the basis of Riwaj (custom), respondents / plaintiffs claimed that sons from three widows of deceased owner were to be given equal shares instead of giving 1/3rd to sons from each widow---Trial Court and Lower Appellate Court decreed the suit and dismissed the appeal respectively---Validity---When legal heir was deprived of his/her legal right of inheritance and if he/she remained alive for a considerable period and had not challenged his/her deprivation from legacy of predecessor then at late stage when the legacy had changed many hands the further legal heirs had no locus standi to challenge such mutation of inheritance, which remained unchallenged during the lifetime of their predecessors---Immediate legal heir of deceased owner of the estate during their lifetime never challenged mutation in question---Suit which was filed in the year 2006, was barred by time as by then good number of transactions had taken place---High Court in exercise for revisional jurisdiction set aside concurrent findings of facts by two Courts below and dismissed the suit filed by respondents/ plaintiffs---Revision was allowed in circumstances.

Muhammad Ishaq v. Federation of Pakistan PLD 1981 FSC 278; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Farida and 2 others v. Rehmatullah and 2 others PLD 1991 SC 213; Ghulam Haider v. Murad through Legal Representatives PLD 2012 SC 501; Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Boota v. Allah Ditta 1998 SCMR 2764; Zulfiqar Ali v. Ghulam Rasool 2004 SMR 513; Muhammad Raffique v. Muhammad Ali 2004 SCMR 704; Mst. Fatima Bibi v. Altaf Ahmad 2009 SCMR 693; Mst. Gohar Khanum v. Mst. Jameela Jan 2014 SCMR 801; Lal Khan v. Muhammad Yousaf PLD 2011 SCMR 657; Mst. Grana's case PLD 2014 SC 167; Mehmood Shah's case 2015 SCMR 869; Khan Muhammad v. Mst. Khatoon Bibi 2017 SCMR 1476; Asal Janan and others v. Zareef Khan and others 2020 SCMR 668 and Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352 rel.

Muhammad Faheem Wali and Muhammad Yasir Khattak for Petitioners.

Muhammad Ishaq Khan for Respondents.

P L D 2023 Peshawar 19

Before Muhammad Faheem Wali, J

RABNAWAZ---Petitioner

Versus

Mst. SABU BIBI and others---Respondents

Civil Revision No. 224-D with C.M. No. 272-D of 2015, decided on 21st September, 2022.

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

---S. 48---Limitation Act (IX of 1908), S. 15---Execution of decree---Limitation---Provision of S. 15 of Limitation Act, 1908, has been made expressly applicable to application for execution of decree and it controls S. 48, C.P.C.---Period of limitation of six years has been provided in S. 48, C.P.C.

Tribeni Prasad v. Ram Asray Prasad AIR 1931 Pat 241; Durag Pal Singh v. Pancham Singh AIR 1939 All. 403 and Firm Ramgopal Bhutada v. Sidram Aunayya AIR 1943 Bom. 164 rel.

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

----S.48---Execution of decree---Commutation---Period during which decree of Trial Court remains suspended through any injunctive order, that period must be excluded in computing period of limitation under S.48, C.P.C.

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

----Ss. 48 & 115---Limitation Act (IX of 1908), Art.181---Revision---Execution of decree---Limitation---Concurrent findings of facts by two Courts below---Petitioner was aggrieved of award made rule of the Court and assailed execution proceedings on the plea that those were barred by limitation---Validity---Limitation for filing of first execution petition was governed by Art. 181 of Limitation Act, 1908 and not by S.48, C.P.C. ---Respondent had filed execution petition within time from the date of judgment of High Court---High Court declined to interfere in concurrent findings of two Courts below and petitioner failed to point out any illegality or infirmity committed by the two Courts---Revision was dismissed, in circumstances.

Mehboob Khan v. Hassan Durrani PLD 1990 SC 778; House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal through L.Rs. 2007 SCMR 1929 and Ms. Shahzad Bibi and another v. Gulzar Khan 1997 SCMR 1796 ref.

(d) Merger, doctrine of---

----Applicability---Doctrine of merger is based on principles of propriety in the hierarchy of justice delivery system---Doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by appellate and revisional Courts---Doctrine of merger postulates that there cannot be more than one operative decrees governing the same subject matter at a given point of time.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 rel.

Haji Muhammad Shakeel for Petitioner.

Muhammad Sajid Shahzad for Respondents.

P L D 2023 Peshawar 25

Before Musarrat Hilali and Ijaz Anwar, JJ

Dr. JEHANZEB and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA---Respondent

Review Petition No. 261 of 2018 in Writ Petition No. 2640-P of 2015, decided on 28th September, 2022.

(a) Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999---

----Rr. 3 & 8---Civil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition---Preliminary/open enquiries against public servants---Scope---Petitioners sought review of order passed by High Court in writ petition wherein they had challenged a notice issued by Khyber Pakhtunkhwa Anti-Corruption Establishment for deposit of embezzled amount---Validity---Nowhere in the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, it had been provided that before initiating preliminary inquiry or after completion of the inquiry or registration of a criminal case a notice for deposit of embezzled amount was required to be issued and even otherwise, once it was proved that the offence was committed, then any payment made subsequent thereto, did not absolve the accused of criminal liability and in this respect procedure as to investigation and dropping of the proceedings had been provided under R. 8---Issuance of impugned notice to the petitioners to deposit the amount was not in accordance with law---Notice was set aside being illegal, unlawful and without jurisdiction, however, the petitioners could be proceeded against in accordance with law---Review petition was disposed of accordingly.

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

----S. 114---Review---Scope---Right to claim review of any decision of a Court of law, like the right of appeal is a substantive right and not mere matter of procedure.

PLD 2007 SC 121 ref.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Section 114, C.P.C. deals with jurisdiction of Court to review its judgments, according to which any person considering himself aggrieved from the decree or order from which an appeal allowed, but no appeal has been preferred or where no such appeal is allowed or by a decision on a reference from a Court of Small Causes may apply for review of the judgment of the Court which passed the decree or order, the Court may make such order thereon as it think fit, while the grounds on which a review can be sought are enumerated under O. XLVII, R. 1, C.P.C.---Power of review can be exercised to correct the errors and the main aim of power to review is to prevent injustice being done by a Court and the key requirement for invoking the review is that an error or mistake which is manifestly floating on the face of record, which is patent and if allowed to remain intact would perpetuate illegality and gross injustice.

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

----S. 114---Review---Scope---Every Court of law is under obligation to apply the correct law and if it is established that same has not been applied by Court, then, a review application in this regard is maintainable and similar is the case whereby some inadvertence an important statutory provision has escaped notice which, if had been noticed, might materially have affected the judgment of the Court.

PLD 1962 SC 355 rel.

(e) Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999---

----Rr. 3, 4, 5 & 8---Preliminary/open enquiry against public servant---Registration of cases/arrest of accused---Informing Administrative Department regarding registration of case and arrest---Dropping of the case---Scope---Rule 3 of the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, reveals that the Anti-Corruption Establishment can investigate offences set forth in the schedule and hold preliminary inquiries for determining whether such offences, which are enumerated in R. 5, shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held and, thereafter, if found that a criminal case under Scheduled Offence is made out, a case is to be registered in the manner as prescribed under Rr. 4 & 5---If, on completion of investigation, allegations are not established then under R. 8, the case shall be dropped.

Muhammad Farooq Afidi for Petitioners.

Malik Akhter Hussain Awan, A.A.G. for Respondent.

P L D 2023 Peshawar 29

Before Ijaz Anwar and Syed Arshad Ali, JJ

FAZAL KHAN and others---Petitioners

Versus

ADDITIONAL DEPUTY COMMISSIONER and others---Respondents

Writ Petition No. 1291-P of 2022, decided on 13th May, 2022.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 175---Prevention of encroachment upon common land---Scope---Respondents during pendency of their suit for perpetual and temporary injunction filed application before the Deputy Commissioner for possession of suit land purportedly under S. 175 of the Land Revenue Act, 1967---Application was marked by Deputy Commissioner to the Tehsildar concerned; who allegedly inspected the spot and handed over the disputed property to the respondents vide impugned order---Validity---Perusal of S. 175 revealed that the revenue officer could assume jurisdiction in the circumstances where a particular property was commonly reserved by a proprietary body of a village for the purpose of pasture, graveyard or other similar purpose and in case any person either belonging to the proprietary body or stranger had encroached upon the property, the revenue officer had the jurisdiction to intervene in the matter and recover the possession of the property from the encroacher by restoring it for the purpose for which it was reserved---Section 175 had no application in the matter when there was dispute between two co-owners in respect of the property which had not been reserved for any purpose---Revenue officials had not only acted without jurisdiction but their mala fide and collusion with the private respondents was evident from the record---Impugned order was set aside and the respondents were directed to restore possession of the property to the petitioners.

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

----S. 9---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 135---Suit by person dispossessed of immovable property---Application for partition---Scope---Where a co-sharer in possession on a portion of joint property is dispossessed by another co-sharer, the remedy for the aggrieved person is either to bring a suit for possession under S. 9 of the Specific Relief Act, 1877 or possession through partition before the appropriate forum.

Contractor Haji Muhammad Alam (deceased) through Legal Heirs v. Shaukat Sultan and others 2009 SCMR 688; Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325; Nazar Hussain v. Additional District Judge, Chakwal and 4 others 2004 YLR 322 and Mahmood Ahmad v. Abdul Ghafoor and others 2014 YLR 2046 ref.

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

----S. 135---Application for partition---Scope---When a particular land which is jointly owned by co-owners, the revenue authorities do not maintain record in respect of each holding of co-share in a particular khasra number by metes and bounds.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Maintainability---Scope---Rule about invoking the constitutional jurisdiction of a High Court only after exhausting all other remedies, is a rule of convenience and discretion by which the courts regulate its' proceedings and it is not a rule of law affecting the jurisdiction---Constitutional petition can be entertained against an order passed by a court or authority established under any law, by exceeding its jurisdiction; even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case.

Gatron (Industries) Ltd v. Government of Pakistan and others 1999 SCMR 1072; Collector Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357; Muslimabad Cooperative Housing Society through Secretary v. Mrs. Siddiqa Fiaz and others PLD 2008 SC 135 and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Tariq Kamal for Petitioners.

Rab Nawaz Khan, A.A.G., along with Waqif Khan, Tehsildar Pabbi, District Nowshera.

Muneer-ud-Din Ghori for Respondents Nos.3 to 7.

P L D 2023 Peshawar 35

Before Ijaz Anwar and Muhammad Nasir Mahfooz, JJ

ZUBAIR ALI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No. 942-P of 2021, decided on 24th February, 2021.

Elections Act (XXXIII of 2017)---

----S. 2 (xxxix)---Constitution of Pakistan, Art. 62---Technocrat seat---Senate election---Petitioner was candidate for seat of Technocrat in Senate---Election Commission rejected candidature of petitioner---Validity---Petitioner did his master's degree of arts and international relations---High Court did not consider degree for the purpose of experience, as petitioner had not completed requisite experience of 20 years in terms of definition of Technocrat given in Elections Act, 2017---Definition of experience provided in law included a record of achievements at national or international level but the same was not relevant as petitioner did not complete requisite length of experience---High Court declined to interfere in the matter as petitioner was not eligible for the seat of Technocrat in Senate and his nomination papers were rightly rejected---No infirmity or illegality existed in order passed by Election Commission---Constitutional petition was dismissed, in circumstances.

Ali Gohar Khan v. Adnan Khan and 4 others 2010 CLC 1317 and Junaid Rehman Ansari and others v. The State and others PLD 2020 Sindh 158 ref.

Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Islam Hussain v. Election Commission of Pakistan through Secretary and 2 others 2018 CLC 820; Khizar Haider Malik and others v. Muhammad Rafiq Malik and another 1987 SCMR 78; Sanaullah Khan v. Secretary Khyber Pakhtunkhwa and 2 others 2019 MLD 781 and Shoukat Ali v. Chairman Khyber Pakhtunkhwa Public Service Commission Peshawar and 68 others 2018 PLC (C.S.) Note p.63 rel.

Abdul Latif Afridi and Barrister Yasin Raza Khan for Petitioner.

P L D 2023 Peshawar 40

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

SALMAN KHAN and 2 others---Petitioners

Versus

UNIVERSITY OF SWAT through Vice-Chancellor and 5 others---Respondents

Writ Petition No. 205-M of 2021, decided on 1st June, 2022.

(a) Administration of justice---

----Ignorance of law cannot be construed or sustained as bona fide excuse.

Muhammad Ameen and another v. Jawaid Ali and 5 others 2017 YLR Note 429 and Zaman and 2 others v. Muhammad Khan 2017 YLR 353 rel.

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

----Art. 114---Estoppel---Applicability---There can be no estoppel against law.

Justice Muhammad Farrukh Irfan Khan, Judge, Lahore High Court, Lahore v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others PLD 2019 SC 509 and University of Malakand through Registrar and others v. Dr. Alam Zeb and others 2021 PLC (C.S.) 1168 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Failure to pass examination in duration fixed---Degree, non-awarding of---Petitioners were students who were not awarded degrees by the university for not clearing examination in duration so fixed---Plea raised by petitioners was that they appeared in examination and were entitled to degree---Validity---Estoppel could not be used as sword rather it could be used as shield---Petitioners were allowed by college administration for appearing in examination on their own risk and cost and degree was to be awarded by university and not by college---University was to follow its own statutes and regulations where no such further extension was provided for failures---Petitioners failed to point out any violation of their rights or statute or regulations---High Court declined to interfere in the matter as petitioners remained unable to complete their studies for the award of degree---Constitutional petition was dismissed in circumstances.

Najeeb Ullah v. Controller of Examination, University of Agriculture, Peshawar and others Writ Petition No. 4660-P of 2020, decided on 14.04.2021 rel.

(d) Administration of justice---

----When a thing is required to be done in a particular manner and procedure, the same must be done in that manner and not otherwise.

Ajmir Shah Ex-Sepoy v. The Inspector General Frontier Corps Khyber Pakhtunkhwa and another 2020 SCMR 2129 rel.

Muhammad Yar Malezai for Petitioners.

Razauddin Khan, A.A.G for Respondent No.6.

P L D 2023 Peshawar 46

Before Rooh-ul-Amin Khan and Shakeel Ahmad, JJ

Messrs CHERAT CEMENT CO. LTD., NOWSHERA through Senior Manager Accounts---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Energy (Power Division), Islamabad and others ---Respondents

Writ Petition No. 3573-P of 2022 and (all connected cases), decided on 28th September, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Rule of exhaustion of available remedy---Applicability---Rule of exhaustion of available remedy, though not prescribed by Art. 199 of the Constitution, however it is statutory creation by which High Court regulates its proceedings---Presence of alternate remedy is neither a principle of law nor rule of thumb impressions but one of the practice---If High Court is of the view that alternate remedy available to petitioner/claimant is a remedy in law, i.e. a remedium juris and one which is not less convenient, beneficial and effective, inexpensive, expeditious and efficacious, the petitioner/claimant must first avail the remedy provided by statue before he applies for issuance of a writ---Two well recognized exceptions to the doctrine with regard to exhaustion of statutory remedies---In the first place, where proceedings are taken before a tribunal or a public functionary under provision of law, which is ultra vires, it is open to party aggrieved to move to High Court under Art. 199 of the Constitution for appropriate writ for quashing the proceedings on the grounds that they are incompetent without his being obliged to wait until such proceedings run their full course, secondly the doctrine has no application, unless order in question has been made in violation of principles of natural justice or where proceedings themselves are abuse of process of law.

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

----Ss. 7(g), 12-A & 31---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate and efficacious remedy---Petitioners were aggrieved of imposing/incorporating maximum demand indicator in their monthly electricity bills---Plea raised by authorities was that petitioners had alternate remedy available to them---Validity---Dispute between the parties related to determination of Tariff as envisaged in S.31(7) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, for which a relief could be conveniently sought in terms of 7(g) and 12-A of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Such was equally efficacious, inexpensive, beneficial and convenient---Mechanism for redress of grievance was provided in Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Petitioners were to first avail remedy provided by statute before applying for a writ or order in the nature of writ---High Court declined to exercise jurisdiction under Art. 199 of the Constitution, as adequate remedy was available under the relevant law---Constitutional petition was dismissed in circumstances.

Human Rights (Environmental Pollution in Balochistan in Re: v. Human Rights [Environmental Pollution in Balochistan PLD 1994 SC 102; Abdur Rehman's case PLD 1987 SC 21; Allah Bakhsh v. Muhammad Ismail 1987 SCMR 810 and Moula Bux alias Mouledino v. Station House Officer, Police Station Hatri Ghulam Shah and 2 others 2003 YLR 1316 rel.

Isaac Ali Qazi for Petitioner.

Aamir Javed, Additional Attorney General and Sana Ullah, D.A.G. for the Federation.

Asad Jan for Respondents/PESCO along with Muhammad Tofeeq, Law Officer (PESCO) and Amir Nawaz, Deputy Director (TESCO).

P L D 2023 Peshawar 60

Before Muhammad Ijaz Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest Department at Peshawar and others---Petitioners

Versus

GUL AMBAR and others---Respondents

Civil Revision No.289-M with C.M. No. 1334 of 2022, decided on 4th August, 2022.

Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss. 92 & 93---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 53---Specific Relief Act (I of 1877), Ss. 42, 54 & 55---Suit for declaration, perpetual and mandatory injunction---Suit for declaration filed by persons aggrieved by an entry in a record---Bar of jurisdiction of Civil Court---Jurisdiction of Forest Magistrates---Scope---Plaintiffs brought a suit for declaration-cum-perpetual/mandatory injunction and for correction of entries made in the revenue record on the ground that they were the ancestral owners-in-possession of the suit property as their predecessor had purchased the property through registered deeds---Defendants straightaway submitted an application for rejection of plaint on the ground that suit property was a protected forest and the jurisdiction of civil court was barred under S. 92 of the Khyber Pakhtunkhwa Forest Ordinance, 2002---Trial Court accepted the application, however, the Appellate Court remanded the case to Trial Court for decision on merits---Validity---Defendants had challenged the entries made in the revenue record under S. 53 of the Khyber Pakhtunkhwa Land Revenue Act, 1967 and as such the suit was fully competent---Combined reading of Ss. 92 & 93 of the Khyber Pakhtunkhwa Forest Ordinance, 2002, clarified that jurisdiction of Civil Court was barred in relation to any matters relating to implementation of the Khyber Pakhtunkhwa Forest Ordinance, 2002 or rules made thereunder and the issues arising out of such implementation were required to be exclusively dealt with by a Forest Magistrate---In other words, when certain steps were taken by the officers of Forest Department for implementation of the Khyber Pakhtunkhwa Forest Ordinance, 2002, then such steps could not be called in question in any Civil Court---Civil Court had jurisdiction to entertain the plaint and to proceed with the same in accordance with law---Revision petition was dismissed.

W.P. No. 551-M of 2017 rel.

Alam Khan Adenzai, Asstt: A.G. for Petitioners.

P L D 2023 Peshawar 64

Before Kamran Hayat Miankhel, J

ASMAT---Petitioner

Versus

SAHIB ROKHAN and 7 others---Respondents

Civil Revision No.170-A of 2021, decided on 3rd October, 2022.

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

----S. 115---Limitation Act (IX of 1908), Ss. 5 & 29---Civil revision---Limitation---Condonation of delay---Scope---Section 115 of C.P.C. provides its own limitation which is 90 days from the decision of the subordinate court and similarly the High Court has power to suo motu call for record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, then no limitation is provided in such eventuality and such suo motu exercise can be taken by the High Court at any time---Scrutiny of S. 29 of the Limitation Act, 1908, reveals that where period of limitation has been prescribed in the special law such as S. 115, C.P.C., for filing of revision petition, thus, being a special law for the purpose of limitation as it provides its own limitation, S. 5 of the Limitation Act, 1908, has no applicability---Subsection (2) S. 29 of Limitation Act, 1908, provides exceptions about applicability of Limitation Act, 1908 and stipulates that Limitation Act, 1908, shall not be applicable except S. 4, Ss. 9 to 18 and S. 22 of Limitation Act, 1908---So applicability of S. 5 of the Limitation Act, 1908 (condonation of delay) is out of question and, therefore, not applicable to the revision petition.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

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

----S. 115---Limitation Act (IX of 1908), Ss. 5 & 29---Civil revision---Limitation---Condonation of delay---Scope---Section 115 of C.P.C. provides its own limitation of 90 days, thus, for law of limitation as per S. 29 it is a special provision and does not fall under the exceptions as provided by S. 29 of Limitation Act, 1908---Section 5 of the Limitation Act, 1908 is not applicable to civil revision petitions.

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

----S. 115---Limitation Act (IX of 1908), Ss. 5 & 29---Civil revision---Limitation---Condonation of delay---Scope---In judicial system, the law of limitation has its own significance relating to the period prescribed for instituting the proceedings---Limitation Act, 1908 contains in its fold remedial provisions like Ss. 5, 12 & 14, which empowers the court to enlarge the period of limitation in peculiar circumstances of each case, provided these provisions have been specifically made applicable on the proceedings and in the absence of its application, the court at its own shall not be competent to make applicable the provision of these sections---Under C.P.C. there are several provisions where Limitation Act, 1908, has expressly been made applicable to condone the delay in filing the proceedings if sufficient cause exists in favour of the party who seeks the condonation of delay but Limitation Act, 1908, has not been made applicable in accordance with S. 29 of the Limitation Act, 1908 on the revision petition under S. 115 of C.P.C. as it is special law for the purpose of limitation, providing its own limitation.

City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 ref.

2007 YLR 1781 rel.

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

----S. 5---Extension of period in certain cases---Condonation of delay---Scope---Delay of each day must be properly and satisfactorily be explained and no flimsy grounds that matter was delayed because it passed through the hands of different officials due to which sufficient time was consumed, would be tenable in the eyes of law.

(e) Limitation---

----Scope---Law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with---Statutes of limitation by their very nature are strict and inflexible---Law of limitation does not confer a right; it only regulates the rights of the parties---Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with letter and spirit---Law of limitation has no scope for any equitable or ethical construction---Justice, equity and good conscience do not override the law of limitation---Object of law of limitation is to prevent stale demands and so it ought to be construed strictly.

P L D 2023 Peshawar 71

Before Muhammad Ijaz Khan, J

PROJECT DIRECTOR NEW THAKOT BRIDGE and others---Appellants

Versus

SHER ZADA and others---Respondents

R.F.A. No. 46-M of 2012, decided on 10th October, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 3(d)---Reference to Court---Delegation of authority by the Referee Court---Scope---After a reference is sent by the Collector, a court, as defined in section 3(d) of the Land Acquisition Act, 1894, acts as a transferee-cum-delegatee---Under established judicial principles, it is not authorized to further delegate its functions or authority---As a special law enacted with a specific objective to deal with acquisition cases, all functionaries performing their duties under the Land Acquisition Act, 1894, are bound by its provisions---Referee Judge to whom the reference is sent by the Collector is not authorized to delegate or pass on its jurisdiction or function to any other court, person, or authority.

Malik Muhammad Ishaq v. Land Acquisition Collector, Lahore and 7 others PLD 1978 Lah. 458; Babulan v. The Secretary of State 4 Calcutta LJ 256 K and Zia Ullah and 6 others v. Government of Khyber Pakhtunkhwa and 6 others 2022 MLD 1705 rel.

Faridullah Khan for Appellants.

Iftikhar Ahmad (Senior), D.A.G. appearing on behalf of the Federation.

Haq Nawaz Khan, Astt: A.G. for the Official Respondents.

Haq Nawaz for private respondents.

P L D 2023 Peshawar 78

Before Muhammad Ijaz Khan, J

BAKHT ALAM KHAN---Petitioner

Versus

WASEEM KHAN and others---Respondents

Civil Revision No.399-M of 2021, decided on 4th August, 2022.

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

----S. 51 & O. XXI, R. 10---Execution of decree---Powers of Executing Court---Scope---Plaintiff filed a suit claiming that he was the owner in possession of a 1/5th share based on a will---Defendants contested the suit and the Trial Court ultimately passed a decree in favor of the plaintiff for a 1/5th share---Plaintiff then applied to the Executing Court for execution of the decree, which was granted---However, one of the defendants, the petitioner, also filed an application for execution of the decree on the ground that he was the legal heir of the deceased and entitled to benefit from the decree as the plaintiff had been---Validity---Plaintiff's 1/5th share had been decreed, but no finding had been recorded regarding the remaining 4/5th share, for which the petitioner sought execution---Neither the judgment nor the decree provided any executable rights for the petitioner---While the petitioner had the option to approach the civil court for an identical decree, the Executing Court was bound to execute the decree as it was passed and could not alter, amend or add to it---Courts below were correct in denying the relief sought by the petitioner---Revision petition was dismissed.

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

----S. 51 & O. XXI, R. 10---Execution of decree---Powers of Executing Court---Scope---Executing court cannot go beyond the decree and it has to execute the decree in terms in which it has been passed.

Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481; Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 and Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance, Company Limited and 2 others 1994 SCMR 22 rel.

Province of Punjab through Secretary Industries, Government of the Punjab, Civil Secretariat, Lahore v. Burewala Textile Mills Limited 2001 SCMR 396 and Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640 ref.

Abdul Halim Khan for Petitioner.

Aziz-ur-Rahman Swati for Respondents Nos. 1 and 3.

P L D 2023 Peshawar 82

Before Abdul Shakoor and Syed Arshad Ali, JJ

KOHAT CEMENT FACTORY LIMITED through Assistant Manager---Petitioner

Versus

LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS DEPARTMENT, KHYBER PAKHTUNKHWA through Secretary and 4 others---Respondents

Writ Petition No. 6005-P of 2019, decided on 26th January, 2023.

(a) Interpretation of statutes---

----Two interpretations---Principle---Where a provision in taxing statute can reasonably be interpreted in two ways, interpretation favourable to assessee has to be accepted.

CIT v. Naga Hills Tea Co. Ltd AIR 1973 SC 2524 and Haider Industries through Managing Partner and others v. Federation of Pakistan through Secretary, Law Division at Islamabad and others 2016 PTD 2004 rel.

(b) Interpretation of statutes---

----Fiscal statute---Words, meaning of---Principle---In taxing statute, as in any other statute there is no reason to depart from general rules---Words used in a statute must first be given their ordinary and natural meaning---When ordinary meaning does not make sense then resort can be made to discovering other appropriate meanings. B

Pakistan Textile Mill Owners' Association, Karachi and 2 others v. Administrator of Karachi and 02 others PLD 1963 SC 137 and Messrs Islamabad Electric Supply Company Limited v. Deputy Commissioner Inland Revenue Audit-II, LTU, Islamabad and others 2016 PTD 2685 rel.

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

----S. 27-A---Constitution of Pakistan, Art. 199---Constitutional petition---Stamp duty---Potential value---Effect---Petitioner company purchased agriculture land and authorities applied rate of stamp duty on the basis of future use of the land---Validity---Relevant date for determination of chargeable duty was date of registration of instrument---Character of property as on the time of sale determined stamp duty---Subsequent use either for commercial or other activities could not be considered as a benchmark for determination of ad-valorem stamp duty---Valuation of stamp duty in terms of S. 27-A of Stamp Act, 1899, would be the nature and character of property at the time of registration of the instrument and not its potential use---High Court directed the authorities to re-evaluate stamp duty on the transaction according to the nature and character of the property as it was/would be on the date of execution of the instrument and not its future potential use---Constitutional petition was allowed, in circumstances.

Imtiaz Rafi Butt's case PLD 1996 Lah. 663 rel.

M. Yasir Khattak for Petitioner.

Barrister Babar Shahzad Imran, A.A.G. for Respondents.

P L D 2023 Peshawar 88

Before Muhammad Ijaz Khan, J

Mst. MUSARAT---Petitioner

Versus

AZIZ AHMAD and others---Respondents

Civil Revision No.371-M of 2020, decided on 31st October, 2022.

(a) Islamic law---

----Talaq---Effectiveness---Marz-al-Maut ( )---Widow---Right of inheritence---In case of Talaq Rajia (Talaq Ahsan and Talaq Hassan) given during the days of , it would have no effect on the right of widow to have share in legacy of her husband if her husband dies before completion of Iddat period of wife---In case of orwhich is given on the death bed, it would also have no effect upon the right of widow in the legacy of her husband if such husband dies before completion of her Iddat period.

by Dr. Tanzeel-ur-Rehman and Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22 rel.

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

----S. 7---Written Talaq---Effectiveness---Principle---Pronouncement of Talaq and its effectiveness in case of Talaq-Nama or oral Talaq reduced into writing, as the case may be, and other legal axillary and ancillary consequences are regulated by S. 7 of Muslim Family Laws Ordinance, 1961.

(c) Islamic law---

----Inheritance---Limitation---Legacy of a Muslim, under Islamic Law, opens the moment when he dies---All legal heirs who are living on the day of his/her death become entitled for their respective shares in the legacy of deceased.

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

----S. 372---Muslim Family Laws Ordinance (VIII of 1961), S. 7---Civil Procedure Code (V of 1908), S.115---Succession certificate---Divorce---Proof---Petitioner claimed her share in succession of her deceased husband---Respondents resisted claim of petitioner on the plea that she had been divorced by the deceased during his life time---Trial Court and Lower Appellate Court concurrently rejected right of petitioner---Validity---Neither scribe nor Notary Public knew the deceased---Scribe of alleged Talaq-Nama stated that deceased was identified by his son who happened to be a Patwari and as such a direct beneficiary of alleged Talaq-Nama remained on front foot without associating any independent person with the process of execution of alleged Talaq-Nama---Identity of deceased was not established before scribe of the deed through independent, trustworthy and confidence inspiring evidence---High Court in exercise of revisional jurisdiction set aside judgments passed by Trial Court and Lower Appellate Court and petitioner was held entitled to her Shari share in the legacy of her deceased husband---High Court directed the Trial Court to revoke earlier succession certificate and issue a second succession certificate duly reflecting share of petitioner along with all other legal heirs of deceased---Revision was allowed accordingly.

Mushtaq Ahmad and another v. Mst. Sat Bharai and 5 others 1994 SCMR 1720; Syed Ali Nawaz Gardezi v. Lt.-Col. Yousaf PLD 1963 SC 51 and Sardar and 3 others v. Muhammad Khan alias Malla and 6 others 2003 YLR 2623 rel.

Jehanzeb (Buneri) for Petitioner.

Haider Ali Khan for Respondents.

P L D 2023 Peshawar 99

Before S M Attique Shah and Muhammad Faheem Wali, JJ

ZEESHAN AFZAL---Petitioner

Versus

QAISER ALI and others---Respondents

Writ Petition No. 23-D of 2022 with C.M. No. 33-D of 2020 and Interim Relief, decided on 3rd March, 2022.

(a) Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021---

----R. 9---Constitution of Pakistan, Art. 199---Local Council Elections---Recounting of votes/ballot papers---Election Commission, powers of--- Constitutional petition--- Maintainability--- Election Commission, on application of respondent/candidate, ordered the Returning Officer to carry out recounting of votes---Petitioner/returned candidate invoked constitutional jurisdiction of the High Court against the order passed by the Election Commission---Contention of the respondent/candidate was that an appeal could be preferred only before the Supreme Court against an order passed by the Election Commission---Held, that though R. 9(5) of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules 2021") provided the remedy of appeal before the Supreme Court to a person aggrieved by a declaration of the Election Commission, however, Election Commission could only deal with declaration of a poll as void and had no power to issue direction for recounting of votes---Poll, admittedly, had not been declared void, in the present case, by the Election Commission rather the impugned order pertained to the recounting of votes, which was not the mandate of R. 9(1) of the Rules, 2021---Provisions of R. 9(5) of the Rules 2001 were absolutely inapplicable to the present case, therefore, High Court had the jurisdiction to entertain and adjudicate upon the matter-in-issue by dint of Art. 199 of the Constitution---Constitutional petition was maintainable.

(b) Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021---

----R. 8---Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013), Preamble---Elections Act (XXXIII of 2017), Preamble---Local Council Elections---Polling---Election Commission, powers of---Validity---Rule 8 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules, 2021") encompassed powers of Election Commission during the poll, which started with the words "Save as otherwise provided, the Commission may" which indicated that the provisions of R. 8 were subject to the stipulations and conditions as provided in the Rules, 2021 and same could not be taken in isolation to the other provisions of law governing elections.

(c) Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021---

----Rr. 8, 9 & 47(5)---Elections Act (XXXIII of 2017), S. 95(5)---Local Council Elections---Recounting of votes---Returning Officer, powers of---Declaration of the Election Commission---Scope---Issuance of final consolidated results---Scope---Election Commission, on application of respondent/candidate, ordered the Returning Officer to carry out recounting of votes---Petitioner/returned candidate contended that after issuance of final consolidated results vide Form XX and XXI, Election Commission had no jurisdiction to recount---Held, that though under the R. 47(5) of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules 2021"), the Returning officer could recount the valid ballot papers under certain conditions, however, R. 47(6) of the Rules 2021 stipulated that the Returning officer would furnish original copies of 'consolidated statement' of the results of the count furnished by the Presiding Officer on Form-XX and 'Final Consolidated result' on Form-XXI to the Commission---Hence, the exercise of recounting of ballot papers was a phenomenon which had to be completed before the issuance of Form-XX and Form-XXI---After issuing such Forms under sub-rule (6), a Returning Officer or the Election Commission could not revert back to sub-rule (5)---Provisions of S. 95(5) of the Elections Act, 2017, were also explicit that the Returning Officer could recount the ballot papers only once and that too before commencement of the consolidation proceedings---After completion of consolidation proceedings, the Election Commission as well as Returning officer, both become functus officio to order for recount or recount ballot papers---High Court set-aside the impugned order of carrying out recounting of votes passed by the Election Commission---Constitutional petition was allowed, in circumstances.

(d) Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021---

----R.2~~---~~Elections Act (XXXIII of 2017), Preamble---Local Council Elections---Controversy relating to polls---Rule 2 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 stipulated that in case of any controversy or explanation thereof, the provisions of Elections Act, 2017, were fully applicable in the matters of Local Council Elections.

Muhammad Mohsin Ali and Sheikh Shafqat-ur-Rehman for Petitioner.

Hashmat-ur-Rehman for Respondent No.1.

P L D 2023 Peshawar 105

Before Fazal Subhan, J

FAREED KHAN and 12 others---Petitioners

Versus

GUL DARAZ and 10 others---Respondents

Writ Petition No. 912-A of 2021, decided on 16th January, 2023.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Amendment in plaint---Scope---Plaintiff instituted two separate suits however the second suit was rejected by the Trial Court on the ground that the previously instituted suit was pending between the same parties and in respect of the same subject matter, therefore, the relief sought in the second suit, i.e. challenge to the pedigree table could be made in the prior suit, after seeking amendment of plaint---Trial Court allowed the amendment in earlier suit---Revisional Court rejected the revision petition filed by defendant---Validity---Rule 17 of O. VI, C.P.C. had given ample power to the court to allow amendments in the pleadings to conclusively and effectively decide the controversy between the parties---Proposed amendment was not only just but also necessary to resolve the actual controversy between the parties---However, after permission of amendment, the plaintiff had drastically changed the entire complexion of the suit and instead of adding the relief regarding challenging the pedigree table in the plaint, he had submitted altogether a new plaint which was not permissible under the law---Amended plaint was rejected/canceled and the plaintiff was directed to submit a plaint by only adding a para in respect of challenging the pedigree table and adding Collector as party to the original plaint---Impugned orders were maintained---Writ petition was partially allowed.

Ahsan Aman Khan for Petitioners.

Hafiz Muhammad Naseem Khan for Respondents.

P L D 2023 Peshawar 110

Before Ishtiaq Ibrahim, J

SAEEDULLAH---Petitioner

Versus

LAL SHER and others---Respondents

Criminal Revision No. 70-P of 2022, decided on 10th April, 2023.

(a) Interpretation of statutes---

----Temporary statute---Scope---Temporary nature of Ordinance means that it is unlikely to have any influence after it expires.

Understanding Statutes, First Edition 1997 S.M. Zafar and Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Pesh. 72 rel.

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

----Preamble---Anti-Terrorism Act (XXVII of 1997), Pre-amble---Special and general law---Scope---Special law encompasses various eventualities: individuals, objectives and domains of activity---Juvenile Justice System Act, 2018, caters to specific persons and Anti-Terrorism Act, 1997, addresses a particular subject---Either of the two laws cannot be characterized as general laws.

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

----Ss. 4(4) & 23---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23---Penal Code (XLV of 1860), Ss. 324 & 337-A(i)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---United Nations Convention on the Rights of the Child, Art. 40 (2)(b)(iii)(iv)(vii)---Criminal Procedure Code (V of 1898), S. 439---Attempt to commit Qatl-i-amd, Shajjah-i-khafifah, unlicensed firearm and terrorism---Trial of juvenile---Jurisdiction---Accused was a juvenile and Anti-Terrorism Court declined to transfer his case to Juvenile Court---Validity---Provisions of Juvenile Justice System Act, 2018, take precedence in trial of juvenile accused of committing terrorist offences as it aligns with legislative intent expressed in Ss. 4(4) & 23 of Juvenile Justice System Act, 2018---Three categories of offences- minor, major, and heinous are mentioned in Juvenile Justice System Act, 2018, with the last one relevant to terrorism-related act---It is crucial to consider that certain safeguards; both substantive and procedural, available to minors can only be ensured through Juvenile Court platform---Such measures include confidentiality of proceedings, detention in observation homes, support from probation and social welfare officers to the investigating officer, and the social investigation report attached to report under S. 173, Cr.P.C.---Spectrum of rehabilitative penalties, such as probation, community service orders, detention in juvenile rehabilitation centers and prohibition of capital punishment, are only envisioned within the parameters of Juvenile Justice System Act, 2018---Absence of such safeguards can affect right of juvenile offenders to a fair trial---Pakistan has ratified United Nations Convention on the Rights of the Child---Trial of a child as per Art. 40(2)(b)(iii) & (vii) of United Nations Convention on the Rights of the Child should be conducted in Juvenile Court, ensuring safeguards of their privacy---Proper procedural measures under Art. 40(2)(b)(iv) of United Nations Convention on the Rights of the Child require ensuring the child effectively participates in trial---Rehabilitative approach to passing sentences has been emphasized in Art. 40(1) of United Nations Convention on the Rights of the Child---Juvenile accused committing terrorism offence would be tried by Juvenile Court established and notified under Juvenile Justice System Act, 2018---High Court transferred trial of juvenile accused to Juvenile Court---In light of S. 23 of Anti-Terrorism Act, 1997, the Juvenile Court would proceed with trial as if it had taken cognizance of the offence and resume from the stage it was transferred by Anti-Terrorism Court---Revision was allowed accordingly.

Muhammad Din v. Muhammad Jehangir, PLD 2004 Lah. 779; Muhammad Rasool and another v. The State PLD 2012 Bal. 122; Qamar Hussain Shah v. The State PLD 2006 Kar. 331; Mujahid Iqbal v. The State and another 2019 PCr.LJ 1432; Pakistan Medical and Dental Council, through its President v. Muhammad Fahad Malik and others Civil Appeals Nos. 3 and 4 of 2018; Civil Petition No.3412 of 2017; Civil Petitions Nos.45 and 64 to 70 of 2018; Qamar Hussain Shah's case PLD 2006 Kar. 331; People v. Wilcox 237 Ill. 421, 86 N.E. 672; State v. Johnson 170 N.C. 685, 86 S.E. 788 (N.C. 1915); Gunepally Thammayya and others v. Sri Rajah Tyadapusapati (1930) 59 MLJ 755; Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218 and T.V. The United Kingdom, Application No.24724 of 1994 dated 16th December, 1999 rel.

(d) Islamic law---

----Criminal Justice System---Juvenile offenders---Rights---Islamic Legal System stresses importance of treating juveniles differently in a justice system---Even while dealing with serious crimes, Islamic Justice System prefers administrative penalties for children of a certain age.

Abdul Qadir Oudah's Criminal Law of Islam, translated by S. Zakir Aijaz, International Islamic Publishers rel.

Shan Asghar for Petitioner.

Hussain Ali for Respondent.

Muhammad Nisar Khan, A.A.G. for the State.

Ashfaq Ahmad Daudzai, Assistant Attorney General, as Amicus Curiae.

P L D 2023 Peshawar 126

Before Fazal Subhan, J

UMAIR KHAN---Petitioner

Versus

AAMIR MEHFOOZ-UR-REHMAN and 10 others---Respondents

Writ Petition No. 459-A of 2021, decided on 9th January, 2023.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Eviction of tenant---Landlord and multiple tenants---Multiple eviction petitions---Multifariousness of cause of action---Appeal---Scope---Petitioner filed seven ejectment petitions for the eviction of various tenants---Rent Controller, in the impugned order, selected one petition for further proceedings while the rest of the petitions were consigned to the record room without any further action---Validity---Although the West Pakistan Urban Rent Restriction Ordinance, 1959 does not impose any restrictions on the application of principles and procedures laid down by the Code of Civil Procedure of 1908 and even a single ejectment application can conveniently be filed against several tenants if the grounds for eviction are similar and based on the same agreement---However, when landlords file ejectment applications based on different agreements, different grounds, and against different tenants, the rights of the parties, who are differently placed, cannot be conveniently and conclusively decided in a single petition---This would result in a multifariousness of causes of actions---Impugned order not only went against the spirit of the law but also caused significant inconvenience and delay to the parties involved---Regarding the maintainability of the present petition, an appeal could be filed under S. 15 of the West Pakistan Urban Rent Restriction Ordinance of 1959 by a party aggrieved by an order of the Rent Controller that finally disposes of the application made under the Ordinance---However, since the impugned order had not finally disposed of the applications under the Ordinance, it could not be challenged through an appeal---Consequently, no efficacious remedy was available to the petitioner, and therefore, the present writ petition was maintainable---Impugned order was set aside, all the ejectment petitions were restored and the Rent Controller was directed to simultaneously proceed with the cases and decide the same in accordance with the law.

Muhammad Ayub v. Additional District Judge, Gujranwala and 2 others 1985 CLC 1744 and Ghulam Zakria Qureshi v. Khawaja Ghulam Murtaza Lone and 2 others PLD 2000 Pesh. 47 rel.

Sultan Ahmed Khan Jamshed for Petitioner.

Bakhtiar Ahmad Awan for Respondents.

P L D 2023 Peshawar 130

Before Muhammad Ijaz Khan, J

FAZAL SUBHAN---Petitioner

(Respondents are not represented being a motion case)

Criminal Revision No. 77-M, with Criminal Miscellaneous No. 503-M of 2022, decided on 30th January, 2023.

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

----Art. 150---Declaration of a witness as hostile---Powers of the Trial Court---Scope---Trial Court dismissed an application moved by the petitioner/complainant for declaring one of prosecution witnesses as a hostile witness---Contention of the petitioner/complainant was that the replies given by the said prosecution witness (police official) to a few questions, having been put to him during his cross-examination, would favour the defence---Held, that the witness could be declared as a hostile witness by the Court under Art. 150 of the Qanun-e-Shahadat Order, 1984 ('the Order 1984'), however, the same (Article) had conferred discretion upon the Trial Court in said regard---Trial Court was to permit the person who had called a witness to put any question to him (witness), which actually was to be put in cross-examination by the adverse party---Only controversy, in the present case, was that at what stage of the proceedings said mandate of the Trial Court was to be attracted---Record revealed that the witness-in-question recorded his examination-in-chief prima facie supporting the version of the prosecution and thereafter the defense started cross-examination of the said witness; and it was in the middle of his cross-examination when the petitioner/complainant made a request to declare him a hostile witness which request was turned down---Party could ask the Court to declare a witness as hostile when it was its witness, however, once the witness had completed the process of examination-in-chief and the moment when the opposite party had started cross-examination then such witness did not remain the party's witness; and thus at such stage (i.e. cross-examination) it could not ask the Court to declare him as a hostile witness---Party could ask for declaring the witness as hostile when the opposite party had not started the cross-examination but once cross-examination had commenced then such request could not be entertained as after putting the first question in the cross-examination the said witness did not remain the witness of the prosecution/ complainant---Trial Court had rightly turned down the request/ application of the petitioner/ complainant for declaring the prosecution witness as hostile ---Criminal revision was dismissed in limine, in circumstances.

Faisal Khan v. The State 2022 YLR 1341; Muhammad Boota and another v. The State and another 1984 SCMR 560 and Muhammad Zafar and 4 others v. The State and another PLD 2013 Lah. 178 ref.

Miss Mehnaz for Petitioner.

(Respondents are not represented being a motion case).

P L D 2023 Peshawar 133

Before Syed Arshad Ali, J

Mst. NASEEM ISHAQ and 6 others---Appellants

Versus

KHIZAR HAYAT and 6 others---Respondents

F.A.O. No. 158-P of 2021, decided on 9th December, 2022.

(a) Interpretation of statutes---

----Non-obstante clause---Object, purpose and scope---Non-obstante clause is inserted in order to uphold enforceability of the provision of law over any other provision i.e. contradictory to it---This clause is used to clarify intention of legislature in cases where two provisions appear contradictory and the provisions starting with non-obstante clause has overriding effect on any other provision to the contrary in same statute or in any other statute.

Sardar Ahmad Siyal and others v. National Accountability Bureau through Chairman and 4 others 2004 SCMR 265 and Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 rel.

(b) Interpretation of statutes---

----Change of forum---Retrospective effect---Scope---Statute providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects existing right or causes injustice or prejudice.

Gul Hassan and Co. v. Allied Bank of Pakistan 1996 SCMR 237; Ch. Safdar Ali v. Malik Ikram Elahi and another 1969 SCMR 166; Muhammad Abdullah v. Imdad Ali 1972 SCMR 173; Bashir v. Wazir Ali 1987 SCMR 978; Mst. Nighat Yasmin v. N.B. of Pakistan PLD 1988 SC 391 and Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi 1994 SCMR 1007 rel.

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

----Ss. 8, 42 & 54---West Pakistan Civil Courts Ordinance (II of 1962), S. 18---Civil Procedure Code (V of 1908), Ss. 6 & 106 [as amended by S. 3 of Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act (XLIX of 2020)]---Civil Courts, pecuniary jurisdiction---Nature of change---Retrospective effect---Scope---Respondents/plaintiffs fixed value of the suit as Rs.100 million in the plaint---Plea raised by appellants/defendants was that after amendment, jurisdiction to try the suit had changed---Validity---Amendment introduced through S. 3 of Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020, whereby pecuniary jurisdiction of Civil Judge viz-a-viz District Judge was determined, had the effect on all pending suits which should be transferred by respective Civil Judges seized of the matter to competent Court under S. 6(b), C.P.C. (as substituted)---Statute amending forum for institution of appeal or that of Appellate Court during pendency of the lis was to have retrospective effect unless otherwise provided by subsequent/amending Act---Appellants/defendants filed appeal under S. 106, C.P.C., which was also amended through Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020---Prior to the amendment, appeal against any interim order passed by a Civil Judge, where value for the purpose of jurisdiction was fixed or determined more than Rupees ten million, would also lie to High Court in view of un-amended S.106, C.P.C. read with S. 18 of West Pakistan Civil Court Ordinance, 1962---By amending S. 106, C.P.C. through Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020, any order passed by Civil Judge during pendency of proceedings, was appealable before District Judge and not before High Court---Amendment in question had retrospective effect as it changed forum of appeal---High Court had no jurisdiction to entertain appeal filed by appellants/defendants---High Court directed the office to transmit the appeal to concerned District Judge for adjudication in accordance with law---High Court directed the parties to appear before District Judge concerned---Appeal was transmitted accordingly.

Muhammad Shabbir and another v. Quaid-e-Azam University through Vice-Chancellor, Islamabad and others 2022 SCMR 487; Bashir v. Wazir Ali 1987 SCMR 978; Shahzada Colonel Sharifuddin and others v. The Settlement Officer District Upper and Lower Chitral and others 2021 CLC 1968 and Amir Zada and others v. Mian Zamin Khan and others 2021 CLC 2042 rel.

Fazal Karim and Mian Hikmatullah Jan for Appellants.

Kamran Murtaza, Assistant Advocate-General for the Provincial Government.

Barkatullah Khan and Waqas-ur-Rehman for Respondents.

P L D 2023 Peshawar 145

Before Rooh ul Amin Khan and Shakeel Ahmad, JJ

ALI AZIM AFRIDI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.6999-P of 2019, decided on 24th January, 2023.

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

----Rr. 175-B & 175-E---Strikes called by Bar Councils---Defiance---Initiation of disciplinary action against lawyers---Vires---Petitioner was aggrieved of frequent calls of strikes by Bar Council and taking of action against lawyers not attending to the call of strike---Validity---It was duty of every advocate, who had accepted a brief, to attend trial or proceedings of the Court, even though it might go on day to day and for a prolonged period---No force or coercion could be employed against lawyers who were not in agreement with the strike call and wanted to discharge their professional duties---Non-observance/defiance of decisions/instructions of Pakistan Bar Council by any Bar Council or Bar Association or any member of Bar/Advocate relating to strike, restraining lawyers from appearance in Courts of law in discharge of their professional obligations considering appearance of lawyers in Courts of law on day of strike as gross professional misconduct, making them liable for disciplinary action under R. 175-B of Pakistan Legal Practitioners and Bar Council Rules, 1976, would offend the provisions of Arts. 4, 8 & 18 of the Constitution---High Court struck down the provision of R. 175-B of Pakistan Legal Practitioners and Bar Council Rules, 1976 to such extent---Constitutional petition was allowed accordingly.

Bharat Kumar K. Paricha and another v. State of Kerala and others (1998) (1) SCC 201; Lt. Col. S. J. Chaudhary v. State (Delhi Administration) (1984) 1 SCC 722; K. John Koshv and others v. Dr. Tarakeshwar Prasad Shaw (1998) 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. (1999) 1 SCC page 37; Koluttumottil Razak v. State of Kerala (2000) 4 SCC 465 and U.P. Sales Tax Service Association v. Taxation Bar Association (1995) 5 SCC 716 rel.

Petitioner in person.

Amir Javed, Addl. Attorney General, Sehrish Munawar Bukhari, A.A.G. and Sadiq Ali Mohmand for Respondents.

P L D 2023 Peshawar 154

Before Muhammad Naeem Anwar, J

AKBAR ALI---Appellant

Versus

HIDAYAT ULLAH---Respondent

R.F.A. No. 66-M of 2022, decided on 23rd May, 2023.

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

----O. XXXVII, Rr. 1, 2 & 3---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Suit for recovery of money on the basis of cheque---Application for leave to defend---Conditional order, non-fulfillment of---Judicial proceedings---Presumption of truth---Scope---Leave to defend was granted by the Trial Court with condition to furnish security bond---Trial Court decreed forthwith the suit against the appellant/defendant on his failure to furnish security bond---Contention of the appellant/defendant was that he was unaware of the fact for furnishing security bond---Validity---Record revealed that a clear condition of furnishing security bond with specific reference of the date for its compliance was unambiguous and explicit therein but even then for about nine and half months the proceedings remained pending adjudication before the Trial Court and the appellant had never intended to fulfill such direction---Contention of the appellant regarding ignorance regarding conditional order could not be given preference because the presumption of truth is attached to the judicial proceedings---Plea of ignorance of law could not be construed or sustained as a bona fide excuse---Provision of the Art. 129(e) of Qanun-e-Shahadat, 1984 provided presumption of regularity to all acts performed in a judicial proceedings---No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

Muhammad Ameen and another v. Jawaid Ali and 5 others 2017 YLR Note 429; Zaman and 2 others v. Muhammad Khan 2017 YLR 353; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336 ref.

(b) Maxim---

----Judicial proceedings are blessed with presumption of truth on the principle intended to be conveyed by the rule, Omnia praesumuntur rite et solemniter esse acta i.e., all acts are presumed to have been rightly and regularly done.

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

----O. XXXVII, Rr.1, 2 & 3---Suit for recovery of money on the basis of cheque---Application for leave to defend---Conditional order, non-fulfillment of---Scope and effect---Leave to defend was granted by the Trial Court with condition to furnish security bond---Trial Court decreed the suit forthwith against the appellant/defendant on his failure to furnish security bond without recording evidence---Contention of the appellant/defendant was that the suit should have been decided on merits after recording of evidence---Validity---Appellant/defendant was allowed to defend the suit but the relevant order was itself conditional for fulfillment of which a date was fixed by the Trial Court---Inbuilt directions given in the order for fulfillment of the condition in the shape of furnishing of a security bond on the next date, had bound down the appellant to pursue the suit and to defend it through his written-statement but in case when the condition had not been fulfilled, the consequence thereof would be borne by the party who failed to comply with the order of the Court or to fulfill his obligation---Order XXXVII of the Civil Procedure Code, 1908, provided a specific procedure for cases wherein the person against whom the lis was filed was required to get permission from the Court to defend the suit---It was not disputed that the validity and propriety of the order granting leave to defend had not been questioned by the appellant to the extent of condition a furnishing security bond and in such circumstances, the fulfillment of condition was prerequisite for further progress in the suit and his participation in proceedings in order to defend the suit against him---Provision of O. XXXVII, R. 3 of the C.P.C., 1908, with regard to filing of the application along with affidavit for grant of such leave was mandatory and failure thereof would result into a decree against the defendant even without recording of evidence in the matter---Order sheet revealed that the appellant despite availing several opportunities had not fulfilled his part of obligation in shape of furnishing a security bond as per directions of the Trial Court---No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 1882; Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Makhdoomzada Abdul Karim v. Ajab Khan 2013 CLC 1471 and Muhammad Nawaz v. Muhammad Akram 2013 MLD 325 ref.

Sahibzada Azhar Saleem v. Muhammad Hanif 2002 MLD 696 and Muhammad Nasim v. Kashif Nasim and another 2018 CLC 1659 distinguished.

Muhammad Hayat Khan for Appellant.

Hidayat Ali for Respondent.

P L D 2023 Peshawar 160

Before Ishtiaq Ibrahim, J

MOHIBULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Q/P No. 77-P, decided on 12th December, 2022.

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

----Art. 155---Refreshing memory---Scope---Petition called for the evaluation of an order by the Trial Court that dismissed the defense objection to allowing the prosecution witness to refresh his memory from the police record---Trial Court did not follow the legally acceptable procedure of permitting a witness to refresh his memory---Prior to reading the record, the witness did not mention any memory lapse or the need for a document to jog his memory, which is a prerequisite for invoking Art. 155 of the Qanun-e-Shahadat, 1984---No request was made from the prosecutor or the witness to establish the foundation for memory recall---Witness, being an eyewitness to the recovery, was expected to testify from his own memory in the witness box, rather than relying on the police or judicial file authored by someone else---However, the Trial Court allowed the witness to record his evidence while having access to the police file---Instead of using the record to stimulate the witness's memory, if needed, the Trial Court permitted unrestricted access to the entire file, regardless of the nature of the documents---Witness recited information directly from the record, without any restrictions on when or where he could read it---Allowing the probative value of the recorded statement to prevail would be prejudicial to the rights of the accused and would infringe upon a fair trial---Impugned order was set aside; the Trial Court was directed to re-record the evidence of the witness in accordance with the law and the previously recorded statement in the case was declared to have no legal effect.

R v. Willis, 2005 MBCA 99 (CanLII) rel.

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

----S. 172---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 157---Diary of proceedings in investigation---Cross-examination as previous statements in writing---Right of adverse party as to writing used to refresh memory---Scope---Section 172 of Criminal Procedure Code, 1898 deals with police diaries---Said section mentions that the investigation officer shall enter into it the day-to-day record of his investigation---It further mentions that the Court may send for the diaries; Court may use such diaries, not as evidence in the case but to aid in the inquiry or trial; the accused is neither entitled to use such diaries nor entitled to see them; the provisions of Arts. 157 & 140 of the Qanun-e-Shahadat, 1984 shall apply if the police officer who made them refreshes his memory or the court uses the diary to contradict such officer---Police diary is essentially a confidential record that the accused cannot see or use as evidence---However, the accused is entitled to use it when the court questions the witness about that diary or the police officer refreshes his memory---Only that police officer can use it to refresh his memory who has made the diary.

Queen-Empress v. Mannu on 13 July, 1897 (indiankanoon.org) rel.

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

----Ss. 161 & 162---Examination of witnesses by police---Statement to police not to be signed---Use of such statement in evidence---Scope---Statements recorded under S. 161, Cr.P.C., can only be used for contradiction---Section 162, Cr.P.C. explicitly provides it.

Vishnu Krishna Belurkar v. The State of Maharashtra on 18 February 1974 (1974) 76 BOMLR 627 rel.

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

----Arts. 155 &156---Refreshing memory---Testimony to facts stated in document mentioned in Art. 155---Scope---Pre-condition for admissibility of the past recollection recorded from Art. 156 of Qanun-e-Shahadat, 1984, is that the witness is sure that the facts were correctly recorded in the document that is used to refresh memory.

Fawad Afzal Safi for Petitioner.

Muhammad Inam Khan Yousafzai, A.A.G. and Kamran-us-Salam Qazi, Amicus curiae for the State.

P L D 2023 Peshawar 168

Before Ijaz Anwar, J

ZIA-UR-REHMAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 1263-P of 2023, decided on 17th April, 2023.

Criminal Procedure Code (V of 1898)---

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 11-C, 2(e), 27,28, 29 & 59---Control of Narcotic Substances Act (XXV of 1997), Ss. 20, 21, 22---Possession of 3000 grams of ICE---Bail, refusal of---Power of entry, search, seizure and arrest without warrant---"Authorized officer" (in terms of the S. 28 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 )---Scope---Assistant Sub-Inspector recovered six (06) packets of ICE, each weighing 500 grams, lying in vehicle being driven by the petitioner/ accused---Contention of the petitioner/accused was that to effect recovery an Assistant Sub-Inspector was not an "authorized officer" in terms of the S. 28 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Validity---Under Control of Narcotic Substances Act, 1997 ('the Act 1997'), an officer not below the rank of Sub-Inspector was authorized to make search, seizure or arrest etc., meanwhile the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ('the Act 2019') had been promulgated and as per S. 59 of the Act 2019, the Act 1997 to the extent of cultivation, possession, selling, purchasing, delivery and transportation etc within Province, to the extent of the Khyber Pakhtunkhwa was repealed---Regarding "power to entry, search, seizure and arrest without warrant", S. 28 of the Act, 2019 was analogous to a great extent with S. 21 of the Act 1997, with the exception that the words "authorized officer" had been mentioned in S. 28 of the Act 2019 whereas S. 21 of the Act 1997 stipulated "an officer not below the rank of Sub-Inspector of Police)---Section 2(e)(ii) of the Act, 2019 had defined an "authorized Officer" as a police officer/official not below the rank of Sub-Inspector, authorized by the Regional Police Officer---Although, in the present case, recovery had been effected by an Assistant Sub-Inspector, however, Ss. 20 to 22 of the Act, 1997 were directory in nature---Thus cumulative effect of said provisions mentioned in the Act, 1997 as well as the Act, 2019, the power to entry, search, seizure and arrest without warrant by an officer below the rank of Sub-Inspector, if made, would not vitiate the case nor the same could be made a ground for the grant of bail---Petitioner had been arrested red-handed and recovery of huge quantity of ICE had been affected from the vehicle being driven by him who, at the relevant time, was all alone in the said vehicle---Petitioner could not dispute his conscious knowledge regarding concealment/presence of the narcotic substance in the vehicle---Relevant page of the concerned register showed the assurance of safe custody of the samples (case property )which were separated from all the packets and were sent for chemical analysis---Report of FSL had confirmed the said samples as "Methamphetamine" (i.e. ICE)---No mala fide, ill-will or grudge had been shown against the police for falsely involving the petitioner in the present case nor it was possible for the police to plant such a huge quantity of ICE which was an expensive drug---Record prima facie connected the petitioner/accused with the commission of the offence punishment whereof fell within the prohibitory of section 497 of the Criminal Procedure Code, 1898, disentitling him to the concession of bail---Bail was refused to the petitioner, in circumstances.

Cr. M. (BA) No.1540-P of 2020; Syed Zulfiqar Shah v. The State through Advocate General, Khyber Pakhtunkhwa Peshawar 2022 SCMR 1450; Fida Jan v. The State 2001 SCMR 36; The State v. Hemjoo 2003 SCMR 881; Arshad Mahmood v. The State PLD 2008 SC 376; Zafar v. The State 2008 SCMR 1254; Qaiser and another v. The State 2022 SCMR 1641; Hasnain Raza and another v. Lahore High Court, Lahore and others PLD 2022 SC 7 and Messrs Cherat Cement Co. Ltd. Nowshera and others v. Federation of Pakistan and others PLD 2021 SC 327 ref.

Noor Alam Khan for Petitioner.

Kamran Murtaza, A.A.G. for the State.

P L D 2023 Peshawar 178

Before Ishtiaq Ibrahim and Shakeel Ahmad, JJ

FARMAN SHAH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through C.S. and others---Respondents

Writ Petition No. 1344-P of 2021, decided on 2nd February, 2023.

(a) Constitution of Pakistan---

----Art. 9---Security of person---Government hospitals---Right to medical treatment---Scope---Word life is very significant as it covers all facets of human existence and a person is entitled to protection of life in terms of Art. 9 of the Constitution---State has to protect its citizens by providing adequate medical facilities and it is an essential part of obligations undertaken by Government in a welfare State---Government discharges its obligations by running hospitals and health centers, which provide medical care to a person seeking to avail those facilities---Preservation and protection of human life is thus of paramount importance---Government hospitals run by the State and medical officers employed therein are duty bound to extend medical assistance for preserving human life and failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment would result in violation of his right to life guaranteed under the Constitution.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Plain reading of Art. 199 of the Constitution reflects that there are three main parts noted in its sub-article (1)---Clause (a) of sub-article (1) confers jurisdiction upon the High Court with regard to writ of mandamus, certiorari and prohibition and in clause (b) habeas corpus and writ of quo warranto is provided, while in clause (c) jurisdiction to enforce the fundamental rights, provided by Chapter 1 of Part II of the Constitution, has been conferred to the High Court---In sub-clause (i) of clause (a) of sub-article (1), a declaration or direction can be sought by a party who is aggrieved by an act or proceedings taken by a person performing functions in connection with the affairs of Federation or Province or a local authority.

Asim Khan for Petitioner.

Arshad Ahmad, A.A.G. for Respondents Nos. 1 and 2.

P L D 2023 Peshawar 181

Before Muhammad Naeem Anwar, J

ANWAR ALI and another---Petitioners

Versus

ABDUL HAKIM and others---Respondents

Writ Petition No. 753-M of 2021, decided on 22nd May, 2023.

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

----S. 12(2) & O. XXXII, R. 7---Suits by or against minors---Agreement or compromise by next friend or guardian for the suit---Scope---Petitioners contested the dismissal of their application under S. 12(2), C.P.C.---Petitioners claimed that the minors were represented by their mother in the suits, and a collusive application was submitted to the Trial Court for suit resolution through compromise; that on the same day, files were requisitioned, and a joint statement was recorded, and that new counsel was engaged for the mother who was unfamiliar with Urdu, Pashto or English due to the her rural background---Validity---Impugned orders had failed to address compliance with O. XXXII, R. 7, C.P.C., requiring Court permission---When compromise-related matters involving minor's interests were presented, Court permission was necessary---Such permission was lacking in the present case---Thus, the impugned orders suffered from two issues, i.e. the parties were denied the chance to prove contentions through evidence, and O. XXXII, R. 7, C.P.C., was ignored during the compromise---Such flawed orders were declared illegal due to substantial irregularity and were set aside with the directions that the Trial Court shall frame issues based on divergent party pleas from the application under S. 12(2), C.P.C and should then record evidence and decide the application's fate lawfully---Constitutional petitions were granted.

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

----S. 12(2)---Bar to further suit---Scope---Though, it is not sine qua non for the Court to frame issues and record evidence in each and every application filed under S. 12(2), C.P.C., however, this is not the rule of thumb, and the circumstances depend upon the factual aspect---Where the case requires recording of evidence, the decision thereof must be based upon the evidence by providing an opportunity to the parties to prove their respective contentions.

Amina Bibi through General Attorney v. Nasrullah and others 2060 SCMR 296 rel.

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

----O. XXXII, R. 7---Agreement or compromise by next friend or guardian for the suit---Scope---Guardian ad litem and natural guardian both are supposed to protect the rights and interest of the minor---But when the guardian acts in the interest of minors and compromise is affected the provision of O. XXXII, R. 7, C.P.C. shall come into play.

Rahimullah Chitrali for Petitioners.

Shah Faisal Khan, Syed Ahmad Chitrali and Adalat Khan for Respondents.

P L D 2023 Peshawar 187

Before Ijaz Anwar and S M Attique Shah, JJ

MUDASSAR WAKEEL and another---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Writ Petition No. 3872-P of 2022, decided on 6th June, 2023.

(a) Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017)---

----S. 102A [as inserted by Khyber Pakhtunkhwa Minerals Sector Governance (Amendment) Act (XLVI of 2019)]---Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022, Rr. 3 & 5---Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules ('the Rules')---Vires of---Petitioners assailed composition of Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal, wherein Secretary to Government of Khyber Pakhtunkhwa was designated as Chairman of the Tribunal---Validity---Previous Appellate Forum was converted into Appellate Tribunal---Appeal, which was previously heard by Secretary as Authority, was made further judicious by constituting Appellate Tribunal consisting of a Chairman and two Members---Secretary of Minerals Development Department of Provincial Government had multifarious functions under Khyber Pakhtunkhwa Mines and Minerals Act, 2017 and could be appointed as Appellate Authority---This was no ground to discard Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022, because prior to Khyber Pakhtunkhwa Minerals Sector Governance (Amendment) Act, 2019, it was only Secretary to Government of Khyber Pakhtunkhwa Minerals Development Department who used to hear appeals as an Appellate Authority---Vires of Khyber Pakhtunkhwa Mines and Minerals Act, 2017, had never been questioned before High Court---There was no provision in Khyber Pakhtunkhwa Mines and Minerals Act, 2017, which was violated in any manner while framing Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022, pertaining to composition of Appellate Tribunal---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others 2022 SCMR 1787; Executive District Officer (Revenue), District Khushab at Jauharabad and others v. Ijaz Hussain and another 2012 PLC (C.S.) 917; Rida Fatima v. Pakistan Medical Commission and others PLD 2022 Lah. 197; Commissioner Inland Revenue, Lahore v. Coca Cola Pakistan Limited, Lahore 2022 PTD 1400; Fazal Mehmood Baig v. University of Azad Jammu and Kashmir through Vice Chancellor and others PLD 2017 SC (AJ&K) 50; Dr. Suhail Abbas Khan v. Punjab Province through Chief Secretary 1996 MLD 1078 and (Suo Motu Case No.13 of 2009) PLD 2011 SC 619 rel.

(b) Interpretation of statutes---

----Delegated legislation---Vires, determination of---Delegated legislation can be declared as illegal only where it is established that it is repugnant to any settled and well-established principle of statute or result of excessive delegation---Such legislation cannot be struck down mainly on the ground that it is mala fide or unreasonable and there are strong presumptions that it can be misused.

Jameel Sweets v. Federation of Pakistan and others 2020 PTD 752; (Suo Motu Case No.11 of 2011) PLD 2014 SC 389 and Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630 rel.

Amin-ur-Rehman Yousafzai and Fida Gul for Petitioners.

Amir Javed, Advocate General Khyber Pakhtunkhwa, Barrister Muhammad Yaseen Raza Khan, Addl: Advocate General and Barrister Asad-ul-Mulk along with Aftab Khan, Assistant Director (Litigation), Mines and Minerals Departments, Khyber Pakhtunkhwa for Respondents.

P L D 2023 Balochistan 1

Before Naeem Akhtar Afghan, C.J. Sardar Ahmed Haleemi, J

JANAN KHAN ACHAKZAI---Petitioner

Versus

The STATE BANK OF PAKISTAN BANKING SERVICES CORPORATION (BANK) through Deputy Director of Adjudication Foreign Exchange and 2 others---Respondents

Constitution Petition No. 572 of 2021, decided on 16th August, 2022.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 12(1)(2) & 23, Appendix-I---Constitution of Pakistan, Art.199---Constitutional petition---Sale proceeds, delay in repatriation---Pending matter---Factual controversy---Petitioner exported goods to foreign country against E-Forms and had given undertaking in E-Forms that he would repatriate full amount of sale through Banks within six (06) months from the date of shipment/export---Authorities filed twelve (12) complaints against petitioner with allegation that petitioner failed to repatriate full amount of sale proceed within prescribed period and by delaying the same, petitioner contravened provision of S.12(1)(2) of Foreign Exchange Regulation Act, 1947---Validity---Proceedings in respect of complaints were pending before adjudication officer and no orders were passed against petitioner by then---Issues raised by petitioner pertained to factual controversy which could not be resolved in Constitutional jurisdiction---Petitioner had remedy of appellate forum---Petitioner could place all relevant documents in support of his contention before adjudicating officer who would consider the same in accordance with law for passing appropriate orders---Constitutional petition was disposed of accordingly.

1988 SCMR 691; 2008 CLC 10; 1998 CLC 1684; 1996 CLC 293; 2005 PTD 1189 and 2000 CLC 1783 distinguished.

Mazhar Ali Khan for Petitioner.

Zahoor Ahmed Baloch, A.A.G. for Respondents Nos.1 and 2.

P L D 2023 Balochistan 12

Before Abdul Hameed Baloch, J

SANAULLAH---Petitioner

Versus

Mst. RAZIA BIBI and others---Respondents

Civil Revision No. 274 of 2012, decided on 31st March, 2022.

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

----Art. 79---Proof of execution of document required by law to be attested---Factum of sale---Burden of proof---Document to be proved by producing two attesting witnesses---Admittedly, the suit property was not in the names of alleged vendors and petitioner claimed that he had purchased property from alleged vendors---Petitioner was under obligation to prove the factum of sale---Petitioner had not produced witness of sale deed and even failed to produce the alleged vendors in order to prove the factum of sale purchase---Alleged vendors were important witnesses but without any reason they had not been produced---Petitioner contended that he had purchased the property in question and so burden of proof laid on the petitioner to prove his contention by cogent and consistent evidence---Article 79 of Qanun-e-Shahadat, 1984 provided that the document was to be proved by producing two attesting witnesses---In the present case, none of the witnesses had stated that sale consideration was paid in their presence at time of sale deed---Burden of proof laid on beneficiary of a document---Even wrong placement of burden on opposite party would not absolve the beneficiary from proving that the sale deed was valid---Civil revision was dismissed, in circumstances.

Wali Muhammad Khan v. Mst. Amina 2018 SCMR 2080; Khaliq Dad Khan v. Zeenat Khatoon 2010 SCMR 1370 and Fida Hussain v Murid Sakina 2004 SCMR 1043 and Muhammad Andleeb Raza v. Muhammad Nazar 2019 YLR 1974 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court is limited---Usually High Court does not interfere in concurrent findings of fact recorded by the courts below unless and until there is misreading or non-reading of evidence and violation of law---Revisional jurisdiction only applies to the cases involving non-existence or irregular exercise of jurisdiction---Power under S. 115, C.P.C. not to be considered analogous to the power exercised in appeal.

Sawali v. Gul Muhammad PLD 2000 Quetta 8 and 1997 SCMR 1139 rel.

Farooq Ahmed Mastoi for Petitioner.

Maqbool Ahmed for Respondents Nos. 5 to 7.

P L D 2023 Balochistan 18

Before Rozi Khan Barrech, J

SAADAT KHAN---Petitioner

Versus

ALI SHER and 2 others---Respondents

Civil Revision No. 651 of 2021, decided on 9th December, 2021.

Civil Procedure Code (V of 1908)---

----S. 11---Res-judicata, principle of---Object and purpose---Doctrine of res-judicata generally came into play in relation to civil suits---Said doctrine has been applied since long in various kinds of other proceedings and situations by the superior courts---Rule of constructive res-judicata is engrafted in Explanation IV of S. 11 of the C.P.C. and in many different situations also the principles not only of direct res-judicata but of constructive res-judicata are also applied---If by any judgement or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in subsequent proceedings between the same parties---Principle of res-judicata comes into play when by judgment/order a decision of a particular issue was implicit in it; that is, it must be deemed to have been necessarily decided by implication, even then the principle of res-judicata on that issue is directly applicable---When any matter which might and ought to have been made a ground of defence or attack in former proceedings but was not made ,then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided---Object and purpose of the principle of res-judicata is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of the fact, or law, or of fact and law, in every subsequent suit between the same parties---Once the matter, which was the subject matter of lis, stood determined by a competent Court, no party after that could be permitted to reopen it in subsequent litigation---Rule of res-judicata is brought into the statute book to bring the litigation to an end so that the other side may not be subjected to harassment---Once a substantial question in dispute between the parties stands decided, once a verdict qua title of party stands given by a court of competent jurisdiction and once a precious right stands accrued to the opposite party, the plaintiff can not file a second suit---In the present case the petitioner filed suit in respect of the same property, which had already been claimed by the petitioner in another civil suit---Property claimed by the petitioner in the previous suit and in present case and the parties and cause of action were the same---Civil revision was dismissed due to the plaint being found to be barred by law, attracting the principle of res-judicata as well as estoppel by conduct.

Province of Punjab v. Ibrahim & Sons 2000 SCMR 1172 rel.

Abdul Musawir for Petitioner.

Yahya Baloch, Deputy Prosecutor General ("DPG") for Respondents.

P L D 2023 Balochistan 22

Before Abdul Hameed Baloch, J

ABDUL KAREEM and another---Petitioners

Versus

MUHAMMAD BASIL and another---Respondents

Civil Revision No. 246 of 2020, decided on 5th July, 2022.

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

----Ss. 2(d) & 10---Promise---Scope---Consent as on essential requirement of a contract---Burden of proof---Suit for recovery of property (gold) or in the alternative prevalent market price filed by the plaintiff/respondent was decreed by Trial Court---Appeal filed by petitioners/defendants was dismissed by Appellate Court---Held, that it appeared from the record that the parties signed an agreement and a promissory note---During trial one of the witnesses from respondent/ plaintiff side produced both said documents i.e. the agreement and promissory note, without any objection of petitioners/defendants and petitioners did not question the authenticity of both the referred documents, meaning thereby the petitioners accepted the terms mentioned in the agreement---Under S.2(d) of the Contract Act, 1872, promise must be absolute and unqualified---Unequivocal acceptance of an offer was a binding contract and even non-execution of a formal document could not absolve the parties from their agreement---No party could unilaterally add or resume the terms of a contract---Parties to the contract should be free from coercion---Person who signed a contract of his free will was bound to its terms and condition---Petitioners/ defendants in written statement had admitted the agreement and had not denied the signing of the agreement ,meaning thereby the parties had signed the agreement with consent which was essential requirement of the contract---Contract was signed by the parties without coercion, threat, fraud or misrepresentation, thus they were legally bound by their words and deeds---Petitioners had admitted the agreement but had taken the plea that they paid the profit and original gold to the respondent/plaintiffs---Burden of proof shifted on the shoulder of petitioners/defendants to prove that they made payment of profit and original gold to plaintiff---None of the petitioners/defendant's witnesses mentioned the date, time ,year of payment and mere bald assertion that payment was made did not absolve the defendants from their responsibility---Even the second defendant in his deposition did not deny the execution of documents---Revision was dismissed.

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

----Arts. 79 & 113---Document---Proof of execution---Document could not be used as evidence until two attesting witnesses at least had been called for the purpose of proving its execution---Plaintiff was under legal obligation to prove the contents of documents by producing two attesting witnesses if alive but some departure was permissible if the defendants had not denied the execution---Revision was dismissed.

Muhammad Essa Godil's case 2014 YLR 1901 and Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326 rel.

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

----S. 115---Concurrent findings---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction is limited---High Court while exercising revisional jurisdiction can not interfere in the concurrent findings arrived by Courts below unless the findings of courts below are result of misreading and non-reading or perverse or non- appraisal of some material evidence---Revisional Court cannot substitute the concurrent findings of courts below with its own merely for the reason that another view is possible.

Khudai Dad v. Ghazanfar Ali Shah 2022 SCMR 933 rel.

Syed Iqbal Shah for Petitioner.

Akhtar Shah for Respondent No. 1.

Allah-ud-Din, A.A.G. for Respondent No.3.

P L D 2023 Balochistan 27

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

SARDAR MUHAMMAD---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs Department, Quetta and 5 others---Respondents

Constitution Petition No. 1151 of 2022, decided on 30th August, 2022.

(a) Balochistan Prohibition of Private Money Lending Act, 2014---

----S. 4---Constitution of Pakistan, Art. 199---Prohibition of private money lending---Protection from harassment---Scope---Petitioner sought direction to restrain the police authorities from harassing, blackmailing, arresting him and continuously visiting his house---Contention of petitioner was that his brother, who had been disavowed by his father, had allegedly borrowed certain amount from private respondent; that the private respondent got the petitioner arrested and illegally confined; that the police was conducting continuous raids at his house and that too without any search warrant and accompanying any lady constable---Held; present case was of private money lending, which was an offence under S. 4 of the Balochistan Prohibition of Private Money Lending Act, 2014---Police instead of initiating proceedings under the private respondent had started pressurizing the petitioner to pay the alleged outstanding amount---Calling petitioner repeatedly to police station or compelling him for return of alleged amount was palpably without jurisdiction---Such dispute could only be resolved by the competent court of law that too after recording of evidence---Constitutional petition was allowed and the official respondents were restrained from any kind of interference between the parties in respect of the dispute in question.

(b) Constitution of Pakistan---

----Art. 175---Establishment and jurisdiction of Courts---Trichotomy of powers---Scope---Our system is based on trichotomy of power and each organ of the State is required to function within the bounds specified in the Constitution---Constitution recognizes only such specific Tribunals to share judicial power with the Court referred to in Arts. 175 & 203, which have been specifically provided by the Constitution itself like Tribunals established under Arts. 212 & 213 etc.

(c) Constitution of Pakistan---

----Art. 203---High Court to superintend subordinate Courts---Scope---High Court under Art. 203 of the Constitution being the custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of law is required to exercise such powers not only over Courts and Tribunals but over all other bodies, like Governments and Governments' functionaries within the area of gratifying principles in order to keep the mainstream of justice from extraneous pollutions and from abuse of the judicial process.

Muammar Qazafi for Petitioner.

Muhammad Ali Rakhshani, Additional Advocate General (AAG) assisted by Umer Farooq, SSP (AIG Complaint) CPO Quetta for Official Respondents.

Respondent No.6 in person.

P L D 2023 Balochistan 31

Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ

ALLAHI DAD and 4 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 5 others---Respondents

Constitution Petition No. (t) 159 of 2022, decided on 21st November, 2022.

Constitution of Pakistan---

----Art. 16---Right to assembly---Scope---Peaceful protests in order to highlight genuine grievances of any segment of society are considered as healthy signs of a vibrant society but such protests or sit-in must not infringe the fundamental rights of other individuals who are equally entitled to express their disagreements out of their free will to such Dharnas and protests.

Suo Motu Case No.07/2017 PLD 2019 SC 318 rel.

Obaid Ullah for Petitioners.

Nasratullah Baloch, Assistant Advocate General assisted by Lal Jan, DSP, Pasni for Respondents Nos. 1 to 5.

P L D 2023 Balochistan 36

Before Muhammad Hashim Khan Kakar and Iqbal Ahmed Kasi, JJ

FAZAL MUHAMMAD---Petitioner

Versus

MANAGING DIRECTOR SUI GAS, QUETTA---Respondent

Constitution Petition No. 1841 of 2022, decided on 29th November, 2022.

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

----S. 6---Constitution of Pakistan, Art. 199---Constitutional petition---Procedure for complaints and suits for default before Gas Utility Courts---Alternate remedy---Scope---Case of petitioner was that due to some construction work in the street, a driver of an unknown tractor hit the gas connection of the house of petitioner, due to which the gas meter was damaged---Petitioner informed the authorities of Sui Southern Gas Company Limited with regard to the incident, but the Company lodged a false FIR against him and also issued a claim letter directing the petitioner to pay certain amount being the value of gas consumed on account of direct use of gas---Petitioner deposited an installment of the amount and it was assured by the Company that if he got acquitted of the charge, the amount would be readjusted/returned to him---Petitioner, after his acquittal, approached the Company to return the amount but it refused to do the needful---Validity---Dispute between a consumer and a licensee of natural gas was to be governed under the Gas (Theft Control and Recovery) Act, 2016---Gas (Theft Control and Recovery) Act, 2016, was comprehensive enough to regulate the matters connected with S. 6 of the Act---Said Act contained the procedure for filing of a complaint and the procedure to be adopted by the Gas Utility Court for redressal of the grievances on receiving of the complaint---Petitioner was required to set into motion the relevant provisions and to avail proper remedy, but he directly approached the High Court in constitutional petition, which was not permitted under the law---Constitutional petition was dismissed.

Abdul Hayee Bangulzai for Petitioner.

P L D 2023 Balochistan 40

Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ

Mst. KHAN BIBI (widow) and 4 others---Appellants

Versus

BIBI RAHIMA and 5 others---Respondents

R.F.A. No. 147 of 2014, decided on 13th December, 2022.

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

----Art. 71---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Oral Will---Proof---Suit for declaration, correction of mutation entries, partition, possession and permanent injunction---Oral evidence must be direct---Interested witness---Scope---Plaintiff filed a suit for seeking her share in the legacy of her predecessor---Claim of plaintiff was that the names of female legal representatives were not inserted in the revenue record---Defendants contested the suit on the ground that their predecessor had made an oral will regarding property---Trial Court decreed the suit---Validity---Two witnesses were produced to prove oral will of the predecessor---One of the witnesses disclosed that the other witness came and narrated that the predecessor had told him that he had given the share of daughters in the ancestral properties in the form of cash and jewelleries---Statement of said witness was inadmissible under Art. 71 of the Qanun-e-Shahadat, 1984, as the same was hearsay---Cross-examination of the second witness transpired that there was a property dispute between him and the husband of plaintiff; that criminal cases were pending between the son of plaintiff and his brother and that his age was 12/13 years when the predecessor had made an oral will---Said witness was partial towards the plaintiff, therefore, his statement was not admissible for the purpose of proof of oral will---Impugned judgment was well reasoned, therefore, the same did not warrant interference by the High Court---Appeal was dismissed.

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

----S. 6---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Suit for declaration, correction of mutation entries, partition, possession and permanent injunction---What may be transferred---Scope---Plaintiff filed a suit for seeking her share in the legacy of the predecessor---Claim of plaintiff was that the names of female legal representatives were not inserted in the revenue record---Defendants contested the suit on the ground that the share of female legal representatives was given by the predecessor in the shape of cash and jewelleries---Validity---Defendants could not prove that the daughters of predecessor had received their share in his life time---Anything given by a father to his daughter in his life, at the most could be considered as a gift because the right in the legacy of a deceased accrued at his death---Expected share of a presumptive legal heir, given by a predecessor in his life, did not deprive the legal heir from getting share in the legacy in view of doctrine embodied in Para. 54 of the Muhammadan Law and S. 6(a) of the Transfer of Property Act, 1882---Impugned judgment was well reasoned, therefore, the same did not warrant interference by the High Court---Appeal was dismissed.

Mst. Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

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

----Art. 71---Oral evidence must be direct---Scope---Oral evidence must, in all cases, be direct---Where it refers to a fact which could be heard, it must be proved by the evidence of a person who says he himself heard it.

Ajmal Khan Kakar for Appellants.

Mumtaz Hanafi Baqri for Respondents Nos. 1 to 4.

Attaullah Kharoti for Respondent Nos. 6 to 22, 24 and 25

and Shahid Baloch, Additional Advocate General for Official Respondents.

P L D 2023 Balochistan 46

Before Abdullah Baloch and Rozi Khan Barrech, JJ

SAMIULLAH---Petitioner

Versus

SPECIAL JUDGE ANTI RAPE/SESSIONS JUDGE, SARIAB DIVISION and 2 others---Respondents

Criminal Revision Petition No. 28 of 2022, decided on 15th December, 2022.

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

----S. 540---Power to summon material witness or examine person present---Re-calling for cross-examination---Scope---Engagement of new advocate is no ground for recalling any of the witnesses for cross-examination---Neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning the witnesses under S. 540, Cr.P.C.---If this practice is allowed, none of the trials would ever come to an end and such practice would amount to opening floodgates.

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

----S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C., is divided into two parts---First part is discretionary, while the second part is mandatory---Powers under the second part can only be exercised when the Court is satisfied that further cross-examination will be essential for the just decision of the case---Section 540, Cr.P.C. imposes responsibility upon the Court that these powers must be exercised with due care and caution---Court cannot use these powers to advance the cause of the prosecution or defense, but these powers are only meant to advance the cause of justice---Powers under S. 540, Cr.P.C. are not meant to fill in the gaps or lacunas left by the parties to the proceedings.

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

----S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C. deals with three kinds of cases and invests the Court with the power to deal with them---First case is of a person not examined by any party and not present in Court---However, such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court---Second case is of a person present in Court though he is not summoned as a witness---In this case, also, the Court can examine such a person; and the third case is of a person who has already been examined in Court, and the Court is invested with the power to recall that witness and re-examine him---Such power, however, can be exercised by the Court if the evidence of such a person appears to the Court essential to the just decision of the case.

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

----S. 540---Qanun-e-Shahadat (10 of 1984), Art. 133---Order of examinations---Power to summon material witness or examine person present---Scope---Examination of a witness by the party who calls him is called examination-in-chief---Examination of a witness by the adverse party is called cross-examination, and the examination of the witness after the cross-examination by a party is re-examining---Article 133 of the Qanun-e-Shahadat, 1984, prescribes the order in which the witness is to be examined---Article 133 states the witness shall be first examined-in-chief, then if the adverse party so desires, cross-examined, and then, if the party calling him so desires, it can get him re-examined---Said provision, therefore, lays down a procedure as to how a witness called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party (prosecution and accused) during the trial---Term "already examined" as used in S. 540, Cr.P.C. can be easily construed to mean that a witness stands already examined when the order in which the witness is to be examined prescribed by Art. 133 of the Qanun-e-Shahadat, 1984 has been followed---Essential requirement is that the witness sought to be recalled or re-examined under the provisions of S. 540, Cr.P.C. must have been already examined.

Ghulam Wali Achakzai for Petitioner.

P L D 2023 Balochistan 51

Before Iqbal Ahmed Kasi, J

NIAZ MUHAMMAD (NAZAK KHAN)---Petitioner

Versus

BIBI KHATIMA and another---Respondents

Civil Revision No. 118 of 2022, decided on 3rd October, 2022.

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

----S. 5, Sched.---Maintenance of children and grandchildren---Grandfather, responsibility of---Scope---Family suit was decreed ex-parte against father/respondent---During execution proceeding, service was also not effected on father/respondent---Executing court through the impugned order directed the petitioner being grandfather to deposit the maintenance in the CCD account---Objection petition of the petitioner/grandfather was overruled by the Executing court and Appellate court also dismissed the appeal---Validity---Petitioner/ grandfather was neither a party in the suit nor in the execution proceedings---From the bare perusal of principles embodied in Para 370 of Principles of Muhammadan Law, it was crystal clear that if the father and mother was alive, the grandfather could not be held responsible for maintenance of his grandchildren and unless it was first determined that he was in easy circumstances---In order to determine that grandfather was in a position to maintain his grandchildren, it was incumbent upon the Family Court to first adjudicate and determine this fact, which could not be done unless he was a party to the suit, having a fair opportunity to explain his status and position---Orders impugned were set aside being not maintainable, in circumstances---Civil revision petition, was allowed and the matter was remanded to the Executing Court to entertain the objection of the petitioner, providing him opportunity of hearing and producing evidence, and thereafter, to decide the same in accordance with law.

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

----S. 51 & O.XXI, R.10---Execution of decree---Power of Executing Court---Scope--- Executing Court cannot go beyond the decree---No decree can be executed against a person who is not a part to the proceedings.

Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481 ref.

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

----S. 13---Enforcement of decree---Family court is to adopt its own modes to execute its decree.

Naseer Ahmed and Saifullah Durrani for Petitioner.

Jahanzaib Khan for Respondents.

P L D 2023 Balochistan 56

Before Gul Hassan Tareen, J

BIBI AYESHA---Petitioner

Versus

MUHAMMAD AKBAR and others---Respondents

Civil Revision No. 582 of 2021, decided on 26th August, 2022.

Civil Procedure Code (V of 1908)---

----S. 115, O. XVII, Rr. 2, 3 & O. IX, Rr. 8, 9---Party fails to appear on the day fixed---Reviosional jurisdiction---Scope---Suit of the petitioner was dismissed concurrently by the Trial Court as well as by the Appellate Court under O. XVII, R. 3 of C.P.C.---Validity---Trial Court adjourned the case for submission of list of witnesses, however, the petitioner failed to submit his list of witnesses on several dates---No material was available before the Trial Court for decision of the suit on merits, hence resort to O. XVII, R. 3 of C.P.C. by the Trial Court was not warranted---Trial Court at the most could either adjourn the suit or dismiss it for non-prosecution---Impugned order was not decision on merits for want of evidence---Impugned order passed by the Trial Court fell in the category of O. XVII, R. 2 read with O. IX, R. 8 of C.P.C.---Substance of an order/judgment was to be looked into and not its format---Such an order could be re-called under O. IX, R 9 read with O. XLVII, R. 1 of C.P.C.---Appellate Court had illegally exercised appellate jurisdiction as the order of the Trial Court was not an appealable order----Revision in exceptional circumstance may lie against an order which may fall in the category of O. IX, R. 8 of C.P.C.---Impugned order passed by the Trial Court was converted into an order under O. XVII, R. 2 C.P.C. with the direction that petitioner was at liberty to apply to the Trial Court for restoration of his suit under O. IX, R. 9 read with O. XLVII, R. 1 and S. 151, C.P.C.---High Court further observed and directed that as the date set for filing of list of witnesses was not a date of "hearing" as such, the impugned dismissal order of the Trial Court was a void order---Impugned judgment and decree passed by the Appellate Court was set aside---Appeal preferred by the petitioner before the Appellate Court stood dismissed, being not against an appealable order---Impugned order and decree passed by the Trial Court was converted into an order under O. IX, R. 8 read with O. XVII, R. 2 of C.P.C.---Revision petition was partly allowed.

Rehmatullah and 2 others v. Lal Muhammad PLD 1986 Quetta 121 rel.

Mujeeb Ahmed Hashmi and Sharjeel Haider for Petitioner.

Manzoor Shah and Mubashar Hassan for Respondents Nos. 1 to 3, 6 and 7.

Malik Muhammad Azeem, Assistant Advocate General for Official Respondents.

P L D 2023 Balochistan 59

Before Abdul Hameed Baloch, J

MUNIR AHMED KASI---Petitioner

Versus

ARBAB SAMIULLAH and 12 others---Respondents

Civil Revision No. 407 of 2015, decided on 18th March, 2021.

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

----O. XXIII, R. 3 & S. 11---Compromise of suit---Satisfaction of compromise decree---Res judicata---Scope---Plaintiff filed a lawsuit inter alia seeking satisfaction of a consent order and decree---Trial Court dismissed the suit---Appellate Court remanded the suit back to the Trial Court and directed it to provide an opportunity for both parties to present evidence---Validity---Trial Court had not decided the suit on its merits but instead disposed of the matter on the basis of findings that the suit was barred by res judicata---However, the instant suit constituted a fresh cause of action as a compromise decree was a contract between the parties of a lawsuit and if either party breached the terms of the decree, it gave rise to a fresh cause of action, allowing the aggrieved party to seek legal recourse---Revision petition was dismissed.

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

----O. XIV, Rr. 1 & 3---Framing of issues---Materials from which issues may be framed---Scope---Order XIV, Rr. 1 & 3 of the C.P.C. prescribes that the issues in a case must be framed on the material propositions of law or fact---Distinct and separate issues are to be framed for each proposition that is in dispute.

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

----S. 11---Res judicata---Scope---Section 11 of the C.P.C. defines "res judicata" as a matter that has already been adjudicated and determined by a court of competent jurisdiction.

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

----O. XXIII, R. 3---Compromise of suit---Scope---Compromise decree is a contract between the parties of a lawsuit---If either party breaches the terms of the decree, it would give rise to a fresh cause of action, allowing the aggrieved party to seek legal recourse.

Peer Dil and others v. Dad Muhammad and others 2009 SCMR 1265 rel.

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

----O. XXIII, R. 3---Compromise of suit---Scope---Consent decree is a contract between the parties.

Peer Dil and others v. Dad Muhammad and others 2009 SCMR 1265 rel.

Abdul Sattar for Petitioner.

Iqbal Ahmed Kasi for Respondents.

Saifullah Sanjrani, A.A.G. for Official Respondent.

P L D 2023 Balochistan 65

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

JAFFAR KHAN---Petitioner

Versus

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

C.P. No. 1986 of 2022, decided on 10th January, 2023.

Passport Rules, 2021---

----Rr. 21 & 22---Constitution of Pakistan, Art. 15---Freedom of movement---Passport Control List---Removal of name---Petitioner's son was working abroad and his name was included in Passport Control List---Plea raised by petitioner was that his son intended to travel to Pakistan to face charges in criminal case registered against him---Validity---Guarantees have been provided under Art. 15 of the Constitution to citizen to have the right to remain in and subject to any reasonable restriction imposed by law in public interest to enter and move freely throughout Pakistan and to reside and settle in any part---Son of petitioner could obtain Emergency Travel Documents from concerned Consulate General of Pakistan to join criminal proceedings initiated against him in Pakistan---Petitioner was willing to face criminal indictment in Pakistan therefore, he could not be prevented to come to his country of abode as guaranteed in the Constitution---Respondent authority was competent to remove names of citizen from list in question and concerned Consulate General of Pakistan could issue travel documents to blacklisted citizens for travelling to Pakistan---High Court directed the authorities to issue Emergency Travel Documents to son of petitioner so as he could face criminal charge in Pakistan---Constitutional petition was allowed accordingly.

Hameedullah v. Saifullah Khan and others PLD 2007 SC 52; Shela Zia and others v. WAPDA PLD 1974 SC 693 and Hassan Raza v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad 2022 CLD 92 rel.

Abdul Sattar Sherani, Abdul Ghani Sherani and Malik Waris Kakar for Petitioner.

Saeed Ahmed, Law Officer for Respondent No.1.

Malik Anwar Naseem, Deputy Attorney General and Muhammad Rashid, Assistant Attorney General for Respondents.

P L D 2023 Balochistan 70

Before Abdullah Baloch and Rozi Khan Barrech, JJ

ABDUL HAYE---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 51 of 2021, decided on 11th August, 2022.

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

----Ss. 363 & 376---Kidnapping, rape---Appreciation of evidence---Minor victim as star witness---Scope---Accused was charged for kidnapping the minor niece of the complainant and committing rape with her---Star witness of the prosecution was the victim of case, who appeared in the Court as witness---Since, star witness was minor aged about 5-years, thus in order to ascertain her mental condition and conscious, certain questions were put upon her, which were replied correctly by her and thereafter her statement was recorded---Victim in her statement stated that she along with daughter of complainant were taken by the accused in his house, who purchased ice cream for them, and gave them some money, and finally took off her Shalwar and committed bad act (rape) with her and thereafter let them free---Victim identified the accused in the Trial Court---Admittedly, victim was a minor, but at the time of her examination in chief the Court asked several questions from her and found her mentally mature and fit to answer the questions correctly and even during cross examination she replied the questions correctly, which established the soundness of her mind and her statement could not be thrown aside merely on the ground of her minor age of 5/6-years rather her statement alone was enough to establish the charge against the culprit---Even otherwise, there was nothing on record showing that this witness was tutored by her elders---Thus, nothing adverse had come on record to disbelieve the evidence of victim---Victim's statement suggested that immediately after the occurrence she came to her house, informed elders, correctly identified the place of occurrence as well as the culprit/accused, who committed hateful act with her and even the defence despite lengthy cross-examination failed to dent or jolt her statement---Appeal against conviction was dismissed accordingly.

Muzammil Shah v. State 1991 MLD 1944 rel.

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

----Ss. 363 & 376---Kidnapping, rape---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for kidnapping the minor niece of the complainant and committing rape with her---Prosecution produced medical evidence through Lady Police Surgeon, who examined the victim and after examination of victim, issued Medico-Legal Certificate and opined the victim was physically and mentally ok and well-oriented to time and place---Lady Police Surgeon further opined that the hymen of victim was not intact and sexual assault had been performed upon her, besides redness was found around the vagina as well as fresh signs of sexual intercourse and old signs---Perusal of Medico-Legal Certificate established the fact that rape was committed with the victim---Lady Police Surgeon also took samples for analysis i.e. Vaginal Swabs, Shalwar and Buccal Swab of victim as well as samples of accused's i.e. Shalwar, Chadar, Blood, Buccal Swab and Fluid---After examination of accused, the Lady Police Surgeon was of the opinion that the accused was physically and mentally healthy and was able to perform the act of sexual intercourse---Samples so taken from the victim as well as from the accused were sent to Forensic Science Laboratory for analysis, which after examination issued its report, perusal whereof confirmed that seminal material was found on Shalwar of victim---Both the ocular and medical evidence were in line with each other---In ocular testimony the witnesses had alleged that rape was committed with the victim by the accused and the medical evidence had established the ocular testimony that offence was committed with the victim---Even otherwise, soon after the commission of crime, the victim was taken to hospital and within 24-hours she was examined by a lady doctor---Besides, the FIR had been lodged promptly without any delay, thus the prompt lodging of FIR had ruled out the possibility of deliberation or consultation---Appeal against conviction was dismissed accordingly.

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

----Ss. 363 & 376---Kidnapping, rape---Appreciation of evidence---Solitary statement of minor victim---Reliance---Accused was charged for kidnapping the minor niece of the complainant and committing rape with her---In the present case, defence objected that the solitary statement of the victim was not sufficient to base conviction thereon---Validity---It was not the number of witnesses but quality and credibility of the evidence which was to be considered---In cases of rape and sodomy, generally there were hardly any witnesses other than the victim, as it was very rare that such offence took place in view of others or at public place, thus great sanctity was attached to the statement of the victim and sole testimony of the victim would be sufficient to base conviction thereon if it inspired confidence---Prosecution had produced corroborative and confidence inspiring evidence in the present case and the defence had failed to cause any sort of dent in the evidence of prosecution, therefore, the objection so taken by the defence was without any substance---Appeal against conviction was dismissed accordingly.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042; Mushtaq Ahmed and another v. The State 2007 SCMR 473 and Kamran alias Kami v. The State 2012 PCr.LJ 1200 rel.

Muhammad Khair Mengal for Appellant.

Ameer Hamza Mengal, A.P.G. for the State.

P L D 2023 Balochistan 78

Before Gul Hassan Tareen, J

ABDUL REHMAN and 3 others---Petitioners

Versus

Messrs PROGRESSIVE MINERALS through Najeeba and others---Respondents

Civil Revision No. 190 of 2022, decided on 14th December, 2022.

Civil Procedure Code (V of 1908)---

----Ss. 47, 115 & O.XXI, R.32---Specific Relief Act (I of 1877), S.54---Suit for perpetual injunction---Execution of decree---Restoration of possession and removal of encroachment---Executing Court, powers of---Respondents/decree holders were aggrieved of their dispossession and encroachment made by petitioners/judgment debtors over suit property---Held, that where holder of decree for injunction was dispossessed by judgment debtor or his possession was interfered with by encroachment or otherwise, the holder of such decree could apply to Executing Court for restoration of his possession or removal of encroachment from suit land---Such decree holder could not be asked to go and institute a fresh suit for restoration of possession etc.---Trial Court, Lower Appellate Court and High Court in exercise of revisional jurisdiction held that respondents/decree holders were in possession of suit land---Petitioners/judgment debtors dumped construction material upon suit land of respondents/decree holders and Executing Court had rightly directed for removal of the same---Decree of injunction was not just a piece of paper, rather had same legal force and effect as any other decree---Decree holder of an injunctive decree, if dispossessed by judgment debtor could have applied to the Court on the strength of same decree for restoration of his position under S. 151, C.P.C., which provision could also be pressed into service for restoration of possession of a decree holder of perpetual injunction---High Court declined to interfere in concurrent orders passed by two Courts below---Revision was dismissed, in circumstances.

Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 and Muhammad Hussain and others v. Muhammad Aslam 1988 SCMR 151 ref.

Adnan Basharat for Petitioners.

Muhammad Saleem Lashari, Salman Langove and Rehan Babar for Respondents.

P L D 2023 Balochistan 85

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD AZAM KHAN SWATI---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, BALOCHISTAN and 2 others--Respondents

Criminal Quashment Petitions Nos. 628 to 632 of 2022, decided on 20th December, 2022.

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

----Ss. 177, 179, 180, 181, 235, 403 & 561-A---General Clauses Act (X of 1897), S. 26---Penal Code (XLV of 1860), Ss. 123-A, 124-A, 131, 153, 500, 501, 504 & 506---Constitution of Pakistan, Arts. 4, 13 & 199---Inherent jurisdiction of High Court---Quashing of FIR---Multiple FIRs---Double jeopardy, principle of---Applicability---Petitioner was facing multiple FIRs on the allegations of condemnation of creation of State and advocacy of abolition of its sovereignty, sedition, abetting mutiny, attempting to seduce a soldier, sailor or airman from his duty, wantonly giving provocation with intent to cause riot, defamation, intentional insult with intent to provoke breach of peace and criminal intimidation---Petitioner sought quashing of all FIRs as they contained similar allegations with reference to one occurrence against which one case had already been pending in another province---Validity---It was neither possible nor convenient for petitioner to obtain bail from various Courts in various cities joining various investigations and finally defending himself before various Courts, that too, for one and the same offence---All FIRs were registered for the same incident under same provisions of law against same accused---Taking cognizance by multiple Courts, having different territorial jurisdiction simultaneously, was in violation of Arts. 4 & 13 of the Constitution, S. 403, Cr.P.C and S. 26 of General Clauses Act, 1897---Single trial had been envisaged under Part VI, Chapter XV Ss. 177, 179 180 181 & 235, Cr.P.C.---Power under S. 561-A, Cr.P.C. is extraordinary jurisdiction that cannot override the Court's provisions---Cases may arise where demands of justice require immediate, real and substantial justice and in such circumstances, Courts are justified to exercise their jurisdiction to save a party from harassment and abuse of process of Court---Powers under S. 561-A, Cr.P.C. may be used sparingly as it confers vast powers on the Court to meet such eventualities and pass any order which ends of justice may require---High Court directed to release petitioner and quashed all FIRs registered against him---Petition was allowed, in circumstances.

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

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

----Ss. 61, 167 & 344---Remand---Magistrate, duty of---Magistrate is not expected to pass orders granting remand of accused persons in a mechanical manner---Magistrate has to examine very carefully the justification for depriving a citizen of his liberty which can only be done if material justifying such action is available on record---Deviation made by Magistrate in such respect, exposes Magistrate to the peril of having committed violations of mandatory provisions of law.

Ghulam Sarwar v. The State 1984 PCr.LJ 2588 rel.

Naseebullah Tareen, Syed Iqbal Shah, Munir Ahmed Kakar, Muhammad Saleem Lashari, Barrister Usman, Muhammad Imran Alvi, Dr. Saeed Akhtar Malik, Ali Hassan Bugti, Salman Langove, Shabbir Ahmed Sherani and Muhammad Raees for Petitioner.

P L D 2023 Balochistan 93

Before Zaheer ud Din Kakar and Gul Hassan Tareen, JJ

Syeda NAYYAR SULTANA---Petitioner

Versus

Syeda SHUMAILA ZAIDI and others---Respondents

Constitution Petitions Nos. 1709 and 1710 of 2022, decided on 8th May, 2023.

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

----Ss. 41 & 52---Civil Procedure Code (V of 1908), O. I, Rr.3 & 10, & O.XIII, R. 2---Doctrine of pendente lite---Doctrine of lis pendens---Equitable doctrine of estoppels---Necessary or proper party---Public policy--- Scope--- Petitioner moved the Civil Court with two applications, one for impleading a person as a party to the suit whom he (petitioner) asserted as vendee of suit-property having purchased suit-property during the pendency of suit; and the second (application) was for placement of an agreement regarding said purchase on record---Civil Court dismissed both applications, which order was maintained by the Appellate Court---Contention of the petitioner was that the said vendee was a necessary party and if he was not impleaded then the decree passed, would not be executable against such person---Held, that the contention of the petitioner was misconceived because a person who had purchased an immoveable property (subject-matter of suit) from a party to the suit, such person was neither a necessary nor a proper party, even though such purchase was without notice of the pendency of suit in good faith and for consideration---If a purchaser, bona fide or otherwise, having been purchased suit-property during pendency of suit was allowed to be a necessary party, then there would be an endless multiplicity of litigation---In order to overcome such situation and not to deprive a party from fruits of decree, the doctrine of lis pendens through S. 52 of the Transfer of Property Act, 1882 ('the Act 1882') had been introduced---Said doctrine rested on an equitable principle of 'ut lite pendente nihil innovetur' which meant 'pending litigation, nothing new should be introduced'---Section 52 of the Act 1882 was founded upon the public policy that any person purchasing suit-property during pendency of suit was bound by the judgment that could be made against the person from whom he had derived title, even though he (vendee) was not a party to the suit; and even he was a bona fide and innocent purchaser/ transferee---Although a transferee, who had purchased subject-matter of the suit before institution of suit, was entitled to be impleaded as defendant under O. I, R. 3 of the Civil Procedure Code, 1908, or during pendency of suit under O. I, R. 10 of the Civil Procedure Code, 1908, to defend his title as well as to prove that his transfer was protected by the statutory application of the equitable doctrine of estoppel as embodied in S. 41 of the Act, 1882, however, the said protection under S. 41 of the Act, 1882 was not available to a purchaser pendente lite, as the principle of lis pendens was based on public policy i.e. there should be an end of litigation---Section 41 of the Act 1882 was subordinate to S. 52 of the Act, 1882 or, in other words, the principle of lis pendens embodied in S. 52 of the Act 1882 superseded the statutory application of law of estoppel---Principle of lis pendence operated very hard but it was a rule founded upon public policy, for otherwise alienations pendente lite would defeat the very purpose of law---Effect of such principle was not to annul the conveyance of the vendee but only to render the same subservient to the right of parties as well as the final outcome of the lis---Transferee of subject-matter of a lis was not entitled to be impleaded in the suit and to defend his title independently; and had to swim and sink with the defendant from whom he had purchased the suit-property---Respondent (alleged vendor) had though denied selling out the suit-property; and even if he had sold it, the alleged vendee was neither a necessary nor a proper party; and he would be bound by the final outcome of the suit as the respondent/vendor would be, on the principle of lis pendens---No interference by the High Court in concurrent orders passed by both the Courts below was made out---Constitutional petitions were dismissed, in circumstances.

Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

Syed Saleem Akhtar for Petitioner.

Khalil-ur-Rehman and for Respondents Nos. 5 and 6.

Respondent No.1-F as well as attorney for Respondents Nos.1-A to 1-E and 2 to 4) present in person.

P L D 2023 Balochistan 98

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

BANDENAWAZ (PRIVATE) LIMITED through Director---Appellant

Versus

FEDERATION OF PAKISTAN through Deputy Director Ministry of Defence and others---Respondents

R.F.A. No. 38 of 2022, decided on 12th June, 2023.

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

----Ss. 3, 117, 135 & 172(2)(xiii)--- Land Revenue Rules, 1968, Rr.67-A, 67-B---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O. VII, R. 10---Suit for declaration---Maintainability---Encroachment, dispute of---Civil Court or Revenue Authorities, jurisdiction of---Scope---Demarcation of agricultural land---Scope---Land of both the private parties were adjacent to each other and construction of bypass road by the Government resulted into dispute between them---Both the (private) parties filed separate suits for declaration, inter alia that the other respective party be declared as tress-passer/land-grabber and the respondent/Government be directed to forthwith carry out a survey and to demarcate the subject-property---Civil Court consolidated both suits, however, returned both the plaints under O. VII, R. 10 of Civil Procedure Code, 1908, for want of jurisdiction under S. 172 of the Land Revenue Act, 1967---Only the appellants challenged the impugned order before the High Court whereas the respondents (other private party ) supported the same---Validity---Pleadings of both the parties revealed that they had not challenged the property having been recorded in their respective names in the revenue record, but their main claim hinged on the controversy that some portion of their property fell in the construction of the road, therefore, the appellants through declaration under S. 42 of the Specific Relief Act, 1877, had actually sought relief of new right of demarcation---In case of controversies between the parties with regard to demarcation of boundaries of agricultural land, Civil Court had no jurisdiction unless demarcation of area had already been conducted by the Revenue Authorities under the provision of S. 117 of the Land Revenue Act, 1967 read with Rr. 67-A & 67-B of the Land Revenue Rules, 1968---Through a declaration in civil matter claimed under S. 42 of the Specific Relief Act, 1877, a pre-existing right could be declared, but a new right could not be created by grant of a decree by the Civil Court---Where a claim of encroachment over his property was made by a person against the adjacent owner, his remedy laid before the Revenue Authorities for demarcation of land under Rr. 67-A & 68-B of the Land Revenue Rules, 1968, and in the said respect, the Revenue Officer had ample powers under S. 117 of the Act 1967 to define the boundaries---In the present case, neither any demarcation took place prior to institution of the suit, nor the appellants had taken any step to the said effect---There was no dispute between the parties with regard to title of the properties recorded in the revenue record---Both properties were adjacent to each other and both parties had raised claim that portion of their property fell in the construction of road made by the Government without specifying the encroached area---Title documents relied upon by the appellant showed his ownership, which right had not been denied by the respondent---Pleadings of the parties made clear that matter of demarcation of boundaries of the agricultural land had been raised by the appellants which fell in the domain of Revenue Authorities and jurisdiction of Civil Court was explicitly barred under S. 172(2)(xiii) of the Land Revenue Act, 1967---No interference in the impugned order of returning the plaints was made out by the High Court---First regular appeal was dismissed, in circumstances.

Director Military Lands and Cantonment Quetta Cantt Quetta and others v. Aziz Ahmed and others 2023 SCMR 860 ref.

(b) Balochistan Land Revenue Act (XVII of 1967)---

----S. 3---Punjab Tenancy Act (XVI of 1887), S. 4(1)---West Punjab Alienation of Land Act (XIII of 1900), S. 2(3)---Land, definition of---Section 3 of the Balochistan Land Revenue Act, 1967 ('the Act 1967') excludes land not assessed to land revenue from operation of the Act 1967---Under Punjab Tenancy Act, 1887 and under Land Reforms Regulations 1972, the term " Land" has been defined as land which is not occupied as the site of a town, village, factory or industrial establishment and is occupied or has been or can be let for agricultural purpose, allied or subservient to agriculture and includes the site of building and other structure on such land---Section 2(3) of the West Punjab Alienation of Land Act defines land as land which is not occupied as the site of any building in a town or village and is occupied or let for agriculture purposes or for purposes subservient to agriculture or for pasture etc.

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

----Ss. 3, 117, 135 & 172(2)(xiii)--- Land Revenue Rules, 1968, Rr. 67-A & 67-B---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Maintainability---Partition, demarcation of agricultural land and eviction of unauthorized land owner---Civil Court or Revenue Authorities, jurisdiction of---Scope---Subject of partition, demarcation and eviction of unauthorized land owner is regulated by S. 135 of Balochistan Land Revenue Act, 1967 (' the Act 1967') read with Rr. 67-A & 67-B of the Land Revenues Rules, 1968 ('the Rules 1968')---Provisions of S. 117 of the Act 1967 authorizes Revenue Officer to define the limit of any estate or any land on application of any interested person and to define limit of boundaries for ascertaining whether or not any outsider has encroached the property of the applicant and as a result such proceedings, a land owner, if found in wrongful possession of land can be evicted on an application---Rule 67-B of the Rules 1968, provides a specific procedure for seeking eviction of an encroacher---In a matter of demarcation of boundaries of agriculture land, jurisdiction of Civil Court is barred under S. 172(2)(xiii) of the Balochistan Land Revenue Act, 1967 ('the Act 1967'), but in case where a claim is laid for declaration, permanent injunction and possession of area demarcated by the Revenue Authorities and found encroached by someone, a suit must lie before Civil Court.

Mehram Khan and others v. Fateh Khan and others 1983 SCMR 366 ref.

Muhammad Rehan for Appellant.

Ilahi Bakhsh Mengal for Respondents Nos.3, 4 and 5.

Abdul Zahir Kakar, D.A.G., Muhammad Zubair, Assistant Director, Survey of Pakistan and Munir Ahmed Sikandar, A.A.G. for Official Respondents.

P L D 2023 Balochistan 105

Before Muhammad Aamir Nawaz Rana, J

JAVED IQBAL---Petitioner

Versus

SHAHEEN IQBAL and others---Respondents

Civil Revision No. 613 of 2022, decided on 5th May, 2023.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Additional evidence, producing of---Jurisdiction of the Appellate Court---Scope---Conduct of the party---Petitioner filed an application under O. XLI, R. 27 of the Civil Procedure Code, 1908, before the Appellate Court seeking permission to produce marginal witnesses of alleged gift-deed---Contention of the petitioner was that the Appellate Court had jurisdiction to allow the production of witnesses who were not produced before the Trial Court---Appellate Court dismissed the said application of the petitioner---Validity---Record revealed that petitioner had already mentioned name of said witnesses in the list of witnesses having been submitted before the Trial Court, however, order-sheets of the Trial Court showed that despite several opportunities, no efforts had been made by the petitioner to produce the said witnesses---Parties to the suit must be vigilant while contesting the suit and if any party is careless or fails to take necessary steps for production of evidence then subsequently any request on behalf of such party under the garb of O. XLI, R. 27 of the Civil Procedure Code, 1908, for production of additional evidence has to be considered with extreme caution as the conduct of a party is always extremely relevant---Petitioner, without mentioning any cause, did not produce the witnesses before the Trial Court---Order XLI, R. 27(1)(a) of the Civil Procedure Code, 1908, stipulates that only in those cases where the Trial Court has refused to admit any evidence which ought to have been admitted, then the Appellate Court can exercise the discretion to allow additional evidence---Trial Court, in the present case, was never approached by the petitioner in such context, instead he, despite taking responsibility to produce said witnesses, failed to do so---Neither the powers under O. XLI, R. 27 of the Civil Procedure Code, 1908, are unfettered nor the Appellate Court has the discretion to allow additional evidence per its own caprice, rather the said discretion is structured / limited by the factors enunciated in the said provision of law---Revision was dismissed, in circumstances.

Ideal Arcade Builders and Development v. Miss Farida Shehnaz PLD 2019 Sindh 691 ref.

Khursheed Ali v. Shah Nazar PLD 1992 SC 822 distinguished.

Rasool Bakhsh Baloch for Petitioner.

Muhammad Saleem Lashari and Salman Langove for Respondent No.1.

Respondent No.2 proceeded against Ex-parte on 08.12.2022.

Abdul Tahir for Official Respondent.

P L D 2023 Balochistan 113

Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, JJ

REHMAN---Petitioner

Versus

DUR MUHAMMAD and 3 others---Respondents

C. P. No(s). 265 of 2022, decided on 9th December, 2022.

Balochistan Local Government Act (V of 2010)---

----S. 24---Balochistan Zakat and Ushr Act (I of 2012), Ss. 15 & 23---Constitutional petition---Qualifications for candidates and elected members---Chairman of Zakat Committee---Question before High Court was whether a person being Chairman of Zakat Committee could contest the local bodies elections within the meaning of S. 24(1)(f) of the Balochistan Local Government Act, 2010---Held, that considering Ss. 15 & 23 of the Balochistan Zakat and Ushr Act, 2012, the Chairman of Tehsil Zakat Committee was deemed to be a public servant, since he was elected for the service in statutory body controlled by the Provincial Government, so S. 24(1)(f) of the Balochistan Local Government Act, 2010, debarred the Chairman Tehsil Zakat and Ushr Committee from contesting the local bodies election---If any person had the authority to distribute Zakat and Ushr then definitely there were overwhelming possibilities that he could influence the poor voters of the constituency and by using this authority, any individual could hijack the elections---Furthermore, it was not logical that a person, who was empowered to provide monetary benefits of any kind under his discretion to the voters of his constituency, should be allowed to contest the elections as it would raise questions regarding transparency and fairness of electoral process---Constitutional petition was accepted and the Returning Officer was directed to delete the name of Chairman of Zakat Committee from the list of validly nominated candidates for the reserved seat of peasant.

Muhammad Khan v. Amanullah PLD 2014 Bal. 128 and Zulikha Bibi v. Election Commission of Pakistan 2015 YLR 1584 ref.

Adnan Ejaz Sheikh and Akhtar Shah for Petitioner.

Ali Hassan Bugti for Respondent No. 1.

Muhammad Haroon Kasi, Senior Law Officer, Shehzad Ahmed, Law Officer, Zahoor Mengal, Legal Advisor and Naseer Ahmed, Senior Personal Assistant, Election Commission of Pakistan for Respondents Nos. 2 and 3.

Shahid Baloch, Additional Advocate General for Respondent No. 4.

P L D 2023 Balochistan 118

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

MUHAMMAD NAEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 239 of 2022, decided on 22nd June, 2023.

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

----Ss. 9 (c) & 25---Possession of narcotic substances---Appreciation of evidence---Sentence, reduction in---Record revealed that the prosecution, through adducing consistent evidence, had proved the recovery of 9 kgs Charas as well as safe custody and transmission from the place of occurrence to the Malkhana and onward transmission to the office of Federal Government Analyst Balochistan ('FGA') successfully, so unnecessary technicalities should not hamper the very purpose of law and the approach of the Court must be dynamic---Prosecution, however in the present case, had successfully established the recovery of 9 kgs 'garda' Charas lying in-between the legs of the appellant, but, 4 kgs of 'garda' charas allegedly recovered from the rear seat concealed therein was, admittedly, not recovered on his disclosure and pointation, thus same had not been proved against him as the driver of the vehicle had fled away, who (driver) was responsible for said 4 kgs charas having been concealed in the rear seat---High Court reduced the sentence of the convict/appellant from life imprisonment to ten years in view of peculiar circumstances of the present case---Appeal was disposed of accordingly.

Faisal Shehzad v. State 2022 SCMR 905 ref.

(b) Anti- Money Laundering Act (VII of 2010)---

----Ss. 3, 4 & 21---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 72, 73 & 74---Possession of narcotic substance, foreign currency and weapons---Offences punishable under the provisions of Anti- Money Laundering Act, 2010---Trial of the accused---Jurisdiction of the Court, question of---Anti-Narcotic Force, apart from narcotic substance and weapons, also recovered foreign currency from the intercepted vehicle---Trial was conducted by Special Judge of the Court established under the Control of Narcotic Substances Act, 1997 ('Special Judge-CNS')---Special Judge-CNS not only held trial and passed sentence against the accused/appellant for possession of narcotic substance but also for the offences punishable under the provisions of Anti- Money Laundering Act, 2010---Legality---Conviction and sentence recorded by the Special Judge-CNS, did not fall within its jurisdiction as the same did not square within provision of Ss. 72, 73 & 74 of the Control of Narcotic Substances Act, 1997, thus the conviction and sentence awarded by the Special Judge-CNS to the appellant under the offences punishable under Ss. 3 & 4 of the Anti- Money Laundering Act, 2010 was coram non judice; thus, impugned judgment to the said extent was set at naught---High Court remitted the case to the Court constituted under Anti- Money Laundering Act, 2010, to initially adjudicate upon the question of maintainability and cognizance of the indictment in view of S. 21 of the Anti-Money Laundering Act, 2010 and then to decide the case in accordance with law---Appeal was disposed of accordingly.

Amanullah Batezai for Appellant.

Habib-ur-Rehman Baloch, Special Prosecutor, ANF for Respondent.

P L D 2023 Balochistan 124

Before Nazeer Ahmed Langove, J

ZAHEER-UD-DIN alias ZAHOO KHAN and 7 others---Petitioners

Versus

FAZUL and 6 others---Respondents

Civil Revision Petition No(s). 57 of 2022, decided on 11th October, 2022.

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

----S. 11 & O. VII, R. 11---Specific Relief Act ( I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of document and permanent injunction---Cause of action---Concealment of facts---Res judicata, doctrine of---Claim of the petitioners/plaintiffs was that the private defendants had no right to enter into agreement or to receive compensation amount from petroleum company (defendant) in respect of un-partitioned suit-property---Trial Court dismissed the suit of the petitioners/plaintiffs on the application under O. VII, R. 11 of the Civil Procedure Code, 1908, moved by the defendants---Validity---Record revealed that earlier a civil suit was filed against the respondent (petroleum company) and others, which was dismissed almost five years ago---In proceedings of said suit, it had been admitted that the petitioners/plaintiffs had been receiving compensation from the respondent (petroleum company) for more than fifty years---Petitioners/plaintiffs had filed suit on the same subject-matter---Law recognized that the conduct of the party might be such that he had to be stopped from litigating the issue all over again---Such conduct sometimes consisted of active participation in the previous proceedings, which was applicable in the proceedings moved by the petitioners/ plaintiffs---Section 11 of the Civil Procedure Code, 1908, had barred the Court to try any suit or issue, in which the matter was directly or substantially in issue in former suit between the parties or under whom they or any of them had claimed or was litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue had been substantially raised, heard and was finally decided---Court was bound to reject a plaint under O. VII, R. 11 of the Civil Procedure Code, 1908, where the suit appeared prima facie barred by any law---No illegality or infirmity had been noticed in the impugned orders and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

(b) Res judicata---

----Doctrine of res judicata states that where there is a judgment inter-se parties, it will prevent a fresh suit between them regarding the same matter; which is a universal application as well as a fundamental concept in the organization of every jural society---Rule of res judicata is based on the consideration that it will be a hardship to an individual if vexed twice for the same cause and it is in the interest of the State and the parties in lis that there should be an end of litigation.

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

----S. 5---Civil Procedure Code (V of 1908), S. 115---Limitation---Condonation of delay---Conduct of the party---Diligence---Petitioner filed civil revision before the High Court after lapse of more than five years of passing of order and decree by the Appellate Court---Validity---Aggrieved person has to pursue his legal remedy with diligence---Delay of each day must be explained if a petition is filed beyond limitation in order to satisfy conscious of the Court, even if objections to said effect are not raised as valuable rights accrue to opposite side with lapse of time---Petitioners failed to explain the delay of more than five years in filing petition, which by no stretch of the imagination could be condoned---No illegality or infirmity having been noticed in the impugned orders and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 and Province of Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147 ref.

Sohail Abid for Petitioners.

P L D 2023 Supreme Court 1

Present: Umar Ata Bandial, Sajjad Ali Shah and Munib Akhtar, JJ

ALI ASJAD MALHI---Appellant

Versus

Ms. Syeda NOSHEEN IFTIKHAR and others---Respondents

Civil Appeal No. 166 of 2021, decided on 2nd April, 2021.

(On appeal from the judgment/order dated 25.02.2021 passed by Election Commission of Pakistan in Case No. F.1(NA-75)/2020 -- Bye-elections-Elec-I).

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

----S. 9(1)---Power of the Election Commission ('the Commission') to declare a poll void---Scope---Election of the result 'materially affected'---"Materially affected" test---Scope---In deciding whether to issue a declaration to the effect that a re-poll should be held in a constituency (or in certain polling stations), the primary question the Commission has to answer is whether 'grave illegalities or violations have materially affected the result of the election in one or more polling stations or the whole constituency---Under the 'materially affected' test, two distinct methods can be utilized by the Commission to determine the validity of an election; namely, either by tallying the numerical count and/or by assessing the gravity and extent of the violation(s) committed.

Muhammad Siddique Baloch v. Jehangir Khan Tareen PLD 2016 SC 97 ref.

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

----S. 9(1)---Power of the Election Commission ('the Commission') to declare a poll void---Order for fresh elections in the whole constituency or partial re-poll---Factors that ought to be kept in mind by the Commission when determining whether there should be partial re-poll or a complete re-election in the whole constituency stated.

Following are the factors that ought to be kept in mind by the Election Commission (ECP) when determining whether there should be partial re-poll or a complete re-election:

(i) The imperativeness of the law violated and the scale of the violation;

(ii) Whether the delinquent-conduct contravenes law imposing mandatory obligations for the conduct of honest, just, fair and lawful elections that entail prescribed penal or civil consequences;

(iii) Whether the extent of the violations is such as to affect the election result at a significant number of polling stations in the constituency or affects the voters at such poling stations;

(iv) Whether the impact of the breach of law on the voters and/or election staff is serious enough to undermine the sanctity and integrity of the election process in the constituency;

(v) Were the supporters of a losing candidate or the latter him/herself responsible for creating unrest and causing a law and order situation to force a fresh election;

(vi) Were election staff themselves involved in violating the election law;

(vii) Who was the direct victim of the breach of law e.g., was the polling staff intimidated and/or polling material damaged;

(viii) Was political clout exerted in the candidates' strongholds resulting in abnormal results at different polling stations;

(ix) Was the violation of law premeditated.

Muhammad Nawaz Chandio v. Muhammad Ismail Rahu 2016 SCMR 875; Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352; Abdul Hafeez Khan v. Muhammad Tahir Khan Loni 1999 SCMR 284; Waheeda Shah v. Election Commission of Pakistan PLD 2013 Sindh 117 and Khalid Hussain Magsi v. Abdul Rahim Rind 2016 SCMR 900 ref.

Factors mentioned above are the crucial aspects of the election process that ought to be viewed holistically in order to conclusively decide the extent of re-election to be held in a constituency. Indeed, the application of one or more of the said criteria will depend on the facts of each case. Therefore, it is not necessary that all election disputes will attract the factors envisaged above.

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

----S. 9(1)---Constitution of Pakistan, Art. 218(3)---Decision of the Election Commission (ECP)---Interference by Superior Courts---Grounds---Only limited grounds exist for interfering with ECP's decisions, namely, when these involve the exercise of illegal, or mala fide, or manifestly arbitrary or unjustifiable jurisdiction and discretion by the ECP.

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

----Ss. 9(1) & 154---Power of the Election Commission ('the Commission') to declare a poll void---Order for fresh elections in the whole constituency instead of partial re-poll---Firing and incidents violence at 40 polling stations and the sudden disappearance of 20 Presiding Officers (POs) for several hours on election night---Incidents of violence at 40 polling stations, the indifference of civil administration and law enforcement agencies to the prevailing situation in the constituency on election day and the disappearance of the 20 Presiding Officers for several hours all pointed to an election process that was neither peaceful, free, fair or transparent---Election Commission had rightly declared the election null and void and given directions for a fresh election in the whole constituency.

In the present case, there were incidents of violence at 40 polling stations and the law and order situation in general was tense. These conflicts were further compounded by the inaction of the civil administration and law enforcement agencies to curb the disorder and create a conducive environment for voters in the constituency to exercise their right of franchise. Further, incidents of violence on election day were given extensive coverage by the electronic media. The possibility that such reporting instilled fear in the voters and prevented them from casting their votes in favour of their preferred candidate cannot be discounted. Evidence of apprehension and fear in the voting public is also visible from the low voter turnout (less than 35%) at 54 polling stations.

The disappearance of the 20 Presiding Officers (POs) was unprecedented. Moreover, the situation had become even more dubious because each PO was accompanied by a driver and a police guard in vehicles provided by the Election Commission (ECP). However, no contact could be established with any of these persons for the entire time the POs were missing. This strongly indicates that the mysterious disappearance of the 20 POs was a coordinated act. The Returning Officer's (RO) report supports this view by its statement that all the POs appeared puzzled and apprehensive and gave stereotypical responses when questioned about their whereabouts. Furthermore, the untraceable 20 POs turned up at the office of the RO at about the same time even though they had departed from different polling stations. The foregoing chain of suspicious events cannot be a mere coincidence but point to a premediated breach of the sanctity and integrity of the election process.

The incident of the 20 missing POs was an attack on the entire election process. Free and fair elections can never be conducted without the constant and vigilant efforts of the polling staff. At the bare minimum polling staff should have the confidence that in the performance of their duties they will not be harassed, intimidated, kidnapped or pressured by anyone. However, it is apparent from the RO's report that when the 20 POs finally reappeared, they were in a distraught state of mind. Clearly, their detour had affected their dignity and composure. Such an experience therefore not only undermined the POs who had disappeared but also sent out an insidious message to the remaining staff of what may happen to them.

The violence at 40 polling stations, the indifference of civil administration and law enforcement agencies to the prevailing situation in the constituency on election day and the disappearance of the 20 POs all pointed to an election process that was neither peaceful, free, fair or transparent. No illegality, mala fide or unreasonableness was found in the impugned judgment issued by the ECP by which it declared the election null and void and gave directions for a fresh election in the whole constituency.

Supreme Court dismissed the appeal and gave directions for holding fresh elections in the whole constituency as soon as possible with the observation that ECP should undertake an inquiry into the object of, the means used for and the perpetrators behind the disappearance of the 20 POs on the night of the election.

M. Shahzad Shoukat, Advocate Supreme Court, Mian Abbas Ahmed, Advocate Supreme Court, M. Sharif Janjua, Advocate-on-Record, assisted by Syed Muhammad Ali Bokhari, Advocate Supreme Court for Appellant.

Salman Akram Raja, Advocate Supreme Court, (Video-Link from Lahore) assisted by Ghulam Sabir, Advocate High Court for Respondent No.1.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Respondent No.7.

Mian Abdul Rauf, Advocate Supreme Court, assisted by Barrister M. Usama Rauf, Bilal Shehzad, Ans Farooq, Sanaullah Zahid, Advocate Supreme Court and M. Arshad, D.G. Law for Election Commission of Pakistan.

Ather Abbasi, R.O. for Respondent No.9.

Abid Hussain, D.R.O. for Respondent No.10.

P L D 2023 Supreme Court 19

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

GHULAM RASOOL---Applicant

Versus

MUHAMMAD SIDDIQ and others---Respondents

C.M.A. No. 8093 of 2020 in Civil Review Petition No. Nil of 2020 in Civil Petition No. 144 of 2018, decided on 28th October, 2022.

(Against the order dated 15.09.2020 passed by this Court in Civil Petition No. 144 of 2018).

(a) Supreme Court Rules, 1980---

----O. XXVI, R. 6---Review petition, filing of---Change of Advocate without special leave of Court---Legality---Order IV, R. 6 of the Supreme Court Rules, 1980 ('the Rules') provides that it is only an Advocate Supreme Court (ASC) instructed by an Advocate-on-Record (AOR) who can represent a party---In the present case the AOR had engaged another ASC for the reason that his client desired this -- When a rule specifically provides who may represent the petitioner (Order XXVI, Rule 6 of the Rules) then the petitioner's desire (in itself) is not a sufficient reason to disregard the Rules---In the present case the AOR, with the Court's leave, could have filed the review petition and proceeded with it himself; there was no need to engage another ASC---Review petition was dismissed.

(b) Supreme Court Rules, 1980---

----O. IV, R. 24---Advocate-on-Record (AOR)---Withdrawal from a case---Once an AOR has been engaged he cannot, without the leave of the Court, withdraw from the case and can never do so for the reason that his fee, cost and/or other charges have not been paid.

Aftab Alam Yasir, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicant/Petitioner.

Respondents not represented.

P L D 2023 Supreme Court 22

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

AMJAD HUSSAIN---Petitioner

Versus

NAZIR AHMAD and others---Respondents

C.M.A. No. 3610 of 2022 in C.R.P. No. NIL of 2022 in C.A. No.1256 of 2014 and C.M.A. No. 3611 of 2022 in C.R.P. No. NIL/2022 in C.A. No.1257 of 2014, decided on 24th October, 2022.

(Against the judgment of this Court dated 25.02.2022, passed in Civil Appeals Nos. 1256 and 1257 of 2014).

Supreme Court Rules, 1980---

----O. XXVI, Rr. 1, 6 & 8---Review petition---Change of Advocate in review petition---Special leave of the Court---Principles---Under Order XXVI, Rule 6 of the Supreme Court Rules, 1980 an application for review has to be drawn by the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made---Review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law---Special leave to substitute a counsel in a review petition is to be granted (by the Court), only when appearance of the earlier counsel is not possible due to some unavoidable circumstances.

Order XXVI of the Supreme Court Rules, 1980 ('Rules') requires the same Advocate, who earlier appeared to argue the case, to draw up the review application and appeared in support of it before the Court for certain reasons. It is because a review petition is not the equivalent of a petition for leave to appeal or an appeal where the case is argued for the first time. It is not the rehearing of the same matter. The scope of review application is limited to the grounds mentioned in Order XXVI, Rule 1 of the Rules. The Advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case. He being part to the hearing of the main case is fully aware of the proceedings that transpired in the Court leading to the judgment or order sought to be reviewed. He is the one who knows what was argued before the Court and what weighed with the Court in deciding the matter either way. It is also for the same reason that the review application is to be fixed before the same Bench that delivered the judgment or order sought to be reviewed, under Rule 8 of Order XXVI of the Rules. It is not hard to see that the same Advocate and the same Bench can best appreciate the grounds of review. A review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law.

It is true that the requirement of "sufficient ground" for granting the special leave is not expressly stated in Rule 6, but this does not mean that the discretion of the Court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner. This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. The special leave to substitute a counsel in a review petition is to be granted, only when appearance of the earlier counsel is not possible due to some unavoidable circumstances. The practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances, by the parties as well as by the Advocates representing them is condemnable.

Federation of Pakistan v. Dr. Mubashir Hassan PLD 2011 SC 674 and Tamil Nadu Electricity Board v. Raju Reddiar AIR 1997 SC 1005 ref.

In the present case the ground pleaded for grant of the special leave was that the earlier counsel had refused to file the review petitions, and no other reason had been mentioned as to why he had so refused or what were the circumstances that prevented him to draft the review petition, file the requisite certificate under Rule 4 and appear in support of the review petitions. The stated refusal on his part to file the review petitions prima facie suggested that he believed that there was no sufficient ground for review and he being a responsible Senior Advocate of the Supreme Court had refused to file the frivolous review petitions. Therefore, there was no valid reason or unavoidable circumstance to grant the special leave prayed for. Applications made under Order XXVI, Rule 6 of the Rules were rejected and consequently, the review petitions were not entertained.

Muhammad Khaliq v. Gul Afzal PLD 2015 SC 247 ref.

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

N.R. for Respondents.

P L D 2023 Supreme Court 27

Present: Umar Ata Bandial, C.J. and Ayesha A. Malik, J

MUHAMMAD SALEEM BAIG, CHAIRMAN PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA), ISLAMABAD---Petitioner

Versus

Messrs LABBAIK (PVT.) LIMITED through Executive Admin Bol TV, Quetta and others---Respondents

Constitution Petition No. 10 of 2020, decided on 6th June, 2022.

(Const. Petition under Articles 186A and 187 of the Constitution seeking transfer of cases).

Constitution of Pakistan---

----Arts. 186A---Power of the Supreme Court to transfer cases pending in one/multiple High Courts to another High Court---Principles relating to such power of the Supreme Court stated.

The power vested in the Supreme Court to transfer a case from one High Court to another High Court is discretionary, to be exercised in the interest of justice. The term interest of justice is not a defined term under the Constitution but a concept which enables the courts to ensure fairness and equity in proceedings before it. The interpretation of what is in the interest of justice will vary, from case to case, based on the facts and circumstances of a case. Essentially Article 186 A of the Constitution is a constitutional safeguard that the Supreme Court has to ensure that a fair and just opportunity is given to a party to pursue their remedy under the law and to protect the interests of the party adversely affected while pursuing their remedy under the law. This constitutional safeguard allows the Supreme Court to ensure that parties before a Court are able to access their right of fair trial with no hindrance. So Article 186A of the Constitution is a power which the Supreme Court can exercise, to ensure that a party will get a fair hearing in their case to meet the ends of justice.

Power under Article 186A of the Constitution cannot be exercised due to simpliciter inconvenience of the parties. In such cases, the proper course for the petitioner is to agitate their case before the appropriate forum. Power under Article 186A of the Constitution is an extraordinary power, to be used only for meeting the ends of justice, being cases of extreme hardship and cannot be invoked in cases of convenience or inconvenience.

Muslim Commercial Bank Limited Employees' Union, Islamabad, Rawalpindi and Wah Zones through its General Secretary v. Muslim Commercial Bank Limited, Karachi and others 1994 SCMR 1031; Mohtarma Benazir Bhutto, leader of the opposition, Bilawal House, Clifton, Karachi and another v. The State through Chief Ehtesab Commissioner, Islamabad 1999 SCMR 759; Jalal-ur-Rehman v. Mrs. Salal Akbar Bugti and others PLD 2008 SC 328 and Raja Arshad Mehmood v. Mst. Maliha Malik and others 2020 SCMR 69 ref.

Hafiz Arfat Ahmad Ch., Advocate Supreme Court for Petitioner.

N. R. for Respondents.

P L D 2023 Supreme Court 32

Present: Mushir Alam, Umar Ata Bandial and Maqbool Baqar, JJ

ABDUL SATTAR and 2 others---Petitioners

Versus

The JUDICIAL COMMISSION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 13, 14 of 2018 and Civil Review Petition No. 421 of 2018 in Constitution Petition No. 55 of 2017, decided on 17th August, 2021.

Constitution Petitions Nos. 13 and 14 of 2018.

(Petitions under Article 184(3) of the Constitution challenging the decision of Judicial Commission of Pakistan dated 12.10.2017 and inaction with regard to recommendations of the Parliamentary Committee dated 26.10.2017).

Civil Review Petition No. 421 of 2018 in Constitution Petition No. 55 of 2017.

(For review of the judgment of this Court dated 26.04.2018 passed in Const. P. 55 of 2017).

(a) Constitution of Pakistan---

----Art. 184(3)---Invoking original jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Pre-requisites---To invoke the original jurisdiction of the Supreme Court, a petitioner must establish the violation of his Fundamental Right(s), the enforcement of which is a matter of importance to the public at large---In the absence of either element, the Constitutional petition cannot be entertained.

Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 and Al-Jehad Trust and another v. Lahore High Court 2011 SCMR 1688 ref.

(b) Constitution of Pakistan---

----Arts. 197 & 184(3)---Additional Judges of the High Court not confirmed as Permanent Judges (petitioners)---Constitutional petition filed by the petitioners against their non-confirmation---Maintainability---Petitioners failed to establish the primary condition for the maintainability of their petition, namely, that any Fundamental Right of theirs had been infringed---Additional Judges are only appointed for such duration as the President determines subject to any period prescribed by law---Currently no such law exists therefore it is the President who decides the period for which a person performs the functions of an Additional Judge---As a matter of convention such period is one year, at the end of which the (Judicial) Commission may either confirm an Additional Judge or grant him/her an extension or allow his/her term of appointment to expire---Since the confirmation of Additional Judges is contingent upon the approval of the Commission, it cannot be said that Additional Judges possess a constitutional tenure---Petitioners being Additional Judges cannot on the strength of the doctrine of independence of judiciary and/or access to justice claim a right to be confirmed as Permanent Judges of the High Court---Any decision to the contrary will render Article 197 of the Constitution redundant---Similarly, Additional Judges cannot also claim an extension of their term because no Fundamental Right under the Constitution confers such entitlement upon them---When the (Judicial) Commission as a whole was not in favour of recommending the petitioners for an extension of their term, the latter could have no reasonable ground to entertain a legitimate expectation to be confirmed as Permanent Judges---Present Constitutional petitions were liable to be dismissed for being not maintainable.

(c) Constitution of Pakistan---

----Pt. II, Chap. 1---Fundamental Rights---Scope---Independence of judiciary and access to justice fall within the ambit of Fundamental Rights.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

Hamid Khan, Senior Advocate Supreme Court and Ahmed Nawaz Chaudhary, Advocate-on-Record for Petitioners (in Constitution Petitions Nos. 13 and 14 of 2018).

Shah Khawar, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Civil Review Petition No.421 of 2018 in Constitution Petition No. 55 of 2017).

Nemo for Respondents.

P L D 2023 Supreme Court 42

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan, Mazhar Alam Khan Miankhel, Munib Akhtar and Jamal Khan Mandokhail, JJ

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through President and another---Petitioners

Versus

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

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).

Constitution Petitions Nos.2, 9 and Reference No. 1 of 2022, decided on 17th May, 2022.

Per Munib Akhtar, J; Umar Ata Bandial, CJ and Ijaz ul Ahsan, J agreeing; Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ dissenting.

(a) Interpretation of Constitution---

----Interpretation of 'Constitution' and interpretation of a 'statute'---Distinction stated.

There is a distinction between "interpreting" a statute and "interpreting" a constitution. While the tools developed for the former exercise (the rules of statutory interpretation) can be, and are, deployed while undertaking the latter, and much the same language used in the case law, the function of the Court is different. In the first, the Court is concerned primarily with ascertaining the legislative intent of a particular statute. In the second it is tasked with discovering the meaning of a text that is not merely the source and creator of the subject matter of the first (i.e., the laws) but even of the very organ that has the competence to issue them. Laws, in this sense, are transient no matter how long a particular statute may last, or the subject matter remain on the statute book. Constitutions on the other hand are to last a while. Statutes are designed to meet the fugitive exigencies of the hour whereas a Constitution is intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.

McCulloch v. Maryland 17 US (4 Wheat.) 316 (1819) and Marbury v. Madison 5 US (1 Cranch) 137 (1803) ref.

Interpretation in the ordinary sense, in relation to run-of-the-mill legislation, must in the end remain bogged down by the here and now, constrained ultimately by the language of the text, though even here branches of the law may periodically undergo shifts that may even seem seismic. But in the constitutional sense it is always an understanding, which is something much more. A provision may textually remain the same but it may be found to encompass within its bounds a meaning far beyond the mere language.

(b) Interpretation of Constitution---

----Interpreting the Constitution in a dynamic manner to meet contingencies old and new---Principles.

The Constitution is a living document, which must be approached in a dynamic manner that evolves over time, as fresh resolutions and solutions are called for and required to meet contingencies old and new. What the Court does in interpreting the Constitution at any given time, i.e., in giving binding and authoritative meaning and content to a provision, is to reach and present an understanding of the constitutional text. In the constitutional sense, to interpret is to understand the Constitution, and that means not just the constitutional text in its express form but also the underlying principles, rules and bases that together constitute constitutional law. It is to discover and give authoritative and binding voice and force to (i.e., be an understanding of) its spirit and intent intermingled with the text. But that understanding is not static. Over the sweep of time the understanding itself develops, deepens, evolves and alters, sometimes expanding sometimes contracting. Some understandings (or interpretations) of the past may suffice for the present, others may not. And an interpretation (or understanding) that satisfies the present may not survive the future. However, this does not mean that the Constitution presents, at any given time, a sort of tabula rasa on which any understanding can be written (i.e., interpretation cast) nor does it mean that constitutional principles and doctrines are malleable and fluid to the point of lacking any certainty. The present builds on the past, just as the future will build on what is now the present. A present understanding may do no more than add to, develop or refine an understanding already reached. Or, a past understanding may simply continue, essentially unaltered (perhaps subject to judicial "tweaks" over the years and decades), and be applied in the present. Indeed, many constitutional questions tend to be resolvable in such terms, presenting a new situation to which an existing understanding is regarded as readily applicable, and is so applied.

Marbury v. Madison 5 US (1 Cranch) 137 (1803); Roe v. Wade 410 US 113 (1973); Justice K. S. Puttaswamy (Retd.) and another v. Union of India and others AIR 2017 SC 4161; Shehla Zia v. WAPDA PLD 1994 SC 693; Edwards v. Canada [1930] AC 124, 1929 UKPC 86; Jibendra Nath Achharyya Chowdhury and others v. Province of East Pakistan and others PLD 1957 SC 9; Waris Meah v. State and another PLD 1957 SC 157; Brig (Ret'd) F B Ali and another's PLD 1975 SC 506; Al-Jehad Trust 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; Sardar Farooq Ahmed Khan Leghari v. Federation of Pakistan and others PLD 1999 SC 57; Sardar Bahadur Khan Bangulzai and others v. Sardar Attaullah Mengal and another 1999 SCMR 1921; Munir Hussain Bhatti and others v. Federation of Pakistan and another PLD 2011 SC 407; District Bar Association and others v. Federation of Pakistan and others PLD 2015 SC 401 and Civil Aviation Authority and others v. Supreme Appellate Court Gilgit Baltistan and others PLD 2019 SC 357 ref.

Sometimes an understanding evolves and develops till it reaches the deepest levels of the Constitution, touching as it were its innermost core and reaching a point where it seems veritably immutable. One can think here of the salient features doctrine, which is currently embedded in the understanding of the Constitution at its most fundamental level. But, in truth, neither time nor the nation nor the problems and questions that confront the country stand still. And so, it may be that jurisprudentially speaking from time to time a constitutional "tipping point" is reached, and a new understanding arises. Precisely because it is a constitution that is being interpreted (i.e., expounded) the constitutional understanding of today is linked to the past but is not (and cannot be) shackled by it.

A constitution lays down principles for the "expanding future" and not rules for the "passing hour". Its provisions must not be read in any narrow or pedantic manner; to be bogged down by "details and particulars" is to "harden" and "contract" its meaning and interpretation. A constitution must remain true to its function, retaining its suppleness and the "power of adaptation".

The Nature of the Judicial Process (1921) by Justice Cardozo, pp. 82-85 ref.

(c) Constitution of Pakistan---

---Art. 17(2)---Fundamental right of citizens to form or be a member of a political party---Scope---Political parties so established are themselves right-holders in terms of Article 17(2) of the Constitution, having the benefit of the bundle of rights encompassed in the said Article in their own right and not simply as placeholders for their members for the time being---Furthermore, the rights so bundled [in Article 17(2)] inhere in each political party in equal measure---Constitutional requirement, necessary for the proper functioning of the system of parliamentary democracy, that there be a plurality of political parties who are competitors and rivals for political power on a cyclical basis, is duly reflected in, and is an integral aspect of, Article 17(2) of the Constitution---Proper understanding of Article 17(2) of the Constitution stated.

Once a political party had been formed (i.e., the mechanics of its creation achieved), the substantive bundle of rights enshrined in Article 17(2) of the Constitution were then to be carried forward by and through the political party itself. In other words, a political party was more-much more-than merely the sum of its parts, being the members thereof. It transcended the members, and thus it was the political party itself that was entitled to, and held, the fundamental rights enshrined in Article 17(2). The said provision contemplates two sets of fundamental right-holders. One is the citizens, who have the fundamental right to form and/or be members of a political party of their choice. But the other is the political party itself. Rights, inherent in and of the very essence of Article 17(2), inhere in the political party itself as the right-holder and not in its members for the time being. The party is no placeholder for the members. It holds the rights under Article 17(2) in its own right.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

In respect of the rights contemplated by Article 17(2), it is the political party itself that is the right-holder. Such rights are a composite or bundle which is, in essence, aimed at one goal or objective. It is, to put it simply, the pursuit, acquisition, retention and exercise of political power. That such pursuit, etc is to be done by constitutional and lawful means is a given. That political power is not, and cannot be, an end in itself but rather a means to a greater goal and objective, namely the ability of the political party to implement its program for the welfare of the people and well being of the country (usually, but not necessarily, as set out in the manifesto published before a general election), is also a given.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

The fundamental right under Article 17(2) is of, and for, the political party to contest elections in its capacity as such, and win the mandate of the electorate in such measure, great or small, as the people are willing to grant it, thereby being in a position to have its candidates returned to the Assemblies, both National and Provincial.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

The role that the Constitution contemplates for political parties, is for them to be institutions, and not mere associations. And such institutions are to exist and last across decades if not generations, and not merely flicker into life momentarily and then disappear, perhaps having a lifespan no more than the political life of the founder(s).

The rights envisaged by Article 17(2) inhere in each political party in equal measure. Whether the right-holders are whales or minnows, in this sense at least the Constitution requires equality.

The constitutional requirement, necessary for the proper functioning of the system of parliamentary democracy, that there be a plurality of political parties who are competitors and rivals for political power on a cyclical basis, is duly reflected in, and is an integral aspect of, Article 17(2).

(d) Constitution of Pakistan---

----Arts. 17(2) & 63-A---"Healthy" operating of political parties---Scope---Defection of Parliamentarians---Effect---Defections tend to demolish the "healthy" political competition and rivalry that is a sine qua non for Article 17(2) of the Constitution---Defections are an attack on the integrity and cohesion of the political parties, and represent in an acute form the unconstitutional and unlawful assaults, encroachments and erosions which constitute a direct negation and denial of the rights encompassed in Article 17(2)---Defection in the ranks of a political party, and especially from amongst the members of its parliamentary party, tends to disrupt it from within---Again, this affects and attacks its cohesion and coherence and ability to be, and act as, a political party---Important facet of the application of the fundamental right under Article 17(2) is that defections are dealt with strongly, comprehensively and proactively.

It is inherent in the nature of Article 17(2) of the Constitution that there be a "healthy" operating of political parties. This is an aspect that is to be understood comprehensively and not treated in a narrow or pedantic manner. The "healthy" operating of a political party within the meaning of Article 17(2) has both an internal and an external aspect. The internal aspect pertains to matters within a political party whereas the external aspect relates to those that apply across the spectrum to, and among, all the political parties for the time being. The former is intra- while the latter is inter-party. But in each case, the requirement is that there be a "healthy" operating.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

The constitutional requirement of "healthy" operating, as an integral aspect of the fundamental right in terms of Article 17(2), never ceases to apply. It continues to operate-as it necessarily must- in its external aspect throughout and, in particular, in relation to the legislative and executive arenas. Defections (of Parliamentarians) are the antithesis of this aspect of the fundamental right. Each political party is in equal measure entitled to the bundle of rights comprised in Article 17(2). Defections tend to disrupt, if not destroy, this balance, which must at all times exist among political parties as they operate under the Constitution. It tends to demolish the "healthy" political competition and rivalry that is a sine qua non for Article 17(2). The parties may not be equal in practice but they are always equal in the eyes of the Constitution. Defections are an attack on the integrity and cohesion of the political parties, and represent in an acute form the unconstitutional and unlawful assaults, encroachments and erosions which constitute a direct negation and denial of the rights encompassed in Article 17(2). There can be no "healthy" operating of, and among, the parties in the external aspect if defections are not thwarted and defeated. Indeed, the degradation-if not outright destruction-of "healthy" operating of parties in this manner is how and why the political bedrock established by the Constitution can become destabilized and parliamentary democracy itself delegitimized.

Kh. Ahmad Tariq Rahim v. Federation of Pakistan and others PLD 1992 SC 646 ref.

Similar considerations apply in relation to the internal aspect of the "healthy" operating of political parties. A defection in the ranks of a political party, and especially from amongst the members of its parliamentary party, tends to disrupt it from within. Again, this affects and attacks its cohesion and coherence and ability to be, and act as, a political party. It compromisesperhaps fatally so-the "health" of the political party; at the very least, it disables its "healthy" operating during the election cycle in which it occurs. Defections attack and undermine Article 17(2) at its very root. Howsoever viewed, defections (and, again, especially of the parliamentarians who comprise a political party's parliamentary party) badly damage and can fatally compromise (at the very least, and almost certainly, during the ongoing election cycle) the "healthy" operating of political parties in all aspects of this requirement of the fundamental right that is set out in Article 17(2). Defections are a near absolute negation of this fundamental right. It is inherent in the very nature of Article 17(2) that it can be properly understood, if, and only if, it is applied in a strongly anti-defection manner that, if possible, deals (as it were) a deathblow to this evil and menace in all its manifestations. Put differently, it is hardwired into the very structure and design of Article 17(2). It is an important facet of the application of this fundamental right that defections are dealt with comprehensively and proactively.

(e) Constitution of Pakistan---

----Arts. 17(2) & 63-A(1)(b)---Disqualification on grounds of defection, etc.---Intertwinement of Articles 17(2) & 63A of the Constitution---"Healthy" operating of political parties---Scope---Parliamentarian votes or abstaining from voting in the House contrary to any direction issued by the parliamentary party to which he/she belongs---Consequences---Vote cast by such Parliamentarian is to be disregarded, as it is only in this way that the external aspect of the "healthy" operating of political parties will be maintained---Balance among the political parties will not be disturbed and they will continue to compete and vie for political power in the manner required by Article 17(2)---Defector's vote is to be disregarded immediately and automatically once the member in default has cast his vote against the direction of the parliamentary party---No other act, resolution or direction is required---Any conscientious objector in a party can resign at any time to register his dissent and disagreement, instead of defecting, which was disruptive of, and dangerous for, the functioning of the constitutional system.

Being an expression in the constitutional text itself of certain aspects of the fundamental right enshrined in Article 17(2) of the Constitution and therefore intertwined with it, Article 63A attains full meaning and effect only when it is applied in the shade of the former and takes colour from it. In other words, the elements and characteristics of the former must find expression in the latter. The internal and external aspects of the "healthy" operating of political parties, are an integral feature of Article 17(2), and part of a proper understanding of its design and function. And this also leads directly to the strongly anti-defection manner in which this Article is to be applied. Article 63A can only be properly understood and fully applied if it marches hand in hand with Article 17(2); the latter is to be mirrored in the former.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

Chosen representatives whether they are members of the parliamentary parties of the political parties, or independents, must display, and adhere to, qualities of honesty, trustworthiness, guardianship, knowledge and skill, as being the necessary attributes of persons holding public office involving trust and responsibility. Defections directly negate these qualities. Indeed, it can be said that the one who defects or attempts to do so (or seeks to engineer or bring about a defection) expresses contempt for these qualities. Thus, defections undermine and damage the normative moorings of the Constitution and can inflict a deathly blow to its foundational principles.

If a parliamentary party gives a direction in terms of Article 63-A(1)(b) of the Constitution and a member thereof votes contrary to the same then viewing the matter from the perspective of Article 17(2)) two pathways immediately open within the folds of Article 63A. One is provided by the bare text of the provision. This pathway leads, if the Party Head so decides, to a formal declaration of defection against the member in default and, subject to the remaining clauses, to his de-seating. He is removed from the parliamentary party (and may well also be expelled from the political party). The bare text, and hence the first pathway, relates to the internal aspect of the "healthy" operating of a political party. A defector has been removed from the ranks of a party, i.e., it has been (internally) cleansed. But in the context of Article 17(2) this is not the whole solution because it does not address the real problem. The real problem is not the sullying of the ranks of a party by the continued presence of a defector. It is the vote cast, and the "external" effect of the vote. Until that is addressed, one aspect of the crucial requirement of the "healthy" operating of political parties remains unaddressed and unresolved. This is the reason why a second pathway also opens (and must open) within the folds of Article 63A on a true and proper understanding of it. For much more crucial than the internal aspect of the "healthy" operating is the external aspect. The defector's proscribed vote seeks to disturb, and materially and adversely alter, the balance among the political parties, which must necessarily be maintained if they are to compete and vie for political power in the manner contemplated by Article 17(2). Whether it actually has the effect, in a given situation, of so disturbing and adversely affecting the balance is not decisive; the mere attempt or possibility is enough. The vote of the member in default is to be disregarded. It is only in this way that the external aspect of the "healthy" operating of political parties will be maintained. The balance among the political parties will not be disturbed. They will continue to compete and vie for political power in the manner required by Article 17(2). In this context it is important also to keep in mind that the second pathway opens and becomes applicable immediately and automatically once the member in default has cast his vote against the direction of the parliamentary party. No other act, resolution or direction is required. The second pathway self- activates.

The deterrent effect of the second pathway is not just on the member contemplating defiance of the direction. It acts also on those external forces or parties which may seek or attempt to engineer, or hope for, such defiance. A defector seeks, to flourish and enjoy all the worldly gains. That flourishing and enjoyment is invariably provided (or at least promised) by those who stand to gain from the effect of the vote cast in defiance of the parliamentary party's direction. But if the vote is to be disregarded as per the second pathway, and this is immediate and automatic, that is a huge deterrence to, and disincentive against, even trying to induce or seek or engineer the casting of the vote in defiance.

A point strongly pressed in the present case was the position of the 'conscientious objector'. It was contended that his right to dissent from and disagree with the party position, and to publicly record and register such dissent and disagreement by casting a proscribed vote, could not be affected in any manner, as it would if, e.g., his vote were to be disregarded. Although the hearings of present case stretched over several dates, no example-not one-was ever given of an actual, real life conscientious objector who took the path of defection and de-seating under Article 63A. The Article has been part of the Constitution now for a quarter of a century, but not a single conscientious objector was identified. Keeping in mind our constitutional and political history it can therefore be said that the "issue" of the conscientious objector is essentially an artificial construct. A conscientious objector can in any case resign at any time to register his dissent and disagreement. It was never explained, why it had to be the case that he had to be allowed to act in a manner disruptive of, and dangerous for, the functioning of the constitutional system.

Another argument presented was that if a proscribed vote cast contrary to a direction of the parliamentary party were to be disregarded that would lead to an elective dictatorship inasmuch as the Prime Minister or Chief Minister (as the case may be) could never be removed from office (through a vote of no confidence). Such argument is based on a false premise: that the casting of a vote and the counting of it are one and the same thing. This is not so at all. That a vote is to be counted individually does not mean that it can (or must) therefore necessarily be cast in such manner. If that were so, it would be wholly destructive of the system of our parliamentary democracy, based as is it on political parties. The constitutional players in our system are the political parties. It is they, and not the individual members thereof who may be the candidates put up for election, who in terms of the fundamental right enshrined in Article 17(2) seek to pursue, acquire, retain and exercise political power. Of course, individuals-the so-called "independents"-can and certainly do contest elections, but constitutionally speaking they are very much regarded as the fringe in the ordinary course of things. Parliamentarians-the returned candidates-form the parliamentary parties which are the reflection in the legislative arena of the political parties. The majority party (or combination or alliance) forms the Government of the day. All of this, and the ensuing business in the legislative and executive arenas throughout the relevant election cycle, can only happen if the parliamentarians vote along party lines. For all of this to happen smoothly and as constitutionally required, the casting of votes is, and has to be, on party lines and not otherwise. In this sense, the individuality of the member is to be subsumed in the party position. To hold otherwise is to sound the death-knell of our system of parliamentary democracy. No Government-formed, as it must be, on a party basis-would ever be able to carry out its legislative or executive agenda if, for each vote to be cast in a House/Assembly, it has to forever run after its parliamentarians. Nor, for that matter, would any Opposition be worth the name in such a situation. Howsoever votes are to be counted, their casting is a different thing altogether. One cannot be misled or beguiled by the former into an incorrect understanding of the Constitution regarding the latter.

The power to give a direction in terms of Article 63A vests in the parliamentary party and not the Party Head. If the latter, as Prime Minister (or Chief Minister in equivalent circumstances) loses the confidence of his party-more precisely the majority of the members of the parliamentary party-but refuses to make way for another leader to emerge, he may well face a vote of no confidence, or even be called upon by the President to take a vote of confidence under Article 91(7) (or, as the case may be, the Governor under Article 130(7)). If such a vote is called the parliamentary party which, acts by majority decision may then refuse to issue the direction under para (b) of clause (1) of Article 63A. The parliamentarians would be free to cast their votes without the Article being triggered and the vote of confidence may well fail to carry, or the vote of no confidence may well succeed (as the case may be). Either way, the so-called "elective dictator" would cease to hold office.

(f) Constitution of Pakistan---

----Art. 63-A(1)(b)---Disqualification on grounds of defection, etc.---Parliamentarian votes or abstaining from voting in the House contrary to any direction issued by the parliamentary party to which he/she belongs---Parliamentary party has the power to issue such direction---Parliamentary party cannot delegate, transfer, assign or in any manner "outsource" the power conferred on it in terms of para (b) of clause (1) to Article 63A of the Constitution to anyone, including the Party Head.

The parliamentary party may issue a direction in terms of para (b) of clause (1) to Article 63A of the Constitution. Said Article has conferred a discretionary power in the Party Head as to whether the matter is to be taken further to a declaration of the member in default as a defector and his de-seating. The parliamentary party cannot delegate, transfer, assign or in any manner "outsource" the power conferred on it in terms of para (b) to anyone, including the Party Head. Nor can it act merely at the behest or on the dictate of another. In constitutional terms, it is for the parliamentary party itself to decide whether the direction is to be issued. In practice of course, in most situations it may well be that the position of the parliamentary party on the one hand and the controlling organs of the political party including the Party Head are aligned so that in most cases it may not even be necessary for the formal issuance of a direction.

(g) Constitution of Pakistan---

----Art. 63-A(1)(b)---Disqualification on grounds of defection, etc.---Parliamentarian votes or abstaining from voting in the House contrary to any direction issued by the parliamentary party to which he/she belongs---Manner and procedure by which a direction for purposes of Article 63A(1)(b) of the Constitution, if a decision in this regard is taken by a parliamentary party, is to be arrived at and communicated to members of the party stated.

An important point that needs to be addressed is as to how the direction for purposes of para (b) of clause (1) to Article 63A of the Constitution, if a decision in this regard is taken by a parliamentary party, is to be arrived at and communicated. A decision in terms of either of the paras of clause (1) of Article 63A, whether by a parliamentary party to issue a direction or the Party Head to proceed to the making of a declaration of defection, cannot be regarded simply as the exercise of a legal power in quite the same manner as the conferment of a statutory power on an authority or forum. The reason is that a decision under Article 63A has necessarily a strong political element to it. Furthermore, especially in relation to an election or a vote of confidence or no-confidence, the political situation may be fluid and change by the hour. The decision to exercise the power may have to be taken on the spur of the moment. Therefore, it may not be appropriate to insist on the full panoply of procedural formalities and requirements that usually attend to the exercise of a statutory power. Of course, to an extent clause (1) itself (in its proviso) lays down certain procedural requirements, and these are clearly intended to be of a mandatory nature. However, some care must be taken before insisting on other such requirements or formalities such as, e.g., the holding of a meeting of the parliamentary party before it takes a decision to issue a direction or an insistence that the internal procedures of the political party, if any, be rigidly followed. What is clear is that the parliamentary party of a political party in an Assembly is a well defined body, known to all concerned. Since it is a body of parliamentarians, any decision in terms of para (b) must have the support of (at least) the bare majority of the parliamentary party. The taking of the decision and its communication may therefore be established in such credible manner as satisfies the forum concerned, and it would not be appropriate to lay down any hard or fast rule in this regard. The totality of the circumstances in each actual situation must be kept in mind and given due weight and regard. However, for guidance the following procedure may be suggested. A copy of the direction, duly supported by the signatures of the majority of the parliamentary party, should be deposited with the secretariat of the Assembly/House by or before the time it takes up for voting the matter to which it relates. While notice ought also to be given to the members of parliamentary party of the direction through any feasible means (including modern communication and messaging facilities), the deposit of the same in such terms will be deemed notice to them all. In any case it should at all times be regarded as the responsibility of a member of a parliamentary party to satisfy himself, before voting or abstaining to vote on any matter covered by Article 63A(1)(b), whether his party has (or has not) issued a direction in terms thereof.

(h) Constitution of Pakistan---

----Art. 63-A(1)(b)---Disqualification on grounds of defection, etc.---Parliamentarian votes or abstaining from voting in the House contrary to any direction issued by the parliamentary party to which he/she belongs---De-seating of member in default---Procedure---Pathway to de-seating the member in default does not self-actualize and become automatically operational---Member in default, who cast the proscribed vote, is not ipso facto de-seated---Article 63-A(1)(b) of the Constitution has placed a "gateway" along this pathway, which is to leave it to the discretion of the Party Head whether to proceed to making a declaration of defection, which must precede the de- seating---So, it could be that the "gateway" never opens and the member in default continues to remain a parliamentarian and part of the parliamentary party concerned.

(i) Constitution of Pakistan---

----Arts. 17(2), 63(1)(p), 63-A, 184(3) & 186---Disqualification on grounds of defection, etc.---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, first, as to what was the proper approach to be taken for the interpretation and application of Article 63A of the Constitution?; second, 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?; third, whether a Member finally declared to have committed defection in terms of Article 63A stands disqualified for life?; and fourth, 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 provided.

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. A member who casts a proscribed vote is de-seated and he can seek re- election in the bye-election. If he chooses to contest the same, he may do so as an "independent" or even on the ticket of those who sought, engineered, welcomed, brought about and/or rewarded the defection. If he loses then the ensuing humiliation is also a punishment of sorts, both for the defector and his puppeteers. However, the cyclical nature of the electoral process must also be taken into consideration. To impose a lifetime ban is to remove the defector for all cycles to come. Since Article 63(1)(p) confers the necessary competence on Parliament, the matter is best left to the legislature. 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.

Per Mazhar Alam Khan Miankhel, J; dissenting with Munib Akhtar, J.

(j) Interpretation of Constitution---

----Purposive interpretation---Principles relating to interpretation of the Constitution stated.

While interpreting the provisions of the Constitution, the safe and most sound approach is to read the words of the Constitution in the light of the avowed purpose and spirit of the Constitution so that it does not result in an illogical outcome which could have never been the intention of the Constituent Assembly or of the Parliament while exercising its constituent power. Therefore, a Court, while adhering to the language employed in the provision, should not abandon the concept of the intention, spirit, the holistic approach and the constitutional legitimate expectation which combinedly project a facet of purposive interpretation.

The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document.

Dred Scott v. Sanford 60 U.S. (19 How.) 393 (1857); Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934); McCulloch v. Maryland 17 US (4Wheat) 316 (1819); State v. Superior Court (1944) at 547; Gompers v. US 233 (1914); Hunter v. Southam Inc [1984] 2 SCR 145; Kalpana Mehta and others v. Union of India (UOI) and others AIR 2006 SC 3127; Manoj Narula v. Union of India (2014) 9 SCC 1; Padmasundara Rao (dead) and others v. State of Tamil and others (2002) 255 ITR 147 (SC); Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 ref.

The Constitution should be read as a whole giving every part thereof a meaning consistent with the other provision of the Constitution. As far as possible each provision of the Constitution should be construed so as to harmonize it with all others and not destroy it. In the interpretation of the Constitutional provision the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the same should have effect. An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.

Strict and faithful adherence to the words of the Constitution, specially so where the words are simple, clear and unambiguous is the rule. Any effort to supply perceived omissions in the Constitution being subjective can have disastrous consequences.

Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court PLD 2021 SC 391 ref.

(k) Interpretation of statutes---

----Penal provision---Such provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intendment.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan and others PLD 1998 SC 1263 ref.

(l) Constitution of Pakistan---

----Arts. 55, 63(1)(p), 63-A, 95, 136 & 186---Disqualification on grounds of defection, etc.---Reference by the President under Article 186 of the Constitution, seeking interpretation of Article 63-A of the Constitution---Questions posed in the Reference by the President were, first, as to what was the proper approach to be taken for the interpretation and application of Article 63A of the Constitution?; second, 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?; third, whether a Member finally declared to have committed defection in terms of Article 63A stands disqualified for life?; and fourth, 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 His Lordship to the questions posed in the Reference provided.

The entire provision of Article 63A of the Constitution is very plain and simple and there is nothing therein which could hardly need any interpretation other than what its language provides. It's a complete code in itself, which provides a comprehensive procedure regarding defection of a member of Parliament. It does not admit interpretation.

From a bare perusal of the reference, it transpires that the same is founded on the preconceived notion that every member who abandons his party or who disagree with the desire of the party head particularly in matters as enumerated under clause 1(b) of Article 63A of the Constitution would be dishonest and has committed 'Khyanat' for some monetary gain or material consideration. Any interpretation or opinion on this presumption would be destructive of intention of the Constitution makers. Moreover, the argument on behalf of the President that a robust, purpose oriented and meaningful interpretation of Article 63A which visualizes this provision as prophylactic enshrining the constitutional goal of purifying the democratic process, inter alia, by rooting out the mischief of defection by creating deterrence, inter alia, by neutralizing the effects of vitiated vote followed by lifelong disqualification for the member found involved in such constitutionally prohibited and morally reprehensible conduct is not tenable under the law. A member, cannot be held disqualified for life on the ground of his defection under Article 63A of the Constitution merely through the process of interpretation as proposed or expected by the President. It would amount to re-writing or reading in "a penal" phrase in a Constitutional provision and would also affect other provisions of the Constitution. The first question is answered in the negative accordingly.

Coming to the second question of the reference, it revolves around the consequences of defection on the vote being cast by the defector. The counsel for the President asserted that where a member engages in constitutionally prohibited and morally reprehensible act of defection he cannot claim a vested right to have his vote counted and given equal weightage, and as such his vote should not be counted. Article 55 of the Constitution contemplates that all the decisions of the National Assembly shall be taken by majority of the members present and voting. Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well. For such reason, it is not possible to agree with the majority opinion that 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. It is not understandable as to how the vote (being cast contrary to the direction of the Parliamentary Party in a House), on the basis of which he would be proceeded against for defection, would not be counted in the absence of an express provision of the Constitution. If, for the sake of arguments, the Article 63A is interpreted in the way as suggested by the President then any formal session of House for voting in the matters enumerated in para (b) of clause (1) of Article 63A would not be required because it is a matter of record that how much votes a Party Head has had in the House and as such the Party Heads or any one authorized by them alone can cast all the votes on behalf of others.

Black's Law Dictionary by Henry Campbell Black, M.A (Sixth Edition) at p. 1576 ref.

Article 63A of the Constitution does not prohibit any member of a House from violating the direction issued by a Parliamentary Party to which he belongs. All that Article 63A prescribes is that when such a direction is violated by a member he incurs disqualification for continuing as a member of the House. The Parliament could as well have declared that such an act of voting (which attracts the consequence of termination of the membership of such a member) should also be ignored for the purpose of deciding the issue on which the voting took place. But it did not. Moreover such an interpretation would render the provisions of the Articles 95 and 136 (vote of no-confidence against Prime Minister and Chief Minister) as redundant as no resolution for no-confidence would ever succeed. The second question is thus answered in the negative.

Through the third question, it has been stressed that a member who could but did not hear the voice of his conscience by resigning from his existing seat in the Assembly and has been finally declared to have committed defection after exhausting the procedure prescribed in Article 63A including appeal to the Supreme Court, he can no longer be treated to be sagacious, righteous, non-profligate, honest and ameen and, therefore, stands disqualified for life. The object, sought to be achieved by Article 63A, is to ensure loyalty of the members to a political party. It was a remedy, which the Parliament sitting as Constituent Assembly, thought fit to provide in order to curb the evil of widespread practice of unprincipled floor crossing motivated by the concerns of personal benefit. The Parliament could as well have declared that the defector no longer be treated to be sagacious, righteous, non-profligate, honest and ameen and, therefore, stands disqualified for life. But it did not. For such reason it is not possible to agree with the majority view of

the present cast that 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. Article 63A itself provides penal consequences for defection and a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intendment. The third question is, therefore, answered in negative.

The fourth question referred to the Supreme Court is too general in nature. Answering this question would be against the doctrine of separation of powers and would be contrary to the provisions of the Constitution. The legislature is fully competent to enact laws on the subject keeping in view all the necessities to curb, deter and eradicate the practice of defection. The fourth question is, therefore, answered in negative.

Per Jamal Khan Mandokhail, J; dissenting with Munib Akhtar, J. [Minority view]

(m) Interpretation of Constitution---

----Principles relating to interpretation of the Constitution stated.

The interpretation of the Constitution should be in accordance with the intent, desire and wisdom of the Legislatures. It is the obligation and job of the Court to carry out the Constitution's intent. It should not be in a manner to change its object, purpose and meaning. The need of interpretation of any provision of the Constitution arises when such provision or words in it are vague and ambiguous. If the words of the provision of the Constitution are clear, precise and free from ambiguity, there is no need to interpret it in a manner, to change its plenary and normal meaning. Similarly, when a procedure for doing a particular act is prescribed by the Constitution, it is not for the Courts to substitute it with a different one on the pretext of purposive interpretation. The Judges while interpreting any provisions of the Constitution should limit themselves to a fair reading of the words of the Constitution and the intention of its framer, and no more. Otherwise, Judges enter the realm of creating, not just interpreting the Constitution.

Any amendment, addition or deletion in the Constitution is the sole power and authority of the Legislature to be exercised within the Parliament, keeping in view the basic structure of the Constitution. Thus, the Judges have no authority to assume the role of the Parliamentarians and to replace their wisdom by amending the Constitution.

(n) Constitution of Pakistan---

----Arts. 62(1)(f), 63-A, 95 & 186---Disqualification on grounds of defection, etc.---Reference by the President under Article 186 of the Constitution, seeking interpretation of Article 63-A of the Constitution---Questions posed in the Reference by the President were, first, as to what was the proper approach to be taken for the interpretation and application of Article 63A of the Constitution?; second, 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?; third, whether a Member finally declared to have committed defection in terms of Article 63A stands disqualified for life?; and fourth, 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 His Lordship to the questions posed in the Reference provided.

Every member is supposed to be loyal to the political party to which he belongs, but he has a constitutional fundamental right of freedom of speech and expression to be exercised through vote, subject to reasonable restrictions, in the interest of his electorates. Vote in the Parliament is not the fundamental right of the party, rather is a fundamental right of a member, to be exercised in the interest of people. The performance of a Parliamentarians is always under strict scrutiny and on the basis thereof, in every forthcoming election, the electorate decides the fate of the elections of the members of their respective constituencies. Under such circumstances, in case of choice between the interest of the party and that of the constituency, the member mostly prefers the interest of the constituency, and in doing so may cast his vote against the party's decision.

Except for the consequence of de-seating of the member, provided by Article 63A of the Constitution, there is no bar in the Constitution on a member to vote against the parliamentary party's directions. The act of a Parliamentarian of voting or abstaining from voting in the circumstances enumerated in Article 63A of the Constitution, contrary to his parliamentary party's directions, has not been considered as ultra vires to the Constitution, nor against the injunctions of Islam, hence cannot be considered as 'Khayanat'.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

Article 63A of the Constitution does not provide disqualification of a member and restraining him from contesting elections for any period. The Constitution permits every member to cast his vote freely and according to his conscience, subject to reasonable restrictions. A defector is ready and willing to pay the price for defection, therefore, the right of the political party stands protected to award its symbol to any person to contest by-election. The first question in the reference is answered in the negative.

Moving onto the second question, according to Article 95 of the Constitution every member of the National Assembly is free to cast his vote in favour of the resolution of no confidence moved against the Prime Minister, irrespective of his party affiliation and directions. The said Article mandates that the fate of the resolution against the Prime Minister and his office shall be decided, upon counting of the votes so cast by the members of the National Assembly. Under such circumstances, the proposal of the President to exclude from counting any vote so cast, makes no sense, as there is no restriction in the Constitution upon counting of the votes so cast. The only consequence upon casting or abstaining from casting vote of a member is prescribed in Article 63A of the Constitution.

Legislature while enacting the provision of Article 63A of the Constitution, has taken care of the fundamental constitutional right of vote of the Parliamentarians and at the same time tried to put a check upon members of the National Assembly to avoid frequent floor-crossing. Under Article 95 of the Constitution, the moment the votes are cast by the members of the House, the fate of the resolution against the Prime Minister is decided on the day of voting. To the contrary, Article 63A of the Constitution is a complete code in itself, which provides a comprehensive procedure regarding defection of a member of the National Assembly. It takes considerable long time to complete the process upto the decision upon an appeal filed by the aggrieved party before the Supreme Court. Had the intention of the constitution-makers been to disregard or exclude vote of a member from counting, then the result of the resolution of vote of no confidence would have been subject to the outcome of the proceedings enshrined in Article 63A of the Constitution, which is not so. Thus, it is not the intent of the Legislature to put a bar upon the fundamental right of casting vote or excluding it from counting. The second question in the reference is answered in the negative.

Coming to the third question, Article 62(1)(f) of the Constitution provides that a person shall not be qualified to be elected or chosen as a member of Majlis e Shoora, unless he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law. The said provision of the Constitution in clear terms describes that only upon a declaration from a competent court of law, someone can be considered as such.

Imran Khan Niazi v. Mian Muhammad Nawaz Sharif PLD 2017 SC 265; Sami Ullah Baloch v. Abdul Karim Nousherwani PLD 2018 SC 405 and Roshan Ali Buriro v. Syed Murad Ali Shah 2019 SCMR 1939 ref.

Declaring someone as disqualified for any period to become a member of the Parliament is a penalty, depriving him of his constitutional rights. Without declaration by a competent Court of law after adopting due process through fair trial, determining any right and obligation of a person would be against his fundamental right guaranteed by the Constitution. In a democratic system, there is always a difference of opinion and every member has a right to dissent and debate in order to put a check upon the working and decisions of the party and its head. Merely on the apprehension that a member has betrayed his party and thereby depriving him from his right of expressing views and the right of dissent, will be against the basic concept of democracy enshrined in the Constitution. Thus, simply on the declaration of a party head, determining the constitutional and fundamental right of a member, without adopting due process and fair trial, he cannot be treated to be no longer as sagacious, righteous, non-profligate, honest and ameen. This will also amount to giving unbridled power to the Prime Minister, which will result in creating a culture of civil dictatorship. No member will then have a right to remove the Prime Minister, even if the latter himself remains no longer as sagacious, righteous, non-profligate, honest and ameen or if his policies are against the State, the Constitution, the interest of the constituents, the injunctions of Islam or even contrary to the party manifesto. For these reasons, the constitution-makers intentionally did not include the word "disqualification" of a member for any period of time in Article 63A of the Constitution. The third question in the reference is answered in the negative.

Finally with regard to the fourth question in the reference, by inserting Article 63A into the Constitution, the constitution-makers have already suggested preventive measures in the cases of crossing the floor. The Parliamentarians considered the de-seating of a defecting member of the Parliament, elected on a party's symbol as sufficient and reasonable restriction in order to discourage the frequent floor-crossing. Therefore, whatever measures are suggested by the Parliamentarians in the Constitution, they are sufficient according to their wisdom, as such, no other measure, contrary to the provisions of the Constitution, can be suggested by any outsider. It is the authority of the Parliamentarians, who may reconsider the consequences of defection, on the touchstone of morality and ill-intention of members. The fourth question in the reference is answered in the negative.

The questions posed by the President through the reference are of political nature, therefore, the same cannot be replied in a manner proposed by him. In view of the principle of trichotomy of powers, it is not desirable for the Supreme Court to engage itself in resolving sensitive political issues.

For Federation

Ashtar Ausaf Ali, A.G.P., Khalid Javed Khan, A.G.P. (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 and M. Ibrahim Khan, Advocate.

For PTI

Ali Zafar, Advocate Supreme Court and 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) and Anis M. Shahzad, Advocate-on-Record.

For PPPP

Farooq H. Naek, Senior Advocate Supreme Court, Mian Raza Rabbani, Senior Advocate Supreme Court, assisted by Zeeshan Abdullah, Advocate.

For JUI(P)

Kamran Murtaza, Senior Advocate Supreme Court and 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 and 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 and Ms. Zoe Khan, Advocate.

For NA

Abdul Latif Yousafzai, Advocate Supreme Court, Tahir Hussain, Sec. NA and M. Mushtaq, Addl. Sec.

For PML (Q)

Azhar Siddiqui, Advocate Supreme Court.

For Balochistan.

M. Asif Reki, AG amd M. Ayaz Sawati, Addl AG.

For ICT

Niazullah Khan Niazi, AG ICT.

For Khyber Pakhtunkhwa

Shumail Butt, AG KP, Atif Ali Khan, Addl. AG and Mian Shafaqat Jan, Addl. A.G.

For Punjab

Ahmed Awais, AG (Punjab) and Qasim Ali Chohan, Addl. AG Punjab.

For Sindh

Salman Talibuddin, AG Sindh and Fauzi Zafar, Addl. AG.

Hassan Irfan Khan, Advocate Supreme Court.

P L D 2023 Supreme Court 174

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

S.D.O./A.M., Hasht Nagri Sub-Division, PESCO, Peshawar and others--Petitioners

Versus

KHAWAZAN ZAD---Respondent

Civil Petition No. 1159 of 2019, decided on 6th December, 2022.

(Against the judgment of the Peshawar High Court, Peshawar, dated 11.02.2019, passed in Civil Revision No. 376-P of 2017).

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

----O. III, R. 1, O. IV, R. 1, O. VIII, R. 1, O. VI, Rr. 14, 15 & O. XXIX, R. 1---Suits by or against Corporations---"Signing/verifying a plaint" and "presenting/instituting a suit"---Distinction---Act of presentation of a plaint or a written statement can be done only by the plaintiff and the defendant in person or by their recognized agents or by their duly appointed pleaders, in terms of Rule 1 of Order III, C.P.C.---Rules 14 and 15 of Order VI, or Rule 1 of Order XXIX, C.P.C. which relates to signing and verifying the pleadings (plaint and written statement), cannot be referred to for the purpose of establishing the authority of a person to institute, or defend, the suit.

There is a difference between the signing and verifying a pleading (plaint or written statement) under Rules 14 and 15 of Order VI, or under Rule 1 of Order XXIX, C.P.C. and the presentation of that pleading to the court under Rule 1 of Order IV (plaint) and Rule 1 of Order VIII (written statement), C.P.C. The act of presenting a plaint to the court under Rule 1 of Order IV is called the institution of the suit, and the act of presenting a written statement under Rule 1 of Order VIII constitutes the defence of the suit. These acts manifest the will of a litigant to pursue his claim or to defend the claim made against him, in a court of law. By presenting the plaint, a plaintiff sets the machinery of the court in motion for deciding upon his claim while the presentation of the written statement expresses the will of the defendant to defend that claim. The act of presentation of a plaint or a written statement can, therefore, be done only by the plaintiff and the defendant in person or by their recognized agents or by their duly appointed pleaders, in terms of Rule 1 of Order III. Rules 14 and 15 of Order VI, or Rule 1 of Order XXIX, which relates to signing and verifying the pleadings (plaint and written statement), cannot be referred to for the purpose of establishing the authority of a person to institute, or defend, the suit.

G. M. Pfaff v. Sartaj Engineering Co. PLD 1970 Lah 184; Nadella v. Yamanoori AIR 1957 AP 172 and Shair Ali v. Jagmohan Ram AIR 1931 All 333 ref.

As the authority conferred by Rule 1 of Order XXIX, on the specified officers of the corporation to sign and verify any pleading on behalf of the corporation, does not include the authority to institute or defend the suit in their own names, a corporation being a juristic person must sue or be sued in its own name. Therefore, the name of the corporation, not the name or designation of any of its officers or employees, is to be mentioned as a plaintiff or a defendant. The phrase "service of summons/notice through its principal officer, so and so" may be added with the name of the corporation, for service.

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

----O. VI, Rr. 14 & 15 & O.XXIX, R.1---Suits by or against Corporations---Non-applicability of provisions of C.P.C. relating to signing and verification of pleadings to memorandums of appeal and revision petitions---Rules 14 and 15 of Order VI, as well as Rule 1 of Order XXIX, C.P.C. as to signing and verifying the pleadings (plaint and written statement) are not applicable to the memorandums of appeal and revision petitions.

A memorandum of appeal can be signed, as per Rule 1 of Order XLI, C.P.C. by the appellant or his pleader; so a revision petition can be signed by the petitioner or his pleader as the revisional jurisdiction is a part of the general appellate jurisdiction of a superior court and the provisions of the C.P.C. in regard to appeals are applicable mutatis mutandis to revision petitions. A memorandum of appeal or a revision petition can, therefore, be signed by a duly appointed pleader as per Rule 1 of Order XLI, and presented to the appellate or revisional court by him on behalf of the appellant or petitioner as per Rule 1 of Order III, C.P.C. Rules 14 and 15 of Order VI, as well as Rule 1 of Order XXIX, as to signing and verifying the pleadings (plaint and written statement) are, thus, not applicable to the memorandums of appeal and revision petitions.

Shankar Ramchandra v. Krishnaji Dattatreya AIR 1970 SC 1; Atta Muhammad v. Muhammad Bakhsh PLD 2004 Lah 300 and Saima v. Paramount Spinning Mills 2011 SCMR 1039 ref.

(c) Administration of justice---

----Rules of procedure---Procedural technicalities---Courts always lean in favour of adjudicating the matters on merits rather than stifling the proceedings on procedural formalities---Rules of procedure are meant to facilitate the court proceedings for enforcing the rights of litigants, not to trap them in procedural technicalities for frustrating their rights; they are the tools to advance the cause of justice and cannot be used to cause the miscarriage of justice---Ultimate object of securing the ends of justice, therefore, outweighs the insistence on strict adherence to such rules.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Manager, J&K State Property v. Khuda Yar PLD 1975 SC 678; Thal Engineering Industries v. Bank of Bahawalpur 1979 SCMR 32; Abdul Aziz v. Abdul Rahim PLD 1984 SC 164; Salima Begum v. Sardaran Bibi PLD 1995 SC 406; Mir Maza v. Azim PLD 1993 SC 332; Anwar Khan v. Riaz Ahmad PLD 2002 SC 491 and Muhammad Bashir v. Province of Punjab 2003 SCMR 83 ref.

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

----O.XXIX, R.1---Suits by or against Corporations---Suit filed by an unauthorized person---Curable defect---Any defect in the authority of a person to sign and verify a pleading filed in, or to institute or defend, such a suit or in signing and filing a memorandum of appeal or revision petition can be cured at a later stage of the proceedings.

Any defect or omission in signing and verifying, or presenting, a pleading (plaint or written statement) or a memorandum of appeal or revision petition does not affect the merits of the case or the jurisdiction of the court and is therefore taken to be such an irregularity which can be cured at any stage of the proceedings. Likewise, any defect in the authority of a person to sign and verify a pleading filed in a suit by or against a corporation, or to institute or defend such a suit by presenting that pleading to the court, or in signing or filing of a memorandum of appeal or revision petition by a corporation, can also be cured at any stage of the proceedings.

Nadella v. Yamanoori AIR 1957 AP 172; Basit Rice Mills v. Shaheen Insurance Company 2021 SCMR 1413; Rahat and Company v. Trading Corporation of Pakistan PLD 2020 SC 366; U.B.I. v. Naresh Kumar AIR 1997 SC 3 and Musicales v. Secunda (1994) 2 All ER 737 ref.

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

----S. 99 & O.I, R. 10---Misjoinder of parties---Curable defect---Misjoinder of parties is an error that does not affect the merits of the case or the jurisdiction of the court as provided in section 99, C.P.C., and is a procedural error which can be cured by striking out the names of such parties under Rule 10 of Order I, C.P.C. at any stage of the proceedings of the case, including the appellate or revisional stage.

Allah Ditta v. Muhammad Ali PLD 1972 SC 59; Ghulam Ahmad v. Akbar Hussain PLD 2002 SC 615 and Central Govt. v. Suleman Khan PLD 1992 SC 590 ref.

Asad Jan, Advocate Supreme Court (through video-link from Peshawar) for Petitioners.

N.R. for Respondent.

P L D 2023 Supreme Court 183

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

FEDERATION OF PAKISTAN through Ministry of Defense---Appellant

Versus

Mrs. AJMAL SAMIA (decd) through L.Rs. and others---Respondents

Civil Appeal No. 1621 of 2017, C.R.P. 50 of 2017 in C.M.A. 5782 of 2016 in C.A. No. 1621 of 2017, C.M.A. No. 1451 of 2017 in C.A. 1621 of 2017 and Civil Petition No. 5122 of 2017, decided on 11th January, 2023.

Constitution of Pakistan---

----Art. 100---Attorney-General for Pakistan, post of---Scope---Attorney-General for Pakistan is a constitutional post and it cannot be left vacant---Constitution makes no mention of an acting Attorney General---Neither a Deputy Attorney General nor an Additional Attorney-General is a substitute for the Attorney-General.

Raja Shafqat Abbasi, D.A.G. with Syed Usman Hassan, Sub-Registrar, Iftikhar Ahmed, Dy. MEO and Tariq Mehmood, Asstt for Appellant.

M. Shahid Kamal Khan, Advocate Supreme Court and Zulfikar Khalid Maluka, Advocate Supreme Court for Applicant (in C.M.A. No. 1451 of 2017).

Syed Qalb-i-Hassan, Advocate Supreme Court for Respondents Nos. 1(ii) and 1(iv).

Zulfikar Khalid Maluka, Advocate Supreme Court and Kamran Murtaza, Senior Advocate Supreme Court for Respondent No.3.

Muhammad Amir Malik, Advocate Supreme Court for Respondent No. 2.

Ch. Aamir Rehman, Additional Attorney-General for Pakistan on Court's Call.

P L D 2023 Supreme Court 185

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan and Ayesha A. Malik, JJ

MUHAMMAD IQBAL (deceased)---Applicant

Versus

AHMAD DIN (deceased) through his L.Rs. and others---Respondents

C.M.A. No. 1609-L of 2021 in C.R.P. No.NIL-L of 2021 in C.A. No.5-L of 2010, C.M.A. No.1610-L of 2021 in C.R.P. No.Nil-L of 2021 and C.M.A. No.586-L of 2022 in C.R.P. No. Nil-L of 2021 in C.A. No.5-L of 2010, decided on 30th December, 2022.

(Application for grant of permission to represent the petitioner).

(a) Supreme Court Rules, 1980---

----O. XXVI, Rr. 1, 6 & 8---Change of Advocate in a review petition---Special leave to substitute a counsel in a review petition is to be granted, only when appearance of the earlier counsel is not possible due to some unavoidable circumstances---Practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances, by the parties as well as by the Advocates representing them is condemnable---Scope of Order XXVI, Rule 6 of the Supreme Court Rules, 1980, regarding change of Advocate in a review petition stated.

Order XXVI of the Supreme Court Rules, 1980 ('the Rules') requires the same Advocate, who earlier appeared to argue the case, to draw up the review application and appear in support of it before the Court for certain reasons. It is because a review petition is not the equivalent of a petition for leave to appeal or an appeal where the case is argued for the first time. It is not the rehearing of the same matter. The scope of review application is limited to the grounds mentioned in Order XXVI, Rule 1 of the Rules. The Advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case. He being part of the hearing of the main case is fully aware of the proceedings that transpired in the Court leading to the judgment or order sought to be reviewed. He is the one who knows what was argued before the Court and what weighed with the Court in deciding the matter either way. It is also for the same reason that the review application is to be fixed before the same Bench that delivered the judgment or order sought to be reviewed, under Rule 8 of Order XXVI of the Rules. The same Advocate and the same Bench can best appreciate the grounds of review. A review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law. It is true that the requirement of "sufficient ground" for granting the special leave is not expressly stated in Rule 6, but this does not mean that the discretion of the Court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner. This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. The special leave to substitute a counsel in a review petition is to be granted, only when appearance of the earlier counsel is not possible due to some unavoidable circumstances. The practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances, by the parties as well as by the Advocates representing them is condemnable.

Federation of Pakistan v. Dr. Mubashir Hassan PLD 2011 SC 674; Messrs National Electric Co. v. Khalid Siddique PLD 2005 SC 405 and Tamil Nadu Electricity Board v. Raju Reddiar AIR 1997 SC 1005 ref.

(b) Supreme Court Rules, 1980---

----O. IV, Rr. 23, 24 & O. XXVI, Rr. 4, 6, 8---Change of Advocate in a review petition---Scope---Special leave to substitute a counsel in a review petition---In the present case, the ground pleaded for grant of the special leave was that the earlier counsel due to ill health and old age could not file the present review petition---Firstly, there was no medical certificate attached along with the NOC tendered by the said counsel besides the "old age" of the said counsel was also not specified---More importantly as per Order XXVI Rule 4 of the Supreme Court Rules, 1980 ('the Rules') there was no certificate given by the earlier counsel that review was justifiable in the present case---Further, the said application was silent regarding change of Advocate on Record (AOR)---Under Order IV Rule 23 of the Rules no person having an Advocate on Record shall file a power of attorney authorizing another Advocate on Record to act for him in the same case except with the consent of the former Advocate on Record or by leave of the court, unless the former Advocate on Record is dead or is unable by reason of infirmity of mind and body to continue to act---Nothing was available on record of present case to show why, AOR who had also appeared in the Civil Appeal had been replaced without furnishing her consent to such effect or without assigning any reason for her non-appearance as provided under Rule 23---Under Order IV, Rule 24 no Advocate on Record without leave of the court can withdraw from the conduct of any case---Application seeking permission under Order XXVI, Rule 6 of the Rules was not made out in the present case---No other ground was agitated before the Court for the change of the counsel or the AOR that would make out a case of grant of special leave to substitute the counsel for drafting, filing and arguing the review petition---No reason was furnished as to why AOR had been replaced, who had also appeared along with Advocate sought to be replaced in the order under review---Thus the application made under Order XXVI, Rule 6 of the Rules was rejected and consequently, the review petitions were not entertained.

Muhammad Tariq Bashir Awan, Advocate Supreme Court for Applicant/appellant.

Nemo for Respondents.

P L D 2023 Supreme Court 190

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

DEAN/CHIEF EXECUTIVE, GOMAL MEDICAL COLLEGE, MEDICAL TEACHING INSTITUTION, D.I. KHAN---Appellant

Versus

MUHAMMAD ARMAGHAN KHAN and others---Respondents

Civil Appeal No. 1474 of 2021, decided on 15th November, 2022.

(On appeal against judgment dated 01.06.2021 passed by the Khyber Pakhtunkhwa Medical Teaching Institutions, Appellate Tribunal, Peshawar in MTI Appeal No.25 of 2021).

(a) Constitution of Pakistan---

----Arts. 212(2), proviso & 212(3)---Provincial Service Tribunals (Extension of Provisions of the Constitution) Act (XXXII of 1974), S.2---Direct appeal to the Supreme Court from an order of a tribunal created by Provincial law---Question as to whether an appeal lies to the Supreme Court under Article 212(3) against an order of a tribunal created by a Provincial law to which the proviso to clause (2) of the said Article has not been made applicable?---Held, that an appeal to the Supreme Court under clause (3) of Article 212 of the Constitution against a decision of an Administrative Tribunal created by a Provincial law under clause (1) is possible if, and only if, clause (2) applies to the said Tribunal, i.e., it is covered by an appropriate resolution of the Provincial Assembly and consequent Federal legislation in terms of the proviso to clause (2)---Door to the judicial remedy provided by clause (3) opens if, and only if, clause (2) is applicable and not otherwise---In the case of a Tribunal set up by Provincial legislation this means that the route to clause (3) lies only through the proviso to clause (2)---Clause (2) and its proviso is the gateway to clause (3); the two must be read and applied together and not in isolation and as standalone provisions.

(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----Preamble---Sindh Service Tribunals Act (XV of 1973), S. 3-B [as amended by the Sindh Service Tribunals (Amendment) Act, 1991]---Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (VIII of 1991), Preamble---Balochistan District Judiciary Act (I of 2021), Preamble---Islamabad Subordinate Judiciary Service Tribunal Act (V of 2016)---Constitution of Pakistan, Articles 212(2), proviso & 212(3)---Appeal to the Supreme Court under Article 212(3) of the Constitution from orders of Tribunals in relation to District judiciaries in the Provinces and Federal Capital---Maintainability---Islamabad Subordinate Judiciary Service Tribunal Act (the 2016 Islamabad Act') presents no difficulties, as it is Federal legislation and clause (2) of Article 212 of the Constitution applies in relation thereto automatically---Door to clause (3) of Article 212 is therefore open---However, this is not so in respect of the Provincial legislation, being the Punjab Subordinate Judiciary Service Tribunal Act, 1991 ('the 1991 Punjab Act'), the Sindh Service Tribunals Act, 1973 ('the 1973 Sindh Act'), the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991 ('the 1991 KPK Act'), and the Balochistan District Judiciary Act, 2021 ('the 2021 Balochistan Act')---Position of the Tribunals (for subordinate judiciary) set up under the said laws is different in the sense that no appeal to the Supreme Court is (at present) maintainable under Article 212(3) against decisions of the said Tribunals---Directions issues by the Supreme Court in such regard stated.

Keeping in mind that leave petitions and appeals under clause (3) of Article 212 may well be pending from Tribunals not covered by the proviso to clause (2), and many such petitions and appeals appear to have been decided and disposed of in the past, the Supreme Court issued the following directions to regularize the matters:

(i) No appeal lies to the Supreme Court in terms of Article 212(3) of the Constitution against the decision of a Tribunal created by a Provincial law to which the proviso to clause (2) has not been applied. Any such leave petitions and appeals as are pending, being not maintainable, must be returned forthwith by the Office and no such leave petitions are to be entertained in future;

(ii) Nothing in para (1) above applies in relation to the following:

• Leave petitions and/or appeals that already stand decided or disposed of (including by way of having been withdrawn or remanded or otherwise dealt with), whether by way of a detailed judgment or a short order whether announced orally or in writing and regardless of whether in respect of any such matter detailed reasons are awaited, all such matters beingregarded as past and closed;

• Leave petitions and/or appeals in which judgment is reserved, unless the concerned Bench directs otherwise;

• Leave petitions and/or appeals that are part heard, unless the Bench concerned directs otherwise; and

• Such pending leave petitions and/or appeals as may be directed by the Chief Justice.

(iii) A litigant to whom a leave petition or appeal has been returned in terms of para (i) or by reason of anything contained in para (ii), and who chooses or wishes to avail another remedy before any other forum as may be available under law shall have the benefit of section 14 of the Limitation Act, 1908 if any question of limitation arises or (as the case may be) equivalent equitable relaxations if any question of delay or laches arises.

(iv) The Registrar shall ensure that a copy of present judgment is forthwith sent to the registrars of all Tribunals to which para (i) applies and the said registrars shall immediately bring it to the attention of the Chairpersons and members of the said Tribunals. It shall be the responsibility of each Chairperson to ensure that till such time as the proviso to clause (2) of Article 212 becomes applicable to the Tribunal, the following (or similar) legend is suitably incorporated in the title page of each decision thereof for the benefit of all litigants: 'This Tribunal is not covered by the proviso to clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan and therefore no leave petition or appeal lies to the Hon'ble Supreme Court of Pakistan in terms of clause (3) of the said Article.'

[pp. 204, 205, 206] D, E, F & G

Mansoor Tariq, Advocate Supreme Court for Appellant.

Ahmed Ali, Advocate Supreme Court for Respondent No.1.

Khalid Javed Khan, Attorney General for Pakistan along with Sajid Ilyas Bhatti, Additional Attorney General on Court notice.

Shumail Ahmed Butt, Advocate General, Khyber Pakhtunkhwa along with Mian Shafaqat Jan, Addl. A.G., Khyber Pakhtunkhwa and Zia Ullah, D.S. Health, Khyber Pakhtunkhwa and Barrister Qasim Ali Chohan, Addl. A.G., Punjab.

Fouzi Zafar, Addl. AG, Sindh and Ayaz Khan Swati Addl. A.G., Balochistan.

P L D 2023 Supreme Court 207

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

FEDERAL BOARD OF REVENUE through Chairman, Islamabad and others---Petitioners

Versus

Messrs HUB POWER COMPANY LTD. and others---Respondents

Civil Petition No. 3739 of 2019, decided on 20th January, 2023.

(Against the order of Islamabad High Court, Islamabad dated 26.07.2019 passed in W.P. No. 1228 of 2016).

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal filed before the Supreme Court without exhausting the available remedy of filing an Intra Court Appeal ("ICA") under section 3 of the Law Reforms Ordinance, 1972 ("Ordinance") before the High Court---Maintainability---Where the right to file an ICA before the High Court under section 3 of the Ordinance exists, then a petition before the Supreme Court without exhausting the said remedy, and thereby circumventing the forum below, is ordinarily not maintainable---Requirement of filing an ICA is a rule of practice for regulating the procedure of the Court and does not oust or abridge the constitutional jurisdiction of the Supreme Court---Such petitions, however, have been entertained by the Supreme Court only when certain exceptional circumstances exist, such as, where the matter involves important questions of law of great public importance having far-reaching consequences, questions of law as to the interpretation of the Constitution and validity of provincial statutes, and substantial questions of law involving fundamental rights, coupled with the fact that the objection with regards to maintainability is taken at a belated stage before the Court.

Imtiaz Ali Malik v. Mst. Surrya Begum 1979 SCMR 22; Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner PLD 2011 SC 961; Government of Punjab v. Metropole Cinema 2014 SCMR 649; Accountant General v. Zia Mohy-ud-Din PLD 2008 SC 164; PIAC v. Samina Masood PLD 2005 SC 831; PTCL v. Iqbal Nasir PLD 2011 SC 132; Commissioner of Income Tax v. Messrs Media Network PLD 2006 SC 787; Province of Punjab v. Sargodha Textile Mills PLD 2005 SC 988 and PESSI v. Manzoor Hussain 1992 SCMR 441 ref.

Ms. Shazia Bilal, Advocate Supreme Court, Syed Salauddin Gillani, Addl. Commissioner (Through V.L. Karachi Registry) for Petitioners.

Jahanzeb Awan, Advocate Supreme Court for Respondent No.1.

P L D 2023 Supreme Court 209

Present: Qazi Faez Isa and Muhammad Ali Mazhar, JJ

NAEEM TAHIR and others---Petitioners

Versus

JAHAN SHAH alias SHAH JEHAN and others---Respondents

Civil Petition No. 2633 of 2019, decided on 4th January, 2023.

Supreme Court Rules, 1980---

----O.XVIII, R.1---Concise statements and supplemental proceedings---Practice of filing documents through a concise statement or an application without any explanation---Supreme Court deprecated such practice as it did not accord with the Supreme Court Rules, 1980, and observed that documents which are filed either through an application or a concise statement (save exhibits or pleadings) should be explained in the application/concise statement or in the affidavit in support thereof.

An application or concise statement must mention the purpose of its filing. Rule 1 of Order XVIII of the Supreme Court Rules, 1980 ('the Rules') stipulates that 'concise statements of the facts of the case and the arguments upon which they propose to rely' are to be mentioned therein. And, Order XVIII is also applicable to supplemental proceedings, which would include applications. Simply filing a document without explaining what it is and/or what is its effect would not put the other side on notice, as to purpose of its filing. Documents which are filed either through an application or a concise statement (save exhibits or pleadings) should be explained in the application/concise statement or in the affidavit in support thereof.

Supreme Court directed that copy of present order be sent to the Registrar who should inform the officers of the Supreme Court receiving applications and concise statements that the same should be filed in accordance with the Rules, and as elaborated above.

Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Ahmed Ali, Advocate Supreme Court and Anis M. Shahzad, Advocate-on-Record for Respondents Nos. 1-4 and 6.

Mian Shafaqat Jan, Additional Advocate-General, KP along with M. Aslam, Tehsildar, D.I. Khan, Baran, Qanoongo, D.I. Khan for Respondents Nos. 13-17.

P L D 2023 Supreme Court 211

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

MEERA SHAFI---Petitioner

Versus

ALI ZAFAR---Respondent

Civil Petition No. 1795 of 2022, decided on 21st November, 2022.

(Against the judgment of Lahore High Court, Lahore, dated 18.05.2022, passed in C.R. No.24617 of 2022).

(a) Interpretation of statutes---

----Determining legislative intent---Use of modern technology---Best way to assess the legislative intent of a law is to examine its purpose today by considering its objectives, the goals, the interests, the values, the policy, and the function that the statute is designed to actualize---In the process of interpreting laws, judges must endeavor to bridge the gap between law and society---Intersection of law and technology not only requires the law to regulate technology but also to employ technology to make laws more at home with the technology-savvy society.

The role of a judge is to understand the purpose of law in the society and to help the law achieve its purpose. Law is a living organism and must respond to the changing social realities of the time. Indeed when social reality changes, the law must change too. Just as the change in social reality is the law of life, responsiveness to change in social reality is the life of the law. Legislative intent must be viewed in its changing environment by treating the statute as a living organism. The court cannot be insensitive to the system in which the statute operates. If the statute or the legislative intent is to be viewed as at the time of its origin, it freezes the meaning of the statute at the historical moment of its legislation, which may no longer be relevant to the meaning of the statute in modern times. To limit the meaning of the statute to its original legislative intent only reduces the judge into a historian and an archaeologist whereby he looks backward instead of forward. Sterility and stagnation defeat the purpose of law and defy its organic character. The best way forward to assess the legislative intent of a law is to examine its purpose today by considering its objectives, the goals, the interests, the values, the policy, and the function that the statute is designed to actualize. Change in social reality today also depends on the rapid development of technology to which the law cannot shut its eyes. While law develops gradually and technology is often far ahead of the legislature and the judicature, both these institutions must move forward and ackownledge the technological advances in developing the law which cannot stand still and must adapt to the changes in society. In the process of interpreting laws, judges must endeavor to bridge the gap between law and society. The intersection of law and technology not only requires the law to regulate technology but also to employ technology to make laws more at home with the technology-savvy society.

Benjamin N. Cardozo, The Paradoxes of Legal Science 10-11 (Greenword Press 1970) (1928); William H. Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U.L.Rev 1 and Aharon Barak, The Judge in a Democracy, Chapter 1 ref.

(b) Interpretation of statutes---

----Updating construction of statutes, principle of---Scope of the principle of updating construction of statutes stated with respect to technological changes/advancements.

Principle of extension of statutes to new things is a well-known principle of the construction of statutes. Except in some cases where the principle of strict construction is to be applied, the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. As the constant formal updating of all laws by the legislature is not practicable and each generation mostly lives under the law it inherits, the legislature is presumed to have intended that the laws enacted by it should ordinarily be taken as "always speaking" and applied at any future time in such a way that gives effect to its intention in the changed circumstances that have occurred since the enactment of the law. This is commonly called the "updating construction" of laws. The changes that require the updating construction of law may include technological or scientific developments, new natural phenomena or changes in social conditions, etc---Updating construction is, however, applied only where its application would be consistent with the legislative intention. When a new state of affairs or matters comes into existence, the courts have to consider whether they fall within the legislative intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed [legislative] policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can be fulfilled if the extension is made. The principle of updating construction is in consonance with the purposive approach adopted while interpreting different statutes.

Fakir Muhammad v. Federation of Pakistan PLD 1958 SC 118; Maxwell on Interpretation of Statutes (Tenth Edition); Bennion, Bailey and Norbury on Statutory Interpretation (Eighth Edition) pp. 503-518; R v. Walsall Metropolitan Borough Council [2015] 1 All ER 165 per Leggatt J; Royal College of Nursing v. Department of Health 1981 AC 800 per Lord Wilberforce; JS Bank v. Province of Punjab 2021 SCMR 1617; Tariq Iqbal v. Government of KPK 2019 SCMR 859; Saif-Ur-Rehman v. ADJ 2018 SCMR 1885; Nawaz Chandio v. Ismail Rahu 2016 SCMR 875; Aamer Raza v. Minhaj Ahmad 2012 SCMR 6; Khalid Masood v. Khurshid Begum 2001 SCMR 550; Federation of Pakistan v. Noori Trading Corporation 1992 SCMR 710; SYC Leung, How Do Statutes 'Speak' in Recent Technology Advancement Cases? (2021) Statute Law Review 1 and Birmingham City Council v. Oakley [2001] 1 AC 617 per Lord Hoffmann ref.

In the 21st century, technological advancement has reached an unprecedented speed. A technological change is thus often so radical that it could not have reasonably been perceived by the legislature and catered in the language of the statute, nor can the legislature promptly catch up with such changes by the formal legislative process. In such a scenario, the principle of updating construction requires judges to bridge the gap between law and technology by identifying the concept (purpose and policy) behind the statutory provision and giving effect thereto in interpreting a particular provision. For, when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood. The content may change but the concept remains the same. The courts should therefore look at the bigger picture (purpose and policy) to harmonize law with technological change, and adopt a realistic approach in factual assessment to retrieve what the law intends to achieve. In applying the statutory language to a new situation created by technological change, it is necessary both to view the facts realistically and to keep in mind the purpose of the legislation

SYC Leung, How Do Statutes 'Speak' in Recent Technology Advancement Cases? (2021) Statute Law Review 1; Birmingham City Council v. Oakley [2001] 1 AC 617 per Lord Hoffmann and Uber BV v. Aslam [2021] UKSC 5 per Lord Leggatt ref.

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

----O. XVIII, R. 4 & S. 151---Qanun-e-Shahadat (10 of 1984), Art. 164---Constitution of Pakistan, Arts. 9, 10A & 37(d)---Evidence of witness, recording of---Use of video conferencing---Permissibility---Evidence of a witness who is not physically present in court can be recorded in a civil case by using the modern technology of video conferencing, within the existing legal framework---Civil court can allow, under Section 151, C.P.C. and Article 164 of the Qanun-e-Shahadat, 1984 recording the oral evidence of a witness through video conferencing---Virtual attendance of a witness in court, appears to be the species of the genus of "attendance" required under Rule 4 of Order XVIII, C.P.C. and fulfills the legislative purpose and policy in requiring the attendance of a witness in court for recording his evidence---Word "attendance" used in Rule 4 can be extended to "virtual attendance", and the word "attendance" mentioned in the said Rule does not mean only "physical attendance" but includes "virtual attendance" made possible by the modern technology of video conferencing.

The "virtual attendance" of a witness in court through the medium of video conferencing enables the judge and other persons present in court to see the witness and hear what he says, and vice versa. Such an attendance is thus, in effect, in open court, and his evidence is also recorded under the personal superintendence of the judge. The judge under whose superintendence the evidence through video conferencing is recorded can satisfy himself about the free will of the witness present on screen as he does about the witness present physically in court by questioning him in this regard and ensuring that he is not under the immediate influence of any other person. A court can ensure the independence of a witness only from the immediate influence, not from any covert influence, of any other person in both situations whether he is physically present or virtually present in court. In the latter situation, the court can ensure that there is no other person in the room where the witness is sitting, while his evidence is being recorded, by asking him to provide a full view of that room on the screen. The identity of the witness, if disputed, can also be verified by the judge through appropriate means. The witness can be confronted on screen with documents produced or sought to be produced in court by any of the parties or, if needed, the scanned copies of such documents can be sent to him through modern means of communication. In all such necessary matters as to the recording of evidence, the physical attendance and the virtual attendance of a witness in court do not differ. The virtual attendance of a witness in court, thus, appears to be the species of the genus of "attendance" required under Rule 4 of Order XVIII, C.P.C. and fulfills the legislative purpose and policy in requiring the attendance of a witness in court for recording his evidence. Therefore, the word "attendance" used in Rule 4 can be extended to "virtual attendance", and the word "attendance" mentioned in the said Rule does not mean only "physical attendance" but includes "virtual attendance" made possible by the modern technology of video conferencing.

State of Maharashtra v. Praful Desai AIR 2003 SC 2053 and Cyberworks Audio Video Technology Ltd v. Mei Ah (HK) Co Ltd [2020] HKCFI 347 ref.

Article 164 of the Qanun-e-Shahadat, 1984 ('QSO') provides that in such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques. When in the circumstances of a case, requiring physical attendance of a witness in court will incur an unnecessary amount of delay, expense or inconvenience, the order of the court allowing virtual attendance of a witness through video conferencing is for the ends of justice, and the rejection of an unjustifiable insistence of the opposing party on securing physical attendance of such witness in court is to prevent abuse of the process of the court. An order allowing virtual attendance of the witness in such circumstances thus squarely falls within the scope of section 151 of the C.P.C.

The interpretation of the various provisions of law allowing modern technology of video conferencing to be read into the exiting enactments enhances access to justice, promotes fair trial and introduces inexpensive and expeditious justice thereby advancing the fundamental rights under Articles 9 and 10A and principle of policy under Article 37(d) of the Constitution.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Chairman NAB v. Nasar Ullah PLD 2022 SC 497 and Muhammad Sharif v. Nabi Bakhsh 2012 SCMR 900 ref.

Although the powers conferred by section 151 of the C.P.C. and Article 164 of the QSO are discretionary, the courts are to exercise them judiciously, not arbitrarily or mechanically, on the filing of an application in such regard by a party to the proceedings. Such discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. In exercising the discretion, the courts are to see: (i) whether the evidence of the witness appears essential to the just decision of the case, and (ii) whether requiring physical attendance of the witness in court would incur unreasonable delay, expense or inconvenience.

Supreme Court observed that the strict adherence to the obligatory list of guidelines/protocols to be complied with by the courts for allowing evidence of a witness to be recorded through video conferencing provided in the cases reported as Munawar Hussain v. State 2020 PCr.LJ 1184 and Muhammad Israr v. State PLD 2021 Pesh 105 may impede the application of the very law declared therein; therefore, it was proper that the said guidelines are to be followed by the courts to the extent it is found just and proper to follow them in the facts and circumstances of a particular case. For instance, where there is a serious apprehension that the witness would be under the influence of or tutored by some other person in the course of recording his evidence, or his very identity is disputed on substantial, not flimsy, grounds, the court may require his presence in the Pakistan Embassy in the country concerned and engage some officer of the Embassy in the process of recording his statement through video conferencing, as provided in those guidelines. But without any such serious apprehension or substantial dispute, requiring all such witnesses in every case to go to the Pakistan Embassy and engaging some officer of the Embassy in the process would also involve some unnecessary delay, expense or inconvenience. This matter should, therefore, be left to the discretion of the court concerned, which shall obviously exercise it judiciously for valid reasons.

In the present case the petitioner is the only defendant in the suit; therefore, her evidence is very much essential to the just decision of the case. The petitioner lives in a foreign country (Canada) since 2016 as her ordinary place of residence, with her family including two children, and is not in that country for a short visit. The petitioner comes to Pakistan only when there is a working schedule for her. Waiting for her such a schedule would certainly cause a delay in the decision of the suit, and forcing her to come to Pakistan from the foreign country (Canada) by leaving her children there or carrying them with her would incur such expense and inconvenience which surely appears unreasonable under the circumstances of the case. The prayer of the petitioner for allowing her remaining cross-examination through video conferencing is, thus, justified. Furthermore, there is no dispute as to the identity of the petitioner, nor is there any serious apprehension that the petitioner would be under the influence of or tutored by any other person in the course of recording her remaining cross-examination, therefore, there is no need to require her to go to the Pakistan Embassy in Canada and to involve any officer of the Embassy in the process of recording her remaining cross-examination through video conferencing. Petition for leave to appeal was converted into appeal and allowed.

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

----Preamble---Procedures provided under the Civil Procedure Code, 1908 ('C.P.C.')---Scope---Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code [of Civil Procedure], but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law---As a matter of general principle, prohibition cannot be presumed.

Narsingh Das v. Mangal Dubey (1882) ILR 5 All 163; Nur Elahi v. State PLD 1966 SC 70 and H. M. Saya & Co. v. Wazir Ali Industries PLD 1969 SC 65 ref.

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

----Art. 132(2)---Cross-examination, right of---Scope---Right of cross-examination is neither unlimited nor unbridled---When the judge observes that the right of cross-examination is being abused by asking questions which are irrelevant and intended to prolong the cross-examination with the object of manipulating error, or to scandalize, insult or annoy the witness, he should intervene and disallow such questions.

Muhammad Shafi v. State PLD 1967 SC 167; Muddassar v. State 1996 SCMR 3 and Mir Hassan v. State 1999 SCMR 1418 ref.

Muhammad Saqib Jillani, Advocate Supreme Court for Petitioner.

Muhammad Ali Raza, Advocate Supreme Court for Respondent.

P L D 2023 Supreme Court 229

Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

DEPUTY ADMINISTRATOR EVACUEE TRUST PROPERTY, RAWALPINDI ---Petitioner

Versus

SAKHI MUHAMMAD KIANI---Respondent

Civil Petition No. 4737 of 2018, decided on 2nd September, 2022.

(Against the order dated 17.10.2018 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 3569 of 2009).

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 6 & 7---Punjab Katchi Abadis Act (VIII of 1992), S. 6(1)---Katchi abadi land---Proprietary rights---Sub-Registrar refused to register sale deeds, leases and other documents of those who had acquired properties in certain land declared to be a katchi abadi by the Directorate General Katchi Abadis, because the Evacuee Trust Property Board ('the Board') claimed that entries in the revenue record showed the land was part of a dharamshala and hence evacuee trust property---Legality---Nothing was available on record to suggest that the subject land ever became evacuee trust property---Record of rights also did not mention that the Board or the Federal Government were the owners thereof---Notification issued by the Directorate General of Katchi Abadis, declaring the said land as a katchi abadi, was not challenged---Chairman of the Board had never determined that the said land was evacuee property, and had come to vest in the Board---Properties of the Board are those which are part of the 'Trust Pool' or had been declared to be evacuee trust property as per section 7 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, however, subject land was neither part of the Trust Pool nor had been declared to be trust property---Board's assertion that the subject land was evacuee trust property was not supported by any evidence or material---Large number of people were living in the properties constructed on the subject land---Neither the dharamshala management nor any member of the Hindu community had come forward to deny the ownership rights of the katchi abadi dwellers or objected to the declaration of the said land as a katchi abadi---Mayor of the city had recommended that the said land be declared as a katchi abadi, and in doing so he had referred to government policy which required provision of housing for the poor and homeless---Petition for leave to appeal was dismissed and leave was refused.

(b) Punjab Katchi Abadis Act (VIII of 1992)---

----S. 6---Katchi abadi land---Proprietary rights---Photograph of Provincial Chief Minister featuring on ownership documents distributed amongst katchi abadi dwellers---Supreme Court deprecated such practice and observed that self-projection on public/government records and self-aggrandisement at public expense is not permissible, and would also violate one's oath of office---Detailed observations recorded by the Supreme Court on the issue stated.

The 'sanade haqooq milkiat' issued by the Directorate General of the Katchi Abadis, through which katchi abadi dwellers on the subject land were granted proprietary rights, prominently features the image of the Provincial Chief Minister. The apparent reason to portray the image of the Chief Minister, who is a politician, could only be to present him to the recipients of the sanads as their benefactor, and thus cultivate in them a feeling of being beholden to him. If the Provincial Chief Minister wanted to help the homeless, nothing prevented him from distributing his own property, and, if he did so, he would be at liberty to affix his photograph on the documents of title. Self-projection on public/government records and self-aggrandisement at public expense is not permissible.

Affixing one's own photograph on a public/government document projects personal interest, therefore, this is not permissible because it would violate one's oath of office. It is also not permissible to manoeuvre the honouring of oneself through one's subordinates, political associates or in a manner that may call for the bestowal of reciprocal favours. Paid servants of the State, constitutional office holders and politicians in government must not use their positions for personal, partisan or pecuniary gain. If someone names a public/government place or property after themself or affixes their own name or image on a public/government document, it is self-glorification, and if this is done by others, it would constitute obedience, flattery, nepotism and/or corruption. Pakistan is not a kingdom, principality or fiefdom in which the people are to be beholden to their rulers.

To name public/government properties and anything planned, developed and/or managed from public/government funds or to project oneself, as in the present case by getting one's photograph affixed on the sanads, violates the Constitution, undermines Islamic moorings, is without lawful authority, and, is also in bad taste. Public/government properties, documents and funds must be used in a transparent manner and by observing the prescribed standards of financial propriety and must also be compliant with the mandate of the Constitution and the laws. It must also be ensured that no advantage or benefit, directly or indirectly, accrues to or is taken by any living person, as was done in the present case by affixing the photograph of the Chief Minister on the sanads of properties situated on the said land.

Supreme Court directed that copies of present order be sent to the Cabinet Secretary, to the Chief Secretaries of the provinces and to the Chief Commissioner/Administrator of Islamabad Capital Territory, and all of them shall issue requisite notifications reminding government servants that they serve the people, and not individuals in government.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Petitioner.

Respondents Nos. 1, 2 (i-iv): In person.

P L D 2023 Supreme Court 236

Present: Ijaz ul Ahsan and Sayyed Mazahar Ali Akbar Naqvi, JJ

Messrs SADIQ POULTRY (PVT.) LTD.---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

Civil Petition No. 5646 of 2021, decided on 27th September, 2022.

(Against the order of the Peshawar High Court dated 16.09.2021 passed in Writ Petition No.3794-P of 2021).

Constitution of Pakistan---

----Art. 199---Suo motu powers of the High Court---Scope---Prices and quality of dairy and poultry products---Fixing prices and policy matters---Domain of the Executive---High Court does not have suo motu jurisdiction under Article 199 of the Constitution---High Court is not competent to fix the prices of products and under Article 199 it cannot devise a pricing formula.

High Court does not have suo motu jurisdiction under Article 199 of the Constitution. In the present case, the High Court passed a series of suo motu orders, whereby a ban was imposed on the export of dairy and poultry products. Banning imports or exports of products is not the domain of the Courts but falls under the exclusive domain of the executive. High Court could not have transgressed its jurisdiction under Article 199 of the Constitution by passing an order which not only amounts to exercise of suo motu jurisdiction, but also an encroachment on the jurisdiction of the executive.

Mian Irfan Bashir v. Deputy Commissioner (D.C.), Lahore PLD 2021 SC 571 ref.

High Court was not competent to even fix the prices of products. The only course of action available to it, if necessary, was to direct the Government to do what it is required to do under the law in case its officials /functionaries were not doing that. The High Court, under Article 199, cannot devise a formula for pricing. Doing so is not permitted under the law and does not fall in the domain of the Courts and goes against the principle of trichotomy of powers envisaged under the Constitution.

High Court could not have, suo motu, provided a formula for the calculation of prices nor could the High Court direct that a pricing committee be formed to implement the formula provided by the High Court. These matters clearly relate to the executive and ought to be left to the policy makers to regulate. Petition for leave to appeal was converted into appeal and allowed, and impugned order of High Court was set-aside.

Sardar Muhammad Latif Khan Khosa, Kamran Murtaza, Senior Advocates Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Mian Shafqat Jan, Additional A. G. Khyber Pakhtunkhwa and Dr. Kamran Farid, District Director Livestock, Peshawar for Respondents.

P L D 2023 Supreme Court 241

Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ

COMMISSIONER INLAND REVENUE, LAHORE---Petitioner

Versus

SUI NORTHERN GAS PIPELINE LIMITED, LAHORE---Respondent

Civil Petitions Nos. 1854-L, 1855-L, 1899-L and 1900-L of 2022, decided on 29th September, 2022.

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

----S. 2(9), O.XX, Rr. 1(2), 3 & O. XLI, Rr. 30, 31---Supreme Court Rules, 1980, O.X, R.1---Judgment/decree---Date of judgment/ decree to be mentioned by the court---Scope---Every judgment must inscribe the date when it is written, signed and pronounced---When judgments are belatedly written or wherein the date of signing and pronouncement is not mentioned its consequences should not be suffered by litigants.

Judgment, whether in a court's original or appellate jurisdiction, must be dated. Pronouncement of a judgment does not simply mean the result of the case, such as, allowed, dismissed or any other variant, but, as stipulated in section 2(9) of the Civil Procedure Code, 1908 it is 'the statement given by the Judge of the grounds of a decree or order'.

Every judgment must inscribe the date when it is written, signed and pronounced because this, is what the law mandates. There may be serious consequences for parties if the challenge to a judgment is disallowed because it was incorrectly ascertained when it was signed or objection to belated filing could not be taken because the date of signing and pronouncement was incorrectly assumed to be later than when it was actually signed and pronounced. In addition to wasting the time of the courts' personnel, valuable court time is also wasted in ascertaining when an impugned judgment may have been written, signed and pronounced, and then to determine whether it was assailed within the time prescribed for doing so.

When judgments are belatedly written or wherein the date of signing and pronouncement is not mentioned its consequences should not be suffered by litigants.

Any impression that judges want to escape criticism or accountability by not inscribing the date on a belatedly written judgment must be assiduously dispelled. Supreme Court must lead by example and do away with the practice, sometimes resorted to, of not inscribing the date when a judgment is actually written, signed and pronounced. The Supreme Court holds judges of other courts to account, therefore, it is all the more incumbent upon it to abide by the same standard.

Supreme Court directed that copy of present order be sent to the Registrars of all the High Courts who should upon receipt issue requisite instructions in their respective territories to all judges, including judges of the High Court, to inscribe the date on every order and judgment when it was actually written, signed and pronounced.

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

---S. 2(9)---Judgment---Scope---Pronouncement of a judgment does not simply mean the result of the case but also the reasons thereof---Simply announcing the result of the case after hearing it but before it is written, containing the grounds/reasons for the decision, does not constitute a judgment/decision--- Judgment/decision explains how and why the court decided a case in a particular manner.

(c) Judgment---

----Belated writing of judgments by Judges of Superior Courts---Supreme Court deprecated such practice and observed that not inscribing the date when a judgment is written, signed and pronounced is connected with the belated writing of judgments; that Judgment must be written within a reasonable time of the case being heard, and Judges who do not decide cases quickly and do not write judgments within a reasonable time may be guilty of misconduct.

Iftikhar-Ud-Din Haidar Gardezi v. Central Bank of India Ltd. 1996 SCMR 669; Muhammad Bakhsh v. State 1989 SCMR 1473; Mst. Ghulam Fatima v Sardara PLD 1956 (WP) Lah. 474; Bashir Ahmed Khan v. Mumtaz Begum 1979 CLC 114; Walayat Hussain v. Muhammad Hanif 1989 MLD 1012; M. K. Zaman v. Matiar Rahman 1969 PCr.LJ 361; Muhammad Ovais v. Federation of Pakistan 2007 SCMR 1587 and MFMY Industries Ltd. v. Federation of Pakistan 2015 SCMR 1550 ref.

Muhammad Shakeel Ch., Advocate Supreme Court (through video-link from Lahore) for Petitioner.

Shahbaz Butt, Advocate Supreme Court (through video-link from Karachi) for Respondent.

M. Makhdoom Ali Khan, Senior Advocate Supreme Court and Tariq Aziz, Advocate-on-Record Amicus curiae.

Abdul Razzaque, Additional Registrar, Judicial, Supreme Court of Pakistan on Court's call.

P L D 2023 Supreme Court 252

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

ABID AMIN and 2 others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Civil Petitions Nos.3236, 3283 and 3494 to 3496 of 2019, decided on 17th January, 2022.

(Against the judgment dated 09.07.2019 of the High Court of Sindh, Karachi passed in Constitution Petitions Nos. D-2635, D-2575, D-3509, D-2441 and D-2447 of 2018).

National Accountability Ordinance (XVIII of 1999)---

----Ss. 31-C & 31-D---Constitution of Pakistan, Art. 18 & Preamble---'Restructuring' and 'rescheduling' of loans under financial agreements---Prior approval of State Bank of Pakistan---Scope of Sections 31-C and 31-D of the National Accountability Ordinance, 1999 stated.

Under section 31-C of the National Accountability Ordinance, 1999 ('the NAB Ordinance') the Accountability Court cannot take cognizance, under the NAB Ordinance, of an offence against an officer or an employee of a bank or financial institution for writing off, waving, restructuring or refinancing any financial facility, interest or mark-up, without prior approval of the State Bank of Pakistan. While under section 31-D, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans can be initiated or conducted by the National Accountability Bureau (NAB) against any person, company or financial institution without reference from the Governor, State Bank of Pakistan. Unlike section 31-C that relates to only taking cognizance of an offence by the Accountability Court, section 31-D provides protection even against initiation of inquiry, investigation or proceedings against a person or a company in respect of imprudent loans, defaulted loans or rescheduled loans. The protection provided under Section 31-D is, therefore, broader and more expansive.

Section 31-D is also attracted in respect of a "defaulted loan". Defaulted loan means the failure to fulfill the obligation to repay the loan.

"Restructuring" is a comprehensive and a broad ranging term, which includes "Rescheduling". One of the modes of restructuring can be rescheduling. Therefore, for the purposes of the NAB Ordinance, the two terms can be read as having been used interchangeably. Further, the NAB Ordinance has not defined any of the terms used in sections 31-C and 31-D, namely, writing off, waving, restructuring, refinancing, imprudent loans, defaulted loans or rescheduled loans; therefore, their general dictionary meanings are to be considered, for understanding their import and scope.

While both the terms signify a financial settlement, restructuring is an all-embracing term, which includes rescheduling.

Oxford Dictionary of Business and Management, Pakistan Edition (5th Edition). pp. 165-166 ref.

However, more important than hairsplitting technical banking terms, is to understand the legislative intent, purpose and objective of enacting sections 31-C and 31-D of NAB Ordinance, and question why in such cases, the NAB has not been allowed to proceed, or the Accountability Court has not been allowed to take cognizance, unless there is a permission or approval of the State Bank of Pakistan. The answer is obvious: through the mode of restructuring or rescheduling, the default of the outstanding financial liability of a person or a company or a financial institution is remedied and default rectified, and this exercise is blessed by the consent and permission, not only of the financial institution concerned but also of the State Bank of Pakistan, the apex fiscal authority in the country. Such a financial arrangement/ settlement is accepted by the financial institutions because the alternative may be outright default on the debt.

Thus, the conversion of the default into a viable financial arrangement between the parties arrived at by the blessing of the State Bank of Pakistan cannot be questioned, doubted or ignored unless the State Bank of Pakistan, the apex overseeing authority, so permits. Any unilateral intervention by the NAB into restructured and rescheduled loans would seriously undermine the authority of the apex fiscal institution in the country, i.e., the State Bank of Pakistan. It would also render any such financial settlement meaningless, thereby generating mistrust and lack of faith and confidence amongst the business community against the State Bank of Pakistan. Any such mistrust could be disastrous and result in destabilizing the economy. Such an act would also offend the constitutional value of economic justice and the fundamental right to trade and business.

The legislative intent, purpose and objective of enacting sections 31-C and 31-D of the NAB Ordinance, in the said backdrop, becomes clear: to safeguard sound and stable functioning of the economic, banking and fiscal governance in the country by honouring the financial decisions of the State Bank of Pakistan. The import of these provisions, therefore, has to be understood in this larger constitutional perspective and legislative intent, purpose and objective, not by losing into the technicalities of the financial terms used in sections 31-C and 31-D of the NAB Ordinance, which have not been given any special meaning under the NAB Ordinance and can safely be treated general financial terms as understood in common parlance.

Supreme Court approved the construction put to the provisions of section 31-D of the NAB Ordinance, in case of their noncompliance, by the Sindh High Court in the cases reported as Kaloodi International v. Federation PLD 2001 Kar. 311 and Naseem v. Federation PLD 2013 Kar. 357

Kaloodi International v. Federation PLD 2001 Kar. 311 and Naseem v. Federation PLD 2013 Kar. 357 approved.

Arshad M. Tayebaly, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 3236 and 3283 of 2019).

Naeem Tariq Sagheer, Spl. Prosecutor for NAB.

Abid Naseem, Advocate Supreme Court for Respondents/co-accused (in C.P. No. 3496 of 2019).

P L D 2023 Supreme Court 260

Present: Qazi Faez Isa and Syed Hasan Azhar Rizvi, JJ

SHAUKAT ALI---Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and another---Respondents

Civil Petition No.1743 of 2020, decided on 2nd March, 2023.

(Against the order dated 17.01.2020 of the Federal Service Tribunal, Islamabad passed in M.P. Nos. 1476 of 2018 and 1411 of 2019 in Appeal No.1098(R)CE of 2001).

Practice and procedure---

---Practice of using honorifics or prefixes such as "honourable/ hon'ble" and "learned" while referring to the High Courts or Supreme Court---Propriety---Supreme Court deprecated such practice and observed that the Constitution does not use any prefix or honorific before the High Courts and the Supreme Court nor uses the terms "August" or "Apex" for the Supreme Court; that use of such honorifics or prefixes was linguistically inappropriate, and that for advocates and judges the preference should be to use the language of the Constitution.

A practice seems to have developed among lawyers and judges of using the honorific honourable/hon'ble and learned when referring to the Supreme Court and the High Courts. At times, the Supreme Court is also referred to as 'August Court' or 'Apex Court'. However, such honorifics or prefixes are not used with other institutions such as Parliament, Senate, National Assembly or the provincial assemblies, which naturally leads one to question the distinction. Usage of the honorific 'honourable' with inanimate institutions, like courts, is linguistically inappropriate.

The Constitution refers to the Supreme Court as the "Supreme Court" and to the High Courts as "High Courts". The Constitution also does not use any prefix or honorific before these courts nor uses the terms August or Apex for the Supreme Court. It serves one best when the language of the Constitution is used with regard to institutions mentioned therein. Those whose vocation requires proper use of language should strive for accuracy, and for advocates and judges the preference should be to use the language of the Constitution.

Judges may be referred to as honourable (or the abbreviated hon'ble) or learned. Any use of language that is respectful and concise is sufficient. However, it is irksome when these honorifics and Sir are used profusely; which invariably is found to serve as a substitute for meaningful arguments. Supreme Court observed that it expected litigants, counsel and judges to adhere to the observations recorded in the present order to ensure clarity, brevity and to avoid the perception of being obsequious.

Hifz-ur-Rehman, Advocate Supreme Court for Petitioner along with the Petitioner.

Rana Waqas Lateef Khan, Advocate Supreme Court for Respondents Nos. 1 and 2.

P L D 2023 Supreme Court 265

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

F.I.A. through Director General, FIA and others---Petitioners

Versus

Syed HAMID ALI SHAH and others---Respondents

Constitutional Petition No. 1257 of 2020, decided on 6th February, 2023.

(Against the judgment of the Islamabad High Court, dated 04.02.2020, passed in W.P. No.2367/2018)

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

----Ss. 561-A & 154---Inherent power of High Court---Quashment of FIR or investigation of criminal case---Scope---High Court has no power under Section 561-A, Cr.P.C. to quash an FIR or an investigation proceeding, however, the High Court can quash a judicial proceeding pending before any subordinate court under Section 561-A, Cr.P.C.

High Court has no power under Section 561-A, Cr.P.C. to quash an FIR or an investigation proceeding; therefore, applications filed under Section 561-A, Cr.P.C. in the High Court for quashing an FIR and investigation proceeding are not maintainable. This is because jurisdiction of a High Court to make an appropriate order under Section 561-A, Cr.P.C., necessary to secure the ends of justice, can only be exercised with regard to the judicial or court proceedings and not relating to proceedings of any other authority or department, such as FIR registration or investigation proceedings of the police department.

Shahnaz Begum v. High Courts of Sindh and Baluchistan PLD 1971 SC 677 ref.

A High Court can quash a judicial proceeding pending before any subordinate court under Section 561-A, Cr.P.C., if it finds it necessary to make such order to prevent the abuse of the process of that court or otherwise to secure the ends of justice; however, it should not ordinarily exercise its power under Section 561-A, Cr.P.C. to make such order unless the accused person has first availed his remedy before the trial court under Section 249-A or 265-K, Cr.P.C.

Sher Afgan v. Ali Habib 2011 SCMR 1813 ref.

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

----S. 154---Constitution of Pakistan, Art. 199(1)(a)(ii)---Quashment of FIR or investigation of criminal case---Scope---Constitutional jurisdiction of the High Court---Registration of an FIR and the doing of an investigation are acts amenable to the jurisdiction of the High Courts under Article 199(1)(a)(ii) of the Constitution, thus, the High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceeding.

Where before the submission of the police report under Section 173, Cr.P.C. to the court concerned, the accused person thinks that the FIR has been registered, and the investigation is being conducted, without lawful authority, he may have recourse to the constitutional jurisdiction of the High Court under Article 199 of the Constitution for judicial review of the said acts of the police officers.

Shahnaz Begum v. High Courts of Sindh and Baluchistan PLD 1971 SC 677 ref.

Article 199(1)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officers of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Courts under Article 199(1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceeding.

R. SIM & Co v. District Magistrate PLD 1966 SC 650 ref.

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

----Ss. 154 & 156---Investigation into a cognizable offence---Scope---Contents of an FIR have to be seen to ascertain whether a cognizable offence is made out of the allegations contained therein, and mere mentioning of a particular Section of the P.P.C. or any other offence under the law in the FIR is not determinative in this regard.

State v. Sultan Ahmed PLD 2007 SC 48 ref.

(d) Supreme Court Rules, 1980---

----O. XXVIII, R. 3---Vexatious and frivolous petition---Imposition of costs---First Information Report registered and investigation carried out without lawful authority---Present petition was not only meritless but also vexatious, as it amounted to continuation of harassment caused to the respondents---Such petitions being meritless and against the law settled by the Supreme Court unduly waste the time of the Court depriving it from attending to more lawful and genuine claims pending before it---Such frivolous litigation clogs the pipelines of justice causing delay in dispensation of justice, thereby impairing the right to expeditious justice of a genuine litigant---Such vexatious and frivolous petitions add to the pendency of cases which over-burdens the Court dockets and slows down the engine of justice, thus, they must be dealt with firmly and strongly discouraged---Petition for leave to appeal was dismissed, and leave was declined with costs of Rs.100,000/- with the directions that said costs shall be deposited by the Inspector, In-charge Federal Investigation Agency (FIA), who registered the present FIR and was making the investigation against the respondents, from his own pocket, with the Registrar of the Supreme Court within 30 days, and after the deposit, they shall be paid to the respondents.

Malik Javed Iqbal Wains, Addl. A.G.P. and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Syed Naeem Bokhari, Advocate Supreme Court for Respondents.

P L D 2023 Supreme Court 273

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

IRFAN AZAM and others---Applicants

Versus

Mst. RABIA RAFIQUE and others---Respondents

C.M.A. No. 649-L of 2021 in Civil Review Petition No. Nil of 2021 in C.P.L.A. No. 1719-L of 2020, decided on 27th January, 2023.

(Against the order dated 04.02.2021 passed in C.P.L.A. No. 1719-L of 2020).

Supreme Court Rules, 1980---

----O. XXVI, R. 6---Review petition before the Supreme Court---Substitution of a counsel at review stage---Scope---In the present case, neither were there any compelling circumstances to change the counsel nor the circumstances were unavoidable, as the previous counsel was also available---In the certificate given by the first/previous counsel the ground taken by him that the party had lost confidence in him and they wanted to change him was hardly a ground to allow the substitution of a counsel at the review stage---If permission was liberally granted, it would not only be against Rule 6 of Order XXVI of the Supreme Court Rules, 1980 ('the 1980 Rules'), but would make the said Rule redundant and would further lead to endless litigation---Application under R. 6 of O. XXVI of the 1980 Rules, was dismissed.

Muhammad Younas and others v. The State PLD 2005 SC 93; Amjad Hussain v. Nazir Ahmad and others PLD 2023 SC 22; Ghulam Rasul and others v. Settlement and Rehabilitation Commissioner, Gujranwala and others 1980 SCMR 962 and Tamil Nadu Electricity Board and others v. N. Raju Reddiar and others AIR 1997 SC 1005

ref.

Agha Muhammad Ali Khan, Advocate Supreme Court with Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicants (in C.M.A. No. 649-L of 2021).

Syed Qalb-i-Hassan, Advocate Supreme Court for Applicants (in C.M.A. No. 269-L of 2021).

Rashid Hafeez, Advocate Supreme Court and Anis Muhammad Shehzad, Advocate-on-Record for Respondents.

P L D 2023 Supreme Court 277

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

FEDERAL GOVERNMENT OF PAKISTAN through Ministry of Defence Rawalpindi and others---Appellants

Versus

Mst. ZAKIA BEGUM and others---Respondents

Civil Appeals Nos. 2150 to 2263 of 2019 and Civil Miscellaneous Applications Nos.5284 to 5300 of 2020, decided on 24th March, 2022.

(Against the judgment dated 18.06.2019, passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Regular First Appeals Nos. 11, 12, 13, 100, 101, 102, 103, 104, 107, 12, 13, 48 to 57, 73 to 78, 83 to 86, 99, 236, 248, 265, 213 to 216 of 2012, 266 to 311, 313, 315, 314, 317, 316, 318 to 323, 331, 324 to 330, 332 to 334 of 2014, 10 of 2012 and 312 of 2014, respectively).

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

----Ss. 23 & 24---Punjab Land Acquisition Rules, 1983, R. 10(1)(iii)---West Pakistan Land Revenue Assessment Rules, 1968, R. 4---Land acquisition---Compensation - Potential value of land---Factors to be considered when determining potential value of the acquired land stated.

Potential value of acquired land means and includes the following factors:

(i) The land has potentiality if it is in close proximity to a residential area, or the municipal limits of a city. Also to be considered is that the acquisition of such land is proof of its potential for development.

Land Acquisition Collector and others v. Abdul Qayyum Malik and others 1980 SCMR 63 ref.

(ii) The foremost basis of potential value is that land must be valued not only in terms of its market value as on the date of the notification under Section 4 of the Land Acquisition Act, 1894, keeping any delays and time lapse under consideration to the time of the award, but it must include the potential value of the land with reference to the use it is reasonably capable of being put to. The land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market-value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time.

Fazalur Rahman and others v. General Manager, S.I.D.B and another PLD 1986 SC 158 ref.

(iii) Revenue record is not conclusive of the value of the land, rather it is the value of the use which the land is capable of and the use of the land in the vicinity.

Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbotabad and others 1991 SCMR 2164 and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 ref.

(iv) The Court is to take into consideration the potentialities of the land, which may even include the price escalation, after the issuance of notification under Section 4(1) of the Act.

Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245 and Sarhad Development Authority, NWFP (now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265 ref.

(v) For determining the price which a willing purchaser would give to the willing seller relying only on past sales is not enough as the value of the land with all its potentialities may be determined by examining local property dealers or other persons who are likely to know the price that the property can fetch in the open market. Where land is acquired near the Highway, its potentiality and future prospects are to be considered.

Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342 ref.

(vi) The possibility of land being used for a different purpose in future and its potential value on account of its situation near the developed area is important.

Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 ref.

(vii) 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, neighbourhood, potentiality or other benefits. The potential uses to which the land can be put to is relevant.The objective of the classifications of land under Rule 4 of the West Pakistan Land Revenue Assessment Rules, 1968 is to assess the annual value of the landowner's share of the produce cultivated on the land. In this context, valuing land based on agriculture classification does not bring out the market value of the land or even its potential value. The land may be classified as Banjar Qadeem or Chahi Aabi Selab but its market value may be much more based on its location and proximity to roads and other amenities. Hence, reliance on the such classifications is not relevant for calculating compensation.

Murad Khan through his widow and 13 others v. Land Acquisition, Collector, Peshawar and another 1999 SCMR 1647 ref.

(viii) When evaluating the Land Acquisition Collector must consider the location of the land under acquisition, and its physical attributes such as accessibility, attributes related to land use, which include residential, commercial and industrial use; the availability of utilities and amenities such as roads, water, gas, electricity, phone connectivity, availability of schools and colleges, and the price of land in the vicinity. Adding to this value of the land, factors such as potential for economic growth, urbanization, infrastructure development, adds value to the land. Urbanization of the area shows great potentiality of the area.

Ministry of Defence through Secretary, Government of Pakistan and others v. Syed Wajdi Rizvi 2009 SCMR 105 and WAPDA through S.E. Acquiring Cell CRBC Project WAPDA, D.I. Khan and another vs. Syed Ali and others 2010 SCMR 82 ref.

Land must be valued as per its market value which is the price a willing buyer would give to a willing seller and must also include its potential value. Potential value means the value of the land based on the probability that if developed, considering its location and proximity to residential, commercial or industrial areas with amenities such as roads, water, gas, electricity, communication network and suitability it has the potential to be developed, which will increase its value. The value of land must include the potentiality of the land because this is the value, which the landowners would benefit from if they were able to maintain their ownership over the land. So far as the determination of potential value, there is no mathematical formula, which is applied uniformly in every case. Each case is seen in the context of its own facts but potential value has to be factored along with the market value. The objective is to ensure that the landowner not only gets the actual value of the land at the time it is acquired but also gets the value based on any future prospects attached with the use of land. Consequently, factors such as entries in the revenue record and land classifications cannot form the basis of the compensation as it does not bring out the potential value of the land and it does not factor in future prospects of the land. Although, the Land Revenue Collector is required to classify the land being acquired with its location, under Rule 10 of the Punjab Land Acquisition Rules, 1983, it is not the sole basis for calculating the estimated price of the land under acquisition.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 ref.

Compensation cannot be based on past sales of similar land in the same vicinity because potentiality cannot be determined without examining future prospects. Hence, compensation is about the value of the land, being its market value plus its potential value, so as to ensure that the landowner is duly compensated. This is fundamental to the process of award of compensation

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

----S. 23---Constitution of Pakistan, Arts. 9, 14, 23 & 24---Land acquisition---Compensation---Constitutional dimension of the right to compensation stated.

The law of acquisition is confiscatory in nature and easily deprives an individual of their property and all rights attached to it. The Constitution gives every citizen the right to acquire, hold and dispose of property in every part of the country under Article 23. Property has been interpreted to mean and include a right of proprietorship and includes every possible right or interest abstract or concrete. It includes the right to own, possess and enjoy the property. The right to own property being a fundamental right is inclusive of the right to possession, right of control and the right to derive income from the property. Accordingly, the right to own property under Article 23 of the Constitution means the right to own economically productive property associated with agriculture, commerce, industry and business. Hence, it is a source of livelihood and provides economic security to a person. This goes to the underlying right to dignity of an individual and their home, as prescribed in Article 14 of the Constitution.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Article 24 of the Constitution protects the right to own property such that no person can be deprived of his property save in accordance with law under Article 24. The exception to this fundamental right as per Article 24 is compulsory acquisition for public purpose, which means that the State can acquire private property for public purpose under the authority of law, which provides for compensation and either fixes the compensation or provides for a mechanism to fix compensation. The Constitution, therefore, mandates that if there is any acquisition by the State, it will be under a Statute, which provides for due process and compensation. So the Constitution has ensured that if acquisition is necessary it comes at a cost, which is compensation. The right to compensation under the authority of a law has a constitutional underpinning that is the protection given to the right to own property. In the context of acquisition it means that a person who owns property has to be compensated on account of being deprived of their property. When a person is deprived of their right to own property, even if in accordance with law, they are deprived of their right to control, possess and earn from that property. This deprivation is what must be compensated.

The Land Acquisition Act, 1894, is a colonial law, designed to facilitate acquisition of private land for public purpose. The law was designed to prevent a heavy burden on the public exchequer. Hence, its very objective was to acquire land at the least price possible. Despite amendments in Section 23 of the Act with the requirements to calculate market value and potential value so as to compensate the landowner, the practice remains to calculate land value based on its classification. Hence, the colonial objective and understanding of the law continues as acquisition even today, for public purpose, is at the cost of an individual's right to own property. In this context, there appears to be no effort on the part of the acquiring department to be fair in their application to determine compensation. The Constitution requires that where a person is deprived of their property under the Act, they must be compensated as per the requirements of the Act, however, the process followed and factors relied on when compensation is awarded is not close to the value of the land and is primarily based on the land classification revenue system, which lacks proximity with the market value and potential value of the land. The objective of granting a lesser value for the land acquired, is against the fundamental right to life, dignity and the right to own property.

Ideally, there should be guidelines to calculate the potential value, however, since the efforts of the government have been to undervalue the land, no real effort has gone into devising a scheme to calculate potential value over the years. This is why there is so much litigation on just this issue. Under the circumstances, there is a dire need to legislate on the issue and to devise a methodology to calculate potential value and market value so that it is neither arbitrary nor left to the whims of the Collector. This should be a priority for the government as acquisition cannot be at the expense of the financial loss of a landowner.

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

----S. 23---West Pakistan Land Revenue Assessment Rules, 1968, R.4---Land acquisition---Compensation---Land acquired falling within different categories such as Chahi Aabi Selab, Maira Rakkar Lass, Banjar Qadeem and Ghair Mumkin---Question as to whether the acquired land could be treated as one large area for purpose of determining compensation---Held, that measuring the land in small parcels, based on ownership and revenue classifications is to the disadvantage of the landowners, because it undermines the potential value particularly when the acquisition is of a large area of land for a single project---In such a situation, the landowners must be given the benefit of the potential value of the entire area being acquired and not just small pieces of land, so as to ensure that the landowners are compensated as per the expected reasonable capacity of land use---Where land is acquired for one project, the potential value of the entire area being acquired is relevant as the very purpose of the acquisition suggests that the land has future prospects.

For the Appellants (Federation)

Sajid Ilyas Bhatti, Additional Attorney General for Pakistan M. Zaheer (MEO), Abbottabad (in C.As. Nos.2150, 2154-2263 of 2019) and (C.M.As. Nos.5284-5300 of 2020).

For the Appellants (Private Parties)

S.M. Ayub Shah Bokhari, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record (in C.As. Nos.2151-2153 of 2019).

For Respondents

M. Nawaz Khan, Advocate Supreme Court (in C.A. No.2150 of 2019).

Sh. Zamir Hussain, Senior Advocate Supreme Court (in C.As. Nos.2154, 2155, 2158, 2162, 2164-2168, 2169-2172, 2174, 2177, 2178, 2180, 2182-2187, 2190, 2192 and 2193 of 2019).

Nemo for Respondents (in C.As. Nos. 5284 to 5300 of 2020).

For POF

Mustafa Ramday, Advocate Supreme Court, Rashid Hafeez, Advocate Supreme Court, Jawad Mehboob, Manager Legal, POF assisted by Ms. Zoe Khan, Advocate and Akbar Khan, Advocate (in C.As. Nos. 2151 to 2263 of 2019).

Nemo for Respondents (in remaining cases).

For Government of Punjab

Qasim Chohan, Additional Advocate General, Punjab and Naeemullah, Tehsildar, Hasanabdal.

P L D 2023 Supreme Court 298

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

Qazi NAVEED UL ISLAM---Petitioner

Versus

DISTRICT JUDGE, GUJRAT and others---Respondents

C.P. No. 3127 of 2020, decided on 12th January, 2023.

(Against the order of Lahore High Court, Lahore dated 06.10.2020, passed in Writ Petition No.10492 of 2016).

(a) Supreme Court Rules, 1980---

----O.XXVIII, R. 3---Frivolous litigation---Abusing process of the Court---Costs, imposition of---Litigation initiated by a person having no interest in the matter to avenge a private grudge---Frivolous, vexatious and speculative litigation unduly burdens the courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes---One of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980---Petition for leave to appeal was dismissed with costs of Rs.100,000/ that were to be deposited by the petitioner in the Trial Court for payment to the respondent.

Present case is a classic case of abusing the process of the court. Respondent has been punished with a penalty of pursuing an outright frivolous litigation for a period of more than a decade, just for the reason that he had got a succession certificate in his favour to receive a meagre amount of Rs.32,185/- left by his deceased father in a bank account, and that too on the applications of the persons who had no right or interest in the legacy of his deceased father rather had been in litigation over some other property first against the deceased father of respondent and after his death against respondent and his mother and siblings.

When asked, as to what right or interest of the petitioner or his predecessor was affected by the issuance of the succession certificate in favour of respondent, the answer of their counsel was nothing but that the petitioner and his predecessor had acted just as informers of the commission of offences of fraud and perjury with the court during the proceedings of the application for succession certificate. The spiteful conduct of the petitioner and his predecessor in making repeated applications and venomously pursuing them up to the Supreme Court did not paint of picture of a bona fide informer committed to unfold the offences of fraud and perjury for the love of justice, equity and fairplay. The conduct of the petitioner reeks of private vengeance against respondent and his mother and siblings, because of a simmering dispute over some other property.

In view of the stance of the sisters of respondent as to having no objection to the succession certificate issued in favour of their brother, i.e. the respondent, the trial court had rightly dismissed both the applications, the first filed by the petitioner's predecessor and the second by the petitioner, by noting the fact that the same had been filed with mala fide to avenge a private grudge and without having any interest in the matter decided by it. And the order of the trial court has correctly been maintained by the revisional court and the High Court. The present petition is completely frivolous and vexatious and the process of court has been abused just to pressurise the other side and to settle a personal score.

Such frivolous, vexatious and speculative litigation unduly burdens the courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980 ("Rules").

The petitioner has repeatedly abused the courts to advance a personal grudge by repeatedly filing vexatious and frivilous claims in various courts, not only wasting the precious time of these courts but also causing anguish and pain to the other party that unnecessary, unfair and prolonged litigation brings. Petition for leave to appeal was dismissed with costs of Rs.100,000/-, and the Supreme Court directed that the same shall be deposited by the petitioner in the trial court for payment to respondent within three months; that in case of failure by the petitioner to deposit the said costs within the prescribed time, they shall be recovered from the petitioner as a money decree with 10% monthly increase, and the costs of the execution proceedings shall also be recovered in addition thereto.

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

----S. 476---Perjury---Discretionary power of Court under section 476, Cr.P.C, to take cognizance stated.

The power conferred by section 476, Cr.P.C. on a Civil, Revenue or Criminal Court to take cognizance of certain offences committed in, or in relation to, any proceedings before it, is discretionary as evident from the expression, "may take cognizance", used in section 476, Cr.P.C. No doubt, like all other discretionary powers, the court concerned is to exercise this discretion judiciously, not arbitrarily, while taking into consideration the facts and circumstances of the case.

Abdul Hakeem v. State 1994 SCMR 1103 ref.

While exercising its discretion under section 476, Cr.P.C. the court concerned should give prime consideration to the question, whether it is expedient in the interests of justice to take cognizance of the offence. The court is to exercise this discretionary power with due care and caution, and must be watchful of the fact that its process under Section 476 is not abused by an unscrupulous litigant scheming to wreak private vengeance or satisfy a private grudge against a person.

Feroze Din v. Munir 1970 SCMR 10 and Naushaba v. Khalil Ahmad 2004 SCMR 805 ref.

(c) Supreme Court Rules, 1980---

----O.XXVIII, R. 3---Constitution of Pakistan, Art. 10A---Frivolous litigation---Abusing process of the Court---Costs, imposition of---Scope, purpose and benefits of awarding costs stated.

Frivolous, vexatious and speculative litigation unduly burdens the courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs under Order XXVIII, Rule 3 of the Supreme Court Rules, 1980 ("Rules"). The spectre of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the court fee, process fee and lawyer's fee paid in relation to the litigation. Imposition of costs in frivilous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivilous claims or defences brought to the court house but also absence of such cases allows more court time for the adjudication of genuine claims. It also incentivizes the litigants to adopt alternative dispute resolution (ADR) processes and arrive at a settlement rather than rushing to courts. Costs lay the foundation for expeditious justice and promote a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous, vexatious and speculative claims and defences. In a nutshell costs enourage alternative dispute resolution; settlements between the parties; and reduces unnecessary burden off the courts, so that they can attend to genuine claims. Costs are aweapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into court.

Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1; Province of Balochistan v. Murree Brewery Company PLD 2007 SC 386 and Arthur L.Godhart, 'Costs' (1929) 38 Yale Law Journal 849 ref.

Anis Muhammad Shahzad, Advocate Supreme Court for Petitioner.

Respondent No.3 in person.

P L D 2023 Supreme Court 306

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD IMTIYAZ---Petitioner

Versus

Ch. MUHAMMAD NAEEM and others---Respondents

Civil Petition No. 3380 of 2020, decided on 28th February, 2023.

Supreme Court Rules, 1980---

----O. XI & O. XIX---Constitution of Pakistan, Arts. 4, 10A, 178 & 191---Code of Conduct for Judges of the Supreme Court and High Courts, Arts. I, IV & IX---Supreme Court---Constitution of Benches and fixation of cases---Chief Justice and Registrar of the Supreme Court, powers of---No provision of the Constitution grants any power to the Registrar or the Chief Justice of the Supreme Court with regard to the constitution of Benches and fixing of cases---Supreme Court Rules, 1980 do not grant any power to the Registrar or to the Chief Justice to change the judge or judges on a Bench or to reduce their number---Giving preference to some cases over others and/or fixing cases out of turn and doing so without justification may demonstrate affection/ favour to one party and ill-will to others---Maintenance of the rule of law, transparency and fairness in the constitution of Benches and fixation of cases must be established to retain the independence, integrity and prestige of the Supreme Court.

Order XI of the Supreme Court Rules, 1980 stipulates that every case shall be heard by 'Judges to be nominated by the Chief Justice' and enables the Chief Justice to refer any case 'to a larger Bench' and if in any case the Judges 'are equally divided in opinion' then to place the case for hearing 'either before another Judge or before a larger Bench to be nominated by the Chief Justice'. This is the extent to which the Rules provide for the nomination of Judges on the Bench. The Rules do not grant any power to the Registrar or to the Chief Justice to change the judge or judges on a Bench or to reduce their number.

To arbitrarily reconstitute Benches undermines the integrity of the system, and may have serious repercussions. Neither Article 191 of the Constitution nor any other provision of the Constitution grants any power to the Registrar or the Chief Justice with regard to the constitution of Benches and fixing of cases. Fair trial and due process mandated by the Constitution excludes arbitrariness and the exercise of unstructured discretion.

Human Rights Case No. 14959-K of 2018; Feroze Khan v. Ghulam Nabi Khan PLD 1966 SC 424; Aman Ullah Khan v. The Federal Government of Pakistan PLD 1990 SC 1092; Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Human Rights Case No. 4668 of 2006 PLD 2010 SC 759 and Sabir Iqbal v. Cantonment Board, Peshawar PLD 2019 SC 189 ref.

Observations recorded by the Supreme Court in the case reported as M.Q.M. (Pakistan) v. Pakistan (PLD 2022 Supreme Court 439), against the use and application of unstructured, uncontrolled and arbitrary discretion are equally applicable to the Supreme Court in the (a) constitution of Benches and (b) fixation of cases to ensure uniformity, even handedness, probity and fairness.

MQM (Pakistan) v. Pakistan PLD 2022 SC 439 ref.

Every Chief Justice and Judge takes an oath which requires him/her to 'abide by the code of conduct issued by the Supreme Judicial Council' and to 'do right to all manner of people, according to law, without fear or favour, affection or ill-will.' Giving preference to some cases over others and/or fixing cases out of turn and doing so without justification may demonstrate affection/favour to one party and ill-will to others. If the Registrar, a Judge or even the Chief Justice selects particular case(s) for early hearing, without following predetermined, reasonable and fair criteria with regard to the fixation of cases, the principle of independence of the judiciary may be undermined, and, if Benches are changed arbitrarily for no justifiable reason, it creates doubts. The public may also raise question on the fairness of a system that arbitrarily favours certain citizens over others.

The maintenance of the rule of law, transparency and fairness in the constitution of Benches and fixation of cases must be established to retain the independence, integrity and prestige of the Supreme Court.

M. Shahid Tasawar, Advocate Supreme Court (Through video-link from Lahore) for Petitioner.

Nemo for Respondents.

Maulvi Anwar-ul-Haq, Advocate Supreme Court and Aftab Alam Yasir, Advocate Supreme Court on Court's Call.

P L D 2023 Supreme Court 316

Present: Ijaz ul Ahsan, Syed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

PESHAWAR ELECTRIC SUPPLY COMPANY LTD. (PESCO) and another---Appellants

Versus

SS PLOYPROPYLENE (PVT.) LTD., PESHAWAR and others---Respondents

Civil Appeals Nos. 513 to 586 of 2014 and Civil Miscellaneous Application No. 3671 of 2014 in Civil Appeal No. 542 of 2014, decided on 14th September, 2022.

(Against judgment dated 17.12.2013 of Peshawar High Court, Peshawar passed in Writ Petitions Nos. 456-P, 462-P, 513-P, 474-P, 511-P, 504-P, 1010-P, 524-P, 459-P, 507-P, 510-P, 466-P, 517-P, 521-P, 515-P, 469-P, 476-P, 473-P, 501-P, 506-P, 464-P, 259-P, 597-P, 556-P, 528-P, 525-P, 530-P, 483-P, 526-P, 531-P, 502-P, 460-P, 481-P, 470-P,.467-P, 505-P, 465-P, 520-P, 475-P of 2012, 2526-P of 2013, 519-P, 529-P of 2012, 518-P of 2014, 522-P, 503-P of 2012, 533-P of 2014, 457-P, 484-P, 458-P, 463-P, 1063-P, 527-P, 534-P, 477-P, 485-P, 523-P, 512-P, 461-P, 480-P, 468-P, 514-P, 471-P, 479-P, 555-P, 486-P, 482-P, 472-P, 532-P, 478-P, 508-P, 509-P, 516-P, 557-P and 456-P of 2012).

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

----Ss. 7(3)(a) & 7(2)(i)---National Electric Power Regulatory Authority (NEPRA)---Electricity tariff, determination of---Fuel Price Adjustment Charges ('the Charges')---Customers of Peshawar Electric Supply Company---NEPRA has the authority to impose the 'Charges' on the consumers of Peshawar Electric Supply Company---Determination of tariffs falls within the exclusive domain of NEPRA---Section 7(2)(i) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 gives NEPRA wide powers to issue guidelines and standard operating procedures which comprehensively outline the mechanism through which various tariffs, including the 'Charges', ought to be factored in the tariff.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Policy making---Economic regulation---Domain of the Executive---Determining policies is not the role of the Courts and especially those, in which the Court lacks technical expertise---In cases involving utilities and economic regulation, there are good reasons for judicial restraint and/ or judicial deference to legislative judgment; it not the responsibility of the Court to regulate economic policy---Courts must confine themselves to legal interpretation---High Court must satisfy itself that there is a breach of fundamental rights, vested constitutional/legal rights before any direction is issued---Such directions must not be based on an understanding of the law which is contrary to the Constitution.

Elahi Cotton Limited v. Federation of Pakistan PLD 1997 SC 582 ref.

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

----Ss. 7(2)(g), 12-A & 31(4)---NEPRA Determination of Consumer-end-Tariff (Methodology and Process) Guidelines, 2014, Clauses 6(d), 40(1) & 50(1)---Constitution of Pakistan, Art. 199---Electricity tariff, determination of---Consumers of Peshawar Electric Supply Company (PESCO)---Fuel Price Adjustment Charges determined by NEPRA---Legality and constitutionality---By way of impugned judgment the High Court declared the imposition of Fuel Price Adjustment Charges ('the Charges') on consumers of PESCO as unconstitutional and illegal on the basis that the Province of Khyber Pakhtunkhwa ("KP") had been discriminated against and had not received the Net Hydel Profits due to the province and therefore, the imposition of Charges on consumers of electricity in the Province was violative of their fundamental rights---Held, that the non-payment of Net Hydel Profits is an entirely different and distinct matter which does not concern consumer-end tariff, which is designed to ensure recovery of the revenue requirement of the Electricity Distribution Companies (DISCOs)---Fact that Province of KP had not received Net Hydel Profits related to a dispute between the Government of KP and the Federal Government which should more appropriately be raised before the appropriate forum, rather than the High Court---Even otherwise, there was nothing on the record which showed that the mechanism for recovery of the Charges was either arbitrary or discriminatory---To the contrary, NEPRA after an elaborate, open and transparent process that involved hearing all interested stake holders and careful scrutiny of the various components of the claimed rate of tariff suggests a uniform consumer tariffs across the country in line with Section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ('the 1997 Act')---Licensing agreement of the PESCO with NEPRA specifically provided that the licensee i.e., PESCO shall only charge such tariff as approved by the Authority from time to time---As such, PESCO did not have any discretion to determine the 'Charges', rather, it was required to recover the Charges fixed by NEPRA---Furthermore the High Court could not have assumed jurisdiction in the present matter when alternate remedies existed under sections 7(2)(g) and 12-A of the 1997 Act and were admittedly not availed---Appeals were allowed and impugned judgment of High Court was set-aside with the observations that no matter which province generates more electricity, it must first go into the national basket where the electricity is stored collectively rather than separately on a provincial basis on requirement and capacity basis; that thereafter the units purchased by them are dispatched to DISCOs which then provide electricity to end consumers; that margins administrative costs, line loses repair and upkeep costs of DISCOs being part of the recoverable tariff are included in the tariff as their claims for such costs after due scrutiny and analysis and included in the consumer tariff determined by NEPRA.

Tariq Transport Company Lahore v. Sargodha Bhera Bus Service PLD 1958 SC 437 and Elahi Cotton Limited v. Federation of Pakistan PLD 1997 SC 582 ref.

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

----S. 31(4)---Constitution of Pakistan, Arts. 154(1) & 157(2)(d)---Electricity tariff, determination of---Domain of National Electric Power Regulatory Authority (NEPRA), and not that of the Provincial Government or Council of Common Interest---Article 157(2)(d) of the Constitution is an enabling provision of the Constitution and therefore it does not make it mandatory for the Provincial Government to determine the rate of (electricity) tariff---Similarly it is not the responsibility of the Council of Common Interests ('CCI') to determine tariffs---Even if the CCI devises guidelines for the imposition of tariffs, the same cannot contradict the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Even if any Province legislates on the matter of electricity, the same would not only be against Part II of the Federal Legislative List, but, in the event of any provision of provincial law dealing with the subject being in conflict with federal law; provisions of the latter would prevail.

Gadoon Textile Mills v. WAPDA 1997 SCMR 641 ref.

For the Appellants

Munawar us Salam, Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record (in C.As. Nos. 513-585 of 2014).

Shamshadullah Cheema, Advocate Supreme Court and Sh. Mehmood Ahmad, Advocate-on-Record (in C.A. No. 586 of 2014).

For NEPRA

Muhammad Ashraf Majeed, Advocate Supreme Court.

On Court's Notice

Ayyaz Shaukat, D.A.G., Zahid Yousaf Qureshi, Addl. A.G., Khyber Pakhtunkhwa and Ms. Mehnaz, Law Officer for Secretary Energy and Power Department, Khyber Pakhtunkhwa.

For PESCO

Irfan Riayat, Chief Law Officer and Muhammad Tofeeq, Law Officer.

P L D 2023 Supreme Court 340

Present: Umar Ata Bandial, C.J. Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

SHAH ZAMAN KHAN and others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Civil Appeals Nos. 329 to 346 of 2022, decided on 7th February, 2023.

(On appeal from the judgment dated 24.03.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Civil Revisions No. 43-M/15 and 103-M/16 and Writ Petitions Nos. 287-M, 358-M, 699-M/2016, 353-M, 551-M/2017, 880-M, 974-M, 1245-M/ 2019, 627-M/2020, 612-M, 613- M/2019, 57-M and 166-M/2021).

(a) Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss. 6(1)(c), 17, 18(4), 29 & 92---Forest Act (XVI of 1927), S. 29 (since repealed)---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 172---Qanun-e-Shahadat (10 of 1984), Art. 100---Protected forest land---Civil court---Bar of jurisdiction---In the present case none of the private parties had alleged and showed that they (or their stated predecessors-in-interest) were the recorded owners of the subject lands either under the land revenue or under any other law, nor had they relied upon any official record of the Government or of its predecessor-in-interest (the State of Swat) in support of their claims---Private parties had based their claims on private documents or on mere assertions---Private parties did not produce nor referred to any document which pre-dated the Notification through which the subject area was declared to be a protected forest, nor any after the Notification's issuance; they also did not prefer a claim to the settlement authorities, nor challenged the record of rights prepared in the year 1986---Record which was produced or referred to by them showed that the Forest Department of the Government was the owner of the subject lands---Private parties were also effectively assailing the survey of the land and the determination of the boundaries of the Forest Department of the Government which had been undertaken---Assailing the same was also not within the jurisdiction of the civil courts---Private parties did not allege that the issuance of the Notification was mala fide or without jurisdiction, or that an order was passed against them which was coram non judice, which may have enabled them to access the courts---Furthermore the Khyber Pakhtunkhwa Forest Ordinance, 2002 did provide a remedy to the private parties, but it was not availed---Private parties had sought the constitution of the Forest Settlement Board for the re-determination of a forty-year-old matter; a rebuttable presumption of legality attached to thirty-year-old documents produced from proper custody---High Court had legally erred in referring the private parties to the civil court for the adjudication of matters over which the civil court did not have jurisdiction---Appeals filed by the private parties were dismissed, while those filed by the Government were allowed by setting aside the impugned judgment of the High Court.

Ramachandra v Secretary of State ILR Vol. XII 1889, 105; The Governor and Company of the Cast Plate Manufactures v. Meredith 4 T.R. 794; Steven v. Jeacoke 11 Q.B. 731; West v. Downman L.R. 14 Ch. D. 111; Muhammad Siddique v. Noor Bibi 2020 SCMR 483, 485A and General Manager, SNGPL v. Qamar Zaman 2021 SCMR 2094 ref.

Azam Khan Affandi v. Deputy Commissioner 2000 SCMR 548 distinguished.

(b) Jurisdiction---

----Ouster of jurisdiction clause---Interpretation---Provision ousting the jurisdiction of a civil court is to be construed strictly and established rights cannot be disturbed, nor can an ouster clause deprive anyone of property---Ouster clause can also not be used to create injustice or hardship, but, this does not mean that the ouster clause is of no legal effect---Another factor to consider in determining the scope of the ouster of jurisdiction is to examine whether those who may be affected are provided with an alternative remedy.

(c) Environmental laws---

----Climate change---Preservation of forests and trees---Climate change and its dimension with respect to Islam explained.

Climate change is not just a future threat but a present reality. The planet is in crisis and disasters are accelerating disasters. Climatic events of unprecedented severity are being witnessed. The unilateral and unsustainable pillage of the earth's resources has left humanity, and all other species, vulnerable. Excessive burning of fossil fuels has heated up the earth's temperature and when forests, which sequester carbon emissions are stripped away, its effect is compounded. Carbon fuel extraction needs to correlate with the available trees, plants and phytoplankton which store emissions. The causes of climate change and the catastrophic events that it unleashes are (by now) empirically established, yet the problem is not being addressed with the requisite urgency and seriousness. Simple mitigation measures are also not implemented. Carbon emissions, and not trees, have to be cut down.

The natural world is an epiphany yet the extraordinary bounty of nature and creation's perfect balance has been disrupted. The warning not to tamper with nature's balance is not heeded. Some view nature as an inert repository of resources to subdue, remove and deplete, and profiteering as their right. As the land becomes impoverished so too does the scope of their vision. Reverence for the natural world has become peripheral. Humanity needs to regain its lost consciousness and its primordial link to nature. Humans must assume their responsibility as trustees of the earth and of all of creation; and, not to be deaf and dumb, engulfed in darkness. The trees of the forest are sentient beings and, like human beings, part of the biotic community. In regaining their trusteeship humans also salvage their humanity, and save themselves and their progeny.

Al-Qur'an, Al-Hijr (15) verse 19; Al-Rahman (55) verse 7; Ibid., Al-Rahman (55) verse 8; Robin Will Kimmerer (Professor of Environmental and Forest Biology at the State University of New York), 'Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowldege and the teaching of Plants,' 2013; 'Fitrat ', Al-Qur'an, Al-Rum (30) verse 30; Al-Fatir which means the Originator or The Creator is also one of the names of God, Al-Qur'an, Fatir (35); Al-Anam (6) verse 14, Yusuf (12) verse 101; Ibrahim (14) verse 10; Az-Zumar (39) verse 46; Ash-Shura (42) verse 11; Khalifah fil ardh', Al-Qur'an, Al-Baqarah (2) verse 30; Al-Anam (6) verse 165; Al-Qur'an, Ad-Dukhan (44) verse 38; Al-Qur'an, Al Jathiyah (45) verse 22; Al-Qur'an, Al-Anam (6) verse 39; Al-Qur'an: Al-Hajj (22) verse 18; Al-Isra (17) verse 44; An-Nahl (16) verses 48-50 and Al-Hadid (57) verse 1 ref.

For the Appellants:

Muhammad Jawaid, Advocate Supreme Court (in C.As. Nos. 329, 331 and 332 of 2022).

Sabir Shah, Advocate Supreme Court (in C.A. No. 330 of 2022).

Shumail Butt, Advocate-General, KP. and Mian Shafaqat Jan, Addl. A.G., Khyber Pakhtunkhwa.

Atif Ali Khan, Addl. A.G., Khyber Pakhtunkhwa.

Babar Shahzad, Addl. A.G., Khyber Pakhtunkhwa (in C.As. Nos.333-346 of 2022).

For the Respondents:

Shumail Butt, Advocate-General, Khyber Pakhtunkhwa.

Mian Shafaqat Jan, Addl. A.G., Khyber Pakhtunkhwa and Atif Ali Khan, Addl. A.G., Khyber Pakhtunkhwa.

Babar Shahzad, Addl. A.G., Khyber Pakhtunkhwa (in C.As. Nos. 329-332 of 2022).

Khawaja Salahuddin, Advocate Supreme Court (in C.As. Nos. 333, 335-337, 342 and 343 of 2022).

Sabir Shah, Advocate Supreme Court (in C.A. No. 340 of 2022).

Muhammad Qasim, Attorney in-person. (in C.A. No. 346 of 2022).

Date of hearing: 7th September, 2022.

These eighteen appeals arise out of petitions in which leave to appeal was granted, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan ('the Constitution'). All of them challenge the judgment dated 24 March 2021 of the Mingora Bench (Dar-ul-Qaza) of the Peshawar High Court. Four appeals (Civil Appeals Nos. 329 to 332 of 2022) have been filed by private parties and fourteen appeals (Civil Appeals Nos. 333 to 346 of 2022) have been filed by the Government of Khyber Pakhtunkhwa ('the private parties' and 'the Government' respectively). A few of the civil petitions for leave to appeal were belatedly filed, that is, the petition from which Civil Appeal No. 330 of 2022 arises, was filed by a private party, and petitions from which Civil Appeals Nos. 338 to 341 and 344 to 346 of 2022 arise were filed by the Government, and leave therein was granted subject to limitation. Both sides had belatedly filed petitions, however, most petitions assailing the same judgment were filed within time and as we will be examining the same impugned judgment, therefore, the delay in filing those petitions is condoned.

1. The leave granting order dated on 21 March 2022 is reproduced hereunder:

'Civil Petition Nos. 3496, 4038 and 4039 of 2021: The learned counsel representing the private petitioners state that while the impugned judgment permits them to file suits before a civil court to establish their individual rights to land which they allegedly own but since such land is within the area declared to be a protected forest vide Notification No. SOFT(FAD)V-168/71(i) dated 17 February 1976, issued under section 29 of the then Forest Act, 1927 ('the Notification'), the stated permission to file suits is illusory because the courts, where such suits may be filed, have been prevented from de-notifying any area. They further state that the Notification did not specify any particular area, and since it affects private property rights it should be amenable to challenge. They have also placed reliance upon the case of Azam Khan Affandi v. Deputy Commissioner (2000 SCMR 548).

2. Civil Petition Nos. 367-P, 368-P, 369-P, 370-P, 371-P, 376-P and 377-P of 2021: The learned Additional Advocate-General, Khyber Pakhtunkhwa ('the learned AAG') states that the Notification attained finality in view of section 9 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 ('the Ordinance'), which replaced the Forest Act, 1927, and that section 92 of the Ordinance prohibits civil courts to exercise jurisdiction. He further states that in respect of the lands mentioned in the Notification there were no record of rights but subsequently settlement proceeding took place in the year 1985-1986 and if the petitioners before the High Court were aggrieved by such settlement they should have assailed the same within time and before the appropriate forum, and could not do so by filing writ petitions before the High Court in the year 2016 nor could the High Court permit them to now file suits.

3. Both the private petitioners and the Government of Khyber Pakhtunkhwa are not satisfied with the common impugned judgment and as a number of points requiring determination have been raised we grant leave to appeal in all these petitions to consider the same and any other points raised therein.'

It was further ordered that both sides should maintain status quo in the following terms:

'Both sides are directed to maintain status quo. However, till the disposal of the appeals there shall be no logging and/or cutting of trees in the protected areas of forest mentioned in the Notification, nor shall the Government permit anyone to do so.'

1. The private parties asserted ownership rights to lands situated in the former State of Swat. The State of Swat acceded to Pakistan on 3 November 19471 and its accession was accepted by Mr. M. A. Jinnah in his capacity as the Governor General of Pakistan. Subsequently, the administrative control of Swat was taken over by the then Government of West Pakistan.2 Thereafter, two regulations were enacted to attend to disputes pertaining to the lands situated in the former State of Swat3 ('the Regulations'). However, the private parties did not assert their purported rights under the Regulations.

2. The Notification was issued on 17 February 1976 under section 29 of the Forest Act, 1927. Through the Notification all forest lands in Swat (and certain other areas) were declared as 'protected forests'. The Forest Act, 1927 was repealed by subsection (1) of section 120 of the Forest Ordinance, 20024 ('the Forest Ordinance'). However, all notifications that had been issued under the Forest Act, 1927, including the Notification, were saved by subsection (2) of section 120 of the Forest Ordinance.

3. Section 29 of the Forest Act, 1927 and section 29 of the Forest Ordinance pertained to 'protected forests' and are similarly worded. Section 29 of both these laws empowered the Government to declare 'any forest land or wasteland as a protected forest' after determining the 'rights of Government and of private persons, in or over the forest or wasteland comprised therein, have been inquired into and recorded at a survey or settlement, or in such other manner'5 as the Government thought sufficient or appropriate. Once such determination was made, then 'every such record shall be presumed to be correct',6 unless the contrary was proven.

4. The private parties contended that the permission granted to them to file suits in civil courts by the impugned judgments is illusionary, as the same judgment held that the civil court 'cannot order any notified reserved or protected forest to be de-notified'. Their case was that they were the owners of lands which had been declared as 'protected forests', therefore, they had challenged the Notification. Some filed suits, others directly filed writ petitions in the High Court and those whose plaints were rejected under Order VII, Rule 11 of the Code of Civil Procedure, 1908 filed civil revisions in the High Court. The plaints were rejected because the suits were held to be barred under section 92 of the Forest Ordinance, which stipulates that, 'Except as provided in section 93, no Civil Court shall exercise jurisdiction over any of the matters relating to the implementation of this Ordinance or rules made there under'. In certain other cases the private parties, who had lost their cases on merit, re-agitated the matter by filing fresh suits. The learned Judges of the Division Bench, through the common judgment dated 24 March 2021, decided all the writ petitions and civil revisions, and this judgment is assailed both by the private parties and the Government; their respective contentions at the leave granting stage were recorded in order dated 21 March 2022 (reproduced above).

5. In addition to the submissions noted in the leave granting order it was contended on behalf of the private parties that the bar contained in section 92 of the Forest Ordinance is not absolute and that it cannot be used to divest the private parties of their land, particularly when section 5(1)(c) of the Forest Ordinance envisages the constitution of a Forest Settlement Board for the specific purpose of inquiring into and determining, 'the existence, nature and extent of any rights, alleged to exist in favour of any person in or over any land comprised within such limits or forest produce there from'. Therefore, the Government be directed to constitute a Forest Settlement Board to decide the claims of the private parties.

6. The learned Advocate-General Khyber Pakhtunkhwa ('AG') represents the Government and, in addition to what was recorded in the leave granting order, submitted that the Notification was issued in the year 1976 and was only challenged in the year 2016, that is, after a period of forty years, without offering any explanation for the belated challenge. He further submitted that everyone knew that the settlement of the land in Swat was being undertaken, which took twelve years, whereafter ownership rights were recorded in the year 1986. The lands claimed by the private parties were owned by the Forest Department of the Government and the record of rights (haqdaran-e-zamin) reflected this and also that the same were 'protected forests'. Responding to the contention, that the Forest Settlement Board should again be constituted to decide the claims of the private parties, the learned AG stated that before the issuance of the Notification the Forest Settlement Board had already determined that the said lands were owned by the Forest Department of the Government and that the lands constituted 'protected forests'. Therefore, the matter could not be reopened (after forty years), and sent for re-determination by the Forest Settlement Board, which had ceased to exist. The learned AG stated that the private parties had not sought resort to the Regulations; had not assailed the Notification within a reasonable period of its issuance; and, had not agitated their purported rights when the settlement/land revenue records were prepared, wherein they were not shown as owners. The said lands, he submitted, were owned by the former State of Swat and comprised of forests and when the State of Swat acceded to Pakistan they came to vest in the Government. He alternatively submitted that, if it be assumed that the said lands were ownerless then as per the Constitution it shall vest in the Government.7

7. The learned Judges of the High Court had framed the following three questions for determination:

'a) Whether the [Forest Settlement] Board provided under section 5 of the Forest Ordinance as a forum for settlement of disputes has been a continuous phenomenon to which any dispute arising at any time may be referred and settled there-under or same is relevant at the time when a forest is declared as reserved or protected forest for the first time?

b) Whether the bar of jurisdiction contained in Section 92 of the Forest Ordinance would be an absolute bar, debarring any civil suit, wherein certain rights are claimed in immovable property and in defence, it is alleged that the property had ever been declared as protected or reserved forest?

c) What forum would be available to a person whose property is wrongly claimed as reserved or protected forest?'

1. With regard to the aforesaid question (a) the learned Judges of the High Court held, that:

'21. What is important to be noted in clause (c) of Section 5 of the Forest Ordinance, is that said clause had been part of subsection (1) of Section 5 of the Forest Ordinance. It cannot be read disjunctively from rest of the text of subsection (1), wherein it has been provided that whenever it is decided to constitute any land as a reserved forest Government shall by notification in the Official Gazette declare that it has been decided to constitute such land as a reserved forest. Such a declaration is made at the time when the process for declaring such land as reserved forest is initiated for the first time. Sections 4, 5 and 6 leave no doubt that all such activities of constitution of the Board and the procedure following therein has been provided to be carried only at the time of declaring any area as reserved forest. Section 9 of the Forest Ordinance has then provided the effect of such declaration, which is also reproduced hereunder for ready reference:

9. Extinction of rights. Rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished, unless, before the notification under section 20 is published, the person claiming them satisfies the Board that he had sufficient cause for not preferring such claim within the period fixed under section 6.

This makes it clear that any right which is not claimed at the time of declaration being made shall seize [sic] to have been existing unless before publication of such notification an appeal is preferred under section 20 of the Forest Ordinance. In other words, when an area is declared as reserved forest and no appeal has been preferred at the relevant time i.e. before publication of the notification to said effect (under section 20 of the Forest Ordinance), then no right can be claimed subsequently in a reserved forest nor can such declaration be revisited by any Board. In other words, with issuance of notification under section 20 of the Forest Ordinance, the forum of Board would become functus officio.

Section 23 of the Forest Ordinance has provided that no right of any description shall be acquired in or over a reserved forest, except by succession or under a grant or contract in writing made by or on behalf of Government or some person in whom such right was vested when the notification under section 20 of the Forest Ordinance was issued. Meaning thereby that such a right of succession or other rights had to be settled by the Board or by the appellate forum, provided under section 17 of the Forest Ordinance before a notification of a reserved forest is issued under section 20 of the Forest Ordinance. All such provisions have also been pari materia to the provisions of the Forest Act, 1927.'

The High Court held that after the issuance of the Notification the Forest Settlement Board became functus officio. And, affirmatively answered question (a) by holding that, 'no right of any description shall be acquired in or over a reserved forest' and no valid reason has been put forward to persuade us to take a different view.

1. Question (b), framed by the High Court (above), was decided as under:

'23. In our estimation, the question whether certain land has or has not been part of the declared protected or reserved forest, would be a question which may be raised and decided by a civil Court having territorial jurisdiction in the area.'

The following was the reason given for the aforesaid decision:

'The Board has nowhere been given any power or authority to declare any entries in the revenue record to be wrong, illegal or ultra-vires or to declare questions of ownership of persons whose property has been lying outside the limits of protected or reserved forest. Such has been the exclusive domain of civil Courts vested in them by Section 9, C.P.C., Section 53 of the West Pakistan Land Revenue Act, Sections 42 and 54 of the Specific Relief Act and other relevant laws. No such jurisdiction has ever been vested in the forum of Board even under the provisions of the Forest Ordinance, the earlier law on the subject or any other law.'

And, with regard to the above noted question (c) the High Court held that, since the civil court has jurisdiction, 'therefore this question is also accordingly decided'.

1. However, an examination of the cases reveal that none of the private parties had alleged and showed that they (or their stated predecessors-in-interest) were the recorded owners of the said lands either under the land revenue or under any other law, nor had they relied upon any official record of the Government or of its predecessor-in-interest (the State of Swat) in support of their claims. The private parties had based their claims on private documents or on mere assertions, as under:

| | | | | --- | --- | --- | | Civil Appeal No. | The private parties claim | Observations | | 329/2022 | The claim is based on a private sale deed dated 7 March 1978. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimant or his predecessor-in-interest either in the column of cultivator/possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 330/2022 | The claim is based on an oral asser-tion of ancestral owner-ship and of purchase. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2011-12, which does not mention either the claimant or his predecessor-in-interest in the column of owner. The claimant is mentioned in the column of possessor as nao-tor of some portion of the disputed land. However, it was not the case of the claimant that his possession was being disturbed nor that the said entry was being changed. The ownership of the land is shown to be of the Forest Department and the land is described as 'Protected Forest'. | | 331/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Provincial Government and possession of the Forest Department. | | 332/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Provincial Government and possession of the Forest Department. | | 333/2022 | The basis of the claim has not been specified. | No document was produced. | | 334/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimant or his predecessor-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 335/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 336/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimant or his predecessor-in-interest in the column of owner. The claimant is mentioned in the column of possessor and to be in possession of some portion of the disputed land, but without specifying the status of his possession. However, it was not alleged that he was being dispossessed or the said entry was changed. The ownership of the land is shown to be of the Forest Department and the land is described as 'Protected Forest'. | | 337/2022 | The claim is based on an oral assertion of ancestral ownership and of purchase. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2003-04, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 338/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their prede-cessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Provincial Government and possession of the Forest Department. | | 339/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Provincial Government and possession of the Forest Department. | | 340/2022 | The claim is based on a purported deed and decision dated 17 September 1947. | Neither the deed nor the decision has been produced. | | 341/2022 | The claim is based on a sale deed dated 21 September 1968, in favour of a predecessor of the claimants. | The said deed has not been produced. The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 342/2022 | The claim is based on an oral assertion of ancestral ownership and of purchase. | No document was produced. | | 343/2022 | The claim is based on an oral assertion of ancestral ownership and of purchase. | The only extracts produced from the registers of Haqdaraan-e-Zamin are of the years 2012-13 and 2013-14, which do not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. They show ownership of the Forest Department and the land is described as 'Protected Forest'. | | 344/2022 | The claim is based on a sale deed dated 30 October 1955, in favour of a predecessor of the claimants. | The said deed has not been produced. The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 345/2022 | The claim is based on a sale deed dated 4 September 1967, in favour of a predecessor of the claimants. | The said deed has not been produced. The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2012-13, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. | | 346/2022 | The claim is based on an oral assertion of ancestral ownership. | The only extract from the register of Haqdaraan-e-Zamin produced is of the year 2006-07, which does not mention either the claimants or their predecessors-in-interest either in the column of cultivator/ possessor or in the column of owner. It shows ownership of the Forest Department and the land is described as 'Protected Forest'. |

1. The private parties did not produce nor referred to any document which pre-dated the Notification issued in 1976, nor any after the Notification's issuance. They also did not prefer a claim to the settlement authorities, nor challenged the record of rights prepared in 1986. The record which was produced or referred to by them (mentioned in paragraph 12 above) showed that the Forest Department of the Government was the owner of the said lands. The High Court incorrectly assumed that the said lands were wrongly claimed by the forest department, and then on this (wrong) premise held, that:

'...the civil Court would have jurisdiction for entertaining suit of a person whose property may be wrongly claimed by officers of the forest department or anyone else to be part of protected or reserved forest...'

1. The High Court had, on the basis of mere assertions, held that the civil courts had jurisdiction, and this was done by rendering the following bar of jurisdiction8 superfluous:

'92. Bar of jurisdiction. Except as provided in section 93, no Civil Court shall exercise jurisdiction over any of the matters relating to the implementation of this Ordinance or rules made thereunder.'

1. The private parties were also effectively assailing the survey of the land and the determination of the boundaries of the Forest Department of the Government which had been undertaken.9 Assailing the same was also not within the jurisdiction of the civil courts.10

2. Undoubtedly, a provision ousting the jurisdiction of a civil court is to be construed strictly and established rights cannot be disturbed, nor can an ouster clause deprive anyone of property. An ouster clause can also not be used to create injustice or hardship. But, this does not mean that the ouster clause is of no legal effect. Another factor to consider in determining the scope of the ouster of jurisdiction is to examine whether those who may be affected are provided with an alternative remedy. The Forest Ordinance did provide a remedy11 but it was not availed.

In a case12 under the Madras Forest Act, 1882, it was held that:

'It is an established principle that when by an act of the legislature powers are given to any person for a public purpose from which an individual may receive injury, if the mode of redressing the injury is pointed out by the statute, the jurisdiction of the ordinary courts is ousted, and in the case of injury, the party cannot proceed by action. See The Governor and Company of the Cast Plate Manufactures v. Meredith,13 Steven v. Jeacoke,14 West v. Downman.15

This Court has also applied the aforesaid principle:

'...where a special remedy is provided for under the law, it may not be bypassed and the Civil Courts should not be approached directly without exhausting the highest forum in the authority.16

And, in another case17 it was held that:

'An exclusive jurisdiction has been conferred on the Authority for determining the disputes referred to in the Ordinance which reflect the intent of the legislature. In such like situation, the jurisdiction of Authority is exclusive, and the jurisdiction of Civil Court is barred.'

1. The private parties did not allege that the issuance of the Notification was mala fide or without jurisdiction, or that an order was passed against them which was coram non judice, which may have enabled them to access the courts. The facts of their cases are altogether different from the Azam Khan Affandi case (relied upon by them). In that particular case both Azam Khan Affandi and the Forest Department lay claim to the compensation with regard to the land which had been compulsorily acquired for the construction of a hydropower station, which land consequently did not remain as a forest. The facts in that case were determinative. There was a preponderance of evidence to establish Azam Khan Affandi's ownership. The law applicable in that case was the Forest Act, 1927, which did not contain a bar of jurisdiction provision. Moreover, in the Azam Khan Affandi case, neither the revenue nor any other official record showed that the land was owned by the Forest Department of the Government.

2. In the instant case the Forest Department of the Government had not done anything to adversely affect any purported right of the private parties. Instead, the private parties wanted long standing settlement/ revenue records changed in their favor, by belatedly challenging the Notification. The private parties had sought the constitution of the Forest Settlement Board for the re-determination of a forty-year-old matter; a rebuttable presumption of legality attaches to thirty-year-old documents produced from proper custody.18 The learned Judges had overlooked the fact that neither the private parties nor their predecessors-in-interest were shown to be the owners of the lands claimed by them either in the revenue record or in any other official record, yet, they held that the civil court would have jurisdiction. In the facts and circumstances of the case, the High Court had legally erred in referring the private parties to the civil court for the adjudication of matters over which the civil court did not have jurisdiction.

3. The rationale of the law which ousts the jurisdiction of civil courts and what it seeks to achieve is also required to be considered. The Forest Ordinance was enacted, amongst other reasons, for the protection and conservation19 of forests in the Province and this was done in the public interest. Pakistan has been denuded of its forests and not nearly enough has been done to protect the remaining forests. An academic-scientific report states that Pakistan lost 14.7% of its forest habitat between 1990 and 2005.20 And, from 2000 to 2020, Pakistan experienced a net change of 94.8 thousand hectares (4.5%) in tree cover.21 The importance of forests is by now well established. Forests are necessary to promote headwater conservation for the alleviation of floods and water shortages.22 Forests aid in the prevention of disasters and provide a stable supply of water (one tree can retain ground water up to 30,000 liters23). Denuding land of forests and trees has catastrophic effects including avalanches, flash floods, silting up of rivers, lakes and dams, the accumulation of carbon dioxide (a greenhouse gas) and climate change. Forests and trees remove carbon dioxide; over a one-year period a mature tree absorbs about 22 kilograms of carbon dioxide from the atmosphere, and in exchange releases oxygen.24 The European Environmental Agency has determined that in a year, 1.3 million trees are estimated to remove more than 2,500 tons of pollutants from the air.25

4. The Forest Ordinance was also enacted to preserve ecological significance,26 the integrity of the ecological system27 and to promote the understanding of environmental significance.28 Reduction in forest and tree cover harms ecosystems and consequently the animals, birds and insects dependent on them, and results in the loss of biodiversity. The Forest Ordinance is a beneficial piece of legislation, but this important aspect was not considered by the High Court before it proceeded to negate the bar of jurisdiction provision (section 92 of the Forest Ordinance).

5. We must also not lose sight of a most startling fact. Pakistan is amongst a score of countries which are disproportionately vulnerable to the consequences of climate change.29 To ignore the reality of climate change is to be unjust and it disregards future generations. This Court has held that:30

'19. Another important dimension of climate change is intergenerational justice and the need for climate democracy. The tragedy is that tomorrow's generations aren't here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This Court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country.'

'The preambular constitutional value of democracy under our Constitution is in effect climate democracy, if we wish to actualize our Constitution and the fundamental rights guaranteed under the Constitution for ourselves and our future generations.'

P L D 2023 Supreme Court 359

Present: Yahya Afridi and Syed Hasan Azhar Rizvi, JJ

KHAN AFSAR---Petitioner

Versus

Mst. QUDRAT JAN (widow) and others---Respondents

Civil Petitions No.3573 and 3574 of 2020, decided on 10th March, 2023.

(Against the judgment dated 14.09.2020, passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.105 -A of 2017 and Writ Petition No. 166 -A of 2010).

Limitation Act (IX of 1908)---

----Sched. I, Art. 148---Commencement of period of limitation for a mortgagor to redeem the mortgage---Scope---Cause of action for a mortgagor to redeem the mortgage and recover the possession of the mortgaged property would commence from the point when the mortgagor can, under the terms of the mortgage, redeem the mortgage property or recover the possession thereof---Thus, the crucial determining factor for commencement of the period of limitation would depend on the terms of the mortgage agreement entered into between the parties---Different scenarios explaining the commencement of period of limitation in view of the terms of a mortgage agreement stated.

The crucial determining factor for commencement of the period of limitation for a mortgagor to redeem the mortgage would depend on the terms of the mortgage agreement entered into between the parties.

The situations that may arise include the following scenarios, summarized as under:

(i) Where, under the terms of the agreement, a specific date has been fixed for payment of mortgage debt. In such a case, the money can only be payable after the expiry of that period and no right to redeem the mortgaged property can legally be entertained before the said date. A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would start running from the date so agreed to redeem the mortgage or recover possession of immovable property mortgaged under Article 148 of the Limitation Act.

Nazeef v. Abdul Ghaffar PLD 1966 SC 267 and Mohabat Khan v. Hazrat Jan PLD 1988 SC 102 ref.

(ii) Where, under the terms of the agreement, the mortgage is for a fixed period but without a specific date of expiry of the term. In such a case, the right of redemption can only arise on the expiration of a specified period and not before. A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would commence from the expiry of the period so fixed.

Sher Muhammad v. Amanat Khan 1991 MLD 1267 and Habibullah v. Mahmood 1984 CLC 309 ref.

(iii) Where, under the terms of the agreement, neither any specific date nor any term is fixed. In such a case, a suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would run from the date of the agreement of mortgage.

Abdul Hanan v. Kapoor Khan 1970 SCMR 633; Karam Elahi v. Member, Board of Revenue, N.-W.F.P. 1996 SCMR 1215 and Muhammad Luqman v. Allah Diwaya 2006 SCMR 718 ref.

Muhammad Shuaib Abbasi Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in both cases).

Nemo for Respondents.

P L D 2023 Supreme Court 362

Present: Umar Ata Bandial, Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

SAADAT KHAN and others---Petitioners

Versus

SHAHID-UR-REHMAN and others---Respondents

Civil Petition No.262-P of 2017, decided on 23rd September, 2021.

(Against the order of Peshawar High Court, Peshawar dated 10.4.2017, passed in C.R. No.411-P of 2014).

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

----S. 42---Limitation Act (IX of 1908), S. 18 & Sched. I, Art. 120---Inheritance---Female heirs---Suit instituted by a female legal heir against her brother for declaration of her ownership rights as to the property left by her deceased father in his inheritance---Limitation---Period of limitation for filing such suit; the principles relating to accrual of right to sue and the criterion for determining the actual denial of female heir's rights as to joint property stated.

As per the residuary Article 120 of Schedule-I to the Limitation Act 1908, a suit for which no period of limitation is provided elsewhere in the Schedule, the period of limitation for that suit is six years from the time when the right to sue accrues. No specific Article of Schedule-I to the Limitation Act, 1908 provides a period of limitation for a suit instituted by a person, under Section 42 of the Specific Relief Act 1877, for declaration of his ownership rights to any property against a person denying his said rights; therefore, the residuary Article 120 applies to such suit. A suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific relief Act 1877. The actual denial of rights gives rise to a compulsory cause of action and obligates the plaintiff to institute the suit for declaration of his/her rights, if he/she wants to do so, within the prescribed period of limitation; while in case of a threatened denial of rights, it is the option of the plaintiff to institute such a suit on a particular threat. On the actual denial of rights, the cause of action and the consequent right to sue matures for instituting the suit for declaration; whereas every threatened denial of rights gives rise to a fresh cause of action, and thus a fresh right to sue accrues on such a denial.

The obligations of the brothers to their sisters, as co-sharers of joint property, are further augmented when viewed in the light of the Islamic law and jurisprudence. Because of the fiduciary and protecting relation of the brothers to their sisters, they cannot claim their possession of the joint property adverse to the rights of their sisters; possession of the brothers is taken to be the possession of their sisters. Mere omission to pay a share of the profits or produce of the joint property to their sisters by the brothers in possession of the joint property does not in itself constitute a repudiation of the sisters' rights, nor does a wrong entry as to the inheritance rights in the revenue record oust the sisters from their ownership of the joint property as the devolution of the ownership of the property on legal heirs of a person takes place under the Islamic law of inheritance immediately on the death of that person without any intervention of anyone and without the sanction of the inheritance mutation in the revenue record. The position is, however, different when the brothers in possession of the joint property make a fraudulent sale or gift deed or get sanctioned some mutation, whether of sale or gift etc, in the revenue record claiming that their sisters have transferred their share in the joint property to them, or when they on the basis of a wrong inheritance mutation start selling out or otherwise disposing of the joint property claiming them to be the exclusive owners thereof. In such circumstances, the brothers by their overt act expressly repudiate the rights of their sisters in the joint property, and oust them from the ownership of the joint property. Their acts are, therefore, a clear and actual denial of the rights of the sisters, which give rise to a compulsory cause of action and obligates the sisters to institute the suit for declaration of their rights, if they want to do so, within the prescribed period of limitation.

Ghulam Ali v. Ghulam Sarwar PLD 1990 SC 1 ref.

Although, by the above mentioned acts of the brothers, the right accrues to the sisters to sue for declaration of their rights, but if they by means of fraud are kept from the knowledge of those overt acts, the time limit of six years provided in Article 120 for instituting the suit for declaration against brothers or any person claiming through them otherwise than in good faith and for a valuable consideration, is to be computed from the time when the fraud of the brothers first became known to the sisters, by virtue of the provisions of Section 18 of the Limitation Act. The "fraud" contemplated by Section 18 means suppression of those acts or transactions that give rise to the cause of action from coming into the knowledge of the plaintiff. A deliberate concealment of facts intended to prevent discovery of the right to sue is also a "fraud" within the meaning of the term used in Section 18, but an open act of a party cannot be said to be a fraudulent act of concealment and is therefore not covered by this Section. The benefit of Section 18 is, however, not available against any person who though claims through the defrauding party but is a transferee in good faith and for a valuable consideration. That is why the Supreme Court treats differently the two types of cases: (i) where the joint property is still in possession of the defrauding brothers or their legal heirs; and (ii) where the joint property has been alienated further to third persons - the transferees in good faith and for a valuable consideration.

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

----S. 42---Co-sharers---Suit instituted by one co-sharer for declaration of his/her ownership rights---Accrual of right to sue---Criterion for determining the actual denial of a co-sharer's rights as to joint property stated.

Due to the special characteristics of their relationship, the criterion for determining the actual denial of a co-sharer's rights as to joint property by the other co-sharer is different from the one that is applied between strangers. Co-sharers have a relationship of trust and support for each other. Possession of joint property with one co-sharer is considered to be for and on behalf of all the co-sharers. A co-sharer who is not in actual possession is considered to be in constructive possession of the joint property. Each co-sharer protects the joint property against trespassers for the benefit of all the co-sharers. Even if one co-sharer acquires possession of some portion of the joint property in consequence of legal proceedings initiated by him against a trespasser, he is deemed to be in possession of that portion of the joint property, on behalf of all the co-sharers. Against such backdrop, the actual denial of a co-sharer's rights as to joint property by the other co-sharer is not to be readily inferred. Actual denial of a co-sharer's rights by the other co-sharer may occur when the latter does something explicit in denial of the former's rights. A mere oral negation, even made several times, of each other's rights by the co-sharers on different disputes as to the use and sharing of the profits of the joint property, but without doing any overt act to oust a co-sharer from the ownership of the joint property, cannot be treated as an actual denial of the rights and thus does not necessitate to sue for declaration of ownership rights.

Manzoor Khan Khalil, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

P L D 2023 Supreme Court 371

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

ZAFARAN KHAN and others---Petitioners

Versus

NIZAM ULLAH and others---Respondents

Civil Petition No. 718 of 2021, decided on 24th January, 2023.

(On appeal against the judgment dated 19.01.2021 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No. 272-M and C.M. No. 368 of 2015).

(a) Constitution of Pakistan---

----Arts. 9, 18, 27, 38(c) & 185(3)---Government Posts not advertised---Appointees, removal of---Leave to appeal was granted to consider whether the appointees had been rightly deprived of the means, whereby they did live?

(b) Constitution of Pakistan---

----Arts. 9, 18, 27 & 38 (c)---Liberty to work---Government job---Failure to advertise---Effect---Every citizen who applies for a government job is entitled to it, unless government can establish some reasons for denying the employment---Such is the "liberty right"- liberty to work- which is very essence of Articles 9, 18, 27 & 38 (c) of the Constitution---Denial of a government job is a serious blow to a citizen---Any appointment made on a Government post without issuing advertisement inviting applications from legible candidates and without holding a proper selection, where all eligible candidates get a fair chance to compete, violates the guarantee enshrined under Articles 18 & 17 of the Constitution.

E. Allgeyer et al., Plffs. in Err. v. State of Louisiana and William Truax, SR., Wiley E. Jones, Attorney General of the State of Arizona (1897) 165 US 578; W. G. Gilmore, County Attorney of Cochise County, Arizona, Appts. v. Mike Raich 239 US 33; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Abdul Jabbar Memon and others In re: 1996 SCMR 1349; Obaidullah and another v. Habibullah and others PLD 1997 SC 835 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 rel.

(c) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules,1989---

----R. 10---Government job---Procedural irregularity---Appointment without advertisement in newspaper---Emergency situation---Appellants were appointed after a selection process held without advertisement in newspaper---High Court in exercise of Constitutional jurisdiction set aside the appointments of appellants---Validity---Although vacancies were not advertised in newspaper yet information about the same was communicated to public at large by putting up advertisement at conspicuous places in the District---In response, several persons including appellants applied for recruitment and the department appointed appellants after completing codal formalities---Appellants did not obtain their appointments through back door nor they could be penalized for not publishing the advertisement in newspaper---Appellants had served for more than 10 years without any complaint and had lost all their chances to get fresh appointment elsewhere, as they had become overage---Removal of appellants would tantamount to hitting them hard, which would create massive problems for the society as each appellant was a bread earner for his family---High Court should not have exercised its discretionary power notwithstanding that there was a procedural impropriety in advertisement of vacancies---Supreme Court set aside the judgment passed by High Court---Appeal was allowed.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 and Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 ref.

Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1966 SCMR 413; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034; Dr. M. Sohail Karim Hashmi v. Federation of Pakistan through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2009 SCMR 1472; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmed Bhutto 2005 SCMR 57; Muhammad Shoaib and 2 others v. Government of N.W.F.P. through The Collector, D.I. Khan and others 2005 SCMR 85; Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678; Muhammad Rafi and another v. Federation of Pakistan and others 2016 SCMR 2146; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and Board of Governors, Area Study Centre and another v. Ms. Farah Zahra 2006 SCMR 265 rel.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners.

Mian Shafaqat Jan, Additional A.G., Dr. Muneeb-ur-Rehman, Dy. D.H.O., Lower Dir and Shahbaz Khan, Superintendent, Health for Respondents.

P L D 2023 Supreme Court 378

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Shahid Waheed, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY---Appellant

Versus

PAKISTAN BROADCASTERS ASSOCIATION and others---Respondents

Civil Appeal No. 1518 of 2013, decided on 24th February, 2023.

(On appeal against judgment dated 16.8.2013 passed by the High Court of Sindh, Karachi in C.P. No. D-2633 of 2010).

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

----Ss. 24, 29 & 39---Pakistan Electronic Media Regulatory Authority (PEMRA) Rules, 2002, R. 30---PEMRA (TV/Radio Broadcast Operations) Regulations, 2002, ('the 2002 Regulations') vires of---PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 ('the 2002 Regulations') were made under Rule 30 of the Pakistan Electronic Media Regulatory Authority (PEMRA) Rules, 2002 ('the 2002 Rules') which was beyond the scope of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance')---Said '2002 Regulations' did not derive their power from the parent statute i.e. the Ordinance and therefore, were void ab initio having been made without any lawful authority, and hence, of no legal effect.

The Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') before it was amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 ("Amendment Act of 2007"), did not provide for any power to PEMRA to issue regulations. It only provided for the power to make rules under Section 39 of the Ordinance, which was exercised by making the Pakistan Electronic Media Regulatory Authority (PEMRA) Rules, 2002 ("2002 Rules"). Through the said 2002 Rules, without any such power to the said effect in the Ordinance, the power to make regulations was extended to PEMRA through Rule 30 of the 2002 Rules. The 2002 Regulations were then issued under said Rule 30 of the 2002 Rules. Thereafter, the Ordinance was amended through the Amendment Act of 2007 and the power to make regulations under the Ordinance was specifically added into the Ordinance by substituting Section 4 of the Ordinance. However, the Amendment Act of 2007 was not given retroactive effect and did not contain any provision validating the 2002 Regulations.

Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 and Star Textile v. Government of Sindh 2002 SCMR 356 ref.

The amended Section 4 of the Ordinance authorized PEMRA to make regulations by notification in the official Gazette, however, the 2002 Regulations were not notified in the official Gazette. Therefore, the Amendment Act of 2007 did not extend any legal cover to the 2002 Regulations. The 2002 Regulations, which were made under the 2002 Rules without any such power provided in the Ordinance, remained operative till 2012 i.e. when the Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations Regulations, 2012) ("2012 Regulations") were issued for the first time under the amended Ordinance. Therefore, the 2002 Regulations did not derive their power from the parent statute i.e. the Ordinance and, even after the Ordinance was amended, remained non est. They were made under Rule 30 of the 2002 Rules which was beyond the scope of the Ordinance.

Therefore, Rule 30 of the 2002 Rules, going beyond the scope of the Ordinance, was ultra vires to the Ordinance and the 2002 Regulations were void ab initio, having been made without any lawful authority, and hence, of no legal effect. Appeal was dismissed.

(b) Interpretation of statutes---

----Rules made under a parent statute---Said Rules cannot go beyond the scope of the parent statute and nor can they enlarge the scope of the statutory provisions therein---Power of rule-making is an incidental power that must follow and not run parallel to the parent statute.

(c) Interpretation of statutes---

----Regulations made under a parent statute---Regulations must be made by the authority of the parent statute and regulations that do not draw their power from the parent statute are also ultra vires to the said parent statute.

Jurists Foundation v. Federal Government PLD 2020 SC 1; Zarai Taraqiati Bank v. Said Rehman 2013 PLC (C.S.) 1223; (Suo Motu Case No. 11 of 2011) PLD 2014 SC 389; (Suo Motu Case No. 13 of 2009) PLD 2011 SC 619 and Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue 2022 SCMR 1787 ref.

(d) PEMRA (TV/Radio Broadcast Operations) Regulations, 2002---

----Regln. 9(5)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss. 29-A & 30(1)(a)---Pakistan Electronic Media Regulatory Authority (PEMRA)---Power to levy and recover surcharge on late payment of annual fee pertaining to the licences granted to the private broadcasters by PEMRA---Legality---No specific provision in the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') empowers PEMRA to impose a surcharge on the late payment of annual fee---Said Ordinance only contemplates the levy of a licence fee and annual fee but does not empower PEMRA to levy any surcharge over and above the annual fee---Demand of surcharge under Regulation 9(5) of the) PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 was ultra vires to the Ordinance which does not confer any power on PEMRA to impose and recover such a surcharge.

The Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') as it stood before it was amended through the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 ("Amendment Act of 2007"), and as it stands after it has been amended through the Amendment Act of 2007, there was and is no specific provision that empowers PEMRA to impose a surcharge on the late payment of annual fee. The Ordinance only contemplates the levy of a licence fee and annual fee but does not empower PEMRA to levy any surcharge over and above the annual fee. The contention of PEMRA that after the Ordinance was amended through the Amendment Act of 2007, the power to levy and recover surcharge was included in the term "other charges" as appearing in Sections 29-A and 30(1)(a), is without any force. Despite the Ordinance being amended through the Amendment Act of 2007, the power to levy and recover surcharge was still not provided therein by the legislature. Even otherwise, Section 29A of the Ordinance only caters to recovery of dues as arrears of land revenue and Section 30(1) provides that PEMRA may revoke or suspend a licence on one or more of the grounds mentioned therein, including, as stipulated under Section 30(1)(a), if the licensee fails to pay the licence fee, annual renewal fee or any other charges including any fine, if any. Therefore, it is apparent that there is no definition of "other charges" under the Ordinance and no specific charging provision whereby the "other charges" are levied on a licensee or any provision that empowers PEMRA to levy and recover surcharge even as "other charges".

The PEMRA (TV/Radio Broadcast Operations) Regulations, 2002 ('the 2002 Regulations') were void ab initio and remained non est. As such, there were no valid regulations in the field for the purposes of Sections 2(s), 19(3), 24(4) or 24(5) of the Ordinance up till the Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations Regulations, 2012) ("2012 Regulations") were issued. Thus, the demand of surcharge under Regulation 9(5) of the 2002 Regulations was ultra vires to the Ordinance which does not confer any power on PEMRA to impose and recover such a surcharge. Appeal was dismissed.

Province of Sindh v. Azad Wine Shop PLD 2006 SC 528 ref.

(e) Interpretation of statutes---

----Fiscal statutes---Fiscal statutes are to be interpreted strictly and there is no room for any intendment therein.

Hirjina and Co. v. Commissioner of Sales Tax 1971 SCMR 128; Star Textile v. Government of Sindh 2002 SCMR 356; Pearl Continental Hotel v. Government of NWFP PLD 2010 SC 1004 and The Commissioner Inland Revenue v. Kohinoor Sugar Mills 2021 SCMR 536 ref.

Ahmed Pervaiz, Advocate Supreme Court (via video link from Lahore), Tahir Tarar, H.L. (PEMRA), Muhsin Dogar, Director (R) Anas Farooq, L.O. and Barrister Ali Asghar, L.O. for Appellant.

Salahuddin Ahmed, Advocate Supreme Court (via video link from Karachi) for Respondents.

Ch. Amir Rehman, Addl. AGP. for the Federation.

Assisted by Muhammad Hassan Ali, Law Clerk.

P L D 2023 Supreme Court 387

Present: Qazi Faez Isa, Amin-ud-Din Khan and Shahid Waheed, JJ

Suo Motu Case No. 4 of 2002: In the matter of

Suo Motu Case No. 4 of 2002, decided on 29th March, 2023.

(Regarding grant of Additional 20 Marks to Hafiz-e-Quran while admission in MBBS/BDS Degree under Regulation 9 (9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018).

Per Qazi Faez Isa, J.; Amin-ud-Din Khan, J. agreeing; Shahid Waheed, J. dissenting. [Majority view]

(a) Supreme Court Rules, 1980---

----O. XI & O. XXV---Constitution of Pakistan, Art. 184(3)---Constitution of a 'Special Bench' to hear a suo motu case---Propriety and legality---Supreme Court Rules, 1980 neither permit nor envisage Special Benches---Constituting a Special Bench provides detractors an opportunity to allege that the bench was tailor-made to give a particular decision---For a decision to be credible, and acceptable, there must be an established adjudication process---When cases are not heard by regular benches and instead by specially constituted benches for no valid reason it undermines the integrity of the system, and may have serious repercussions.

Abul A'la Maudoodi v. Government of West Pakistan PLD

1964 SC 673; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 ref.

(b) Supreme Court Rules, 1980---

----O. XI---Cases filed before the Supreme Court---Case fixation---Hearing on a 'first-in-first-out' basis---If an identifiable, transparent, and delineated mechanism for the fixation of cases and for constitution of benches is not in place, and cases filed earlier are leapfrogged by latter ones, public confidence in the Judiciary erodes---In the absence of an established procedure for hearing cases, they should be queued and heard on a first-in-first-out basis, which will avoid misgivings and mistrust---If the same category of cases are heard out-of-turn, and this is done for no discernible reason, then it could be alleged that personal preference is the determinative facto---To expedite or defer the hearing of a case for no valid reason, in itself constitutes a decision of sorts; only cases which are fixed for hearing can be decided---To maintain the public's confidence, the process of case fixation must be predetermined, fair and impartial, and this must be evident.

(c) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007]---

----Ss. 8(5) & 27 & Preamble---Constitution of Pakistan, Arts. 19 & 19A---Constructive criticism of Judiciary---Permissibility and importance---'Prohibition Order' issued by the Pakistan Electronic Media Regulatory Authority ('PEMRA') forbidding all Satellite TV Channel Licencees from telecasting anything 'against state institutions' and from discussing the conduct of the sitting judges of High Court and Supreme Court, in any manner---Constitutionality and legality---Constructive criticism serves the interest of the Judiciary as it helps improve its performance---Forbidding criticism neither serves the interest of the people nor of the Judiciary---Islam also does not prohibit the criticism of Judges---Prohibition Order in question disregards and violates the Fundamental Rights of freedom of speech, expression, and of the media---PEMRA's complete prohibition to criticize Judges offends the Constitution, law, morality, and Islam.

The Judiciary would be flawed if it is not open to constructive criticism. The Judiciary exists to serve the people and should embrace observations, opinions, and critique as it also serves as a check on its own functioning. The people's feedback also helps identify shortcomings, which can thereafter be addressed. Constructive criticism serves the interest of the Judiciary as it helps improve its performance. The relationship between the litigant, who is the service-user, and the Judiciary, which is the service-provider, should be collaborative, with the common goal of improving the service. Forbidding criticism neither serves the interest of the people nor of the Judiciary.

The Constitution grants every citizen the fundamental right to freedom of speech and expression and guarantees the freedom of the press. If legitimate criticism of Judges is prohibited it neither serves the interest of the Judiciary nor that of the public. Prohibiting the broadcast/rebroadcast of any content pertaining to conduct of Judges of the High Court and the Supreme Court is inexplicable.

The Prohibition Order under discussion disregards and violates the Fundamental Rights of freedom of speech, expression, and of the media. PEMRA's unsolicited media-gagging order brings the Judiciary into disrespect and disrepute as citizens will assume that it has been issued on the direction of Judges, with a view to cover discrepancies, illegalities and/or blemishes. Throttling the media violates the Constitution and is unacceptable.

Amongst other things PEMRA was set up to 'ensure accountability, transparency and good governance by optimizing the free flow of information'. However, the Prohibition Order does the very opposite by imposing absolute censorship and threatening violators with punitive action. Stopping the free flow of information prevents accountability, transparency and good governance.

The Prohibition Order mentions Article 68 of the Constitution which provided that no discussion shall take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Said Article isn't applicable to the media. And in mentioning state institutions, it substitutes meaningful content with magniloquence, which signifies nothing. State institutions are neither mentioned in the Constitution nor in Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

Islam does not prohibit the criticism of Judges. The Islamic tradition records that judges were criticized. Judges adjudicate, and at times hold others to account. Therefore, it would be constitutionally, legally, morally, and religiously indefensible to absolve Judges from accountability. Prescribing something for others but not abiding by it oneself is most offensive to Almighty Allah and He castigates hypocrites. PEMRA's complete prohibition to criticize Judges offends the Constitution, law, morality, and Islam.

Al-Qur'an, Surah Al-Baqarah (2) verse 44 and Surah As-Saff (61) verses 2 and 3 ref.

Furthermore the Prohibition Order is stated to have been issued with the 'approval of the Chairman, PEMRA' raising the question, why could the Chairman himself not have issued it? Did the Chairman consider it a mundane and insignificant matter not worthy of his time?. The Chairman of PEMRA, alone, does not constitute PEMRA. The law which established and governs PEMRA states that, 'All orders, determinations and decisions of the Authority [PEMRA] shall be taken in writing and shall identify the determination of the Chairman and each member separately.' PEMRA comprises of the 'Chairman and twelve members'. However, the Prohibition Order does not disclose if the members had any say in the matter, let alone whether a meeting of the members took place, how many attended it and their determinations.

(d) Supreme Court Rules, 1980---

----O.XI---Constitution of Pakistan, Arts. 175(1), 175(2) & 191---Constitution of 'Special Bench' to hear a case---Constitutionality---Powers of the Chief Justice and Registrar, Supreme Court---Scope---Neither the Constitution nor the Supreme Court Rules, 1980 grant to the Chief Justice (or to the Registrar) the power to make special benches, select Judges who will be on these benches and decide the cases which they will hear - Furthermore, there is also no additional, incidental, ancillary, or residual power with the Chief Justice which could be used to do this---When benches are tailored and Judges of a particular understanding or inclination are placed together to hear a particular case, then doubts, suspicion, and misgivings arise---Decision from an adjudicatory process, which is perceived to be structured to obtain a particular decision, invariably results in severe criticism---Such matter assumes criticality when objections taken on the constitution of Special Benches, and requests made for hearing by the Full Court, are not attended to, and no order disposing of such objections and requests is passed.

(e) Constitution of Pakistan---

----Art. 184(3)---Suo motu powers of the Supreme Court---Scope---Latin term 'suo motu' does not find mention in the Constitution---Practice (of suo motu) which is not sanctioned does not supplant the Constitution, no matter the duration for which it has been practiced.

(f) Constitution of Pakistan---

----Arts. 184(3) & 191---Supreme Court Rules, 1980, O.XI & O.XXV---Cases heard by the Supreme Court under Art. 184(3) of the Constitution---Procedure for listing of case, constitution of bench and selection of judges---Postponement of all cases under Art. 184(3) of the Constitution till making of requisite rules in terms of Article 191 of the Constitution---With regard to Article 184(3) of the Constitution there are three categories of cases---Firstly, when a formal application seeking enforcement of Fundamental Rights is filed---Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges, and, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category)---Order XXV of the Supreme Court Rules, 1980 only attends to the first category of cases, and there is no procedure prescribed for the second and third category of cases---Said situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution---Supreme Court Rules, 1980 also do not provide how to attend to the following matters: (i) how such cases be listed for hearing, (ii) how bench/benches to hear such cases be constituted and (iii) how Judges hearing them are selected---Supreme Court is empowered to make rules attending to the said matters---However, the Constitution does not grant to the Chief Justice unilateral and arbitrary power to decide the said matters, since the Supreme Court comprises of the Chief Justice and all Judges---Chief Justice cannot substitute his personal wisdom with that of the Constitution---Collective determination by the Chief Justice and the Judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice---Supreme Court observed that the interest of citizens therefore will be best served to postpone the hearing of all cases under Article 184(3) of the Constitution, till the matters noted in the present judgment are first attended to by making requisite rules in terms of Article 191 of the Constitution.

Per Shahid Waheed, J.; dissenting with Qazi Faez Isa, J. [Minority view]

(g) Administration of justice---

----Proceedings of a case---Court orders, types of---During the proceeding of any case, a Court ordinarily passes three types of orders, the first type of order is that of regulatory nature whereby the proceedings of the case are regulated, managed, or controlled---Second type of order relates to a formal decision of a Court about a claim or dispute, and this may be called adjudicatory order---While the third type is regulatory cum adjudicatory order and it not only contains a formal expression of any decision of a Court on a particular issue but also a direction for further progress of the case.

(h) Supreme Court Rules, 1980---

----O. XI & O. XXV---Constitution of Pakistan, Art. 184(3)---Constitution of a Special three-member Bench to hear a suo motu case---Objection to Constitution of Bench by two Judges---Propriety---Objection to the constitution of the present Bench could not be brought under consideration for two reasons; one, a Bench, special or regular, is constituted by an administrative order of the Chief Justice, and as such, the present Bench in conformity with the principle settled in Suo Motu Case No.4 of 2021 reported as (PLD 2022 SC 306), has been lawfully constituted to hear the present case---Said judgment is of a Five-Member Bench and thus, takes precedence over all precedents of the Supreme Court regarding the power of the Chief Justice to constitute any kind of Benches---None of the Judges of the present Bench can object to the constitution of the Bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon---Such reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a Judge in their own cause---Said principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has an interest---Additionally, judicial propriety requires that if any Judge of the Bench has any objection, the proper course for him is either to recuse himself from the Bench or to refer the matter to the Chief Justice with the concurrence of other Judges of the Bench, so that the case is assigned to some other Bench---Two, the administrative order of the Chief Justice regarding the constitution of the Bench becomes fait accompli when a Judge in compliance thereof starts hearing the case---Hence, any Member of the present Bench, after having accepted the administrative order of the Chief Justice, is estopped to question the constitution of the Bench on the well-known doctrine of estoppel. [Minority view]

Suo Motu Case No.4 of 2021 (PLD 2022 SC 306) ref.

(i) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007]---

----S. 27---Constitution of Pakistan, Arts. 19 & 19A---Constructive criticism of Judiciary---'Prohibition Order' issued by the Pakistan Electronic Media Regulatory Authority ('PEMRA') forbidding all Satellite TV Channel Licencees from telecasting anything 'against state institutions' and from discussing the conduct of the sitting judges of High Court and Supreme Court, in any manner---Constitutionality---No Court should try any question and also pass order thereon which is not directly and substantially in issue in a case pending before it---In the present case the question relating to the validity of the Prohibition Order was neither raised in the pleadings nor agitated by any lawyer during the proceedings of the case, on the contrary, it was brought under discussion by a Member of the present Bench and copies of the Prohibition Order was also presented by his Law Clerk to the other Members of the Bench, the Attorney General and to counsel for a party---In fact, no party was on notice to address on this question---PEMRA was also not in attendance to present the rationale of the Prohibition Order---Question relating to the Prohibition Order is not related to the issue involved in the present case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon---Therefore, the principle of fairness obliges the members of the present Bench not to express a definite opinion on the question of the Prohibition Order until all concerned have had an opportunity of being heard. [Minority view]

Afnan Karim Kundi, Advocate Supreme Court for PMDC.

Shehzad Atta Elahi, Attorney-General for Pakistan with Raja M. Shafqat Abbasi, D.A.G. on Court Notice.

Malik Naeem Iqbal, Advocate Supreme Court (Amicus Curiae)

P L D 2023 Supreme Court 406

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

MOHAMMAD SIBTAIN KHAN and others---Petitioners

Versus

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

Constitution Petition No.5 of 2023, decided on 4th April, 2023.

(Re: setting aside order dated 22.03.2023 passed by the Election Commission of Pakistan being ultra vires the Constitution).

Constitution of Pakistan---

----Arts. 148(3), 218(3), 220, 224(2), 243(1) & 184(3)---Elections Act (XXXIII of 2017), S.57(2)---Election Commission, powers of---Scope---Constitutional petition challenging order passed by Election Commission delaying elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Neither the Constitution nor the law empowers the Election Commission ('the Commission') to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution---Impugned order ("EC Order") made by the Commission was declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and was resultantly quashed---Election Programme notified by the Commission under Section 57(2) of the Elections Act, 2017 on 08.03.2023 (vide Notification No. F.2(3)/2023-Cord.) for the general election to the Punjab Assembly was revived and restored immediately with certain modifications---Directions issued by the Supreme Court to the relevant State functionaries to ensure timely elections, and modifications to the Election Programme (for Punjab) made by the Supreme Court stated.

The Election Programme (for Punjab) in relation to the last five stages (ending with polling day) shall stand modified with the consequence that the polling day perforce must be shifted, and moved forward from 30.04.2023 to 14.05.2023.

The Federal Government shall forthwith and in any case by 10.04.2023 release and provide to the Commission funds in the sum of Rs. 21 Billion for purposes of the general elections to the Punjab and Khyber Pakhtunkhwa (KPK) Assemblies. The Commission shall, by 11.04.2023, file a report in the Court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the Bench for consideration in Chambers. If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard. The Election Commission ('the Commission') shall be entitled to utilize the funds in the first instance for the

purposes of the general election to the Punjab Assembly. If there is thereafter a shortfall for purposes of the general election to the KPK Assembly, the Commission may make an appropriate representation to the Supreme Court for such consideration and orders as deemed appropriate.

The caretaker Cabinet that constitutes the Government of Punjab and, in particular, the Chief Secretary and the Inspector General Police of that Province must forthwith, and not later than 10.04.2023, provide a plan acceptable to the Commission for, inter alia, providing sufficient personnel for election-duty and security purposes for the holding of the general election. Furthermore, and in any case, the Government of Punjab and all officials thereof must, in discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election.

The Federal Government must, in exercise of its powers and position in terms of Article 243(1) of the Constitution, and all other constitutional and legal powers enabling it in that behalf, and in discharge of its constitutional duties under Articles 148(3) and 220, provide all such aid and assistance to the Commission as required by it for the holding and conduct of the general elections to the Punjab and KPK Assemblies. The Federal Government must make available all necessary personnel, whether from the Armed Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections. In this regard, the Federal Government must forthwith, and not later than 17.04.2023, provide a plan acceptable to the Commission.

If there is a failure by the Federal Government or the Caretaker Government in the Punjab to provide aid and assistance to the Commission and, in particular to comply with what has been set out in the present order, the Commission may make an appropriate representation to the Supreme Court for such consideration and orders as deemed appropriate.

Insofar as the general election to the KPK Assembly is concerned, counsel who entered appearance on behalf of the Governor of KPK Province withdrew from such appearance on account of a certain stand taken by a political party. The Governor, KPK Province therefore ceased to have representation before the Court. In such circumstances, the matter relating to the KPK Province is not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate.

For the Petitioner(s):

Syed Ali Zafar, Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court assisted by Syed Haider Ali Zafar, Advocate.

For the Federation:

Mansoor Usman Awan, Attorney General for Pakistan, assisted by Ms. Mehwish Batool Sardar, Advocate, Ch. Aamir Rehman, Addl. AGP., Malik Javed Iqbal Wains, Addl. A.G., Hamood Uz Zaman Khan, Secretary Defence and Aamir Mehmood, Addl. Sec. Finance.

For ECP:

Sajeel Shehryar Swati, Advocate Supreme Court, Irfan Qadir, Advocate Supreme Court, Omer Hamid Khan, Sec. ECP., Zafar Iqbal Hussain, Spl. Sec. ECP., M. Arshad, DG Law ECP., Khurram Shehzad, ADG(L) ECP, Ms. Saima Tariq Janjua, Dy. Dir. ECP. and Falak Sher, Legal Consultant.

For Government of KPK:

Aamir Javed, AG KP and Mian Shafaqat Jan, Addl. AG KP.

For Government of Punjab:

Shangul, AG Punjab, (through Video Link from Lahore), Wasim Mumtaz Malik, Addl. AG Punjab, Sanaullah Zahid, Addl. AG and Barrister M. Mumtaz Ali, Addl. AG.

P L D 2023 Supreme Court 412

Present: Umar Ata Bandial, C.J. Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

K-ELECTRIC LIMITED through Chief Executive Officer, Karachi---Petitioner

Versus

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

Civil Appeals Nos. 1011 to 1119 of 2020 and 1185 to 1191 of 2020 and Civil Petitions Nos.3428 of 2020, 1145-K of 2020 and 3775 to 3780 of 2020, decided on 19th January, 2023.

[Against the judgment dated 28.09.2020 and 05.10.2020 of the High Court of Sindh, Karachi passed in C. Ps. Nos.D-2253, D-2295, D-2287, D-2291, D-2293, D-2296, D-2297, D-2298, D-2300, D-2031, D-2304, D-2398, D-2343, D-2356, D-2393, D-2424, D-2406, D-2329, D-2451, D-2351, D-2358, D-2412, D-2313, D-2385, D-2336, D-2396, D-2370, D-2335, D-2410, D-2386, D-2400, D-2344, D-2366, D-2493, 2324, D-2337, D-2436, D-2310, D-2357, D-2353, D-2328, D-2704, D-2340, D-2397, D-2364, D-2371, D-2381, D-2327, D-2392, D-2634, D-2342, D-2581, D-2635, D-2362, D-2383, D-2354, D-2624, D-2361, D-2323, D-2315, D-2435, D-2705, D-2698, D-2627, D-2446, D-2584, D-2613, D-2638, D-2369, D-2700, D-2399, D2332, D-2341, D-2374, D-2363, D-2466, D-2326, D-2349, D-2314, D-2359, D-2334, D-2382, D-2352, D-2309, D-2355, D-2312, D-2360, D-2522, D-2600, D-2684, D-2396, D-2438, D-2363, D-2698, D-2780, D-3281, D-2725, D-2724, D-2725, D-2971, D-2720, D-2835, D-2338, D-2339, D-2345, D-2253, D-2365, D-2394, D-2395, D-2653, D-2741, D-2579, D-2295, D-2313, D-2627, D-2342, D-2438, D-2291, D-2393, D-2339 and D-2338 of 2020, respectively]

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

----Ss. 7 & 31---Tariff determination---Domain of National Electric Power Regulatory Authority (NEPRA)---Scheme of the tariff determination legal regime is such that in terms of Section 7 read with Section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (' the Act'), tariff determination can only be made by NEPRA---Tariff determination is one of the core functions of NEPRA and cannot be delegated to anyone---Federal Government is required to notify the tariff determined by NEPRA but cannot exercise this function itself---In terms of the Act and the Policy Guidelines, NEPRA determines the tariff, be it annual, multi-year or uniform and the Federal Government notifies the tariff---So far as any adjustments to the tariff are concerned, they are also to be made by NEPRA, whether it is under Section 31 of the Act, being a monthly adjustment or under the National Power Tariff and Subsidy Policy Guidelines, 2014 (2014 Guidelines) being quarterly or bi-annual adjustment---Schedule of Tariff (SOT) is also to be issued by NEPRA, detailing the tariff and the charges it contains.

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

----S. 31---Tariff determination---Electricity tariff for consumers of electricity supplied by K-Electric---Domain of National Electric Power Regulatory Authority (NEPRA)---Scope---Uniform tariff for K-Electric as notified by the Federal Government is the uniform tariff determined by National Electric Power Regulatory Authority (NEPRA) for the Distribution companies (DISCOs)---Federal Government cannot determine the uniform tariff nor make adjustments to the tariff nor issue any Schedule of Tariffs (SOT) for K-Electric as this must be done by NEPRA.

Essentially, National Electric Power Regulatory Authority (NEPRA) determines the tariff of each Distribution company (DISCO) after ascertaining the prudence of costs based on the requirements of the DISCO. So each DISCO will have its tariff determined by NEPRA. The Federal Government then, as per its policy, seeks to rationalize the tariff to create one uniform tariff in the country so that everyone pays the same price for electricity effectively. Accordingly, the Federal Government applies to NEPRA to devise a uniform tariff, once the tariff for each of the DISCOs is determined. The Federal Government then takes the uniform tariff and applies the same to K-Electric whilst issuing the Schedule of Tariff (SOT). The essential fact being that the uniform tariff for K-Electric as notified by the Federal Government is the uniform tariff determined by NEPRA for the DISCOs.

National Electricity Policy, 2021 (2021 Policy) makes it clear that the Federal Government cannot determine the uniform tariff nor make adjustments to the tariff nor issue any SOT even for K-Electric as this must be done by NEPRA.

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

----S. 31---Tariff determination---Subsidies provided by Federal Government---Scope---Federal Government is well within its right to introduce, modify or withdraw subsidies---Subsidies are an integral part of its socioeconomic policies, which National Electric Power Regulatory Authority (NEPRA) must give effect to as per Section 31 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ('the Act')---So a consumer of electricity is entitled to a subsidy as long as it is offered by the Federal Government and is bound by any modifications or withdrawals made by the Government---To give effect to a subsidy it is built into the tariff, as its obvious outcome is to reduce the price of electricity---So a subsidy is given effect through the tariff---No vested right existed in favour of the consumer with reference to a subsidy, simply because the subsidy is built into the tariff---Effectively, a subsidy is a relief package offered to consumers and remains operative for as long as it is required as per Government policy---In order to take the benefit of the subsidy, it has to be calculated in terms of the tariff, therefore, even if, it is reflected as a part of the tariff or separately it remains a subsidy and does not merge into the tariff---Essentially, it is based on a policy decision of the Federal Government and is not the outcome of a NEPRA determination---As per Section 31 of the Act, NEPRA is guided by government policies and must consider them, which means that it must reflect the subsidy through the tariff.

For the Appellant(s):

Abid S. Zuberi, Advocate Supreme Court and Ayan Mustafa Memon, Advocate Supreme Court (for K-Electric).

Haider Waheed, Advocate Supreme Court (in C.A. No. 1119 of 2020).

M. Omer Soomro, Advocate Supreme Court (in C.A. No. 1191 of 2020).

For the Petitioner(s):

Haider Waheed, Advocate Supreme Court (in C.Ps. Nos. 3428 and 3775 to 3780 of 2020).

Barrister M. Abdur Rehman, Advocate Supreme Court (in C.P. No. 1145-K of 2020 via video link from Karachi).

For Official Respondent(s):

M. Ayaz Shaukat, Deputy Attorney General for Pakistan.

Syed Asif Hyder Shah, Secretary, Ministry of Energy (Power Division)

Barrister Umar Aslam, Advocate Supreme Court and Sajid Awan, Additional Director General (Tariff).

Irfan Gill, Director Legal Mubashar Bhatti, Director Tariff (All for NEPRA)

For Private Respondent(s):

Haider Waheed, Advocate Supreme Court (in C.As. Nos.1011, 1014, 1027, 1035, 1064, 1105, 1116 and 1117 of 2020).

M. Omer Soomro, Advocate Supreme Court (in C.A. No. 1012 of 2020).

Mrs. Navin Salim Merchant, Advocate Supreme Court (in C.As. Nos. 1013, 1016, 1018, 1030 and 1066 of 2020 via video link from Karachi).

Ms. Sofia Saeed Shah, Advocate Supreme Court (in C.As. Nos. 1045 and 1049 of 2020 via video link from Karachi).

Barrister M. Abdur Rehman, Advocate Supreme Court (in C.A. No. 1077 of 2020 via video link from Karachi).

Hassan Khurshid Hashmi, Advocate Supreme Court (in C.A. No. 1096 of 2020).

Abdul Sattar Pirzada, Advocate Supreme Court (in C.As. Nos.1023, 1093, 1099 and 1100 of 2020).

P L D 2023 Supreme Court 431

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman and another---Petitioners

Versus

Messrs ARY COMMUNICATIONS PRIVATE LIMITED (ARY DIGITAL) through Chief Executive Officer and another---Respondents

Civil Petition No.3506 of 2020, decided on 12th April, 2023.

(Against the order of the High Court of Sindh, dated 11.11.2020, passed in M.A. No.45 of 2020).

(a) Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010---

----R. 4---Councils of Complaints---Chairperson and Members---Citizens of eminence---Term 'citizens of eminence' explained.

Council of Complaints consists of a chairperson and five members including at least two women, who all are citizens of eminence from the general public. Although the expression "citizens of eminence", which is of wide import, is not defined in the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, it ordinarily refers to persons who are widely recognized and respected for their knowledge and experience in their respective fields, such as media, law, human rights and social service, etc. The term "eminence" suggests a level of distinction, implying that these persons hold a special status or position within the circle of their vocation. Additionally, those of such persons who are considered for assigning a public function, whether paid or honourary, ought to be also known for their integrity. Such consideration must also take into account the objective of ensuring that the Councils of Complaints remain independent and impartial, and are protected against both political and commercial pressure or interference. A Council of Complaints comprising of such persons reflect a broad cross-section of our society in order to represent diverse interests, balance, inclusivity and different perspectives of the public, while ensuring their independence and impartiality, which can best ensure the public interest in reviewing complaints against any aspects of programmes and advertisements. The members of the Councils therefore hold honorary position for two years and are to perform their function independently and impartially, without any government interference.

PEMRA v. ARY Communications 2022 SCMR 1923 and Toby Mendel et el. Modernizing Media Law in Pakistan: Review of Legal Framework Governing Media, pp. 26-27 (IRADA, 2017) ref.

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

----Ss. 26(2) & 27(a)---Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010, Rr. 8 & 10---Councils of Complaints---Power to receive and review complaints against any content---Scope---PEMRA has to consider the opinion of Councils of Complaints before passing any order of prohibition under section 27(a) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002.

To regulate public fundamental rights of expression and information, the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ("PEMRA Ordinance") envisages a two tiered regulatory system. The media content has to be first viewed by the Council of Complaints, an independent public regulatory body, and after obtaining its opinion, PEMRA, the government regulatory body, is to consider the opinion of the Council of Complaints and finally decide the matter. Section 27(a) of the PEMRA Ordinance is not an independent and self-governing provision; it rather requires for its applicability the opinion of a Council of Complaints regarding the objectionable aspect of a programme or advertisement in terms of Section 26(2) of the PEMRA Ordinance read with the Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010. [pp. 449, 451] H & K

Even if suo motu notice is taken by PEMRA or its Chairman, as to "any aspects of programmes", the matter has to be first sent to a Council of Complaints for its opinion and after considering the said opinion, PEMRA or its Chairman, as the case may be, can take the final decision.

(c) Interpretation of statutes---

----Rules made under a statute---Scope---Rules validly made to carry out the purposes of a statute are an integral part of that statute, therefore, it is also necessary to read them in conjunction with the statute to fully understand the operational scheme of any particular provision of the statute.

Ibrahim v. Regional Transport Authority AIR 1953 SC 79 and National Insurance Co. v. Swaran Singh AIR 2004 SC 1531 ref.

(d) Interpretation of Constitution---

----Holistic interpretation---Scope---Court always prefers the approach of holistic interpretation to that of fragmented interpretation while interpreting any provision of the Constitution or a statute---By this approach, the courts seek to ascertain the overall intent and purpose of the law and, by considering how its individual provisions fit within its larger framework, attempt to harmonize their meaning and scope with each other.

Munir Bhatti v. Federation PLD 2011 SC 407; D.B.A., Rawalpindi v. Federation PLD 2015 SC 401; Reference No.1 of 2020 PLD 2021 SC 825 and Waqar Bakhtawari v. Mazhar Shah PLD 2018 SC 81 ref.

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

----Ss. 26(2) & 27(a)---Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010, Rr. 8 & 10---Council of Complaints---Power to receive and review complaints against any 'advertisement'---Scope---Inadvertent drafting omission in statute---Although the word "advertisement" is not mentioned in subsection (2) of Section 26 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') but it is found mentioned in subsection (5) thereof---Omission of the word advertisement in subsection (2) of Section 26 appears to be an accidental one, as it does not fit within the overall intent of the legislature manifested from reading the provisions of Section 26 as a whole---Subsection (5) of Section 26 clearly empowers the Councils of Complaints to make a recommendation to PEMRA for the action of censure or fine against a licensee for violation of the codes not only of programmes content but also of advertisements---Provisions of subsection (5) of Section 26 thus make the intent of the legislature abundantly clear that it intended to confer the power on the Councils of Complaints to receive and review complaints against any aspects of programmes or advertisements, which shall be so read in subsection (2) of Section 26, in order to give effect to that manifest intent of the legislature.

(f) Interpretation of statutes---

----Inadvertent omissions in drafting a statute---Object of the process of interpretation of a statute is to find out what the legislature must have intended and then to give effect to that intent of the legislature, and in order to give effect to the manifest intent of the legislature, the courts can supply the inadvertent omission of the draftsman by reading the necessary words in the statute.

Badrul Haque v. Election Tribunal PLD 1963 SC 704; Reference No.1 of 2012 PLD 2013 SC 279; Amir Khan v. Controller of Estate Duty PLD 1961 SC 119; Amir Khan v. Controller of Estate Duty PLD 1962 SC 335 and Muhammad Ismail v. State PLD 1969 SC 241 ref.

(g) Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010---

----R. 4---Councils of Complaints---Chairperson and Members---Selection criteria and procedure of appointment of members of the Councils of Complaints stated.

Selecting and appointing members of the public to regulate media content on the Councils of Complaints must, represent diverse interests and perspectives of the public while ensuring independence and impartiality. The Federal Government must establish: (i) clear criteria for the selection of public representatives, which might include a mix of expertise, professional backgrounds, demographic diversity and geographic representation; (ii) announce the opportunity to serve on the Councils through various channels, such as newspapers, websites, social media and community organizations. This will help attract a diverse pool of applicants; (iii) set up an application process that requires interested individuals to submit their credentials, relevant experience and a statement explaining their motivation for serving on the regulatory body. This information will be used to evaluate the suitability of each applicant; (iv) establish an independent selection committee composed of representatives from different sectors, e.g. media, academia, civil society, to review applications and recommend candidates. The committee should ensure a transparent and impartial selection process; and (v) provide the members, once appointed, with training and orientation on media regulation, ethics and relevant laws. This will help them make informed decisions and effectively contribute to the regulation of media content. The inclusion of public representatives in media regulation, in this manner, can contribute to greater transparency, diversity and public trust in the media ecosystem.

(h) Constitution of Pakistan---

----Arts. 19 & 19A---Tolerance---Constitutional value and significance of the concept of tolerance in a society stated.

"Tolerance" is an essential preambular constitutional value that assumes more significance in the context of freedom of expression and right to information. It is a multifaceted concept and at its core, tolerance refers to the ability or willingness to accept and respect differences in opinions, beliefs, customs and practices among individuals or groups. This can include differences in race, religion, culture, gender, sexual orientation, political ideology and other aspects of human diversity. Tolerance promotes understanding, harmony and coexistence among people with diverse backgrounds, fostering open-mindedness and empathy. In a broader sense, it is an essential aspect of democratic societies, as it supports freedom of expression and the exchange of ideas, ultimately contributing to social cohesion and stability. It is important to note that tolerance does not necessarily imply agreement with or endorsement of the opinions or beliefs of others; rather, it is about respecting their right to hold those beliefs and coexist peacefully. The standard of tolerance in a society can be influenced by several factors. Societies with a tradition of valuing diversity and inclusivity tend to have higher levels of tolerance. In these societies, people are more likely to be accepting of differences and supportive of equal rights for all members of society. Societies that emphasize education and promote awareness of diverse cultures, religions and ways of life, tend to foster tolerance among their citizens. By understanding different perspectives and experiences, people are better equipped to appreciate and respect the diversity within their society. In some societies, tolerance is enshrined in the legal framework through anti-discrimination laws, human rights protections and equal opportunity policies. These measures help to create an environment in which tolerance is promoted and intolerance is discouraged. The standard of tolerance in a society is not static; it can change over time as a result of shifting cultural values, political climates and other factors.

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

----Ss. 26(2) & 27(a)---Pakistan Electronic Media Regulatory Authority (Councils of Complaints) Rules, 2010, Rr. 8 & 10---Constitution of Pakistan, Arts. 19 & 19A---Pakistan Electronic Media Regulatory Authority (PEMRA)---Councils of Complaints---Content regulation---Plays, dramas and other content broadcasted on electronic media---Expressions "obscene", "vulgar" and "offensive" to the commonly accepted standards of decency"---Scope of restrictions to be imposed by PEMRA and Council of Complaints and the scope of the expressions "obscene", "vulgar" and "offensive" stated.

The restriction imposed by law, i.e. the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('PEMRA Ordinance"), on the right to freedom of expression in relation to any programme including a play or drama, or any advertisement, broadcasted on the electronic media, on the ground of it being "obscene", "vulgar" or "offensive to the commonly accepted standards of decency", is defended to achieve the legitimate objectives of securing the interest of "public decency" and "public morality" as mentioned in Article 19 of the Constitution. This restriction, however, should not be more than necessary in its scope and applicability, to accomplish the said objectives. Additionally, while it is accepted that what constitutes appropriate limitation on freedom of expression to protect morals does vary from society to society, it must be kept in mind that the concept of decency and morality is derived from many social, philosophical and religious traditions; therefore, the limitations for the purpose of protecting public decency and public morality must be based on principles not deriving exclusively from a single tradition, and any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination.

R v. Oakes, [1986] 1 SCR 103 (Supreme Court of Canada); General Comment No. 22 of the UN Human Rights Committee and General Comment No. 34 of the UN Human Rights Committee ref.

The expressions "obscene", "vulgar" and "offensive to the commonly accepted standards of decency" as used in Section 27(a) of the PEMRA Ordinance, are actually interconnected. Only that form of an expression can be said to be "obscene" or "vulgar" which is "offensive to the commonly accepted standards of decency". Thus, the "commonly accepted standards of decency" in the community is the benchmark to determine whether or not a particular form of the expression of one's thought, idea or opinion in a play or drama is "obscene" or "vulgar". The important thing to understand is that the commonly accepted standard of decency in a community is a "standard of tolerance, not taste". It is not what the people generally think is right for them to see but what they would not tolerate others being exposed to it on the basis of the degree of harm to "public decency" or "public morality" that may flow from such exposure. Further, the expression "commonly accepted standards of decency" must be understood to be the contemporary standards as the social mores and sensibilities change over time.

R v. Butler, [1992] 1 SCR 452 (Supreme Court of Canada) ref.

A work of art and literature, which includes a play or drama broadcasted on the electronic media, is usually considered a strong and effective medium to break the silence on social taboos; therefore, it is not to be labelled as "obscene" or "vulgar" readily without appraising the message it intends to convey. In this perspective, one would need to see whether that message tends to promote or glorify the conduct or behavior which is offensive to the commonly accepted standards of decency, or it tends to condemn or deprecate such conduct or behavior. Such a review is to be undertaken on an objective assessment of the play or drama as a whole, not on the basis of pick and choose of its parts from here and there. If the ultimate message of the play or drama under review passes the test of being not offensive to the commonly accepted standards of decency, the review of a particular part thereof which depiction is necessary to convey the message effectively must be lenient and tolerant. However, where the obscenity of such part is too pronounced to eschew, only the objectionable part should be prohibited from being broadcasted and directed to be suitably modified, and the broadcast or rebroadcast of the complete play or drama must not be prohibited. In view of the applicability of the principle of proportionality to restrictions on the rights guaranteed by the Constitution, such an approach is necessary to protect the exercise of the fundamental right to freedom of expression and right to information to the maximum extent possible and to enforce the restrictions on the exercise of these rights to the minimum.

Ramamurthy v. State of Mysore AIR 1954 Mys 164 ref.

For the Petitioners:

Shahid Mubeen, Advocate Supreme Court.

Barrister Haris Azmat, Advocate Supreme Court.

Barrister Hamza Amjad and Barrister Fauzia Asad, (Through video link from Lahore Registry)

Tahir Farooq Tarar, Head Legal, Mohsin Hameed Dogar, Dir. (Legal), and Muhammad Jalal Haider, L.O.

Hafiz Muhammad Junaid, D.D. (Regulations), PEMRA.

For the Respondents:

Barrister Abid S. Zuberi, Advocate Supreme Court.

Barrister Agha Ali Durrani.

Barrister Shahreen Chughtai.

Barrister Arif Ansari.

For the Federation:

Malik Javaid Iqbal Wains, Addl. A.G.

Kashif Zaman and Imran Haider, Representatives of Ministry of Information and Broadcasting, GoP.

Research Assistance by:

Ms. Fareeha Aziz, Co-Founder, Bolo Bhi.

P L D 2023 Supreme Court 456

Present: Jamal Khan Mandokhail and Syed Hasan Azhar Rizvi, JJ

ZAFFAR AFZAL and others---Appellants

Versus

ASHIQ HUSSAIN---Respondent

Civil Appeal No. 415 of 2018, decided on 12th April, 2023.

(On appeal from the order of the Lahore High Court, Multan Bench, Multan dated 22.03.2017 passed in Civil Revision No. 737-D of 2013).

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

----O. XXXII, R. 15---Persons with disabilities---Transaction/sale by a deaf and dumb person---Procedural safeguards to protect and safeguard the rights and interests of such persons stated.

Any transaction in respect of rights and interests of a person(s) who is hard of hearing and non-verbal, communicates through signs and expressions and is not intellectually disabled, must be in the presence of witnesses who can understand, interpret, and express their views. The witnesses to the transaction should preferably be close relatives or anyone who is fully acquainted with such persons. The witnesses to the transaction should be apprised of the consideration of such transaction. It must be ensured that the persons who deal, assist and witness the transaction have no conflict of interest in the matter. Thus, the authorities before alienating the rights and interests of persons with disabilities must satisfy themselves with regard to the fulfilment of the requirements for a transaction explained herein so that it is free from any influence, misrepresentation or fraud, the amount of consideration is equal to the value of the property and was indeed paid. The reason for such an exercise is to take maximum measures in order to protect and safeguard the rights and interests of such persons.

In the present case there is no proof on the record to show that the alleged seller, who was deaf and dumb, was capable to understand the terms and conditions of the agreement, in order to protect his rights. It has not been explained as to whether alleged seller was actually desirous to sell the property in question. Even otherwise, it has not been established whether he being a person hard of hearing and non-verbal, properly understood the offer made to him, whether he accepted the offer and if so, on what terms and conditions. There is no evidence to prove how and when the transaction took place and who witnessed it. The appellants were the best persons to interpret the alleged seller's views and communicate the offer made to him, but no effort was made by the respondent/alleged buyer to associate them or even any other close relative of his at the time of negotiation, execution and completion of the alleged transaction. Moreover, the respondent alleged that an amount of Rs.2,000,000/- was fixed as sale price of the property in question, but it has not been proved that the price was in accordance with the market rate at that time. It is alleged that the amount has been paid in cash, but there is no witness in whose presence the alleged amount was paid, nor has it been mentioned as to when and where it was paid. The respondent has also failed to prove whether the possession of the property in question was delivered to him as a result of the alleged sale. Under such circumstances, the alleged sale transaction stands disproved.

The record suggests that before alienating the property rights of alleged seller in the revenue record, the revenue authorities did not satisfy themselves to the extent whether the transaction was free from any influence, misrepresentation or fraud; whether the amount of consideration was equal to the prevailing market value; and if it was indeed paid. They also failed to ascertain whether the witnesses to the mutation in question had a conflicting interest in the property. Under such circumstances, the mutation in question, on the basis of such oral sale agreement, is contrary to law. Appeal was allowed, and judgment of Trial Court decreeing the suit for declaration and cancellation of disputed mutation was upheld.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation---Scope---Mutation does not confer title, however, it may be considered as a piece of evidence if it is effected in accordance with law.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants.

Javed Akhtar Wains, Advocate Supreme Court for Respondent.

P L D 2023 Supreme Court 461

Present: Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Civil Petition No.2414-L of 2015, decided on 5th April, 2023.

(Against the judgment of the Lahore High Court, Lahore dated 02.09.2015, passed in Writ Petition No.6669 of 2011).

(a) Constitution of Pakistan---

----Arts. 9 & 14---Parentage, determination of---Deoxyribonucleic acid test ('DNA test')---DNA test cannot be conducted without consent of the party in civil cases---Conducting of the DNA test of a person, without his consent, infringes his fundamental rights to liberty and privacy guaranteed by Articles 9 and 14 of the Constitution---Unauthorized collection of someone's DNA can be considered a violation of their privacy, autonomy and freedom---In a civil case, if the person upon whom the onus to prove his genetic relationship with another person lies, does not give consent for his DNA test, and thus withholds such evidence, the court may draw an adverse presumption against the claim of such person and presume that such evidence, if produced, would be unfavourable to him, as per Article 129(g) of the Qanun-e-Shahadat, 1984---However such presumption was permissive but not obligatory.

In the present case the revisional court ordered the DNA test of two persons who are not privy to the proceedings of the suit either as a party or witness; who were not heard in the matter; and no law was referred under which such an order could have been made, without their consent. The High Court has maintained the order through the impugned judgement, again without providing any opportunity of hearing to them and without pointing out and relying upon any law under which the DNA test of a person can be ordered, without his consent, in a civil case. Conducting of the DNA test of a person, without his consent, infringes his fundamental rights to liberty and privacy guaranteed by Articles 9 and 14 of the Constitution.

Salman Akram Raja v. Government of Punjab 2013 SCMR 203 and Laila Qayyum v. Fawad Qayum PLD 2019 SC 449 ref.

The unauthorized collection of someone's DNA can be considered a violation of their privacy, autonomy and freedom because it involves the collection of sensitive personal information without their knowledge or consent. This intrusion can lead to potential misuse or unauthorized disclosure of the individual's genetic information, which may have significant implications for their personal and professional lives.

DNA testing has raised significant concerns regarding the right to liberty and privacy. As DNA contains a wealth of personal information about an individual, such as their genetic predispositions, familial relationships, and ethnicity, its collection, storage, and use have implications for privacy rights. DNA testing is sometimes used to establish paternity or other family relationships. While this can provide important information for legal and personal reasons, it can also raise privacy concerns when individuals are tested without their knowledge or consent.

Bodily autonomy is protected by both the fundamental rights; right to liberty and right to privacy. Individuals have the right to control their own bodies, make decisions about their healthcare, and refuse unwanted medical interventions. Unauthorized DNA collection could be seen as violating this principle, as it involves taking a sample of an individual's biological material without their permission.

DNA test can be ordered only either with the consent of the persons concerned or without their consent if permissible under a law. Certain provisions of criminal law do permit the DNA test of an accused person without his consent, but no civil law allows this test in civil cases without the consent of the person concerned.

In a civil case, if the person upon whom the onus to prove his genetic relationship with another person lies, does not give consent for his DNA test, and thus withholds such evidence, the court may draw an adverse presumption against the claim of such person and presume that such evidence, if produced, would be unfavourable to him, as per Article 129(g) of the Qanun-e-Shahadat, 1984. But the court cannot draw such an adverse presumption if a person, who is not a party to the proceedings before it, does not give his consent and present himself for his DNA test. Further, the presumption under Article 129(g) of the Qanun-e-Shahadat, 1984 being permissive, not obligatory, in nature, the court may or may not draw such presumption in the peculiar facts and circumstances of a case.

Muhammad Ramzan v. State PLD 2007 Kar. 1 ref.

In the present case, neither the petitioner nor the two persons alleged to be his real parents, have given consent for their DNA test. The petitioner preferred to prove his relationship with the deceased on the basis of other evidence produced by him. And while dismissing the application of the respondents for the DNA test of the petitioner, the trial court has observed that "the matter can easily be ascertained with the evidence available on record". The revisional court was thus not legally justified to order the DNA test of the petitioner as well as of the two persons alleged to be his real parents, without their consent. Petition for leave to appeal was converted into appeal and allowed, order of the revisional court was declared to have been made without lawful authority and was of no legal effect, and consequentially the order of the trial court was restored.

(b) Constitution of Pakistan---

----Art. 14---Right to privacy---Scope---Privacy, which is the ultimate expression of the sanctity of a person, represents the core of the human personality---Said right recognises the ability of each person to make choices and to take decisions on matters intimate and personal to him, and thus protects for him a zone of choice and self-determination.

The right to privacy involves the protection of individuals from unwarranted intrusion into their personal lives. It safeguards an individual's personal information, communications, family life, and other aspects of their private sphere from unjustified interference by the government, organizations, or other individuals. Privacy is crucial for maintaining personal autonomy, as it allows individuals to make choices and engage in activities without fear of surveillance, judgment, or unauthorized disclosure of their personal information. Though the right to privacy is an integral part of the right to life and liberty, it has been elevated to a separate and independent fundamental right by Article 14 of our Constitution. Privacy, which is the ultimate expression of the sanctity of a person, represents the core of the human personality. It recognises the ability of each person to make choices and to take decisions on matters intimate and personal to him, and thus protects for him a zone of choice and self-determination. The expression, "privacy of home", used in Article 14 is not restricted to the physical house of a person but covers the entire treasure of his personal life, as the privacy attaches to the person, not to the place where it is associated.

Justice Qazi Faez Isa v. President of Pakistan PLD 2021

SC 1 and Benazir Bhutto v. President of Pakistan PLD 1998 SC 388

ref.

Mian Abdul Quddus, Advocate Supreme Court for Petitioner.

Malik Mushtaq Ahmad, Advocate Supreme Court for Respondents.

P L D 2023 Supreme Court 470

Present: Qazi Faez Isa and Yahya Afridi, JJ

Syed ZAHID HUSSAIN SHAH---Appellant

Versus

MUMTAZ ALI and others---Respondents

Civil Appeal No. 2015 of 2022, decided on 9th May, 2023.

(On appeal from the judgment dated 19.05.2022 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 233 of 2021).

Civil Procedure Code (V of 1908)---

----Ss. 148, 149 & O.VII, R.11---Court-fees, non-payment of---Power to make up deficiency of court-fees---Scope---Appellant's application seeking extension of time for deposit of court-fee was dismissed by the Appellate Court---Legality---Law requires that a court should first attend to the matter of court-fees---If court-fees is not paid the plaint may be rejected---Same principle also applies to memoranda of appeals---However, in the present case the Appellate Court adopted a course which the law did not provide; the Court allowed the appellant's appeal but made his decision subject to payment of court-fees within thirty days---Appellant submitted an application for enlargement of time, under sections 148, 149 and 151, C.P.C., in which he stated that he was not aware of the condition imposing court-fees and that due to the Covid-19 pandemic and closure of the court he was unable to make payment within the stipulated thirty days---However, his application was dismissed---Appellant had paid the court-fees, which had secured the interest of the State---Non-payment or belated payment of court-fees does not adversely affect the interest of the opposite-party---Appellate Court should not have proceeded to decide the appellant's appeal till he had paid court-fees---Appellant had given sufficiently valid reasons for extending the time for payment of court-fees, which the court could extend under sections 148 and 149 of C.P.C., therefore, his application seeking extension of time to pay court-fees, should have been accepted by the Appellate Court---If court-fees was allowed to be paid the interest of the State would have been secured, without in any manner undermining the legal rights of the opposite-party, therefore, it was not understandable why the appellant was not allowed to pay the court-fees, albeit belatedly---Appeal was allowed, impugned judgment of Appellate Court was set-aside with the observations that legal complications arise if a judgment is given, as in the present case, without applicable court-fees having been paid, and parties alter their positions pursuant thereto, for instance the appellant may have proceeded to sell the land which he had purchased and thus created third-party interest therein, which may give rise to additional litigation; that such litigation can be avoided if the matter of court-fees is first settled; that when courts are inundated with cases, and of those who are keen to proceed with them, it does not stand to reason to waste court-time by deciding a case in which court-fees has not been paid.

Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; Provincial Government through Additional Chief Secretary v. Abdullah Jan 2009 SCMR 1378 and Abdul Khaliq v. Haq Nawaz PLD 2018 SC 729 ref.

Syed Qalb-i-Hassan, Advocate Supreme Court for Appellant.

Mumtaz Ali, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record for Respondent No. 1.

Ayaz Shaukat, Deputy Attorney-General for Pakistan, Shaukat Rauf Siddiqui, Additional Advocate-General, Punjab, Ashfaq Ahmad Kharal, Additional Advocate-General, Punjab on Court's Notice.

Sh. Zamir Hussain, Senior Advocate Supreme Court and Muhammad Munir Paracha, Advocate Supreme Court, Amicus Curiae.

P L D 2023 Supreme Court 482

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

Messrs PAK SUZUKI MOTORS COMPANY LIMITED through Manager ---Appellant

Versus

FAISAL JAMEEL BUTT and another---Respondents

Civil Appeal No. 797 of 2017, decided on 23rd May, 2023.

(Against the judgment dated 20.02.2017, passed by the Lahore High Court, Lahore in F.A.O. No. 115 of 2014).

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 5, 6, 7 & 8---Defective motor vehicle---Claim filed against manufacturer of vehicle before the Consumer Court---Alleged defects not mentioned in the pleadings---Effect---Claim filed by respondent/claimant did not make any specific mention of the alleged defects in the vehicle---Even the legal notices sent by respondent made no mention of any specific defects, and it was only in his affidavit, submitted as his examination-in-chief, that he mentioned the defects---Litigant was required to plead all material facts that were necessary to seek the relief claimed and then to prove the same through evidence---Parties were required to lead evidence in consonance with their pleadings and no evidence could be led or looked into in support of a fact or a plea that had not been taken in the pleadings---Notably, respondent also admitted in his cross-examination that he had not described the specific defects in the vehicle in his pleadings/claim---Therefore, the defects alleged in the affidavit of respondent were beyond the scope of the pleadings and, hence, could not have been considered---Appeal was allowed and claim filed by respondent was dismissed.

Muhammad Ghaffar v. Arif Muhammad 2023 SCMR 344; Saddaruddin v. Sultan 2021 SCMR 642; Moiz Abbas v. Latifa 2019 SCMR 74 and Muhammad Tariq v. Shamsa PLD 2011 SC 151 ref.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 30(1)(c)---Defective motor vehicle---Claim filed against manufacturer of vehicle before the Consumer Court---Expert evidence---Where the defects alleged are of such a nature that required expert inspection or probe, the onus to provide such expert evidence falls on the consumer who is alleging that the product is defective or faulty---Where such defects are alleged by the consumer, a Consumer Court, before deciding that a certain product is defective or faulty, must satisfy itself that sufficient expert evidence is available and could be relied upon to ascertain the defects so alleged instead of merely placing reliance on the statement of a consumer who may not be from the related field of expertise and therefore, not competent to address the technicalities forming part of the alleged defects, especially where the claim of the consumer is denied by the manufacturer---To this effect, Section 30(1)(c) of the Punjab Consumer Protection Act, 2005 allows the Consumer Court to invite expert evidence, if required, where the claim alleges that the products are defective and do not conform to the accepted industry standards.

In the present case despite alleging technical manufacturing defects in the vehicle, no expert evidence was led by respondent/claimant or invited by the Consumer Court under Section 30(1)(c) of the Punjab Consumer Protection Act, 2005('the Act') to prove that the said defects alleged by respondent actually existed. Instead, the Court relied only on the evidence of respondent, who was not an expert in the automotive industry, and firstly deposed in his cross-examination that the alleged defects were based on his general observations regarding the vehicle and then stated that there were no manufacturing defects in the vehicle. It is apparent that at least two of the defects alleged by the claimant, i.e. with regards to the hatch box and the colour of the stereo, were of such nature that could not have been ascertained without expert inspection. Where the defects alleged are of such a nature that required expert inspection or probe, the onus to provide such expert evidence falls on the consumer who is alleging that the product is defective or faulty. Where such defects are alleged by the consumer, a Consumer Court, before deciding that a certain product is defective or faulty, must satisfy itself that sufficient expert evidence is available and could be relied upon to ascertain the defects so alleged instead of merely placing reliance on the statement of a consumer who may not be from the related field of expertise and therefore, not competent to address the technicalities forming part of the alleged defects, especially where the claim of the consumer is denied by the manufacturer. To this effect, Section 30(1)(c) of the Act allows the Consumer Court to invite expert evidence, if required, where the claim alleges that the products are defective and do not conform to the accepted industry standards. Additionally, Section 30(1)(d) of the Act provides that where the dispute cannot be determined without proper analysis or test of the products, the Consumer Court shall obtain a sample of the products from the claimant and refer the same to a laboratory to make analysis or test with a view to find out if such products suffer from any defect, which may be paid for by the claimant, or if the test or analysis supports the version of the claimant, then to be paid by the defendant, as stipulated under Section 30(1)(e) of the Act. In the present case, the onus to prove the alleged defects was on respondent, which he failed to do. No expert evidence was produced by respondent or invited by the Consumer Court to ascertain whether the alleged defects existed in the vehicle. Therefore, respondent failed to prove that the vehicle was defective in construction or composition as required under Section 5 or that it was otherwise defective for the purposes of any other provision of the Act. Appeal was allowed and claim filed by respondent was dismissed.

Plum Qingqi v. Muhammad Moeed 2015 CLC 1538; Muhammad Aslam v. General Manager Pioneer Pakistan Seed Limited 2014 CLD 257 and Dawlance v. Muhammad Jameel 2012 CLD 1461 ref.

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

----Art. 30---Admission---Admission of a co-defendant is not binding on the other defendant.

Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187 and Shah Muhammad v. Dullah 2000 SCMR 1588 ref.

(d) Punjab Consumer Protection Act (II of 2005)---

----S. 28(4)---Settlement of claims---Limitation period, commencement of---Defective motor vehicle---Claim filed against manufacturer of vehicle before the Consumer Court --Limitation period of 30 days provided under Section 28(4) of the Punjab Consumer Protection Act, 2005 runs from date of knowledge of the defect or fault in the product or service---During this time, the consumer has to first send a written notice to the manufacturer or service provider under Section 28(1) of the Act and provide 15 days to respond to the same, as required under Section 28(2) of the Act.

Even though no limitation period is provided for sending a written notice under Section 28(1) of the Punjab Consumer Protection Act, 2005 ('the Act') it is apparent that Section 28(4) of the Act in unequivocal terms stipulates and clarifies that a claim with regards to a defective or faulty product or service, or contravention of the provisions of the Act by the manufacturer or service provider, has to be filed within 30 days of the arising of the cause of action. The cause of action, in such circumstances where a product or service is faulty, therefore, arises the moment the consumer obtains knowledge that the product or service is defective or faulty.

The limitation period in consumer protection claims, involving defective products, becomes more significant especially because claimants should bring a claim as quickly as possible due to the potential depreciation of the product in question, the characteristics of which may differ according to the specific product. Delaying the filing of a claim can lead to challenges in establishing the product's condition at the time of purchase and linking any defects to the consumer's use or handling. As time passes, the product may deteriorate, be repaired or modified, or become unavailable, making it more difficult to prove the defects or assess its original condition. Bringing a claim promptly helps ensure that the product's condition and any defects can be accurately evaluated and documented. This can also contribute to a stronger case by providing evidence that directly supports the consumer's claim. Additionally, timely action demonstrates the consumer's diligence and commitment to addressing the issue.

When the consumer obtains knowledge of the defect or fault in the product or the service, the 30-day limitation period stipulated under Section 28(4) of the Act commences. It is during this period that the consumer has to first put his grievance before the manufacturer or service provider, seeking rectification of the defect or fault in the product or service, or damages, and provide 15 days to the manufacturer or service provider to remedy the same, as required under Section 28(2). It is only after the manufacturer or the service provider responds to the written notice, or where he fails to respond within the stipulated 15-day period, that the consumer can file a claim before the Consumer Court if the cause of action still subsists. The consumer can stillfile a claim before the Consumer Court by giving sufficient cause for filing the claim beyond 30 days which will be examined by the Consumer Court, as per the provisos to Section 28(4) of the Act.

(e) Limitation---

----Limitation is not a mere technicality, and where the limitation period has expired, a right accrues in favour of the other side which cannot be lightly brushed aside.

Muhammad Anwar v. Essa PLD 2022 SC 716 and Asad Ali v. The Bank of Punjab PLD 2020 SC 736 ref.

Khalid Ishaq, Advocate Supreme Court for Appellant.

Muhammad Ayyub Aheer, Advocate along with Faisal Jameel Butt/claimant in person for Respondent No.1.

Respondent No. 2 in person (via video link from Lahore).

Assisted by Muhammad Hassan Ali, Law Clerk, Supreme Court.

P L D 2023 Supreme Court 493

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan, Munib Akhtar, Syed Hasan Azhar Rizvi and Shahid Waheed, JJ

ABID SHAHID ZUBERI, ADVOCATE SUPREME COURT OF PAKISTAN and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and 2 others---Respondents

Constitution Petitions Nos. 14 to 17 of 2023, decided on 26th May, 2023.

(Declaring Notification dated 19.05.2023 (Regarding constitution of an inquiry Commission to probe into the veracity of alleged Audio Leaks) as ultra vires to the Constitution of Pakistan, 1973).

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

----S. 3---Constitution of Pakistan, Art. 184(3)---Constitutional petitions challenging formation of an Inquiry Commission comprising of Senior Puisne Judge of the Supreme Court and two Chief Justices of the High Courts---Permission of the Chief Justice of the Supreme Court---Whenever a sitting Judge was intended to be made a member of a Commission, the permission of the Chief Justice (of the Supreme Court) first had to be sought---Since such power was peculiar to the said office, the incumbent for the time being of the same could neither divest himself nor be divested by the Federal Government from discharging the constitutional duty---Said constitutional principle would apply even in regard to the Chief Justices of the High Courts being made members of a Commission---Prima facie, therefore, the very constitution of the Commission in the present case was cast in doubt.

The petitioner's challenge was to Notification No.SRO.596(I)/ 2023 dated 19.05.2023 (impugned notification) was issued by the Federal Government for appointment of an Inquiry Commission (Commission) in exercise of its power under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017 comprising Senior Puisne Judge Supreme Court, and Chief Justices of High Court of Balochistan and Islamabad High Court. The terms of reference (TORs) of the Commission, inter alia, were to determine whether certain alleged audios leaked on 16-02-2023 and thereafter subsequently broadcast on the electronic media, involving alleged conversations between persons connected to or including Judges of the superior Courts, constituted material whereby public trust and confidence in the credibility, uprightness, impartiality and independence of the superior judiciary was eroded.

It was an accepted and settled constitutional principle, acted upon several times in the constitution of Commissions whenever a sitting Judge was intended to be made a member thereof, that the permission of the Chief Justice (of the Supreme Court) had first to be sought. Since this power was peculiar to the said office, the incumbent for the time being of the same could neither divest himself nor be divested by the Federal Government from discharging the constitutional duty. Inasmuch as the Federal Government appeared to have acted unilaterally in the present matter, a constitutional principle of the highest importance had been, prima facie, breached.

In the present matter even though the other two members of the Commission were Chief Justices of respective High Courts, the subject matter of the reference transcended any particular High Court and involved at the very least a sitting Judge of the Supreme Court and a Chief Justice of a third High Court. Therefore, keeping in mind the settled principles of federalism, prima facie, the aforementioned constitutional principle would apply even in regard to the other two members of the Commission and therefore, the permission of the Chief Justice (of the Supreme Court) was required for their appointment. Prima facie, therefore, the very constitution of the Commission was cast in doubt.

Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Gen.(R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585; The President v. Justice Shaukat Ali PLD 1971 SC 585 and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

Supreme Court directed that till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19-05-2023 issued by the Federal Government was suspended as was the order dated 22-05-2023 made by the Commission and in consequence thereof proceedings of the Commission were stayed.

For the Petitioner(s)

M. Shoaib Shaheen, Haseeb Jamali, Umar Lakhani, Ayan Memon and Maqsood Buttar, Advocate Supreme Court (in Constitutional Petition No. 14 of 2023).

Malik Shakeel-ur-Rehman, Advocate Supreme Court and Muqtedir Akhtar Shabbir, Advocate Supreme Court (in Constitutional Petition No. 15 of 23).

Nemo (in Constitutional Petition No. 16 of 2023).

In-person (in Constitutional Petition No. 17 of 2023).

For the Federation

Mansoor Usman Awan, Attorney General for Pakistan assisted by Saad Javaid Satti, Advocate, Ms. Maryam Rasheed, Advocate and Ms. Maryam Ali Abbasi, Consultant.

P L D 2023 Supreme Court 500

Present: Ijaz ul Ahsan, Munib Akhtar and Jamal Khan Mandokhail, JJ

SHUJAT HUSSAIN---Applicant

Versus

PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and others---Respondents

C.M.A. No.3652 of 2023 In/and C.A. No. 364 of 2023, decided on 29th May, 2023.

(On appeal from the order dated 01.03.2023 passed by the Election Commission of Pakistan in Case No. F6(95)/2023/Law-III).

Balochistan Local Government Act (V of 2010)---

----Ss. 16(4), 37 & 38(1)---Elections Act (XXXIII of 2017), Ss. 8, 9 & 229(1)---Local Bodies elections---Election to the office of the Chairman, Union Council---Recounting of Votes---Election Commission, powers of---Scope---Election petition filed before the Election Commission under Section 37 of the Balochistan Local Government Act, 2010 ('the 2010 Act') read with Sections 8 and 9 of the Elections Act, 2017 ('the 2017 Act), seeking a re-poll of the election---Held, that the election could only have been called in question by an election petition before the Election Tribunal and not otherwise---Act of Election Commission in choosing to decide the matter itself, was not sustainable in the eyes of law.

An election to an office of any local government under the Balochistan Local Government Act, 2010 ('the 2010 Act') is, as provided for by s. 16(4), to be regulated by the Elections Act, 2017 ('the 2017 Act) (applying mutatis mutandis) only insofar as the applicable provisions are not inconsistent with those of the former. It follows that if there is an express provision in the 2010 Act in relation to the election of a local council, that provision will apply and to that extent the provisions of the 2017 Act will have to give way, unless the matter is covered by Section 229(1) in which case it will have to be resolved by a harmonious reading of the two laws. In our view, Section 37 of the 2010 Act is precisely a provision of such nature.

The election in question, i.e., to the office of the Chairman of the Union Council is an election under the 2010 Act. The contesting respondent sought to call in question the election to this office. That could only have been done by an election petition and not otherwise. Section 38 of the 2010 Act provides, in its subsection (1), that for the hearing of the election petition the Election Commission shall appoint an Election Tribunal in terms as therein stated by a notification. Therefore, the proper remedy for the contesting respondent was to file an election petition under Section 37 of the 2010 Act and not by taking recourse to Sections 8 and/or 9 of the 2017 Act. Inasmuch as the Election Commission failed to constitute an Election Tribunal and instead chose itself to decide the matter, the same is not sustainable in the eyes of law. Appeal was disposed of.

Kamran Murtaza, Advocate Supreme Court (Via video link from Quetta).

Najam-ud-Din Mengal, Advocate Supreme Court at Islamabad and Syed Rifaqat Hussain Shah, Advocate-on-Record for Applicant.

Muhammad Arshad, DG-Law and Falak Sher, Legal Consultant- ECP- Islamabad for Respondents/ECP.

Habib-ur-Rehman, Advocate Supreme Court (Appear without filing enter appearance) for Respondent No. 6.

P L D 2023 Supreme Court 506

Present: Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

REHMAT WALI KHAN and another---Appellants

Versus

GHULAM MUHAMMAD and others---Respondents

Civil Appeal No. 226-P of 2018, decided on 11th April, 2023.

(On appeal against the judgment dated 17.04.2018 passed by the Peshawar High Court, Circuit Bench, Chitral in Civil Revision No. 352 of 2008).

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

----S. 53-A---Registration Act (XVI of 1908), S. 50(1)---Immoveable property---'Unregistered sale deed'---Circumstances in which unregistered sale deed could be given preference over registered deed---In the present case the appellant/vendor, not only admitted the execution of the sale deed but also admitted the payment of sale consideration; he also admitted that the possession of the suit property had also been delivered in consequence of the sale transaction---Un-registered sale deed could be given preference over the registered one when on the basis of un-registered sale deed possession of the property had also been given---Where a person in favour of whom an un-registered deed qua transfer of certain rights in property had been executed, also had possession of the property, he could legally protect his rights in the property and even a registered deed subsequent in time would not affect his/her rights---First proviso to section 50 of the Registration Act, 1908 provided that such rights in the property could be protected under section 53-A of the Transfer of Property Act, 1882---When pursuant to the un-registered sale deed, the respondents were put in possession of the suit land in the year 1971, a vested right had been created in their favour, which could not be taken away merely on the basis of technicalities---Suit for declaration and permanent injunction filed by the predecessor-in-interest of respondents was rightly decreed---Appeal was dismissed.

Sardar Arshad Hussain v. Mst. Zenat-un-Nisa 2017 SCMR 608 and Syed Hakeem Shah v. Muhammad Idrees 2017 SCMR 316 ref.

Asif Hameed Qureshi, Advocate Supreme Court (Via video link from Peshawar) for Appellants.

Muhammad Aamir Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Respondents Nos. 2-6 Ex-parte.

P L D 2023 Supreme Court 510

Present: Ijaz ul Ahsan and Munib Akhtar, JJ

AFIYA SHEHRBANO ZIA and others---Petitioners

Versus

The HON'BLE SUPREME JUDICIAL COUNCIL and others---Respondents

Constitutional Petition No. 19 of 2020, decided on 27th June, 2023.

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. (Amended)).

Constitution of Pakistan---

----Arts. 209(5), 209(6) & 209(7)---Reference against a Judge before the Supreme Judicial Council ("the Council")---Judge against whom a complaint/reference has been filed before the Council but who either retires or resigns before a report is made by the Council to the President or he makes an order thereon---Plea of petitioner that in such a situation the complaint/reference abates; the matter ends without resolution either way, and the complainant is simply informed that the complaint stands closed; that such a result is inimical to the access to justice and its safe administration, and indeed the independence of the judiciary, and creates an impression of impunity of Judges---Held, that Article 209 of the Constitution does not apply to a person who has retired or resigned from the office of a Judge of the Supreme Court or a High Court---It is necessary for the Council, if it forms the necessary opinion, to report to the President that the Judge be removed from office and on such report the President may do so---Thus, the only action permissible to the Council, and hence the President, is the removal of the errant Judge from office---If this is not possible, then clause (6) of Article 209 of the Constitution can have no application---Obviously, this outcome is impossible in relation to a Judge who has already retired or resigned---Council can only make a finding of misconduct in terms of Article 209, which applies only to a Judge still in office at the relevant time and results in his removal from office---Constitution draws a distinction between a person who, at the relevant time, holds office as a Judge and one who, having held that office in the past, does not---Article 209 of the Constitution applies only to the former and not the latter.

Ms. Hina Jilani, Advocate Supreme Court (via Video-Link, Lahore) for Petitioners.

N.R. for Respondents

P L D 2023 Supreme Court 516

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ

A. RAHIM FOODS (PVT.) LIMITED and another---Appellants

Versus

K&N'S FOODS (PVT.) LIMITED and others---Respondents

Civil Appeals Nos. 444 and 445 of 2017, decided on 10th May, 2023.

(Against the judgment of the Competition Appellate Tribunal, Islamabad, dated 25.01.2017, passed in Appeal No. 03 of 2016).

(a) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Scope---Concurrent findings of facts by courts below---Interference with---In the exercise of its appellate jurisdiction in civil cases, the Supreme Court as a third or fourth forum, as the case may be, does not interfere with the concurrent findings of the courts below on the issues of facts unless it is shown that such findings are on the face of it against the evidence available on the record of the case and is so patently improbable or perverse that no prudent person could have reasonably arrived at it on the basis of that evidence---Mere possibility of forming a different view on the reappraisal of the evidence is not a sufficient ground to interfere with such findings.

Federation of Pakistan v. Ali Ihsan PLD 1967 SC 249; Abdur Rauf v. Babu Munir 1976 SCMR 436; Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Khan Muhammad v. Muhammad Din 2010 SCMR 1351; Mohyuddin Hashmi v. Allama Iqbal Open University 2012 SCMR 1414 and Hussain Naqvi v. Zakara Chatha 2015 SCMR 1081 ref.

(b) Competition Act (XIX of 2010)---

----Ss. 31, 37 & 38 & Preamble---Constitution of Pakistan, Art. 18---Freedom of trade and business---Scope---Free and fair competition in trade and business is an intrinsic part of the fundamental right to freedom of trade and business guaranteed by Article 18 of the Constitution.

The preamble to the Competition Act, 2010 (the Act') sets out the objective of the Act and provides for free competition in all spheres of commercial and economic activity to enhance economic efficiency and to protect consumers from anti-competitive forces. The Act aims to address the situations that tend to lessen, distort or eliminate competition, such as (i) actions constituting an abuse of market dominance, (ii) competition restricting agreements, and (iii) deceptive marketing practices. Free and fair competition is a fundamental concept in economics that involves providing a level playing field for all market participants. It is based on the principles of a free market where businesses compete on equal terms, and consumers make decisions based on price, quality, and preference. Free and fair competition is competition that is based on quality, price, and service rather than unfair practices. Predatory pricing, competitor bashing, and the abuse of monopoly-type powers, for example, are unfair practices. When competitors can compete freely on a 'level playing field,' economies are more likely to thrive. On the other hand, unfair competition is using illegal, deceptive, and fraudulent selling practices that harm consumers or other businesses to gain a competitive advantage in the market. However, free and fair competition is encouraged and enforced through legislation and regulation to promote economic efficiency, innovation, and consumer welfare. Violations of fair competition principles can lead to legal consequences, penalties, or other corrective measures. Competition is not only healthy for businesses, but pivotal for innovation. It sparks creativity and nurtures transformation and progress.

Article 18 of the Constitution provides that every citizen shall have the right to conduct any lawful trade or business and clause (b) of the proviso to the said Article states that nothing in this Article shall prevent the regulation of trade, commerce or industry in the interest of free competition. Therefore, regulation in the interest of free competition actualizes the fundamental freedom guaranteed under the Constitution to conduct lawful trade and business. As free and fair competition ensures freedom of trade, commerce and industry and therefore forms an intrinsic part of the fundamental right to freedom of trade and business guaranteed under Article 18 of the Constitution. The preambular objective of the Act is to ensure "free competition" in all spheres of commercial and economic activity to enhance economic efficiency and to protect consumers from "anticompetitive behaviour". The "free competition" envisaged by the Constitution and aimed to be ensured by the Act, therefore, means a competition through fair means, not by any means. To ensure fair competition in trade and business, Section 10 of the Act has prohibited certain marketing practices by categorising them as deceptive marketing practices, and Sections 31, 37 and 38 of the Act have empowered the Commission to take appropriate actions to prevent those practices.

(c) Competition Act (XIX of 2010)---

----S. 10(2)(d)---Deceptive marketing practices---Expression 'fraudulent use'in Section 10(2)(d) of the Competition Act, 2010---Meaning and scope stated.

The expression 'fraudulent use' in Section 10(2)(d) of the Competition Act, 2010 ('the Act')has made the intention of the defendant (user of another's trademark, firm name, or product labelling or packaging) relevant for holding him liable under the Act. However, as the Act has not defined the term 'fraudulent' and thus not given any particular meaning to it, the expression 'fraudulent use' in Section 10(2)(d) is to be understood in its ordinary sense of 'intentional and dishonest use' in contrast to a mere 'mistaken or negligent' use. Needless to mention that 'intention', being a state of mind, can rarely be proved through direct evidence, and in most cases, it is to be inferred from the surrounding facts and circumstances of the case.

The word "use" in Section 10(2)(d) of the Act includes the use of trademark, firm name, or product labelling or packaging which is confusingly similar (also referred to as deceptively similar) to that of another undertaking.

(d) Competition Act (XIX of 2010)---

----S. 10(2)(d)---Deceptive marketing practices---Criterion for determining confusing similarity in the use of another's product labeling and packaging stated.

Criterion to determine the confusing similarity is well-established in our jurisdiction in passing-off and trademark-infringement actions, which also applies in deciding disputes under Sections 10(2)(d) of the Competition Act, 2010. It is whether an unwary ordinary purchaser is likely to be confused or deceived into purchasing the article of the defendant carrying the contentious mark, name or get-up as that of the plaintiff (complainant). The criterion is thus that of such an ordinary purchaser 'who knows more or less the peculiar characteristics of the article he wants; he has in his mind's eye a general idea of the appearance of the article and he looks at the article not closely, but sufficiently to take its general appearance'. It is not that of a careful purchaser neither is it of a 'moron in a hurry'. The purchaser is unwary in the sense that he does not when he buys the article 'look carefully to see what the particular mark or name upon it is' but not that he does not even know the peculiar characteristic of the article he wants to buy. An ordinary customer is not supposed to precisely remember every detail of the mark, name or get-up of the article he intends to buy. The standard is therefore also described as that of a purchaser of average intelligence and imperfect recollection. Further, to determine the confusing or deceptive similarity from the point of view of an unwary ordinary purchaser, the leading characteristics, not the minute details, of the two marks, names or get-ups (labelling or packaging) are to be considered. As the competing marks, names or get-ups when placed side by side, may exhibit many differences yet the overall impression left by their leading characteristics on the mind of an unwary purchaser may be the same. An unwary ordinary purchaser acquainted with the one and not having the two side by side for comparison, may well be confused or deceived by the overall impression of the second, into a belief that he is buying the article which bears the same mark, name or get-up as that with which he is acquainted.

Jamia Industries v. Caltex Oil PLD 1984 SC 8; Insaf Soap v. Lever Brothers PLD 1959 Lah. 381; Ram Kumar v. Wood & Co. AIR 1941 Lah. 262; Lever v. Goodwin (1887) 36 Ch.D. 1; Pasquali Cigarette v. Diaconicolas and Capsopolus 1905 T.S. 472; Morning Star v. Express Newspapers [1979] F.S.R. 113; Lever v. Goodwin (1887) 36 Ch.D. 1; Corn Products v. Shangrila Products AIR 1960 SC 142 and Amritdhara Pharmacy v. S. D. Gupta AIR 1963 SC 449 ref.

(e) Competition Act (XIX of 2010)---

----S. 10(2)(d)---Deceptive marketing practices, action for---Pre-requisites---Registration of trademark (or for that matter, registration of firm name, or product labelling or packaging) is not necessary for the applicability of the provisions of Section 10(2)(d) of the Competition Act, 2010---Neither the common law action of passing-off requires such registration nor does the language of Section 10(2)(d) of the Act provide for any such requirement.

(f) Trade Marks Ordinance (XIX of 2001)---

----S. 46---Trademark-infringement---Passing-off, tort of---Difference between the objectives of a passing-off action and a trademark-infringement action---Passing-off action essentially aims to protect 'property in goods' on account of its reputation (goodwill), not the trademark thereof, whereas the trademark-infringement action is meant to protect 'property of trademark' as a trademark itself is a property.

Tabaq Restaurant v. Tabaq Restaurant 1987 SCMR 1090 ref.

(g) Competition Act (XIX of 2010)---

----S. 10(2)(d)---Deceptive marketing practices---Using a competitors product labelling and packaging in a deceptive marketing manner---In the present case, to determine the liability of appellant-company under Section 10(2)(d) of the Competition Act, 2010 ('the Act'), the Competition Commission ('the Commission') specifically mentioned the criterion applied, that is, whether 'the striking similar packaging and labelling is misleading enough to cause confusion in the minds of the average consumer of a commodity, with the end result of an unjust advantage accruing to the copycat at the expense of and to the detriment of the complainant'---Commission further observed that it would examine the appearance of the product packaging and labelling 'as a whole which may collectively include visually confusing resemblances in elements of colour scheme, layout style, design, images, labels, font usages etc., instead of each individual similarity in isolation'---By applying this criterion the Commission recorded the findings of facts and held appellant-company liable for the contravention of Section 10(2)(d) of the Act---Competition Appellate Tribunal ('the Tribunal'), affirmed the criterion applied and the findings of facts recorded by the Commission---Supreme Court observed that in determining the liability of appellant-company under Section 10(2)(d) of the Act, the criterion applied by the Commission and affirmed by the Tribunal was legally correct, and the Commission and the Tribunal had correctly decided that the facts of the case fell within the prohibition of Section 10(1) read with Section 10(2)(d) of the Act---Appeals were dismissed.

(h) Competition Act (XIX of 2010)---

----Ss. 10(2)(a) & 10(2)(d)---Deceptive marketing practices---Meaning of distribution of false or misleading information in Section 10(2)(a) of the Competition Act, 2010 stated.

Section 10(2)(a) of the Competition Act, 2010 ('the Act') has codified the common law on injurious falsehood claims. In common law, 'misrepresentation' is a common ground in both the actions for passing-off and injurious falsehood, but it is understood and applied in a different sense in each action. The general difference between misrepresentation in a passing-off action and misrepresentation in an injurious falsehood action is that in the former action, the misrepresentation is made by the defendant concerning his own goods while in the latter it is made concerning the goods of the plaintiff. In a passing-off action, the defendant by misrepresentation primarily attempts to take the undue benefit of the reputation (goodwill) of the goods of the plaintiff though he thereby also causes damage to the business of the plaintiff indirectly; but in an injurious falsehood action, the direct and express purpose of the misrepresentation is to cause damage to the reputation (goodwill) of the goods of the plaintiff though it may also impliedly or indirectly benefit the business of the defendant.

Christopher Wadlow, The Law of Passing-Off (5th Ed. 2016) p 16.; White v. Mellin [1895] A.C. 154 HL; Kaye v. Robertson [1991] F.S.R. 62 CA and Schulke and Mayr v. Alkapharm [1999] F.S.R. 161 ref.

There is nothing in the language of Section 10(2)(a) of the Act that suggests that the legislature has changed therein the meaning of 'misrepresentation' as understood in common law action for injurious falsehood. On the contrary, the use of the words 'false or misleading information' in Section 10(2)(a) shows that the legislature has intended to retain the same meaning; for in common law both the terms 'false' and 'misleading' are used in injurious falsehood actions for a representation to be taken as 'misrepresentation'. Further, the use of the phrase 'harming the business interests of another undertaking' in Section 10(2)(a) of the Act, and not in Section 10(2)(d), denotes that the said phrase has been used in the sense of causing express and direct harm to the business interests of the complainant undertaking as it is understood in an injurious falsehood action. And the non-mentioning of this phrase in Section 10(2)(d) of the Act shows that the damage caused to the business interests of the complainant undertaking is taken to be an implied and indirect effect of the fraudulent use of its trademark, etc., as it is understood in a passing-off action, which the legislature has considered unnecessary to be expressly mentioned.

Kaye v. Robertson [1991] F.S.R. 62 CA and White v. Mellin [1895] A.C. 154 HL ref.

(i) Competition Act (XIX of 2010)---

----Ss. 12 & 43---Competition Commission of Pakistan ('the Commission')---Appeal filed by the Commission before the Supreme Court against an order passed by the Competition Appellate Tribunal ('the Tribunal')---Maintainability---Adjudicatory body (such as the Commission) deciding a matter in exercise of its quasi-judicial powers between two rival parties under a law cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum under that law or by a court of competent jurisdiction and such body thus does not have locus standi to challenge the decision of that higher forum or court.

Although the role of the Competition Commission ('the Commission') under the Competition Act, 2010 ('the Act') is primarily of a regulatory body, it is quasijudicial as well under some provisions of the Act. The provisions of clauses (a) and (d) of Section 10(2) of the Act, envisage the quasi-judicial role of the Commission while deciding upon the divergent claims and allegations of two competing undertakings. And, an adjudicatory body deciding a matter in exercise of its quasi-judicial powers between two rival parties under a law cannot be treated as an aggrieved person if its decision is set aside or modified by a higher forum under that law or by a court of competent jurisdiction and such body thus does not have locus standi to challenge the decision of that higher forum or court. The appeal filed by the Commission in the present case against the decision of the Tribunal setting aside partially its quasi-judicial order is therefore not maintainable. Appeals were dismissed.

Wafaqi Mohtasib v. SNGPL PLD 2020 SC 586 ref.

Hasan Irfan Khan, Advocate Supreme Court assisted by Saqib Asghar, Advocate for Appellant (in C.A. 445 of 2017).

Azid Nafees, Advocate Supreme Court along with Syed Rifaqat Hussian Shah, Advocate-on-Record for Appellant (in C.A. 444 of 2017).

Barrister Haris Azmat, Advocate Supreme Court and Azid Nafees, Advocate Supreme Court for Respondents (in C.A. 445 of 2017).

Hasan Irfan Khan, Advocate Supreme Court and Azid Nafees, Advocate Supreme Court for Respondents (in C.A. 444 of 2017).

P L D 2023 Supreme Court 536

Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

GUFRAN ALI---Petitioner

Versus

HASEEB KHAN and another---Respondents

Criminal Petition No. 1617 of 2022, decided on 23rd May, 2023.

(On appeal against the order dated 17.11.2022 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 99 of 2022).

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

----S. 8(1)---Juvenile---Determination of age---Ossification test---Scope and significance of ossification test in determining age of an accused stated.

Ordinarily, the date of birth of a person is determined on the basis of documentary proof i.e. birth certificate, educational documents and National Identity Card etc but when the date of birth is disputed and varies on all such documents then the ossification test is the best way to determine a person's age. The ossification test is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between birth and the age of twenty five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The ossification test varies slightly based on individual characteristics such as climatic conditions, where the person was born and raised, dietic values, hereditary differences etc.

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

----S. 8(1)---Juvenile---Determination of age---Report of Medical Board---Conflicting reports---View favourable to accused to be adopted---Medical board constituted by the Trial Court to examine the accused submitted its report which consisted of three opinions of (i) Radiology Department, (ii) General Medicine Department, and (iii) Dental Department---Although the age of the respondent was found to be 18 to 20 years and 16 to 18 years by the two departments but it was settled principle of law that if two views were possible from the evidence adduced in the case then the view favourable to the accused was to be adopted---Trial Court had rightly declared the accused to be a juvenile at the time of commission of the offence---Petition for leave to appeal was dismissed and leave was refused.

Saghir Ahmed v. State 2023 SCMR 241 and Sahib Ullah v. The State 2022 SCMR 1806 ref.

Khalil-ur-Rehman Abbasi, Advocate Supreme Court for Petitioner.

Fakhar Abbas, I.O. for Respondent No.2.

P L D 2023 Supreme Court 539

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ

Chaudhary 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 petitioner-candidate on the basis that they were cast against the direction of the Party Head---Petitioner-candidate filed present Constitutional petition challenging the ruling of Deputy Speaker---Maintainability---Ruling of the Deputy Speaker prevented the petitioner, who was a joint candidate of two political parties, from forming the Government in the Province of Punjab, and becoming the Chief Minister, as a result of which prima facie Article 17(2) of the Constitution stood violated---Ruling of the Deputy Speaker allowed the respondent candidate to form the Government in Punjab even though he did not command the requisite majority in the Provincial Assembly---Said ruling therefore allegedly deprived the people of province of their fundamental right to be governed by a constitutional Parliamentary Government in violation of the rule of law thereby causing a constitutional violation and turmoil in the Province that affected its electorate---As such a large section of the public was deprived of their fundamental right on account of the impugned ruling given by the Deputy Speaker, the same naturally raises questions of public importance---Consequently, the present Constitutional petition satisfies the two-fold test of Article 184(3) of the Constitution and is maintainable.

Pakistan Peoples Party Parliamentarians (PPPP) v. Federation of Pakistan PLD 2022 SC 574 ref.

(b) Precedent---

----Ratio decidendi---Scope---Ratio decidendi encompasses only such reasoning of judgment that is necessary for the decision of the question of law before the Court---Ratio decidendi alone forms the binding precedent/authoritative element of a judgment which possesses the force of law---Other reasons given or discussions had in the judgment of the Court (or the separate opinion of a Judge) which are not necessary for the decision of the case are merely obiter dicta/passing remarks.

Halsbury's Laws of England (Volume 11, 2020); Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145; Muhammad Sohail v. Government of N.-W.F.P. 1996 SCMR 218; Irshad Ahmad Shaikh v. State 2000 SCMR 814; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 and Jowitt's Dictionary of English Law (5th Edn.) ref.

(c) 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 petitioner-candidate on the basis that they were cast against the direction of the Party Head---Plea of respondents and interveners that present petition should be heard by a Full Court as in the judgment reported as District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), ('the District Bar Association case') the Supreme Court had issued an authoritative interpretation of Article 63A(1)(b) of the Constitution, namely, that the Party Head has the power to issue a direction to members of the Parliamentary Party on how to vote in the matters specified in the said provision; that such settled view was stated in paragraph 112 of the opinion of Justice Sheikh Azmat Saeed (as he then was)---Validity---By commenting on a matter beyond the scope of the legal dispute before the Court in the District Bar Association case, the statement in paragraph 112 of Justice Sheikh Azmat Saeed's opinion was unnecessary to the decision of that case, and as a result, it did not constitute the ratio decidendi of his own opinion; it was instead a passing remark amounting to an obiter dictum---Furthermore out of the seventeen Judges presiding over the District Bar Association case, nine Judges, constituting the majority, did not concur with the view of Justice Sheikh Azmat Saeed (as he then was)---In such circumstances paragraph 112 of Justice Sheikh Azmat Saeed's opinion was merely a plurality view, which was different from a majority opinion (or view) of the Court---As a result, paragraph 112 failed to command the support of the requisite majority of the Full Court i.e., nine Judges from a total of seventeen Judges---Request for forming a Full Court to hear present matter was declined.

The nature, mode/manner and effect of a direction issued by a Parliamentary Party to its members under Article 63A(1)(b) of the Constitution were not called into question in the judgment reported as District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), ('the District Bar Association case'). The absence of a challenge thrown to this facet of Article 63A was most likely due to the fact that the said provision retained its original form as introduced by the 14th Amendment to the Constitution in 1997. It was therefore neither germane to the dispute nor necessary for the Court in the District Bar Association case to comment on the legal aspects of the direction that is issued under Article 63A(1)(b). Indeed, the legal issue raised in that case, namely, the vires of the 18th Amendment to the Constitution did not require such scrutiny. Therefore, if any comments were made by a Judge in that case on the nature, mode/manner and/or effect of a direction issued under Article 63A(1)(b) these would be in the nature of obiter dicta/passing remarks and thus lack any binding effect.

The statement made by Justice Sheikh Azmat Saeed (as he then was) in paragraph 112 of his opinion in the District Bar Association case that "Article 63A has only been amended to the extent that the decision of the party as how to vote has been conferred upon the Party Head" is a textually inaccurate iteration of the change brought about in Article 63A of the Constitution by the 18th Amendment to the Constitution. The statement is inconsistent with the express language of Article 63A. Such an interpretation of Article 63A has been given without referring to its text and without giving reasons to justify such a reading of the Article. Additionally, for commenting on a matter beyond the scope of the legal dispute before the Court in the District Bar Association case, the statement in paragraph 112 is also unnecessary to the decision of that case. As a result, that statement does not constitute the ratio decidendi of Justice Sheikh Azmat Saeed's (as he then was) own opinion. It is instead a passing remark amounting to an obiter dictum. Therefore, it logically follows that the said statement made obiter cannot be the ratio decidendi of the District Bar Association case. This is also because it was not concurred to by a majority of the other Judges in that case.

The District Bar Association case was presided over by Full Court of seventeen Judges. Of these, ten delivered their respective opinions. Out of the seventeen Judges who heard and decided the case only Justice Sheikh Azmat Saeed (as he then was) made a passing remark about the authority of the Party Head to issue a direction to members of the Parliamentary Party. This view was endorsed by seven other Judges on the Bench. However, the remaining nine Judges did not consider this aspect of Article 63A; and rightly so as it did not arise for their adjudication on the vires of the 18th Amendment to the Constitution. Therefore, these nine Judges constituting the majority, did not concur with the view of Justice Sheikh Azmat Saeed (as he then was). In such circumstances paragraph 112 of Justice Sheikh Azmat Saeed's opinion is merely a plurality view. A plurality opinion (or as here a plurality view) is different from a majority opinion (or view) of the Court. As a result, paragraph 112 failed to command the support of the requisite majority of the Full Court i.e., nine Judges from a total of seventeen Judges. Therefore, as per settled legal principles it is bereft of precedential worth.

Even if it assumed that the statement made by Justice Sheikh Azmat Saeed (as he then was) in paragraph 112 of his opinion rendered in District Bar Association case is ratio decedindi of that case and has binding effect, such statement would still be incorrect because it would either be per incuriam for being based upon ignorance of any provisions of the Constitution, and/or is founded on [serious] misinterpretation thereof, or it would be a decision in sub silentio because the particular point of law involved in the decision was not perceived by the Court or present to its mind. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed, to be declaration of law or authority of a general nature binding as a precedent. Request for forming a Full Court to hear present matter was declined accordingly.

Regarding Pensionary Benefits of the Judges of the Superior Courts PLD 2013 SC 829; Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Lancaster Motor Company v Barclays Bank [1941] 1 KB 675 ref.

(d) Constitution of Pakistan---

----Art. 189---Judgments/orders of the Supreme Court---Precedential value---'Majority opinion' and 'plurality opinion'---Distinction---Distinction between the two lies in the numerical strength of judicial approval that each commands in a given case---Plurality opinion lacks the support of the majority; and this has a decisive effect on its precedential value.

Black's Law Dictionary (10th Edn); Corpus. Juris Secundum (Volume 21, 1990); CTS Corp. v. Dynamics Corp. of America 481 US 69 (1987) and Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119 ref.

(e) Constitution of Pakistan---

----Art. 189---Judgments/orders of the Supreme Court---Precedential value---Principles of 'per incuriam' and 'sub silentio'---Scope---Said principles are exceptions to the doctrine of precedent and permit the Court to overrule the ratio decidendi of the incorrect decision (per incuriam) or to ignore the same (sub silentio).

Regarding Pensionary Benefits of the Judges of the Superior Courts PLD 2013 SC 829; Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Lancaster Motor Company v Barclays Bank [1941] 1 KB 675 ref.

(f) Constitution of Pakistan---

----Arts. 69(1) & 127---Courts not to inquire into proceedings of Parliament and Provincial Assemblies---Scope---Article 127 along with Article 69(1) of the Constitution provide limited protection to proceedings in Parliament / Provincial Assemblies from judicial scrutiny---Therefore, the Court ordinarily will not interfere in the proceedings of Parliament/Provincial Assemblies that are safeguarded by the Constitution, namely, the individual rights of Members to speak and vote on the floor of the Assembly and the collective decision-making of the Assembly---However, if these proceedings infringe any provision of the Constitution the Court has jurisdiction to intervene to set aside the unconstitutional act(s)---No immunity is available to proceedings of Parliament/Provincial Assemblies, if these violate the Constitution.

Pakistan Peoples Party Parliamentarians (PPPP) v. Federation of Pakistan PLD 2022 SC 574 ref.

(g) 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---Language of Article 63A of the Constitution is manifestly clear that the vote cannot be cast contrary to any direction issued by the Parliamentary Party---Article 63A(1)(b) excludes the Party Head from being the decisive person/authority that issues the direction on how to vote---Supreme Court in the (detailed) judgment reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2023 SC 42) did not recognise the Party Head as the competent authority under Article 63A(1)(b) of the Constitution to issue a direction to members of the Parliamentary Party on how to vote---Deputy Speaker's reliance on the language of Article 63A(1)(b) of the Constitution and the short order reported as Supreme Court Bar Association of Pakistan vs. Federation of Pakistan (PLD 2022 SC 488) to discard the 10 votes cast by the members of a political party on the direction of the Party Head was erroneous since the said direction was issued by an unauthorised person namely, the Party Head contrary to the express language of Article 63A(1)(b)---Consequently, on account of the inclusion of the 10 votes, the petitioner having secured 186 votes as opposed to the respondent candidate's 179 votes was declared the duly elected Chief Minister, and the Provincial Governor was directed to administer oath of office to the petitioner and on his failure to do so the President may administer such oath to the petitioner---Constitutional petition was allowed accordingly.

Supreme Court Bar Association of Pakistan v. Federation of Pakistan PLD 2023 SC 42 ref.

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.

For the Petitioners:

Ali Zafar, Imtiaz Rashid Siddiqui, Aamir Saeed Rana, M. Safdar Shaheen Pirzada, Dr. Babar Awan, Ch. Faisal Fareed, Ahmed Owais, Azhar Siddiqui (via video link at Lahore), Syed M. Ali Bukhari, Advocates Supreme Court assisted by Sabeel Tariq, Hamza Sheikh, Abdullah Babar and Fayaz Kandwal, Advocates.

For Respondent No.1:

Irfan Qadir, Advocate Supreme Court.

For Respondent No. 2:

Mansoor Usman Awan and Khalid Ishaq, Advocates Supreme Court.

For Punjab Government:

Qasim Ali Chohan, Addl. A.G. and Ch. M. Jawad Yaqub, Addl. A.G. (via video link from Lahore).

For the Federation:

Ch. Aamir Rehman, Add. A.G.P., Sohail Mehmood, Addl. A.G.P. assisted by Usama Rauf and Malik Abbas Farooq, Advocates.

For PPPP:

Farooq H. Naek, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record assisted by Sheraz Shaukat Rajpar, Advocate.

For PML-Q President:

Salahuddin Ahmed and Mohsin Qadir Shahwani, Advocates Supreme Court.

P L D 2023 Supreme Court 588

Present: Yahya Afridi, Muhammad Ali Mazhar and Ayesha A. Malik, JJ

NADIA NAZ and another---Petitioners

Versus

The PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Review Petitions Nos. 255 and 570 of 2021, decided on 14th March, 2023.

(Review against judgment dated 05.07.2021, passed by this Court in Civil Petition No.4570 of 2019).

Per Ayesha A. Malik, J; Muhammad Ali Mazhar, J. agreeing; Yahya Afridi, J. also agreeing but with his own reasons.

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

----S. 2(h)---"Harassment" as defined under section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010---Meaning and scope---[Per Ayesha A. Malik, J: Intent and purpose behind the enactment of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment---Sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender---Sexual harassment is a form of sex-based discrimination, which reduces a woman's potential for social equality and reduces her participation in the workplace---In the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances---Definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim]---[Per Yahya Afridi, J: 'Harassment' in form of 'sexually demeaning attitudes' is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender based discrimination]

Per Ayesha A. Malik, J.

Sexual harassment at the workplace is not only about physical intimacy or sexual form but also includes discrimination on account of gender. Sexual harassment, therefore, includes a form of sex-based discrimination, which hinders equal opportunity for employment performance and advancement of women. Sexual harassment is a form of sex-based discrimination, which reduces a woman's potential for social equality and reduces her participation in the workplace. As a phenomenon, sexual harassment is gender specific and the majority of victims are women. Sexual harassment at the workplace means that the presence of women at the workplace triggers this gender-based harassment, which in turn undermines a woman's right to public life, her right to dignity and most important, her basic right to be treated equal. Sexual harassment compromises these rights of a woman which entails being economically and financially independent and being able to make independent decision and more importantly to be considered as a productive member of society. The judgment under review assumed that sexual only means relating to the act of sexual nature. As a result, the meaning relating to the gender was never considered and entirely excluded gender-based discrimination and harassment faced at the workplace. If the definition of the word sexual is taken to also include the gender, the impact is significant when reading Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') as harassment means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes. So in the context of harassment, the word sexual and sexually are relevant and give meaning to the word harassment, which in this context becomes actionable when it relates to the gender, being sex-based discrimination as opposed to only meaning coital relations and advances. Reading further into the definition of harassment, it appears sex-based discrimination does not have to be limited to sexual activity, rather it is behaviour which is promoted on account of the gender as a result of gender-based power dynamics, which behaviour is harmful and not necessarily a product of sexual desire or sexual activity. Such harassment is motivated to degrade and demean a person by exploitation, humiliation and hostility which amounts to gender-based harassment and can include unwanted sexual alleviation and sexual coercion. Such behaviour in law becomes harassment at the workplace when it causes interference with work performance or creates an intimidating, hostile or offensive work environment and has the effect of punishing the complainant for refusal to comply with a request or is made a condition for employment. Accordingly, the definition of harassment includes sex-based discrimination that is based on the conduct of the harasser which affects the workplace environment in a negative manner as it interferes with the work and performance of the victim. If the conduct of the harasser is given a restricted meaning to being of sexual nature or form, it takes away the essence of the meaning of harassment, its purpose and reduces its impact and scope and ignores that sexual harassment is oftentimes less about sexual interest and more about reinforcing existing power dynamics. Such an application of the law limits the protection offered under the Act and effectively excludes many instances where the victim may be harassed but cannot bring action against the harasser since the conduct was not sexual in nature.

Sexual, Concise Oxford English Dictionary (12th Ed. 2011); Sexual, Collins Online English Dictionary, Collins; Sexual, Merriam-Webster.com Dictionary; International Labour Organization, Sexual Harassment in the World of Work, ILO.ORG; Anum Mesiya, Ten Years of the Protection Against Harassment of Women at the Workplace Act, 2010, 11, Pakistan Law Review, 225, 238 (2020); Catharine A. MacKinnon, Sexual Harassment of Working Women, Yale University Press, New Haven and London, p. 183 (1979); Palvasha Shahab, Understanding Sexual Harassment at the Pakistani Workplace, Legal Aid Society (2020); Chamallas, Martha, Writing about Sexual Harassment: A Guide to Literature, 4(1), UCLA Women's Law Journal, 37, 38 (1993); Rhitu Chatterjee, A New Survey Finds 81 Percent Of Women Have Experienced Sexual Harassment, NPR.ORG, (21 February 2018, 7:43 PM ET), www.npr.org/sections/thetwo-way/2018/02/21/587671849/ http://www.npr.org/sections/thetwo-way/2018/02/21/587671849/; (1997) 6 Supreme Court Cases 241 Vishaka and others v. State of Rajasthan and others; (1999) 1 Supreme Court Cases 759 Apparel Export Promotion Council v. A.K. Chopra and Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252 ref.

The Act is not restricted to female victims, as the word employee defined in Section 2(f) of the Act means any regular or contractual employee and does not simply state women employees. Furthermore, complainant defined in Section 2(e) under the Act means a woman or man who has made a complaint. Hence, the Act recognizes that harassment is gender-based and that the victim can be a man or a woman. The impugned judgment under review overlooked the inclusion of men in the definition of complainant which is relevant when seen in the context of the protection given to employees under the Act. If the present definition of harassment, as given in the judgment under review is considered, its application on employees and complainants who are not women becomes questionable and its applicability may become redundant. This aspect of the matter was not considered in the judgment under review as its interpretation of harassment has rendered the Act ineffective for employees or complainants who are not women. This error is so manifest and evident that it cannot be ignored.

In order to further examine the meaning of sexual and to understand the purpose of the Act, Report of the National Assembly Standing Committee on Women Development dated 29.09.2009, the debates of the National Assembly of 21.01.2010 and of the Senate of 25.02.2010 were examined. All these documents show that the intent and purpose behind the enactment of the Act was to address harassment at the workplace which is prompted on account of gender and was not limited to a sexual form of harassment. The debates show that the intent was to inter alia, give effect to Articles 11 and 13 of the Convention Against the Elimination of Discrimination Against Women (CEDAW) and International Labour Organization (ILO) Convention Nos.100 and 111 on Worker's Rights and to eliminate all forms of discrimination in the workplace, including gender-based discrimination and sexual harassment. CEDAW was actively discussed in the debates and considered such that there should be no constraint on women when they enter the workplace. The Parliamentary debates also show that wherever the word harassment was used, it was intended to include harassment in the form of discrimination at the workplace.

There appears to be an error in the judgment under review owing to the interpretation of harassment displayed by the Court, which definition is patently against the Act and its Statement of Objects. If the word sexual as used in the definition of the word harassment was assessed for its true meaning, as given in the dictionaries, then the conclusions drawn by the Supreme Court (in the judgment under review) would have been different; and this makes valid grounds for review. Review petitions were allowed and matter was remanded to the President to decide the representation against the Ombudsperson's order.

Pakistan Bar Council v. Federal Government 2018 SCMR 1891 ref.

Per Yahya Afridi, J:

It is important to underline three points: first, that the error pleaded by the petitioners and accepted by the Court to exercise its review jurisdiction does not require lengthy arguments or detailed re-examination of the record as it is apparent on the face of the record; second, that had the second meaning of the word 'sexual', which has now been brought to the attention of the Supreme Court, been then agitated and considered by the Court, its decision in the judgment under review on the meaning and scope of the word 'harassment', as defined in the Act, would have been otherwise; and finally, that the reference in the present judgment to the definitions of 'harassment' made in international Declarations and Conventions, as well as in existing legal literature is, only for the purpose of elaboration, while the meaning and scope of the word 'harassment' is to be interpreted on the basis of the definition given in the Act.

'Harassment' in form of 'sexually demeaning attitudes' is motivated to degrade and demean a person by exploitation, humiliation and hostility on the basis of his or her gender, and such harassment is rooted in gender based discrimination. 'Sexually demeaning attitude' becomes harassment at the workplace, as it causes interference with work performance or creates an intimidating, hostile or offensive work environment for the victim of such attitude.

The second meaning of the word 'sexual' was not brought to the notice of the Court, and thus, escaped its attention, while delivering the judgment under review, which resulted in misconstruction of the definition of 'harassment' as given in the Act. The non-consideration of an important aspect of the matter, which if it had been considered, the decision of the Court would have been otherwise, amounts to an error apparent on the face of the record and is a well-established ground to exercise review jurisdiction. Review petitions were allowed, and the matter was remanded to the President for deciding afresh the representation of the petitioner, which shall be deemed as pending before him, and be decided in accordance with the law, in view of the meaning and scope of 'harassment' as discussed and explained in the present judgment.

Amir Khan v. Controller of Estate Duty PLD 1962 SC

335; Suba v. Fatima Bibi 1996 SCMR 158; Abdul Ghaffar v. Asghar

Ali PLD 1998 SC 363 and Barkat Ali v. Qaim Din 2006 SCMR 562

ref.

Per Ayesha A. Malik, J.

(b) Interpretation of statutes---

---Purposive approach---Meaning and scope---While interpreting statutes, the cardinal rule is to take the purposive approach which means to look at the meaning of the words and the object and purpose of the law, which states the aim and objective of the law---Discovering the aim of the legislature carries significant weight while construing the meaning of the words of the statute.

Dilawar Hussain and others v. Province of Sindh and others PLD 2016 SC 514 ref.

(c) Constitution of Pakistan---

----Art. 188---Review of judgments by the Supreme Court---Grounds---Error apparent on the face of the judgment---Scope---Every judgment of the Supreme Court is presumed to be a solemn and final decision on all points arising out of the case and if the Court has not taken a conscious and deliberate decision on point of facts or the law, then this results in a material irregularity, which makes for an error apparent on the face of the judgment and has a bearing on the fate of the case.

Sikandar Hayat v. The State PLD 2020 SC 559 and Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 ref.

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

----S.2(h)---Harassment---Victim's perspective---In cases of harassment, the victim's perspective is relevant as against the notion of acceptable behaviour---Standard of a reasonable woman should be considered to determine whether there was harassment, which rendered the workplace hostile and all relevant factors should be viewed objectively and subjectively.

Petitioner in person (in C.R.P. No. 255 of 2021).

Barrister Shehzad Ata Elahi, Attorney General for Pakistan assisted by Miss Marium Rashid and Aitzaz ul Haq, Advocates for Petitioners (in C.R.P. 570 of 2021).

Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents Nos.4 and 5

Agha Muhammad Ali, Advocate Supreme Court for Respondent No.6 (in C.R.P. No. 255 of 2021).

Agha Muhammad Ali, Advocate Supreme Court for Respondent No.7 (in C.R.P. No. 570 of 2021).

M. Nazir Jawwad, Advocate Supreme Court for PTV.

M. Irfan Arjumand, Deputy Director for Ministry of Information.

P L D 2023 Supreme Court 609

Present: Umar Ata Bandial, H.C.J., Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs Department and others---Petitioners

Versus

SHAH MUHAMMAD and others---Respondents

Civil Petitions Nos. 143-Q, 144-Q and 2095 of 2020, decided on 16th March, 2022.

(On appeal against the judgment dated 13.05.2020, passed

by the Balochistan High Court in C.Ps. Nos. 513 of 2017 and 299 of 2019).

Balochistan Levies Force Act (IV of 2010)---

----Ss. 7(1)(a), 8 & 10(2)---"B areas" of Balochistan province---Levies Force---Registration and investigation of cases---Notifications issued by Provincial Government whereby only Tehsildar and Naib-Tehsildar could register and investigate cases in B areas---Legality---Impugned notifications empowered the Tehsildars/ Naib Tehsildars to register and investigate cases in B areas whereas the Balochistan Levies Force Act, 2010 ('the Act') vested this duty in the Levies Force---Under the Act only Officers of the Levies Force could register and investigate criminal cases in B areas---Accordingly, the Provincial Government had no authority to delegate this duty to Tehsildars/Naib Tehsildars---Delegated (or subordinate) legislation could not contravene the statutory principles underlying the parent legislation---However, by delegating the duty of registration and investigation of cases in B areas to Tehsildars/Naib Tehsildars through the impugned notifications, the Provincial Government had ignored this settled principle of law and overridden the fundamental statutory principle of the Act, namely, that it is the duty of the Officers of the Levies Force i.e. the Investigation Officer (BPS-17) and Assistant Investigation Officer (BPS-16) to register and investigate criminal cases in B areas---Petitions for leave to appeal were dismissed and both the impugned notifications were set-aside.

Muhammad Amin Muhammad Bashir Ltd. v. Government of Pakistan 2015 SCMR 630 ref.

Ayaz Sawati, Addl. A.G. Balochistan for Petitioners (in C.Ps. Nos. 143-Q and 144-Q of 2020).

Shoaib Shaheen, Advocate Supreme Court for Petitioners (in C.P. No. 2095 of 2020).

Syed Ifitikhar Hussain Gillani, Senior Advocate Supreme

Court and Khalid Ahmed Panezai, Advocate Supreme Court for Respondents.

P L D 2023 Supreme Court 617

Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ

ZAFAR IQBAL---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 497-L of 2023, decided on 31st July, 2021.

(Against the order of Lahore High Court, Lahore dated 04.01.2023, passed in Crl. Misc. No. 8873-B of 2022).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Supreme Court Rules, 1980, O. XXIII, R.2---Constitution of Pakistan, Arts. 9, 10A, 14 & 185(3)---Pre-arrest bail, petition for---Limitation---Scope---Law of limitation is fully applicable to petitions for leave to appeal in matters relating to pre-arrest bail and there is no relaxation as far as the period of limitation is concerned unless sufficient cause is shown for the delay, as required under the law---After dismissal of the petition for pre-arrest bail by the High Court, the Supreme Court should be approached promptly in a pre-arrest bail matter to avail the remedy available under the law and to actualize the right of access to justice.

The law of limitation is fully applicable to petitions for leave to appeal in matters related to pre-arrest bail like in other criminal petitions filed under Article 185(3) of the Constitution, and a delay in a petition filed beyond the limitation period must be supported by an application for condonation of delay which is to be examined by the Court on its own merits. Even though sufficient cause for condoning delay in criminal matters has been interpreted liberally and leniently by the Supreme Court while dealing with petitions and appeals filed by those incarcerated, this view is rooted in the objective to ensure that those incarcerated have equal opportunities of access to justice, and for safe administration of criminal justice. A person behind bars faces numerous hindrances in pursuing his legal remedies because of restricted access to the outside world, and therefore, suffers a disability in comparison to those who enjoy liberty and freedom. The delay, therefore, is usually because of the constraints due to being imprisoned and not because of any ulterior motive. As such, condonation of delay in such petitions is viewed leniently through the lens of fundamental rights, particularly the right to liberty, dignity and fair trial guaranteed under Articles 9, 14 and 10A of the Constitution, with the purpose to provide those incarcerated with equal access to courts, and equal and proper opportunities to defend themselves and to avail remedies available under the law. It is for this reason that, by following the practice of taking a lenient and permissive view in cases of those incarcerated, the Supreme Court has held that the incarceration of a petitioner seeking post arrest bail itself constitutes sufficient cause to allow condonation of delay, unless the delay was caused due to some ulterior motive of the said petitioner himself.

Muhammad Arshad v. The State PLD 2021 SC 927; Sikandar Hayat v. The State PLD 2020 SC 559 and Bashir Ahmed v. The State 1996 SCMR 308 ref.

However, the above ground is not available to condone delay in a petition for leave to appeal related to prearrest bail as the petitioner is not incarcerated and therefore, suffers no such disability. Failure to surrender before the authorities after dismissal of the pre-arrest bail petition by the High Court and then filing a time barred petition, impugning the decision of the High Court and seeking pre-arrest bail, before this Court could be indicative of an intent to remain a fugitive from the law. Such conduct could also be considered as a deliberate attempt to thwart the investigation, resulting in the loss of valuable evidence which is now simply lost or is impossible to collect due to afflux of time by failing to join the investigation. As such, failing to file a pre-arrest bail petition before this Court within the limitation period could either be intentional with ulterior purposes or, in the very least, due to the negligence of the petitioner, for which no reprieve can be granted by condoning delay without any sufficient cause. This Court should be approached promptly in a pre-arrest bail matter to avail the remedy available under the law and to actualize the right of access to justice. Therefore, the law of limitation is applicable to such petitions for leave to appeal in matters related to pre-arrest bail with its full rigour and there is no relaxation as far as the period of limitation is concerned unless sufficient cause is shown for the delay, as required under Rule 2 of Order XXIII of the Supreme Court Rules, 1980.

Awal Gul v. Zawar PLD 1985 SC 402 ref.

Zubair Afzal Rana, Advocate Supreme Court for Petitioner along with Petitioner.

Muhammad Jaffar, Addl. P.G. Pb. for the State along with Saadat Hussain, DSP and Yasir Nawaz, S.I.

Assisted by Muhammad Hassan Ali, Law Clerk, Supreme Court.

P L D 2023 Supreme Court 621

Present: Umar Ata Bandial, C.J.

The PRESIDENT OF PAKISTAN and others---Petitioners

Versus

Justice QAZI FAEZ ISA and others---Respondents

C.M.A. 2012 of 2023 in C.M. Appeal No. 81 of 2021 C.M. Appeal No.81 of 2021 in C.R.P. No. 296 of 2020 in Const. P. No. 17 of 2019, C.M.A. No. 2013 of 2023 in C.M. Appeal No. 82 of 2021, C.M. Appeal No. 82 of 2021 in C.R.P. No. 297 of 2020 in Const. P. No. 24 of 2019, C.M.A. No. 2014 of 2023 in C.M. Appeal No. 83 of 2021, C.M. Appeal No. 83 of 2021 in C.R.P. No. 298 of 2020 in Const. P. No. 17 of 2019, C.M.A. No. 2015 of 2023 in C.M. Appeal No. 84 of 2021, C.M. Appeal No. 84 of 2021 in C.R.P. No. 299 of 2020 in Const. P. No. 19 of 2019, C.M.A. 2016 of 2023 in C.M. Appeal No. 85 of 2021, C.M. Appeal No. 85 of 2021 in C.R.P. No. 300 of 2020 in Const. P. No. 23 of 2019, C.M.A. No. 2017 of 2023 in C.M. Appeal No. 86 of 2021, C.M. Appeal No. 86 of 2021 in C.R.P. No. 301 of 2020 in Const. P. No. 32 of 2019, C.M.A. No. 2018 of 2023 in C.M. Appeal No. 87 of 2021, C.M. Appeal No. 87 of 2021 in C.R.P. No. 308 of 2020 in Const. P. 25 of 2019, C.M.A. 2019 of 2023 in C.M. Appeal No. 88 of 2021, C.M. Appeal No. 88 of 2021 in C.R.P. No. 309 of 2020 in Const. P. No. 34 of 2019, C.M.A. 2020 of 2023 in C.M. Appeal No. 89 of 2021, C.M. Appeal No. 89 of 2021 in C.R.P. No. 509 of 2020 in Const. P. No. 21 of 2019, C.M.A. No. 2021 of 2023 in C.M. Appeal No. 90 of 2021, C.M. Appeal No. 90 of 2021 in C.R.P. No. 296 of 2020 in Const. P. 17 of 2019, C.M.A. No. 2022 of 2023 in C.M. Appeal No. 91 of 2021, C.M. Appeal No. 91 of 2021 in C.R.P. No. 297 of 2020 in Const. P. 24 of 2019 C.M.A. No. 2023 of 2023 in C.M. Appeal No. 92 of 2021, C.M. Appeal No. 92 of 2021 in C.R.P. No. 298 of 2020 in Const. P. No. 17 of 2019, C.M.A. No. 2024 of 2023 in C.M. Appeal No. 93 of 2021, C.M. Appeal 93 of 2021 in C.R.P. No. 299 of 2020 in Const. P. 19 of 2019, C.M.A. No. 2025 of 2023 in C.M. Appeal No. 94 of 2021, C.M. Appeal No. 94 of 2021 in C.R.P. No. 300 of 2020 in Const. P. No. 23 of 2019, C.M.A. No. 2026 of 2023 in C.M. Appeal No. 95 of 2021, C.M. Appeal No. 95 of 2021 in C.R.P. No. 301 of 2020 in Const. P. No. 32 of 2019, C.M.A. No. 2027 of 2023 in C.M. Appeal No. 96 of 2021, C.M. Appeal No. 96 of 2021 in C.R.P. No. 308 of 2020 in Const. P. 25 of 2019, C.M.A. No. 2028 of 2023 in C.M. Appeal No. 97 of 2021, C.M. Appeal No. 97 of 2021 in C.R.P. No. 309 of 2020 in Const. P. No. 34 of 2019, C.M.A. No. 2029 of 2023 in C.M. Appeal No. 98 of 2021, C.M. Appeal No. 98 of 2021 in C.R.P. No. 509 of 2020 in Const. P. No. 21 of 2019, decided on 10th April, 2023.

| | | | --- | --- | | PRAYER:-- | "that CMAs may kindly be accepted and the appellants may be allowed to withdraw the C.M. Appeals and Curative Review, in the interest of justice." |

(a) Supreme Court Rules, 1980---

----O.XXVI, R. 9---Constitution of Pakistan, Arts. 184(3), 188 & 209(5)(b)---Curative review---Second review petition---Maintainability---Bar on filing---Curative review petitions, withdrawal of---Through present applications the appellants seek the withdrawal of their curative review petitions filed against the Supreme Court's decision dated 26.04.2021 given in its review jurisdiction in Justice Qazi Faez Isa v. President of Pakistan (PLD 2022 SC 119) ("subject judgment")---Held, that bar on filing a second review petition is declared in Rule 9 of Order XXVI, of the Supreme Court Rules, 1980---Under the current scheme of the law the appellants appear to be precluded from filing a review against the subject judgment because it has finally disposed of the review petitions filed against the original judgment---Second review is barred by law and the Court alone is empowered, if so inclined, to re-visit, review or set aside any of its previous judgments/orders---In the present case no Member of the Bench that delivered the subject judgment (nor any other Judge of the Court) has so far considered it necessary to re-visit, review or set aside that judgment on the ground that it has had a significant impact on the Fundamental Rights of citizens; or that it is in the interest of the public good; or that it is per incuriam---Consequently, in the absence of such a judicial view and the lack of an enabling jurisdiction that allows an aggrieved or concerned party to file a second review, the appellants curative review petitions appear to be not maintainable---In such circumstances the ordinary course of action would have been to refer the matter to the Court for a conclusive determination on its maintainability---However, the appellants are now seeking the withdrawal of their curative review petitions---Such right of the appellants to withdraw their curative review petitions (and generally of parties to withdraw their cases) is acknowledged by the law---Applications were allowed and the curative review petitions were dismissed as withdrawn.

Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771; Khalid Iqbal v. Mirza Khan PLD 2015 SC 50 and Justice (Retd.) Abdul Ghani Sheikh's case PLD 2013 SC 1024 ref.

(b) Supreme Court Rules, 1980---

----O. XXVI, R. 9---Constitution of Pakistan, Arts. 184(3), 187 & 188---Supreme Court Rules, 2013 (India), O.XLVIII, R.2---Curative review petition---Scope---Difference in jurisprudence relating to curative review petition as provided under the relevant Supreme Court Rules and case law of Pakistan and India.

A study of the Indian law on curative review reveals that it is a remedy altogether distinct from the Suo Motu exercise of jurisdiction by the Supreme Court of Pakistan . Whereas curative review has no standing in Pakistan's jurisprudence the availability of Suo Motu review has long been accepted by the Supreme Court of Pakistan, albeit in the limited circumstances of doing complete justice under Article 184(3) and/or Article 188 read with Article 187 of the Constitution. Both types of judicial interventions, curative review and Suo Motu review, possess a similar purpose i.e., to correct a fundamental error in a previous judgment/order. However, the key difference, inter alia, between the two jurisdictions (of India and Pakistan) lies mainly in their mode and manner of invocation. Order XLVIII, Rule 2 of the Supreme Court Rules, 2013 (India) mandates that curative review must be invoked by a party. On the other hand, Suo Motu review can only be invoked by the Supreme Court of Pakistan in its discretion, including on the information received from an aggrieved or concerned party. The pendency of proceedings or the presence of a party is not necessary for the Supreme Court of Pakistan to exercise Suo Motu jurisdiction. All that is required for the Supreme Court of Pakistan to act is cognizable information. Therefore, the lack of the proceedings being initiated by a party is inconsequential to the Supreme Court's exercise of Suo Motu jurisdiction. That does not appear to be the case for curative review petitions filed in the Supreme Court of India.

Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771 and Khalid Iqbal v. Mirza Khan PLD 2015 SC 50 ref.

Mansoor Usman Awan, Attorney General for Pakistan and Ch. Aamir Rehman, Addl. A.G. for Applicants/Appellants.

P L D 2023 Supreme Court 628

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

PERVAIZ AKHTAR---Appellant

Versus

Mst. FARIDA BIBI and others---Respondents

Civil Appeal No. 408 of 2022, decided on 8th August, 2023.

(Against judgment dated 31.01.2022 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No. 60-D of 2014).

Per Ayesha A. Malik, J.; Ijaz ul Ahsan, J. agreeing; Jamal Khan Mandokhail, J. dissenting.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Sale transaction with illiterate housewives /Pardanashin ladies---Proof---Appellant (alleged vendee) claimed that he purchased the suit property from the respondent, who was the General Power of Attorney (GPA) of the plaintiffs (two illiterate housewives)---Plaintiffs filed a suit for declaration with permanent injunction against the appellant stating therein that they were the owners in possession of the suit property and that they never sold the suit property to the appellant---[Per Ayesha A. Malik [Majority view]: Appellant admitted that plaintiffs were illiterate housewives and resided in the same vicinity; he also admitted that respondent was a property agent and that he had purchased other properties from him in the past---Appellant did not produce any evidence of the sale in his favour as there were no witnesses to the sale or payment of the sale consideration nor does the revenue record detiail the sale and payment of sale consideration in the presence of the revenue officer---Furthermore, the appellant relied on a mutation being a copy of the Register Dakhal Kharaj Mahaal to show that the suit property was sold to him by respondent---Said mutation providesd that there was an oral sale through the GPA but gave no details of the oral sale and simply mentioned the sale consideration of Rs. 148,000/----Register Dakhal Kharaj Mahaal was an incomplete document as the report mentioned in Column No.14 was not relied upon by the appellant to establish the oral sale in his favour---There was also no report by the revenue officer to verify the oral sale in favour of the appellant---Furthermore, the mere fact that the GPA was executed did not establish the sale in favour of the appellant, as he was required to provide independent evidence of the oral sale in his favour---Importantly the GPA did not appear in Court, nor did any witness to establish the oral sale---Since the appellant and respondent were known to each other and had been doing business together, therefore, the element of the fraud with the plaintiffs could not be ruled out---In this case, there was no independent advice given to Pardanashin women---Moreover, respondent being the GPA holder did not inform plaintiffs of the sale in favour of the appellant---Furthermore, even though the appellant resided in the same village, he made no effort to ascertain whether plaintiffs intended to sell their property through the GPA to him---Such fact became relevant when seen in the context of the evidence with reference to the sale consideration as plaintiffs entered into an agreement to sell the suit property for Rs.1,600,000/ - whereas the appellant purchased the property from the GPA for Rs.148,000/----Given that respondent executed the agreement to sell with plaintiffs and agreed to pay them Rs.1,600,000 / - for the sale of the property, he betrayed their trust, did not complete the sale as agreed under the agreement to sell and instead sold the suit property to the appellant through an oral sale---High Court had rightly decreed the suit of the plaintiffs]---[Per Jamal Khan Mandokhail, J [Minority view]: Agreement between the plaintiffs and the respondent was evidence of the fact that they sold the disputed property to the respondent, followed by which a registered power of attorney was executed in his favour---Respondent exercised his authority by alienating the disputed property in the name of the appellant through the disputed mutation----Factum of this sale and the number of the disputed mutation was already in the knowledge of plaintiffs, who subsequently incorporated the same into their agreement with the respondent, with their free will and consent---Plaintiffs' had a grievance against the respondent only as far as the outstanding amount was concerned---Appellant in his written statement and in his statement recorded before the Trial Court contended that he had paid an amount of Rs.1,600,000/- as consideration for the disputed property to respondent, whereafter the property was transferred to him through the disputed mutation---It was the case of plaintiffs that respondent paid them an amount of Rs.100,000/- each and delivered the cheque for the remainder amount which was subsequently dishonoured---Such fact further supported the contention of the appellant that he had already paid the entirety of the consideration amount to respondent---Besides, the stance of the appellant was neither challenged by plaintiffs nor was it contested by respondent---Moreover, the appellant was not party to the agreements between the plaintiffs and the respondent, as such, was not bound by their terms and conditions---In such circumstances, the present suit based on the agreements was not maintainable against the appellant---Respondent was proceeded against ex parte by the Trial Court and also did not appear before the High Court as well as the Supreme Court---Such non-appearance on behalf of respondent suggested mala fide on his part and his collusion with the plaintiffs, as he was not only their authorized attorney, but also their nephew---Plaintiffs had failed to make out a case against the appellant who was a bona fide purchaser---Suit of plaintiffs was rightly dismissed by the Trial and Appellate Courts---Appeal was dismissed.

Per Ayesha A. Malik, J. [Majority view]

(b) Pardanashin lady---

----Rights of Pardanashin/illetrate women with reference to their property rights and the approach to be adopted by Courts in such regard explained.

In the case of a transaction with Pardanashin woman, a principle of caution is attached to the transaction to protect her rights. It is necessary that a Pardanashin woman is fully cognizant and aware of the transaction and that she has independent advice from a reliable source to understand the nature of the transaction; there must be witnesses to the transaction and to the fact that a Pardanashin woman has received the sale consideration. Most importantly, a Pardanashin woman must know to whom she is selling her property and the transaction must be explained to her in the language she fully understands. In a case where a Pardanashin woman has trusted a relative and executed a general power of attorney for her to sell the property, it is still incumbent upon the power of attorney holder to fulfil the aforementioned conditions of making the Pardanashin woman aware of the sale that is about to be executed under the power of attorney. This is because the underlying principle here is to ensure that at all times where a woman executes a transaction with reference to her property, it is done freely and deliberately. The mere fact that a power of attorney has been executed by a Pardanashin woman does not absolve the attorney holder from ensuring that he has informed the Pardanashin woman of the sale he is to execute under that attorney and to obtain her consent in this regard. This is necessary to establish the fairness and knowledge of the transaction for the benefit of a Pardanashin woman.

Ghulam Farid and another v. Sher Rehman through LRs 2016 SCMR 862 and Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 ref.

The objective of the Court is to protect Pardanashin women from the risk of an unfair deal and to ensure that any transaction related to the sale of their property is effected by free will and with consent. Wherever there is a transaction with Pardanashin women, it must be established that they were given independent, impartial and objective advice understanding all implications and ramifications of the transaction to ensure that they give their consent to the transaction, because valuable rights are involved and the Pardanashin women should be able to make an informed decision with reference to their property with the help of proper advice and consultation. The burden of proof lies on the person exercising the power of attorney to prove that the transaction was carried out in good faith and with full knowledge and consent of the grantor. Hence, the mere fact that Pardanashin women execute a general power of attorney will not absolve the attorney nor the buyer of the obligation to ensure that the Pardanashin women have full knowledge of the sale and have given their consent to the sale. In the case of a Pardanashin woman, even if a power of attorney is executed, the mere execution of the power of attorney will not establish the consent and intent of the Pardanashin woman to effectuate sale in favour of a specific buyer. For the purposes of disposal of the property of Pardanashin women, their independent consent and willingness to dispose of their property must be taken and established notwithstanding the execution of a general power of attorney.

Muhammad Naeem Khan and another v. Muqadas Khan (deceased) through L.Rs. and another PLD 2022 SC 99 and Mian Allah Ditta through L.Rs v. Mst. Sakina Bibi and others 2013 SCMR 868 ref.

The concept of protecting the rights of Pardanashin women finds its root in the cultural practice of women staying within the protection of their home, having limited access to affairs outside their home. Consequently, such women have limited interaction with society and do not participate in matters outside their home. This suggests that their knowledge and information about matters outside their home is limited and insufficient to take informed decisions. Accordingly, the courts have protected the rights of such women in order to protect them from betrayal, exploitation and fraud especially where valuable property rights are concerned. The concept of an illiterate woman is similar to that of a Pardanashin woman as both lack education and basic knowledge of worldly affairs and both interact essentially at a limited level with society. This limited participation hampers her ability to take informed decisions. Such women are perceived as being unskilled, uneducated and incompetent so far as the business matters are concerned . They lack experience and are easily susceptible to deceit even by their relatives. The courts endeavour to protect Pardanashin or illiterate women due to their social standing and vulnerability not only from society at large but also from relatives. Women are often the targets of fraud and deceit when it comes to property matters, which is why the courts have invoked the principle of caution in protecting the rights of such women so that they are not wrongfully deprived of their property. The limitations of Pardanashin or illiterate women have been duly considered by the courts against which the courts have held that such women must be given independent advice from a reliable and trustworthy source so as to ensure that they fully understand the transaction and the consequences of that transaction. Whenever the authenticity or genuineness of a transaction entered into by a Pardanashin woman is disputed or claimed to have been secured on the basis of fraud or misrepresentation, the burden will lie on the beneficiary of that transaction to prove good faith and more importantly, the Court will consider whether the transaction was entered into with free will or under duress. It goes without saying that the effort to protect rights of Pardanashin and illiterate women is necessary so as to give such women the ability to make independent decisions with reference to their property or belongings so as to ensure that they are not deprived of the ability to take a good decision based on their social standing in society. This is a step towards ensuring that there is an element of financial and economical independence given to women, who have been deprived of education and have limited interaction within the home and the family. While this may be the customary or traditional role of women as seen by society in general, the endeavour of the Court has always been to protect the vulnerability and susceptibility of women.

Per Jamal Khan Mandokhail, J.

(c) Fraud---

----Burden of proof---Allegation of fraud, cheating and collusiveness raised by a person is required to be proved by him.

Muhammad Munir Paracha, Advocate Supreme Court for Appellants.

Sardar Muhammad Ashfaq Abbasi, Advocate Supreme Court for Respondents Nos.1 and 2 (L.Rs.).

Nemo for Respondent No.3.

P L D 2023 Supreme Court 643

Present: Umar Ata Bandial, H.C.J. and Athar Minallah, J

SHAMSHAD BIBI and others---Petitioners

Versus

RIASAT ALI and others---Respondents

Civil Petition No. 1692-L of 2022, decided on 25th May, 2023.

(Against the order dated 24.05.2022 of the Lahore High Court, Lahore passed in Civil Revision No. 107777 of 2017).

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

----S. 115 & O. XLI, R. 27---Revisional jurisdiction of the High Court---Additional evidence, recording of---Scope---Ordinarily, at the stage of civil revision there is no question of recording additional evidence, but there may be exceptional cases where, in the interest of justice and if so required by the court to enable it to adjudicate on the matter, the court may order that such additional evidence should be recorded---In exceptional cases depending on the facts and circumstances, a court exercising revisional jurisdiction may record clarificatory statement or admit evidence in any other form, in order to determine whether the lower court had acted illegally or with material irregularity, so as to attract clause (c) of section 115(1) of the C.P.C.---Where in a case falling under section 115(1)(c) of the C.P.C., it has been established that the appellate court had exercised its jurisdiction illegally or with any material irregularity then the scope of additional evidence is not excluded---Additional evidence can, therefore, be admitted in exceptional cases and to rectify the error where the court had acted illegally or with material irregularity in the exercise of its jurisdiction, and justifiably fell within the four corners of the power vested in the High Court under section 115 of the C.P.C.

Ahmad Ashraf v. University of Punjab 1988 SCMR 1782; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Mohabbat v. Asadullah Khan and others PLD 1989 SC 112 ref.

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

----O. XLI, R. 27---Powers of Appellate Court to allow additional evidence---Scope---Power under Order XLI Rule 27 of the C.P.C. is not intended to be exercised to fill up lacunas, or to make up any deficiency, in the case, nor to provide an opportunity to the party to raise a new plea---Said power essentially has to be exercised cautiously and sparingly and not to facilitate an indolent litigant---Court before exercising its jurisdiction of allowing the recording of additional evidence, must be satisfied that the document sought to be adduced in evidence is not of the nature that could be easily fabricated, tampered or manufactured.

Malik Ejaz Hussain Gorche, Advocate Supreme Court for Petitioners (via video-link, Lahore)

Rana Maqsood ul Haq, Advocate Supreme Court for Respondents (via video-link, Lahore).

P L D 2023 Supreme Court 648

Present: Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

Syeda AYESHA SUBHANI---Petitioner

Versus

The STATE and others---Respondents

Crl. P. 588-L of 2023, decided on 28th August, 2023.

(Against the order of Lahore High Court, Lahore dated 17.04.2023, passed in Crl. Misc. No.77194-B of 2022)

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

----S. 497(1), third proviso---Constitution of Pakistan, Arts. 9, 10A & 14---Second bail application/petition---Maintainability---Fresh grounds---Scope---Delay in trial that occurs after rejection of first bail application on statutory ground of delay in conclusion of trial---Delay in the conclusion of the trial that occurs for no fault of the accused in the year following the rejection of his bail application on the statutory ground of delay, is to be considered a "fresh ground", not earlier available to him, for entertaining his second bail application, within the meaning and scope of that term.

As the statutory right to be released on bail on the ground of delay in the conclusion of the trial flows from the constitutional rights to liberty, fair trial and dignity guaranteed under Articles 9, 10A and 14 of the Constitution, the provisions of the 3rd proviso to section 497(1), Cr.P.C. must be fashioned in a manner that is progressive and expansive of these rights of the accused, who is still under trial, and his guilt being not yet proven, has in his favour the presumption of innocence.

The entitlement of an accused to post-arrest bail on the statutory ground of delay in the conclusion of the trial is time-based. If the delay exceeds a year for no fault of the accused, in offences punishable other than death, the right of the accused to post-arrest bail ripens. This right continues to ripen for each period of one year starting from the arrest of the accused if he satisfies the court that he is not at fault for the delay in a particular period of one year unless his case falls within the 4th proviso to Section 497(1), Cr.P.C. Denying this recurring right to post-arrest bail to the accused would amount to giving the prosecution a license to delay the conclusion of the trial for an unlimited period of time after the dismissal of the first bail application of the accused on the statutory ground of delay. The accused would, in such an eventuality, be left confined as an under trial prisoner for an unlimited period of time at the mercy of the prosecution to conclude the trial as and when it pleases to do so. The accused shall have no incentive to attend the trial regularly and cooperate in the early conclusion thereof, after the dismissal of his first bail application, if his subsequent orderly conduct cannot entitle him to post-arrest bail despite non-conclusion of the trial for no fault of his in the next one year. Such a situation would be absolutely antithetical to the constitutional scheme of fundamental rights and make a mockery of the rights to liberty, fair trial and dignity of the accused guaranteed under the Constitution.

The purpose and objective of the 3rd proviso to section 497(1), is to ensure that the trial of an accused is conducted expeditiously and that the pre-conviction detention of a person accused of an offence not punishable with death does not extend beyond the period of one year. If the trial in such an offence is not concluded within a period of one year for no fault of the accused, the statutory right to be released on bail ripens in his favour unless his case falls within any of the clauses of the 4th proviso. This right of the accused creates a corresponding duty upon the prosecution to conclude the trial within the specified period of one year. If any act or omission of the accused hinders the conclusion of the trial within a period of one year, no such right will accrue to him and he would not be entitled to be released on bail on the statutory ground of delay in conclusion of the trial. But if after the rejection of his plea for bail on this ground, the accused corrects himself and abstains from doing any such act or omission in the year following such rejection but the prosecution fails to perform its duty in concluding the trial within the specified period of one year, a fresh right, that is to say, a fresh ground, would accrue in his favour. The 3rd proviso to Section 497, Cr.P.C., thus, becomes operative as and when a period of one year passes but the trial is not concluded for no fault of the accused. Therefore,the delay in the conclusion of the trial that occurs for no fault of the accused in the year following the rejection of his bail application on the statutory ground of delay, is to be considered a "fresh ground", not earlier available to him, for entertaining his second bail application, within the meaning and scope of that term as elaborated in the case reported as Nazir Ahmed v. State PLD 2014 SC 241

Shakeel Shah v. State 2022 SCMR 1 ref.

(b) Interpretation of statutes---

----Criminal statute---If two interpretations of a provision of a criminal statute are reasonably possible, the one that is favourable to the accused, not the prosecution, should be preferred.

Bashir v. State 1998 SCMR 1794; Shahista Bibi v. Superintendent Jail PLD 2015 SC 15; Waris Ali v. State 2017 SCMR 1572; Province of Punjab v. Muhammad Rafique PLD 2018 SC 178 and Sahib Ulah v. State 2022 SCMR 1806 ref.

Jawad Zafar, Advocate Supreme Court for Petitioner/ Complainant.

Raja Shafqat Khan Abbasi, DAG, Saqib Hafeez, A.D. FIA, Cyber Crimes, Lahore for the State.

Munir Ahmed Bhatti, Advocate Supreme Court for Respondent along with Syed Junaid Arshad, the respondent/accused, in person.

P L D 2023 Supreme Court 653

Present: Ijaz Ul Ahsan, Jamal Khan Mandokhail and Shahid Waheed, JJ

IJAZ UL HAQ---Appellant

Versus

Mrs. MAROOF BEGUM AHMED and others ---Respondents

Civil Appeal No. 1121 of 2018, decided on 16th August, 2023.

(On appeal against the judgment dated 11.07.2018 passed by the Islamabad High Court, Islamabad in R.F.A.No.138 of 2014).

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

----Ss. 12 & 27---Contract Act (IX of 1872), S. 230---Suit for specific performance of agreement to sell immoveable property---Suit filed by plaintiff (vendee) against Attorney of owner of the property without impleading the latter -- Where plaintiff subsequently applied to amend the plaint to include the owner of the property as a defendant---Where limitation period to the extent of the owner of property had expired---Whether the plaintiff could maintain a suit against the Attorney for specific performance of the contract, particularly when it was not within time to the extent of the necessary party, that is to say, the owner of the property---Held, that recitals of the contract between the plaintiff and the Attorney and the evidence brought on record suggested that the agent/Attorney, had disclosed the identity of the principal (owner of the property) and intended to impose the obligations of the contract upon the owner of the property and also secured its advantages to her---Attorney had no beneficial interest in the contract---General rule is that that where a contract is made for and on account of the principal and in his name, and the agent has no beneficial interest in the contract, the right of action upon the contract is in the principal alone and the agent neither can sue and be sued upon it---Said principle is also embedded in Section 230 of the Contract Act, 1872---Agent/Attorney, acted for and on behalf of the owner of the property and thus suit for specific performance of the contract was not maintainable against the owner, especially when the plaintiff had added the owner after the prescribed period of limitation, and secondly, owner's status in it, at best, could only be regarded as a proper party and, in terms of Section 27 of the Specific Relief Act, 1877, specific performance of the contract also could not be sought against the owner.

Hayat and others v. Amir PLD 1982 SC 167; Morton v.

Stone (39 Minn 275); Denver Produce Co v. Taylor (73 Miss 702); Buckbee v. Brown [(21 Wend. (NY) 110 & (1)]; Angbats Aktiebolaget Bohuslanska Kusten, Sweden and (2) Bird & Co. (Pakistan) Ltd., Chittagong v. Central hardware Stores, Chittagong PLD 1969 SC 463 and Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155 ref.

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

----S. 12---Civil Procedure Code (V of 1908), First Sched., Appendix-A, Form 47, para. 2 & Form 48, para. 2---Suit for specific performance of agreement to sell immoveable property---Readiness and willingness of the plaintiff to perform his obligations under the agreement---Proof and burden of proof---Determination of the readiness and willingness to perform the obligations emanating from the contract is a calculus for ascertaining the bona fide of the parties---As the initial burden is always on the plaintiff, he must first state in his plaint the facts demonstrating his readiness and willingness to perform his part of the contract and then prove it by producing convincing and reliable evidence.

Mst. Waris Jan and another v. Liaqat Ali and others PLD

2019 Lah. 333; Muhammad Riaz and others v. Badshah Begum and others 2021 SCMR 605 and Messrs DW Pakistan (Private) Limited, Lahore v. Begum Anisa Fazl-i-Mahmood and others 2023 SCMR 555 ref.

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

---S. 12---Suit for specific performance of agreement to sell immoveable property---Capacity of vendee to pay the balance amount by the stipulated time---Proof---In a suit for specific performance, the vendee has to prove that at the appointed time, he had sufficient money with which he could pay the balance amount, or if he did not have such money, he made such arrangements, with the help of which, he could pay as promised.

Ch. Mushtaq Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Respondent No.1: Ex-Parte

Niazullah Khan Niazi, Advocate Supreme Court for Respondent No.2.

Ch. Riasat Ali Gondal, Advocate Supreme Court and Ghulam Qadir, Asst. CDA for Respondent No.3.

P L D 2023 Supreme Court 661

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 Petition No. 296 of 2020 along with Civil Miscellaneous Application No. 1243 of 2021, Civil Review Petitions Nos. 296 to 301 of 2020, C.M.A. No. 4533 of 2020 in C.R.P. No. Nil of 2020, Civil Review Petitions Nos. 308, 309 and 509 of 2020, decided on 13th April, 2021 (Released on 4th April, 2022).

Per Munib Akhtar, J; Umar Ata Bandial, J., Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ. agreeing; Maqbool Baqar, Manzoor Ahmed Malik (only to the extent of the short order), Mazhar Alam Khan Miankhel, Syed Mansoor Ali Shah, JJ. dissenting; Yahya Afridi, J. partially agreeing with the majority view with respect to dismissal of present application.

(a) Administration of justice---

----Dispensation of justice---Fundamental rule---Justice must not only be done, it should be seen to be done.

R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, [ 1923] EWHC KB 1 ref.

(b) Administration of justice---

----Procedural laws---Such laws have to be complied with; otherwise, the judicial system will enter chaos.

(c) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Review jurisdiction of the Supreme Court---Scope---In review jurisdiction the Court can only determine whether a material irregularity has been committed in the judgment under review and, even if the answer be in the affirmative, it must further be shown that the irregularity has had a substantial effect on the outcome of the case.

Mohammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335 ref.

(d) Constitution of Pakistan---

----Arts. 19, 19-A, 25, 178, 184(3), 188, 191 & 209(5)(b)---Supreme Court Rules, 1980, O.XXXIII, R. 6---Broadcasting or live streaming of court proceedings---Constitutionality and permissibility---Review petitions before the Supreme Court challenging the directions given to the tax authorities by the Supreme Court to conduct an inquiry into the foreign assets of petitioner judge's family members and submit a report to the Supreme Judicial Council despite quashing of Presidential reference against the petitioner-judge---Present application was filed by the petitioner-judge praying that the Supreme Court may order live-streaming of the court proceedings of his case (review petitions), and direct the State-owned Pakistan Television Corporation (PTV) to broadcast live proceedings of his case and the Pakistan Electronic Media Regulatory Authority (PEMRA) to issue written instructions to all private television channels that they cannot be restrained in any manner whatsoever from broadcasting the proceedings---Maintainability and competency---[Per Munib Akhtar, J. (Majority view)]: Present application raised an altogether new prayer that had no nexus with the review jurisdiction of the Court; it also involved adjudication of substantive law issues and, appeared to be wrongly filed as a miscellaneous matter in the review jurisdiction of the Court---Present application could not cross the hurdle of maintainability by relying on O. XXXIII, R. 6 of the Supreme Court Rules, 1980, as the said Rule had no relevance to the facts of the present case---Present Bench was sitting, as an "open court"---Public, which was always welcome to sit in the open court proceedings, included members of the press and, vloggers and bloggers; they were free to witness Court proceedings and frequently did so---Relief sought through the present application was novel, as there had been no judicial pronouncements by the Supreme Court on the merits and demerits of allowing public broadcast and/or live streaming of Court proceedings---Exercise of deciding the issue of public broadcast and/or live streaming could only be deliberated upon on and be approved by the Court in its administrative manifestation, therefore, the Supreme Court referred the said issue to the Chief Justice so that he may place it before the Full Court for deliberation and appropriate action---Application was dismissed]---[Per Maqbool Baqar, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ. (Minority view): Prayer made in the present application for livestreaming and broadcasting the court-proceedings could be decided only by the present Bench, and cannot be agitated through filing a separate constitution petition under Article 184(3) of the Constitution---Cases heard by the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution, including review petitions and other matters arising therein, are matters of public importance within the meaning and scope of that expression used in Article 19A of the Constitution---Live-streaming (audio and video) of the court-proceedings in cases heard by the Supreme Court, on a petition or suo motu, under Article 184(3) of the Constitution, should be made available for the information of the public through a link on the official website of the Court, in the enforcement of the fundamental right of the public, and for the fulfillment of the obligation of the Court, under Article 19A of the Constitution---Registrar of the Supreme Court shall take steps to provide for the requisite technological infrastructure for livestreaming the court-proceedings---Registrar shall also place the matter before the Court, on the administrative side, for considering amendments in the Supreme Court Rules 1980, in order to livestream court-proceedings of all cases heard under Article 184(3) and to regulate the practice and procedure in this regard---Keeping in view the current state of technological infrastructure available in the Supreme Court and the fact that the review petitions filed in the case were fixed for hearing, audio recording of the proceedings of the court-hearings of the petitioner's case shall be made available through a link on the official website of the Supreme Court, for public information]---[Per Yahya Afridi, J. (partially agreeing with the majority view with respect to dismissal of present application): Relief sought by the petitioner through present application would negate the very spirit of the oath taken by him---However the right of the public to have access to live-streaming or audio-video recording, written transcript or any other medium, of the court hearings in the proceedings of public importance, including those under Articles 184(3) and 186 of the Constitution, was their fundamental right under Article 19A of the Constitution---Said right, however, could not be left to reign absolute, lest it be abused and, thus, it was required to be regulated by framing rules under Article 191 of the Constitution]

Per Munib Akhtar, J. (Majority view):

Regardless of how (and not just jurisprudentially) important the claim put forward by the present application may be, it cannot be lost sight of that what were before the Court were petitions inviting the exercise of review jurisdiction under Article 188 of the Constitution. Present application raises an altogether new prayer that has no nexus with the review jurisdiction of the Court.

It is Article 184(3) of the Constitution, and not Article 188, that would be the proper vehicle for considering relief of the nature sought by, and through, the present application. The present application involves adjudication of substantive law issues and, appears to be wrongly filed as a miscellaneous matter in the review jurisdiction of the Court.

Swapnil Tripathi v. Supreme Court of India AIR 2018 SC 4806 ref.

Petitioner cannot cross the hurdle of maintainability of present application by relying on O. XXXIII, R. 6 of the Supreme Court Rules, 1980. The said Rule has no relevance to the facts of the present case, in the context of the present application. Said Rule can be invoked by the Court to either further the "ends of justice" or to "prevent abuse of the process of the Court". However, neither of these conditions is engaged in the present context. It cannot be that the "ends of justice" will be defeated or there will be an "abuse of the process of the Court" if the relief sought in the present application is not allowed, i.e., public broadcast and/or live streaming of the review proceedings is denied. The primary reason put forward by the petitioner was his and his family's constant public humiliation and degradation at the hands of different State officials and functionaries ('the respondents'). Even if it be accepted that the petitioner's reputation (and that of his family) has been tarnished by the acts of the respondents in the manner as contended, no cogent reason was put forward as to how hearings in the present matters, held according to settled practice and time honored principles, would prevent the alleged negative publicity surrounding him from being dispelled. After all, the Court (including of course the present Bench) sits, and was sitting, as an "open court".

Black's Law Dictionary (10th ed., at page 1263) ref.

Petitioner also put forward his apprehension that even if the public was allowed to enter the courtroom, this access was subject to limitations such as space constraints (only intensified with the advent of Covid-19); that as a result, the vast majority of the public would be excluded from observing the review hearings. This apprehension of the petitioner is without force. For it to be accepted would mean that until the advent of present-day means of communication and broadcast, which have only been around in the modern era, there have never been open and public hearings in the courts of law. What has happened for many centuries prior thereto and is accepted as such even today all around the world-that is, that the open court system is quite sufficient to ensure transparency and openness in the judicial system and of court proceedings-would be cast in doubt, if not abandoned altogether. Such a result cannot, be countenanced on any view of the matter. Furthermore, it is to be noted that the public, which is always welcome to sit in the open court proceedings, includes members of the press (and also, which is a distinctly recent phenomenon, vloggers and bloggers). They are free to witness Court proceedings and frequently do so. Certainly, they appear to have attended in droves to witness the proceedings both in these review petitions and the proceedings in relation to the hearing of the petitions under Article 184(3) from which these petitions emanate. If therefore the petitioner's primary aim was to disseminate his narrative to the public at large, this task can be easily performed, and has been duly performed all along by the journalists and vloggers/bloggers who have throughout closely followed all the proceedings, including his arguments, in Court.

The relief sought through the present application was novel. As a result, there have been no judicial pronouncements by the Supreme Court on the merits and demerits of allowing public broadcast and/or live streaming of Court proceedings. Dismissal of present application should not be construed as an absolute refusal of public broadcast and/or live streaming of Court proceedings. Instead, it should be understood as an exercise in judicial restraint and caution.

A decision on public broadcast and/or live streaming cannot be taken hastily. Instead, it is a matter which requires careful consideration of multiple factors and participation of the different stakeholders involved in the judicial system. As a result, this exercise cannot be carried out on the judicial side but can only be deliberated upon on and be approved by the Court in its administrative manifestation.

National Director of Public Prosecutions v. Media 24 Limited and others [2017] ZASCA 97 and Swapnil Tripathi v. Supreme Court of India AIR 2018 SC 4806 ref.

Keeping in view the evolving practice of the Courts around the world and acknowledging the benefits of technology for the justice system, the Supreme Court referred the matter of public broadcast and live streaming of Court proceedings to the Chief Justice so that he may place it before the Full Court for deliberation and appropriate action. Application was dismissed.

Per Maqbool Baqar, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ. (Minority view):

The prayer made in the present application for livestreaming and broadcasting on Pakistan Television Corporation (PTV) and other television channels, the court-proceedings of present case can be decided only by the present Bench in this case, and cannot be agitated through filing a separate constitution petition under Article 184(3) of the Constitution; for such a petition, if filed, may then be entrusted to and heard by any other Bench of the Supreme Court. Each Bench of the Supreme Court, whether small or large, exercises the judicial powers vested in the Court, and a decision rendered by it, irrespective of its numeric strength, is considered the decision of the Court. Thus, one Bench of the Supreme Court cannot deal with an ancillary or incidental matter pertaining to a case being heard by another Bench.

The cases heard by the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution, including review petitions and other matters arising therein, are matters of public importance within the meaning and scope of that expression used in Article 19A of the Constitution, as it is only when the "question of public importance" is involved that the Supreme Court can exercise its jurisdiction under Article 184(3) to make an order for the enforcement of any of the fundamental rights. The public, therefore, has a fundamental right under Article 19A of the Constitution to have access to information as to the court proceedings of the cases heard by the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution, including to know and see how the court-proceedings in these cases are conducted and concluded by the Court.

The obligation of the Supreme Court, under Article 19A of the Constitution, to give access to the public to information of the court proceedings in the cases heard by it under Article 184(3) cannot be said to be fulfilled by allowing permission to come to the court-room and see the court-proceedings, as this facility may be availed of only by a few of the public who can afford travelling to the courthouse and are lucky enough to have a seat in the court-room, there being a very limited space. The facility of entry to the Court and seeing the court proceedings, in this context, appears rather discriminatory, available only to the affluent and thus, offending Article 25 of the Constitution.

A very few of the public, can afford to reach the Court and see the court-proceedings while a large section of the people of the country, who are more than 200 million, cannot avail their right to see the court-proceedings due to time, distance and financial constraints. They, thus, depend on the information reported in print and electronic media. When the reporting is accurate and comprehensive, it fulfills their right to information; but when it is inaccurate or incomplete, it thwarts the right. The gavel-to-gavel live-streaming of the court proceedings would give the public a more direct sense of what occurs in these proceedings than second-hand information given to them by the media through reporting the event in a summarized form.

Live-streaming of the court proceedings, in the present age, can easily be made through the latest technology, and that too, at the lowest and reasonable cost. It would make the public to be virtually present in the courtroom and enable them to see, in real-time, how the court proceedings are conducted and concluded.

To maintain and boost up the public trust in the Court's working, it is essential to make the public aware of how the Court deals with cases under Article 184(3) and to be reassured that it always functions within the terms of the Constitution and law independently, impartiality and fairly. Live-streaming of the court-proceedings would reflect a responsive image of the Court acknowledging that it is accountable to the public for whom it functions, and promote the public confidence in its functioning. There is no legal impediment in live-streaming the court-proceedings of cases heard under Article 184(3) on the official website of the Supreme Court and it is a positive obligation of the Supreme Court, under Article 19A, to do this for enforcement of the right of the public to have access to information of these proceedings.

Access of the public to the court-proceedings in cases under Article 184(3) of the Constitution can expose information as to the matters of public importance that may otherwise not be possible for the public to have; as in most cases under Article 184(3), it is the Government, or any of its departments or instrumentalities, which is alleged to have infringed the fundamental rights of the public and the Court is called upon to enforce them. The information as to the court-proceedings in such cases would be a vital avenue for public information about what the Government does and why the Court interferes. The access of the public to the court proceedings in cases heard under Article 184(3) through live-streaming would, thus, serve the democracy as much as it would make the exercise of judicial power by the Court in such cases transparent.

Argument of respondents that question of live-streaming of the court-proceedings is a policy matter and should be decided by the Court on the administrative side, is not well-founded, especially in the context of court proceedings of cases heard under Article 184(3) of the Constitution which is under consideration, in the present matter. The proceedings in such cases are "matters of public importance" within the meaning of that expression used in Article 19A and the public has a fundamental right to know how these proceedings are conducted; the question of enforcement of this right is a legal matter to be decided judicially and is not a policy matter for decision on the administrative side.

Scott v. Scott 1913 AC 417 ref.

Live-streaming (audio and video) of the court-proceedings in cases heard by the Supreme Court, on a petition or suo motu, under Article 184(3) of the Constitution should be made available for the information of the public through a link on the official website of the Court, in the enforcement of the fundamental right of the public, and for the fulfillment of the obligation of the Court, under Article 19A of the Constitution. However, present Bench of the Court can make an order to live-stream the court proceedings of this case only as per the prayer made therein, and cannot direct the other Benches of the Supreme Court that are, or would be, hearing such cases, to live-stream their court-proceedings. The general practice in this regard can be enforced only by making rules under Article 191 of the Constitution. However, until such rules are made by the Court on the administrative side, it lies in the discretion of each Bench of the Court hearing such a case to order, or not to order, in the exercise of powers of the Court, live-streaming of its court-proceedings and to regulate that live-streaming, if ordered.

In the circumstances of the present case, the Court is inclined to exercise its discretion in favour of ordering livestreaming of its court proceedings; however, it had been apprised that in the current state of technological set-up available in the Supreme Court such an order, if made, could not be executed. Courts do not make in-executable orders, therefore, the Court is abstaining from making an order for live-streaming the court-proceedings of the present case. However, the Registrar of the Supreme Court shall take steps to provide for the requisite technological infrastructure for livestreaming the court-proceedings, so that any Bench of the Supreme Court may, if so decides, order for live-streaming the court proceedings of a case being heard under Article 184(3) of the Constitution, in future. The Registrar shall also place the matter before the Court, on the administrative side, for considering amendments in the Supreme Court Rules 1980, in order to livestream court-proceedings of all cases heard under Article 184(3) and to regulate the practice and procedure in this regard.

Facility of live audio-hearing of the court-proceedings of all Benches of the Supreme Court is currently available to all the Judges of Court in their Chambers as well to their staff, and audio recording of the court-proceedings is also sometimes made. Therefore, keeping in view the current state of technological infrastructure available in the Supreme Court and the fact that the petitioner's case (review petitions) is already fixed for hearing, the audio recording of the proceedings of the court-hearings of the petitioner's case shall be made available through a link on the official website of the Supreme Court, for public information. The Registrar of the Supreme Court shall ensure that the unedited audio recording of the proceedings of the court-hearings of the present case is uploaded on the official website of the Court on the same day soon after the hearing and before the close of the working hours.

So far as the prayer of the petitioner to the extent of directing the State-owned Pakistan Television (PTV) Corporation to broadcast live the proceedings of his case is concerned, such a direction would breach the freedom of expression and press guaranteed by Article 19 of the Constitution as both kinds of direction, viz, to broadcast or not to broadcast something, are tantamount to interference into the freedom guaranteed by the Constitution, unless such act or omission of PTV breaches any legal right of someone or any of its legal obligations and it is also made a party to the proceedings initiated thereon. Likewise, the prayer of the petitioner that the Pakistan Electronic Media Regulatory Authority (PEMRA) may be directed to issue written instructions to all private television channels that they cannot be restrained from broadcasting the proceedings, appears to be not entertainable, as none of the private television channels has agitated its right (if any) to broadcast the court-proceedings of cases heard by the Supreme Court under Article 184(3), and such determination of the question as to their such right (if any) is to be left to be made in a case where they would agitate the same and claim enforcement thereof.

Per Yahya Afridi, J. (partially agreeing with the majority view with respect to dismissal of present application):

To allow the relief the petitioner seeks in the present application would, "negate the very spirit of the oath taken" by him as a Judge of the superior judiciary, that mandates him to avoid "publicity", which in itself warrants dismissal of the present application.

The right of the public to have access to court-hearings through live-streaming, audio-video recording, written transcript or any other medium, in the proceedings of public importance including those under Articles 184(3) and 186 of the Constitution, is their fundamental right under Article 19A of the Constitution. This right, however, cannot be left to reign absolute, lest it be abused and, thus, requires to be regulated, as Article 19A of the Constitution mandates the same to be "subject to regulation and reasonable restrictions imposed by law". Therefore, for the safe and proper implementation of this fundamental right, the appropriate means would be to frame rules under Article 191 of the Constitution.

Once the Supreme Court has adjudged and declared on the judicial side that the public has a right to have access to information of the court-proceedings in cases of public importance, the process of effectuating the said right should best be left for the Court to be dealt with on the administrative side. The full court comprising all Judges of the Supreme Court, with the deliberation and input of all of them, would be better poised than any Bench of the Supreme Court to balance the interests of all stakeholders, in giving the public access to court proceedings, by making well considered rules to regulate its practice and procedure on this subject, and obviating the possibility of causing affront to the proceedings of the Supreme Court, which should in all eventualities be vehemently avoided to preserve the majesty of the Court. Accordingly, His Lordship directed the Registrar of the Supreme Court to place the matter before the Full Court, on the administrative side, for appropriate steps as it deems fit, under Article 191 of the Constitution.

Per Munib Akhtar, J. (Majority view):

(e) Administration of justice---

----Use of technology for enhancing transparency and openness of judicial proceedings---Technological developments should be monitored and appreciated, to ensure that access to justice for litigants is constantly improving---Judicial system should, administratively speaking, be alive and alert, and responsive, to technological advances and changes that can enhance the transparency and openness of judicial proceedings---Any approach that smacks of Luddite thinking should be avoided; but at the same time it should be kept in mind-and this is the corollary- that one need not be dazzled and mesmerized by advances in technology; it must always be remembered that technology is merely a tool and an aid---Technology is the servant and not the master---Simply because the Court (technologically) can, does not mean that it, therefore, necessarily must---Sober and robust approach is much to be preferred.

Per Maqbool Baqar, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ. (Minority view):

(f) Constitution of Pakistan---

----Arts. 184(3) & 188---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution - Scope---Said jurisdiction cannot be exercised as a parallel review jurisdiction, and a judgment or an order of the Supreme Court can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution---Such course is absolutely impermissible.

Shabbar Raza v. Federation of Pakistan 2018 SCMR 514 ref.

(g) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---When a Court sits to review its judgment it does not sit in appeal over its own judgment but proceeds to have a fresh look at it within the limits of the review jurisdiction and for this purpose, it invokes the very same jurisdiction which it exercised earlier, whether it be appellate or original, and can modify its judgment in the exercise of that very jurisdiction---Review jurisdiction only provides a mode to re-invoke the jurisdiction earlier exercised, and thus takes colour from the nature of the jurisdiction exercised by the Court in passing the judgment under review; it cannot be said to be some independent jurisdiction other than the jurisdiction exercised by the Court when the judgment under review was passed.

Reliance Industries v. Pravinbhai Patel AIR 1997 SC 3892 ref.

(h) Constitution of Pakistan---

----Art. 19A---Right to information---Scope---Matter of public importance---Provisions of Article 19A of the Constitution do not contain an abstract guiding principle, rather confer a justiciable right---Right to have access to information in all matters of public importance conferred by Article 19A is a corrective apparatus, which allows public scrutiny to the working of the public authorities and institutions, and makes them answerable to the public, thus, it ensures transparency and accountability in the functioning of all public authorities and institutions---Right conferred by Article 19A is effective in operation and extensive in scope: it is though subject to, but is not dependent for its effectiveness upon enactment of, a law that may provide for the regulation of, and reasonable restrictions on, such right and it comprehends all matters of public importance undertaken by all State institutions.

(i) Interpretation of statutes---

----Same expression used in different parts of the statute---ordinarily the same meaning is attached to an expression used in different parts of a statute unless the context in which the expression appears suggests otherwise.

Muhammad Rashid v. State PLD 1960 SC 168 and Muhammad Nazeef v. Gulbat Khan 2012 SCMR 235 ref.

(j) Constitution of Pakistan---

----Art. 19A---Expression "matters of public importance" used in Article 19A of the Constitution---Meaning---Said expression means the matters that pertain to and affect the public at large, a whole community, and not an individual or a small group of individuals; in other words, it includes the matters in which the general interest of a whole community, as opposed to the particular interest of individuals, is directly and vitally concerned---Adjective "public" necessarily implies a matter relating to the people at large, the nation, the State or a community as a whole; if a matter in which only a particular individual or group of individuals is interested and the people at large or an entire community have no interest, that cannot be treated as a matter of public importance.

PLD 1975 SC 66; PLD 1988 SC 416; Shahida Zahir v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. PIA Corporation 1998 SCMR 793; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Watan Party v. Chief Executive/President of Pakistan PLD 2003 SC 74; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Shahbaz Sharif v. Federation of Pakistan PLD

2004 SC 583; APNS v. Federation of Pakistan PLD 2004 SC 600; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1; PML(N) v. Federation of Pakistan PLD 2007 SC 642; Watan Party v. Federation of Pakistan PLD 2012 SC 292; Tahir-Ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 and Abdul Wahab v. HBL 2013 SCMR 1383 ref.

(k) Constitution of Pakistan---

----Arts. 19A, 184(3) & 188---Cases heard by the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution including review petitions and other matters arising therein---Such cases are matters of public importance.

Province of Punjab v. Qaisar Iqbal PLD 2018 Lah. 198 ref.

(l) Constitution of Pakistan---

----Part II, Chap. I---Fundamental rights---Positive and negative rights---Distinction stated.

The Constitution has conferred fundamental rights in positive as well as in negative language. The negative language of a fundamental right imposes a limitation on the power of the State and declares the corresponding guarantee as to the entitlement of the people to that right. The positive language of a fundamental right not only operates as a limitation on the power of the State but it also requires affirmative State action to protect and fulfill the right conferred. In view of this difference of language, the fundamental rights are sometimes classified into negative and positive rights: a negative right generally obliges inaction, a positive right requires action. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to the provision of some service. A negative right places a duty on the State not to interfere in certain areas where the citizens have the right to act in a certain way or the other and have their freedom of choice within the existing right; the State cannot encroach upon such freedom. A positive right, on the other hand, places an obligation on the State to take certain actions and measures to give effect to that right.

Province of Sindh v. M.Q.M. PLD 2014 SC 531 ref.

(m) Constitution of Pakistan---

----Art. 19A---Right to information---Scope---Article 19A of the Constitution creates a positive obligation on all State organs, authorities and institutions, including the Judiciary, to take the necessary measures to ensure the realization of the fundamental right of citizens to have access to information in matters of public importance.

(n) Constitution of Pakistan---

----Art. 19A---Right to information---Progressive and dynamic interpretation---Approach of the Supreme Court to the interpretation of the fundamental rights guaranteed by the Constitution has been progressive, liberal and dynamic---Therefore, provisions of Article 19A of the Constitution have to be interpreted with a progressive, liberal and dynamic approach with which the Supreme Court has been interpreting the other fundamental rights and the Court has to explore the modern means of enforcement of the right guaranteed by Article 19A, which have been made available by the latest technology of the day.

Jabendra Kishore v. East Pakistan PLD 1957 SC 9; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(o) Constitution of Pakistan---

----Part II, Chapt. I & Preamble---Doctrines, principles, rules and precedents from foreign jurisdictions---Persuasive value---Scope---Any transplant of a rule from a foreign jurisdiction to ours should be made after considering closely and thoroughly the difference of the constitutional scheme---Similarities and differences between the constitutional dispensation in that foreign jurisdiction and our Constitution are to be deeply evaluated---Any doctrine, principle, rule and precedent in the foreign jurisdiction must be viewed through the prism of fundamental rights guaranteed by our Constitution and other constitutional values.

(p) Constitution of Pakistan---

----Arts. 184, 185 & 188---Short order signed by a Judge of the Supreme Court before his retirement---Detailed reasons for the order released after date of retirement of the Judge---Principles relating to signing or recording the detailed reasons by a retired Judge of the Supreme Court stated.

Short orders are made and announced by the Supreme Court, after due application of the judicious mind to, and after due consideration of, the pleadings of the parties and their arguments in the light of the material available on record of cases for definite "reasons" that are present in the mind of the judges at the time of making those orders. Short orders are made due to paucity of time to record detailed "reasons" and due to the urgency of the matters involved. That is why the detailed reasons recorded later in support of the short orders always bear the date of the short order, not the date of recording those reasons. The expression used in the short orders, "for the reasons to be recorded later", clearly means that it is the act of recording reasons that is postponed to a later time, and not the act of creating or searching for the reasons. The latter meaning, if given, to the expression "reasons to be recorded later" would completely shatter the legal sanctity and validity of the short orders, and unsettle the well-settled legal position according to which the short orders made by the Supreme Court are fully operative orders, executable forthwith, and a party feeling aggrieved thereby is to avail his legal remedy of review within the prescribed period of limitation computing from the date of the short order, and not from the date of release of the detailed reasons recorded in support thereof.

A judge of the Supreme Court who has vacated his office on retirement joins the detailed reasons recorded by any of his colleagues in support of the short order made by them jointly or records his own reasons, in his status, capacity and authority he had on the date when that short order was made.

It is the status of a judge of the Supreme Court on the date of making the short order that is relevant at the time of recording the detailed reasons in support thereof and determines his authority to record such reasons. From the settled practice of the Supreme Court, according to which the detailed reasons recorded in support of a short order always bear the date of the short order, not the date of recording them, and the status and capacity of the judges as on the date of the short order, it is not hard to discern that it is the status, capacity and authority of a judge of the Supreme Court as on the date of the short order under which he records, after retirement, his reasons for making the short order or joins in the reasons recorded by some other judge if he finds that they are the same for which he made the short order.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and CJP Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(q) Constitution of Pakistan---

----Arts. 184, 185 & 188---Precedential effect and value of the opinion of some Members of a Bench of the Supreme Court---Whether the dissenting Members of a Bench could adjudicate upon the precedential effect and value of the opinion of other (majority) Members of the same Bench, in their judgment delivered in the same case---Held, that such practice had never been seen in our jurisdiction as well as in any of the foreign jurisdictions---Members of the same Bench differ on issues and strongly express their respective opinions, as well as make comments on the opinion of each other highlighting the reasons for which they think other Member(s) has erred in his opinion, but do not adjudicate upon the precedential effect and value of each other's opinion---Question of extracting ratio decidendi and determining precedential effect and value of the opinion of some Members of a Bench of the Supreme Court expressed in a judgment delivered in one case, can be examined only in other cases where such a judgment is cited as precedent, and that can be done not only by a Bench of the Supreme Court but even by a court lowest in the judicial hierarchy; nevertheless, it is in no way a domain of the Members of the same Bench to make this exercise in their respective judgments rendered in the same case.

For the Petitioner(s)

Justice Qazi Faez Isa (in-person) (in C.R.P. No. 296 of 2020).

Rasheed A. Rizvi, Senior Advocate Supreme Court (through Vide Link from Karachi) (in C.R.Ps. Nos. 297 and 309 of 2020).

Mrs. Sarina Faez Isa (in-person) (in C.R.P. No. 298 of 2020).

Hamid Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.R.Ps. Nos. 299, 300, 301 and 308 of 2020).

Nemo for Petitioner (in C.M.A. No. 4533 of 2020).

Nemo for Petitioner (in C.R.P. No.509 of 2020).

For Federation of Pakistan:

Ch. Aamir Rehman, Addl. AGP.

For President, PM and AGP.

Sohail Mahmood, Addl. AGP.

P L D 2023 Supreme Court 720

Present: Umar Ata Bandial, C.J., Syed Mansoor Ali Shah, Munib Akhtar, Jamal Khan Mandokhail and Muhammad Ali Mazhar, JJ

ISLAMABAD HIGH COURT, BAR ASSOCIATION, ISLAMABAD through President and others---Petitioners

Versus

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

Suo Motu Case No. 1, Constitutional Petitions Nos. 1 and 2 of 2023, decided on 27th February, 2023.

(Suo Motu Regarding Holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa)

Per Munib Akhtar, J; Umar Ata Bandial, CJ., and Muhammad Ali Mazhar, J. agreeing; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ. dissenting [Majority view]

(a) Constitution of Pakistan---

----Arts. 105(3), 58(2), 107, 112(1), 112(2), 224(1), 224(2) & 184(3)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings---General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Constitutional responsibility and authority for appointing the date for the holding of a general election to a Provincial Assembly upon its dissolution in the various situations envisaged by and under the Constitution, and how and when such constitutional responsibility is to be discharged stated.

Given the federal nature of the Constitution each Assembly is for this purpose a separate "unit" which must, even though the substantive and procedural constitutional and statutory requirements are essentially the same, be treated in its own right and in and of itself. Thus, e.g., if in relation of a given election cycle elections to the National Assembly and all the Provincial Assemblies are held on the same day, it must always be kept in mind that, constitutionally speaking, there are in law and fact five separate general elections that are being so held.

The Assemblies in question are those of Punjab and Khyber Pakhtunkhwa ("KPK"), which stood dissolved on 14.01.2023 and 18.01.2023 respectively. In both cases, the then Chief Ministers tendered their advice to their respective Governors under Article 112(1) of the Constitution to dissolve the Assembly. In the case of Punjab Province the Governor choose not to act on the said advice so that the Assembly stood dissolved on the expiry of 48 hours on 14.01.2023. In the case of Khyber Pakhtunkhwa Province, the Governor did act on the advice and made an order dissolving the Assembly, on 18.01.2023. When the Governor dissolves the Assembly in his discretion, in the particular circumstances envisaged by Article 112(2), then Article 105(3) applies and the date for the general election is to be given by him. The same is the position as regards the dissolution of the National Assembly by the President in his discretion under Article 58(2).

In those situations of dissolution where the Constitution is silent as to which is the authority for appointing the date for the general election, it is Parliament's identification that must prevail and be applied. Therefore, in the present case in the case of the Punjab Assembly the power to appoint the date for the general election lay with the President in terms of section 57(1) of the Elections Act, 2017 ('the Act') and not the Governor. The President, in appointing the date for the general election under section 57(1) and thereby discharging a constitutional obligation and responsibility is empowered to act on his own and is not bound by advice in the constitutional sense. It follows that the Election Commission ('the Commission') fell into error when it sought, and continued to seek, the date for the general election from the Governor of Punjab, and the latter was correct in refusing to give such date. Furthermore, the refusal of the Commission to consult with the President was also legally incorrect. In particular, its refusal to do so by means of its letter when called upon by the President with express reference to section 5(1) was an error that is only excusable on account of the lack of legal clarity. It also follows that the order made by the President appointing the date for the Punjab Assembly was correct and well within his power and constitutional responsibility.

In respect of KPK Assembly, when the Governor did dissolve the Assembly on the Chief Minister's advice he was under a constitutional obligation to give the date for the general election. Here, the Election Commission ('the Commission') was correct in pursuing the Governor for the date, and continuing to do so despite his refusal to act. The failure of the Governor was therefore a breach of constitutional responsibility. Furthermore, the President was in error when he made the order dated 20.02.2023 giving the date for the general election to the KPK Assembly.

(b) Constitution of Pakistan---

----Fourth Sched.---Legislative Lists---Legislative entries, interpretation of---Scope----Legislative entries are fields of legislative power which are to be interpreted and applied in the widest possible terms.

(c) Constitution of Pakistan---

----Arts. 105(3), 107, 112(1), 112(2), 224(1), 224(2) & 184(3)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Maintainability---Petitions/appeals on the same subject matter pending before the High Courts---Held, that the matter of holding a general election to an Assembly is constitutionally time bound and moves within a narrow locus in this regard---Holding of the general election is subject to strict temporal constraints---Record of the proceedings of the High Courts showed that while the Single Judge in the Lahore High Court had acted with admirable promptitude the same could not, unfortunately and with all due respect, be said of the Division Bench nor of the Peshawar High Court---Dates of hearing were being given repeatedly and matters were proceeding at what, in the present context, can only be described as a rather relaxed pace---Several weeks had already elapsed---Furthermore, it was almost certain that whatever be the decisions in the High Courts they would be appealed to the Supreme Court---So, the matter would essentially be back where it already was, the only difference being that out of the constitutional time limit several more days (at the very least) if not weeks would be consumed---To insist on present matters being, in effect, returned to the High Courts would be tantamount in the present circumstances to a denial of justice of a matter of high constitutional importance, involving the fundamental rights of the electorate at large and relatable to one of the salient features of the Constitution---Furthermore, the possibility of a difference of opinion between the two High Courts could not be ruled out, with further attendant confusion and delay---All of these factors satisfied the Supreme Court that present matters were fit matters to be proceeded before the Supreme Court directly under Article 184(3) notwithstanding the proceedings pending in the High Court---For the Supreme Court to hold its hand and allow for the routine litigation process to play out would, in the facts and circumstances of present proceedings, detract from rather than serve the public interest---Present constitutional petitions and suo motu proceedings were maintainable.

Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 distinguished.

Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416 ref.

(d) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---Proceedings under Article 184(3) of the Constitution are also to be regarded as inquisitorial where, if so warranted, the Court may itself examine disputed factual questions and issues as well.

(e) Supreme Court Rules, 1980---

----O. XI & O. XXV---Constitution of Pakistan, Art. 184(3)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Majority and minority opinion---Question as to whether present matters were disposed of by a majority of 3:2 or were dismissed by a majority of 4:3---Held, that the ratio 4:3 claimed in the minority opinion could only have come about by taking two Judges from the initial, validly constituted nine-member Bench and all the other Judges of the subsequent, validly constituted five-member Bench, and melding this number into a seven-member "Bench" that was never constituted, and which never existed in law or in fact---Since there was never ever any such Bench, there could not, ipso facto, be any decision in the ratio "4:3"---By focusing on the number of Judges simpliciter and not the constitution of Benches, the minority opinion has sought to breach the barrier posed by the unanimous judicial order of 27.02.2023, by which the initial nine members of the Bench unanimously referred the matter to the Chief Justice "for reconstitution of the Bench"---Said order of 27.02.2023, was a judicial order, made by the nine-member Bench---Reconstitution of the Bench by the Chief Justice, i.e., the constitution of the present five-member Bench, was in response to this judicial order---Therefore, present matters were disposed of with a majority of 3:2, and the claim that they stood dismissed in the self-computed ratio "4:3" is erroneous.

Causes, appeals and matters in the Supreme Court are heard by Benches, and not Judges. This distinction is real and substantial. A Bench is a body of Judges validly and properly constituted as such; it is not simply an aggregate of a given number of Judges. Benches are constituted by the Chief Justice alone, who is the master of the roster. Benches cannot self-constitute, and once properly constituted cannot self-propagate or self-perpetuate. It is the Bench, as properly constituted, that defines and delineates the Court for the purpose of any matter, appeal or cause and judgment therein, and not simply any agglomeration of Judges.

Suo Motu Case No. 4 of 2021 PLD 2022 SC 306 ref.

If a cause, appeal or matter is not decided unanimously by a Bench but by way of a division among the members thereof, the ratio (and hence the outcome of the matter) is determined only by the Bench as constituted. Putting this more concretely, if a matter is said to be decided by the Bench "split" in the ratio A:B, A plus B must be (and can necessarily only be) the total of the members of the Bench as constituted, and not otherwise. Thus, if the minority opinion of the present matters was correct that these matters were decided 4:3, it must be shown that a seven-member Bench was properly constituted to hear the same, and that such Bench actually did sit, hear and decide them. The fact of the matter is of course that the present matters were decided 3:2 because the Bench constituted by the Chief Justice comprised of five members, who sat as said Bench and heard the matters over two days and then decided the same. At no stage over those two days was any claim made by any person, including any of the counsel who appeared before the Court nor, indeed, by any member of the Bench that the Judges sitting and hearing the matters were not the properly constituted Bench, in that it had two additional members who were absent or missing.

Initially a nine member Bench was constituted by the Chief Justice as master of the roster to hear the present matters. The matters were placed before that Bench on 23.02.2023 and 24.02.2023. It is apparent that the minority opinion does not dispute this, and also accepts that two of the members of that Bench dismissed these matters on the very first day. Thereafter, the nine members of the Bench unanimously made an order, referring the matter to the Chief Justice "for reconstitution of the Bench". This order, of 27.02.2023, was not and could not be an administrative order. It was a judicial order, made by the nine-member Bench. The reconstitution of the Bench by the Chief Justice, i.e., the constitution of the present five-member Bench, was in response to this judicial order. Unfortunately, it appears that this judicial order has not been noticed in the minority opinion. The judicial order constituted a decisive break- indeed, a barrier-between the two validly constituted Benches. On the prior side of it lay the initial, validly constituted nine-member Bench of which alone the two Judges (who dismissed present matters on the very first day) were members. On the latter side lay the subsequent, validly constituted five-member Bench of which, they were not.

The two Judges (who dismissed present matters on the very first day) had themselves accepted that their continued "retention" on the "present bench" may be of no avail, and had left the matter to the Chief Justice. The Bench to which the said two Judges referred was of course the nine-member Bench. The said two Judges themselves believed that they had, on account of their orders of dismissal, nothing more to contribute to the Bench of which they were actually members. How then could anything said or done by them in such capacity be "counted" or "reckoned" when determining the proceedings before the reconstituted Bench of which they were not members?

The ratio 4:3 claimed in the minority opinion could only have come about by taking two Judges from the initial, validly constituted nine-member Bench and all the other Judges of the subsequent, validly constituted five-member Bench, and melding this number into a seven-member "Bench" that was never constituted, and which never existed in law or in fact. Since there was never ever any such Bench, there could not, ipso facto, be any decision in the ratio "4:3". By focusing on the number of Judges simpliciter and not the constitution of Benches, the minority opinion has sought to breach the barrier posed by the unanimous judicial order of 27.02.2023. That is not possible. Therefore, the claim that present matters stood dismissed in the self-computed ratio "4:3" is erroneous.

Per Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ. dissenting [Minority view]

(f) Jurisdiction---

----Jurisdiction of a court is determined by the Constitution and laws, not by caprice or convenience of the judges---It is the nature of the controversy that determines the jurisdiction of a court and not the magnitude of the interests involved.

(g) Constitution of Pakistan---

----Art. 184(3)---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution is not only "discretionary" but also "special" and "extraordinary", which is to be exercised "with circumspection" only in the "exceptional cases" of public importance relating to the enforcement of fundamental rights that are considered "fit" for being dealt with under this jurisdiction by the Court---Said jurisdiction of the Court is special and extraordinary, for in the exercise of it the Court acts as the first and the final arbiter, which leaves a party aggrieved of the determination made by the Court with no remedy of appeal to any higher court---Said jurisdiction must not, therefore, be frequently and incautiously exercised, lest it damages the public image of the Court as an impartial judicial institution.

Akhtar Hassan v. Federation of Pakistan 2012 SCMR 455; Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413; Ashraf Tiwana v. Federation of Pakistan 2013 SCMR 1159; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; H.R.C No.5818 of 2006 2008 SCMR 531; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Yasser Kureshi, Seeking Supremacy: The Pursuit of Judicial Power in Pakistan (2022); Asher Asif Qazi, A Government of Judges: A Story of The Pakistani Supreme Court's Strategic Expansion (2018) and Maryam S. Khan, Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward A Dynamic Theory of Judicialization (2015) ref.

(h) Constitution of Pakistan---

----Arts. 184(3) & 199---Scope of jurisdiction of the Supreme Court under Article 184(3) during pendency of the same matter before the High Courts stated.

As the jurisdiction of this Court under Article 184(3) is concurrent with that of the High Courts under Article 199, if the jurisdiction of any of the High Courts has already been invoked under Article 199 and the matter is pending adjudication, then the two well-established principles are also to be considered before exercising its jurisdiction under Article 184(3) by this Court: First, where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts then he is bound by his choice of forum and must pursue his remedy in that court; and second, if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed and is pending adjudication in the lower court, otherwise it would deprive one of the parties, of his right of appeal. Even where no similar petition on the same facts has already been filed in any of the High Courts, this Court can decline to exercise its extraordinary jurisdiction if it finds that sufficient justification has not been shown for bypassing, and not invoking, the concurrent jurisdiction of the High Court concerned.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Farough Siddiqi v. Province of Sindh 1994 SCMR 2111 and Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263 ref.

A third principle, i.e., the principle of forum non conveniens (inconvenient forum), can also be usefully considered by the Supreme Court while deciding upon its discretion to exercise or not to exercise its jurisdiction under Article 184(3) in a particular matter. Given this principle, the Supreme Court if, after considering the convenience of the parties and the nature of the matter involved, finds that the case may be heard and decided more suitably by a High Court under Article 199 of the Constitution, it may decline to exercise its jurisdiction under Article 184(3) of the Constitution.

(i) Constitution of Pakistan---

----Arts. 105(3)(a), 107, 112(1), 112(2), 175(2), 184(3), 199(5), 224(1) & 224(2)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Maintainability---Petitions/appeals on the same subject matter pending before the High Courts---Present suo motu proceedings and the connected constitution petitions do not constitute a fit case to exercise the extraordinary original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Detailed reasons for finding the Constitutional petitions and suo motu proceedings as not maintainable recorded.

The principle of provincial autonomy requires that when a matter which relates only to a Province, and not to the Federation or to more than one Provinces, the High Court of that Province should ordinarily be allowed to exercise its constitutional jurisdiction to decide upon that matter, and the Supreme Court should not normally interfere with and exercise its jurisdiction in such a matter under Article 184(3) of the Constitution, which jurisdiction is primarily federal in character. The federal structure of our Constitution necessitates that the autonomy and independence of the apex provincial constitutional court of a Province, should not be readily interfered with by the High Court but rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.

The writ petitions filed in the Lahore High Court cannot be said to have been filed to "stultify" the exercise of original jurisdiction by the Supreme Court under Article 184(3) nor is there any inordinate delay in the proceedings being conducted in that High Court, which could have justified the exercise of extraordinary jurisdiction by the Supreme Court under Article 184(3). The delay, if any, has in fact been caused by the present proceedings and the Division Bench of the Lahore High Court would have decided the ICAs pending before it and the Peshawar High Court would have decided the writ petition pending before it if the present proceedings had not been taken up by the Supreme Court. Further, the principle of choice of forum, is also applicable to the present case as the writ petitions filed in the Lahore High Court and the constitution petitions, filed in the Supreme Court by the Speaker of the Provincial Assembly of Punjab and others, involve the element of "common interest" of the petitioners. Present suo motu proceedings and the connected constitution petitions do not constitute a fit case to exercise the extraordinary original jurisdiction of the Supreme Court under Article 184(3) of the Constitution.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

The question of law involved in the present matter, is: who has the constitutional power and duty to appoint a date for the holding of a general election to a Provincial Assembly that stands dissolved under the second part of clause (1) of Article 112 of the Constitution, at the expiration of forty-eight hours after the Chief Minister has advised the Governor to dissolve the Assembly but the Governor has not made any express order thereon? And, this question has already been decided by a Single Bench of the Lahore High Court in the exercise of its constitutional jurisdiction under Article 199 of the Constitution by its judgment dated 10.02.2023, which judgment having not been set aside or suspended by any higher forum is in the field and is thus fully operative and binding on the parties to the writ petitions wherein the same was passed. In its jurisdiction under Article 184(3) of the Constitution, the Supreme Court is barred from interfering with any judgment, decree or order of a High Court. Neither a High Court nor the Supreme Court can exercise its respective jurisdiction under Articles 199 and 184(3), against a High Court or the Supreme Court or against any act or proceeding of a High Court or the Supreme Court.

Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103; Naresh Mirajkar v. State of Maharashtra AIR 1967 SC 1; Shabbar Raza v. Federation of Pakistan 2018 SCMR 514 and Daryao v. State of U.P. AIR 1961 SC 1457 ref.

Hence, the present suo motu proceedings initiated, and the connected constitution petitions filed, under Article 184(3) of the Constitution are not maintainable in view of the constitutional bar of Article 199(5) read with Article 175(2) of the Constitution, in so far as they relate to the matter already decided by the Single Bench of the Lahore High Court in exercise of its jurisdiction under Article 199 of the Constitution.

The judgment of the Single Bench of the Lahore High Court, if it is not set aside in the ICAs pending before the Division Bench of that High Court or in an appeal filed by any of the parties to the case or any other aggrieved person before the Supreme Court under Article 185 of the Constitution, would remain binding on the Election Commission ('the Commission') and the Governor of Punjab by virtue of the doctrine of res judicata, notwithstanding any decision of the Supreme Court contrary to that of the Single Bench of the Lahore High Court. And such a situation, instead of resolving the question of law, would create more constitutional and legal anomalies. Therefore, on this ground also, present case was not a fit case to exercise the jurisdiction of the Supreme Court under Article 184(3) of the Constitution.

Daryao v. State of U.P. AIR 1961 SC 1457 ref.

Where the political parties and the people subscribing to their views are sharply divided, and their difference of opinion has created a charged political atmosphere in the country, the involvement and interference of the Supreme Court in its discretionary and extraordinary jurisdiction under Article 184(3) of the Constitution into a "political thicket", would be inappropriate and would inevitably invite untoward criticism of a large section of the people. There will always be crucial events in the life of a nation, where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse. A democratic political process, however that may be, is best suited to resolve such matters.

Presidential Reference No.1 of 2020 PLD 2021 SC 825 ref.

(j) Constitution of Pakistan---

----Arts. 184(3), 185 & 199---Original jurisdiction of the Supreme Court---Scope---Interference in judgments of the High Court---Supreme Court can examine the legality of any judgment, decree or order passed by a High Court and can set it aside, if the same is found to have been passed otherwise than in accordance with law, only in the exercise of its appellate jurisdiction conferred on it under Article 185 of the Constitution or by or under any law and not in the exercise of its original jurisdiction under Article 184(3) of the Constitution---Supreme Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution does not have the power to make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a High Court, directly or indirectly.

Naresh Mirajkar v. State of Maharashtra AIR 1967 SC 1 and Daryao v. State of U.P. AIR 1961 SC 1457 ref.

(k) Supreme Court Rules, 1980---

----O.XI & O.XXV---Constitution of Pakistan, Art. 184(3)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Majority and minority opinion---Question as to whether present matters were disposed of by a majority of 3:2 or were dismissed by a majority of 4:3---Held, that dismissal of the present suo motu proceedings and the connected constitutional petitions is the Order of the Court by a majority of 4 to 3 of the seven-member Bench, binding upon all the concerned.

A Judge forming part of a Bench once constituted and seized of the case assigned to it cannot be excluded from that Bench unless he recuses himself from hearing that case or becomes unavailable to sit on the Bench for some unforeseen reason. After having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a Judge in the later proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the Bench. In the present case, the two Judges (part of the initial nine-member Bench) having decided the matter, left the option of their sitting or not sitting on the Bench with the Chief Justice, for further hearing of the case. The exercise of this option by the Chief Justice has no effect on the judicial decision of those two Judges passed in the case. The reconstitution of the Bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the Bench and could not nullify or brush aside the judicial decisions given by the two Judges in this case, which have to be counted when the matter is finally concluded. Failure to count the decision of the said two Judges would amount to excluding them from the Bench without their consent, which is not permissible under the law and not within the powers of the Chief Justice. Therefore, the dismissal of the present suo motu proceedings and the connected constitutional petitions is the Order of the Court by a majority of 4 to 3 of the seven-member Bench, binding upon all the concerned.

H.R.C. No. 14959-K of 2018 PLD 2019 SC 183 ref.

(l) Supreme Court Rules, 1980---

----O.XI & O.XXV---Constitution of Pakistan, Arts. 184(3) & 191---Supreme Court---Suo motu cases---Constitution of Benches---Chief Justice of the Supreme Court, powers of---Regulating the exercise of jurisdiction of the Supreme Court under Article 184(3) of the Constitution and the constitution of Benches---Importance of making rules for regulating such jurisdiction and for the constitution of Benches stated.

The Chief Justice of the Supreme Court is conferred with wide discretion in the matter of constituting Benches and assigning cases to them under the present Supreme Court Rules 1980. It is this unbridled power enjoyed by the Chief Justice in taking up any matter as a suo motu case and in constituting Special Benches after the institution of the cases and assigning cases to them that has brought severe criticism and lowered the honour and prestige of the Supreme Court.

In order to strengthen the Supreme Court and to ensure public trust and public confidence in the Court, it is high time that the power of "one-man show" enjoyed by the office of the Chief Justice of Pakistan is revisited. The Supreme Court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system approved by all Judges of the Court under Article 191 of the Constitution, in regulating the exercise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of Benches to hear such cases; the constitution of Regular Benches to hear all the other cases instituted in the Supreme Court; and the constitution of Special Benches.

The power of doing a "one-man show" is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms. One-man show leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power. In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exercise of power and promotes transparency and accountability.

The solution to the problem of unstructured discretion of one person - the Chief Justice - lies in making rules on the matter by the Supreme Court in the exercise of its rule-making power conferred on it by Article 191 of the Constitution, which can serve the purpose. Such rules may provide that the extraordinary jurisdiction of the Court under Article 184(3) of the Constitution, either on the petition of a person or suo motu by the Court, shall be invoked only if a majority of all the Judges or the first five or seven Judges of the Court, including the Chief Justice, as may be prescribed in the rules, agrees to it while considering the matter on the administrative side. The criterion for selecting cases for being dealt with under this jurisdiction should also be clearly laid down in the rules, to make the practice of the Court in this regard, uniform and transparent.

Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263 ref.

So far as the matter of constituting a Bench for hearing a case under Article 184(3) of the Constitution is concerned, there must also be uniformity and transparency, which can be best assured by constituting a regular five or seven-member Bench once at the commencement of every judicial year, or twice a year for each term of six months, by including in that Bench the senior most Judges or the senior most Judges of each Province on the strength of the Supreme Court with the Chief Justice or the Senior Puisne Judge as head of that Bench. Constituting special Benches on case to case basis, after the institution of the cases, is complete negation of fairness, transparency and impartiality required of a judicial institution to maintain its legitimacy and credibility of its judgments.

Per Yahya Afridi, J.\

(m) Constitution of Pakistan---

----Arts. 105(3)(a), 112(1), 112(2), 184(3), 199 & 224(2)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Maintainability---Petitions/appeals on the same subject matter pending before the High Courts---Present suo motu proceedings and the connected constitutional petitions should not be proceeded with at this stage, being premature and not maintainable---Detailed reasons for finding the Constitutional petitions and suo motu proceedings as not maintainable and consequently dismissing the same recorded.

Where the High Court under Article 199 of the Constitution and the Supreme Court under Article 184(3) of the Constitution had concurrent jurisdiction and the matter was pending adjudication before both courts, the later had to show restraint in exercising its jurisdiction, premised on the principle of ensuring that a party is not deprived of his vested right of appeal under the law.

Ch. Manzoor Elahi v. The Federation of Pakistan PLD 1975 SC 66 and Benazir Bhutto v. The Federation of Pakistan and another PLD 1988 SC 461 ref.

Benazir Bhutto v. The Federation of Pakistan and another PLD 1988 SC 461 distinguished.

The principle of restraint in exercising original jurisdiction to safeguard the right of appeal of the parties should be respected and maintained in the present matters, and the three proceedings pending before the Supreme Court should not be proceeded with at this stage, being premature and not maintainable.

Another crucial aspect of the present proceedings is that the matter in dispute, though in essence is constitutional, has developed into being peculiarly charged, with unflinching contested political stances being taken by the parties, which warrant the Supreme Court to show judicial restraint. This would also bolster the principle of propriety and comity, so as to not offend the hierarchal judicial domain of the High Court envisaged under the Constitution, and disturb the judicial propriety that the High Court deserves - lest it may reflect adversely on the Supreme Court's judicial pre-emptive eagerness to decide.

Present three proceedings pending before the Supreme Court, being premature are not maintainable to be adjudicated at this stage by the Supreme Court in its original jurisdiction envisaged under Article 184(3) of the Constitution, and thus are dismissed.

His Lordship observed that his continuing to sit on the bench and hear the present matters would not be appropriate, as any findings passed or remarks made during the hearing of the present matters may prejudice the contested claims of the parties in the petitions/appeal pending before the respective High Courts; that it is left to Chief Justice to decide my retention in the present bench hearing the said petitions.

Per Athar Minallah, J.\

(n) Constitution of Pakistan---

----Arts. 105(3)(a), 112(1), 112(2), 184(3), 199 & 224(2)---Elections Act (XXXIII of 2017), S. 57(1)---Constitutional petitions and suo motu proceedings regarding holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa---Maintainability---Petitions/appeals on the same subject matter pending before the High Courts---Held, that by entertaining the present petitions and suo motu proceedings, the Supreme Court would be unjustifiably undermining the independence of two provincial High Courts -- Indulgence at present stage would be premature and it would unnecessarily prejudice public trust in the independence and impartiality of the Supreme Court---Manner and mode in which present proceedings were initiated have unnecessarily exposed the Court to political controversies---This could have been avoided if a Full Court was to take up present cases; it would have ensured the legitimacy of the proceedings---Furthermore conduct of political stakeholders does not entitle them to invoke the jurisdiction of the Supreme Court under Article 184(3) of the Constitution in case it is seen or appears to facilitate or promote undemocratic values and strategies---Detailed reasons for dismissing the Constitutional petitions and suo motu proceedings recorded.

The power conferred on the Supreme Court under Article 184(3) of the Constitution must always be exercised with circumspection and utmost caution. If the conditions stipulated under Article 184(3) are satisfied, even then the Supreme Court may not exercise such jurisdiction if sufficient justification has not been shown for failing to invoke the wider concurrent jurisdiction vested in a High Court under Article 199 of the Constitution. The jurisdiction vested in the Supreme Court and the High Courts under Article 184(3) and Article 199, respectively, is coterminous and concurrent. The deference shown by the Supreme Court is premised on the established principle that the lowest court or tribunal must be approached in the first instance when the jurisdictions are concurrent. The High Courts have extensive jurisdiction and powers under Article 199 of the Constitution and a High Court is as competent as the Supreme Court to deal with matters of public importance involving interpretation of the Constitution and the enforcement of fundamental rights. Moreover, when two courts have concurrent jurisdiction and one of them happens to be a superior court, to which a remedy of appeal lies, then normally the latter will not entertain a similar matter pending before the lower court. No party can be deprived of its vested right of appeal to the Supreme Court provided under Article 185 of the Constitution.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Suo Motu Case No. 7 of 2017 PLD 2019 SC 318 ref.

In the case in hand, one of the High Courts has already adjudicated the matter while the other is competently seized with it. The independence and competence of the High Courts is likely to be undermined by assuming that the questions raised before the Supreme Court cannot be resolved or answered by them.

It is not disputed that the Lahore High Court has already allowed the constitutional petitions filed before it and rendered an authoritative judgment and its competence to have it implemented cannot be doubted. The Peshawar High Court is also seized of the matter. In the light of the binding 'salutary principles' the present petitions and the suo motu jurisdiction must not be entertained lest it may interfere with the implementation of the judgment of the Lahore High Court and the proceedings pending before the Peshawar High Court. The premature and pre-emptive proceedings before the Supreme Court at this stage is likely to delay the enforcement of the judgment of the Lahore High Court, leading to infringement of the Constitution by exceeding the time frame prescribed therein. Moreover, any person who would be aggrieved from the judgments of the High Courts will have the option to exercise the right to invoke the Supreme Court's jurisdiction under Article 185 of the Constitution.

By entertaining the present petitions and suo motu jurisdiction, the Court would be unjustifiably undermining the independence of two provincial High Courts. The indulgence at this stage would be premature and it would unnecessarily prejudice public trust in the independence and impartiality of the Supreme Court. The Supreme Court has no reason to apprehend that the High Courts are less competent to defend, protect and preserve the Constitution.

The manner and mode in which present proceedings were initiated have unnecessarily exposed the Court to political controversies. It has invited objections from political stakeholders in an already polarised political environment. The objections have also been submitted in writing. This obviously has consequences for the trust the people ought to repose in the impartiality of the Court. The Court, by proceeding in a premature matter, will be stepping into already murky waters of the domain of politics. It is likely to erode public confidence. The assumption of suo motu jurisdiction in itself may raise concerns in the mind of an informed outside observer. In the circumstances, the rights of litigants whose cases are pending before us would be prejudiced, besides eroding public trust in the independence and impartiality of the Court. This could have been avoided if a Full Court was constituted to take up present cases. It would have ensured the legitimacy of the proceedings.

There is another crucial aspect which cannot be ignored; the conduct of the political stakeholders. The dissolution of the provincial legislature as part of the political strategy of the stakeholders raises questions. Is such conduct in consonance with the scheme of constitutional democracy? Is it not in itself a violation of the Constitution? Should the Supreme Court allow its forum to be exploited for advancing political strategies or appear to be encouraging undemocratic conduct? Should the Supreme Court not take notice of forum shopping by political stakeholders by invoking the jurisdictions of High Courts and the Supreme Court simultaneously? The Supreme Court cannot and must not appear or be seen as advancing the political strategies of political stakeholders. The public trust will be eroded in the independence and impartiality of the Court if it appears or is seen to encourage undemocratic norms and values. The Court would be unwittingly weakening the Majlis-e-Shoora (Parliament) and the forums created under the Constitution by encouraging political stakeholders to add their disputes to the court's dockets. The political stakeholders must establish their bona fides before their petitions could be entertained. The conduct of the stakeholders has created an unprecedented political instability by resorting to conduct that is devoid of the democratic values of tolerance, dialogue and debate. The conduct of the stakeholders does not entitle them to invoke the jurisdiction of the Supreme Court under Article 184(3) of the Constitution in case it is seen or appears to facilitate or promote undemocratic values and strategies.

(o) Constitution of Pakistan---

----Art. 184(3)---Public trust in the judicial system, importance of---Political questions brought before the Supreme Court---Judicial restraint, exercise of---Duty of the Supreme Court to preserve public trust when exercising powers conferred under Article 184(3) of the Constitution in relation to cases brought by political stakeholders stated.

It is public trust which enables the courts to effectively discharge their functions. Even unpopular decisions are respected when people have faith in the independence, fairness and impartiality of the adjudicatory process. Supreme Court does not refuse to exercise judicial review if a question raised has political content, provided that it involves a legal or constitutional issue. But in doing so, the Court will always be mindful of its duty to ensure that it is not only an apolitical, independent, fair and impartial arbiter but also appears to be so. This duty becomes far more challenging when the controversy brought before the Court involves the interests of the political stakeholders. Each one must believe that the court and judges hearing the lis are fair, independent and impartial. The institutional processes and procedures, whether administrative or judicial, must appear to be transparent and based on decisions which are an outcome of the exercise of structured discretion. No political stakeholder should have the remotest doubt regarding the impartiality, integrity and fairness of the adjudicatory process. Public trust can only be preserved when utmost restraint is exercised in entertaining questions and issues which involve political content. Public trust is eroded when the Court is perceived as politically partisan and the judges as 'politicians in robes'.

Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657; Zulfigar Ali Bhutto v. The State PLD 1978 SC 125; Zafar Ali Shah v. General Pervez Musharraf PLD 2000 SC 869; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Tika Iqbal Muhammad Khan v. Pervez Musharraf PLD 2008 SC 178; Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 and Imran Ahmed Khan v. Muhammad Nawaz Sharif PLD 2017 SC 692 ref.

The Court must always show extreme restraint in matters which involve the political stakeholders. The Court must not allow any stakeholder to use its forum for advancing its political strategy or gaining advantage over other competitors. It is the duty of the Court to ensure that political stakeholders are not encouraged to bring their disputes to the courts for judicial settlement by bypassing the institutions and forums created under the Constitution. It weakens the Majlise- Shoora (Parliament) and the forums meant for political dialogue and, simultaneously, harms the judicial branch of the State by prejudicing public trust in its independence and impartiality. It also encourages the political stakeholders to shun the democratic values of tolerance, dialogue and settlement through political means. The Supreme Court owes a duty to more than fifty thousand litigants whose cases on the docket of the Supreme Court are awaiting to be heard and decided. They ought to be given priority over the political stakeholders who are under an obligation to resolve their disputes in the political forums through democratic means. The Supreme Court has a duty to preserve public trust and confidence and not to appear politically partisan. This is what the Constitution contemplates.

(p) Supreme Court Rules, 1980---

----O.XI & O.XXV---Constitution of Pakistan, Arts. 184(3) & 191---Supreme Court---Suo motu cases---Constitution of Benches---Chief Justice of the Supreme Court---Powers and duties---Scope of discretionary powers of the Chief Justice and his duties under the Supreme Court Rules, 1980 in relation to constitution of benches and allocation of cases stated.

The Chief Justice enjoys the status of the Master of the Roster by virtue of the powers conferred under the Supreme Court Rules, 1980 ('Rules of 1980'). The jurisdiction under Article 184(3) exclusively vests in the "Supreme Court", which collectively means the Chief Justice and the Judges of the Court. The Chief Justice is first among equals. The Rules of 1980 have been made by the Supreme Court i.e., the Chief Justice and the Judges for administrative convenience. The power under Article 184(3) is inherent and exclusively vests in the Supreme Court. The Chief Justice exercises the powers conferred under the Rules of 1980 as a delegatee, trustee or an agent. The Master of the Roster, therefore, owes a fiduciary duty of care towards the Supreme Court. As a fiduciary it is the duty of the Master of the Roster to preserve good faith and exercise the discretion with utmost care and in the best interest of the Supreme Court. The discretion under the Rules of 1980 is not unfettered nor can it be exercised arbitrarily. Powers conferring discretion, no matter how widely worded, must always be exercised reasonably and subject to the existence of the essential conditions required for the exercise of such powers within the scope of the law. The discretion ought to be structured by organising it and producing order in it. The seven instruments of structuring of discretionary power - open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedures - are by now embedded in our jurisprudence. These principles are binding in discharging the functions and exercising jurisdiction under the Rules of 1980. The discretionary powers of the Master of the Roster are, therefore, not unfettered nor can be exercised arbitrarily or capriciously. As a corollary, it is the duty of the Master of the Roster to exercise discretion in a manner that preserves and promotes public trust and confidence. It is also an onerous duty of the Chief Justice to act in the best interest of the Supreme Court. Moreover, the Chief Justice and Judges are jointly and severally responsible to ensure that the jurisdiction under Article 184(3) is exercised to promote and preserve public trust. In case of breach of this duty the responsibility would rest with the Chief Justice and all the Judges, because they collectively constitute the Supreme Court. The Court is accountable to the Constitution, the law and the people of the country, who are the sole stakeholders. No one is above the law and every public office holder is accountable for the authority exercised under the Constitution and the law. A review of the Rules of 1980 is required in order to protect judicial integrity and impartiality in relation to constitution of the benches and allocation of cases.

The invocation of jurisdiction under Article 184(3) and the exercise of discretion relating to the constitution of benches and fixation of cases are crucial in the context of preserving public trust and confidence. The process of constitution of benches and allocation of cases must be transparent, fair and impartial.

For the Petitioner:

Abid S. Zuberi, Advocate Supreme Court and Shoaib Shaheen, Advocate Supreme Court.

Assisted by:

Ayan Memon, Ms. Amna Khalili, Agha Ali Durrani and Arif Ansari, Advocates (in Const. P. No. 1 of 2023).

For the Petitioner:

Syed Ali Zafar, Sarfraz Ahmad Cheema, Zahid Nawaz Cheema, Ch. Faisal Fareed, Safdar Shaheen Pirzada, Ashfaq Ahmed Kharal and Amir Saeed Rawn, Advocates Supreme Court (in Const. P. No. 2 of 2023).

On Court's Notice

For Federation of Pakistation:

Shehzad Ata Elahi, Attorney General for Pakistan, Ch. Aamir Rehman, Addl. AGP and Malik Javaid Iqbal Wains, Addl. A.G.

Assisted by:

Ms. Mehwish Batool, Aitzaz ul Haque and Ms. Maryam Rasheed, Advocates.

For President of Pakistation:

Salman Akram Raja, Advocate Supreme Court and Amir Malik, Advocate-on-Record.

Assisted by:

Malik Ghulam Sabir, M. Shakeel Mughal, Maqbool Ahmed and Sameen Qureshi, Advocates.

For Governor Khyber Pakhtunkhwa:

Khalid Ishaq, Advocate Supreme Court.

For Governor Punjab:

Mustafa Ramday, Jahanzeb Awan and Rashid Hafeez, Advocates Supreme Court.

Assisted by:

Ms. Zoe K. Khan, Ahmed Junaid, Akbar Khan, Uzair Shafi, Barrister Maria Haq and Barrister Salman Ahmed, Advocates.

For ECP:

Sajeel Shehryar Swati, Advocate Supreme Court.

Assisted by:

Barrister Saman Mamoon, Ms. Kiran Khadijah, Advocates, Zafar Iqbal, Special Secy. Muhammad Arshad, DG Law, Khurram Shehzad, Addl. DG Law, Ms. Saima Tariq Janjua, DD (Law), Ms. Bushra Rasheed, Law Officer and Zaighum Anees, Law Officer.

For Government of Punjab:

Muhammad Shan Gul, AG, Malik Waseem Mumtaz, Addl. AG and Sana Ullah Zahid, Addl. AG.

Assisted by:

Khurram Chughtai, Usman Ghani, Raza Rehman, Advocates and Ahmed Raza Sarwar, Addl. Chief Sec. Law (Pb).

For Government of Khyber Pakhtunkhwa:

Aamir Javaid, AG, Sardar Ali Raza, Addl. AG and Mian Shafaqat Jan, Addl. AG.

For Government of Balochistan:

Asif Reki, AG and M. Ayaz Swati, Addl. AG.

For Government of Sindh:

Hassan Akbar, AG, Saifullah, AAG (through V.L. Karachi) Fauzi Zafar, Addl. AG and Zeeshan Edhi, Addl. AG.

For ICT:

Jehangir Khan Jadoon, AG.

For Pakistan Bar Council:

Haroon-ur-Rasheed, Advocate Supreme Court, Vice Chairman, PBC, Hassan Raza Pasha, Advocate Supreme Court, Chairman, Executive Council.

For Supreme Court Bar Association:

Abid S. Zuberi, Advocate Supreme Court, President SCBA Muqtadir Akhtar Shabbir, Advocate Supreme Court/Secretary SCBA and Malik Shakeel-ur-Rehman, Advocate Supreme Court/Addl. Secretary.

For PTI:

Syed Ali Zafar, Ch. Faisal Fareed, Safdar Shaheen Pirzada and Ashfaq Kharal, Advocates Supreme Court.

For PPPP:

Farooq H. Naek, Senior Advocate Supreme Court.

Assisted by:

Barrister Sheraz Shaukat Rajpar.

For PML(N):

Mansoor Usman Awan, Advocate Supreme Court and Anees Shehzad, Advocate-on-Record.

For JUIP:

Kamran Murtaza, Senior Advocate Supreme Court.

For Jamat-e-Islami:

Ghulam Mohyuddin Malik, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record.

For PML (Awami):

Azhar Siddiqui, Advocate Supreme Court.

P L D 2023 Supreme Court (AJ&K) 1

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

SANA LATIF---Petitioner

Versus

Mst. SADAQAT ABBASI and 8 others---Respondents

Civil Miscellaneous No. 211 of 2023, decided on 13th April, 2023.

(Application for grant of permission to represent the petitioner in the instant review petition).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI, Rr. 6 & 8---Review application---Application for change of Advocate---Scope---Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, requires the same Advocate, who appeared earlier to argue the case, to draw up the review application and appear in support of it before the Court for certain reasons---It is because a review petition is not equivalent to a petition for leave to appeal or an appeal where the case is argued for the first time---Scope of review application is limited to the grounds mentioned in Order XLVI, Rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978---Advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case; he being part of the hearing of the main case is fully aware of the proceedings that transpired in the Court leading to the judgment or order sought to be reviewed; he is the one who knows what was argued before the Court and what weighed with the Court in deciding the matter either way---It is also for the same reason that the review application is to be fixed before the same Bench that delivered the judgment or order sought to be reviewed, under R. 8 of O. XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978---It is not hard to understand that the same Advocate and the same Bench can best appreciate the grounds of review---It is true that the requirement of "sufficient ground" for granting the special leave is not expressly stated in R. 6, but this does not mean that the discretion of the Court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner---This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case---Special leave to substitute a counsel in a review petition is to be granted only when appearance of the earlier counsel is not possible due to some unavoidable circumstances, such as the original counsel is dead or unable to appear before the Court due to some mental or physical disability but that too is subject to the permission of the Court---Practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances, by the parties as well as by the Advocates representing them is condemnable.

Amjad Hussain v. Nazir Ahmad and others PLD 2023 SC 22; Muhammad Sabeel Khan v. Muhammad Ayoub Khan and others 2015 SCR 1464; Muhammad Younas and others v. The State PLD 2005 SC 93; Ghulam Rasul and others v. Settlement and Rehabilitation Commissioner, Gujranwala and others 1980 SCMR 962 and Tamil Nadu Electricity Board and others v. N. Raju Reddiar and others AIR 1997 SC 1005 rel.

Saqib Ahmed Abbasi, Advocate for Petitioner.

Nemo for Respondents.

P L D 2023 Supreme Court (AJ&K) 6

Before Raja Saeed Akram Khan, C.J., Kh. Muhammad Nasim and Raza Ali Khan, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary of Government of AJ&K, Muzaffarabad and 3 others---Appellants

Versus

MUHAMMAD ISHAQ and 19 others---Respondents

Civil Appeals Nos. 205 and 204 of 2021, decided on 4th October, 2021.

(On appeal from the judgment of the High Court dated 17.07.2021 in Writ Petitions Nos.1044 of 2016 and 1883 of 2020).

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

----Art. 42---Qanun-e-Shahadat (10 of 1984), Art. 114---Azad Jammu and Kashmir Law Officers (Terms and Conditions) Act, 2014 (I of 2015), S. 7---Appeal---Terms and conditions of service, challenge to---Estoppel---Scope---Appellants, who held positions as Advocate General, Additional Advocate General, and Assistant Advocate General, filed a writ petition before the High Court as a result of which their pay and privileges were adjusted to match those of their counterparts in another province due to a judgment by the High Court and the Supreme Court's refusal to grant leave to appeal---However, the government enacted the Azad Jammu and Kashmir Law Officers (Terms and Conditions) Act, 2014 (I of 2015) to nullify the impact of these judgments, resulting in discriminatory terms, conditions, pay, and perks---Appellants sought a declaration that Sections 7(1), 7(2), 10 & 11 of the Act were unconstitutional and requested that the respondents be instructed to grant them equal pay, perks, and privileges as equal to their counterparts---High Court, while maintaining the provisions of the Azad Jammu and Kashmir Law Officers (Terms and Conditions) Act, 2014 (I of 2015) ('the Act'), directed the government to amend the notification regarding the perks and privileges of law officers in line with the principles outlined in the aforementioned judgments---Validity---Appellants were appointed in 2016 for a three-year period in accordance with the Act---Section 7 of the Act outlines the pay and allowances applicable to the Law Officers---Subsection (2) of this section states that a Law Officer appointed shall be considered to have accepted the aforementioned terms and conditions, including pay, allowances, etc., and shall not be eligible for any enhancements or different terms and conditions---Having accepted these terms and conditions, the appellants continued to fulfill their duties and completed the initial term of their appointment---Although their tenure ended in 2019, they were instructed to continue working until further notice---When a change in government was imminent, the appellants filed a writ petition challenging the provisions of the Act---However, their writ petition was severely affected by the principle of laches, as they had accepted the terms and conditions of their service under the statutory provisions while simultaneously challenging them---Therefore, their conduct amounted to acquiescence to the terms and conditions stated in their appointment notifications, thereby estopping them from filing the writ petition---Appeal was dismissed.

Azad Govt. and others v. Haji Summander Khan 1995 MLD 1350 and Azad Govt. and others v. Messrs Spintex Limited 1998 PTD 3200 ref.

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

----Arts. 20 & 43---Appointment of Advocate General---Appointment of Judge of High Court---Scope---Advocate General is appointed under Article 20 of the Constitution, whereas, Judge of the High Court is appointed under Article 43---Both the statutory provisions are independent---Since Article 20 of the Constitution itself does not envisage consultation by the President with the Chief Justice of Supreme Court Azad Jammu and Kashmir and Chief Justice of High Court in the matter of appointment of Advocate General, hence, there was no occasion for the High Court to itself imagine the word 'consultation' in Article 20 of the Constitution merely on the flimsy ground that the qualification of Advocate General and that of Judge High Court is same, hence, the procedure for appointment would also be the same.

Secretary Ministry of Law and others v. Muhammad Ashraf Khan and others PLD 2011 SC 7 rel.

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

----Arts. 20 & 43---Appointment of Advocate General---Appointment of Judge of High Court---Scope---Article 20 of the Constitution provides that a person qualified to be appointed a Judge of the High Court shall be appointed as the Advocate General for Azad Jammu and Kashmir---Qualification provided under Article 43 of the Constitution for appointment of a Judge of the High Court is that he should have been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan for a period aggregating, not less than ten years---Expression "has been an advocate of the High Court" should be taken to mean "has been practicing before the High Court"---It is to be assessed whether an advocate who handles very few briefs in a year could be said to be actually practicing---Supreme Court observed that in its estimation while making appointment to the post of Advocate-General the concerned should have to assess the ability of the advocate, the volume of his practice etc.

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

----Art. 20---Duties and responsibilities of Advocate General---Appointment of private counsel by government department---Advocate General stating his inability to argue---Effect.

Relationship between the Advocate General and the Government is essentially that of an Advocate and a client in relation to his appearance in the Courts and arguing the case before the Courts on behalf of the State. Therefore, his pay, perks and privileges have to be settled by the Government which may be increased or reduced. In case, the terms and conditions so settled are not acceptable to the Advocate General or Law Officers they have an option to resign but claiming enhancement of the remuneration by filing a writ petition is not justified.

The principal function of the Advocate General is to provide independent legal advice to the Government and to represent the Government in the superior Courts. Another very vital unwritten function of the Advocate General is to work as a bridge between the Government and the Courts. The duties of the Advocate General may be summarized as follows:- (i) He tenders his advice on issues and matters which are referred to him by the Government or different departments of the Government; (ii) He represents the Government in cases wherein the Government is party; (iii) He assists the Superior Courts as a Law Officer in all cases of Public Importance, particularly, where interpretation of constitutional points is involved; (iv) He also prosecutes contemners in cases of contempt of Courts; and (v) He protects public rights in cases of public nuisance and also protects public charities.

Advocate General is the principal Law Officer of the Government. It is his duty to advise the Government in the legal and constitutional matters and perform other duties of the legal character. He has the right to sit, take part and speak in the proceedings of the Assembly or any of its committees as envisaged under Article 26(2) of the Constitution. He has right of audience before all the Courts. The most trusted person possessing the qualification of the Judge, High Court is appointed as the Advocate General. No tenure or duration of the office of the Advocate General is prescribed like a Judge of the High Court rather he can hold the office even after the age of 62 years. Possessing the qualification to be appointed as a Judge of the High Court, prima facie, means that the Advocate General must be of the level of a Judge of the High Court by virtue of his knowledge, conduct, caliber, etc.

Besides Advocate General, a large number of Law Officers are appointed by the Government. Despite the fact that they are being paid from the public exchequer, the private counsel are also engaged by the Government in several cases. If the government contends that none amongst its law officers is capable of handling the cases then the question would arise why incompetent persons have been appointed. In such a scenario the public suffers twice, firstly, they have to pay for incompetent law officers, and secondly, they have to pay again for the services of competent counsel the government engages. The public exchequer is not there to be squandered in this manner. The State must protect the belongings and assets of the State and its citizens from waste and malversation.

Rasheed Ahmed v. Federation of Pakistan PLD 2017 SC 121 rel.

In presence of the Law Officers, being paid from the Government exchequer there is no occasion for the Government to engage a private counsel to defend or prosecute the cases in the Supreme Court and High Court. However, in exceptional cases having State and Government level constitutional importance or involving complex technicalities of some particular fields, after consultation with the Advocate General and prior permission of the Court the private counsel can be engaged to assist the Advocate General but it cannot be allowed to make a practice.

Likewise, the departments in which the Legal Advisors are appointed, are not allowed to engage additional counsel. If the department is not satisfied with the performance of the Legal Advisor, he may be replaced or his terms and conditions may be altered, if so advised.

In a number of cases, the Advocate General has shown his inability to argue the case on the ground that he has not been directed so by the Secretary Law, Justice, Parliamentary Affairs and Human Rights. Such practice is highly deprecated. The Advocate General is holding the constitutional post, hence, he is not supposed to be sub-ordinate to Secretary Law. Even otherwise, it is the Advocate General who is a fit person to decide the matter of distribution of the cases amongst the Law Officers and not the Secretary Law. In this state of affairs, Supreme Court directed that in future the Advocate General is authorized to appear and defend each and every case in the Supreme Court and High Court without any direction by the Secretary Law; that he is also authorized to distribute the cases amongst the Law Officers; that the cases filed against the Government, shall be distributed amongst the Law Officers by the Advocate General, however, sanction to file the appeal shall be issued by the Law Department in the name of the Advocate General who shall distribute the cases amongst the Law Officer as he deems appropriate.

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

----Art. 44--- Writ petition--- Aggrieved person--- Scope--- Only an aggrieved person can file the writ petition.

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

----Art. 45---Contempt of Court Ordinance (V of 2003), S. 3---Contempt of Court---Scope---Words "notwithstanding any judgment of Supreme Court or High Court" used in an enactment, prima facie appears to be a contempt of Court.

2013 SCMR 1752 = 2014 PLC (C.S.) 82 ref.

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

----Art. 4(4)(15)---Equality of State Subjects---Scope---Principle of equality before law shall apply among the equals otherwise, the whole system shall collapse---If the equal treatment of law is applied without legal condition, it would mean that everyone has right to claim occupation of any office or demand for any type of terms and conditions without any restrictions imposed by law.

(h) Civil service---

----Terms and conditions of service---Principle of parity---Scope---It is the Government which has domain to determine the terms and conditions and pay and privileges of any post or office keeping in view the nature of job load of work, number of people assigned for the job, economic and financial condition of the State, amongst others---Parity may be also adjudged keeping in view the comparative quantum of responsibilities and assignments.

(i) Administration of justice---

----Court of law has to observe the law as it is and not as it should be.

(j) Interpretation of statutes---

----Courts while interpreting the provisions of the Constitution/statute can neither add nor subtract anything from any provision.

Tabassum Arif v. Azad Govt. and others 2013 SCR 134 rel.

Asghar Ali Mallik, Advocate for Appellants (in Civil Appeal No. 205 of 2021).

Raja Muhammad Hanif Khan, Advocate for Respondents (in Civil Appeal No. 205 of 2021).

Raja Muhammad Hanif Khan, Advocate for Appellants (in Civil Appeal No. 204 of 2021).

Asghar Ali Mallik, Advocate for Respondents (in Civil Appeal No. 204 of 2021).