PLD 2024 Judgments

P L D 2024 Federal Shariat Court 1

Present: Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and

Dr. Syed Muhammad Anwer, JJ

Sardar ABDUL QUDOOS, ADVOCATE---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad

and 6 others---Respondents

Shariat Petition No. 22/I of 2023, decided on 30th October, 2023.

(a) Political Parties Order (XVIII of 2002)---

----Arts. 3, 4 & 5 & Preamble---Constitution of Pakistan, Arts. 17(2), 51, 63-A, 175, 203-D & 224---Shariat petition---Political parties---Multi-party system adopted in Pakistan---Repugnancy to injunctions of Islam---Practices of raising objections on the working of a government in a society in a civil and democratic way is a part of a consultative process, which cannot be done in the absence of persons of different political thoughts and groups or political parties and same is the purpose of the impugned law i.e. the Political Parties Order, 2002---To have a constructive, healthy consultative process i.e. Shurah can only be promoted through the political parties of a polity, and that is the main purpose of the impugned law according to its Preamble---Articles 3, 4 & 5 of the Political Parties Order, 2002 were not against the inunctions of Islam.

According to the injunctions of Islam, Muslims are required to decide governance issues, including formation of a government, and policy matters at every level through consultation. It is the fundamental requirement of any consultation that all or any point of view must be brought to light through a consultative process in order to reach at a just and right conclusion. This equitable and democratic way of making decisions at any level, including at the collective national level, is required by the Holy Quran. Hence, in the light of such direction of Allah it was the practice of the Holy Prophet (SAW) that usually he heard and sought different opinions from different persons or different groups of persons before arriving at a final decision concerning the administrative affairs of the government. [pp. 4, 5] A & B

Holy Quran, like Verse 103 of Surah Al-Imran; Verse 159 of Surah Al-An'am; Verse 46 of Surah Al-Anfal; Verse 59 of Surah Nisa; Verse 107 of Surah Taubah; Verse 19 of Surah Al-Imran; Verse 85 of Surah Bakarah; Verse 3 of Surah Al-Maidah; Verse 85 of Surah Al-Imran and Verse 208 of Surah Bakarah distinguished.

Holy Quran says in Verse 38 of Surah Ash-Shurah and Verse 59 of Surah Nisa ref.

The purpose of having different political parties in a polity to represent different point of views and to highlight the issues from every aspect before the government is not against the teachings of Islam, rather this concept is in conformity to the injunctions of Islam. According to the injunctions of Islam, consultation is recommendatory upon the authorities, policy makers and the stakeholders. Islam gives liberty to every citizen or a group of citizens to object and raise questions on any issue of governance, for which they want clarification, and the government is supposed to answer all such questions.

Parliament, which is a place of debate and consultation between different political parties, is supposed to undertake the consultation for the benefit of public at large as well as for the government, which is in accordance to the spirit of Islamic injunctions.

The practices of raising objections on the working of a government in a society in a civil and democratic way is a part of a consultative process, which cannot be done in the absence of persons of different political thoughts and groups or political parties and same is the purpose of the impugned law i.e. the Political Parties Order, 2002. To have a constructive, healthy consultative process i.e. 'Shurah'

can only be promoted through the political parties of a polity, and

that is the main purpose of the impugned law according to its Preamble.

In addition to Article 17(2) of the Constitution, several other Articles i.e. Articles 51, 63-A, 175 and 224, also talk about the participation and working of political parties in our polity. Articles 3, 4 & 5 of the Political Parties Order, 2002 were not against the inunctions of Islam. Shariat petition was dismissed as being not maintainable.

(b) Political Parties Order (XVIII of 2002)---

----Arts. 3, 4 & 5 & Preamble---Constitution of Pakistan, Arts. 17(2) & 203-D---Shariat petition---Maintainability---Political parties---Multi-party system adopted in Pakistan---Repugnancy to Injunctions of Islam---Present Shariat petition was not maintainable as it was in direct conflict with Art. 17(2) of the Constitution, which makes it a fundamental right of every citizen of Pakistan to form a political party or to be a member of any political party---Formation and presence of a political party within the country is one of the fundamental rights given by the Constitution, which is guaranteed and also protected by the Constitution---Shariat petition was dismissed as being not maintainable.

Petitioner in person.

P L D 2024 Federal Shariat Court 9

Present: Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and Dr. Syed Muhammad Anwer, JJ

Haji SAIF-UR-RAHMAN SHAHEEN---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Attorney General of Pakistan, Islamabad and 4 others---Respondents

Shariat Petition No. 16/I of 2022, decided on 6th October, 2023.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Dissolution of marriage on the basis of "Khula"----Principles relating to the right of Khula stated.

It is the fundamental right of a woman according to the injunctions of Islam as laid down in the Holy Quran and Sunnah to claim decree for dissolution of marriage from the court of law, which cannot be denied. The right of Khula granted to women by the Holy Quran and Sunnah is an absolute and a unique right, whereby a marriage can be dissolved through a Court at her will. A wife can get this right by showing her willingness to return the Mahar to her husband and in addition by simply stating in a court of law that she can no longer live with her husband as his wife within the prescribed limits set by the Almighty Allah as a reason for dissolution of marriage. This right of women cannot be denied by the court of law.

To seek a decree of dissolution of marriage on the basis of Khula from the court of law, levelling of any allegation of maltreatment or mistreatment and misbehavior is not at all necessary. It is sufficient for the woman to state that she dislikes her husband to the extent that she cannot live with him as his wife within the limits prescribed by Allah for the court to proceed upon her demand. Any kind of subjective feeling regarding disliking of a husband is a valid ground of dissolution of marriage on the basis of Khula, and no additional ground or proof is required by the court to prolong the matter.

If woman wants Khula from her husband and she willfully returns the full amount of Mahar to her husband as Badal-e-Khula then the court should pass a decree of Khula without delay. The amount of Mahar to be returned by the woman should not exceed the maximum amount of Mahar received by her from her husband, however it can be settled at a much lesser amount depending upon the circumstances of a case. It is not always necessary or binding on the woman to completely forego her dower for seeking dissolution of marriage on the basis of Khula. If a wife claims that she is forced to seek a decree of Khula because of her husband's ill-treatment or mistreatment, etc., the Court may reduce the amount of compensation if it finds the husband at fault after recording of evidence, so much so that in severe cases, the Court may grant divorce in case of Khula to a wife without paying back any amount of Mahar at all.

Imam Muhammad Shaybani, Kitab-ul-Asar, Page 258

Muta Imam Muhammad, Page 288

Counsel for Petitioner in person.

P L D 2024 Federal Shariat Court 20

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and Dr. Syed Muhammad Anwer, JJ

Ch. NADIR KHAN and another---Applicants

Versus

The STATE through Secretary Primary and Secondary Healthcare Department, Lahore and 3 others---Respondents

Shariat Miscellaneous Application No. 01/L of 2023, decided on 24th January, 2024.

Constitution of Pakistan---

----Art. 203D---Federal Shariat Court---Jurisdiction---Principle---Relief in personam---Petitioner assailed judgment of Division Bench of High Court passed in exercise of revisional jurisdiction on the plea to apply Islamic Justice System---Validity---Petitioner assailed relief in personam which was beyond the jurisdiction conferred upon Federal Shariat Court under Art. 203D of the Constitution and the same could not be granted---Federal Shariat Court declined to interfere in the matter---Petition was dismissed, in circumstances.

Muhammad Waseem alias Kalu v. The State 2006 PCr.LJ 364 ref.

Haji Mushtaq Ahmed Attari, Qadri, Rizvi, Ziyai for Applicants.

P L D 2024 Federal Shariat Court 22

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and Dr. Syed Muhammad Anwer, JJ

Mrs. NOOR AISHA and another---Petitioners

Versus

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

Shariat Petition No. 06/I of 2023, decided on 12th September, 2023.

Constitution of Pakistan---

----Art. 203-D---Shariat petition---Maintainability---Relief in personam---Pensionary benefits---Petitioner claimed her right in pensionary benefits of her deceased son as Tarka---Validity---Pension of a person does not fall within definition of Tarka, as it is governed by Pensionary Rules of that department---Petitioner failed to identify any law or rule to be against the Injunctions of Islam as laid down in the Holy Quran and the Sunnah---This was the constitutional requirement to invoke jurisdiction of Federal Shariat Court under Art. 203-D of the Constitution---Shariat Petition, without mentioning of any law or rule which was considered as against the Holy Quran and the Sunnah by petitioner, was not maintainable before Federal Shariat Court---Petitioner sought relief in personam which was altogether out of jurisdiction of Federal Shariat Court---Shariat petition was dismissed, in circumstances.

Wafaqi Hukumat-e-Pakistan v. Awamunnas PLD 1991 SC 731 ref.

Zartashi Nadia and others v. Federation of Pakistan and others (Shariat Petition No.09/I of 2021); Federation of Pakistan v. Public at Large PLD 1991 SC 731; Ameeran Khatoon v. Mst. Shamim Akhtar 2005 SCMR 512; Farhat Nigar v. The Auditor General of Islamic Republic of Pakistan and others 2018 CLC 392; Mst. Riffat Yasmeen v. Hassan Din and another 2014 CLC 126 and Mst. Mehmooda Begum v. Zubair Ahmad and others 2013 CLC 1834 rel.

Taj Muhammad Khan for Petitioners.

P L D 2024 Federal Shariat Court 25

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh and Dr. Syed Muhammad Anwer, JJ

Ms. NAHEEDA BASHIR---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Finance and 6 others---Respondents

Shariat Petition No. 02/I and Shariat Miscellaneous Application No. 11/I of 2023, decided on 12th March, 2024.

(a) Federal Shariat Court (Procedure) Rules, 1981---

----R.15---Shariat petition---Absence of petitioner---Effect---Shariat petition cannot be rejected solely on the ground of absence of petitioner, his/her counsel or jurisconsult---Such petition cannot be abated by reason of death of petitioner---Federal Shariat Court under R. 15 of Federal Shariat Court (Procedure) Rules, 1981, has to decide such petition.

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

----S. 176-A---Constitution of Pakistan, Art. 203 D---Shariat petition---Maintainability---Relief in personam--- Inheritance / Tarka--- Death gratuity---Petitioner was aggrieved of distribution of monetary benefits only to widow of issueless deceased officer and not to all relatives entitled to inherit under Islamic Law---Validity---Declaration of policy of pension, gratuity and other privileges claimed by petitioner was relief in personam---Such relief was beyond the jurisdiction conferred upon Federal Shariat Court under Art. 203-D of the Constitution and could not be granted---Questions raised by petitioner had already been decided by Federal Shariat Court in its earlier judgments---Shariat petition was dismissed, in circumstances.

PLD 1991 SC 731; Zartashi Nadia and another v. Federation of Pakistan through Ministry of Finance, Islamabad and others (Shariat Petition No.9/I of 2021) and Mirza Muhammad Amin and others v. Government of Pakistan (Shariat Petition No.6/R of 1980) rel.

P L D 2024 Federal Shariat Court 29

Before Dr. Syed Muhammad Anwer, J

Molvi LIAQAT ALI---Petitioner

Versus

MOHAMMAD ISHAQUE and 4 others---Respondents

Criminal Revision No. 03-I of 2023, decided on 14th March, 2024.

Constitution of Pakistan---

----Arts. 10A & 203DD---Criminal Procedure Code (V of 1898), Ss. 200 & 439---Private complaint---Due process and right of fair trial---Scope---Petitioner/complainant was aggrieved of dismissal of his complaint as right of hearing was not provided to him---Validity---Principles of due process and right of fair trial include opportunity of full audience to both parties---No such opportunity was granted to petitioner/ complainant by Trial Court---Trial Court was required to investigate veracity and sufficiency of evidence, which could lead to accuracy in proof of facts and circumstances---Next step was evidence appreciation which could only be ensured by Trial Court itself through the process, proceedings and trial in accordance with relevant law and procedure---Trial Court decided the matter in haste without recording of evidence and without extending right of audience to petitioner/complainant---Federal Shariat Court set aside order passed by Trial Court, as the same suffered from illegality---High Court remanded the matter to Trial Court for decision afresh after providing full opportunity to petitioner/complainant of hearing as well submission of evidence and production of witnesses---Revision petition was allowed accordingly.

Mst. Nasreen Akhtar v. Hasnain Mehdi and 6 others 2012 PCr.LJ 853; Azmat Bibi and another v. Asifa Riaz PLD 2002 SC 687 and Noor Muhammad v. State PLD 2007 SC 9 rel.

Ch. Muhammad Shahzad for Petitioner.

Muhammad Imran Asghar Baloch, Advocate for Respondents Nos.1 to 4.

Khadim Hussain, Additional P.G, Sindh for the State.

P L D 2024 Federal Shariat Court 33

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh, Dr. Syed Muhammad Anwer and Ameer Muhammad Khan, JJ

FAYYAZ ALI KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice Division, Islamabad---Respondent

Shariat Petition No. 01/I of 2024, decided on 23rd April, 2024.

Constitution of Pakistan---

----Arts. 203B(c), 203D & 262---Shariat petition---Gregorian calender---Provision of Art, 262 of the Constitution---Repugnancy to injunctions of Islam---Bar against jurisdiction of Federal Shariat Court---Petitioner contended that provision of Art. 262 of the Constitution was violative of injunctions of Islam---Validity---Provision of Art. 203B(c) of the Constitution envisages that law to be examined and decided, inter alia, includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal law and any other law relating to procedure of any Court or tribunal---Such bar in the Constitution itself under Art. 203B(c) of the Constitution does not empower Federal Shariat Court to examine any Article of the Constitution---Shariat petition was dismissed as being not maintainable.

Petitioner in person.

Mian Muhammad Faisal Irfan, DAG for Federation of Pakistan, Sana Ullah Zahid, Add: A.G., Punjab, Ahsan Hameed Dogar, Advocate on behalf of A.G., Sindh, Anees Muhammad Shahzad, Advocate on behalf of A.G., KP and Tahir Iqbal Khattak, Addl: A.G., Balochistan for the State.

P L D 2024 Federal Shariat Court 35

Before Iqbal Hameedur Rahman, C.J., Khadim Hussain M. Shaikh, Dr. Syed Muhammad Anwer and Ameer Muhamamd Khan, JJ

Dr. IRFAN IQBAL---Petitioner

Versus

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

Shariat Petition No. 21/I of 2022, decided on 19th April, 2024.

(a) Constitution of Pakistan---

----Art. 203D---Federal Shariat Court---Jurisdiction---Relief in personam does not fall within the jurisdiction of Federal Shariat Court.

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

----S.21-F---Constitution of Pakistan, Art. 203D---Shariat petition---Provision of S. 21-F of Anti-Terrorism Act, 1997---Repugnancy to injunctions of Islam---Petitioner/accused contended that provision of S. 21-F of Anti-Terrorism Act, 1997 declining remissions to convict persons was violative of injunctions of Islam---Validity---Establishment of equity and justice in society is the corner stone of Islamic teachings and is part of belief of Muslims---Petitioner failed to produce verses of the Holy Quran which were relevant to the question that non-existence of remission under S. 21-F of Anti-Terrorism Act, 1997, to person convicted of terrorism was repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH)---Different treatment of criminals, who are convicted for commission of acts of terrorism from the rest of criminals by not extending remissions to them, is not discriminatory under Islamic injunctions---In Islam punishments for different crimes are different depending on seriousness and heinousness of any crime---Terrorism is one of the most heinous natured crime in Islamic criminal justice system, therefore, its punishment is also very harsh and serious---Rigorous punishment prescribed in the Holy Quran for committing terrorism for فساد فی الارض" ," is regarded as war against Allah and His Messenger (PBUH)---Parliament inserted S. 21-F in Anti-Terrorism Act, 1997 through Anti-Terrorism (Second Amendment) Act, 2013, and powers of the President of Pakistan were limited to grant remission to accused of offence of terrorism---By way of S. 21-F of Anti-Terrorism Act, 1997, Criminals who were punished for commission of any act of terrorism were separated from the rest of the criminals due to the gravity of crime of terrorism, which according to injunctions of Islam is the most heinous crime in society and has been considered as act of war against Allah and His Prophet (PBUH)---Federal Shariat Court declined to interfere in the matter as provision of S. 21-F of Anti-Terrorism Act, 1997 was not against injunctions of Islam---Shariat petition was dismissed in circumstances.

Verses 58 & 65 of Surah An-Nisa distinguished.

Nazar Hussain's case PLD 2010 SC 1021 rel.

Counsel for Petitioner:

Hashmat Ali Habib and Tassawar Zulfiqar.

Counsel for Respondent:

Mian Muhammad Faisal Irfan, DAG for Federation.

Barrister Muhammad Usman Mirza, State Counsel on behalf of A.G. Islamabad.

Mrs. Imrana Baloch, State Counsel / AOR on behalf of A.G Punjab.

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

Anees Muhammad Shahzad, Advocate on behalf of AG Khyber Pakhtunkhwa.

Atta Muhammad, Law Officer, IG (Prison) KP.

Sulaiman, Law Officer, IG Inspectorate, Peshawar.

Tahir Siddique, Deputy Superintendent, Adiala Jail, Rawalpindi.

P L D 2024 High Court (AJ&K) 1

Before Syed Shahid Bahar, J

MOHAMMAD NAWAZ---Appellant

Versus

MOHAMMAD SHAKEEL and 4 others---Respondents

Civil Appeal No. 100 of 2019, decided on 24th January, 2024.

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

----Ss. 12(2), 104 & 115---Dismissal of an application under S. 12(2), C. P. C., assailing of---Revision, remedy of---Order of the Trial Court dismissing application under S. 12(2) of the Civil Procedure Code, 1908, was neither a decree nor appealable order under S. 104 of the Civil Procedure Code, 1908, and against said order revision petition lies under S. 115 of the Civil Procedure Code, 1908---But the aggrieved person in the present case, instead of filing revision petition, filed an appeal and never made any request for treatment of the same as revision petition within stipulated period---Order passed under S. 12(2) of the Civil Procedure Code, 1908 does not culminate in decree but remains simply an order passed on a miscellaneous application; no appeal lies against such order, and only remedy of revision under S. 115 of the Civil Procedure Code, 1908, can be availed---Appeal filed against dismissal of application under S. 12(2), C.P.C., being not maintainable, was dismissed, in circumstances.

2013 CLC 411; 2004 YLR 1066; 1997 MLD 2003 and PLD 1990 Lah. 425 ref.

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

----S. 12(2)---Application under S. 12(2), C.P.C.---Fraud, allegation of---Scope---Section 12(2), C.P.C. is a substitute for a separate/ independent suit for setting-aside of a decree obtained by fraud, misrepresentation and lack of jurisdiction---Allegation of practicing fraud upon the Court by beneficiary of the proceedings is sine qua non for filing an application under S. 12(2) of the Civil Procedure Code, 1908.

2015 CLC 752 ref.

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

----Ss. 12(2), 104 & 115---Application under S. 12(2), C.P.C., disposed of---Revision, remedy of---Limitation---On dismissal of his application under S. 12(2), C.P.C., aggrieved person, instead of filing revision, preferred appeal, and that too after lapse of five years---Validity---Appeal, review and revision are creature of the relevant statute and no Court can entertain and adjudicate a lis if prayed remedy is not provided in law in a specific manner---Jurisdiction means jurisdiction which is conferred by law and not otherwise---Although the High Court has vast and ample powers to convert and treat the appeal as revision and vice-versa, but said power is always exercised by taking into consideration the limitation for filing such lis---High Court, in the present case, was not inclined to exercise such power after lapse of five years---Appeal filed against dismissal of application under S. 12(2), C.P.C., being not-maintainable, was dismissed, in circumstances.

Sardar Ghulam Mustafa for Appellant.

P L D 2024 High Court (AJ&K) 5

Before Chaudhary Khalid Rasheed, J

Syed MUJAHID HUSSAIN SHAH---Petitioner

Versus

DISTRICT JUDGE, MUZAFFARABAD and 12 others---Respondents

Writ Petition No. 3137 of 2023, decided on 7th March, 2024.

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

----O. VII, R.11---Rejection of plaint---Powers of the Court---Law requires that an incompetent suit should be buried in its inception in order to avoid parties from agony of trial and to save the precious time of the Court---Under O. VII, R. 11 of the Civil Procedure Code, 1908, the Court is competent to reject plaint if the same does not disclose cause of action, or if the same is barred by any law.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 172---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and perpetual injunction---Correction of entries in revenue record---Jurisdiction of Civil Court barred---Scope---Suit-land is entered as crown land and under S. 172 of the West Pakistan Land Revenue Act, 1967, the jurisdiction of Civil Courts, in a matter which falls within the jurisdiction of Revenue Officer, has been barred---Under S. 172(2)(vi) of the West Pakistan Land Revenue Act, 1967, the Civil Court shall not exercise jurisdiction over any matter regarding correction of any entry in the record of right, periodical record and register of mutations---Plaint of the plaintiff was rightly rejected under O. VI, R. 11 of the Civil Procedure Code, 1908---Writ petition filed by the plaintiff was dismissed, in circumstances.

(c) Azad Jammu and Kashmir Regularization of Nautor and Grant of Khalsa Land Ordinance (VI of 1974)---

----S. 10---West Pakistan Land Revenue Act (XVII of 1967), S. 172---Civil Procedure Code (V of 1908), O. VII, R.11---Correction of entries in revenue record---Jurisdiction of Civil Court barred---Scope---Under S. 10 of the Azad Jammu and Kashmir Regularization of Nautor and Grant of Khalsa Land Ordinance, 1974, the jurisdiction of Civil Court has been barred on any matter for which the Revenue Officer is competent to dispose of the same---If the petitioner/plaintiff was aggrieved from the sanction of Khalsa Land in favour of the private defendant/respondent, he might assail the same by filing proper proceedings under the West Pakistan Land Revenue Act, 1967---Plaint of the plaintiff was rightly rejected under O. VI, R. 11 of the Civil Procedure Code, 1908---Writ petition filed by the plaintiff was dismissed, in circumstances.

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

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Perpetual injunction, refusal of---Possession of the plaintiff, absence of---Plaintiff was not in possession of the suit-land, hence a decree for perpetual injunction could also not be issued in his favour because for granting decree for perpetual injunction, it is necessary to establish that plaintiff is in possession of the suit-land as being legal owner, and in absence of such stance a suit for perpetual injunction cannot be decreed---Plaint of the plaintiff was rightly rejected under O. VI, R. 11 of the Civil Procedure Code, 1908---Writ petition filed by the plaintiff was dismissed, in circumstances.

Raja Hamid Javaid Khan for Petitioner.

P L D 2024 High Court (AJ&K) 9

Before Chaudhary Khalid Rasheed, J

BASHIR AHMED---Appellant

Versus

Mst. HAJIRAN BIBI and 4 others---Respondents

Civil Appeal No. 159 of 2019, decided on 16th February, 2024.

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

----S. 100---Concurrent findings---Second appeal---Jurisdiction of the High Court---Scope---Concurrent findings of facts cannot be disturbed in second appeal unless mis-reading or non-reading of evidence is pointed out by the appellant or flagrant violation of any statutory law has been committed by the Courts below.

2022 SCR 416 ref.

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

----Ss. 42 & 12---Suit for declaration and possession---Gift-deed in favour of son/brother---Proof---Claim of the plaintiff/sister was that she was minor when the impugned gift-deed was recorded in favour of her brother/defendant---Claim/stance of the defendant/brother was that at the time of registration of gift-deed the plaintiff/sister had attained majority---Suit filed by sister against her brother challenging gift-deed in his favour was concurrently decreed---Validity---Claim of the appellant (defendant/brother) was not proved from the record because it was established from evidence that the plaintiff took birth after the death of her father---Even if the stance taken by defendant/appellant regarding date of death of father of plaintiff was accepted even then on the date of registration of gift-deed the sister was minor for the purpose of Transfer of Property Act, 1882, thus the gift deed was illegal for the reason that a minor was not competent to enter into an agreement---Second appeal filed by the defendant/brother was dismissed, in circumstances.

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

----Ss. 42 & 12---Suit for declaration and possession---Gift-deed in favour of son/brother---Fraud, allegation of---Limitation---Suit filed by sister against her brother challenging gift-deed in his favour was concurrently decreed---Validity---Plaintiff in relevant para of the plaint had categorically illuminated that a few days ago on scrutiny of revenue record she came to know about the registration of gift deed in question, whereas the appellant/defendant on rebuttal of said para simply stated that suit was against law, procedure, facts, without entitlement and jurisdiction, and did not utter any word regarding knowledge of the plaintiff, hence it would be deemed that he admitted the claim of the plaintiff that she came to know about the said gift- deed few days prior to institution of suit because the evasive denial would be deemed as an admission---Even otherwise the plaintiff assailed the gift-deed on the basis of fraud and in case of fraud limitation would run from the date of knowledge---Second appeal filed by the defendant/ brother was dismissed, in circumstances.

2013 SCR 563 and 2016 MLD 365 ref.

Abdul Aziz Mughal for Appellant.

Muhammad Pervaiz Mughal for Respondents.

P L D 2024 High Court (AJ&K) 13

Before Syed Shahid Bahar, J

Kh. ZAHID MIR---Petitioner

Versus

JUDGE FAMILY COURT, KOTLI and another---Respondents

Writ Petition No. 165 of 2019, decided on 23rd January, 2024.

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

----Ss. 12 & 25---Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994), S. 5, Sched.---Date of birth of the minor---Dispute---Document (Form B) issued by the NADRA---Presumption of truth/ correctness---Scope---In guardianship application before the Family Court, both the parents filed separate applications asserting contradictory date(s) of birth of the minor with difference of almost three years---Family Court accepted the date of birth asserted by the mother against which order petitioner/father filed a writ petition---Validity---Record revealed that, for the purpose of obtaining guardian-ship of the minor girl, the petitioner/father opted to produce only the birth certificate of the minor issued by the concerned secretary Union Council whereas the mother/respondent not only produced such birth certificate but also "Form B" duly issued by the National Database Registration Authority (NADRA)---Document issued by the NADRA has a presumption of truth---Presumption of correctness is attached to the record of the NADRA unless contrary is proved or same is nullified by any Court of law---If the petitioner/father wanted to seek declaration that one of dates of birth was correct and the other fake, he could approach the Civil Court by filing a suit in said regard---Thus the application filed by the mother/respondent was rightly accepted by the Family Court---Writ petition filed by the father, being meritless, was dismissed, in circumstances.

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

----Art. 44---Guardians and Wards Act (VIII of 1890), Ss. 12 & 25---Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994), S. 5, Sched.---Interlocutory order passed by the Family Court---Writ jurisdiction, invoking of---Date of birth of the minor---Dispute---Disputed question of fact requiring evidence cannot be resolved by the High Court while exercising extra-ordinary jurisdiction conferred under Art. 44 of the Azad Jammu Kashmir Interim Constitution Act, 1974---Writ jurisdiction can be invoked in extra-ordinary circumstances when no other adequate remedy under the umbrella of general law is provided, and that too by indicating any violation of law---Writ jurisdiction is not akin to civil suit and it carries set protocols and limits---Thus, indulgence in interlocutory order of the Family Court was declined---Application filed by the mother/respondent was rightly accepted by the Family Court---Writ petition filed by the father, being meritless, was dismissed, in circumstances.

Raja Arshad Latif for Petitioner.

P L D 2024 High Court (AJ&K) 15

Before Chaudhary Khalid Rasheed, J

QAMMAR DIN---Appellant

Versus

MUHAMMAD LATIF and another---Respondents

Civil Appeal No. 223 of 2019, decided on 2nd February, 2024.

(a) Azad Jammu and Kashmir Pre-emption Act (XIV of 2016)---

----S. 13---Suit for pre-emption---Market price of the suit-land, determination of---Trial Court decreed suit filed by the plaintiff subject to depositing of sale-consideration amount relating to suit-land as mentioned in the impugned sale-deed---Appellant/plaintiff preferred appeal only to the extent of quantum of amount ordered to be deposited, however, decree and judgment was maintained by the District Court---Stance of the appellant/plaintiff was that the actual market price of the suit-land was half of what had been mentioned in the relevant registry---Validity---Record revealed that the appellant/ plaintiff, in order to prove his stance, exhibited as many as four sale deeds, however, out of them only one, being of the year of the impugned sale-deed, was relevant for determination of market price of suit-land---But the said (exhibited) sale-deed was not of commercial nature while the witnesses produced by the appellant/plaintiff admitted in their statements that suit-land was of commercial land, and thus, non-commercial land could not be held to be similar---Both the Courts below had rightly appreciated every iota of oral and documentary evidence led by the parties while reaching at a just conclusion---Second appeal, filed by the plaintiff, was dismissed, in circumstances.

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

----S. 100---Azad Jammu and Kashmir Pre-emption Act (XIV of 2016), S. 13---Suit for pre-emption---Market price of the suit-land, determination of---Concurrent findings of fact---Second appeal---Scope---Question that whether the suit-land was sold at the consideration mentioned in the impugned sale-deed or half of said consideration as asserted by the appellant/plaintiff, was a pure question of fact, which (fact) had been decided against the appellant/plaintiff concurrently by both the Courts below---Concurrent findings of facts could not be reversed in second appeal unless flagrant mis-reading or non-reading of evidence had been pointed out by the appellant or flagrant violation of any statutory law had been committed by the Courts below---No illegality or infirmity having been noticed in the impugned judgments passed by both the Courts below, second appeal, filed by the plaintiff, was dismissed, in circumstances.

2022 SCR 416 ref.

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

----S. 100---Second appeal---Scope---Second appeal is not sustainable except on any of the grounds mentioned in S. 100 of the Civil Procedure Code, 1908.

Abdul Razzaq Chaudhary for Appellant.

P L D 2024 High Court (AJ&K) 19

Before Syed Shahid Bahar, J

Syed ZAKIR HUSSAIN SHAH---Appellant

Versus

Mst. KHATOON BIBI and 4 others---Respondents

Family Appeal No. 153 of 2023, decided on 6th February, 2024.

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

----S. 5, Sched.---Suit for maintenance allowance of wife and minors---Findings of Family Court---Appellate Court, jurisdiction of---Settlement/reconciliation between parties---Court while embarking upon the findings of Family Court in its appellate jurisdiction for all practical purposes enters in the shoes of Trial Court, thus, an attempt for reconciliation should be made for amicable settlement rationally hoping to tie up the parties rather than to break up---High Court, with the consent of both parties, modified decree and judgment passed by the Family Court, by reducing to half the rate of maintenance allowance of wife while maintaining the maintenance allowance of the minors---High Court directed the father to deposit the modified monthly maintenance allowances---Appeal was disposed of accordingly.

Shahid Sheikh for Appellant.

P L D 2024 High Court (AJ&K) 20

Before Chaudhary Khalid Rasheed, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Azad Jammu and Kashmir, Muzaffarabad and 4 others---Petitioners

Versus

Syed ABID ALI GILLANI---Respondent

Civil Appeals Nos. 81-A and 132 of 2020, decided on 23rd February, 2024.

Land Acquisition Act (I of 1894)---

----Ss. 4, 5, 17 & 22-A---Reference application filed by the land-owner---Necessary party, impleading of---Scope---Objection raised by the appellant (Acquiring Department/Public Works Department) was that its Secretary was a necessary party to be impleaded in the reference application but respondent (reference petitioner/land-owner) did not do the needful, hence the reference was liable to be dropped on the said ground---Validity---Land Acquisition Act, 1894, is special law and provides a complete mechanism for acquiring land, however, it has not been provided in the Land Acquisition Act, 1894, that who is necessary party to be impleaded in line of respondents in a reference application---Concerned Collector who issued award was necessary party to be impleaded---Whenever land is acquired for a Government Department, the Azad Government is entered as owner of the land afteraward and only possession is required to be handed over to the concerned department on whose move land is acquired, thus, Government, through its Chief Secretary is also a necessary party to be impleaded in the line of respondents in a reference application---Concerned department, or local authority or a company for which land is acquired may only lodge cross objections to the objections made by any person under S. 22-A of the Land Acquisition Act, 1894---Department in whose favour land is acquired has got an interest in the matter, however in the present case, land was acquired by the Collector on the motion of Chief Engineer Public Works Department Highways (North) Muzaffarabad as mentioned in the award and move was not on behalf of department, thus, impleading Secretary Public Works Department Muzaffarabad and Chief Engineer Public Works Department Highways North Muzaffarabad was sufficient to secure the interest of the acquiring department---Land had been acquired in favour of Government as mentioned in the explanations of award and only possession was to be retained by Public Works Department Muzaffarabad on behalf of the Government, thus, Department of Public Works through its Secretary was not a necessary party rather at the most it could he declared as proper party and in its absence effective decree could be passed---In finance matters, the Finance Department is a necessary party and impleading Secretary Finance department is not sufficient and the authority who passes the impugned order is also necessary party but controversy in the present matter, was bit different because in the present case the authority who issued award was impleaded in line of respondents and Azad Government in whose favour land was acquired was also arrayed as respondents, and even Secretary Public Works Department and Chief Engineer Public Works Department on whose move land was acquired had been impleaded in line of respondents---High Court repelled the argument of the appellant/Public Works Department---Appeal was dismissed, in circumstances.

PLD 2008 Lah. 116 ref.

Raja Amjad Ali Khan for Appellant/Respondent Syed Abid Ali Gillani.

Asad Abbasi for Respondents/Appellants Azad Government and others.

P L D 2024 Islamabad 1

Before Aamir Farooq, C.J., Miangul Hassan Aurangzeb and Babar Sattar, JJ

PAKISTAN TEHREEK-E-INSAF (PTI) through Additional Secretary General---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and another---Respondents

Writ Petition No. 2998 of 2022, decided on 2nd February, 2023.

(a) Constitution of Pakistan---

----Art. 4---Public authority---Principle---It is the requirement of Art. 4 of the Constitution that for an action of administrative body or tribunal to be clothed with legality, the public authority must not have exceeded its statutory power.

Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 ER 208 and Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 rel.

(b) Constitution of Pakistan---

----Art. 10A---Due process of law---Right of hearing---Scope---Right to be heard as part of requirements of natural justice is well entrenched in our jurisprudence---Such right has been itched within fundamental law by virtue of inclusion of Art. 10A of the Constitution, which guarantees right of every person to a fair trial prior to determination of his civil rights and obligations to imposition of any penalty.

University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 rel.

(c) Administration of justice---

----Show-cause notice---Tentative view---Scope---Formation of premature view does not make it a final decision and any correction of such view during show cause proceedings does not amount to a review of prior decision---Any tentative view on the basis of which a show cause notice is issued merges with final decision rendered at the end of show cause proceedings---Any correction or revision of view formed as a preliminary matter does not qualify as review of the prior decision.

(Suo Motu Case No. 04 of 2010) PLD 2012 SC 553 rel.

(d) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Administrative tribunal---When Constitutional Court in recognition of scheme of separation of powers prescribed by the Constitution exercises self-restraint in relation to decision of another constitutional body, such deference is rooted in giving effect to the will of the Constitution---While even in such cases, it remains for the Constitutional Court to decide legal limits of power being exercised by another constitutional body, as interpretive function has been conferred by the Constitution on judiciary within our scheme of separation of powers and judicial review of actual decision of another constitutional body is undertaken on a differential basis---Courts defer to evaluation of facts by administrative agencies---In exercise of judicial review powers, Courts cannot second-guess factual determination made by administrative agencies when the law and the Constitution empower them to make such determinations---This does not mean that Court never exercises judicial review power when it comes to decisions of constitutional bodies such as Election Commission of Pakistan---Jurisdiction to do so is well settled and Court exercises its discretionary jurisdiction hesitantly while applying differential scope of review to correct errors of law and does so at appropriate time.

R (Pro Life Alliance) v. BBC and others (2003) 2 All ER 977 and Jamal Shah v. Election Commission PLD 1966 SC 1 rel.

(e) Political Parties Order (XVIII of 2002)---

----Arts. 2(c)(iii), 6, 13 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Fact finding report---Foreign-aided political party---Determination---Petitioner/political party was aggrieved of fact finding report issued by Election Commission of Pakistan resulting into issuance of show cause notice and forwarding the same to Federal Government---Validity---Obligation to scrutinize statement of accounts of a political party falls within the domain of Election Commission of Pakistan pursuant to Arts. 6 & 13 of Political Parties Order, 2002---It is quite possible that while scrutinizing sources of funding of political parties, Election Commission of Pakistan comes to the conclusion that a party has received funding from such prohibited sources that could possibly attract characterization of the party as a foreign-aided political party---Power to determine whether or not a party is a foreign-aided political party falls within the domain of Federal Government and not Election Commission of Pakistan as provided under Art. 15 of Political Parties Order, 2002---Election Commission of Pakistan as regulator of political parties would share any actionable information with Federal Government to enable it to consider whether such information ought to be a trigger for action under Art. 15 of Political Parties Order, 2002---Decision of Election Commission of Pakistan to refer its tentative findings in relation to Art. 2(c)(iii) of Political Parties Order, 2002, to Federal Government as part of Fact Finding Report was of no consequence---In the event if Federal Government would chose to act on such tentative findings, it needed to do so with an independent mind after affording opportunity to petitioner/political party to be heard---High Court declined to judicially review the Fact Finding Report as it was a premature stage---High Court was confident that as repositories of public authority in country sustained by rule of law, Election Commission of Pakistan and Federal Government would not act in disregard of rights of petitioner/political party and its Chairman as guaranteed by law and the Constitution---In the event that petitioner/political party was aggrieved by final decision rendered by Election Commission of Pakistan after conclusion of show cause proceedings, petitioner/political party would be at liberty to avail appropriate remedies under law, including remedy of seeking judicial review before Constitutional Court---Constitutional petition was dismissed accordingly.

Muhammad Hanif Abbasi v. Imran Khan Niazi and 3 others PLD 2018 SC 189; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly PLD 1995 SC 66; Judicial Review of Public Actions (Vol. 3, PP 1565; Treatise on Constitutional Law by Ronald D. Rotunda and John E. Nowak (Vol, 1., P 172; A.F Ferguson v. Sindh Labour Court PLD 1985 SC 429; Abbot Laboratories v. Joh W. Gardner 387 U.S. 136 (1967); Chanan Singh v., Registrar Cooperative Societies AIR 1976 SC 1821; Union of India and another v. Kunisettay Satyanarayana AIR 2007 SC 906 and Mughal-e-Azam Banquet Complex v. Federation of Pakistan 2011 PTD 2260 rel.

Anwar Mansoor Khan, Senior Advocate Supreme Court, Shah Khawar, Senior Advocate Supreme Court, Barrister Umaimah Khan, Advocate Supreme Court, Naveed Anjum Mumtaz, Muhammad Azhar Siddique, Advocate Supreme Court, Waheed Shahzad Butt, Syed Mahfooz-ul-Hassan and Ms. Alia Bano for Petitioner.

Barrister Ahmed Pervez for Respondent No.1.

Syed Ahmed Hassan Shah, Advocate Supreme Court and Chaudhry Badar Iqbal, Munawar Iqbal Duggal, Additional Attorney General and Azmat Bashir Tarar, Assistant Attorney General, M. Arshad, Director General (Law) and Zaigham Anees, Law Officer, Election Commission of Pakistan for Respondent No.2.

P L D 2024 Islamabad 18

Before Sardar Ejaz Ishaq Khan, J

NATIONAL HIGHWAY AUTHORITY (NHA) through Chairman---Appellant

Versus

Messrs SARDAR MUHAMMAD ASHRAF D. BALOCH (PRIVATE) LIMITED and another---Respondents

F.A.O. No. 70 of 2022, decided on 3rd October, 2023.

Arbitration Act (X of 1940)---

----Ss. 30, 33 & 39---Arbitration---Objections against award---Legal advice, non-compliance of---Appellant/National Highway Authority was aggrieved of dismissal of its objections by Trial Court against award which was made rule of the Court---Validity---Appellant/Authority had legal experts rendering opinions and memoranda on probability of success of a challenge to a claim or to an award---Members of appellant/Authority should have recorded in their minutes of meetings as to why they chose to differ from legal advice if it recommended accepting the award without further contest---Such accountability would become all the more important where award had stipulated ongoing late payment charges that kept on accumulating until those were paid---Appellant/Authority had made matters worse for itself by frivolous contests to the awards for years to come---If appellant/ Authority had paid the award on time, it would not have incurred 3% above the discount rate of State Bank of Pakistan accumulating to a substantial sum---There was no accountability of appellant/Authority on such score, which had caused needless misery for the contractors, apart from being a drain on appellant's/Authority's finances---In any private organization, Board of Directors could have been fired for ignoring legal advice against contest to an award if such advice was given, and not obtaining such advice was itself a negligent act, for the directors were meant to act on expert legal advice and not pretend to be legal experts themselves where their ignorance could translate into tens of millions of rupees of public money being paid out as late payment charges---Such act of appellant/Authority had burdened Courts with disputes that should never have reached the Courts in the first place---High Court declined to interfere in order of Trial Court making award rule of the Court and imposed costs upon appellant/Authority---Appeal was dismissed, in circumstances.

Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108; Oil and Gas Development Company Limited v. Messrs Marathon Construction Company and another 2013 CLD 1483; Mian Corporation v. Messrs Lever Brothers of Pakistan Limited PLD 2006 SC 169; Lahore Development Authority v. Khalid Javed Co. 1983 SCMR 718 and Defence Housing Authority, Islamabad v. Multi-National Venture Development Private Limited 2019 CLD 566 ref.

Muhammad Hassan Alam for Appellant.

Babbar Ali Khan and Jawad ur Rahim Malik for Respondents.

P L D 2024 Islamabad 28

Before Miangul Hassan Aurangzeb, J

SHANDANA GULZAR KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Election Commission of Pakistan and 2 others---Respondents

Writ Petition No. 4179 of 2022, decided on 17th April, 2023.

Elections Act (XXXIII of 2017)---

----S. 104---Constitution of Pakistan, Arts. 63, 64 & 224---Election Rules, 2017, R. 56---List of seats reserved for women submitted by a political party---Change or alteration of list---Election Commission, powers of---Rejection of nomination papers---Powers of the Returning Officer---Scope---Petitioner was one of the seven women members of the National Assembly from the Province of KPK belonging to Pakistan Tehrik-i-Insaf ('PTI') (political party)---Petitioner submitted her resignation when in April 2022, 123 members of the National Assembly belonging to PTI had tendered their resignations, and consequently their seats had become vacant---Resignations were accepted en masse but piecemeal by the Speaker---Although all said seven women members had resigned, the Speaker just accepted the petitioner's resignation---Subsequently the Election Commission of Pakistan ('ECP') issued a schedule for election for the one vacant seat reserved for women in the National Assembly from the province of KPK---In the list of candidates submitted by PTI to the ECP, the petitioner's name was mentioned at Serial number 1; after the nomination papers were accepted by the Returning Oficer, her name was included in the list of candidates issued by him---However ECP did not notify the petitioner as an MNA, and instead issued notice to her to determine her eligibility/candidature for the seat which had fallen vacant due to her own resignation---Petitioner challenged order of the ECP holding that PTI could not, "in garb of fresh list", bring her (name) from Serial No.4 in the earlier list submitted in 2018 to Serial No.1 in the new list submitted in 2022---Validity---Article 224(6) of the Constitution stipulated that when a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly fell vacant on account of death, resignation or disqualification of a member, it would be filled by the next person in order of precedence from the party list of the candidates to be submitted to the ECP by the political party whose member had vacated such seat, provided that if at any time the party list was exhausted, the concerned political party might submit a name for any vacancy which might occur thereafter; S. 104(4) and (5) of the Elections Act, 2017 conved the same legislative intent as the one behind Art. 224(6) of the Constitution---Record revealed that the ECP, in the present case, did not issue a notification declaring the petitioner as a returned candidate---Instead, it issued notice for a hearing to the petitioner and passed an order rejecting the petitioner's nomination papers and holding that the re-submission of the petitioner's name did not appear to be appropriate and justified in the eyes of the law---In arriving at said conclusion, the ECP interpreted S. 104(4) of the 2017 Act such that where a seat reserved for women in the National Assembly was vacated as a result of death, resignation or disqualification of a member, that member could not contest in the bye-election to such seat---Resignation of a member of a legislature, admittedly, did not entail disqualification in terms of Art. 63 of the Constitution from being re-elected, whether in a bye-election or in the next general elections---Through the impugned order, the ECP had rejected the petitioner's nomination papers after they had been duly accepted by the Returning Officer, however, the ECP could not point out any provision of the Act 2017 which empowered the ECP to reject nomination papers of a candidate after they had been accepted by the Returning Officer---Power to reject nomination papers was that of the Returning Officer during the process of scrutiny of the nomination papers which is provided in S. 62(9) of the 2017 Act---Said section enumerated the eventualities and grounds on which the Returning Officer (not the ECP) might reject the nomination papers of a candidate and resignation from a seat in the legislature was not one of the enumerated grounds on which the nomination papers of a candidate could be rejected---Only those people could be debarred from contesting elections to the legislature who were either disqualified in terms of Art. 63 of the Constitution or were not qualified under Art. 62---A disability from being a candidate in an election had to be explicitly provided by law---Such a disability could not be implied by adoption of unorthodox tools of statutory interpretation---Indeed the proviso to S. 104(1) of the Act, 2017 provided that the list submitted by a political party would not be subject to change or alteration either in the order of priority or through addition of new names in the list or omission of any name after expiry of the date of submission of nomination papers---In the present case, the list submitted by PTI during the election process in 2018 had mentioned the petitioner's name at Serial No.4 and the said list, un-disputably ,stood exhausted in 2018 when seven women members belonging to PTI were declared as members of National Assembly against seats reserved for women from the Province of KPK---After the exhaustion of the said list, if a bye-election was to be held due to the death, or disqualification or resignation of any member who had earlier been elected, PTI would perforce have to submit a new list---Where the list submitted by a political party was exhausted (as was the case when all candidates in the list submitted by PTI during the election process in 2018 were declared elected), S. 104(4) of the Act, 2017 permitted a political party to submit a name for filling a vacancy which might occur after the exhaustion of the earlier list---Names of women candidates in the new list and the order of their priority were to be of a political party's choosing, provided the candidates were qualified under Art. 62 and not disqualified under Art. 63 of the Constitution from contesting election---Election Commissin of Pakistan did not have the power to insist that a candidate who was at certain Serial number in the earlier exhausted list had to be at the same Serial number in the new list---Section 104(4) did not, in any manner, obligate a political party to submit a new list of candidates in the same order of priority as in the list submitted during the process of general elections---There was no provision in the 2017 Act or the Rules made thereunder that obligated a political party to retain the same preference or priority in the new list which was submitted after the exhaustion of the earlier list---Proviso to S. 104(1) of the Act 2017, actually, prohibited a political party to alter the list or the order of priority of candidates in the list after the submission of the nomination papers---Admittedly, during the election process in 2018 or in the election process to the single seat reserved for women from the Province of KPK in the National Assembly conducted in 2022, the lists submitted by PTI were not altered in any manner after the same were submitted to the ECP---High Court observed that no provision of law supported the ECP to hold that PTI could not "in garb of fresh list" have brought the petitioner from Serial No.4 in the earlier list submitted in 2018 to Serial No.1 in the new list submitted in 2022---High Court set-aside the impugned order passed by the ECP and declared that the ECP did not have jurisdiction to reject the petitioner's nomination papers after the same had been accepted by the Returning Officer and her name was mentioned in the list of candidates published pursuant to R. 56(1) of the Election Rules, 2017---High Court also declared that the petitioner was entitled to be notified as a returned candidate against the single seat reserved for women from the Province of KPK in the National Assembly, therefore, the ECP was directed to forthwith notify the petitioner as a returned candidate against the single seat reserved for women from the Province of KPK in the National Assembly---Constitutional petition was allowed, in circumstances.

Mirza Tahir Beg v. Syed Kausar Ali Shah PLD 1976 SC 504; Muhammad Salman v. Naveed Anjum 2021 SCMR 1675; Muhammad Afzal Munsif v. Iftikhar Ahmad PLD 1984 Kar. 76 and Muhammad Mujtaba Abdullah v. Appellate Authority 2016 SCMR 893 ref.

Barrister Atif Rahim Burki along with petitioner in-person.

Barrister Gohar Ali Khan for Respondent No.4.

Ms. Bushra Rasheed, Senior Law Officer and Zaigham Anees, Law Officer, E.C.P.

P L D 2024 Islamabad 41

Before Aamer Farooq, C.J.

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

The STATE through Attorney General Office, Islamabad and another---Respondents

Diary No. 18047 of 2023, decided on 26th October, 2023.

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

----Ss. 241-A & 265-C---Supply of documents---Signatures of accused on Order Sheet---Object, purpose and scope---Purpose of law is that copies of documents appended with report under S. 173, Cr.P.C. are to be provided so that accused knows case against him---Acknowledgment, by way of signatures on the order sheet, is only a proof that compliance was made of S. 265-C, or 241-A, Cr.P.C.

Muhammad Azam v. The State 1987 PCr.LJ 1534 rel.

(b) Official Secrets Act (XIX of 1923)---

----Ss.5 & 9---Constitution of Pakistan, Art. 10-A---Criminal Procedure Code (V of 1898), Ss. 241-A & 439---Wrongful communication, etc., of information and incitements---Fair trial and due process of law---Supply of statements and documents to accused---Principle---Accused was aggrieved of non-supply of copy of cypher which he asserted to be a fundamental document of the prosecution case against him---Validity---It is right of an accused to receive copies of all statements made under Ss. 161 & 164, Cr.P.C. and inspection notes recorded by investigating officer and other documents---Such right is not absolute and is subject to proviso that where disclosure of any information is inexpedient in public interest, such part of statement can be excluded from copy of statement furnished to accused---All documents, which were part of report under S. 173, Cr.P.C. were supplied to accused---If any document was not part of challan/report under S. 173, Cr.P.C., which according to accused, was a fundamental document, the effect thereof would be examined by Trial Court subsequently---Accused could also request for summoning of a particular document, if he felt that such document was a fundamental document---High Court directed Trial Court to ensure due compliance of Art. 10-A of the Constitution and declined to interfere in the matter---Revision was dismissed in circumstances.

Sikandar Ali Lashari v. The State and another 2016 YLR 62; The State v. Chaudhry Muhammad Usman 2023 SCMR 1676 and Hussain Naqi and 2 others v. Special Judge (Central), Lahore and another 1986 MLD 1107 ref.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Ghulam Muhammad v. Malik Abdul Qadir Khan PLD 1983 SC 68; Chiragh Din v. Mumtaz Ali and another 2008 PCr.LJ 126; Reg. v. Pestanji Dinsha and another (1873) 10 Bom. H.C.R. 75; Tahir Zahoor Ahmad and others v. The State and others 2022 MLD 523; The State v. Chaudhry Muhammad Usman 2023 SCMR 1676 and Imran Ahmad Khan Niazi v. District Election Commissioner (Crl. Rev. No.108 of 2023) rel.

(c) Constitution of Pakistan---

----Art. 10-A---Criminal trial---Short adjournments---Effect---Grant of short adjournments or proceedings of trial on day-to-day basis does not mean denying dictates of Art. 10-A of the Constitution per se, as long as every right of accused remains intact and every objection is dealt with in accordance with law.

P L D 2024 Islamabad 53

Before Miangul Hassan Aurangzeb, J

Dr. AZIZ UR REHMAN and others---Petitioners

Versus

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

Writ Petitions Nos. 3916, 4077, 4371 and 4543 of 2022, decided on 9th December, 2022.

(a) Interpretation of statutes---

----Mandatory provision---Scope---Whenever intent of a statute is mandatory, it is clothed with a negative command.

Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Saadat Khiyali v. City Coordination Officer PLD 2005 Lah. 190 and National Institutional Facilitation Technologies (Pvt.) Limited v. Federal Board of Revenue and others PLD 2020 Isl. 378 rel.

(b) Public functionary---

----Public functionary, obligations of---Compliance of directions---Principle---Politicians are not expected to be well-versed with niceties of law---Corresponding obligation is placed on civil servants/public functionaries to make requirements of law well known to politicians, more so when compliance with a direction issued by a Prime Minister would entail violation of the law.

(c) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 12 & 17 (6)---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Ss.2(2) & 9---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Abdication of powers---Maladministration---Inquiry, initiation of---Proceedings against delinquent officials---No penalty was imposed by authorities under Pakistan Environmental Protection Act, 1997, against officials of Capital Development Authority who commenced the project prior to approval of Environment Impact Assessment---Effect---Abdication of powers by Pakistan Environmental Protection Agency by not submitting any complaint against delinquent officials of CDA and/or the contractor to Environment Tribunal could not operate as a fetter on the Constitutional jurisdiction of High Court in taking notice of such contravention---Maladministration, under S. 2(2) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, included a decision, process, recommendation, act of omission or commission which was contrary to law, rules or regulations or was a departure from established practice or procedure, unless it was bona fide---Continuation of construction activity by CDA and/or the contractor without having obtained an approval of the EIA was a clear violation of S. 12 of Pakistan Environmental Protection Act, 1997---Construction activity continued despite issuance of show cause notice by Pakistan Environmental Protection Agency (PEPA); the continuation of such activity could not be termed as bona fide---PEPA had adequately put CDA to notice that the continuation of construction activity was a contravention of S. 12 of Pakistan Environmental Protection Act,1997---Wafaqi Mohtasib was empowered under S. 9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, to undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees on a motion of High Court made during the course of any proceedings before it---"Agency" was defined in S. 2(1) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which included a statutory body like CDA---High Court instead of shutting it's eyes to such brazen violation by CDA of the mandatory requirements of S. 12 of Pakistan Environmental Protection Act, 1997, referred such maladministration committed by the officials of CDA to Wafaqi Mohtasib for investigation and proceeding in accordance with the law.

(d) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 17 (6)---Compounding of offence---Procedure---Authority may compound an offence under Pakistan Environmental Protection Act, 1997 with the permission of Environmental Tribunal or Environmental Magistrate---Such power can only be exercised on application of accused for compounding the offence.

(e) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss.12 & 22 (1)---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Regln. 10---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability--- Alternate and efficacious remedy---Relief, grant of---Principle---Petitioners were members of teaching faculty of Quaid-e-Azam University and were aggrieved of construction of road---Contention of petitioners was that such construction was an environmental hazard for the University and its students studying there---Validity---Exercise of jurisdiction under Art. 199 of the Constitution is purely discretionary---Seldom can a petitioner ask for it as of right---Writs are not issued as a matter of course---While deciding Constitutional petition, High Court can see which way justice lies---High Court is not obliged or bound to interfere in constitutional jurisdiction in every case where order of authorities may be unlawful---In equitable jurisdiction, it is the duty of High Court to preserve public good---High Court, in its discretionary jurisdiction, only exercises judicial discretion in favour of or against authorities according to facts and circumstances of each case---Right to education of students at the University was not restricted or curtailed by construction of road in question---High Court declined to exercise its discretionary jurisdiction in stopping the construction activity---Public hearing pursuant to Regulation 10 of Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, was conducted by PEPA, and such hearing was also attended by petitioners, who were members of the teaching faculty in Quaid-e-Azam University---After public hearing, PEPA issued approval of EIA report submitted by CDA on road in question---Against such approval, petitioners could prefer an appeal under S. 22(1) of Pakistan Environmental Protection Act, 1997, to Environmental Tribunal---Due to availability of alternative remedy provided by law Constitutional petition was not maintainable---Constitutional petition was dismissed, in circumstances.

Prof. Zahid Baig Mirza v. The C.D.A. PLD 2022 Isl. 398; Raja Zahoor Ahmed v. C.D.A. 2022 SCMR 1411; Murree Brewery Co. Ltd. v. Pakistan PLD 1971 SC 279; Federal Government Employees Housing Foundation v. Ednan Syed PLD 2022 Isl. 273; Shahzada Sikandar ul Mulk v. C.D.A. PLD 2019 Isl. 365; Park View Enclave (Pvt.) Ltd. v. C.D.A. 2018 CLC 947; Imrana Tiwana v. Lahore Development Authority PLD 2015 Lah. 522; Muhammad Shahid v. Punjab Environmental Tribunal PLD 2018 Lah. 356; Sumaira Awan v. Government of Pakistan 2008 CLD 1185; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Province of Punjab v. Muhammad Afzal 2004 SCMR 49; Muhammad Akhtar Shirani v. Punjab Text Book Board 2004 SCMR 1077; PLD 2005 SC 873 (Reference No.2 of 2005 by the President of Pakistan); Secretary, Education, N.-W.F.P v. Mustamir Khan 2005 SCMR 17; Muhammad Akram v. Member, Board of Revenue 2007 SCMR 289; Human Rights Cases Nos. 4668 of 2006, 1111 of 2017 and 15283-G of 2010 PLD 2010 SC 759; Government of Pakistan v. Farheen Rashid 2011 SCMR 1; Watan Party v. Federation of Pakistan PLD 2011 SC 997; Yaqoob Shah v. XEN PESCO PLD 2002 SC 667; Ramesh M. Udeshi v. The State 2005 SCMR 648; Ghulam Sakina v. Member Board of Revenue PLD 2004 Kar. 391; Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739; Zeenat Salim v. Pakistan Naval Farms PLD 2022 Isl. 138; Suo Motu case No.25/2009 (In the matter of cutting of trees for canal widening project, Lahore) 2011 SCMR 1743; Lahore Conservation Society v. Chief Minister of Punjab PLD 2011 Lah. 344; Muhammad Khan v. Federation of Pakistan 2012 CLC 101 and Muhammad Jahangir v. Government of Punjab 2000 MLD 1196 ref.

Petitioners by:

Kashif Ali Malik, Qaiser Abbas Gondal, Umair Khan and Hisaan Khalil Noon in the instant petition.

Aziz ul Haq Nishtar (in W.P. No. 4077 of 2022).

Barrister Atif Rahim Barki and Abdul Manan (in W.P. No.4371 of 2022).

Muhammad Munir Paracha and Noman Munir Paracha for Q.A.U. (in W.P. No. 4543 of 2022).

Respondents by:

Munawar Iqbal Duggal, Additional Attorney-General, Syed Ahsan Raza Kazmi, Mian Faisal Irfan, Deputy Attorneys-General, and Azmat Bashir Tarar, Assistant Attorney-General.

Muhammad Munir Paracha and Noman Munir Paracha for Q.A.U., Dr. Raja Qaiser Ahmed, Registrar and Engr. Bakht Rehman, Dir. (Works) and Sami Ullah Khan, Assistant Registrar Q.A.U.

Hafiz Arfat Ahmed Ch., Muhammad Nazir Jawad, Kashifa Niaz Awan, Muhammad Asim Bhatti, Tariq Zaman, Ch. Muhammad Farooq, Miuh Aftab Shah and Auf Rehman Khan for the C.D.A.

Jalil Akhtar Abbasi, Waseem Uddin, Muhammad Furqan Shabbir, Shabbir Mehmood Abbasi and Asad Iqbal for Respondents Nos.10 to 17 (in W.P. No. 3916 of 2022).

Muhammad Ramzan, A.D. Pak. E.P.A.

Dr. Agha Ghulam Haider, Deputy Director Ministry of F.E.& P.T.

P L D 2024 Islamabad 87

Before Aamer Farooq, C.J.

IMRAN AHMAD KHAN NIAZI---Petitioner

versus

The STATE through Advocate General, Islamabad and another---Respondents

Criminal Miscellaneous No. 1354-B and Writ Petition No.2448 of 2023, decided on 27th October, 2023.

(a) Official Secrets Act (XIX of 1923)---

----S.5---Word "or" used in S.5 of Official Secrets Act, 1923---Scope---Its applicability is disjunctive inasmuch as there is ample use of the word 'or', which breaks the sentence or offence as provided in S. 5 of Official Secrets Act, 1923.

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

----S. 497---Official Secrets Act (XIX of 1923), Ss. 5 & 9---Wrongful communication, etc., of information---Bail, refusal of---Cypher contents made public---Petitioner/accused was ex-Prime Minister who was arrested for making public the contents of Cypher transmitted by Pakistani diplomat from a foreign country in coded form---Validity---Provision of S. 5 of Official Secrets Act, 1923, was attracted as Cypher, in its decoded form, was transmitted by Ministry of Foreign Affairs to Prime Minister's Secretariat and was duly received by Prime Minister (petitioner/accused) and he apparently lost that document---Petitioner/accused twisted contents of the Cypher for his political benefits and had also made contents thereof public---Petitioner/accused was not authorized to do so as per S. 5 of Official Secrets Act, 1923---Petitioner/accused received contents/information contained in Cypher by virtue of his position as the then Prime Minister of the country---Communication of the Cypher with public at large in a political speech on 27-03-2022 tantamounted to divulging contents thereof to the public, which they were not authorized to receive, as the same were secret and classified---Such act of petitioner/accused fell under S. 5(1)(a) of Official Secrets Act, 1923---Bail was refused, in circumstances.

Pakistan Peoples Party Parliamentarian (PPP) through its Secretary General and 4 others v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 4 others PLD 2022 SC 574; Zahid Malik v. The State 1990 PCr.LJ 1310; Sahib Ullah v. State through A.G. Khyber Pakhtunkhawa and another 2022 SCMR 1806; Imran Ahmad Khan Niazi v. The State and others (Criminal M.A. No.641 of 2023 in Criminal Petition No.519 of 2023); Saeed Ahmed v. The State 1996 SCMR 1132; Hussain Lawai v. State 2022 MLD 405; Khawaja Salman Rafique v. National Accountability Bureau PLD 2020 SC 456; Brig. (R) Imtiaz Ahmed v. The State 1996 PCr.LJ 1287; Akram Awan v. The State 2001 YLR 1329; Naveed Ahmed Khan v. The State 2011 MLD 521; Talat Mehmood v. The State 2013 PCr.LJ 386; The Field General Court Martial through President, Azad Jammu and Kashmir v. Khani Zaman 2019 YLR 1812; Hussain Naqvi v. The State PLD 1989 Lah. 810; Shahnaz Begum v. The Hon'ble Judges of High Court of Sindh and Baluchistan PLD 1971 SC 677 and Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro 2010 SCMR 624 distinguished.

Brig. (R) Imtiaz Ahmed v. The State 1996 PCr.LJ 1287; Kulbhushan Parasher v. State 2007 Cri.LJ 3601; State v. Vipin Kumar Jaggi 1975 Cri.LJ 846; Kutbuddin and others v. State of Rajasthan AIR 1967 Raj. 257; Nishant Pradeep Kumar Aggarwal v. State, The State v. Captain Jagjit Singh AIR 1962 SC 253; Ranjit Singh v. Nand Lal 1975 Cri.LJ 1416; Mukesh Saini v. State, Nirmal Puri v. Central Bureau of Investigation 39 1989 DLT 476; Abdul Kabeer v. The State PLD 1990 SC 823; Junaid Maseeh v. The State 2022 PCr.LJ 1331; Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892; Muhammad Shahbaz Shabeer v. Additional Sessions Judge and 5 others 2023 PCr.LJ 810; Hilal Khattak v. The State 2023 SCMR 1182; Shehzad Ahmed v. The State 2010 SCMR 1221; The State v. Aleem Haider 2015 SCMR 133 and Pakistan Peoples Party Parliamentarian (PPP) through its Secretary General and 4 others v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 4 others PLD 2022 SC 574 rel.

(c) Rules of Business, 1973---

----R. 5(15)---Secretariat Instructions, 2004, Clause 61---Booklet Security of Classified Matter in Government Departments, Chapters 4, 5 & 8---Cypher---Security classification---Scope---Cabinet Secretariat had formulated 'Security of Classified Matter in Government Departments'---Provision of Chapter-4 of Security of Classified Matter in Government Departments dealt with classification of official matters and accountability---According to clause 4.2, of Security of Classified Matter in Government Departments, four types of classification was made i.e. (1) Top Secret (2) Secret (3) Confidential (4) Restricted---Classification was accorded under clause 4.15 of Security of Classified Matter in Government Departments, to a document by Head of the Department---Classified matter was only to be brought on 'need to know' principle as per chapter 5.1 of Security of Classified Matter in Government Departments---Cypher security was dealt with Chapter 8 of Security of Classified Matter in Government Departments, which provided in general, how Cypher operated---All messages under clause 8.10 of Security of Classified Matter in Government Departments were supposed to be sent in Cypher and should be clearly marked with appropriate security classification to ensure that such messages were not transmitted except in Cypher.

(d) Official Secrets Act (XIX of 1923)---

----Ss. 5 & 9--- Constitution of Pakistan, Art. 199---Procedure For Issue, Circulation and Storage of Classified Messages Received and Issued In Cypher by Ministry of Foreign Affairs---Constitutional petition---Quashing of FIR---Scope---Wrongful communication etc. of information---Cypher contents made public---Petitioner/accused was ex-Prime Minister who was arrested for making public the contents of Cypher transmitted by Pakistani diplomate from a foreign country in coded form---Petitioner/accused sought quashing of FIR---Validity---Cypher was a document received by petitioner/accused from Ministry of Foreign Affairs---Dealing of such like documents was provided in 'Procedure For Issue, Circulation and Storage of Classified Messages Received and Issued In Cypher' (Guidelines formulated by Ministry of Foreign Affairs)---Cypher was a classified document and it was not to fall in hands of any unauthorized persons---Movement of Cypher telegram was to be properly recorded by the officer concerned or by the Crypto Centre---After the document had been sent to restricted hands, it was supposed to be brought back and all copies were to be destroyed and only one copy was maintained---Cypher in question was received as a 'classified document' meant only for certain restricted personnel and not to fall in hands of unauthorized persons and after some time, reverted back to the originator i.e. Ministry of Foreign Affairs---'Classified document' could not be made public or dealt with other-wise than for the purpose, for which, it was meant for---Any breach thereof tantamounted to attraction of S. 5 of Official Secrets Act, 1923---High Court declined to interfere in the trial of offence against petitioner/accused---Constitutional petition was dismissed, in circumstances.

D.G. Anti-Corruption v. Muhammad Ikram Khan PLD 2013 SC 401; Federal Investigation Agency v. Syed Hamid Ali Shah PLD 2023 SC 265; Junaid Maseeh v. The State 2022 PCr.LJ 133; Naeem Abbas v. D.G. FIA 2015 PCr.LJ 1592 and Syed Nayab Hussain Sherazi v. SHO Sabzazar, Lahore 2018 P Cr.LJ 656 rel.

(e) Constitution of Pakistan---

----Art. 248 (2)---Immunity from criminal prosecution---Principle---Immunity under Art. 248 of the Constitution from criminal proceedings is restricted to President and Governor and that too, only during term of office.

(f) Official Secrets Act (XIX of 1923)---

----S. 13 (3)---Cognizance of offence---Principle---If complaint is made by authorized officer of 'appropriate government, which was the Federal Government in the instant case, only then Court has to take cognizance in the matter---If a complaint is made which results in registration of FIR, pursuant to complaint by any person other than persons provided in S. 13(3) of Official Secrets Act, 1923 and offence is made out, that would not be cognizable but only cognizable where government officer, duly authorized, has brought complaint to the Investigating Agency.

Sardar Latif Khan Khosa, Barrister Salman Safdar, Abu Zar Salman Khan Niazi, Niaz Ullah Khan Niazi, Umair Khan Niazi, Syed Muhammad Ali Bukhari, M. Shoaib Shaheen, Naeem Haider Panjutha, Syed Mahmood-ul-Hassan Gillani, Malik Nasim Abbas Nasir, Intizar Hussain Panjutha, Ch. Khalid Yousaf, Sheraz Ahmad Ranjah, Ms. Shaheena Shahab-ud-Din, Zahid Bashir Dar, Mirza Asim Baig, Shoaib Ilyas, Rai Ashfaq Ahmed Kharal and Raja Haroon-ur-Rashid, Advocate for Petitioner.

Raja Rizwan Abbasi and Shah Khawar, Special Public Prosecutors for FIA with Mian Sabir Hussain, AD/IO and Khushnood Ahmed, DD (Legal), FIA for Respondents.

P L D 2024 Islamabad 109

Before Saman Rafat Imtiaz, J

MUHAMMAD SHAHZAD through Special Attorney---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Interior and another---Respondents

Writ Petition No. 1314 of 2023, decided on 26th October, 2023.

(a) Emigration Ordinance (XVIII of 1979)---

----S. 17---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), S. 3---Unlawful emigration and human trafficking---Distinction---Two offences, i.e., "unlawful emigration" and "human trafficking" cannot be equated---Former entails unlawful departure or rendering assistance to another for unlawful departure from Pakistan for the purpose of engaging in employment or any trade or profession whereas the latter involves conducting trade of human beings or entering into other such transactions for exploitative purposes.

(b) Emigration Ordinance (XVIII of 1979)---

----Ss. 17 & 22---Passports Act (XX of 1974), S. 8---Passports Rules, 2021, R. 18 (3)(a)---Constitution of Pakistan, Art.199---Constitutional petition---Blacklisting---Renewal of passport, denial of---Right of proclaimed offender---Petitioner was an overseas Pakistani who had been declared proclaimed offender and authorities refused to renew his passport---Validity---Case of petitioner was not of mere pendency of criminal cases against him---Fugitive from law and courts loses some of the normal rights granted by procedural and also substantive law---Proceedings under Ss. 87 & 88, Cr.P.C. were initiated and he was declared as proclaimed offender---Petitioner could appear to face charges before Courts in Pakistan without a valid travel document---Petitioner did not indicate any desire to return to Pakistan to face criminal charges pending against him or for any other reason---He was seeking renewal of his Pakistani passport for the purpose of renewing his Resident Identity Card in the U.A.E. and his company's license there---Emergency Travel Documents (ETD) under R. 18(3)(a) of Passports Rules, 2021 could be issued to a person not in possession of a valid document who was required to return to Pakistan in an emergency---Provision of R. 18(3)(b) of Passports Rules, 2021, was not attracted to the extent that petitioner's passport had not been confiscated, impounded, or cancelled by Federal Government under the powers conferred by way of S. 8 of Passports Act, 1974---Petitioner fell under the category of a person whose passport was rendered inactive on account of its expiry as inactivation was not required to be carried out by order of Federal Government under S. 8 of Passports Act, 1974---If petitioner wished to return to Pakistan to surrender before Courts, he could apply to Pakistani mission abroad who would consider his application in accordance with R. 18 of Passports Rules, 2021---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Faisal Maqbool Shaikh v. Federation of Pakistan through Secretary Interior, Ministry of Interior Islamabad and 2 others, Writ Petition No.2141 of 2023; Sheikh Shah Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others PLD 2023 Lah. 359; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 and Muhammad Haseeb Fatani v. Federation of Pakistan 2021 CLD 951 ref.

Ch. Muhammad Zafar Iqbal Zafar for Petitioner.

P L D 2024 Islamabad 122

Before Arbab Muhammad Tahir, J

NADEEM UL ZAFAR KHAN---Appellant

Versus

RETURNING OFFICER, NA-47 and another---Respondents

Election Appeals Nos. 50 and 51 of 2024, decided on 10th January, 2024.

Elections Act (XXXIII of 2017)---

----S. 63---Transgender Persons (Protection of Rights) Act (XIII of 2018), Ss. 2(1)(f) & 3---Constitution of Pakistan, Art. 51---Election dispute---Transgender---Right to contest election---Appellant was aggrieved of acceptance of nomination papers of respondent who was a transgender---Validity--- In dynamic landscape of democratic societies, principles of equality, justice and rule of law stand as the bedrock upon which inclusive governance is built---Within such framework, issue of transgender individuals' right to contest elections emerges as a crucial facet of ongoing pursuit of a more representative and equitable democracy---Nation's development and prosperity rests on upliftment of society in general and individuals in particular---Society can have socio-economic upliftment if all sections of the society are part of upliftment in the society---Discrimination, marginalization, and stigmatization are attached to lives of most persons living as transgender in Pakistan---Especially in developing countries, socially excluded communities are more vulnerable---Transgender community is one of the finest examples of such a group that remains lesser in the eyes of the law and is left behind in mainstream activities---Though visibility of transgender people is increasing in daily life, they are still discriminated against, disrespected, and downtrodden---One of the main challenges faced by transgender people is how to live a normal life in a society that maintains rigid gender norms and beliefs---In a society dominated by two prominent genders, representation of transgender persons at local, provincial and national levels is crucial---Provision of Art. 51 of the Constitution provides that every citizen of Pakistan having attained the age of eighteen years, if his name appears on electoral roll, is entitled to vote, unless declared by a Court to be of unsound mind---Constitution and the law focus on the expression "citizen" so as to exercise right of vote and to be elected to hold public office---Provisions of the Constitution and law to the extent of General Seats of the National Assembly are gender neutral---Individuals of transgender community are constitutionally and legally qualified to contest elections---Appeal preferred against Federal Shariat Court's judgment concerning Transgender Persons (Protection of Rights) Act, 2018, remained suspended by operation of Constitutional provision i.e. Art. 203D of the Constitution---High Court declined to interfere in the matter as the appellant was not a registered voter of the constituencies - NA 46 & NA 47, and had not filed objections at the time of scrutiny before concerned Returning Officer---Appeal was dismissed, in circumstances.

Civil Shariat Appeal No. 3 of 2023; Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others PLD 2003 SC 475; Mian Asia v. Federation of Pakistan through Secretary Finance and 2 others PLD 2018 Lah. 54; Hafiz Hamdullah Saboor v. Government of Pakistan through its Secretary Ministry of Interior and others PLD 2021 Isl. 302; Muhammad Aslam Khaki and others v. S.S.P. (Operations) Rawalpindi and others PLD 2013 SC 188; Anjali Guru Sanjana Jaan v. The State of Maharashtra and others Writ Petition (Stamp) No.104 of 2021; Hammad Hussain v. Federation of Pakistan and others PLD 2023 FSC 301; Nayab Ali v. Federation of Pakistan and others W.P. No. 55208 of 2023; Sunil Babu Pant, Executive Director of Blue Diamond Society v. Nepal Government, Office of the Prime Minister and Council of Ministers, Writ No.917 of 2006; National Legal Services Authority (NALSA) v. Union of India AIR 2014 SC 1863; Farhatullah Babar and another v. Hammad Hussain and others Civil Shariat Appeals Nos. 2 and 3 of 2023 and Clemente Martinez Perez v. Herbert Brownell, Jr., Attorney General of the United States of America 356 U.S. 44 (1958) rel.

Usman Zakir Abbasi and Nukhba Mumtaz Qazi for Appellant.

Muhammad Shahryar Butt and Syed Muhammad Ali Asghar for Respondent No.2.

Saman Mamoon, Legal Advisor and Zaigham Anees, Law Officer for ECP.

Barrister Sardar Taimoor Aslam Khan and Zainab Janjua, Amici Curiae.

Naveed Ahmed, Law Officer, Ubaid Ur Rehman and Law Officer, Nadeem Asghar, Law Officer for NADRA.

Assisted by Aneesa Noureen, Law Clerk and Sajjad Ali, Law Clerk.

P L D 2024 Islamabad 135

Before Babar Sattar, J

SHOUKAT ALI---Petitioner

Versus

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

Writ Petition No. 2225 of 2022, decided on 2nd May, 2023.

(a) Constitution of Pakistan---

----Art. 19---Freedom of speech---Right to dissent---Criticism of State and its policies---National security predicament---Rationale for free speech is at least threefold---One, human beings have agency and can distinguish between truth and falsehood---Two, in a marketplace of ideas where all sorts of desirable and undesirable ideas are available, truth eventually drives out falsity---Three, the standards for enforcing fundamental rights to equality, dignity and liberty evolve over time---As dissenters challenge existing ideas, social consciousness grows, the condition of human existence and rights improve and society progresses---It is in society's collective interest that right to dissent be upheld, even though critical ideas might seem unpalatable---It is in the State's own interest to tolerate ideas critical of it---Criticism of the State and its policies is a natural outcome of democratic system of governance and does not produce a national security predicament---National security is a meaningful concept and must not be bandied about in a trivial manner or used as a prop to defeat fundamental rights of citizens, including the right to free speech and information---Security of the State must not be projected by the State itself to be so fragile that critical speech or a level-playing field for the media would shake its foundation---Disagreeable or critical speech does not fall within the category of speech that is unprotected under Art. 19 of the Constitution---Right to freedom of speech as guaranteed by Art. 19 of the Constitution is not unconditional---Constitution itself carves out categories of speech that are illegal and unprotected.

Abrams v. US (250 U.S. 616 (1919)); East and West Steamship Company v. Federation of Pakistan PLD 1958 SC 41; Pakistan Muslim League v. Federation of Pakistan PLD 2007 SC 642 and All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others 2012 CLC 714 rel.

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

----Ss. 19, 22 & 25---License, issuance of---Eligibility criteria---Determination---Role of intelligence agencies---It is for Pakistan Electronic Media Regulatory Authority (PEMRA) and PEMRA alone to consider eligibility of an applicant within the criteria prescribed by and/or under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 or disqualification of such applicant for purposes of S. 25 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Such exercise of public authority cannot be outsourced to Federal Government or Inter Service Intelligence, the Intelligence Bureau or any other intelligence agency or instrumentality of Federal Government---PEMRA does not have the authority to fetter its discretion in applying the criteria for grant of licenses prescribed by or under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and render the exercise of its statutory authority contingent upon grant of prior approval from Federal Government or an intelligence agency---No role for intelligence or security agencies has been contemplated under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 in grant or revocation of licenses---Carving out such role through exercise of delegated legislative powers is a fraud on the statute and inimical to the right of freedom of speech and information guaranteed by the Constitution.

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

----S. 5---Federal Government, role of---Scope---Federal Government can only issue policy directions to Pakistan Electronic Media Regulatory Authority (PEMRA) within the meaning of S. 5 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and not otherwise usurp the statutory and regulatory authority vested in PEMRA to issue licenses and regulate licensees, under the garb of issuance of security clearance or withdrawal of security clearance or otherwise.

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

----Ss. 19, 22, 25 & 33A---Pakistan Electronic Media Regulatory Authority Rules, 2009 R. 9(5)---Constitution of Pakistan, Arts. 18 & 19---Broadcasting license, issuance of---Federal Government and intelligence agencies, role of---Rule 9(5) of Pakistan Electronic Media Regulatory Authority Rules, 2009, vires of---Petitioner company was aggrieved of refusal to issue it Satellite TV License on the ground of non-clearance of security---Validity---Right to freedom of business, trade and profession guaranteed by Art. 18 of the Constitution is subject to law but there exists no law that requires grant of a media or broadcast license subject to issuance of security clearance by security or intelligence agencies---Prohibition in S. 25 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, bars issuance of a license to an entity owned or controlled by a foreign government or organization---PEMRA can seek relevant information for purposes of determining eligibility or lack thereof of an applicant pursuant to S. 33A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Such practice was not in accordance with the intent and purpose of Pakistan Electronic Media Regulatory Authority Ordinance 2002, as reflected from its text---No subordinate legislation could be enacted so as to undermine exclusive right vested by the Legislature in PEMRA to grant and revoke licenses---High Court declared that requirement under R. 9(5) Pakistan Electronic Media Regulatory Authority Rules, 2009, to seek security clearance for an applicant prior to grant of license was ultra vires Ss. 19, 22 & 25 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---High Court directed PEMRA to decide application of petitioner, independently and in a reasoned manner---High Court directed Federal Government to take appropriate steps to amend provisions of Pakistan Electronic Media Regulatory Authority Rules, 2009 and PEMRA Eligibility Criteria Regulations, 2019, and any other rules and regulations framed under Pakistan Electronic Media Regulatory Authority Ordinance, 2002, to ensure that they did not impinge upon the exclusive power and obligation of PEMRA to evaluate eligibility of applicants to be granted licenses under Pakistan Electronic Media Regulatory Authority Ordinance, 2002, as well as the exclusive authority to take a decision for grant or revocation of licenses---Constitutional petition was allowed accordingly.

Independent Music Group SMC Private Limited and another v. Federation of Pakistan and others PLD 2011 SC 805; Independent Music Group, SMC Private Limited and another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2011 Kar. 494; Messrs Labbaik Private Limited through Authorized Officer v. Pakistan Electronic Media Regulatory Authority through Chairman and 2 others PLD 2017 Sindh 661; State v. Asfandyar Wali and 2 others 1982 SCMR 321 and Muhammad Hanif v. Islamic Republic of Pakistan, Islamabad and 5 others 2001 YLR 834 ref.

Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370; Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Independent Newspapers Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 2017 Lah. 289; F. Hoffmann La Roche and Co v. Secretary of State for Trade and Industry (1975) AC 295; Sunbiz Private Limited (7 News TV Pakistan) v. Federation of Pakistan 2018 YLR 1785; Muhammad Amin Muhammad Bashir v. Government of Pakistan 2015 SCMR 630; Aman Ullah Khan v. The Federal Government of Pakistan PLD 1990 SC 1092; Abid Hasan v. PIAC 2005 SCMR 25; Irfan Naseer Baig and another v. Province of Punjab 2011 PLC (C.S.) 1537; Imran Arif Ranjha v. Punjab Public Service Commission 2012 PLC (C.S.) 609; Muhammad Zubair v. National Command Authority 2018 PLC (C.S.) 519; Shamimah Sayeed v. Base Commander PAF PLD 2022 Sindh 186; Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Labbaik (Pvt.) Ltd. v. Federation of Pakistan 2016 CLC 575 rel.

Raja Rizwan Abbasi and Babar Manzoor for Petitioner.

Muhammad Usman Warraich, Assistant Attorney General for Respondents.

Mudassar Khalid Abbasi and Barrister Syed Ali Asghar for PEMRA.

Mazhar Yasin Khan Wattoo, Joint Secretary, Ministry of Interior, Islamabad.

Tahir Farooq and Mohsin Hameed Dogar, Representatives on behalf of PEMRA.

P L D 2024 Islamabad 155

Before Miangul Hassan Aurangzeb and Saman Rafat Imtiaz, JJ

IMRAN AHMAD KHAN NIAZI---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.A. No. 367 of 2023, decided on 19th December, 2023.

(a) Interpretation of statutes---

----Proviso---Object, purpose and scope---Proviso to a section is to be restrictively construed, which has an overriding effect and control over substantive provision of the section---Function of a proviso is to exclude and take out certain cases from the substantive provision to which it is a proviso.

Abid Hussain v. Additional District Judge, Alipur 2006 SCMR 100; Sabir Ali v. Khalil Ahmed Bajwa 2005 MLD 1127; Lubna Afzal v. Union Bank Limited 2003 CLD 868 and Nawab Bibi v. Allah Ditta 1998 SCMR 2381 rel.

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

----S. 352 (1)---High Court (Lahore) Rules and Orders, Vol. III, Chapter-1, Part-A, R. 3---Court House---Jail trial---Pre-condition---Ordinary rule is that trial or inquiry should be held in a usual courtroom---In extraordinary circumstances Magistrate may consider it necessary for reasons of security of accused or of witnesses or for any other valid ground to hold inquiry or trial in jail premises---Where Magistrate exercises his discretion to exclude public or to hold his Court in a building such as a jail, he must do so in accordance with R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders.

(c) Constitution of Pakistan---

----Art. 199---Judicial review---Administrative decisions---Scope---While exercising jurisdiction under Art. 199 of the Constitution, High Court is to judicially review the process in which a decision is taken in order to ensure that it did not suffer from any illegality, irrationality or procedural impropriety---High Courts, while exercising constitutional jurisdiction, do not sit in appeal over an administrative decision---Courts are to focus their scrutiny on the decision making process rather than the decision itself unless they find the decision to be in violation of a statutory provision or based on mala fides.

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

----S. 352 (1)---High Court (Lahore) Rules and Orders, Vol. III, Chapter-1, Part-A, R. 3---Jail trial---Prejudice to accused---Right of hearing---Scope---Holding of a trial in jail is not illegal and entire trial cannot be questioned as vitiated provided the requirements of S.352, Cr.P.C. and R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders are strictly adhered to, i.e. the public has access to courtroom in jail, and trial is conducted in open view---Where such requirements are fulfilled, holding of trial within jail compound does not cause prejudice to accused---Exercise of discretion under S.352, Cr.P.C. and R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders must be equitable to both the accused and the prosecution---This cannot be achieved without hearing the parties whose right to an open trial and usual courtroom stand to be curtailed by exercise of such discretion.

Attorney General of Nova Scotia v. Maclntyre [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43; Scott v. Scott (1913) A.C. 417; Ambard v. Attorney-General of Trinidad and Tobago (1936) AC 322; Cora Lillian McPherson v. Oran Leo McPherson AIR 1936 PC 246; Estes v. Texas 381 U.S. 532 (1965); Craig v. Harney 331 U.S. 367 (1947); Sherman Estate v. Donovan 2021 SCC 25; National Accountability Bureau v. Hudaibya Paper Mills PLD 2018 SC 296; Mairaj Muhammad Khan v. The State PLD 1978 Kar. 308; A.K. Ansari v. The State PLD 1972 Azad J&K 38; Asif Ali Zardari v. Special Judge (Offences in Banks) PLD 1992 Kar. 437; Jahanzeb Khan v. Special Judge, CNS Court, Lahore Criminal (Appeal No. 70907 of 2017); Khuja v. Times Newspaper Limited 2017 SCMR 1605; Attorney General v. Leveller Magazine [1979] 1 AII ER 745; Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653; Narotthamdas L. Shah v. State of Gujarat (MANU/GJ/0147/1970); Abdul Rashid Chaudhury v. The State PLD 1966 Lah. 562; Kailash Nath Agarwal v. Emperor AIR 1947 Allahabad 436; In re: M.R. Venkatraman AIR 1950 Madras 441; In re: T.R. Ganeshan AIR 1950 Madras 696; Prasanta Kumar Mukerjee v. The State AIR 1952 Calcutta 91; Narwarsingh v. State AIR 1952 Madhya Pradesh 193; Sahai Singh v. Emperor AIR 1917 Lah. 311 and Kehar Singh v. State AIR 1988 SC 1883 rel.

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

----S. 352 (1)---High Court (Lahore) Rules and Orders, Vol. III, Chapter-1, Part-A, R. 3---Official Secrets Act (XIX of 1923), S. 13(1)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Jail trial---Sanction of Government---Retrospective effect---Special Court, jurisdiction of---Accused was aggrieved of his jail trial and had also assailed appointment of Special Judge under Official Secrets Act, 1923---Validity---There was no judicial order available in file requiring proceedings and trial to be conducted in jail---Essential prerequisite of passing a judicial order requiring trial against accused to be conducted in jail was not fulfilled---Authorities submitted a proposal to Cabinet for sanctioning trial against accused to be conducted in jail, as under R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders, Trial Court was to obtain sanction of Government---Provision of R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders or any other law did not empower Government to issue such sanction with retrospective effect---It was a vested right of every accused for the trial against him to be conducted in open Court at a place designated for its usual sittings---Retrospective operation could not be given to executive orders so as to destroy vested rights of citizens---Division Bench of High Court declared ex-post facto sanction given by decision of Cabinet to proceedings and trial conducted in jail as unlawful---Intra Court appeal filed under S. 3(2) of Law Reforms Ordinance, 1972, against judgment passed in Constitutional petition was maintainable---Designation of Special Court (Anti-Terrorism-I), Islamabad, to try cases reported under Official Secrets Act, 1923, through notification No. F.No.40(64)/2023-A-VIII, dated 27-06-2023 was valid and lawful---There was no provision in Criminal Procedure Code, 1898 which could compel Trial Court to hold his Court in a usual Court Room---In exceptional circumstances and where it was conducive to justice, a trial could be conducted in jail in manner that could fulfill requirements of an open trial or trial in camera provided it was in accordance with procedure provided by law---Division Bench of High Court declared Notification No. F.No.8(93)/ 2021-A-IV,dated 29-08-2023 issued by authorities to be without lawful authority and of no legal effect for want of any order by appropriate Government and fulfillment of requirements provided in S. 352, Cr.P.C. as well as R. 3 in Part-A of Chapter-1 in Volume-III of High Court (Lahore) Rules and Orders---Division Bench of High Court further declared respective Notifications dated 12-09-2023; 25-09-2023; 03-10-2023 and 13-10-2023 issued by authorities to be without lawful authority and of no legal effect for want of fulfillment of requirements provided in S. 352, Cr.P.C., as well as R. 3 in Part-A of Chapter-1 in Volume-III of High Court (Lahore) Rules and Orders---Division Bench of High Court also declared that respective Notifications dated 13-11-2023, 12-11-2023 and 15-11-2023 issued by authorities on the basis of Cabinet's decision dated 15-11-2023 were of no legal consequence for not having been preceded by order of Trial Court in terms of S. 352, Cr.P.C., passed in judicial proceedings---Division Bench of High Court further declared by way of clarification that Notification No. F.No.40(68)/2023-A-VIII, dated 15-11-2023 issued by authorities on the basis of Cabinet's decision dated 15-11-2023, could not be given retrospective effect---Division Bench of High Court also declared that proceedings of trial against accused in jail premises were notan open trial and the same stood vitiated---Intra Court Appeal was allowed accordingly.

C.P. No. 4325 of 2017; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262; Mst. Muhammadi and others v. Ghulam Nabi 2007 SCMR 761; Ali Asghar v. Creators (Builders) 2001 SCMR 279; Syed Bhais v. Government of the Punjab Excise and Taxation Department PLD 2000 Lah. 20; Amina Begum v. Ghulam Dastgir PLD 1978 SC 220; Saeeda Khatoon v. House Building Finance Corporation PLD 1998 Kar. 99; Sheikh Fazal Rehman and Sons Limited v. Ghee Corporation of Pakistan 2003 CLC 1823; Ch. Riyasat Ali, Advocate v. Returning Officer 2003 CLC 1730; Muhammad Rashid v. Member (Revenue), Board of Revenue, Punjab 2001 MLD 548; Muhammad Nazir v. Collector/Deputy Commissioner, Lahore 2001 CLC 767; Tariq Aziz-ud-Din and others' case 2010 SCMR 1301; Vice-Chairman, Punjab Bar Council and others v. Government of the Punjab and others PLD 2021 Lah. 544; Akhlaq Ahmad v. Government of Punjab 1991 MLD 739; Muhammad Idrees and others v. The State 2004 PCr.LJ 1163; Hafeez Ahmad v. The State PLD 1975 Lah. 1453; The King v. U Khemein AIR 1940 Rangoon 72; Ghulam Muhammad v. The State PLD 1967 SC 175; F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.W.F.P. 1994 SCMR 722; Jameel Ahmed Malik v. Pakistan Ordinance Factories Board 2004 SCMR 164; Noor-us-Saba v. Federation of Pakistan 2023 CLC 1245; Munir Ahmed v. Federation of Pakistan 2018 PLC (C.S.) 746; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Shaikh Zayed Hospital v. Dr. Muhammad Saeed 2010 PLC (C.S.) 967; Mairaj Muhammad Khan v. The State PLD 1978 Kar. 308; Imran Khan v. State 2022 YLR 2123; Ajeet Singh v. State PLD 1982 Lah. 10; Muhammad Kamil v. Muhammad Bashir PLD 1974 Lah. 224; Qadir Dad v. Sultan Bibi PLD 1956 Federal Court 129; Rashid Hamid v. The State PLD 1972 SC 271; Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 315; Government of Pakistan v. Village Development Organization 2005 SCMR 492; Anound Power Generation Limited v. Federation of Pakistan PLD 2001 SC 340; Muhammad Ilyas Khokhar v. Federation of Pakistan 2006 SCMR 1240 and Murad Ali Shah and others v. Government of Sindh PLD 2002 Kar. 646 rel.

Salman Akram Raja, Barrister Salman Afridi, Intizar Hussain Panjutha, Barrister Gohar Ali Khan, Naeem Haider Panjutha, Ali Aijaz Buttar and Mirza Asim Baig for Appellant.

Mansoor Usman Awan, Attorney-General for Pakistan, Barrister Munawar Iqbal Duggal and Aamir Rehman, Additional Attorney-Generals, Arshid Mehmood Kiani, Deputy Attorney-General, Asia Batool and Imran Farooq, Assistant Attorney-Generals, Raja Rizwan Abbasi, Zulfiqar Abbas Naqvi, Shah Khawar and Mudassar Hussain Malik, Prosecutors for F.I.A. and Tahir Kazim, Law Officer, ICT Police for Respondents.

Assisted by: Umar Farooq, Research Officer and Ms. Neha Touseef, Law Clerk.

P L D 2024 Islamabad 213

Before Babar Sattar, J

Messrs KAC-RMS (JOINT VENTURE) through authorized representative---Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and others---Respondents

Writ Petition No. 1426 of 2022, decided on 21st December, 2022.

Public Procurement Rules, 2004---

----Rr. 33, 38 & 44---Contract Act (IX of 1872), Ss. 2 (a)(b)(d)(e) & 10---Bidding process---Inviting, rejecting and acceptance of bid---Scope---Power conferred on a procuring agency to annul bidding process and reject all bids under R. 33 of Public Procurement Rules, 2004 is not limited to a stage in bidding process prior to issuance of final evaluation report---Procuring agency may under R. 33 of Public Procurement Rules, 2004, reject all bids at any time prior to acceptance of a bid---Acceptance of a bid is an affirmative process and unless a procuring agency accepts a bid leading to issuance of procumbent contract within the meaning of Rr. 38 & 44 of Public Procurement Rules, 2004, it is free to exercise its authority to reject all bids under R. 33 of Public Procurement Rules, 2004---Constraint that R. 38 of Public Procurement Rules, 2004, applies on the authority of procuring agency is that it may not accept a bid other than a bid that has been evaluated and found to be the most advantageous bid---Provision of R. 38 of Public Procurement Rules, 2004, does not fetter authority vested in procuring agency under R. 33 of Public Procurement Rules, 2004, to reject all bids until the procuring agency has taken affirmative step of formally accepting a bid---Bidder, who is found to have submitted the most advantageous bid, has status of a party having made the best offer---Until such offer is accepted by procuring agency there does not come into existence a contract within the meaning of Ss. 2(a)(b)(d)(e) & 10 of Contract Act, 1872---Party making the best offer has no vested right to be granted a contract or to seek indulgence of Court to force procuring agency to issue it a procurement contract.

(b) Public Procurement Rules, 2004---

----R. 33---General Clauses Act (X of 1897), S. 24A---Constitution of Pakistan, Art. 199---Judicial review, powers of---Bidding process, annulment of---Recording of reasons---Scope---Petitioner company was aggrieved of annulment of bidding process---Validity---Procuring agency is under obligation to record reasons and make them available to a bidder in the event that it exercises its authority to annul bidding process under R. 33 of Public Procurement Rules, 2004---Obligation to record reasons is a requirement of law in view of S. 24A of General Clauses Act, 1897, when procuring agency is a public authority and is reaching decisions in exercise of its public authority---If such reasons are assailed before a Court that is invited to exercise judicial review powers on grounds of illegality, irrationality or procedural impropriety, the Court would exercise its judicial review powers in a deferential manner if basis of challenge is irrationality of the grounds that inform annulment decision---Constitutional Court is not best placed to second-guess the decision of a procuring agency not to enter into a contract for procurement of goods or services---Except in extreme cases of mala fide, where a consistent pattern followed by procuring agency reflects that the procurement has been repeatedly annulled because of identity of the best evaluated bidder (and onus to establish such malafide is on such bidder), the High Court would be loath to interfere with a decision to annul a procurement process and force a procuring agency to procure goods or services that it has otherwise decided not to procure---Petitioner had no vested right to have its bid accepted in terms of R. 38 of Public Procurement Rules, 2004, nor could be granted a procurement contract within the meaning of R. 44 of Public Procurement Rules, 2004---Grievance Redressal Committee was vested with no authority to sit in judgment over the exercise of power by procuring agency under R. 33 of Public Procurement Rules, 2004 to annul procurement process---Decision rendered by Grievance Redressal Committee was not backed by law and was not sustainable in view of provisions of Public Procurement Rules, 2004---High Court declined to interfere in bidding process---Constitutional petition was dismissed accordingly.

Messrs Pakistan Gas Port Limited v. Messrs Sui Southern Gas Co. Limited and 2 others PLD 2016 Sindh 207 and Messrs Bio-Labs Private Limited v. Province of Punjab and others PLD 2020 Lah. 565 rel.

Munshi Muhammad and another v. Faizan ul Haq and another 1971 SCMR 533; City Schools Private Limited, Lahore Cantt. v. Privatization Commission, Government of Pakistan and another 2002 CLD 1158; Petrosin Corporation Private Limited Singapore and 2 others v. Oil and Gas Development Company Limited, through Managing Director, Islamabad 2010 SCMR 306 and Messrs Reliance Consultancy and Engineering Works Private Limited v. Federation of Pakistan and 02 others 2010 CLC 1046 ref.

(c) Public Procurement Rules, 2004---

----Rr. 33 & 48---Bidding process---Redressal of grievance---Vested right---Scope---Grievance redressal mechanism provided under R. 48 of Public Procurement Rules, 2004, is meant to ensure that principles of procurement as enshrined in Public Procurement Rules, 2004 and procedures prescribed therein are abided by procuring agency while procuring goods and services---No bidder has vested right to seek issuance of procurement contract, even where its bid is found to be the most advantageous bid---Bidder cannot be deemed to be aggrieved by the act of procuring agency to annul procurement process in exercise of its power under R. 33 of Public Procurement Rules, 2004---Provision of R. 33(2) of Public Procurement Rules, 2004, provides that procuring agency can incur no liability towards bidders who have submitted their bids, if it elects to reject all bids and annul the procurement process---Bidder may be aggrieved where its bid has been rejected and bid of another competitor has been accepted---Where all bids have been rejected, the bidder, whose bid may be deemed to be a most advantageous bid, cannot claim to have a justiciable legal grievance, redressal of which can be sought under R. 48 of Public Procurement Rules, 2004---Where there is a right, there is a remedy---Party making the best bid in a tender process has no right to be granted a contract and consequently, it cannot seek a legal remedy forcing procuring agency to accept its bid and enter into a contract---In commercial and contractual matters constitutional Courts do not exercise searching scrutiny when invited to undertake judicial review of decisions rendered by public authorities---Constitutional Courts exercise their judicial review powers to ensure that the State does not dispense its largesse in an illegal, arbitrary or whimsical fashion---Where State and its instrumentalities choose not to dispense any largesse and elect not to enter into a contract to procure goods and services, the Court is loath to force a procuring agency exercising authority on behalf of the State to enter into a contractual relationship for procurement of such goods and services---This is moreso in view of R. 34 of Public Procurement Rules, 2004, where in aftermath of annulment of procurement process, a procuring agency can initiate a procurement process afresh, which then provides an equal opportunity to all interested parties to enter into bidding contest and decision to annul previous procurement process can therefore not be seen as serving the interest of any particular bidder.

Babbar A. Khan and Jawad Malik for Petitioners.

Barrister Syed Masood Raza and Barrister Momin Ali Khan for NHA.

Farrukh Shahzad Dall, Assistant Attorney General along with Faizan Ali, Assistant Chief and Zohair Fazil, Chief (T&C), Ministry of Planning, Development and Special Initiatives, Islamabad for Respondents.

Zaheer Iqbal, Section Officer (Litigation-II), Cabinet Division.

P L D 2024 Islamabad 227

Before Miangul Hassan Aurangzeb and Saman Rafat Imtiaz, JJ

MOHAMMAD ALI TARIQ---Appellant

Versus

THAI AIRWAYS INTERNATIONAL through CEO/Manager and 3 others---Respondents

R.F.A. No. 177 of 2017, decided on 13th November, 2023.

Carriage by Air Act (IV of 2012)---

----First Sched., Chapt. III, R. 17---Civil Procedure Code (V of 1908), O. XXII, R.26---Suit for recovery of damages---Right to sue---Death of plaintiff---Effect---Suit filed by appellant/plaintiff for recovery of damages was dismissed by Trial Court---During pendency of appeal before High Court appellant/plaintiff died---Plea raised by respondent/ airline was that appeal had abated due to death of appellant/plaintiff---Validity---Distinguishing feature between a 'right to sue' that survives death and one that does not is whether the right was a personal right of action---Right immediately connected with individuality of deceased does not survive---Personal right of action arising from tort cannot be distinguished from such right arising out of contract and/or under statute for the purpose of surviving death---Liability of carrier in the event of wounding of a passenger or any other bodily injury suffered by passenger pursuant to R. 17 of Chapt. III contained in the First Sched. to Carriage by Air Act, 2012, is a personal right connected with the passenger and as such dies with such passenger---If death occurs after conclusion of hearing but before pronouncement of judgment, it may be pronounced irrespective of whether cause of action survives or not---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed, in circumstances.

Zahid Hussain Awan v. United Bank Limited 2018 MLD 1369; A. Majid Sama v. The Asbestos Cement Industries Ltd. 1996 MLD 803; Mir Shakeelur Rehman v. Yahya Bakhtiar PLD 2010 SC 612; Ali Muhammad Mirza and others v. Mst. Sardaran and others PLD 2004 SC 185; Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration, Embassy of the United States of America 1989 CLC 511; Mercantile Co-operative Bank Ltd. v. Messrs Habib & Co. and others PLD 1967 Kar. 755; Sardar Muhammad Ali v. Federation of Pakistan PLD 1961 (W.P.) Karachi 88 and Syed Gayoor Hussain Shah v. Gharib Alam PLD 1990 Lah. 432 distinguished.

Barrister Suleman Khan for Appellant.

P L D 2024 Islamabad 231

Before Babar Sattar, J

RAHIL AZIZI---Petitioner

Versus

The STATE and 5 others---Respondents

Writ Petition No. 1666 of 2023, decided on 19th June, 2023.

(a) Interpretation of statutes---

----Criminal trial---Where language is amenable to different interpretations, the one more favorable to accused must be adopted.

(b) Constitution of Pakistan---

----Arts. 4 & 9---State and citizen, relationship---Principle---Law is not meant to act as trap---Constitution and law regulate relationship between State and citizens and any other persons who for the time being are within the territorial boundaries of the State---Purpose of law is to act as a benevolent instrument to facilitate and uphold rights of citizens and other persons as guaranteed by the Constitution.

(c) Foreigners Act (XXXI of 1946)---

----S. 14 (2)---Refugee Convention, 1951, Art. 31---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition---First Information Report, quashing of---Illegal entry into Pakistan---Pre-conditions---Intention to seek refuge---Petitioner/accused entered Pakistan illegally to seek political asylum---Authorities registered FIR against petitioner/ accused under Foreigners Act, 1946 and put her in judicial custody---Trial Court and Lower Appellate Court declined to release her on the plea that she wanted to return to her country---Validity---Components of offence under S. 14(2) of Foreigners Act, 1946, include entry into Pakistan for an illegal purpose and doing so knowingly---Actus reus of offence is entering Pakistan illegally and mens rea is intent to enter for an illegal purpose---Intent to seek refuge to save one's life is not an illegal purpose---Where facts established that a foreigner entered into Pakistan to save her life and sought asylum fearing persecution in her home country, such action did not constitute an illegal purpose within the meaning of S. 14(2) of Foreigners Act, 1946---Orders passed by two Courts below were not in accordance with law and had disregarded protection of life and liberty afforded by Art. 9 of the Constitution to any person for the time being in Pakistan---Both the Courts below also failed to appreciate that a foreigner who entered Pakistan as a refugee to save her life from persecution in home country and to seek asylum in a third country in accordance with international law was not liable for a criminal offence under S. 14(2) of Foreigners Act, 1946---High Court set aside orders passed by two Courts below---High Court directed Federal Government to prescribe a mechanism in consonance with Art. 31 of Refugee Convention, 1951, to enable refugees to voluntarily report upon arrival in Pakistan that they would seek refuge and wished to register with UNHCR to seek asylum in a third country---High Court further directed the Government to frame SOPs to direct police authorities to release an accused refugee under S. 169 of Cr.P.C. or file an appropriate report under S. 173 of Cr.P.C., or file an appropriate application under S. 494 of Cr.P.C. to withdraw from prosecution of foreigner, depending on the stage when once refugee status of foreigner is recognized by UNHCR and application for grant of asylum is under process or has been approved---High Court quashed FIR against petitioner/accused as there was no evidence establishing that she had knowingly and illegally entered into Pakistan instead of entering Pakistan as a refugee to save her life---High Court directed Federal Government to issue an exit permit to petitioner/accused forthwith---Constitutional petition was allowed, in circumstances.

Messrs Najib Zarab Limited v. Government of Pakistan through Secretary Ministry of Finance, Islamabad and 4 others PLD 1993 Kar. 93; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Farooq Ahmad Khan Laghari v. Federation of Pakistan PLD 1999 SC 57; (Human Rights Case No. 29388-K of 2013) PLD 2014 SC 305; Sadia Jabbar v. Federation of Pakistan and others 2018 PTD 1746; Mumtaz Bibi v. Qasim and others PLD 2022 Isl. 228; Aamir Aman v. Federation of Pakistan PLD 2020 Sindh 533 and Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 ref.

(d) Convention Relating to the Status of Refugees, 1951---

----Art. 31 & Preamble---Refugees handling---Principle---Facilitating settlement of a refugee in a third country does not just burnish the credentials of Pakistan as a polity that understands plight of refugees, given that it has shouldered the burden of refugee settlement from neighboring countries---This is also a sensible public policy choice to reduce litigation and prevent further burdening of criminal justice system with unnecessary trials.

Umer Ijaz Gillani for Petitioner.

P L D 2024 Islamabad 246

Before Mohsin Akhtar Kayani, J

FARYAL SALEEM and another---Appellants

Versus

NAYATEL (PVT.) LTD., ISLAMABD through Manager---Respondent

Regular First Appeal No. 18 of 2021, decided on 14th February, 2024.

Contract Act (IX of 1872)---

----S. 74---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for recovery of money on the basis of indemnity bond---Loss and compensation---Proof---Onus to prove---Respondent/plaintiff was employer of appellant/defendant and sought recovery of loss and compensation on the basis of indemnity bond for breach of contract---Suit was decreed by Trial Court in favour of respondent/plaintiff---Validity---Employer in terms of Art. 117 of Qanun-e-Shahadat, 1984, was under legal obligation to discharge burden regarding quantification of loss and compensation---Respondent/plaintiff neither incurred any loss nor provided any proof of such loss before Trial Court---Claimant under any bond is entitled under the provisions of S. 74 of Contract Act, 1872, to reasonable compensation and not specific amount asserted in the bond---Claiming of fine, liquidated damages or penalty solely based upon terms of finance agreement between the parties itself is not sufficient to grant the same---Party claiming such fine, liquidated damages or penalty has to in the first place plead such fact in its plaint or petition and thereafter to prove the same through cogent and reliable evidence---Court, if satisfied with the evidence, may not necessarily grant specific amount of fine, liquidated damages or penalty as stipulated in finance agreement but only a reasonable compensation to be ascertained from the evidence adduced by the parties---Company incurred expenses on training of appellant/defendant, therefore, company was entitled for recovery of that amount as well as at least salary of one month which was otherwise in accordance with public policy principle---High Court reduced the amount of decree to the extent of training expenses and one month salary---Appeal was allowed accordingly.

Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25; Atlas Cables (Pvt.) Limited v. Islamabad Electric Supply Company Limited 2016 CLD 1833; Bhai Panna Singh and others v. Bhai Arjun Singh and others AIR 1929 Privy Council 179; Messrs United Bank Limited v. Messrs M. Esmail and Company (Pvt.) Limited 2006 CLD 394; Allied Bank of Pakistan Limited, Faisalabad v. Messrs Asisha Garments 2001 MLD 1955; Messrs HITEC Metal Plast (Pvt.) Ltd. v. Habib Bank Limited.PLD 1997 Quetta 87; Messrs Khanzada Muhammad Abdul Haq Khan Khattar & Co. v. WAPDA through Chairman and another 1991 SCMR 1436; Messrs Ghulam Muhammad Dossal Engineering Ltd. v. Zafar Iqbal and another 1989 CLC 636; Muhammad Ashfaq and another v. Muhammad Haroon 2019 CLC 950; Remco Enterprises, Inc. v. Houston, 9 Kan. Alpp.2d 296, 677 P.2d 567, 572; Gordon v. Crown Central Petroleum Corp., D.C. Ga, 423 F. Slupp. 58, 61; Kugler v. Romain, 58 N.J. 522, 279 A.2d 640; Uber Technologies INC. v. David Hailler 2020 SCMR 1279; Maula Bux v. Union of India AIR 1970 SC 1955; Industrial Development Bank of Pakistan v. Messrs Baloch Engineering Industry (Pvt.) Ltd. 2010 CLD 591; Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 C L D 6 = PLD 2012 SC 80; Halsbury's Laws of England (Hailsham), Second Edition para. 101 and Trading Corporation of Pakistan Ltd. v. International Trading And Sales Inc. 1991 CLC 32 ref.

Aalia Zarreen Abbasi and Ambreen Nawaz Ch. for Appellants.

P L D 2024 Islamabad 256

Before Babar Sattar, J

The STATE---Petitioner

Versus

IRFAN NAWAZ MEMON, DISTRICT MAGISTRATE and 3 others---Respondents

Criminal Original No. 197-W of 2023 in Writ Petition No. 2491 of 2023, decided on 1st March, 2024.

(a) Public functionaries---

----Source of authority---Actions of public officials---Accountability---In Pakistan, like other Constitutional states, public authority flows from the Constitution and Constitution alone---There is no other source of authority---Feature distinguishing legal authority from brute force is legitimacy---In a polity functioning under the Constitution, the concept of de facto power is akin to the concept of brute force, which is devoid of legitimacy---Only power that is clothed with legality and legitimacy is that which flows from the law and the Constitution and is thus de jure---Existence and exercise of de facto power in a state administered under a Constitution is the manifestation of weak Constitutionalism and speaks to the need to reduce the gap between the law and its implementation---Courts of law established under the Constitution and exercising authority vested by law, can never recognize or legitimize de facto power (referred to as 'ground realities' in the vernacular)---Doing so would delegitimize the Courts themselves---In a rule of law, system, power and responsibility go hand-in-hand---Any public official who is vested with authority and exercises it in the name of the State and its citizens, cannot shun the responsibility that comes with exercise of power---Deputy Commissioner or police officer has no authority other than that vested by law and no jurisdiction to exercise it except as mandated by law---Actions of public officials are protected by law in so far as they are backed by it---Their source of authority over fellow citizens is the authority of law, not personal authority that can be exercised at whim or on the basis of an illegal command---Public officials are responsible and accountable for their actions just as private citizens, if not more---Doctrine of agency underlying personal liability is fully applicable to the actions of public office holders.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Power to arrest and detain---Scope---Power to order preventive detention vests in the government, which is an elected entity that exercises the powers that flows from the Constitution and the laws enacted by the legislature----Power to order preventive detention is to be exercised through exercise of an independent judicious mind by Provincial Government (or by District Magistrate where such power is duly delegated to him).

(c) Constitution of Pakistan---

----Preamble---System of governance---Representative democracy---System of governance in Pakistan established under the Constitution, is that of representative democracy.

(d) Constitution of Pakistan---

----Art. 245---Armed Forces---Role of---Armed Forces are a subset of the Executive, as a subordinate of elected civilian government---Armed Forces act in aid of civil power under Art. 245 of the Constitution when asked to do so by the Federal Government.

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

----Ss. 3 & 4---Constitution of Pakistan, Art.204---Contempt of Court---Court orders, violation of---Respondent/contemnor police officer was alleged to have issued request of detention order---Validity---Respondent/contemnor was holding additional charge of the office of District Police Officer, in which capacity he forwarded request for issuance of detention order to Station House Officer for consideration of Senior Superintendent of Police---There was no material before High Court to establish that respondent/contemnor had previously issued any request seeking issuance of detention order, which was set aside by High Court---There was also no other evidence that respondent/contemnor had remained engaged in a sequence of events to procure detention orders against citizens on the basis that they were inciting public-at-large, and using such orders to defeat access of citizens to justice or to defeat the orders of Courts---High Court did not find that respondent/contemnor was liable for contempt of court---Show cause notice issued to respondent/contemnor was discharged, in circumstances.

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

----Ss. 2(b), 3, 4, 6(1)(c), 18(1) & 19---Criminal Procedure Code (V of 1898), S. 382-A---Constitution of Pakistan, Art.204---Contempt of Court---Court orders, violation of---Administration of justice, obstructing of---Diverting course of justice---Minor sentence, postponement of---Respondents/contemnors were Deputy Commissioner and Police Officials who were alleged to have issued detention orders despite specific restraining orders issued by High Courts---Validity---Respondents/contemnors obstructed process of High Courts and disobeyed their orders in terms of S. 204(2)(a) of the Constitution---Respondents/contemnors had taken actions with intent and their actions had the effect of obstructing administration of justice within the meaning of S. 2(b) of West Pakistan Maintenance of Public Order Ordinance, 1960---Actions of respondents/contemnors in soliciting and issuing detention orders under West Pakistan Maintenance of Public Order Ordinance, 1960, especially order dated 08-08-2023, had the effect of diverting the course of justice within the meaning S. 6(1)(c) of West Pakistan Maintenance of Public Order Ordinance, 1960 read together with Art. 204(1)(d) of the Constitution---Actions of respondents/ contemnors constituted contempt of court by causing substantial detriment to the administration of justice and had brought court system, as a machinery for enforcement of fundamental rights, into ridicule in terms of S. 18(1) of West Pakistan Maintenance of Public Order Ordinance, 1960---Necessary ingredients (i.e. actus reus and mens rea) that comprised offence of contempt co-existed for the purposes of establishing charge of contempt---It was the effect of an act and not subjective intent of respondents/contemnors that was relevant---Effect of action of respondents/contemnors was not merely to exhibit blatant and contumacious contempt of court, but such contempt was of a nature that caused substantial detriment to administration of justice---High Court convicted all respondents/contemnors and awarded different sentences of simple imprisonment, with all less than one year---Respondents/contemnors had right to appeal the verdict before Division Bench of High Court within 30 days pursuant to S. 19 of Contempt of Court Ordinance, 2003---As the sentences were short and convicted respondents were public servants who did not pose a flight risk, therefore, sentences awarded were suspended for 30 days to enable respondents/contemnors to avail their remedy of appeal---High Court directed Federal Government to investigate whether there was an organized policy to use detention orders issued under West Pakistan Maintenance of Public Order Ordinance, 1960, to scuttle fundamental rights of citizens and undermine the judiciary---High Court directed that such investigation should be meaningful, must be undertaken and overseen by head of the Executive branch of the State---High Court desired Prime Minister of Pakistan, to investigate whether Deputy Commissioners across Pakistan who continued to issue detention orders under West Pakistan Maintenance of Public Order Ordinance, 1960, in breach of law and Constitution and judicial orders were acting in an organized manner on the basis of illegal orders, and if so, take appropriate remedial action to ensure that the authority of the State to be exercised through chosen representatives of people would continue to be exercised according to the Constitution and the law---Respondents/contemnors were convicted and sentenced accordingly.

Farrukh Jamal Afridi v. Federation of Pakistan (W.P. 1639 of 2023); Shehryar Afridi v. Federation of Pakistan (Writ Petition No. 2491 of 2023); Shehryar Afridi v. Government of Punjab (W.P No. 2507 of 2023); The Rule of Law, T.H. Bingham, London, 2011; Shapiro, Public Law and Legal Theory Working Paper Series, Working Paper 77, March 2007, University of Michigan Law School; The Concept of Law Oxford University, 1961; Law's Empire, Belknap Press, 1986; Attorney General v. Leveler Magazine Limited [1979] AC 440 at 449; Ex Parte Robinson 86 U.S. (19 Wall.) 505, 510 (1873); Gompers v. Bucks Stove and Range Company 221 U.S. 418 (1911); United States v. United Mine Workers of America 330 U.S. 258 (1947); Re M. [1993] 3 W.L.R. 433; Muhammad Aslam v. Union of India AIR 1995 SC 548; T.N. Godavarman Thirumulpad v. Ashok Kahot AIR 2006 SC 207; All Bengal Excise Licensees Association v. Raghabendra Singh AIR 2007 SC 1386; Sir Edward Snelson v. Judges of the High Court of West Pakistan PLD 1961 SC 237; Senator Haji Adeel v. Raja M. Abbas 2013 SCMR 346; Sultan Ahmad v. Registrar Balochistan High Court 2023 SCMR 1955; Imtiaz Ali v. Abul Kalam 2005 SCMR 627; Abdul Aleem Khan v. Election Commission of Pakistan 2017 MLD 173; Feroz Akbar v. Government of Pakistan 2002 SCMR 1623; Baaz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; Dr. A.N.M. Mahmood v. Dr. M. O. Ghani PLD 1967 Dhaka 67; Eastern Trust Company v. Mekenzie Mann & Co., Ltd. AIR 1915 PC 106; State v. Khalid Masood PLD 1996 SC 42; Saadat Khialy v. The State PLD 1962 SC 457; Suo Motu Contempt Proceedings against Mr. Daniyal Aziz's case PLD 2018 SC 738; Talal Ahmed Chaudhry v. The State 2019 SCMR 542; State v. Imran Ahmed Khan Niazi PLD 2023 Isl. 145; Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Human Rights's case PLD 2010 SC 759; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195; Government of West Pakistan v. Haider Bux Jatoi PLD 1969 SC 210 and Arshad Ali Khan v. Government of the Punjab 1994 SCMR 1532 rel.

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

----S. 3---Contempt of Court---Liability---Individual autonomy---Scope---Within criminal law, the concept of liability is rooted in individual autonomy---Individuals as autonomous agents are capable of choosing their acts and omissions---By virtue of possessing human agency, individuals are also responsible for normal consequences of their behavior---Law presumes that a person intended the natural consequences of his actions.

Principles of Criminal Law rel.

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

----Ss. 3 & 4---Constitution of Pakistan, Art.204---Contempt of Court---Punishment---Object, purpose and scope---Purpose of punishment in a matter of criminal contempt is to uphold public interest in fair and unfettered administration of justice---Guiding principle for purposes of sentencing etc. is to deter conduct that is tantamount to contempt for law and the justice system.

(i) Public functionaries---

----State authority, exercise of---Principle---Constitution and the law envisage that public officials, as representatives of the executive arm of the State, have to exercise State authority as a trust to uphold and enforce the law in the interest of citizens of Pakistan---It cannot be countenanced that public officials would wield the law as a weapon to oppress their fellow citizens and deny them their fundamental rights guaranteed by the Constitution---It can also not be conceived that public officials serving as part of the executive branch of the State would wield their powers to undermine and frustrate decisions rendered by the judicial branch of the State.

Qaiser Imam, Prosecutor assisted by Ali Raza and Ahmed Junaid, State Counsel.

Raja Rizwan Abbasi, Fawad Haider and Rana Samreen Akhtar for Respondent No. 1.

Shah Khawar and Babar Hayat Samore for Respondent No. 2.

Mrs. Bushra Qamar and Muhammad Fahim Akhtar Gill for Respondent No.3.

Imran Feroz Malik and M. Sajid Baloch for Respondent No.4.

Respondents Nos. 1 to 4 in person.

Qamar Abbas, Law Officer, Rural Zone, Islamabad.

P L D 2024 Islamabad 319

Before Miangul Hassan Aurangzeb, J

Mst. BUSHRA IMRAN KHAN---Petitioner

Versus

CHIEF COMMISSIONER, ISLAMABAD and 3 others---Respondents

Writ Petition No. 488 of 2024, decided on 8th May, 2024.

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

----S. 383---Execution of sentence---Scope---Court passing a sentence of imprisonment is required under S. 383, Cr.P.C., to forward a warrant to the jail in which accused is to be confined.

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

----Ss. 383 & 541---Prisons Act (IX of 1894), S. 3---Constitution of Pakistan, Arts. 24 (2) & 199---Constitutional petition---Execution of sentence---Private house declared as prison/sub-jail---Legality---Property rights---Petitioner was convicted and sentenced to imprisonment by Trial Court and house owned by her husband was declared as sub-jail, wherein she was confined to undergo her sentence of imprisonment---Notification declaring sub-jail was issued by Chief Commissioner, Islamabad Capital Territory---Petitioner/convict assailed her confinement in house declared as sub-jail---Validity---House of husband of petitioner/convict was designated as sub-jail through notification issued under S. 541, Cr.P.C., but such place could not be categorized as a "prison" for the purposes of Prisons Act, 1894---By declaring house of husband of petitioner/convict as a sub-jail, the State took over possession of that property---Authorities did not obtain consent of owner of the house before its declaration as a sub-jail---Even authorities did not pay any compensation to owner of the house for declaring it as a sub-jail---Such wanton usurpation of private property with no compensation was violative of Art. 24(2) of the Constitution---High Court set aside the notification issued by Chief Commissioner, Islamabad Capital Territory, declaring a private property as sub-jail only for the purposes of confining therein the petitioner/convict, as the same was without lawful authority and of no legal effect---High Court directed the authorities to transfer petitioner/convict to jail to serve sentence awarded to her by Trial Court---Constitutional petition was allowed accordingly.

Ali Mahmood v. The State 1974 PCr.LJ 249; Sardar Ataullah Mengal v. The State PLD 1965 Kar. 320; Muhammad Aslam Khakhi v. The State PLD 2010 FSC 1; Muhammad Amin Muhammad Bashir v. Government of Pakistan 2015 SCMR 630; Khadim Hussain v. Secretary, Ministry of Human Rights PLD 2020 Isl. 268; Begum Shamim Afridi v. The Province of Punjab PLD 1974 Lah. 120 and Sunil Batra v. Delhi Administration AIR 1980 SC 1579 rel.

(c) Constitution of Pakistan---

----Part-II, Chapter 1---United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 2015, R. 43---Fundamental rights---Solitary confinement---Principle---United Nations General Assembly through Resolution 70/175, dated 17-12-2015 adopted United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)---Indefinite solitary confinement and prolonged solitary confinement under R. 43 of United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) is prohibited---Provisions of United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) are consistent with fundamental rights enshrined in Chapter-1 of the Constitution, therefore, deference and respect has to be shown in Pakistan to such Rules.

Al-Jahad Trust v. Federation of Pakistan 1999 SCMR 1379 rel.

Muhammad Usman Riaz Gill and Ch. Khalid Yousaf for Petitioner.

Malik Abdul Rehman and Muhammad Ali (State Counsel) for Respondents.

P L D 2024 Islamabad 332

Before Saman Rafat Imtiaz, J

Allama Raja NASIR ABBAS (MWM) and 2 others---Petitioners

Versus

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

Writ Petition No. 706 of 2024 and Criminal Original No. 61 of 2024, decided on 23rd May, 2024.

(a) Interpretation of Constitution---

----Trichotomy of power---Principle---Scheme of the Constitution is based on trichotomy of powers---In the system of trichotomy, the Judiciary has right to interpret, the Legislator has right to legislate, and the Executive has to implement---Such trichotomy of powers delicately balanced in the Constitution cannot be disturbed.

Syed Nazar Abbas Jaffri v. Secretary to Government of the Punjab 2006 SCMR 606 rel.

(b) Pakistan Prisons Rules, 1978---

----Rr. 554, 559 & 567---United Nations Standard Minimum Rules for the Treatment of Prisoners ('Nelson Mandela Rules'), R. 58(1)---Visitation rights of prisoners---Scope---Banning inmates from meeting their families, friends, and lawyers is not just a violation of Pakistan Prison Rules, 1978 but such tactics are an abuse of human rights---Provisions of United Nations Standard Minimum Rules for the Treatment of Prisoners known as the Nelson Mandela Rules, adopted through UN General Assembly Resolution A/RES/70/175 on December 17, 2015 envisage that prisoners have to be allowed, under necessary supervision, to communicate with their family and friends by receiving visits and adequate opportunity to be visited by lawyers.

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

----S. 3---Pakistan Prisons Rules, 1978, Rr. 554, 559 & 567---Contempt of Court---Visitation rights of prisoner---Subsequent compliance of Court order---Effect---Petitioner was aggrieved of not allowing him to visit a prisoner in Jail despite specific direction issued by High Court---Respondent/alleged contemnor in his capacity as Jail Superintendent initially did not comply with the order passed by High Court with regard to visiting of friends and family members of prisoner but later on during the pendency of proceedings before High Court he complied with the order in question---Validity---Respondent/alleged contemnor in his capacity as Jail Superintendent was liable to act with more circumspection in respect of Court orders than was exhibited by him---Conduct of respondent/alleged contemnor indicated highhandedness and brazen disregard for the authority of High Court---Prima facie both essential ingredients to constitute "willful contempt" stood proved---High Court could also not overlook the fact that respondent/alleged contemnor arranged petitioner's visit with the prisoner in accordance with the order passed by High Court during pendency of contempt proceedings---Despite gravity of the offence the High Court restrained itself from proceeding further in present Contempt Petition because of the subsequent events, which had reflected that threat of a substantial detriment to administration of justice was averted---High Court expected that in future respondent/ alleged contemnor would exercise greater circumspection and care otherwise if he repeated such omission, he would be dealt with strictly without show of any leniency to him---Contempt petition was disposed of accordingly.

Khalid Rashid v. Kamran Lashari 2010 SCMR 594; T. R. Dhananjaya v. Vasudevan AIR 1996 SC 302; Sheikh Attiq-ur-Rehman v. Syed Ali Murtaza 2014 YLR 1215; Dr. A. N. M. Mahmood v. Dr. M. O. Ghani, Vice-Chancellor and others PLD 1967 Dacca 67; Naveed Nawazish Malik v. Ghulam Rasool Bhatti and another 1997 SCMR 193; Senator Haji Adeel v. Raja M. Abbas and others 2013 SCMR 346; Sir Edward Snelosn K. B. E., Secretary to the Government of Pakistan, Ministry of Law v. The Judges of the High Court of West Pakistan, Lahore and another PLD 1961 SC 237; Syed Masroor Ahsan and others v. Ardeshir Cowasjee PLD 1998 SC 823; Olmstead v. United States 227 US 438, 485; The State through Advocate General v. Imran Ahmad Khan Niazi PLD 2023 Isl. 145; Syed Yousaf Raza Gillani, The Prime Minister of Pakistan regarding non-compliance of this Court's order dated 16-12-2009; PLD 2012 SC 553; T. R. Dhananjaya v. Vasudevan AIR 2012 SC 3891; The State v. Dr. Firdous Ashiq Awan, PLD 2020 Isl. 109 and Suo Motu Contempt of Court Proceedings initiated against Kh. Zahir Ahmed, former Commissioner, Capital Development Authority, Islamabad PLD 2002 SC 399 rel.

Nemo for Petitioners.

Rana Imran Farooq and Raja Zamir ud Din Ahmad, A.A.Gs., Ms. Maimana Khattak, State Counsel for Respondents.

Respondent in person.

P L D 2024 Islamabad 350

Before Miangul Hassan Aurangzeb, J

HYDERABAD CHAMBER OF COMMERCE AND INDUSTRY (HCCI) through

duly authorized person---Petitioner

Versus

MINISTRY OF COMMERCE GOVERNMENT OF PAKISTAN through Directorate General of Trade Organization and 4 others---Respondents

Writ Petition No.158 of 2023, decided on 22nd May, 2024.

(a) Trade Organizations Act (II of 2013)---

----Ss. 3, 6 (2), 7 (2), 9(1) & 21(4)---Trade Organizations Rules, 2013, Schedule-B---Constitution of Pakistan, Art.199---Constitutional petition---Trade organization license---Renewal---Principle---Appellant/ petitioner was old Hyderabad Chamber of Commerce and Industry (Old-HCCI) and aggrieved of order passed by Committee of the Federal Cabinet dismissing its appeal against order passed by Directorate General of Trade Organizations (DGTO), cancelling the license issued to it---Appellant/petitioner also assailed grant of license to New-HCCI---Validity---Application of appellant/petitioner for renewal of its license was not filed within the period prescribed by S. 6(2) of Trade Organizations Act, 2013---Appellant/petitioner was entitled to extension of thirty days for filing of such application, which period was to be reckoned from the date "ninety days prior to the expiry of the license"---Law entitled appellant/petitioner to an extension in time for filing an application for renewal of its license up to 06-03-2013 only---Respondent/DGTO was not vested with the power to entertain application for renewal of license or an application for extension in time for filing such application beyond time limits prescribed in S. 6(2) of Trade Organizations Act, 2013 and its proviso---Respondent/DGTO acted in transgression of S. 6(2) of Trade Organizations Act, 2013 by not just entertaining appellant's/petitioner's application filed on 02.07.2013 for renewal of its license but also by keeping it pending for years and requiring the appellant/petitioner through letters to clear deficiencies in its application---This had the consequence of appellant/ petitioner functioning without valid license since 06-05-2011 when its license had expired---New-HCCI submitted application for grant of license as trade organization to respondent/DGTO on 26-04-2019---By that time, license granted to appellant/petitioner had not been cancelled by Federal Government---During subsistence of appellant/petitioner's license, New-HCCI could not have applied to respondent/DGTO for issuance of license in its favour---More than one trade organization with same name and object could not be granted licenses under the provisions of Trade Organizations Act, 2013 and Trade Organizations Rules, 2013---Respondent/DGTO granted license to New-HCCI after cancelling appellant's/petitioner's license and dismissal of appeal by Federal Government---High Court set aside orders against appellant/ petitioner passed by respondent/DGTO and Federal Government---High Court also set-aside license granted by authorities to New-HCCI as the same had been granted in violation of requirements of S. 9(1) of Trade Organizations Act, 2013---High Court remanded the matter to respondent/DGTO to amend show cause notice and thereafter decide whether or not to cancel appellant's/petitioner's license after affording opportunity of hearing as required by S. 7(2) of Trade Organizations Act, 2013---Constitutional petition was allowed accordingly.

Mirza Abdul Rehman and others v. Director General Trade Organization and others Writ Petition No.4239 of 2023; Karachi Women Chamber of Commerce and Industry v. The Director General/Regulator of Trade Organizations Writ Petition No.2274 of 2023; Mian Naseer Hayat Maggo v. Federation of Pakistan through the Ministry of Commerce 2019 CLD 267; MFMY Industries Ltd. v. Federation of Pakistan 2015 SCMR 1550; Pawan Goel v. KMG Milk Food Ltd. (2008 (142) Comp. Cas 441; Abid Hussain v. Additional District Judge, Alipur 2006 SCMR 100 and Messrs Tariq Brothers v. Controller of Customs 2005 PTD 186 ref.

(b) Trade Organizations Act (II of 2013)---

----S. 7(1)(a)--- License, cancellation of--- Jurisdiction--- Federal Government under S. 7(1)(a) of Trade Organizations Act, 2013 is empowered to cancel license of a trade organization which fails to apply for its renewal within prescribed period or extended period allowed by Director General Trade Organization.

(c) Administration of justice---

----Show cause notice---Penal action---Principle---Order which is penal in nature cannot be passed on a ground which is not mentioned in the show cause notice.

Smt. Hetal Alpesh Muchhala v. Adityesh Educational Institute and others 2009 Supreme Court OnLine 1454; Collector Central Excise and Land Customs v. Rahm Din 1987 SCMR 1840; Commissioner Inland Revenue v. RYK Mills 2023 SCMR 1856; Poja Jaiswal v. Food Corporation of India AIR 1923 Allahabad 86; Commissioner Inland Revenue v. Rose Food Industries 2023 SCMR 2070; Ramlala v. State of U.P. 2023 SCC OnLine (All) 2479 and Associated Switch Gears and Projects v. State of U.P. (MANU/UP/0953/2024) rel.

(d) Trade Organizations Act (II of 2013)---

----S.6(1)---Trade Organizations Rules, 2013, R. 10(2) & Schedule-B---Renewal of license---Principle---Litigation of members---Scope---Licensed trade organization is obligated under S. 6(1) of Trade Organizations Act, 2013 to renew its license every five years---Trade organization's application for renewal of its license is to be made to Director General Trade Organization (DGTO) on the format set out in Schedule-B to Trade Organizations Rules, 2013---Conditions which a trade organization has to fulfill for renewal of its license have been set out in R. 10 of Trade Organizations Rules, 2013---Trade organization whose license is not renewed due to non-fulfillment of conditions set out in R. 10(2) of Trade Organizations Rules, 2013, cannot be said to be discharging statutory obligations in accordance with the requirements of Trade Organizations Act, 2013 and Trade Organizations Rules, 2013---Internal bickering or litigation between members of trade organization does not absolve a trade organization from fulfilling its obligations imposed under Trade Organizations Act, 2013 and Trade Organizations Rules, 2013.

(e) Administration of justice---

----Principles of natural justice---Audi alteram partem---Applicability---Principle of natural justice, unless prohibited by wording of a statute, must be read into each and every statute---Right of personal hearing to a person against whom an adverse order is to be made is to be equated with a fundamental right and an adverse order made without affording opportunity of personal hearing is to be treated as a void order---If principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in absence of departure from these essential principles of natural justice---Decision taken in violation of principles of natural justice must be declared to be no decision---Violation of principle of audi alteram partem (no one should be condemned unheard) would be enough to vitiate even the most solemn proceedings---This principle has originated from the Islamic principles of justice.

Abdul Majeed Zafar v. Governor of the Punjab 2007 SCMR 330; Nazir Ahmad Panhwar v. Government of Sindh 2005 SCMR 1814; Collector of Customs, Model Customs Collectorate v. Muhammad Ismail 2023 SCMR 1319; Ashiq Muhammad Khan Mazari v. Chairman Federal Land Commission PLD 1977 SC 461 and Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Ellahi 2005 SCMR 678 rel.

Ali Nawaz Kharal, Hassan Muneeb Zia, Ayesha Tauqeer Aslam, Narmeen Jamal and Malik Qamar Abbas for Petitioner/Appellant.

Arshid Mehmood Kiani, Deputy Attorney-General.

Ms. Asia Batool, Assistant Attorney General for Respondents.

Malik Ghulam Sabir for Respondent No.5 (in Writ Petition No.158 of 2023 and for Applicant in C.M. No. 969 of 2022 in C.M.A. No.56 of 2022).

Muzaffar A. Mirza, Chief Prosecutor and Hasnain Raza, SPP, SECP.

Pir Shah Gul Ahmad, Deputy Director, D.G.T.O.

P L D 2024 Islamabad 378

Before Aamer Farooq, C.J. and Tariq Mehmood Jahangiri, J

MAMOON-UR-RASHEED---Appellant

Versus

HAMID KHAN and another---Respondents

Intra Court Appeal No. 546 of 2021 in W.P. No. 2581 of 2021, decided on 12th June, 2024.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan, Art. 199(1)(a)(ii)---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Penal Code (XLV of 1860), S.489-F---Intra-Court Appeal---Maintainability---Second FIR, quashing of---Term "proceedings"---Scope---Appellant/complainant was aggrieved of quashing of second FIR by Single Judge in Chambers of High Court registered against respondent/accused on same set of allegations---Validity---Intra Court Appeal, in terms of proviso to S. 3(2) of Law Reforms Ordinance, 1972, is neither available nor competent before Bench of two or more Judges of High Court against order of Single Judge made under Art. 199(1) of the Constitution, as FIR is not included in term "proceedings"---Division Bench of High Court declined to interfere in order passed by Judge in Chambers of High Court quashing second FIR---Intra-Court Appeal was dismissed, in circumstances.

National Bank of Pakistan through President and another v. Muhammad Adeel and others 2024 SCMR 982; Rehm Dad v. Province of Punjab through Chief Secretary, Lahore and others PLD 2024 SC 499; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; International Islamic University v. Syed Naveed Altaf 2024 SCMR 472; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I PLD 1985 SC 107; Muhammad Aslam Sukhera v. Collector Land Acquisition PLD 2005 SC 45; Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344; Nawazul Haq Chowhan v. The State and others 2003 SCMR 1597; Junaid Maseeh v. The State through PS CTW, FIA, Islamabad and 2 others 2023 MLD 47; Hussain Can Company (Pvt.) Limited through Chief Executive v. Federal Board of Revenue through Collector Customs, Lahore and 2 others 2017 YLR Note 386; Mian Touseef v. District Police Officer and 2 others 2017 PCr.LJ 1140; Manzoor Ahmad and 2 others v. Muhammad Nawaz and 18 others PLD 2013 Lah. 123 and Pervaiz Akhtar and 3 others v. The State through Circle Officer Anti-Corruption Department T.T. Singh 2005 PCr.LJ 1219 rel.

P L D 2024 Sindh 1

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

POWER CEMENT LIMITED and others---Petitioners

Versus

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

Constitutional Petitions Nos. D-5381 to D-5384 of 2021, decided on 17th October, 2022.

(a) Sindh Mining Concession Rules, 2002---

----Rr. 2(4), 95 & 96---Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act (XXIV of 1948), Ss. 2 & 4---Royalty---Object, purpose and scope---Royalty has been treated in Sindh Mining Concession Rules, 2002, as payment for minerals that are removed or consumed by holder of a mining lease---Holder of mining lease cannot claim that minerals lying beneath the surface of leased land are his own property merely by virtue of mining lease---Basically and fundamentally, minerals are property of the Province, and whilst holder of mining lease wins minerals subject to lease through labour and the enterprise expended in bringing them to surface, he is required to share spoils with the owner of those minerals in shape of royalty---Royalty is a share in such minerals and not a tax in the form of a compulsory exaction or a fee as that term is understood---This is a payment made in consideration of minerals removed or consumed by holder of mining lease, as per mining lease and subject to Sindh Mining and Concession Rules, 2002, promulgated in terms of Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948.

(b) Sindh Mining Concession Rules, 2002---

----Rr. 2(4), 95, 96 & 99---Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act (XXIV of 1948), Ss. 2 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Royalty---Rates, fixation of---Alternate remedy---Petitioner company was aggrieved of increase in royalty payable on account of minerals so extracted---Validity---Reasonableness of Governments' conduct vis-à-vis enhancement of royalty was visible from minutes of meeting of Rate Fixation Committee which reflected that a rational process was adopted in considering subject of enhancement of royalty in as much as a comparative analysis was made between rates or royalty of various major minerals prevailing in Sindh Province as compared to other Provinces of the country, with it coming to the fore that the domestic rates of shale clay and limestone were significantly lower, albeit the quality of those minerals being either the same or of higher grade than what was found elsewhere, and the rates that were then proposed by way of enhancement were either commensurate to or even lower than the rates prevailing in the other Provinces---Cabinet was not misinformed, as alleged, and the discrepant noting pointed out by petitioners in minutes of the Cabinet meeting did not of itself make out a cogent case for the matter to be reconsidered---If enhancement of royalty brought about through Notification in question was so exorbitant as to threaten the very viability of cement industry, then such concern would fall within the parameters of R. 99 of Sindh Mining Concession Rules, 2002 and petitioners were to firstly make a representation to competent authority in that regard in terms thereof---Constitutional petition was dismissed accordingly.

Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and another 2014 SCMR 1630; India Cement v. State of Tamil Nadu AIR 1990 SC 85; Ayaz Textile Mills Ltd. v. Federation of Pakistan through Secretary Commerce, and another PLD 1993 Lah. 194; Messrs Shamim & Co v. Tehsil Municipal Administration, Multan City and 2 others 2004 YLR 366; Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; Waris Meah v. The State and another PLD 1957 SC 157; Inamur Rahman v. Federation of Pakistan and others 1992 SCMR 563; Umar Ahmed Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Engineer Iqbal Zafar Jhagra's case 2013 SCMR 1337; Shanthi Saroop Sharma v. State of Punjab AIR 1969 P&H 79; Atma Ram Bilochi v. State of Rajasthan AIR 1981 Rajasthan 197; Shaukat Ali v. Government of Punjab and others PLD 1992 Lah. 277; The State of West Bengal v. Kesoram Industries Ltd. and others (2004) 10 SCC 201; Mineral Area Development Authority and others v. Steel Authority of India and others (2011) 4 SCC 450 and Messrs Pioneer Cement Ltd v. Secretary, Industries and Mineral Development Department, Lahore and others 2004 SCMR 576 ref.

Rashid Anwer for the Petitioners.

Salman Talibuddin, Advocate General and Sandip Mulani, Assistant Advocate General for the Province of Sindh, along with Syed Sahib Bukhari, Law Officer Mines and Mineral Department, Government of Sindh and Rashid Ansari, Deputy Director, Mines and Mineral Department, Government of Sindh.

P L D 2024 Sindh 28

Before Arshad Hussain Khan, J

ISHRAT SWALEH through Special Attorney---Plaintiff

Versus

Mst. FARZANA SHAIKH and 2 others---Defendants

Suit No. 855 of 2021, decided on 10th June, 2022.

(a) Power of attorney---

----Principal and agent---Relationship---Power of attorney is written authorization, whereby "principal" authorizes "agent" to do acts specified therein on behalf of the "principal"---Such acts when executed are binding on the "principal" as if done by him---Primary purpose of instrument of such nature is to assign authority of "principal" to another person as his agent.

Imam Din v. Bashir Ahmed PLD 2005 SC 418; Suraj Lamp and Industries Private Limited v. State of Haryana and another AIR 2012 SC 206 and State of Rajasthan v. Basant Nehata (2005) 12 SCC 77 rel.

(b) Words and phrases---

----Contract---Definition.

Black's Law Dictionary, Fifth Edition rel.

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

----S.12---Contract Act (IX of 1872), Ss. 201 & 202---Registration Act (XVI of 1908), S. 17 (b)---Stamp Act (II of 1899), S. 2 (21)---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific performance of General Power of Attorney (GPA) coupled with interest---Rejecting of plaint---Death of principals---Unregistered document---Limitation---Plaintiff was holder of unregistered power of attorney and sought its specific performance on the plea that the GPA was coupled with interest in suit property which could not be revoked / terminated upon the death of executants---Validity---Purported GPA was neither registered nor requisite stamp duty, as required under the law for power of attorney given for consideration, was paid/affixed---Authority of plaintiff to alienate property was hit by provisions of S. 17(b) of Registration Act, 1908, read with S. 2(21) of Stamp Act, 1899---Majority of the executants /principals of GPA had expired as such the GPA, even if executed, upon demise of executants, stood terminated by virtue of provisions of section 201 of Contract Act, 1872---Merely the use of word "irrevocable" in power of attorney did not make it so, unless it was clear from the terms that it was an agency coupled with interest of the agent without which it would be only an independent authority lacking the "interest" as envisaged in S. 202 of Contract Act, 1872---GPA in question was not executed either upon consideration or in any way coupled with interest---In absence of any specific term, as envisaged under the law, the GPA could not be treated as coupled with interest---Through GPA in question no contract was entered between the parties for defendants to perform their part of obligation in certain period of time---In absence of any specific date mentioned in GPA for fulfillment of the part of obligation, provision of second part of Art. 113 of Limitation Act, 1908, was not applicable---Plaint was rejected, in circumstances.

Muhammad Ali Zubair v. Sabira Khatoon and another 2017 YLR 138; Mst. Jaiwanti Bai v. Messrs Amir Corporation and others PLD 2021 SC 434; Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377; Mehmood Rangoonwala v. Government of Sindh and others 2006 CLC 611; Muhammad Khan v. Muhammad Amin through L.Rs. and others 2008 SCMR 913; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Muhammad Jameel and others v. Abdul Ghafoor 2022 SCMR 348; Muhammad Yousaf v. Munawwar Hussain and 5 others 2000 SCMR 204 and Karachi Electric Supply Corporation v. Muhammad Shahnawaz and others PLD 2017 Sindh 23 ref.

Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 rel.

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

----O. VII, R. 11---Rejecting of plaint---Principle---Incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse not being permitted by law---In trial of judicial issues i.e. suit which is on the face of it incompetent not because of any formal, technical or curable defect but because of any express or implied embargo imposed upon it by or under law should not be allowed to further encumber legal proceedings.

Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92 rel.

Abdul Latif Leghari along with Imtiaz Mirjat for Plaintiff.

M. Noman Jamali for Defendant No.1.

P L D 2024 Sindh 38

Before Muhammad Shafi Siddiqui, J

Messrs BISMILLAH METAL IMPEX (PVT.) LTD. through Authorized Officer---Plaintiff

Versus

PORT QASIM AUTHORITY through Chairman and 3 others---Defendants

Suit No. 174 and C.M.A. 1692 of 2022, decided on 4th October, 2023.

Public Procurement Rules, 2004---

----R. 19---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, refusal of---Weight of steel---Term "as is and where is basis"---Applicablity---Plaintiff/bidder failed to deposit bid amount in favour of defendant/Port Qasim Authority, in relation to auctioned crafts---Plaintiff in anticipation of action under the provision of R. 19 of Public Procurement Rules, 2004 and forfeiture of security bond sought stay of proceedings---Validity---Bidding document was not a complicated document or a document which required interpretation---Tug/craft was to be weighed on "as is where is basis" and there was no way that the crafts/tugs could be weighed in a way that steel and other part/components of ship should be segregated first---Plaintiff/bidder was not able to make out a prima facie case in its favour and balance of inconvenience was also not in its favour whereas irreparable loss would be suffered by defendant/Authority in case injunction as prayed was granted, as entire process in respect of subject vessels would become standstill---Application was dismissed, in circumstances.

Muhammad Saeed v. State Life Insurance Corporation 2023 PLC (C.S.) 849 and Universal Insurance Company v. Karim Gul 2021 CLD 1189 ref.

Ali Abid Zuberi for Plaintiff.

P L D 2024 Sindh 43

Before Kausar Sultana Hussain, J

Mrs. ANITA NALINI DASS---Plaintiff

Versus

MUHAMMAD JUMMAN and 5 others---Defendants

Suit No. 109 of 2018, decided on 5th September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.I, R.10---Suit for cancellation, declaration and injunction---Necessary and proper party---Determination---New cause of action, adding of---Term 'Dominus Litis'---Scope---Applicant sought impleading of his name as defendant on the plea that he was a necessary party, as he purchased suit property from one defendant through another---Validity---Applicant did not claim any grievance against plaintiff nor the plaintiff had any concern with the applicant---If applicant had any cause of action against two defendants he could file a separate suit against them, rather he would be impleaded as a party in such suit---No person could be permitted to become a party to a suit, who has his own cause of action against the party/parties of the suit, wherein he wants to be impleaded as a party, and in case if he is allowed to become a party that would amount to adding a new cause of action in the suit---Plaintiff was a 'Dominus Litis' and ordinarily no person should be added as party against his wishes---High Court declined to allow impleading of applicant as the suit was at advanced stage and joining of proceedings by applicant would amount to unnecessary prejudice and would embarrass the plaintiff---Application was dismissed, in circumstances.

2019 MLD 212; 2013 SCMR 602; PLD 2017 Lah. 588; 2017 YLR 1579; 1992 CLC 700; 2016 CLD 1790 and Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 rel.

Sarosh Jamil for Plaintiff.

Mujtaba Sohail Raja for Defendants Nos. 1 and 2.

Ms. Nooreen Saeed Rao for Defendant No. 5.

Rasheed Ashraf for Applicant/intervener.

P L D 2024 Sindh 50

Before Muhammad Shafi Siddiqui, J

ARY COMMUNICATIONS LTD. through Duly Authorized Officer---Plaintiff

Versus

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

Suit No. 1292 of 2022 and C.M.As. Nos. 11676 (stay), 13142 and 13143 of 2022, decided on 3rd March, 2023.

(a) Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012---

----Regln. 9---Renewal of license---Security clearance---Federal Government, decision of---Scope---Provision of Regln. 9 of Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012 does not provide any space for Pakistan Electronic Media Regulatory Authority (PEMRA) either to ignore or bypass Ministry of Interior's decision; thus it is binding on PEMRA---If such decision is not binding on PEMRA, the provision of Regln. 9 of Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012 would have demanded a show cause or a notice to licensee by PEMRA on the event or situation where the security clearance was later refused or cancelled.

(b) Constitution of Pakistan---

----Art. 19---Freedom of speech---Principle---Reasonable restriction imposed by law, does not mean to condemn a person/entity without any justification and without hearing.

Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692 rel.

(c) Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012---

----Regln. 9---Decision of Federal Government---Scope---Decision of Ministry, forms a concluded view under Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Aggrieved party should be heard before and if that has not happened, and/or denied, then it constitutes a cause and calls for a consequential remedy---Any cancellation notification, whereby security clearance was denied, is an independent cause and can be challenged independently as right is infringed, in case it is acted upon and given effect by PEMRA without its judicial determination first.

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

----Ss. 26 & 30-A---Pakistan Electronic Media Regulatory Authority (Television Broadcast Station Operations) Regulations, 2012, Regln. 9---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---Cancellation of No Objection Certificate---Veracity of content---Evaluation---Plaintiff company was licensee of Pakistan Electronic Media Regulatory Authority engaged in television broadcasting---Plaintiff company was granted No Objection Certificate by Ministry of Interior for the purposes of security clearance but the same was withdrawn against an aired news content alleged to have created discord between state institutions, masses and Armed Forces of Pakistan---Validity---Authorities did not give any material in support of the allegation---Law required something more than such statements originally presented by PEMRA and they added nothing in it---If the content of program in question was seditious or was of such magnitude that it formed a narrative as demonstrated, then under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 it was responsibility of the Council of Complaint under S. 26 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 to decide veracity of such content---Reasons demonstrated by the Authority were domain of the Council of Complaints---From security agencies/Ministry of Interior, in-depth analysis of direct involvement was required, which could be a threat to national security---Decision of High Court was to act as a binding piece of direction and would ultimately end up in cancellation of a license or not renewing of license---In both ways rights of plaintiff company would be infringed---Where the rights, guaranteed by the Constitution and law were to be infringed, legal recourse was always available---High Court granted interim injunction in favour of plaintiff and against the Authority---Application was allowed, in circumstances.

Independent Music Group SMC (Pvt.) Limited v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2011 Kar. 494; Independent Music Group SMC (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2011 SC 805 and Rasheed Ahmed v. Federation of Pakistan through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan, Islamabad and others PLD 2017 SC 121 ref.

Abid S. Zuberi and Ayan Mustafa Memon along with Ms. Amna Khalili for Plaintiff.

Haider Waheed along with Zoha Sirhandi for Defendants Nos.2 to 4.

Ms. Mahreen Ibrahim, Assistant Attorney General.

P L D 2024 Sindh 66

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

IMRAN KHAN---Petitioner

Versus

Malik AMANULLAH KHAN and 3 others---Respondents

C. P. No. D-7073 of 2022, decided on 8th March, 2023.

Cantonments Local Government (Election) Rules, 2015---

----Rr. 40, 80 & 89---Election of the Cantonments Board---Post of Vice-President---Casting of vote---Doubtful vote---Secrecy regarding identity of voter---Invalidity---Petitioner and respondent were rival candidates---Petitioner secured 6 out of a total of 11 votes as opposed to the 5 votes obtained by the respondent---Respondent preferred an appeal on the ground that one member/voter had placed a mark other than a cross mark in the column provided on the ballot paper against the name of the petitioner in an endeavor to deliberately disclose his identity which was violation of R. 89(4) of the Cantonments Local Government (Election) Rules, 2015 ('the Rules 2015') , which showed secret pact between said caster and the petitioner---Appellate Election Authority allowed said appeal---Validity---Overall framework of the Rules, 2015 revealed that R. 40 of the Rules 2015 related to the direct election for members of the Board where the public comprised of the electorate while casting their votes by affixing a mark within a box appearing against the name of their chosen candidate using the particular marking aid rubber stamp provided for such purpose---Said process was different from an indirect election envisaged under Rr. 88 & 89 of the Rules, 2015 where the elected councilors were to elect the Vice-President---As such, R. 40(4) of the Rules, 2015 and its proviso could not be conflated with the provisions relating to the Vice-Presidential election---Furthermore, beyond the requirement of R.89(5) of the Rules 2015 that a vote for the Vice-President be recorded in private , no further element of secrecy was discernible---Nor was any consequence provided for a violation described under R. 89(6) of the Rules, 2015, which only provides three circumstances for invalidity of ballot-paper---Admittedly, none of the causes/circumstances for invalidation as stated in R. 89(6) of the Rules, 2015 was applicable in the matter-in-hand---Moreover, the assertion of secret pact between the petitioner and the caster of the vote remained a hypothesis unsupported by even a suggestion as to the identity of the errant voter , let alone any tangible evidence---Present case was not one where a rubber marking stamp was to have been used, nor such was the case of the respondent, for if that were so, all the votes cast in the Vice-Presidential election would have to be discarded---Thus, the findings of the Appellate Election Authority could not be sustained---High Court set-aside the impugned order passed by the Appellate Election Authority---Constitutional petition was allowed, in circumstances.

Allah Bakhsh and others v. Mst. Irshad Begum and others 1996 SCMR 1496 and Syed Tassaduq Abbas Bukhari v. Chairman, Appeal Committee, Punjab-I, Pakistan Bar Council, Islamabad and 20 others 2001 MLD 634 ref.

Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713 distinguished.

Ghulam Shabbir Shah for Petitioner.

Abdul Wahab Balouch for Respondent No.1.

Ashraf Ali Butt for Respondent No.2.

Kazi Abdul Hameed Siddiqui, D.A.G along with Mubashir Mirza, A.A.G. for Respondent No.3.

Sarmad Sarwar, Law Officer for Respondent No.4.

P L D 2024 Sindh 75

Before Muhammad Shafi Siddiqui, J

ARIF HASSAN ALI HASHWANI and 3 others---Appellants

Versus

SADRUDDIN HASHWANI and 12 others---Respondents

Suit No. 1789 of 2022 and C.M.A. No. 17705 of 2022, decided on 16th March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.II, R. 2 & O. VII, R. 11---Suit for declaration and injunction---Rejection of plaint---Relief not pressed---Defendants sought rejection of plaint on the plea that in earlier suits portion of claim given up was again raised by plaintiffs---Validity---If a litigant is entitled to more than one relief in respect of same cause of action, he has to sue for all or he may sue for any of the relief he may opt but the leftover would count as an omission to sue---Provisions of O. II, R. 2, C.P.C., are penal in nature and precludes a litigant to sue for a portion of claim or remedy so ignored or omitted---Plaintiffs ignored and omitted to sue for all claims and reliefs to which they were entitled with regard to a cause of action that was "breach of trust" and hence were precluded to have a next round of litigation on the original cause of action---Plaintiffs could only ignore any of the matured relief at the risk of treating them as relinquished or ignored one---Purported breach of trust of one defendant gave rise to a common cause of action and for any relief arising out of that common cause of action, provision of O. II, R. 2(2), C.P.C., provided that plaintiffs cannot split the relief into parts where the cause had been consumed in an earlier litigation so as to bring separate suits in respect of those parts left behind---Pleadings of the two suits disclosed that there was one cause i.e. breach of trust which would cover all promises that were made under a transaction, whether oral or in writing---Suit was hit by provisions of O. II, R. 2(2) C.P.C. and was barred under the law---High Court rejected the plaint under O. VII, R. 11, C.P.C.---Application was allowed, in circumstances.

Hussain Ali Almani for Plaintiffs.

Arshad Tayebally, Omer Memon and Aitzaz Manzoor Memon for Defendants Nos. 1, 5 and 6.

Zahid F. Ebrahim along with S. Furqan Ahmed for Defendants Nos.2, 8 and 9.

Taha Ali Zai along with Fawad Syed for Defendant No.3.

P L D 2024 Sindh 89

Before Irfan Saadat Khan and Sana Akram Minhas, JJ

Mst. NUSRAT FAREED---Appellant

Versus

Haji AHMED MUJAHID and 2 others---Respondents

High Court Appeal No. 384 of 2022, decided on 15th June, 2023.

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

----S.372---Succession application---Estate of deceased (Tarka)---What constitutes estate of a deceased---Principles; (i) The estate of a deceased person comprises of his moveable and/or immoveable assets, right or benefit which he owned and over which he had complete control and dominion or entitlement to claim the same so as to enter into a transaction of sale, exchange, transfer or gift in respect of them; (ii) The legal heirs of a deceased can inherit only from the estate of the deceased; any property, right or benefit that does not form part of the estate is not inheritable; (iii) The yardstick for establishing what constitutes a deceased's estate is that only such property, right or benefit of a deceased person is inheritable and shall form part of his estate that was in his ownership at the time of death or he had acquired an absolute right in law to claim during his lifetime; conversely, any property, right or benefit which a deceased could not claim in his lifetime shall not form part of a deceased's estate---In the present case, a Succession Certificate was not required and, thus, the Succession Miscellaneous Application filed by the deceased' father was not maintainable in respect of the proceeds of Group Insurance, as the same did not constitute the estate of a deceased under the law---Division Bench of the High Court set aside the impugned order passed by the Single Judge of the High Court (Testamentary and Intestate Jurisdiction) being not sustainable---High Court Appeal was disposed of.

Wafaqi Hakumat Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731; Pakistan International Airlines Corporation v. Alia Siddiqa 2001 MLD 1; In the matter of: Late Javed Iqbal Ghaznavi PLD 2010 Kar. 153; Pervez Iqbal Ghaznavi v. Rehana Ghaznavi (an unreported judgment of a Division Bench of this Court dated 9.3.2013 delivered in HCA No.28 of 2010); Abdul Ghaffar v. Government of Sindh 2017 PLC (C.S.) 625; Muhammad Javed v. Roshan Jahan PLD 2019 Sindh 1 and Naz Bibi v. Wahid Bux (an unreported judgment of a learned Single Judge of this Court dated 2.8.2021) in Second Appeal No.85 of 2019 ref.

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

----S. 372---Group Insurance Proceeds, distribution of---Succession application---Maintainability---Absence of nomination---Estate---Scope---Deceased was survived by two legal heirs i.e. widow and father---Trial Court, while deciding succession application filed by father, directed distribution of Group Insurance Proceeds between them as per shares prescribed in Sharia---Appellant (widow) claimed to be the sole nominee/beneficiary entitled to the entire Group Insurance Proceeds---Held, that since the Group Insurance Proceeds of deceased did not fall within the definition of estate, the same was not available for its distribution among the legal heirs and could not devolve on his legal heirs---To grant a succession certificate would mean to hold that Group Insurance Proceeds formed part of the deceased's estate which would in turn mean that Group Insurance Proceeds were liable to be distributed amongst the legal heirs which would be incorrect---Thus, in the present case, a succession certificate was not required and, thus, the Succession Miscellaneous Application filed by the deceased' father was not maintainable in respect of the proceeds of Group Insurance, as the same did not constitute the estate of a deceased under the law---Division Bench of the High Court set aside the impugned order passed by the Single Judge of the High Court (Testamentary and Intestate Jurisdiction) being not sustainable---High Court Appeal was disposed of.

Wafaqi Hakumat Pakistan v. Awamunnas PLD 1991 SC (Shariat Appellate Bench) 731; In the matter of: Late Javed Iqbal Ghaznavi PLD 2010 Kar. 153; Pervez Iqbal Ghaznavi v. Rehana Ghaznavi (an unreported judgment of a Division Bench of this Court dated 9.3.2013 delivered in HCA No.28 of 2010); Naz Bibi v. Wahid Bux (also an unreported judgment of a learned Single Judge of this Court dated 2.8.2021 in Second Appeal No.85 of 2019); Karim Bux v. Province of Sindh 2022 PLC (C.S.) 1182 and Liaquat Ali v. Huma Faiz PLD 2018 Sindh 251 ref.

Ameeran Khatoon v. Shamim Akhtar 2005 SCMR 512 distinguished.

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

----Ss. 295 & 372---Group Insurance Proceeds, distribution of---Succession application or suit for administration---Maintainability---Deceased was survived by two legal heirs i.e. widow and father---Trial Court, while deciding succession application filed by father, directed distribution of Group Insurance Proceeds between them as per shares prescribed in Sharia---Plea of the appellant (widow), claiming herself to be the sole nominee/beneficiary, was that Trial Court ought to have converted the Succession Application into suit for administration---Held, that the plea of the appellant was flawed as without going into the question of what constituted or qualified as a contentious matter, the object and scope of a suit for administration was to administer the estate of a deceased---Since the Group Insurance Proceeds did not form part of the estate of a deceased, hence for the said reasons a suit for administration also would not lie in respect of it---In the present case, a Succession Certificate was not required and, thus, the Succession Miscellaneous Application filed by the deceased' father was not maintainable in respect of the proceeds of Group Insurance, as the same did not constitute the estate of a deceased under the law---Division Bench of the High Court set aside the impugned order passed by the Single Judge of the High Court (Testamentary and Intestate Jurisdiction) being not sustainable---High Court Appeal was disposed of.

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

----S. 372---Succession application--- Group insurance Proceeds, distribution of---Estate---Scope Nominee/nomination---Scope---Deceased was survived by two legal heirs i.e. widow and father---Trial Court, while deciding succession application filed by father, directed distribution of Group Insurance Proceeds between them as per shares prescribed in Sharia---Appellant (widow) claimed to be the sole nominee/beneficiary entitled to the entire Group Insurance Proceeds on the basis of the Data Form filled and signed by the deceased in his own handwriting---Held, that the mere act of nomination did not grant a nominee a right in the assets of a deceased person---Role and responsibility of a valid nominee of a deceased person varied with what constitutes the estate of a deceased, that is; i) where the benefits formed part of the estate of a deceased, the nomination merely conferred upon the nominee (whether he be one of the legal heirs of the deceased or not) a limited right and responsibility to collect or receive such amount and distribute the same amongst the legal heirs of the nominator/deceased entitled under the law of succession applicable to the deceased; nomination in such a case could not act to deprive or exclude the legal heirs from their right of inheritance; nomination did not confer or vest any title in favour of the nominee and the latter did not become the owner; nominee was merely a trustee who collects for the benefit of all persons entitled to inherit from the deceased; in short, it merely obviates the necessity of obtaining letters of administration or succession certificates; ii) On the other hand, if the benefits did not form part of the estate of a deceased, then ordinarily it must go to the duly appointed nominee as otherwise it would defeat the purpose and intent of the nomination; the nominee in such a case would be under no obligation to distribute such benefits amongst the legal heirs of a deceased---In the present case, a Succession Certificate was not required and, thus, the Succession Miscellaneous Application filed by the deceased' father was not maintainable in respect of the proceeds of Group Insurance, as the same did not constitute the estate of a deceased under the law---Division Bench of the High Court set aside the impugned order passed by the Single Judge of the High Court (Testamentary and Intestate Jurisdiction) being not sustainable---High Court Appeal was disposed of.

Naz Bibi v. Wahid Bux (also an unreported judgment of a learned Single Judge of this Court dated 2.8.2021 in Second Appeal No.85 of 2019); Amtul Habib v. Mussarat Parveen PLD 1974 SC 185; Muhammad Hanif Khan Afridi v. Shakila Begum 2002 MLD 1506 and Lt. Muhammad Sohail Anjum v. Abdul Rasheed Khan 2003 MLD 1095 ref.

Syed Aijaz Hussain Shirazi for Appellant.

S. Abid Hussain Shirazi for Respondent No.1.

Hamza Hussain Hidayatullah for Respondent No.2.

Muhammad Ishaq for Respondent No.3.

P L D 2024 Sindh 100

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

HAR LAL---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No. D-275 of 2020, decided on 8th March, 2023.

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

----Ss. 9(3) & 45---National Database and Registration Authority (Application for National Identity Card) Regulations, 2002, Regln. 10(2) & Sched. II, Form---Constitution of Pakistan, Arts. 2 & 260(3)(a), (b)---Declaration, signing of---Non-Muslims---Applicability---Petitioner was a non-Muslim who assailed requirement of signing of a declaration for Muslims only at the time of issuance of Computerized National Identity Card---Validity---Islam may be the State religion in terms of Art. 2 of the Constitution and whilst Art. 260 (3)(a) & (b) of the Constitution sets out definition of a "Muslim" and clarifies that any person who does not fall within that definition is a "non-Muslim" to include persons belonging to certain other faiths forming part of the religious minorities of the country within that fold---Constitution does not regard other religions to be lesser or non-Muslims to be less than equal citizens---Constitution does not presume all citizens to be Muslims and envisages that non-Muslims are required to firstly deny an affiliation to Islam through a declaration that they are not Muslims for purpose of stating their own faith---On the contrary, the Constitution is axiomatic that just as people practicing Islam identify as Muslim, people who profess the religion of Hinduism identify themselves as Hindus and people professing religion of Christianity identify themselves as Christians, and so on, with each separate identification mutually exclusive of others, and it thus is sufficient for adherents to any particular religion to simply state that they are followers of such faith---High Court directed Federal Government and National Database Registration Authority to redesign the Form set out in Schedule II of the Regulations so as to harmonize the declaration to be made by all citizens so that they may simply state their own faith without having to disavow an affiliation or association with any other religion---Constitutional petition was allowed accordingly.

Mulana Allah Wasaya v. Federation of Pakistan through Ministry of Law and Justice PLD 2019 Isl. 62; Suo Motu Case No.1 of 2014 and others PLD 2014 SC 699; Tahir Naqash and others v. The State and others PLD 2022 SC 385 and Ameen Masih v. Federation of Pakistan and others PLD 2017 Lah. 610 ref.

Abdullah Nizamani along with Yaser Latif Hamdani for Petitioner.

Kazi Abdul Hameed Siddiqui, D.A.G along with Samina Maqsood, Law Officer, NADRA for Respondents.

P L D 2024 Sindh 108

Before Muhammad Shafi Siddiqui, J

ASIF ALI and others---Appellants

Versus

Mst. ZOHRA---Respondent

IInd Civil Appeal No. 19 of 2021, decided on 22nd April, 2021.

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

----Ss. 42, 39, 12 & 8---Issue framed by Trial Court---Scope---Consequential relief by way of possession not claimed---Suit for declaration, specific performance, possession, mesne profit, compensation was filed which was decreed by the Trial Court and the decree was maintained by the First Appellate Court---Scope---Record showed that while framing the issues, the pleadings of the parties were considered and perhaps the Trial Court was then of the view that the plaintiff was also entitled for the relief of possession of the suit property and consequently, such issue was framed---Before the trial Court, the appellants never objected to the framing of such issues and consequently, the evidence was recorded on these framed issues---Suit of the respondent was then decreed not as prayed but in the terms as incorporated in the decree dated 22.4.2019---In terms of clause (iii) of the decree, the appellants were directed to hand over vacant physical possession of the property to the plaintiff within a period of two months since sale deed had already been executed---Appellants did not challenge the wisdom of the Trial Court which framed the issue of handing over possession---None of the grounds was raised in that regard by the appellants before the First Appellate Court that such issue should not have been framed, hence, it was neither challenged before the Trial Court nor before the First Appellate Court that the issue of possession was unnecessarily framed---Same was not challenged by the appellants in present appeal and only oral submissions were made to that extent that since it was a legal issue, he might be permitted to argue--- Relief was not only the one which was raised in the prayer clauses but at times relief that flowed from the pleading of the parties might also be taken into consideration in order to discharge complete justice---In substance as the title of the suit suggested, it was for performance of the agreement and if it was a necessity that possession was supposed to be handed over in performance of the agreement, then the two Courts below had applied their judicious minds and discharged complete justice---Since cognizance was taken by the Trial Court at the relevant time and issue was framed therefore, the concurrent findings of two Courts below on facts and procedural law could not be disturbed---Appeal was accordingly dismissed.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 ref.

(b) Administration of justice---

----Legal question---Scope---Questions which are purely legal in nature could be raised at any proper forum.

Naveed Ahmed Khan for Appellants.

P L D 2024 Sindh 112

Before Muhammad Junaid Ghaffar and Sana Akram Minhas, JJ

GHULAMALI P. ALLANA---Appellant

Versus

LOUIS DREYFUS COMMODITIES SUISSE SA and 3 others---Respondents

High Court Appeal No. 62 of 2023, decided on 5th January, 2024.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R. 5---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court Appeal---Attachment before judgment---Principle---Applicability---In suit for recovery of money and damages appellant/ plaintiff sought attachment of properties of respondents/defendants before judgment but Trial Court ordered respondents/defendants to furnish security---Validity---Before an order of attachment before judgment can be granted, the Court must be convinced, through affidavit or other means, that a defendant is intending to obstruct or delay execution of any potential future decree by disposing of its property---No person is prohibited from dealing with his property simply because a lawsuit has been filed against him---Power to attach is only justified when Court is convinced not only that the defendant is disposing of or removing his property but also that the intent is to obstruct or delay execution of a potential future decree---It is open to Court to look to conduct of parties immediately before the suit and to examine surrounding circumstances and to draw an inference as to whether defendant is about to dispose of the property and if so, with what intention---Court can take into account nature of claim and the defence put forward---Neither the plaint nor attachment application alleged that the goods were being shipped by respondents/defendants with the intent to obstruct or delay execution of a decree that might be passed in the suit---No such intent could have been ascribed to respondents/defendants when shipment had been arranged/scheduled prior to institution of the suit without notice of any impending legal action---Plaint conveyed that shipment of goods was part of respondents'/defendants' business operations and not specifically undertaken in response to the lawsuit---Division Bench of High Court declined to interfere in the order passed by Trial Court as there was no infirmity or illegality nor was pointed out by appellant/plaintiff---Trial Court while passing order in question had appreciated all facts involved in the case---Intra Court Appeal was dismissed, in circumstances.

Pakistan v. Hikmat Hussain PLD 1959 SC 107 and Muhammad Mustafa v. Government of Pakistan 1984 PLC (C.S.) 353 ref.

Associated Drillers Ltd. v. Dirk Verstoop BV PLD 1979 Kar. 734; DHL International v. NTC Ltd. 1982 CLC 1360; Mohammad Arif Effendi v. Egypt Air 1983 SCMR 238; Muhammad Ather Hafeez Khan v. Ssangyong and Usmani JV PLD 2011 Kar. 605; Anwar Mangi v. Pak Commodities International PLD 2018 Sindh 339; Kasb Corporation v. Bank Islami 2019 YLR 345; Abdul Razzak (Deceased) v. Faysal Bank 2020 CLD 238 and Sui Southern Gas Company v. Karachi Electric Supply Company PLD 2020 Sindh 385 rel.

Amel Khan Kansi for Appellant.

Salman Hamid for Respondents Nos.1 to 5.

P L D 2024 Sindh 119

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

MUHAMMAD IBRAHIM ABRO---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C. P. No. D-3993 of 2023, decided on 25th August, 2023.

Constitution of Pakistan---

----Arts. 207 & 260---Caretaker Chief Minister, appointment of---Retired Judge of Supreme Court---Service of Pakistan---Scope---Petitioner (a practicing advocate) invoked constitutional jurisdiction of the High Court challenging the appointment of a retired Judge of Supreme Court as a caretaker Chief Minister of Sindh ('CM'),---Contention of the petitioner was that as two years period of the incumbent CM from retirement in terms of Art. 207(2) of the Constitution had not elapsed thus he was liable to be removed from the post---Validity---Contention of the petitioner was misconceived as he had lost sight of Art. 260 of the Constitution, defining the expression "service of Pakistan", from which it was apparent that the post of CM was specifically excluded from the ambit of the term---Constitutional petition was dismissed in limine, in circumstances.

P L D 2024 Sindh 121

Before Agha Faisal, J

ALI MARDAN SHAH and 3 others---Applicants

Versus

MUSHTAQUE through L.Rs. and others---Respondents

R. A. No. 165 of 2010, decided on 26th October, 2023.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11 & 13---Limitation Act (IX of 1908), S. 3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Rejecting of plaint---Limitation---Fresh plaint, filing of---Principle---Plaint filed by respondent/plaintiff was rejected by Trial Court but Lower Appellate Court set aside the order of Trial Court---Validity---Mere rejection does not preclude presentation of fresh plaint, provided the underlying defect remains uncured or is incapable of being cured---Rejection on account of limitation and/or res judicata is prima facie incurable defect, which precludes de novo agitation if the infirmity subsisted---Order passed by Lower Appellate Court addressed glaring defects in plaintiff's case in a perfunctory manner and then proceeded to allow appeal in absence of defects having been justifiably disapplied, cured or distinguished---Law required Court to first determine whether proceedings filed there before were within time and Courts were mandated to conduct such exercise regardless of whether or not any objection had been taken in such regard---Proceedings barred by even a day could be dismissed---Once time began to run, it would run continuously and bar of limitation created vested rights in favour of other party---Matter barred by time had to be dismissed without touching upon merits and once limitation had lapsed, door of adjudication was closed irrespective of pleas of hardship, injustice or ignorance---Provisions of O. VII, R 13, C.P.C. did not merit relief in presence of bar of limitation---Lower Appellate Court disregarded underlying facts and overriding interpretation of law, while rendering order in question and had exercised jurisdiction with manifest irregularity---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed, in circumstances.

Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247; 2009 SCMR 1079; 2007 SCMR 945; 2016 CLC 663; 2010 CLC 1393; 2014 YLR 1082; 2013 YLR 407; Awan Apparels (Private) Limited and others v. United Bank Limited and others 2004 CLD 732; 2001 PLC 272; 2001 PLC 143; 2001 PLC 156; 2020 PLC 82; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Khizar Hayat v. Pakistan Railways 1993 PLC 106; Dr. Anwar Ali Sahito v. Federation of Pakistan 2002 PLC (C.S.) 526; DPO v. Punjab Labour Tribunal 1987 CLC 1397; Muhammad Tufail Danish v. Deputy Director FIA 1991 SCMR 1841; Mirza Muhammad Saeed v. Shahabudin PLD 1983 SC 385; Ch Muhammad Sharif v. Muhammad Ali Khan 1975 SCMR 259; WAPDA v. Aurangzeb 1988 SCMR 1354; 2006 CLC 303; PLD 1980 Pesh. 87 and PLD 1973 Lah. 495 rel.

Parkash Kumar for Applicants.

Hakim Ali Siddiqui for Respondents.

Wali Muhammad Jamari, A.A.G. for the Official Respondents

P L D 2024 Sindh 132

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

HAKIMSONS (IMPEX) (PRIVATE) LIMITED through duly authorized officer/representative and 27 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division, Islamabad and another---Respondents

C. P. No. D-4614 of 2022 (with other connected petitions), decided on 25th November, 2022.

(a) Interpretation of statutes---

----Taxing statute---Categories of persons---Principle of equal protection---Scope---Legislature is competent to classify persons or properties into different categories subject to different rates of tax---Test of vice of discrimination in taxing law is less rigorous---If there is equality and uniformity within each group founded on intelligible differentia having a rational nexus with the object sought to be achieved by the law, the Constitutional mandate that a law should not be discriminatory is fulfilled---Guarantee of equal protection of laws also extends to taxing statutes---If taxation imposes similar burden on every one with reference to that particular kind and extent of property, on the same basis of taxation, such law is not open to attack on the ground of inequality, even though result of taxation may be that the total burden on different persons may be unequal---If Legislature has classified persons or properties into different categories, which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to attack of inequality on the ground that total burden resulting from such classification is unequal---In deciding whether a taxation law is discriminatory or

not it is necessary to bear in mind that State has a wide discretion in selecting persons or objects it taxes---A statute is not open to attack on the ground that it taxes some persons or objects and not others.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Sheraz Kaka v. Federation of Pakistan 2018 PTD 336; AIR 1961 SC 552 and Avinder Singh and others v. State of Punjab (1979) 1 Supreme Court Cases 137 rel.

(b) Income Tax Ordinance (XLIX of 2001)---

----S. 7E [as inserted by Finance Act, 2022]---Constitution of Pakistan, Art. 199 & Fourth Schedule, Federal Legislative List---Constitutional petition---Vires of law---Deemed income---Concept---Federal Government, powers of---Petitioners/tax-payers assailed provision of S. 7E of Income Tax Ordinance, 2001, on the plea that it was ultra vires the Constitution---Validity---Concept of deemed income was levy of tax on fixed amount of income, whether or not property was let out; or taxpayer was actually receiving such income---Levy under S. 7E of Income Tax Ordinance, 2001, was not a tax on property per-se but a tax on deemed income for holding of a capital asset as defined in S. 7E of Income Tax Ordinance, 2001, along with exceptions and or exemptions as were also applicable to petitioners/taxpayers---It was a tax on income deemed from such immoveable properties and fell within Entry 47 of Federal Legislative List as provided under the Fourth Schedule to the Constitution---It was not a tax on property; hence, did not fall under Entry 50 of Federal Legislative List as provided under the Fourth Schedule to the Constitution and was not to be levied by Provincial Legislature---No tax was levied on property itself; rather it was a tax on deemed income of property---It was not a tax levied without there being any transaction not resulting in any income---Holding of property beyond threshold as provided in S. 7E(2)(g) of Income Tax Ordinance, 2001, was by itself a transaction which had been deemed to be an income within the ambit of S. 7E of Income Tax Ordinance, 2001---Transaction could not only occur when an actual amount of income was received, as deemed income concept was upheld by Supreme Court in the 'Elahi Cotton case' reported as PLD 1997 SC 582---High Court declined to go any further to elaborate concept of deemed income which was an income, notwithstanding that it was received in terms of money or otherwise---Deemed income was a fictional income concept, and if at all, it was to be relatable to an actual transaction or an attempt to generate an income, it would then not be an income deemed to have arisen---Deemed income of a tax-payer was always not an actual income---If conditions of an enactment were satisfied, it was deemed income, irrespective of the actual transaction---This was what the concept of a deemed income was---Any other interpretation and meaning would not be a deemed income but an actual income---Fictional income was not needed to create a situation which already existed in reality---It was an income which was deemed to have arisen and that was all---Once it was so, then any other relative happenings were materially irrelevant---Definition of income was an inclusive definition; it had enlarged meaning of income---Income from property which was made liable to tax was not its actual income in money but an artificial or statutory income as explained in S. 7E of Income Tax Ordinance, 2001---By way of insertion of S. 7E in Income Tax Ordinance, 2001, another head of income was created, though fictionally---Owner of property received no income in fact or even that there was no possibility of his receiving income was irrelevant for the consideration of the question as to what artificial or statutory income of an assessee was from property---Fictions always conflicted with reality, whereas presumptions might prove to be true---Legal fictions created an artificial state of affairs by a mandate of the Legislature---Everybody concerned including the Courts were compelled to believe existence of artificial state of facts contrary to real state of facts---When a fiction was created by law, it was not open to anybody to plead or argue that artificial state of facts created by law was not true, barring only possible course if at all available was to question constitutionality of the fiction---High Court declined to draw any exception to competence of Federal Legislature while introducing S. 7E through Finance Act, 2022, in Income Tax Ordinance, 2001---Levy in question was neither ultra vires the Constitution nor was confiscatory or discriminatory---Federal Legislature was fully competent to impose tax on deemed income pursuant to S. 7E of Income Tax Ordinance, 2001---Constitutional petition was dismissed, in circumstances.

Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Sohail Jute Mills Ltd. v. Federation of Pakistan PLD 1991 SC 329; Attorney General of British Columbia v. Macdonald Murphy Lumber Company 1930 AC 357; Attorney General for Ontario v. Reciprocal Insurers and others 1924 AC Privy Council 328; Pakistan International Freight of Forwarders Association v. Province of Sindh and another 2017 PTD 1; Tariq Aziz ud Din Human Rights Case) 2010 SCMR 130; Molasses Trading and Export v. Federation of Pakistan and others 1993 SCMR 905; Pakistan Industrial Development Corporation v. Pakistan through Secretary, Ministry of Finance, 1992 SCMR 891; Pakistan State Oil Ltd. v. Commissioner of Income Tax, Karachi 2018 SCMR 894; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; State v. Azizur Rehman PLD 1973 SC 49; Messrs Pakistan Television Corporation Limited v. Commissioner Inland Revenue Legal; LTU, Islamabad and others 2017 PTD 1372; D.S. Nakara and others v. Union of India AIR 1983 SC 130; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 (SC Pak) 9; Abid Hussain Sherazi v. Secretary Ministry of Industries and Production, Government of Pakistan, Islamabad 2005 SCMR 1742; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Yaqoob Ahmed through Attorney and others v. Federation of Pakistan through The Secretary of Law, Ministry of Law and others 2020 PTD 1407; Syed Nasir Ali and 33 others v. Pakistan through Secretary Ministry of Law, Islamabad and 3 others 2010 PTD 1924; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Shah Nawaz Shah Nawaz Pvt. Ltd. through Director Finance v. Pakistan through the Secretary Ministry of Finance Government of Pakistan, Islamabad and another 2011 PTD 1558; Messrs Bhuwalka Steel Industries Ltd. and another v. Union of India and others (Civil Appeal No. 7823/2014); Muhammad Khalild Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another 2017 PTD 805; Messrs I.C.C. Textile Ltd. and Others v. Federation of Pakistan and others 2001 PTD 1557; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388 (670), Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782) and Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956; Rai Ramakrishna v. State of Bihar (1963) 50 ITR 171; Bhagwan Dass Jain v. Union of India AIR 1981 SC 907; Pakistan Burmah Shell Limited v. Federation of Pakistan 1998 PTD 1804; Aisha Spinning Mills Limited v. Federation of Pakistan 1995 PTD 493; C.I.T. v. Bombay Trust Corporation 4 ITC 312; Vermeer-Kunzli, Annemarieke, As If: The Legal Fiction in Diplomatic Protection, European Journal of International Law (2007); Bhuwalka Steel v. Union of India (2017) 5 SCC 598 and In re: Patiala State Bank's case AIR 1941 Bombay 94 rel.

Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan and others PLD 1997 SC 582 fol.

| | | | | --- | --- | --- | | 1. | C. P. D- 4614/2022 | Hakimsons (Impex) (Pvt.) Ltd. and others v. Federation of Pakistan and others | | 2. | C. P. No. D-4518/2022 | Muhammad Aamir Altaf Qureshi v. Federation of Pakistan and others | | 3. | C. P. No. D-4519/2022 | Salma Aamir Altaf Qureshi v. Federation of Pakistan and others | | 4. | C. P. No. D-4520/2022 | Sunshine Corporation (Pvt.) Ltd. v. Federation of Pakistan and others | | 5. | C. P. No. D-4521/2022 | Muhammad Asim v. Federation of Pakistan and others | | 6. | C. P. No. D-4522/2022 | Shahbaz Yasin Malik and others v. Federation of Pakistan and others | | 7. | C. P. No. D-4523/2022 | Osman Asghar Khan and another v. Federation of Pakistan and others | | 8. | C. P. No. D-4524/2022 | Mian Muhammad Ahmed and others v. Federation of Pakistan and others | | 9. | C. P. No. D-4525/2022 | Faisal Hanif and others v. Federation of Pakistan and others | | 10. | C. P. No. D-4526/2022 | Naveed Arshad and others v. 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Federation of Pakistan and others | | 61. | C. P. No. D-5443/2022 | Muhammad Samir Ali Feroze v. Federation of Pakistan and others | | 62. | C. P. No. D-5444/2022 | Muhammad Asim and others v. Federation of Pakistan and others | | 63. | C. P. No. D-5446/2022 | Din Corp Pvt Ltd v. Federation of Pakistan and others | | 64. | C. P. No. D-5447/2022 | Din Leather Pvt Ltd v. Federation of Pakistan and others | | 65. | C. P. No. D-5448/2022 | Shaikh Muhammad Muneer and others v. Federation of Pakistan and others | | 66. | C. P. No. D-5449/2022 | Muhammad Tariq Rafi v. Federation of Pakistan and others | | 67. | C. P. No. D-5453/2022 | Baraka Zain and others v. Federation of Pakistan and others | | 68. | C. P. No. D-5480/2022 | Muhammad Amir and another v. Federation of Pakistan and others | | 69. | C. P. No. D-5503/2022 | Aman Aslam and others v. Federation of Pakistan and others | | 70. | C. P. No. D-5506/2022 | Faisal Rahim Saya and others v. Federation of Pakistan and others | | 71. | C. P. No. D-5519/2022 | Amin Qasim and others v. Federation of Pakistan and others | | 72. | C. P. No. D-5520/2022 | Shaheen Amin v. Federation of Pakistan and others | | 73. | C. P. No. D-5527/2022 | Saghir Ahmed Khan Afridi and others v. Federation of Pakistan and others | | 74. | C. P. No. D-5528/2022 | Masood Ahmed Sheikh and others v. Federation of Pakistan and others | | 75. | C. P. No. D-5529/2022 | Muhammad Imran Qazi and others v. Federation of Pakistan and others | | 76. | C. P. No. D-5538/2022 | Muhammad Irfan and others v. Federation of Pakistan and others | | 77. | C. P. No. D-5539/2022 | Abdul Latif Noorani and others v. Federation of Pakistan and others | | 78. | C. P. No. D-5540/2022 | Muhammad Haroon v. Federation of Pakistan and others | | 79. | C. P. No. D-5541/2022 | Kamran Waqar v. Federation of Pakistan and others | | 80. | C. P. No. D-5542/2022 | Feroze Ahmed Khan v. Federation of Pakistan and others | | 81. | C. P. No. D-5562/2022 | Muhammad Iqbal Ahmed Khan v. 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No. D-5693/2022 | Nasir Yusuf and others v. Federation of Pakistan and others | | 103. | C. P. No. D-5706/2022 | Nighat Afshan v. Federation of Pakistan and others | | 104. | C. P. No. D-5724/2022 | Siza Commodities (Pvt.) Ltd. and others v. Federation of Pakistan and others | | 105. | C. P. No. D-5725/2022 | Ms. Malaika Kazi v. Federation of Pakistan and others | | 106. | C. P. No. D-5726/2022 | Pervaiz Kazi v. Federation of Pakistan and others | | 107. | C. P. No. D-5727/2022 | Ms. Salma Kazi v. Federation of Pakistan and others | | 108. | C. P. No. D-5741/2022 | Muhammad Arif Habib v. Federation of Pakistan and others | | 109. | C. P. No. D-5742/2022 | Nida Ahsan v. Federation of Pakistan and others | | 110. | C. P. No. D-5754/2022 | Sher Muhammad Mugheri v. Federation of Pakistan and others | | 111. | C. P. No. D-5762/2022 | Abdul Qayyum v. Federation of Pakistan and others | | 112. | C. P. No. D-5766/2022 | Khurram Kasim v. Federation of Pakistan and others | | 113. | C. P. No. D-5767/2022 | Ahmed Ebrahim Hasham v. Federation of Pakistan and others | | 114. | C. P. No. D-5771/2022 | Noushab Khalid Rehman v. Federation of Pakistan and others | | 115. | C. P. No. D-5773/2022 | Mustafa Madni and others v. Federation of Pakistan and others | | 116. | C. P. No. D-5780/2022 | Samia Begum and others v. Federation of Pakistan and others | | 117. | C. P. No. D-5786/2022 | Asif Jooma v. Federation of Pakistan and others | | 118. | C. P. No. D-5794/2022 | Farah Shaukat v. Federation of Pakistan and others | | 119. | C. P. No. D-5795/2022 | Imran Shaukat Ahmed v. Federation of Pakistan and others | | 120. | C. P. No. D-5812/2022 | Muhammad Umar Hayat Chohan and others v. Federation of Pakistan and others | | 121. | C. P. No. D-5825/2022 | Rabia Allana and others v. Federation of Pakistan and others | | 122. | C. P. No. D-5826/2022 | Asim Siddiqui v. Federation of Pakistan and others | | 123. | C. P. No. D-5839/2022 | Saifuddin Sistanwala v. Federation of Pakistan and others | | 124. | C. P. No. D-5840/2022 | Aqueel Ebrahim Merchant v. Federation of Pakistan and others | | 125. | C. P. No. D-5841/2022 | Kamran Yousuf Mirza v. Federation of Pakistan and others | | 126. | C. P. No. D-5880/2022 | Aurangzeb Firoz v. Federation of Pakistan and others | | 127. | C. P. No. D-5881/2022 | Farzana Firoz v. Federation of Pakistan and others | | 128. | C. P. No. D-5883/2022 | Salman Ahmed Tabba v. Federation of Pakistan and others | | 129. | C. P. No. D-5926/2022 | Abdul Samad Dawood v. Federation of Pakistan and others | | 130. | C. P. No. D-5929/2022 | Ms. Sabreena Dawood v. Federation of Pakistan and others | | 131. | C. P. No. D-5934/2022 | Abdul Jabbar A. Motiwala v. Federation of Pakistan and others | | 132. | C. P. No. D-5935/2022 | Dilara Abdul Jabbar Motiwala v. Federation of Pakistan and others | | 133. | C. P. No. D-5936/2022 | Talib Zaki v. Federation of Pakistan and others | | 134. | C. P. No. D-5937/2022 | Abdul Wakeel v. Federation of Pakistan and others | | 135. | C. P. No. D-5938/2022 | Abdul Rauf v. Federation of Pakistan and others | | 136. | C. P. No. D-5965/2022 | Muhammad Junaid Shekha and others v. Federation of Pakistan and others | | 137. | C. P. No. D-5967/2022 | Hamdia Fatin Niazi v. Federation of Pakistan and others | | 138. | C. P. No. D-5974/2022 | Muhammad Ali Rashid and others v. Federation of Pakistan and others | | 139. | C. P. No. D-5989/2022 | Zainab and others v. Federation of Pakistan and others | | 140. | C. P. No. D-6032/2022 | Faisal Zairy and others v. Federation of Pakistan and others | | 141. | C. P. No. D-6041/2022 | Muhammad Naseem v. Federation of Pakistan and Another | | 142. | C. P. No. D-6042/2022 | Azam Sakrani v. Federation of Pakistan and another | | 143. | C. P. No. D-6043/2022 | Bilal Haleem v. Federation of Pakistan and another | | 144. | C. P. No. D-6044/2022 | Humaira Faraz v. Federation of Pakistan and another | | 145. | C. P. No. D-6045/2022 | Dr. Ashok Kumar Gauba v. Federation of Pakistan and another | | 146. | C. P. No. D-6046/2022 | Faisal Shafi v. Federation of Pakistan and another | | 147. | C. P. No. D-6047/2022 | Humaira Hanif v. Federation of Pakistan and another | | 148. | C. P. No. D-6048/2022 | Hassan Shafi v. Federation of Pakistan and another | | 149. | C. P. No. D-6049/2022 | Muhammad Asim Maniar v. Federation of Pakistan and another | | 150. | C. P. No. D-6050/2022 | Javeria Rashid v. Federation of Pakistan and another | | 151. | C. P. No. D-6051/2022 | Jehan Bux Dinshaw Gandhi v. Federation of Pakistan and others | | 152. | C. P. No. D-6052/2022 | Zahid Haleem v. Federation of Pakistan and others | | 153. | C. P. No. D-6053/2022 | Tasneem Mazhar v. Federation of Pakistan and others | | 154. | C. P. No. D-6054/2022 | Amir M. Shafi v. Federation of Pakistan and others | | 155. | C. P. No. D-6055/2022 | Fawwad Shafi v. Federation of Pakistan and others | | 156. | C. P. No. D-6056/2022 | Asma Tariq v. Federation of Pakistan and others | | 157. | C. P. No. D-6057/2022 | Faraz Haleem v. Federation of Pakistan and another | | 158. | C. P. No. D-6058/2022 | Ghulam Murtaza Sheikh v. Federation of Pakistan and another | | 159. | C. P. No. D-6059/2022 | Khurram Hanif v. Federation of Pakistan and another | | 160. | C. P. No. D-6060/2022 | Umair Haleem v. Federation of Pakistan and another | | 161. | C. P. No. D-6061/2022 | Naheed Hanif v. Federation of Pakistan and another | | 162. | C. P. No. D-6062/2022 | Rashid Haleem v. Federation of Pakistan and another | | 163. | C. P. No. D-6063/2022 | Faiza Khurram Hanif v. Federation of Pakistan and another | | 164. | C. P. No. D-6064/2022 | Muhammad Haleem v. Federation of Pakistan and another | | 165. | C. P. No. D-6065/2022 | Ayesha Zahid v. Federation of Pakistan and another | | 166. | C. P. No. D-6066/2022 | Tahir Latif v. Federation of Pakistan and another | | 167. | C. P. No. D-6067/2022 | Rehana Haleem v. Federation of Pakistan and another | | 168. | C. P. No. D-6068/2022 | Yasir Shafi v. Federation of Pakistan and another | | 169. | C. P. No. D-6092/2022 | Muneer Ahmed Memon v. Federation of Pakistan and others | | 170. | C. P. No. D-6093/2022 | Ali Nawaz Nazeer Ahmed v. Federation of Pakistan and others | | 171. | C. P. No. D-6094/2022 | Abdul Majeed Arain v. Federation of Pakistan and others | | 172. | C. P. No. D-6134/2022 | Muhammad Tahir v. Federation of Pakistan and another | | 173. | C. P. No. D-6135/2022 | Zeeshan Maqsood v. Federation of Pakistan and another | | 174. | C. P. No. D-6152/2022 | Muhammad Ashraf and others v. Federation of Pakistan and others | | 175. | C. P. No. D-6154/2022 | Syed Hassan Ali Khan and another v. Federation of Pakistan and others | | 176. | C. P. No. D-6185/2022 | Muhammad Amjad and others v. Federation of Pakistan and others | | 177. | C. P. No. D-6199/2022 | Faisal Imran Hussain Malik v. Federation of Pakistan and others | | 178. | C. P. No. D-6217/2022 | Syed Masood Abbas Jaffery v. Federation of Pakistan and others | | 179. | C. P. No. D-6222/2022 | Dost Muhammad Khan and others v. Federation of Pakistan and others | | 180. | C. P. No. D-6240/2022 | Nazish Anwer v. Federation of Pakistan and others | | 181. | C. P. No. D-6363/2022 | Waqas Shakil v. Federation of Pakistan and another | | 182. | C. P. No. D-6364/2022 | Shakil Ahmed v. Federation of Pakistan and another | | 183. | C. P. No. D-6372/2022 | Syed Irfan Mehdi v. Federation of Pakistan and others | | 184. | C. P. No. D-6376/2022 | Ms. Sayeeda Nadir Leghari v. Federation of Pakistan and others | | 185. | C. P. No. D-6377/2022 | Nadir Akmal Khan Leghari v. Federation of Pakistan and others | | 186. | C. P. No. D-6378/2022 | Akmal Khan Leghari v. Federation of Pakistan and others | | 187. | C. P. No. D-6388/2022 | Bilal Ahmed and others v. Federation of Pakistan and another | | 188. | C. P. No. D-6389/2022 | Muhammad Yaseen and others v. Federation of Pakistan and another | | 189. | C. P. No. D-6391/2022 | Mrs. Rubeena Ahmed v. Federation of Pakistan and another | | 190. | C. P. No. D-6392/2022 | Javed Ahmed and others v. Federation of Pakistan and another | | 191. | C. P. No. D-6412/2022 | Abdul Samad Khan and others v. Federation of Pakistan and others | | 192. | C. P. No. D-6415/2022 | Muhammad Shoaib Ismail v. Federation of Pakistan and another | | 193. | C. P. No. D-6452/2022 | Farhana Mawjee Khan and others v. Federation of Pakistan and others | | 194. | C. P. No. D-6457/2022 | Iftikhar Ahmed Ejaz v. Federation of Pakistan and another | | 195. | C. P. No. D-6466/2022 | Raja Mir Muhammad v. Federation of Pakistan and another | | 196. | C. P. D-6275/2022 | Nusrat Khan v. Federation of Pakistan and others | | 197. | C. P. D-6276/2022 | Abdul Wahab and others v. Federation of Pakistan and others | | 198. | C. P. D-6277/2022 | Inshipping Pvt Ltd v. Federation of Pakistan and others | | 199. | C. P. D-6278/2022 | G4 Mega Pakistan Pvt Ltd v. Federation of Pakistan and others | | 200. | C. P. D-6487/2022 | Ali Akhai v. Federation of Pakistan and others | | 201. | C. P. D-6439/2022 | Najmus Saqib v. Federation of Pakistan and others | | 202. | C. P. D-6401/2022 | Madad Ali Madan v. Federation of Pakistan and others | | 203. | C. P. D-6429/2022 | Amanullah Kassim and others v. Federation of Pakistan and others | | 204. | C. P. D-6440/2022 | Nadeem Ahmed v. Federation of Pakistan and others | | 205. | C. P. D-6441/2022 | Asif Amanullah Khanani v. Federation of Pakistan and others | | 206. | C. P. D-6442/2022 | Rizwan Ahmed v. Federation of Pakistan and others | | 207. | C. P. D-6443/2022 | Salim Amanullah v. Federation of Pakistan and others | | 208. | C. P. D-6523/2022 | Muhammad Najam Ali v. Federation of Pakistan and others |

Rashid Anwar, Ovais Ali Shah, Omer Soomro, Jahanzeb Awan, Abid H. Shaban, Dr. Muhammad Tariq Masood, Iqbal Salman Pasha, Mushtaq Hussain Qazi, Abdul Rahim Lakhani, Abdul Sattar Pirzada, Umair Qazi, M. Anas Makhdoom, Jawad Qureshi, Syeda Rabia Shahid, Maryum Riaz, Fizzah Bucha, Umer Ilyas, Ms. Naveeda Bisharat, Imtiaz Ali, Ms. Ghazala Rafiq, Ellahi Bukhsh Qureshi, Faisal Ahmed, Muhammad Rashid Khan Mahar, Naeem Suleman, Arshad Hussain Shahzad, Jawed Zakaria, Anwar Kashif Mumtaz, Muhammad Usman Alam, Jawaid Farooqi, Muhammad Asad Ashfaq Tola, Muhammad Amayed Ashfaq Tola, Ms. Hamda Ali Khan, Ahmed Ali Hussain, M. Aizaz Ahmed, Arshad Sahzad, Umer Ilyas, Nasir Latif Khan, Muhammad Imran Khan, Sufyan Zaman, Muneeb Qidwai, Aitezaz Manzoor Memon, Ameen Bandukda, Syed Ali Ahmed Zaidi, M. Imran Khan, Ajeet Kumar, Nadir Hussain Abro, Vishwa Mittar, Fazl-e-Rabi, Sadiqullah, Yousuf Ali, Muhammad Aleem, Umer Ahad, Fahim Ali, Faiz Mehmood Khan Durrani, Samia Faiz Durrani, Ghulam Muhammad, Saadat Yar Khan, Ahmed Farhaj, Muhammad Taimoor Ahmed, Muhammad Mansoor Mir, Ms. Lubna Pervaiz, Abdul Jabbar Mallah, Munir Ahmed, Saifullah Khawaja, Atta Muhammad, Saad Fayaz, Rabia Khan, Syed Noman Zahid, Furqan Mohiuddin Ansari, Muhammad Tariq, Syed Sultan Ahmed, Syed Hamza Ahmed Hashmi for Petitioners.

Dr. Shah Nawaz Memon, Ameer Bux Metlo, Kafeel Ahmed Abbasi, Ameer Nousherwan Adil, Syed Ahsan Ali Shah, Fouzia Muhammad Murad, Fayyaz Ali Metlo, Qaim Ali Memon, Rana Sakhawat Ali, Imtiaz Ali Solangi, Syed Shafqat Ali Shah Masoomi, Abdul Hakeem, Hayat Muhammad, Ghazi Khan Khalil, Abdul Razzak Panhwar, Shaheer Saleem Memon, Imran Ali Mithani, Saddiqulah Kakar, Faheem Ali, Muhammad Ali Shahwani, Arshad Ali Tunio, Sajjad Ali Solangi, Muhammad Idress Rahimoon, Abdul Basit Rasheed, Asif Ali Siyal, Zohaib, Abdul Basit Rasheed, Hayat Muhammad Junejo, Saghir Ahmed Khan and Ayaz Sarwar Jamali for Respondents.

Syed Yasir Ahmed Shah, Assistant Attorney General.

Qazi Ayazuddin Qureshi, Assistant Advocate General Sindh.

P L D 2024 Sindh 165

Before Shamsuddin Abbasi, J

The STATE---Applicant

Versus

ANWAR ALI BROHI and others---Respondents

Criminal Reference No. S-03 of 2023, decided on 9th October, 2023.

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

----Ss. 3 & 4---Contempt proceedings---Object, purpose and scope---Nature of proceedings under Contempt of Court Ordinance, 2003, are not in strict sense a criminal trial under Criminal Procedure Code, 1898, but are sui generis in nature---Purpose of such proceedings is not to wreak vengeance nor it relates to ego of a judge to punish contemnor rather to vindicate honour and dignity of Court so as to maintain and strengthen confidence of general public in judicial system and to keep justice system away from any obstructions---Law of contempt is meant to maintain efficacy of Courts of justice and to secure public confidence in administration of justice.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.491---Contempt of Court---Habeas corpus---Obstruction to Local Commissioner--- Contemnors / accused persons were police official who resisted and obstructed Local Commissioner appointed by Court to conduct surprise raid in police station for recovery of illegal detenue---Validity---Contemnors/ accused persons attempted to obstruct administration of justice and through their acts they tended to prejudice determination of matter pending before Court of competent jurisdiction, which act constituted criminal contempt---Contemnors/accused persons had shown their high handedness and tried to interfere in a lawful process, which was likely to lower prestige of a judicial officer as well as judicial system---Acts of contemnors/accused persons were intended and calculated to impede, obstruct and divert administration and course of justice---Contemnors/accused persons physically assaulted and misbehaved with the official and snatched Roznamcha (Daily Diary of Police Station), entry book as well as cell phone from his hands and confined him within the premises of police station for 15/20 minutes by locking outer gate of police station---Police officials had committed contempt of Court and they were liable to be punished in accordance with law---High Court convicted the contemnors/accused persons for committing contempt of Court under Ss. 3 & 4 of Contempt of Court Ordinance, 2003---Reference was allowed accordingly.

Ali Anwar Kandhro, Addl. P.G. for the State.

Habibullah G. Ghouri and Shahbaz Ali Brohi for Respondents/ Contemnors.

P L D 2024 Sindh 170

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

FAQEER MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. 19 of 2021, decided on 11th January, 2023.

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

----Ss. 23, 6 & 7---Penal Code (XLV of 1860), Ss. 364-A, 302, 376, 201, 311, 109 & 34---Rape and murder of a minor girl---Not terrorism---Transfer of case from Anti-Terrorism Court to Court of ordinary jurisdiction---According to the case of prosecution, baby girl aged about 6 years left home and did not return---During investigation, it transpired that she was subjected to rape and murdered by the accused persons---Investigation Officer submitted challan against them before the Anti-Terrorism Court---Application under S. 23 of Anti-Terrorism Act, 1997, moved by the accused persons before the Anti-Terrorism (Trial) Court to transfer the case to regular Court was dismissed while holding that Anti-Terrorism Court had the jurisdiction to try the present case---Contention of the applicant/accused was that though the case was of gang rape with a minor girl, but alleged offence had not created terror in the society and mere gravity of an offence did not provide a valid yardstick for branding the act as terrorism---Plea of the complainant was that accused had committed gang rape with baby girl aged about 06 years and thereafter, committed her murder which offence had created terror in the society---Validity---From perusal of relevant material collected during investigation, it transpired that element of terrorism was missing in the present case---A minor girl was subjected to rape by accused persons and murdered---No doubt, offence was grave and brutal in nature but motivation was personal and private---In the offences of terrorism, purpose is to destabilize the society at large, therefore, keeping in view the definition of "terrorism" contained in S. 6 of the Anti-Terrorism Act, 1997, act of the applicant/ accused did not qualify as an act of terrorism, thus, Anti-Terrorism Court had no jurisdiction to try present case under the provisions of Anti-Terrorism Act 1997---High Court set-aside the impugned order, being not sustainable under the law, and directed Anti-Terrorism Court to transfer the case to the court having jurisdiction in the case---Revision Application was allowed, in circumstances.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 ref.

Nadir Hussain Burdi and Shoukat Muhammad Ali for Applicant.

Yahya Iqbal for the Complainant.

Ali Haider Saleem, Additional Prosecutor General.

P L D 2024 Sindh 174

Before Aqeel Ahmad Abbasi and Kausar Sultana Hussain, JJ

TRADING CORPORATION OF PAKISTAN---Appellant

Versus

Mv HAN ZHONG MEN through Master/ Chief Officer and 3 others---Respondents

Admiralty Appeal No. 01 of 2015, decided on 5th October, 2022.

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

----Ss. 3 & 7---Contract Act (IX of 1872), S. 73---Civil Procedure Code (V of 1908), O.XXI, R. 71 & S. 36---Admiralty jurisdiction---Recovery of loss---Consent order---Appellant/plaintiff was Trading Corporation of Pakistan (Pvt) Ltd. who sought recovery of loss caused by respondents/defendants---Validity---Order assailed had been passed by consent of parties, whereas, appellant/plaintiff failed to make out a case that there had been deliberate default or non-compliance of contractual obligations by respondent/auction purchaser---Appellant/plaintiff also failed to demonstrate as to how and to what extent, such partial default on the part of respondent/auction purchaser caused any loss and damage to appellant/plaintiff---High Court directed Official Assignee to release proportionate earnest money in respect of remaining 1/3rd quantity of sugar, which could not be lifted in favour of appellant/plaintiff (Trading Corporation of Pakistan), whereas, remaining amount could be adjusted/returned to respondent/ auction purchaser after proper verification and identification---Appeal was disposed of accordingly.

Fayyaz Ali Metlo, Athar Hussain, M. Ayub Channa and Farooq Ali for Appellant.

Shaiq Usmani along with Govind Ram for Respondent No.4.

Adeel Abid for Respondents Nos.1 and 2

Khaleeq Ahmed, D.A.G. along with Qazi Ayazuddin, A.A.G.

P L D 2024 Sindh 184

Before Zafar Ahmed Rajput, J

HILAL FOODS (PVT.) LIMITED (FORMERLY HILAL CONFECTIONERY (PVT.) LIMITED) through Company Secretary, Karachi---Plaintiff

Versus

DABUR INDIA LIMITED and 8 others---Defendants

Suit No. 1763 of 2019, decided on 4th December, 2023.

Trade Marks Ordinance (XIX of 2001)---

----Ss.39 & 40---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Passing off---Infringement of trade mark and copy right---Interim injunction, refusal of---Concealing of facts---Plaintiff company assailed use of trade mark "HAJMOLA" by defendant company---Validity---Intellectual Property Tribunal passed an order restraining defendant company from passing off goods by using the offending trade mark---Subsequently the Tribunal passed another order observing that the injunctive order passed earlier would have no effect because of an order passed by High Court---Intellectual Property Tribunal adjourned that suit sine die till adjudication of matter by High Court---Plaintiff company failed to disclose filing and pending of adjudication of cases in its pleadings especially order passed by High Court, whereby the defendant company was permitted to use trade mark "HAJMOLA" on its products---Concealment of fact as to the earlier litigation between same parties, in subsequent suit, is a conduct which disentitles a party to grant of discretionary relief of an injunction---Complete disclosure about previous connected, related or relevant proceedings and orders is essential when a litigant approaches a Court and unless such non-disclosure can be satisfactorily explained, the claimant should not, as a matter of general principle, be granted interim relief---He who comes to equity must come with clean hands---Plaintiff failed to make out prima facie good arguable case for the grant of interim injunctive relief---Application was dismissed, in circumstances.

Farooq Ghee and Oils Mills (Pvt.) Ltd. v. Registrar of Trade Marks, Trade Mark Registry and others 2015 SCMR 1230; Messrs Bengal Waterproof Limited v. Messrs Bombay Waterproof Manufacturing Company and another AIR 1997 SC 1398; Muhammad Ashraf and 3 others v. Muhammad Latif 2005 YLR 756; Muhammad Qasim v. Razia Begum and 5 others 2012 CLC 1118; Bayer AG. through Authorized Signatory v. Bayhealth Care (Private) Limited through Chief Executive Director, Company Secretary and another 2013 CLD 2087; Messrs Snowhite Dry Cleaners v. Sufiyan Ahmed 2013 CLD 57; Roznama Hamdard through Chief Editor v. Hamdard National Foundation Pakistan 2010 SCMR 95; Wrangler Apparel Corporation v. Axfor Garments through Proprietor/Manager/Partners 2008 CLD 70; Vifor (International) Inc. through Authorized Signatory v. MeMon Pharmaceutical through Sole Proprietor 2013 CLD 1531; Pioneer Cement Limited through Company Secretary v. Fecto Cement Limited through Chief Executive Officer and 3 others PLD 2013 Lah. 110; Seven Up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313; ARC International through Authorized Signatory v.

Ahmer Mansoor and 2 others 2012 CLD 226; Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090; J.N. Nichols (Vimto) PlC A Company incorporated in the United Kingdom v. Mehran Bottlers (Private) Limited, Karachi PLD 2000 SC 192; M. Sikandar Sultan v. Masih Ahmed Shaikh 2003 CLD 26; Maaza International Company L.L.C. v. Popular Food Industries Ltd. and another 2004 CLD 171; Tapal Tea (Private) Limited v. Shahi Tea Company 2002 CLD 1113; Pakistan Drug House (Pvt.) Limited v. Rio Chemical Company and another 2003 CLD 1531; Ch. Zafarullah Khan and 6 others v. Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 5 others PLD 1975 SC 15 and Sahib Khan v. Muhammad Ramzan and another 2000 MLD 729 distinguished.

The Stillman's Company (Pvt.) Ltd. through Chief Executive Officer v. S.M. Anees and another 2019 YLR 815; University of Health Sciences and others v. Mumtaz Ahmad 2010 SCMR 767; Clifton Block-7 Residents' Association through V.P. Amir and 6 others v. Zubair Ahmed and 5 others 2015 CLC 1090; Zulfiqar Ahmed Bhutta and 15 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs and others PLD 2018 SC 370; Mumtaz Baig and others v. Jamal Din through legal heirs 2009 SCMR 1364; Muhammad Ibrahim through Attorney v. Province of Sindh through Chief Secretary, Government of Sindh, Sindh Secretariat, Karachi and 6 others 2018 MLD 1099; Messrs H & B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others 2009 CLD 318; Italfarmaco S.P.A. v. Himont Pharmaceuticals (Pvt.) Ltd. and another 2017 CLD 1382; Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd. and another 2018 CLC 203; Messrs Beecham Group Ltd. v. Registrar of Trade Marks and another 1968 SCMR 626; Khushi Muhammad and 2 others v. The Province of Punjab through Secretary Government of Punjab and 2 others 1999 SCMR 1633; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan 2012 SCMR 280; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63; Aziz Ahmed and others v. Mst. Hajran Bibi and another 1987 SCMR 527 and Messrs Coca Cola Beverages Pakistan Ltd through Company Secretary v. Messrs Echo West International (Pvt.) Ltd: through Chief Executive Officer and another 2016 MLD 1077 rel.

Ms. Saira Sheikh for Plaintiff.

Mohsin Tayebaly & Co. for Defendants Nos. 1 and 2.

Nemo for Defendants Nos.3 to 9.

P L D 2024 Sindh 191

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

Messrs OUTDOORSMAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No. D-2944 of 2020, heard on 12th April, 2023.

Sindh Arms Rules, 2018---

----R. 3.1---Sindh Arms Act (V of 2013), Ss. 6, 12 & 13---Arms manufacturing licence---Approval on letter---Vested right---Petitioner company was aggrieved of non-compliance of handwritten endorsement of approval by Chief Minister on a letter---Validity---Mere handwritten endorsement made on the face of letter to the effect that "permission may be granted as per policy" could not be regarded as a definite approval conferring right to a licence---In light of prescribed procedure, there were various checks and compliances which had not even ensued at that point in time which all took place subsequent to that endorsement---Certain similar checks and compliances might already have been made at an earlier point in time in the context of petitioner company's arms dealership licence but same did not detract from the importance of such an exercise---Neither the Chief Minister nor any other public functionary had carte blanche whilst exercising any discretionary power, which must always be done fairly, justly and reasonably, and for advancing particular object/purpose for which it was conferred, in accordance with rules/regulations structuring that discretion---Highest authority for purpose of grant of any category of license as per Rule 3.1 of Sindh Arms Rules, 2018 was Chief Minister and the subject was not one of prohibited arms or prohibited ammunition otherwise falling under S. 6 of Sindh Arms Act, 2013---High Court directed the authorities that case/ application of petitioner company for grant of a small arms manufacturing license should be decided by Chief Minister through a speaking order, in accordance with Sindh Arms Act, 2013 and Sindh Arms Rules, 2018---Constitutional petition was disposed of accordingly.

Mohsin Shawani for Petitioner.

Muhammad Jawwad Dero, Additional Advocate General, Sindh, along with Ali Asghar Mahar, Focal Person, Home Department, Government of Sindh for Respondents.

P L D 2024 Sindh 202

Before Nadeem Akhtar and Yousuf Ali Sayeed, JJ

Sheikh NADEEM REHMAT through appointed attorney---Appellant

Versus

Mrs. ZARQA JAHANZEB and 4 others---Respondents

High Court Appeal No. 162 and C.M.As. Nos. 1134 and 1136 of 2019, decided on 6th October, 2023.

Limitation Act (IX of 1908)---

----S. 5---Filing of appeal, delay in---Condonation of delay---Sufficient cause---Responsibilities of the litigant---Ground on which the delay was sought to be condoned was that counsel of the appellant was hospitalized who later passed away---Record revealed that the appellant/ petitioner applied for certified copies to assail impugned judgment after expiration of the prescribed period of limitation, and the appeal was barred by about seven and half months---No explanation was presented by the appellant/petitioner other than the assertion that the case file was returned to him by the family members of the deceased counsel after seven months of passing of judgment and he came to know about the judgment (to be assailed) on receiving notice issued by the Executing Court---It is the duty of every litigant to pursue his case diligently and vigilantly, and to keep track of his cause on regular basis by inquiring its progress from his counsel at every stage of the case and after every date of hearing---In the present case, the appellant had admitted that his counsel had serious health issues since quite some time; accordingly, it was his duty to make some alternate arrangement either by engaging a new counsel or by appearing in person, however, he chose not to do so---It was not the case of the appellant that his counsel was on general adjournment on the relevant dates nor had any intimation in said behalf been filed by him---Moreover, appellant did not make any effort to inquire about the progress or fate of the suit---Appellant had not disclosed a specific date on which he received the case file---Furthermore the appellant took a month or so after receiving the file, for which no valid explanation had been offered---Thus, the so-called explanation offered by the appellant did not appear to be convincing or sufficient for the High/Appellate Court to exercise its discretion for condoning the unusual delay of seven and half months---Number of days by which the appeal was barred by time had not been disclosed in the application, nor the delay of each and every day had been explained therein---Thus, the delay in filing the appeal remained unexplained and as such could not be condoned, for having been filed after the prescribed period of limitation, which had created valuable right in favour of the respondents---No sufficient cause was found for filing the appeal beyond the period of limitation---Application for condonation of delay was dismissed, resultantly the appeal was also dismissed

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 ref.

Taimur Ali Mirza for Appellant.

Ahmed Madni for Respondents Nos. 1 to 3.

P L D 2024 Sindh 205

Before Jawad Akbar Sarwana, J

SUI SOUTHERN GAS COMPANY LIMITED through Sub-Attorney---Appellant

Versus

IRSHAD ALI BHUTTO and another---Respondents

Civil Appeal No. S-07 of 2023, decided on 1st February, 2024.

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

----S. 5---Gas (Theft Control and Recovery) Act (XI of 2016), Ss.6 & 7---Recovery of amount on account of illegal gas supply/usage---Suit by the Sui Southern Gas Company Limited ('SSGC') against the consumer, filing of---Condonation of delay---Sufficient cause---Scope---Gas Utility Court dismissed plaintiff's/SSGC's application under S. 5 of the Limitation Act, 1908 and the summary suit---Validity---Gas Utility Court, after hearing the parties, dismissed SSGC's summary suit on the grounds that the SSGS did not provide any sufficient cause for condoning the delay in filing the said suit---In relevant paragraph of the affidavit in support of the application under section 5 of the Limitation Act, 1908, SSGC's authorized representative explained that the reason for not filing the claim earlier was that respondent/ consumer had given false hope to SSGC that he would settle the claim and only declined to pay the arrears 15 days before the date of SSGC' filing its claim before the Gas Utility Court---Appellant/SSGC did not provide any acknowledgement in writing from respondent/consumer, which could amount to extending the limitation period---In view of the same, presumably based on the assumption that the period of limitation for filing a suit for recovery of money was three years from the date when the payment became due, Gas Utility Court dismissed appellant/SSGC's application for condonation of delay for the reason that it did not find sufficient cause given in the said application explaining each and every day of delay in filing the summary suit---Appellant/SSGC had not identified any defect in the impugned order except than claiming that respondent/consumer was involved in gas theft, and the Court should not allow respondent/consumer to be let off---High Court did not find SSGC's submission acceptable---Appellant/SSGC should have acted in a timely manner, not slept over its rights, and taken an indolent attitude---SSGC had filed its claim before the Gas Utility Court under the Gas (Theft Control and Recovery) Act, 2016---Gas Utility Court, at the very inception, took notice of the plaint being time-barred and took up SSGC's application under S. 5 of the Limitation Act, 1908---No illegality or irregularity had been noticed in the judgment and order passed by the Gas Utility Court---Appeal filed by the Sui Southern Gas Company Limited was dismissed, in circumstances.

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

----O. IX, R. 4 & S. 151---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 6 & 7---Limitation Act (IX of 1908), S. 5---Recovery of amount on account of illegal gas supply---Suit by the Sui Southern Gas Company Limited ('SSGC') against the consumer, filing of---Dismissal of suit on the ground of limitation---Gas Utility Court dismissed SSGC's application under S. 5 of the Limitation Act, 1908, while suit was dismissed for non-prosecution; subsequently, plaintiff's/SSGC's application under O. IX, R. 4 read with S. 151, C.P.C. was also dismissed by the Gas Utility Court---SSGS assailed said refusal order for restoration---Validity---According to the diary sheet filed by respondent/consumer in appeal, it appeared that while dismissing SSGC's application under S. 5 of the Limitation Act, 1908, after hearing the parties, the Court on the same date also dismissed SSGC's suit for non-prosecution---Accordingly, SSGC filed an application under O. IX, R. 4 read with S. 151, C.P.C. to set aside/recall the said order dismissing SSGC's suit in default and to restore the same to its original stage---After hearing the Counsel, the Trial Court rightly assessed the legal position and dismissed the application---Gas Utility Court observed that after the application under the Limitation Act had been dismissed on merit, nothing was left in the suit---No illegality or irregularity had been noticed in the judgment and order passed by the Gas Utility Court---Appeal filed by the Sui Southern Gas Company Limited was dismissed, in circumstances.

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

----Art. 181---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 6 & 7---Recovery of amount on account of illegal gas supply/usage---Suit by the Sui Southern Gas Company Limited ('SSGC') against the consumer, filing of---Limitation---Scope---Gas (Theft Control and Recovery) Act, 2016 is a special law to expedite the prosecution of cases of gas theft and other offences relating to gas and it also provides the procedure for complaints and suits for default before Gas Utility Courts---Gas (Theft Control and Recovery) Act, 2016, does not provide any specific period of limitation for filing a suit where there are sums due or recoverable from a consumer regarding billing or metering by a Gas Utility Company---Accordingly, where no period of limitation is provided under the special statute, and none is applicable under the Limitation Act, 1908 then Art. 181 of the Limitation Act, 1908 prescribes that in such instances, the applicable period of limitation is three years from the date when right to sue accrues.

Abid Hussain Qadri for Appellant.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

Oshaq Ali Sangi, Assistant Attorney General for Pakistan.

Abdul Waris Bhutto, Assistant Advocate General, Sindh.

P L D 2024 Sindh 210

Before Yousuf Ali Sayeed, J

SHAHZAD RIAZ---Plaintiff

Versus

Messrs MILLAT TRACTORS LIMITED through Chairman and 7 others---Defendants

Suit No. 652 of 2023, decided on 15th March, 2024.

Sale of Goods Act (III of 1930)---

----S.64-A---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, refusal of---Irreparable loss---Quantifying loss in terms of money---Change in duty and taxes---Effect---Plaintiff booked tractors with defendant company and paid total consideration amount---Grievance of plaintiff was that defendant company demanded further amounts towards price of each tractor---Validity---There might be multiple bookings received by defendant company at any given point in time for a particular model of tractor through its various authorized dealers and it could not be claimed by a party making a booking that property passed at that time in a specific tractor unit---Any number of tractors of particular description that were available in stock with defendant company belonged to or were property of plaintiff---There was no identification of specific units through any distinctive serial number(s) of engine(s) or chassis---Necessity of inspection or prospect of attachment or proceedings for contempt did not arise---Case as set out on affidavits, was not prima facie to be regulated through grant of injunction so as to either compel delivery at such stage or restrain defendant company from selling tractors in interregnum---There was no balance of convenience in favour of plaintiff in such regard---Pendulum tilted in favour of defendant company as for prospect of irreparable loss, plaintiff himself advanced an alternative prayer for recovery of a quantified sum---Requisite ingredients for grant of injunctive relief were lacking---Application was dismissed, in circumstances.

Khawaja Sham-ul-Islam for Plaintiff.

Imtiaz Sidiqui for Defendant No.1.

Aftab Anwar Shaikh for Defendant No.2.

P L D 2024 Sindh 217

Before Adnan Iqbal Chaudhry, J

SHUJABAD AGRO INDUSTRIES (PVT.) LTD. through duly authorized officer and 11 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Energy (Petroleum Division) and others---Respondents

Suits Nos. 2970, 3020, 2971, 3018, 2996, 2966, 3063, 3067, 2995, 3064, 3047, 3031, 3039, 2993, 3046, 3026, 3033, 3019, 3082, 3062, 3016, 3017, 3066, 3015, [-]3370, 3048, 3029, 3006, 3093 of 2021, 59, 2, 54, 53, 21, [-]28, 77 and 30 of 2022, decided on 4th March, 2022.

(a) Constitution of Pakistan---

----Arts. 97 & 154 (1)---Executive authority of Federal Government---Council of Common Interest---Scope---When executive authority of Federal Government extends to matters with respect to which Parliament has power to make laws, it follows that the power of Council of Common Interest to make policy under Art. 154 (1) of the Constitution is also no embargo to policy-making by Federal Government in exercise of its executive authority under Art. 97 of the Constitution.

Lahore Development Authority v. Imrana Tiwana 2015 SCMR 1739 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 rel.

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

----S. 21---Specific Relief Act (I of 1877), Ss. 42 & 54---Constitution of Pakistan, Arts. 25, 97 & 154 (1)---Natural Gas Allocation and Management Policy, 2005---Suit for declaration and injunction---Gas allocation policy---Federal Government, jurisdiction of---Discrimination---Plaintiffs/consumer companies were aggrieved of policy issued by Federal Government regarding allocation and management of natural gas supply during winter season---Plaintiffs/ consumer companies contended that they were discriminated as the policy for consumers of SNGPL was different than those of SSGPL---Validity---Policy for gas envisaged under Art. 154(1) of the Constitution was separate from the policy which Federal Government could make in exercise of its executive authority under Art. 97 of the Constitution read with S. 21 of Oil and Gas Regulatory Authority Ordinance, 2002---Former could be made for special purposes of maintaining relations between Federating Units or the Federation and the Federating Units, while the latter was made as a strategy to allocate and manage gas-supply to various categories of consumers---Due to fluctuations in demand and supply of gas year round and dwindling gas reserves, the latter policy needed to be revisited and adjusted frequently---Such policy-making was not intended for Council of Common Interest---Overlap could occur between two types of policies and was to be examined in a case that would present such an overlap---Gas policy made by Federal Government was not in conflict with any gas policy made by Council of Common Interest---Natural Gas Allocation and Management Policy, 2005, was within the legal competence of Federal Government and not the Council of Common Interest---Revision of such policy by Federal Government by notification in question did not violate Art. 154(1) of the Constitution---Comparison drawn by plaintiffs/consumer companies between supply of gas by SNGPL and SSGPL to plead discrimination was not a comparison in same circumstances, especially when the gas-supply contracts between plaintiffs/consumer companies and SSGPL permitted the SSGPL to make a complete gas-closure during winter months---Gas closure notice dated 10-12-2021 issued by SSGPL did not violate Federal Government's Gas Load Management Plan for Winter 2021-22---Suit was dismissed, in circumstances.

Gadoon Textile Mills v. WAPDA 1997 SCMR 641; Engro Fertilizers Ltd. v. Islamic Republic of Pakistan PLD 2012 Sindh 50; Lucky Cement Ltd. v. Federation of Pakistan PLD 2011 Pesh. 57; Qurban Ali Shah v. Federation of Pakistan PLD 2020 Sindh 242; Rashid Silk Mills v. Federation of Pakistan PLD 2019 Sindh 189; Khalid Mahmood v. Federation of Pakistan PLD 2003 Lah. 629; Amin Ahmad v. Ministry of Production, Government of Pakistan PLD 1996 Kar. 27 and I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 rel.

(c) Constitution of Pakistan---

----Art. 29---Principles of Policy---Court, jurisdiction of---Court does not ordinarily interfere with policy of government unless it can be demonstrated that such policy infringes a fundamental right.

(d) Constitution of Pakistan---

----Art. 25---Discrimination---Scope---Provision of Art. 25 of the Constitution allows for a reasonable classification which is based on intelligent differentia.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 rel.

(e) Constitution of Pakistan---

----Art. 158---Priority of requirements of natural gas---Invoking priority of requirement---Locus standi---Provision of Art. 158 of the Constitution gives precedence in meeting requirements from a gas well-head situated in that Province---Such precedence is with the aim of addressing an issue, should one arise, between that Province and Federal Government over the use of gas from a well-head---Prerogative of Provincial Government under Art. 158 of the Constitution exists but it does not give actionable cause to a person other than the concerned Provincial Government to invoke the same---It may well be that a Provincial Government decides not to invoke that prerogative for political considerations or to maintain unity of the Federation, or barters that prerogative with another Province or the Federation for another resource keeping in view the over-all requirements of the Province.

Abid S. Zuberi, Ayan Mustafa Memon, Ali Abid Zuberi, Nabeel Kolachi, Soofia Saeed, Annas Makhdoom, Ahmed Farhaj, Ameen M. Bandukda, S. Mohsin Ali, Shahzad Afzal, Syed Mukhtar Shirazi, Liaquat Hussain Khan, Naeem Akhtar Qureshi, Syed Alamdar Hussain Naqvi, Muhammad Ali Bhutta, Junaid M. Siddiqui, Memoona Nasreen, Naveen Merchant, Salman Yousuf, Azain Nadeem Memon, Dervesh K. Mandhan, Hassan M. Mandiwala, Taimoor Ahmed Qureshi, Zain A. Soomro, [Hanan Qamar and Muhammad Arif Ansari associates of Ayan M. Memon], Mukhtar Ahmed Kashar and [Asad Raees holds brief for Ms. Tahira Bano] for Plaintiffs.

Kashif Hanif, Kashif Sarwar Paracha, Acting Additional Attorney General, [Dr. Mir Aijaz Talpur, Joint Secretary, CCI- Secretariat, Islamabad and Bilal Farooq Alvi, Legal Officer, SSGC] for Defendants.

P L D 2024 Sindh 250

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Syed MUHAMMAD ASIF through Attorney---Petitioner

Versus

MUHAMMAD AYUB and 7 others---Respondents

Constitution Petition No. D-2278 of 2018, decided on 27th November, 2023.

(a) Words and phrases---

----Slash (/)---Connotation---Slash (/) - a forward sloping line (/) - technically known as a virgule but also called a slant, solidus, or stroke, an oblique, an oblique stroke, a diagonal, a solidus, a forward slash, and a separatrix is a mark of punctuation that serves several purposes in writing, essentially standing in for other words as a quick and clear way of showing the connection between two things.

The Concise Oxford English Dictionary; The Merriam-Webster Dictionary; Howards v. Fifth Third Bank, No. 18-cv-00869, 2023 U.S. Dist. LEXIS 20088 and 2023 WL 1778522, at \7 (S.D. Ohio Feb. 6, 2023) rel.

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

----S. 12 (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Fraud and misrepresentation---Power of attorney---Interpretation---Petitioner was aggrieved of dismissal of his application under S. 12(2), C.P.C. on the ground that attorney of petitioner did not have any authority to file such application---Validity---Attorney was acting on behalf of principal for his benefit in relation to subject property with clear power to safeguard interest of petitioner---General Power of Attorney had granted powers to the attorney to do all things on behalf of the principal in relation to protecting his rights---Trial Court and Lower Appellate Court could not deprive the attorney from exercising his power to file a suit, written statement or, from filing an application under S. 12(2), C.P.C., on behalf of his principal---Such interpretation was in the context of facts and circumstances peculiar to the matter of petitioner---Application of rules of interpretation regarding the punctuation slash (/) had different outcomes depending on the facts and circumstances of each case---High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for decision on merits after recording of evidence, as the attorney was duly authorized and competent to file application under S. 12(2), C.P.C.---Constitutional petition was allowed accordingly.

Adnan Ahmed for Petitioner.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

Nemo for Respondent No.3.

Syed Ashar Askar Zaidi for Respondent No.4.

Nemo for Respondent No.5.

Nemo for Respondent No.6.

Nemo for Respondent No.7.

Nemo for Respondent No.8.

P L D 2024 Sindh 259

Before Arbab Ali Hakro, J

PRODUCTION ENGINEER PPL, I/C, KANDHKOT and 4 others---Appellants

Versus

AZIZULLAH and 5 others---Respondents

IInd Civil Appeal No. 6 of 2016, decided on 24th August, 2023.

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

----O.XXIII, R.1---Withdrawal of suit---Permission to file fresh suit---Scope---If there is request for conditional withdrawal of lawsuit and permission to file a new suit, the withdrawal is contingent upon Court's satisfaction and fulfillment of specific requirements.

Haji Muhammad Boota and others v. Member (Rev.), Board of Revenue, Punjab and others PLD 2003 SC 979 rel.

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

----O. I, Rr. 10 & 13---Misjoinder and non-joinder of proper/necessary parties---Scope---Presence of proper parties before a Court is to prevent frustration or embarrassment of suit by containing investigation/inquiries on same controversies in more than one trial---Objection to joinder, misjoinder or nonjoinder of such parties must be taken at the earliest, failing which as per O. I, R. 13, C.P.C. such objection is deemed to have been waived.

Mst. Jannat Bibi v. Saras Khan 2011 SCMR 1460 rel.

(c) Colonization of Government Lands (Sindh) Act (V of 1912)---

----S. 10(2)---Limitation Act (IX of 1908), S. 23---Civil Procedure Code (V of 1908), O. VII, R. 11---Arbitration Act (X of 1940), S.4---Specific Relief Act (I of 1877), Ss. 42 & 54---Second appeal---Suit for declaration and injunction---Judgments at variance---Continuing cause of action---Acquisition of land---Compensation, right of grantee---Appellants/authorities installed a well for public welfare in land granted to respondent/plaintiff in accordance with law---Respondent/ plaintiff was aggrieved of non-payment of compensation to him and suit filed by him was dismissed by Trial Court but Lower Appellate Court decreed the same---Validity---In case of continuing breach of a contract and case of an ongoing wrong independent of the contract, a fresh period of limitation begins to run at every moment of the time during which breach or wrong, as the case may be, continues---Respondent/plaintiff was entitled to receive compensation in the event of land acquired for public purposes---Land was granted to appellants/authorities for installation of a well which was inherently a public purpose---Trial Court failed to appreciate legal and factual aspects of the same and dismissed the suit of respondent/plaintiff---Lower Appellate Court after discussing facts as well as evidence of parties, including additional evidence, through a well-reasoned judgment rightly decreed the suit of respondent/plaintiff who was a lawful grantee in respect of suit land---Lower Appellate Court did not commit any illegality as the respondent/plaintiff was entitled to compensation---Where there were conflicting verdicts, decision made by Lower Appellate Court should be accorded greater deference and esteem unless it was demonstrated from available documentation that such determination lacked substantiation from evidentiary support---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Second appeal was dismissed, in circumstances.

2007 SCMR 554; 2006 CLD 91; 2006 YLR 108; 2005 MLD 657; 2002 CLC 1262; 1999 MLD 1026; 1990 CLC 962; 2002 YLR 2615; PLD 1995 SC 410; PLD 2001 SC 325; 1996 SCMR 1047; 1995 CLC 88; 2002 SCMR 1821; 1992 SCMR 1510; 2017 YLR 405; 1999 YLR 1610; 2017 YLR 2388; PLD 2002 SC 403; PLD 2007 Kar. 573; PLD 1998 Kar. 250; 2010 MLD 68; PLD 2008 Karachi 80; PLD 1983 SC 5; AIR (36) 1949 Orissa 1; AIR 1940 Lahore 359; AIR 1957 Andh. Pra. 419; AIR 1959 SC 798; 1968 SCMR 214 and PLD 1997 Kar. 299 ref.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Madan Gopal v. Maran Bepari PLD 1969 SC 617 and Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1 rel.

Bhajandas Tejwani for Appellants.

Ghulam Dastagir A. Shahani for Respondent No. 1.

Abdul Hamid Bhurgri, Additional Advocate General for Respondents Nos.2 to 5.

Nemo for Respondent No.6.

P L D 2024 Sindh 273

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

Senator KHALIDA ATEEB---Petitioner

Versus

The PROVINCE OF SINDH through Chief Secretary,Government of Sindh, Karachi and 7 others---Respondents

C.P. No. D-3971 of 2022, decided on 16th February, 2023.

(a) Constitution of Pakistan---

----Art. 199---Writ jurisdiction of High Court---Aggrieved person---Scope---Constitutional petition was filed by a Member of Parliament to assail a Memorandum of Understanding (MoU) unrelated to her---Validity---Admittedly, the petitioner was not personally aggrieved with the issues sought to be agitated, however, submitted that she enjoyed a supervening privilege to invoke writ jurisdiction on account of being a Member of Parliament---It was unequivocally acknowledged that while the MOU was assailed on the allegation of being non-compliant with the public procurement rules, however, no remedy pursuant to the said law or available otherwise had ever been invoked by the petitioner---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Writ jurisdiction of High Court---Aggrieved person---Scope---Constitutional petition was filed by a Member of Parliament to assail minutes of a meeting of the Sindh Cabinet as well as a letter of the SGA&C Department of the Sindh Government---Validity---Article 199 of the Constitution contemplates the discretionary constitutional jurisdiction of High Court and the said discretion may be exercised upon invocation by an aggrieved person and in the absence of an adequate remedy---Petitioner failed to make any case before the High Court to qualify her within the definition of an aggrieved person---Constitutional petition was dismissed, in circumstances.

Syed Iqbal Hussain Shah Gillani v. PBC and others 2021 SCMR 425; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; 2019 SCMR 1952; Raja Muhammad Nadeem v. The State PLD 2020 SC 282 and SECP v. East West Insurance Company 2019 SCMR 532 ref.

(c) Constitution of Pakistan---

----Art. 199---Writ jurisdiction of High Court---Scope---Constitutional petition was filed by a Member of Parliament to assail minutes of a meeting of the Sindh Cabinet as well as a letter of the SGA&C Department of the Sindh Government---Validity---Allegations levelled, prima facie, were bald and unsubstantiated, and could not be entertained in any event as adjudication of disputed questions of fact, requiring detailed inquiry, appreciation of evidence etc., were unmerited in constitutional jurisdiction---Petitioner remained unable to set forth a case for the invocation of its discretionary constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574 and PLD 2001 SC 415 ref.

(d) Constitution of Pakistan---

----Art. 199---Writ jurisdiction of High Court---Public interest litigation---Scope---Constitutional petition was filed by a Member of Parliament to assail minutes of a meeting of the Sindh Cabinet as well as a letter of the SGA&C Department of the Sindh Government---Present constitutional petition appeared to be an attempt to seek publicity, without any justifiable cause of action---Public interest litigation ought not to be aimed at seeking publicity and the law required the Court to ascertain whether the applicant was acting in a bona fide manner---Public interest litigation should not be a mere adventure, an attempt to carry out a fishing expedition and/or to settle personal scores---Court must distinguish between public interest litigation and publicity motivated litigation, private interest litigation and/or politically motivated litigation---In the lis before the High Court, petitioner remained unable to set forth a case for the invocation of its discretionary constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455; Dr. B. Singh v. Union of India AIR 2004 SC 1923 and Mian Shabir Asmail v. The Chief Minister of Punjab PLD 2017 Lah. 597 ref.

Muhammad Tariq Mansoor for Petitioner.

Mukesh Kumar G. Karara, Nabi Bux Leghari and Muhammad Yousuf Alvi for Respondents.

Kafeel Ahmed Abbasi, Additional Advocate General Sindh.

P L D 2024 Sindh 276

Before Muhammad Shafi Siddqui and Omar Sial, JJ

Mst. KHURSHEED BEGUM and others---Appellants

Versus

NIB BANK LIMITED and 2 others---Respondents

First Appeal No. 127 of 2011, decided on 14th February, 2024.

Contract Act (IX of 1872)---

----S. 58(f)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19---Equitable mortgage, creation of---Deposit of title---Scope---Case of the appellants was that their liability was limited only to the extent of a cap provided by the registered mortgage deed and nothing more could be recovered under the registered instrument; that there was no document attached with the plaint to show that the deposit of title in fact was for creating equitable mortgage under S. 58 of the Contract Act---Validity---Language of S. 58(f) of the Contract Act, 1872, was not understood properly by the appellants as there was no requirement of any attached document apart from the fact that title was deposited for securing the loan extended to borrower---Deposit of title itself was sufficient to reveal the intent of an applicant depositing title document with the mortgagee---There was just one intention, that it, to secure the outstanding loan of the borrower---Mortgage by deposit of title deed gave his/ her intent that where a title document in relation to an immoveable property was deposited, the intent was to provide a security in relation to a transaction between main borrower and Bank/mortgagee---Contentions of the appellants were misconceived that the amount to the extent of cap provided under registered deed could only be recovered and nothing more, as this deposit of title document was enough to create equitable mortgage to cover entire outstanding amount---Registered mortgage is only a token mortgage to overcome any impediment that may come in the way---Requirement for equitable mortgage is the existence of debt, delivery of title document and the intention that the document of title shall be the security for the debt, and the same are sufficient to establish the intent---Additional mortgage deed cannot eclipse the fact of equitable mortgage under S. 58(f) of Contract Act---High Court maintained judgment passed by the Banking Court---Appeal, being meritless was dismissed, in circumstances .

Mst. Zubeda Khanum v. Presiding Officer, Special Court (Banking), Karachi and others 1994 CLC 2150 and National Bank of Pakistan through attorney and another v. Paradise Trading Company and others 2015 SCMR 319 ref.

Khaleeq Ahmed for Appellants.

P L D 2024 Sindh 279

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

KARACHI ELECTRIC SUPPLY CORPORATION (KESC)---Appellant

Versus

BATOOL FATIMA---Respondent

High Court Appeal No. 256 of 2005, decided on 30th January, 2024.

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

----Art. 133---Cross-examination---Fact not cross-examined---Effect---Material point of statement of a witness not cross-examined is deemed to have been admitted by the other side.

Muhammad Rafiq and another v. Abdul Aziz 2021 SCMR 1805; Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214; Farzand Ali and another v. Khuda Bux and others PLD 2015 SC 187 and Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 rel.

(b) Tort---

----Negligence---Scope---Negligence is a tort involving breach of a legal duty of care causing loss by a failure to party to whom duty is owed.

(c) Damages---

----Damages, recovery of---Expected profits and invisible losses---Proof---Respondent/plaintiff sought recovery of damages against appellant/defendant company for disconnecting electricity connection, resulting into loss suffered---Validity---Illusionary, arbitrary, presumptive claim for damages for loss of expected profits and invisible losses was made by respondent/plaintiff---No evidence of loss of reputation or mental anguish was provided at trial---Even if it was considered that the manufacturing unit's witness was not cross-examined, even then it did not appeal to a prudent mind that solely because the manufacturing unit's witness was not cross-examined, it would mean that unproved and unsubstantiated damages claimed could be granted---Claim made by manufacturing unit should have been backed by a record that would provide a benchmark for what was claimed but it was not---By awarding damages as claimed by respondent/plaintiff, Trial Court committed an error as the respondent/ plaintiff was entitled only to recover Rs. 42,078/- for being unable to meet orders which were in the pipeline when power supply was disconnected---There was no yardstick to measure mental anguish but keeping in view suspension of business, Division Bench of High Court awarded symbolic damages of Rs.100,000 for mental anguish and Rs. 100,000 for loss of reputation---Division Bench of High Court modified judgment and decree passed by Trial Court and disallowed remaining damages as claimed by respondent/ plaintiff---Intra Court Appeal was allowed accordingly.

Spartan Steel and Alloys Ltd. v. Martin & Co (Contractors) Ltd. [1973] 1 QB 27 and Ultramares Corporation v. Touche 174 N.E. 441 (1932) rel.

Danial Shaikh for Appellant.

Syed Nadeem-ul-Haque for Respondents.

P L D 2024 Sindh 284

Before Irshad Ali Shah and Arbab Ali Hakro, JJ

MUHAMMAD UMAR SHAIKH---Petitioner

Versus

The SECRETARY LOCAL GOVERNMENT, KARACHI and 6 others---Respondents

Constitutional Petition No. D-180 of 2023, decided on 24th May, 2023.

Sindh Local Government Act (XLII of 2013)---

----S. 21(3)---Constitution of Pakistan Art. 199---Constitutional petition---Quo warranto, writ of---Administrator, District Council---Acting charge appointment---Petitioners assailed appointment of respondent as Administrator on acting charge basis---Validity---Provisional and transitional measures under S. 21(3) of Sindh Local Government Act, 2013, were implemented in the form of designating responsibility of Administrator for District Council concerned to respondent until the duly-elected Council would assume office---Notification in question was lawfully issued in adherence to the provision outlined in S. 21(3) of Sindh Local Government Act, 2013---High Court declined to interfere in the matter as the petition did not qualify for the test for issuance of a writ of quo warranto---Respondent held the post of Administrator, District Council on an acting charge basis, i.e., as a temporary and stopgap arrangement---Constitutional petition was dismissed, in circumstances.

Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189; Khan Muhammad v. Chief Secretary, Government of Balochistan Quetta and others 2018 SCMR 1114 and Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 rel.

Ashfaque Hussain Abro for Petitioner.

Zulfiqar Ali Domki for Respondent No.4.

Habibullah G. Ghouri for Respondent No.6.

Abdul Hamid Bhurgri, Addl. Advocate General Sindh.

P L D 2024 Sindh 289

Before Zulfiqar Ahmad Khan, J

Mst. ISHRAT PARVEEN and another---Plaintiffs

Versus

Syed AZHAR ALI and others---Defendants

Civil Suits Nos. 102 and 323 of 2006, decided on 1st June, 2022.

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

----Ss. 42 & 54---Suit for declaration and injunction---Benami Transaction---Proof---Plaintiff claimed that suit property was purchased by her deceased husband in the name of his younger brother/defendant as Benami owner---Validity---Benami transaction means a transaction in the name of another person to describe and express a transaction of a property who holds the property as ostensible owner for its beneficial owner---In fact it is a genre of transaction where somebody recompenses for the property but does not get hold of it in his personal name---Person in whose name such type of property is purchased is called Benamidar and the property so purchased is called Benami property---Despite the fact a Benami property is purchased on the name of someone else, the person who sponsors the transaction is the real owner---Assets acquired in the name of spouse or a child for which money is paid from known sources of income is called Benami property---Burden of proving whether a particular person is a Benamidar is upon the person alleging the same---Defendant purchased suit property and in such respect he introduced on record Sale Agreement, Transfer Deed, Transfer Letter issued by KDA showing that the title documents were in his possession which were produced in evidence by him---No original documents of like nature were produced by plaintiff in the name of her deceased husband in respect of suit house---Claim of plaintiff that her deceased husband was actual owner was not proved---Suit was dismissed, in circumstances.

PLD 2010 SC 569; Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146; 2010 SCMR 171; 1991 SCMR 703, PLD 2003 SC 494; 1997 SCMR 1811; 2009 CLC 324; 2019 MLD 545; Halima v. Muhammad Kassam 1999 MLD 2934; Allah Diwaya v. Ghulam Fatima PLD 2008 SC 73; State Life Insurance Corporation of Pakistan v. Fazal and Sons 2010 CLC 1895; Al-Meezan Investment Management Company Ltd. and 2 others v. WAPDA First Sukuk Company Limited Lahore and others PLD 2017 SC 1; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Lal and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Ghias-ud-Din v. Iqbal Ahmed and 5 others PLD 1975 Lah. 780 and Mst. Sarwari Begum v. Atta ur Rehman 1997 CLC 1500 ref.

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

----S. 42---Benami transaction---Proof---Pre-conditions---To accept a challenge on ground of a property as Benami one would require certain facts/circumstances which an actual owner otherwise would establish:--

(i) source of consideration;

(ii) from whose custody original title deed and other documents come in evidence;

(iii) who is in possession of suit property; and

(iv) motive of Benami transaction. [p. 297] B

Abdul Majeed v. Amir Muhammad 2005 SCMR 577 and Muhammad Nawaz Minhas v. Surriya Sabir Minhas 2009 SCMR 124 rel.

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

----Art.133---Cross-examination---Voluntary statement---Scope---Voluntary statement by a witness in cross-examination has no legal evidentiary value---Witness is not permitted to foist into his answer, any statement/material which is not in answer to or explanatory of his answer to the questions put to him---Such voluntary evidence is denominated as "irresponsive" testimony and introduction of such evidence is against the rule of re-examination as contemplated under Art.133 of Qanun-e-Shahadat, 1984.

Mushtaq Ahmed Malik v. Muhammad Sunawar Choudhary 2003 YLR 406 rel.

Shahenshah Hussain for Plaintiffs.

Sheikh Rehan Farooq and Noor Alam Khatri for Defendants.

P L D 2024 Sindh 305

Before Arbab Ali Hakro, J

AHMED and another---Applicants

Versus

REHMAT ALI through legal heirs and others---Respondents

Civil Revision Application No. S-147 of 2019, decided on 16th February, 2024.

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

----Ss. 42 & 55---Suit for declaration and permanent injunction in respect of immoveable property---Entries in revenue record---Forged and fabricated---Petitioners filed a suit for declaration and permanent injunction pleading that petitioner No. 1 purchased the suit property from respondent No. 1 through an oral statement before Assistant Mukhtiarkar and the record of rights was mutated in his favour vide entry No. 275 dated 25.06.1994---Said property was sold out in favour of petitioner No. 2, who mortgaged the said property with a Bank---Later, the Assistant Commissioner cancelled the original entry dated 25.06.1994 on the grounds that it had been deceitfully kept in Village Form VII-B in February 1996---Petitioners filed a civil suit, seeking a declaration that petitioner No. 2 was the lawful owner of the suit land and that the note kept by the Assistant Commissioner, whereby he cancelled the entry, was illegal, void and not binding upon the petitioners---Suit was decreed by the Trial Court---First Appellate Court dismissed the suit---Validity---Record showed that the appellate Court arrived at a significant conclusion through a meticulous, conscientious, and lawful evaluation of the evidence and official revenue records pertaining to the alleged entries---Entries, allegedly manipulated by the applicants in collusion with the Revenue Officials, were scrutinized---Appellate Court allowed the appeal and rightly concluded that Entry No.275 dated 25.6.1994, made in favour of applicant No.1 along with the statements of respondent No.1, in the book of statements, were palpably false---Such entries and statements were not just erroneous but were deemed forged, fabricated, and concocted, indicating a deliberate attempt to misrepresent the facts---Such finding was not made lightly but was the result of careful evaluation of the record---After such comprehensive review, the appellate Court rightly held that the appellants had committed fraud against the respondents---Applicants could not provide an attesting witness regarding the alleged sale or any other documentary evidence to substantiate that they had purchased the suit land through an alleged Statement of Sale---Reevaluating evidence was generally undesirable in revisional proceedings---Trial Court failed to understand the legal and factual aspects of the case when it was decreed---At the same time, the appellate Court correctly dismissed the suit through a well-reasoned judgment without committing any illegality---In case of conflicting decisions, the appellate Court's findings should be given weight and respected unless it was clear from the record that such findings were not evidence-based and were materially illegal---Revision petition was dismissed accordingly.

PLD 1998 Kar. 348; 2003 YLR 1760; 2003 YLR 1570; PLD 1963 Kar. 215; 2007 YLR 1770; PLD 2003 SC 688; 2007 SCMR 729 and 2014 CLC 1334 ref.

Rao Abdul Rehman (Deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others 2023 SCMR 815 rel.

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

----Ss. 42 & 55---Civil Procedure Code (V of 1908), S. 35-A & O.XLI, R.33---Suit for declaration and permanent injunction in respect of immoveable property---Compensatory cost, imposition of---Appellate Court, powers of---Petitioners filed a suit for declaration and permanent injunction which was decreed by the Trial Court---First Appellate Court dismissed the suit and imposed compensatory cost of Rs. 500,000---Validity---Applicants alleged that the appellate Court lacked the authority under Ss. 35 & 35-A of the C.P.C. to impose compensatory costs of Rs. 500,000 on them---Language of the impugned judgment suggested that the appellate Court had acted under Ss. 35 & 35-A of the Code in imposing a compensatory cost on the applicants---However, according to subsection (2) of S. 35-A of the Code, the maximum compensatory cost limit was twenty-five thousand rupees---Earlier the maximum amount of the compensatory cost was Rs.5,000/- but it was substituted with twenty five thousand through an amendment introduced through Civil Laws (Reforms) Act, 1994---In this case, the appellate Court had imposed a compensation of five lac rupees on the applicants, exceeding the maximum limit prescribed by law---Furthermore, as stipulated in S. 35-A read with O. XLI, R. 33 of the Code, the appellate Court was precluded from granting compensatory costs---In fact, such Section of the law empowered only the Trial Court to award compensatory costs to the successful party against the defeated party, provided the claim or defence was found to be false or vexatious, and the successful party had raised that plea at the earliest stage of the suit---Thus, the Court of Appeal was not legally competent to award punitive or compensatory costs under S. 35-A read with O. XLI, R. 33 of the Code---Order of imposing compensatory cost was set-aside accordingly.

2001 SCMR 1680 and S.I.T.E. v. Mst.Qamar Hilal and others 2002 MLD 1569 rel.

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

----Ss. 195 & 476---Penal Code (XLV of 1860), S. 193---Furnishing false information in judicial proceedings---Discretion of Court to initiate proceedings under S. 195, Cr.P.C.---Petitioners filed a suit for declaration and permanent injunction which was decreed by the Trial Court---First Appellate Court dismissed the suit and directed to initiate criminal proceedings against the petitioners under S. 195, Cr.P.C.---Validity---Section 193, P.P.C., pertained to the offence of perjury, which involved making false statements or presenting false evidence in a judicial proceeding---If a party was found to have committed perjury during a civil proceeding, the Court could initiate criminal proceedings against that party under S. 193, P.P.C.---Such section ensured the integrity of the judicial process and deterred parties from making false statements or presenting false evidence in Court---However, it is important to note that prosecution for perjury should only be launched when it is expedient in the interest of justice, and not to satisfy private vengeance---Under S. 476, Cr.P.C., prosecution is not to be launched as a matter of course for each and every offence alleged to have been committed in the course of judicial proceedings---Necessary requirement for such an action was that it must be taken in public interest and should not be allowed to be used as a handle in the hand of one party to wreak private vengeance or satisfy a private grudge against the other party---Therefore, the appellate Court had rightly exercised its discretion by initiating criminal proceedings against the applicants in view of the peculiar facts and circumstances of the case---Impugned judgment and decree were maintained---Revision application was disposed of accordingly.

Jamshed Ahmed Faiz for Applicants.

Mian Abdul Salam Arain for Respondent No.1.

Ahmed Ali Shahani, A.A.G. for Respondents Nos.2 and 3.

P L D 2024 Sindh 320

Before Omar Sial, J

Dr. SHAHID KARIM and 3 others---Petitioners

Versus

The CHIEF EXECUTIVE OFFICER, SINDH HEALTH CARE COMMISSION and others---Respondents

Criminal Miscellaneous Application No. 881 of 2023, decided on 22nd December, 2023.

Penal Code (XLV of 1860)---

----Ss. 322 & 34---Sindh Health Care Commission Act, 2013 (VII of 2014), Ss. 4(6)(b) & 29---Qatl-bis-sabab, common intention---Medical negligence---Investigation into allegations of mal-administration and malpractice of medical professionals---Mother of the complainant fell ill and was taken to hospital for treatment but she expired in the hospital---Complainant alleged that his mother died due to the negligence of the doctors who treated her in hospital---Petitioners/ doctors sought quashing of FIR lodged against them under Ss. 322 & 34, P.P.C. against them---Held, that Sindh Health Care Commission, constituting of experienced and wise doctors, had cleared the doctors of criminal liability---Recommendations of the Commission had to be given weight in cases of medical negligence---Person aggrieved in this case was highly disappointed at the service rendered to him---In the whole incident, sadly, mother of complainant passed away, and he was rightly hurt---Complainant was a competent member of the judiciary, and keeping in mind his intelligence and wisdom, perhaps his feelings got the better of him---It was evident from the number of doctors complainant had a grievance against that he had attributed criminal liability upon all who came on his radar, which was a reckless and incorrect step to take---Deceased was an elderly lady suffering from many ailments, and it appeared that she sadly was also impacted by the COVID-19 virus---Lapses were there on the part of the hospital management---Such aspect had, however, been analyzed by the Sindh Health Care Commission, and penalties that the Commission thought were fair were imposed---Moreover, it would have enhanced the Hospital management's dignity if someone had reached out to the aggrieved person, heard him out, and apologized for any grief caused---Medical profession, too, had a lot to answer---Insensitivity of doctors towards their patients, a quest to generate more money by the hour, long wait hours, not briefing patients, disdain towards queries made by patients, fragile egos and arrogance, and lack of clinical manners were some areas in which the medical profession should introspect---It is not denied that patients being treated like cattle is on the rise in the medical profession---It was preferable that an aggrieved person first sought his remedy before the Trial Court under S. 265-K or 249-A, Cr.P.C.---In the present case, the aggrieved doctors had not sought their remedy before the Trial Court; however, the circumstances of the present case necessitated quashing the proceedings originating out of FIR---Aggrieved person would not be restrained from pursuing any legal route he had after the decision on the appeal, which was pending adjudication, if it was held in the appeal that the doctors had been criminally negligent.

Dr. Suresh Gupta v. Government of NCT Delhi AIR 2004 SC 4091 (2004) 6 SCC 42 and R v. Adomako [1995] 1 A.C. 171 rel.

Shahnawaz Ayoub Dahri for Applicant.

Muhammad Omer Pechho, Assistant Director, Sindh Health Care Commission for Respondent No.1.

Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State (Respondents Nos. 2 to 7).

Imtiaz Ali Khoso for Respondent No.8.

P L D 2024 Sindh 325

Before Aqeel Ahmed Abbasi and Abdul Mobeen Lakho, JJ

POPULAR INTERNATIONAL (PVT.) LIMITED through duly authorized officer---Petitioner

Versus

PAKISTAN through Secretary, Revenue and Ex-Officio Chairman, F.B.R. and another---Respondents

C.P. No. D-3049 of 2023, decided on 6th November, 2023.

(a) Drugs Regulatory Authority of Pakistan Act (XXI of 2012)---

----Ss. 23, 32 & 36---Sales Tax Act (VII of 1990), Eighth Schedule, Entry No. 81---Medical Devices Rules, 2017, R. 52---Notification SRO 526(I)/2021, dated 30-04-2021---Notification, vires of---Removal of difficulties clause---Scope---Petitioner, who imported and distributed drugs, was aggrieved of withholding of benefits under Entry 81 of Eighth Schedule to Sales Tax Act, 1990, on the basis of notification SRO 526 (I)/2021, dated 30-04-2021---Plea raised by authorities was that in exercise of powers under S. 23 of Drugs Regulatory Authority Act, 2012 and Medical Devices Rules, 2017, the notification SRO 526(I)/2021, dated 30-04-2021, was issued---Validity---Removal of difficulties clause could only be utilized for a restricted purpose and such provision could not be used to alter the scope of parent law---Rules which were merely subordinate legislation could not override or prevail upon the provisions of parent statute and whenever there was any inconsistency between the rule and statute, the latter must prevail---All efforts to reconcile inconsistency should be made and provisions of parent statute should prevail, if the conflict was incapable of being resolved---Constitutional petition filed by petitioner company was allowed accordingly.

Government of Balochistan v. Shah Muhammad PLD 2023 SC 609; Farrukh Raza Sheikh v. The Appellate Tribunal, Inland Revenue and others 2022 SCMR 1787; Abbu Hashmi v. Federation of Pakistan and others PLD 2021 Sindh 492; Messrs Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal) LTU, Islamabad and others 2019 SCMR 282; Messrs Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal), LTU, Islamabad and others 2017 SCMR 1136; Elahi Cotton Ltd. v. Federation of Pakistan 1997 PLD SC 582; Ittefaq Foundry v. Federation of Pakistan and others PLD 1990 Lah. 121; Johnson and Johson Pakistan (Pvt.) Limited v. Federation of Pakistan PLD 2021 Lah. 314; PMDC v. Shahida Islam Medical Complex (Pvt.) Limited 2019 CLC 1761; PLD 2014 SC 389 and PLD 2011 SC 619 rel.

(b) Interpretation of statutes---

----Delegated legislation---Rules made under a statute---Scope---Rules are considered subordinate and delegated legislation deriving authority and legal cover from the provisions of main statute and cannot override the provisions of statute---To determine vires of delegated legislation, Court has to examine as to whether, such delegated legislation is beyond the power granted by enabling legislation and whether such delegated legislation is consistent with and in furtherance of parent statute---Delegated legislation can be struck down if it is repugnant to general purpose of the statute which authorized it or is in conflict with the main statute.

Makhdoom Ali Khan, Abdul Ghaffar Khan, Fahad Khan and Sami-ur-Rehman for the Petitioner.

Muhabbat Hussain Awan for Respondent No.1.

Khaleeq Ahmed, D.A.G. for Respondent No. 2.

P L D 2024 Sindh 336

Before Ahmed Ali M. Shaikh and Yousuf Ali Sayeed, JJ

JAMIA MASJID AL-SIDDIQ through President and others---Petitioners

Versus

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

C.P. No. D-7615 of 2022, decided on 3rd May, 2023.

Charitable and Religious Trusts Act (XIV of 1920)---

----Preamble & S. 3---Registration of a trust---Scope---Petitioners applied to the office of (Trust) Directorate of Industries for the registration of a trust for construction, supervision etc. of a mosque ('the subject Trust') under the Charitable and Religious Trusts Act, 1920, claiming that the subject Trust was created for religious purpose, however, the same was refused---Petitioners invoked constitutional jurisdiction of the High Court against the said refusal asserting a right for registration of the subject Trust relying on S. 3 of the Charitable and Religious Trusts Act, 1920---Validity---Perusal of Charitable and Religious Trusts Act, 1920, reflects that the same is not a registering statute and does not contain any section providing for registration---Even from a plain reading of S. 3 of the Charitable and Religious Trusts Act, 1920, relied upon by the petitioners, it is apparent that the same is on a different plane as it does not have any nexus with the subject of registration, but merely provides certain remedies to the beneficiaries of a trust---Indeed, the very Preamble of the Charitable and Religious Trusts Act, 1920, reflects that its underlying purpose is "to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts"---High Court viewed that the constitutional petition was misconceived and the same was dismissed in limine.

P L D 2024 Sindh 339

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

KARACHI METROPOLITAN CORPORATION (K.M.C.) through Deputy Director, KMC---Petitioner

Versus

PRESIDING OFFICER, IX AD&SJ, EAST, KARACHI and 2 others---Respondents

Constitution Petition No. D-192 of 2023, decided on 28th November, 2023.

Sindh Civil Court Rules---

----R. 44---Sindh Local Government Act (XLII of 2013), S. 126---Legal Advisors and Government Pleaders---Memo of appearance, filing of---Non-filing of Vakalatnama---Petitioner/Karachi Metropolitan Corporation was aggrieved of the order passed by Lower Appellate Court returning Memo of Appearance and giving directions to file proper Vakalatnama---Validity---Advocates who appear for a private party file Vakalatnama and, in contrast, Advocates appearing on behalf of Government put in a Memo of Appearance---Such practice of Government Pleader filing Memo of Appearance instead of Vakalatnama is also consistent with the provisions of R. 44 of Sindh Civil Court Rules---Order of petitioner Corporation was in line with the statutory requirements for issuing such orders as laid down in S. 126 of Sindh Local Government Act, 2013---There was no lacuna in the order of petitioner Corporation---Once the Court had assessed that a Memo of Appearance submitted by petitioner Corporation was in line with the provisions of Sindh Local Government Act, 2013, the Court should have accepted the same---High Court directed Lower Appellate Court to accept Memo of Appearance from the empaneled Advocate of petitioner Corporation subject to scrutiny as per law---Constitutional petition was allowed, in circumstances.

Pakistan through General Manager, Pakistan Railways v. Messrs O.M.R. Expert Consultants PLD 1990 SC 800; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Raja Rab Nawaz v. Federation of Pakistan through Secretary Defence and others 2013 SCMR 1629; Cantonment Board, Rawalpindi and another v. Ghulam Habib Rana and others 1997 SCMR 1; M.Q.M. (Pakistan) and others v. Pakistan through Secretary Cabinet Division, Government of Pakistan and others PLD 2022 SC 439; (1979) 4 SCC 701 and Rasheed Ahmad v. Federal of Pakistan through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad and others PLD 2017 SC 121 rel.

Mohsin Khan for Petitioner.

Nemo for Respondent No.1.

Sandeep Malani, Addl. A.G. for Respondent No.2.

Nemo for Respondent No. 3.

Qazi Abdul Hameed Siddiqui, D.A.G. on Notice.

P L D 2024 Sindh 348

Before Muhammad Shafi Siddiqui, J

JDW SUGAR MILLS LIMITED through authorized representative and others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security and Research, Pakistan and others---Defendants

Suits Nos. 145 (C.M.A. No. 1735 of 2023) and 149 (C.M.A. No. 1759 of 2023) of 2023, decided on 7th March, 2023.

(a) Constitution of Pakistan---

----Art. 142(a) & Fourth Schedule, Part-I, Entry No. 27---Federal legislative power---Policy making---Delegation of power---Sugar quota---Cane Commissioner---Jurisdiction---Federal Government cannot delegate its policy making powers to Cane Commissioner as it is its Constitutional mandate---Seeking assistance of such machinery (Cane Commissioner) is one thing and identifying a policy view, based on that assistance is another---Concept of carving out policy remains with the Federation, which has a Constitutional mandate.

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

----Ss. 42 & 54---Constitution of Pakistan, Arts. 25 & 142---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Sugar quota for export---Equality, principle of---Applicability---Plaintiff/company was aggrieved of allocation of sugar quota by Cane Commissioner in violation of Federal Government Policy---Validity---Different people cannot be treated alike when law permits distinctions---When Federal Government did not carve out policy for allocating quota by treating all mills alike, the Cane Commissioner was also not permitted to do so---All sugar mills were not equal in terms of their capacity in many ways---Respective owners of sugar mills invested more in their mills, developed greater capacity, installed efficient plants and managed them more efficiently and worked harder than those who were less productive, less efficient and did not manage their efficiency and production---Sugar mill producing 2,18,590 Metric Tons of sugar in a year could not be at par with one producing 9,040 Metric Tons of sugar for allocating export quota---For any other issues sugar mills could be classified as one but not for export quota based on performance and productivity---All sugar mills did not deserve similar quota of export and the logic and rational would not let it happen---Cane Commissioner misunderstood when he applied his wisdom without following the limitations that they were under---Federal Government was also equally responsible in not assisting High Court and clarifying the intent of policy to Cane Commissioner---Politics should not invade policy matter meant for public interest in a way that fundamental and secured legal rights of citizen get prejudiced---High Court restrained Cane Commissioner from acting in such manner and distributing quota arbitrarily---High Court expected from the Cane Commissioner prompt makeup for the losses, as far as sugar mills' quota was concerned i.e. distribution on performance based i.e. sugar crushed and/or sugar produced which was the only justified formula provided by Federal Government when policy was made and applied---This was a time bound issue as sugar had its best use if consumed in two years' time, thus Cane Commissioner would respond and submit reallocation within two weeks' time---High Court declared that allocation of quota for export of sugar in identical terms i.e. 2500 MT to every sugar mill of Sindh through Cane Commissioner, ignoring sugarcane crushed and sugar produced by mills, was illegal and unlawful---Cane Commissioner was under obligation to implement the policy in letter and spirit as required by the Federation---Application was allowed accordingly.

Baloch Distillery and Sugar Mills v. Secretary Industries and Commerce Department PLD 2017 Sindh 313; Province of KPK v. Farasatullah 2020 PLC (C.S.) 1423; Aman Ullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092; Government of NWFP v. Mejee Flour and General Mills 1997 SCMR 1804; State of Maharashtra v. Kamal Sukumar Durgule AIR 1985 SC 119; Ahmed Yar Chohan v. Federal Public Service Commission 1998 MLD 1832; Uttar Pardesh Power Corporation (2008) 10 Supreme Court Cases 139; Federation of Pakistan through Secretary Ministry of Communication Islamabad v. Shuja Sharif 2023 SCMR 129; Abu Bakar Siddique v. Collector of Customs, Lahore 2006 SCMR 705; Haji Ibrahim v. Abdul Qadir Lakhani PLD 2023 Sindh 11; Dorab Cawasji Warden v. Coomi Sorab Warden AIR 1990 SC 867; Salma Jawaid v. S.M. Arshad PLD 1983 Kar. 303; Balagamwala Oil Mills Ltd. v. Shakarchi Trading PLD 1990 Kar. 1 and Government of Pakistan v. M. I. Cheema 1992 SCMR 1852 rel.

(c) Constitution of Pakistan---

----Art. 25--- Equality--- Reasonable classification--- Intelligible differentia---Scope---Constitution prohibits class legislation but permits reasonable classification for the purpose of legislation---Such classification must specify the twin test of classification on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out---Group of differentia must have a rational nexus to the object sought to be achieved by a statute.

D.S. Nakara v. Union of India AIR 1930 SC 130 and I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 rel.

Makhdoom Ali Khan, Ali Almani, Khawaja Aizaz Ahsan, Mostafa Abbas Naqvi and Samiur Rehman for Plaintiffs (in Suit No.149 of 2023).

Khalid Jawed Khan for Plaintiffs (in Suit No.145 of 2023).

Abdul Sattar Pirzada, Mamoon N. Chaudhry, Gibran Karim Pirzada and Muhammad Inzimam Sharif for Defendants Nos.10, 11, 17, 19, 22, 23, 25, 26, 30, 31, 32, 33, 34, 35, 36, 37 and 38 (in Suit No.145 of 2023 and for Defendants Nos. 10, 11, 16, 18, 21, 22, 23, 24, 28, 29, 30, 31, 32, 33, 34, 35 and 36 (in Suit No.149 of 2023).

Ovais Ali Shah for Defendants Nos. 12, 13, 15, 27, 28, 29 and 39 (in Suit No.145 of 2023) and for Defendants Nos.12, 14, 25, 26, 27 and 37 (in Suit No.149 of 2023).

Jaffer Raza for Defendants Nos. 16 and 41 (in Suit No.145 of 2023) and for Defendants Nos.15 and 39 (in Suit No.149 of 2023).

Malik Sadaqat Khan, Additional Attorney General and Ms. Mahreen Ibrahim, Assistant Attorney General along with Athar Hussain Khokhar, Director General, Ministry of Commerce.

Zeeshan Edhi, Additional Advocate General Sindh along with Zamir Ahmed Jagirani, Cane Commissioner Sindh, Muhammad Idrees Khoso, Addl. Secretary (Technical) Agriculture, Supply and Prices Department Government of Sindh and Zulfiqar Ali Vistro, Focal Person for Legal Matters Agriculture, Supply and Prices Department, Government of Sindh.

Manzoorul Haq and Alam Zaib, Law Officer SBP.

P L D 2024 Sindh 374

Before Adnan Iqbal Chaudhry, J

ZIAUDDIN AHMED & CO. (PVT.) LIMITED---Plaintiff

Versus

KARACHI SHIPYARD AND ENGINEERING WORKS LTD. and others---Defendants

Suit No. 1192 of 2022, decided on 31st August, 2023.

Contract Act (IX of 1872)---

----S. 126---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, refusal of---Bank guarantees, types of---Object, purpose and scope---Principle of strict liability---Applicability---Plaintiff/company sought stay against encashing of bank guarantees issued to defendant for Performance of Contract and to secure Mobilization Advance---Validity---Bank guarantee is an autonomous contract, and as such it has to be construed on its own terms, independent of underlying contract between principal and beneficiary, irrespective of claims pending between them---Accordingly nature and text of bank guarantee assumes great importance---Of the two well-known types of bank guarantees, Mobilization Guarantee is given to secure advance payment received by principal from beneficiary for contracted works---Usually beneficiary deducts that advance payment from bills raised by principal from time to time and Mobilization Guarantee is then renewed for unadjusted amount---Performance Guarantee, generally speaking, is to guarantee fulfilling of obligations by principal under underlying contract---Mobilization Guarantee is essentially beneficiary's money with principal---Courts ordinarily invoke 'the rule of non-interference' with a banker's obligation to construe such guarantee as not being subject to a restraining order even if there is a dispute between the parties to the underlying contract---In cases involving guarantees such as Performance Guarantees, Courts grant or refuse injunction depending upon the text of the guarantee construing it on 'the rule of strict compliance'---Plaintiff did not bring forth any exception to unsettle general rule of non-interference with bank guarantees, and the demand raised on bank guarantees too met the test of strict compliance---Plaintiff did not have a prima facie case for the grant of temporary injunction to stay payment under the bank guarantees, nor was it a case of irreparable harm---High Court declined to grant interim injunction restraining encashing of bank guarantees as balance of convenience was also in favour of defendant---Application was dismissed, in circumstances.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; EFU General Insurance Ltd. v. Zhongxing Telecom Pakistan (Pvt.) Ltd. PLD 2022 SC 809; Guangdong Overseas Construction Group Company v. Creek Marina PLD 2011 Kar. 304; Shan Associates v. Getz Pharma 2020 CLD 808; Husein Industries v. Sui Southern Gas Company PLD 2020 Sindh 551; Pakistan Real Estate Investment and Management Company v. Sky Blue Builders 2021 CLD 518; Sazco (Pvt.) Ltd. v. Askari Commercial Bank Ltd. 2021 SCMR 558; National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; National Grid Company v. Government of Pakistan 1999 SCMR 2367 and Equitable Trust of New York v. Dawson Partners Ltd. [1926] 27 Lloyd's Rep 49, 52 rel.

Khawaja Shams-ul-Islam, Obaid-ur-Rehman, Sabih Ahmed Zuberi and Khalid Iqbal for Plaintiff.

Arshad M. Tayebaly and Talha Javed for Defendants Nos. 1 and 2.

Nemo for Defendant No. 3.

Faheem Raza for Defendant No. 4.

Mubashir Mirza, Assistant Attorney General for Pakistan.

P L D 2024 Sindh 387

Before Muhammad Faisal Kamal Alam, J

TCB AVIATION (PVT.) LIMITED---Petitioner

Versus

SRI LANKAN AIRLINES LIMITED through Country Manager---Respondent

Suit No. 1657 of 2020, decided on 17th May, 2021.

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

----Ss. 3, 4 & Sched., Art. II---Arbitration Act (X of 1940), Ss. 20 & 41---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Arbitration proceedings---Interim injunction, refusal of---Foreign jurisdiction---Scope---Plaintiff was acting as General Sales Agent (GSA) in Pakistan on behalf of defendant airline of foreign country---Plaintiff was aggrieved of intention of defendant airline to terminate the agreement---Plaintiff invoked arbitration clause in the agreement and sought referring the matter to arbitration after issuance of interim injunction in its favour---Validity---GSA Agreements fulfilled the term "agreement in writing" containing an "arbitral clause" as mentioned in Art. II of Schedule of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Proceedings were governed by the provisions of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act,2011 and not Arbitration Act, 1940---High Court declined to confirm restraining order granted earlier, as no case was made out by plaintiff for such kind of interim injunctive relief---Subject GSA Agreements not only contained foreign arbitration clause but also the governing law was that of foreign country---Plaintiff could avail remedy of interim relief/ protection, under the relevant provisions of laws of foreign country---High Court stayed proceedings of suit filed by plaintiff, under Ss. 3 & 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, and ad-interim order passed earlier was vacated/recalled---Application was dismissed in circumstances.

Tallahasee Resources Incorporated through Mrs. Maleeha Waheed Malik v. Director General Petroleum Concessions, Ministry of Energy (Petroleum Division) and another 2021 CLC 423; The Hub Power Company Limited (HUBCO) through Chief Executive and another v. Pakistan WAPDA through Chairman and others PLD 2000 SC 841; Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar & Company Limited 1993 SCMR 866; Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari (Turkish Airlines Inc.) 2015 CLC 1; Messrs Serulean (Pvt.) Ltd. Karachi v. Messrs Bhoja Airlines (Pvt.) Ltd. through Chairman and another 2001 YLR 3150; Gul son Air Cargo Services (Pvt.) Ltd. v. Compagnie Internationale Air France 1997 CLC 1250; In re: Messrs Allied Commercial Finance Limited 1986 CLC 2408; Muhammad Farooq M. Memon v. Government of Sindh through its Chief Secretary, Karachi 1986 CLC 1408; Muhammad Jamil v. Iqbal Ahmed PLD 1977 Kar. 351; Global Quality Foods Pvt. Limited v. Hardee's Food Systems, Inc. PLD 2016 Sindh 169; 1979 CLC 307; 1997 CLC 1230; PLD 1972 AJK 80; 1994 CLC 2000; PLD 1974 Lah. 231; 1979 CLC 565; 1983 CLC 1695; 2013 MLD 1083; 1995 CLC 1877; 1987 CLC 2063; 2010 YLR 3331; PLD 2014 Kar. 427; 2011 CLC 323; 1984 CLC 546; PLD 1976 Kar. 644; 2000 MLD 785; 2001 CLC 664; 2003 CLD 209; 2004 CLC 544; 2008 CLD 1312.; 2003 YLR 461; PLD 1983 Kar. 613; PLD 1978 Kar. 273; 1996 SCMR 690 ; PLD 1993 SC 42; 2010 YLR 1560; PLD 1989 Kar. 645; 2005 MLD 641; PLD 1986 Kar. 38; PLD 2008 Isl. 48 ; PLD 1970 SC 373; 1989 CLC 1143; PLD 1995 Kar. 286; 1998 CLC 485; 2014 CLD 337; PLD 1966 AJK 19; 1994 SCMR 1555; 2006 CLD 1491; PLD 1978 SC 220; PLD 1989 Kar. 404; Digital World Pakistan (Pvt.) Ltd. through Chief Executive v. Samsung Gulf Electronics FZE through Managing Director/Chief Executive Officer and another PLD 2010 Kar. 274; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others PLD 2018 Sindh 414; Ovex Technologies (Private) Limited v. PCM PK (Private) Limited and others PLD 2020 Isl. 52; Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary Ministry of Communications and others 2010 SCMR 524; Societe Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad 2002 SCMR 1694; Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd and others PLD 2002 SC 660; Abdul Salam Ansari and 6 others v. Province of Sindh through Secretary and 2 others 2012 CLC 350; Messrs Jame's Construction Company (Pvt.) Ltd., through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others PLD 2002 SC 310; Mst. Baigan v. Abdul Hakeem and another 1982 SCMR 673;Taisei Corporation v. A.M. Corporation Company (Pvt.) Ltd. 2018 MLD 2058; Cummins Sales and Service (Pakistan) Limited through Authorized Signatory v. Cummins Middle East FZE through Chief Executive and 4 others 2015 CLD 1655; Abid Associated Agencies International (Pvt.) Ltd. and others v. Areva and others 2015 MLD 1646; Cummins Sales and Service (Pakistan) Limited through Authorized Signatory v. Cummins Middle East FZE through Chief Executive and 3 others 2013 CLC 291; Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; FAR Eastern Impex (Pvt.) Ltd. v. Guest International Nederland by and 6 others 2009 CLD 153; Messrs Travel Automation (Pvt.) Ltd. through Managing Director v. Abacus International (Pvt.) Ltd. through President and Chief Executive and 2 others 2006 CLD 497 and Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. and 4 others 2004 CLD 1530 ref.

S. Haider Imam Rizvi, Jamal Bukhari, S. Ahsan Imam Rizvi and Asadullah Shar for Plaintiff.

Jahanzeb Awan and Rashid Mahar for Defendant.

Irfan Ahmed Memon, D.A.G.

P L D 2024 Sindh 408

Before Yousuf Ali Sayeed, J

SHEHZAD ARSHAD---Plaintiff

Versus

PERVEZ ARSHAD and others---Defendants

Suit No. 1721 of 2022, decided on 16th April, 2024.

Alternative Dispute Resolution Act (XX of 2017)---

----Ss. 6 & 8---Reference to Alternative Dispute Resolution (ADR)---Valuation Report---Objections---Parties referred to mediation---Dispute between parties was with regard to affairs and assets of a textile mill and it was agreed to refer the matter for ADR---Plaintiff had objected to utilization of assets of the mill---Held, that plaintiff did not demonstrate any material discrepancy and even if Valuation Report cited by him was considered, the only material diminution was on account of plant and machinery but that too was subject to counter allegation of improprieties imputed by defendant to plaintiff predating the Agreement---Question of diminution could not be answered without a deeper assessment based on evidence, following which any shortfall could be determined and made good---High Court directed the office to send copies of plaint, written statement and other documents to the mediation centre---High Court referred the parties to mediation accordingly.

Prudential Assurance v. Newman Industries Ltd (No 2) [1982] Ch 204; Foss v. Harbottle (1843) 2 Hare 461; Johnson v. Gore Wood & Co. (No. 1) [2002] 2 AC 1; Marex Financial Limited v. Sevilleja 2020 SCMR 1867; Peak Hotel and Resorts Ltd v. Tarek Investments Ltd. [2015] EWHC 3048; Latin American Shipping Co. v. Maroil Trading Inc. [2017] EWHC 1254; Faisal Zafar and another v. Siraj-Ud-Din and 4 others 2024 CLD 1 and Ghulam Asghar Pathan and others v. Federation of Pakistan and others PLD 2023 Sindh 187 ref.

Abdullah Azzam Naqvi for Plaintiff.

Khalid Mehmood Siddiqui for Defendant No.1.

Nemo for Defendant No.2.

Muhammad Hanif Faisal Alam for alleged Contemnors Nos. 2 and 3.

P L D 2024 Sindh 424

Before Mohammad Karim Khan Agha, J

ALI HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 204 of 2020, decided on 19th March, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b), 427 & 504---Qanun-e-Shahadat (10 of 1984), Art. 161---Constitution of Pakistan, Art. 10-A---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, intentional insult with intent to provoke breach of peace---State counsel---Cross-examination not conducted by State Counsel---Trial Judge cross-examining witnesses on behalf of accused---Legality---Accused was charged for committing murder of the deceased by causing sharp sided hatchet blows---Record showed that counsel for the accused was appointed on State expense, however said counsel was given opportunity to cross-examine the witnesses but he did not cross-examine the witnesses---Usually the Trial Court ought to have called the next witness as it was the decision of the counsel for the accused whether or not he wanted to cross-examine the witness---However, the Court took the unusual step of cross-examining the witness in detail on behalf of defence---Such practice was repeated in respect of first three witnesses, who prima facie were the most important witnesses in the case i.e. complainant and eye-witnesses---Admittedly, the Court had the power under Art. 161 Qanun-e-Shahadat, 1984, to put questions to a witness which were usually covered in the evidence of the question being reproduced followed by the answer being reproduced in the evidence---Such approach of the Trial Court cross-examining the witness in detail on the failure of the defence counsel to do so did not appear to be legal as the Trial Court was meant to be a neutral, independent arbitrator of the proceedings and was not meant to be perceived to be favouring one side or the other---Such conduct of the trial judge was not permissible under the law---Trial judge ought to have either given the counsel for accused time to cross-examine the important witnesses on the next date of hearing or he should have changed him with another more experienced counsel, who could have carried out the cross examination if the trial judge deemed it absolutely necessary to ensure that the interests of the accused were protected---Counsel appointed for the accused was not entirely incapable of proceeding with the case as he then proceeded to cross-examine the remaining (four) prosecution witnesses---Trial Court Judge while appointing counsel on State expense or pauper counsel for the accused in capital cases must ensure that the counsel appointed for the accused are experienced and seasoned defence counsel in capital cases so that the rights of the accused to a fair trial under Art. 10-A of the Constitution could be adequately protected at the time of trial as per law and Constitution---If the Judge thought that the Court appointed defence counsel was failing in his duty to adequately defend the accused and the accused was being prejudiced he might have considered changing the pauper counsel rather than cross-examining the witness himself which tended to erode his impartiality---Impugned judgment was set aside and matter was sent back to the Trial Court for the limited purpose of re-recording the evidence of three witnesses in the presence of defence counsel, who would be well-experienced and competent in dealing with capital cases.

Shafique Ahmed v. The State PLD 2006 Kar. 377 and Abdul Ghafoor v. The State 2011 SCMR 23 rel.

Nadeem Ahmed Azar for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh along with SIP Ali Naeem Haider, PS Mirpur Sakro for Respondent.

P L D 2024 Sindh 428

Before Muhammad Shafi Siddiqui and Arshad Hussain Khan, JJ

MUNAWAR ALI SAGAR and others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petitions Nos. 40 of 2021 and 1127 of 2023, decided on 16th October, 2023.

Antiquities Act (VII of 1975)---

----Ss. 10 & 28---Sindh Wildlife Protection, Preservation, Conservation and Management Act (XXIII of 2020) Ss. 12 & 13---Sindh Mining Concession (Granite) Order, 2007, Clause 25---Constitution of Pakistan, Art. 199---Constitutional petition---Protection of antiquities---Regulation of mining, quarrying etc.---New world heritage advice by International Union for Conversation of Nature (IUCN)---Applicability---Petitioners sought preservation, maintenance and resurrection of sites in question which were "International Heritage" classified as "Karoonjhar Hills/mountains"---Grievance of petitioners was that the site had been subjected to private excavation for minerals since year,1979---Validity---High Court had shown its concern that despite international Conventions over exploitation of minerals, oil and gas exploration over world heritage sites, the responsibilities were not shouldered properly, which resulted in diminishing such valuable sites of international importance---Relevant functionaries wake up only when the site of international importance is about to deplete---Extraction activities over world heritage properties were growing, which was a matter of concern---International Union for Conversation of Nature (IUCN) outlined new world heritage advice that mineral and oil/gas exploration and exploitation should not be permitted within natural world heritage sites---Such sites needed attention to be saved---High Court directed the authorities as under:-

A. Site "Karoonjhar Hills" was not available for excavation of any nature whatsoever except excavation for discovering historical monuments and that too after following international guidelines and archeological department;

B. Mines and Mineral Department did not enjoy jurisdiction over it since it was protected heritage and not available as a site for mining/excavation;

C. Entire range Karoonjhar Hills was in "one monument" under the law and could not be divided into pieces and portions, to make some part of it (range) available for any prohibited excavation. Its importance was in preserving the entire range and not permitting mineral excavation in between as it would not only destroy the beauty but at the conclusion of mining process would destroy the existing topography;

D. Forrest and Wild Life Department, Government of Sindh would take all and immediate measures to resurrect sanctuary for all those animals, birds, species whose habitat was Karoonjhar Hills;

E. Process of resurrecting forest should start and process of plantation of trees, which could grow and thrive in that region, should be started and record of plantation would be maintained and each hill with plantation process and plants/trees would be monitored and quarterly (three monthly) report to such effect would be filed before High Court;

F. District management along with police of the area were responsible that no commercial activity of any nature, that could said to be of mining or excavation, be carried out within Karoonjhar Hills and such officials would be considered to be responsible persons for maintaining restrictions and/or compliance. Other officials under the different enactments had to deliever their duties and failure in such regard would be considered as negligence and avoidance of the order of High Court;

G. Government of Sindh would ensure that mountain range in question be maintained as ordered and required under the law. In case any mining permit or any action or inaction was found to have been triggered or issued or if any private mining work was seen and found in progress, the Secretary of Mines and Mineral and all officials concerned would be primarily held responsible and be taken to task, besides others;

H. Each and every Jain Temple should be resurrected in its original form with the assistance of experts and each and every stone should be laid to restore it to its original shape and glory and the officers responsible for protection of such heritage would be held responsible;

I. Statutes (moveable antiquities) that were declared world heritage should also be made available so that world heritage in question would be protected in its original form.

----Constitutional petition was disposed of accordingly.

Ghulam Mustafa Hingorjo for Petitioner (in C.P. No. D-40 of 2021).

Petitioner in person (in C.P. No.D-1127 of 2023).

Rafiq Ahmed Dahri, Assistant Advocate General Sindh along with (i) Mir Aziz Ali Talpur, Deputy Conservator Wildlife Division Mirpurkhas, (ii) Ms. Sindhu Chandio, Assistant Director Culture Department, (iii) Ms. Koshalya Punhani, Assistant Director Culture Department, (iv) Rabel Sarwar, Assistant Director Mineral Development Tharparkar @ Mithi; and (v) Muhammad Saleh Bhatti, Superintendent Mines and Mineral Hyderabad Official Respondents (in both the Petitions).

Zaheer ul Hassan Minhas for Private Respondents Nos.7 to 12 (in C.P. No. D-40 of 2021).

Sajjad Ahmed Chandio and Ishrat Ali Lohar Amici Curiae.

P L D 2024 Sindh 442

Before Shamsuddin Abbasi and Agha Faisal, JJ

MUHAMMAD ASLAM TUNIO---Petitioner

Versus

EXECUTIVE ENGINEER SCARP, LARKANA and others---Respondents

Constitutional Petition No. D-817 of 2023, decided on 14th May, 2023.

Constitution of Pakistan---

----Arts. 175(2), 189, 190, 199 & 204---Suo motu jurisdiction of High Court for specific performance of contractual obligations by private parties---Scope---Letter was addressed by the petitioner to Senior Judge of High Court for facilitating him in a private cause, whereupon, office was directed to prepare the nomenclature of the respondents and issue notice to them and that too without filing of a constitutional petition---Letter was converted into a constitutional petition and despite disclosure of fact as to contractual obligations of private person, directions were issued to the representative of a private company under threat of coercive action under Art. 204 of the Constitution---Legality---Article 175(2) of the Constitution mandates that no court shall have any jurisdiction save as that conferred by the Constitution or the law----High Court following the judgments of Supreme Court found itself unable to sustain a petition actuated by an apparent unmerited suo motu, whereby coercive recourse was manifest to compel strangers towards specific performance of some extraneous contract---Judgments of Supreme Court are binding on all judicial and executive authorities of the country per Arts. 189 & 190 of the Constitution---Disregard to Supreme Court judgments inter alia unsettles the integrity and sanctity of the Supreme Court and renders inconsistent pronouncements of High Court as not only without jurisdiction but also unconstitutional---Issue between the contractor and its principal was contractual in nature, hence, not amenable to adjudication in writ jurisdiction, especially so when none of the parties to the contract had ever approached the High Court---Constitutional petition was dismissed, in circumstance.

Raja Muhammad Nadeem v. The State PLD 2020 SC 282; Dr. Imran Khattak and another v. Mst. Sofia Waqar Khattak, PSO to the Chief Justice and others 2014 SCMR 122; Taufiq Asif v. General (Retired) Pervez Musharaf and others (Civil Petition No. 3797 of 2020) and connected matters; yet unreported judgment dated 10th January 2024; 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574 and PLD 2001 SC 415 rel.

Petitioner in person.

Abdul Hamid Bhurgri, Additional Advocate General Sindh

and Oshaq Ali Sangi, Assistant Attorney General Pakistan for Respondents.

P L D 2024 Sindh 446

Before Adnan Iqbal Chaudhry, J

Messrs HABIB SUGAR MILLS LTD. through Chief Executive and another---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Agriculture Department and another---Defendants

Suit No. 141 of 2012, decided on 7th March, 2024.

Civil Procedure Code (V of 1908)---

----Ss. 20, 120 & O.VII, R.10---Constitution of Pakistan, Art. 199---Specific Relief Act (I of 1877), Ss.42 & 54--- Suit for declaration and permanent injunction---Suit to be instituted where part of cause of action arises---Scope---Amendment in the Agricultural Produce Market Rules, 1940, enhancing market/license fee at place "K"---Demand of these fees at the enhanced rate was made at place "S"---Objection was raised by the defendant that High Court at "K" had no territorial jurisdiction to adjudicate upon the matter in issue since the cause of action arose at place "S"---Contention of the plaintiff was that since part of cause of action arose at "K" and the amendment in the rules took place at "K", therefore, suit was maintainable at "K" under S.20(c), C.P.C.---Validity---High Court ruled that if the contention of the plaintiff was to be accepted, then all suits emanating anywhere in Sindh seeking a declaration in respect of a provincial statute could be brought to "K" from where the statutes were usually notified---Suits emanating anywhere in Sindh seeking a declaration in respect of a federal statute could also be filed at Islamabad, which was not the intent of S.20(c), C.P.C.---Word "arises" in S. 20(c), C.P.C. is significant for the reason that when a statute comes into operation, it is for all the territory for which it is enacted, and therefore, the place of its enactment or notification would not figure into S.20(c), C.P.C. as the place where the cause of action "arises"---In such cases what is intended by S.20(c) is the place where the statute affects the rights of the plaintiff so as to give him a cause of action to sue, which in the case in hand was "S" and no part of the cause of action arose at "K"---Test of territorial jurisdiction of the High Court under Art. 199 of the Constitution is different and does not govern civil suits and S.120, C.P.C. is not relevant there---In the circumstances, Civil Court at "S" had territorial jurisdiction under S.20(c), C.P.C. to entertain the suit, therefore, plaint was returned to the plaintiff under O.VII, R.10, C.P.C.

Muhammad Naveed Aslam v. Aisha Siddiqui 2011 CLC 1176 and Kaim Khani and Brothers v. Province of Sindh 2022 YLR 2188 rel.

Ahmed Hussain for Plaintiff.

Rajendar Kumar, A.A.G. Sindh for Defendant No. 1.

Muhammad Nawaz Abbasi for Defendant No. 2.

P L D 2024 Sindh 448

Before Aqeel Ahmed Abbasi, C.J. and Abdul Mobeen Lakho, J

ABID HUSSAIN CHANDIO---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 8 others---Respondents

Constitutional Petition No. D-5833 of 2023, decided on 7th December, 2023.

Constitution of Pakistan---

----Arts. 199(1)(a) & 199(1)(b)(ii)--- Constitution Petition---Main-tainability--- "Aggrieved person" meaning of--- Locus standi of petitioner---Writ of quo warranto and habeas corpus---Requirement of being an aggrieved person---Scope---Failure of the petitioner to establish any injury or interest in the litigation---Effect---Proposed amendment in Schedule (I) and (II) of the Sindh Government Rules of Business, 1986 ('the Rules') during the period of Caretaker Government---Legality---Multiple reliefs sought---Effect---Contention of the petitioner was based on an apprehension that the Department after approval of proposed amendment in the Rules ibid would ignore all the other wings of the Department---Contention of the petitioner revolved around a speculative scenario rooted in a hypothetical situation, specifically the Government allegedly introducing additional agenda item without prior Caretaker Cabinet review, which rested on conjectures only and lacked any direct and adverse effect on the petitioner and further lacked the necessary foundation for challenging the proposed amendment---It is inherent duty of the Government to formulate and amend Rules within its respective Departments---"Aggrieved person" denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to---Person aggrieved invoking constitutional jurisdiction under Art. 199 of the Constitution must establish a direct or indirect injury to himself and substantial interest in subject matter of proceedings, however, for the purpose of issuance of writ of quo waranto and habeas corpus, being aggrieved is not a mandatory requirement---Public interest litigation is a weapon which has to be used with great care and circumspection and courts have to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and or publicity seeking is not lurking---Neither the petitioner was an aggrieved person nor he had any locus standi to challenge the 'proposed amendment in Sindh Government Rules of Business and as regards the other relief[s] sought by the petitioner, he had failed to satisfy the Court as to issuing a writ, and the requested actions, in fact, were within the purview of Legislature or the Executive---Constitutional petition being misconceived was dismissed in limine.

Inayat Ali Mirza for Petitioner.

P L D 2024 Sindh 453

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

IRFAN HUSSAIN HALAI through his duly constituted attorney and 20 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Revenue Division Ministry of Finance and 3 others---Respondents

Constitution Petitions Nos. D-4942 of 2022 (and other connected Petitions), decided on 30th December, 2022.\

(a) Constitution of Pakistan---

----Art. 142 (d) & Fourth Schedule [as amended by Constitution (Eighteenth Amendment) Act (X of 2010)]---Federal Legislative List---Scope---What is not within the competence of Province stand reverted to the Parliament---Parliament has exclusive powers to make laws under Art. 142(d) of the Constitution with respect to all matters pertaining to such areas in the Federation as are not included in any Province---Parliament has competence to legislate in respect of all fields of legislation, which are either enumerated in Federal Legislative List or otherwise---Only condition which has to be met is that such law should not be in respect of any area, which is included within the Province.

(b) Constitution of Pakistan---

----Arts. 142(c) & 142(d)---Residuary provisions---Scope---Provisions of Art. 142 (c) of the Constitution not only make specific provision for exclusive legislative domain in respect of "residuary subjects" (i.e. subjects/entries left out of Federal Legislative List) over respective provincial territories of Provincial Assembly, but it also recognizes exclusive domain of Federal legislature over "residuary subjects" in respect of territories or areas 'not included in any province' by operation of Art. 142(d) of the Constitution which includes Islamabad Capital Territory.

(c) Finance Act (IV of 2022)---

----S. 8---Foreign Assets (Declaration and Repatriation) Act (XXX of 2018), S. 14---Income Tax Ordinance (XLIX of 2001), S. 116(2)---Constitution of Pakistan, Arts. 142 & Fourth Schedule, Entry No. 50---Levy of tax---Federal Legislative List---Foreign assets---Section 8 of Finance Act, 2022, vires of---Petitioners/resident taxpayers assailed levy of tax on their foreign assets under the provision of S. 8(2)(b) of Finance Act, 2022---Plea raised by petitioners/resident taxpayers was that Parliament had no legislative competence to levy such tax on foreign assets---Validity---Plea that "immoveable property" was not within the legislative competence of the Parliament, was completely out of the box---Such subject was though within the competence of the Parliament but was qualified to whatever had been so stated in Entry 50 of Fourth Schedule to the Constitution and that was not including taxes on immovable property, falling within the territorial limits of the Province---Such provision could not be read in isolation by holding that use of the words not including taxes on immovable property would also mean and exclude the subject in its entirety from the competence of the Parliament---This would be reading into what was not provided by the legislature---Any property which was beyond the territorial limits of the Province (including any property outside Pakistan) would still remain within the competence of the Parliament for the purposes of imposition of tax in terms of Entry 50 of the Federal Legislative List of Fourth Schedule to the Constitution---Levy in question was not on the property itself, it was on the capital value of the asset of a resident person holding it---Such property was a subject matter of wealth statement of resident person, filed under S. 116(2) of Income Tax Ordinance, 2001, which statement was a mandatory requirement for filing of an Income Tax Return under Income Tax Ordinance, 2001---Law in question was though extra-territorial in one sense; however applied to a resident person filing an income tax return in Pakistan---Foreign asset in question was part of the asset of the resident person---Taxing event as well as the person was within the territorial limits and was already subject to taxation under the laws of Pakistan---Property in question was part of the wealth of the resident person---It was immaterial that it was so pursuant to a Declaration under Foreign Assets (Declaration and Repatriation) Act, 2018 or otherwise, but for the purposes of a person's wealth it had become part and parcel of it---Tax in question was a tax on the capital value of such asset, which was within the competence of the Parliament---Pursuant to Foreign Assets (Declaration and Repatriation) Act, 2018, petitioners/resident taxpayers as well as other taxpayers availed such amnesty and after paying requisite tax, they declared their properties under their Wealth Tax Returns---Such properties had become part of Wealth Tax Returns of petitioners/ resident taxpayers---There was a nexus of such properties with income and wealth of petitioners/resident taxpayers and there was no impediment or restriction for the Parliament to levy tax in question---High Court declined to declare provision of S. 8 of Finance Act, 2022, as ultra vires the Constitution---Constitutional petition was dismissed, in circumstances.

Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637; District Bar Association Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 923; Collector of Customs (Appraisement), Karachi and others v. Messrs Abdul Majeed Khan and others 1977 SCMR 371; Messrs Independent Media Corporation (Pvt.) Ltd. Through Director Finance v. Province of Sindh through Chief Secretary Sindh and others 2018 PTD 1869; The Imperial Tobacco Co. of India Ltd. v. The Commissioner of Income Tax, South Zone, Karachi and another PLD 1958 SC (Pak.) 125; Independent Thought v. Union of India and another AIR 2017 SC 4904; Messrs Pak Gulf Construction Company (Pvt.) Ltd. Islamabad and others v. Federation of Pakistan and others 2020 SCMR 146; Muhammad Khalid Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another 2017 PTD 805; Syed Muhammad Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others PLD 2021 SC 391; Haji Muhammad Shafi and others v. Wealth Tax Officer and others 1992 PTD 726; Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak.) 41; Commissioner of Income Tax v. Messrs Phillips Holzman A. G. Ameejee Valeejee & Sons, Karachi PLD 1968 Kar. 95; Messrs I.C.C. Textile Ltd. and others v. Federation of Pakistan and others 2001 SCMR 1208; Muhammad Khan v. The Border Allotment Committee and another PLD 1965 SC 623; Pakistan Mobile Communications Ltd. and others v. Pakistan/Federation of Pakistan and others 2022 PTD 266; Zona Pakistan (Pvt.) Ltd. v. Province of Sindh and others (C. P. No. D-5791/2016), Sapphire Textile Mills Limited v. Federation of Pakistan and others 2021 PTD 971; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1; Lahore Development Authority through D.G and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Pakistan International Freight of Forwarders Association through General Secretary v. Province of Sindh through Secretary and another 2017 PTD 1; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; The Commissioner Inland Revenue, Zone-IV, Corporate Regional Tax Officer, Karachi v. MSC Switzerland Geneva 2021 PTD 885; Commissioner of Income Tax, Karachi v. Grindlays Bank PLC, Karachi 2010 PTD 2012;Commissioner Inland Revenue (Legal Division), LTU, Islamabad v. Messrs Geopfizyka Krakow Pakistan Ltd. 2017 SCMR 140; Attock Petroleum Limited (APL) v. National Highway Authority and another 2022 PTD 222; Muhammad Khalid Qureshi v. Province of Punjab through Secretary Excise and Taxation Department Lahore 2017 PTD 805; Shahnawaz (Pvt.) Ltd. v. Pakistan through the Secretary Ministry of Finance, Government of Pakistan Islamabad 2011 PTD 1558; Sui Southern Gas Company Ltd. v. Federation of Pakistan 2018 SCMR 802; Province of Sindh through Chief Secretary v. M.Q.M. through Chief Convenor PLD 2014 SC 531; Muhammad Shaif v. Wealth Tax Officver Circle-IV PLD 1989 Kar. 15; Haji Muhammad Shafi v. Wealth Tax Officer 1992 PTD 726; I.C.C. Textile Limited v. Federation of Pakistan 2001 PTD 1557; Messrs Volkart Pakistan (Private) Limited through Manager Finance v. Federation of Pakistan 2006 PTD 236; Pakistan Gulf Construction Company (Pvt.) Ltd. Islamabad v. Federation of Pakistan through Secretary Finance Islamabad 2020 SCMR 146; Sui Southern Gas Company Ltd. v. Federation of Pakistan 2018 SCMR 802; Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and Others 2021 CLD 214; Sindh Revenue Board through Chairman Government of Sindh and Another v. The Civil Aviation Authority of Pakistan through Airport Manager 2017 SCMR 1344; Muhammad Khalid Qureshi v. Province of Punjab through Secretary Excise and Taxation Department Lahore 2017 PTD 805; Lahore Development Authority v. Ms. Imrana Tiwana 2015 SCMR 1739; Special Reference under Article 187 of the Interim Constitution of Republic of Pakistan v. in re: PLD 1973 SC 563; I.C.C. Textile Ltd. v. Federation of Pakistan 2001 PTD 1557; Sui Southern Gas Company v. Federation of Pakistan 2018 SCMR 802; KESC v. N.I.R.C PLD 2014 Sindh 553; Federal Government Employees Housing Foundation v. Malik Ghulam Mustafa 2021 SCMR 201; 1993 SCMR 287 and AIR 1948 Privy Council 118 rel.

(d) Interpretation of Constitution---

----Holistic interpretation---Words should be read in their ordinary, natural and grammatical meaning subject to the rider that in construing words in a Constitution conferring legislative power the most liberal construction should be put upon the words so that they may have effect in their widest amplitude---Interpretation of any provision of the Constitution is true and perfect only when the Court looks at the Constitution holistically and keeps in view all important and significant features of the Constitutional scheme constantly reminding itself of the need for a harmonious construction lest interpretation placed on a given provision has the effect of diluting or whittling down the effect or the importance of any other provision or feature of the Constitution.

Jindal Stainless v. State of Haryana AIR 2016 SC 5617 and Constitutional Law of India (4th Edition) by H.M. Seervai at Para 2.12 rel.

Advocates for the Petitioners

Muhammad Osman Ali Hadi, Rashid Anwar, Ovais Ali Shah, Arshad M. Tayebaly, Omar Memon, Abdul Rahim Lakhani, Dr. Tariq Masood, Abid H. Shaban, Mushtaq Hussain Qazi, Jahanzeb Awan, Iqbal Salman Pasha, Ameen Mohammad Bandukda, Abdur Raafae Soori, Maryam Riaz, Wishno, , Syed Riazuddin, Muhammad Jawed Zakria, Abdul Jabbar Mallah, Atta Muhammad Qureshi, Imtiaz Ali Sahito, Saifullah Khawaja, Nahl Chamdia, Naveeda Basharat, Imtiaz Ali, Asad Manzoor Halepota, Aitezaz Manzoor Memon, Saad Fayyaz Memon, Muhammad Asad Ashfaq Tola, Muhammad Amayed Ashfaq Tola, Qazi Umair Ali, Naeem Suleman, Arshad Hussain Shehzad, Muneer Ahmed Sahito, Muhammad Aleem, Ajeet Kumar, Nadir Hussain Abro, Vishwa Mittar, Syed Muhammad Ahsan, Anwar Kashif Mumtaz, Ammar Ather Saeed, Usman Alam, Muhammad Rashid Khan Mahar, Abdul Rehman, Ms. Lubna Pervez, Shafqat Zaman, Jawaid Farooqui, Ahmed Ali Hussain, Aman Aftab, Muhammad Inzimam Sharif, Muhammad Aizaz Ahmed, Syed Hamza Ahmed Hashmi, Ghazala Rafiq, Elahi Bakhsh, Muhammad Imran Khan, Abdallah Azzaam Naqvi, Sufiyan Zaman, Muneeb Uddin Qidwai, Muhammad Arshad Athar, Nasir Latif Khan, Muhammad Ahmed Masood, Muhammad Mazharul Hassan, Shams Mohiuddin Ansari, Tairmur Ali Mirza, Syed Sultan Ahmed, Muhammad Ali Aziz, Muhammad Naqqash Siddiqui, Syed Muhammad Hussain, Syed Muhammad Ahsan, Fizzah Bucha, Ovais Farooqui, Umer Ilyas, Ameer Hyder, Hamda Ali Khan and Kashan Ahmed.

Advocates for the Respondents

Dr. Shah Nawaz Memon, Ameer Bakhsh Metlo, Ameer Nausherwan Adil Memon, Ghazi Khan Khalil, Fayyaz Ali Metlo, Asif Ali Siyal, Zohaib Ahmed, Muhammad Idrees Rahimoon, Arshad Ali Tunio, Ms. Fozia M. Murad, Faheem Raza, Dr. Huma Sodher, Abdul Razaque Panhwar, Sajjad Ali Solangi, S. Ahsan Ali Shah, Kafil Ahmed Abbasi, Hayat Muhammad Junejo, Bilal Memon, Abdul Hakeem Junejo, Abdul Sami, Shaheer Saleem Memon, Jamshed Ahmed Abbasi, Muhammad Awais, Zain Mustafa Soomro, Jazib Aftab Memon, Abdul Wahid Shar, Additional Commissioner and Syed Yasir Shah, Assistant Attorney General.

P L D 2024 Sindh 476

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

MUHAMMAD NOMAN---Appellant

Versus

MUHAMMAD ARIF---Respondent

First Appeal No.7 of 2022, decided on 30th April, 2024.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.3(2)---Suit for recovery---Discretionary power of the Trial Court to grant leave to defend application conditionally or unconditionally---Scope--- Power of Appellate Court to interfere with Trial Court's discretionary decisions---Scope---Plea that criterion for grant of leave to defend is the plausibility of defence, but not the credibility of defence---Validity---Under O. XXXVII, R.3(2), C.P.C. Trial Court has been vested with reasonable discretion to grant leave conditionally or unconditionally on terms it deems suitable in the circumstances of each case so long as such a discretion is exercised reasonably without being illegal, arbitrary, capricious or fanciful---Grant of conditional or unconditional leave is linked to the plausibility of the defence and ultimate success or failure in the suit is not the consideration for the refusal or grant of leave, instead, the focus should be on the fact that whether the grounds stated in the application for permission to defend the suit are plausible, and if the defendant has an arguable case---There is no rule that if the defence is credible the defendant must be granted unconditional leave---If the credibility of the defence is sufficient grounds for granting leave to defend the suit, it does not guarantee or entitle a defendant to unconditional leave---Where the statute itself confers upon the Court unrestricted discretionary powers, it would be inappropriate to establish or specify a general or standard guideline (i.e. to lay down a rule of thumb) for the exercise of such powers---Appellate court generally refrains from interfering with the exercise of discretion by the Trial Court (or will not substitute its own discretion for that of the Trial Court) unless it is shown to have been based on irrelevant or extraneous considerations, or exercised arbitrarily, whimsically or perversely---Exercise of discretion by the Trial Court in passing the initial order conditionally granting leave to defend was free from any material defect and the defence presented in the leave to defend application did not warrant intervention by the Appellate Court or compel to overturn the Trial Court's decision---First appeal was dismissed accordingly.

Muhammad Ramzan v. Ghulam Qadir 2011 SCMR 659; Rafique Saigol v. Bank of Credit and Commerce PLD 1996 SC 749; Ark Industrial Management Ltd. v. Habib Bank Limited PLD 1991 SC 976; Niaz Ahmad v. Habib Bank Ltd. 1991 SCMR 75; Ashfaq Ahmed v. Muhammad Wasim 1999 SCMR 2832; Zubair Ahmad v. Shahid Mirza 2004 SCMR 1747 and Abdul Karim Jaffarani v. United Bank Ltd. 1984 SCMR 568 rel.

Ali Gohar Masroof for Appellant.

Ms. Shahnaz A. Razzaq for Respondent.

P L D 2024 Sindh 480

Before Jawad Akbar Sarwana, J

MANAGING DIRECTOR, SUI SOUTHERN GAS COMPANY LIMITED and 8 others---Appellants

Versus

PRESIDING OFFICER, CONSUMER PROTECTION COURT KASHMORE AT KANDHKOT and another---Respondents

Civil Appeal No.S-04 of 2023, decided on 11th January, 2024.

(a) Sindh Consumer Protection Act, 2014 (XVII of 2015)---

----Ss. 29(1) & 29(3)---Filing of a complaint---Locus standi of complainant---Complaint filed on behalf of an unrepresented party---Maintainability---Locus standi of complainant to file a complaint for new gas connection on behalf of his nephews (consumers)---Failure to serve notice to Sui Southern Gas Company (SSGC) for redressal of grievance---Effect---Consumer Protection Court (Consumer Court) allowed the prayer of the complainant directing SSGC to install new gas meters at the premises of nephews of complainant---Validity---Sindh Consumer Protection Act, 2014 (SPCA) does not provide a forum for filing class action suits and there is no provision in SCPA for filing a complaint on behalf of an unrepresented party or for consumers at large---Complainant could not have agitated a claim for gas connections on behalf of his nephews when they were neither complainants in the lis nor they authorized their uncle (complainant) to initiate any complaint before the Consumer Court---Complainant did not serve on SSGCL any notice for installing fresh (new) gas connections for his nephews, therefore, complaint was liable to be dismissed in limine by the C.P.C. on this score too---Civil Appeal was allowed and order of C.P.C. was set aside accordingly.

(b) Sindh Consumer Protection Act, 2014 (XVII of 2015)---

----S. 2(c)---Term 'entity', meaning of---Term 'entity' means an organization that has a legal identity apart from its members.

Abid Hussain Qadri for Appellants Nos.1 to 9 along with Mehboob Hussain Shaikh, Deputy Manager (Legal Services)/Sub-Attorney, S.S.G.C. Regional Office Larkana.

Nemo for Respondent No. 1.

Respondent No. 2 in person.

P L D 2024 Sindh 484

Before Aqeel Ahmed Abbasi, C.J. and Abdul Mobeen Lakho, J

AMIR BALOCH---Petitioner

Versus

PAKISTAN INFORMATION COMMISSION, CHIEF INFORMATION COMMISSION and 2 others---Respondents

Constitutional Petition No. 6214 of 2023, decided on 22nd December, 2023.

Right of Access to Information Act (XXXIV of 2017)---

----Ss. 11(3), 17, 19(2)(e) & 20(2)---Constitution of Pakistan, Art.199---Non-compliance of order of Information Commission---Statutory jurisdiction to initiate contempt proceedings---Powers of the Commission to initiate contempt proceedings---Scope---Petitioner appeared before High Court, instead of waiting patiently for the agency and or forum (Commission) to decide the application in a reasonable period of time---Petitioner had already adopted proceedings by filing application under S.20(2) of the Right of Access to Information Act, 2017, which were pending---Under S.20(2) of the aforesaid Act, Commission had been conferred powers to initiate contempt proceedings against the delinquents, therefore, resort to the writ jurisdiction under Art.199 of the Constitution for implementation of the order of the Commission was not maintainable---Constitutional petition was dismissed accordingly.

Petitioner in person.

P L D 2024 Lahore 1

Before Shams Mehmood Mirza, J

Messrs PARAGON TECHNOLOGIES---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LIMITED and others---Respondents

Writ Petition No. 4534 of 2023, decided on 26th May, 2023.

(a) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5---Unconditional bank guarantee or a letter of credit---Autonomy principle---Scope---Fate of an unconditional bank guarantee or a letter of credit being independent contracts is not dependent upon any dispute between the contracting parties and payment thereunder has to be made if an unconditional undertaking has been made by the issuer---Payment obligation under both the instruments is dependent on documentary demands and the issuer is barred from making any determination of objective facts---This is called the autonomy principle--- Premise on which this principle rests is that as between parties to documentary credit transactions a dispute related to the underlying transaction has to be pursued through a separate action for breach of the underlying contract and not by withholding payment under the letter of credit---"Pay first, sue later" is the core objective underlying the autonomy principle.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Limited PLD 2003 SC 191 ref.

(b) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5---Bank guarantee, encashment of---Principles and exception---Fundamental rule of payment under the bank guarantee independent of any dispute between the contracting parties is excepted only where fraud is alleged as against the beneficiary of the bond/guarantee and the bank has notice of such fraud.

Bolivinter Oil SA v. Chase Manhattan [1984] 1 All ER 351 ref.

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

----S. 41 & Second Sched., Clause 4---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Arbitration proceedings before the Court---Power of the Court to grant interim injunction---Principles and prerequisites stated.

Clause 4 of the Second Schedule of the Arbitration Act, 1940 ('the Act') grants the power to the Court to issue interim injunctions. It is evident from the reading of the text of section 41 of the Act that the grant of injunction by the court in proceedings pending before it shall be governed by the provisions of the Code of Civil Procedure, 1908 (the Code) whereas the court retains the power to issue interim injunction on basis of the power contained in the Second Schedule even when the matter has been referred to arbitration and proceedings are pending in that forum.

The grant of interim injunction for the period the proceedings remain pending before the court or the arbitrators is regulated by the provisions of the Code. The three tests applied for grant of interlocutory injunctions are well established in almost all the jurisdictions. These tests require an applicant to demonstrate that (i) there is a prima facie case by which it is meant that the applicant must be able to demonstrate to the satisfaction of the Court that there is a serious question to be tried in the sense that the claim is not frivolous; (ii) it will suffer irreparable loss and injury in case the relief is denied to it or in other words granting an injunction could cause less harm to the defendant compared to the likely harm the applicant would suffer from the refusal of such injunction, and (iii) the balance of inconvenience favours it. Where the right asserted by the applicant is disputed or is in doubt, the balance of convenience becomes an important factor in grant or refusal of interlocutory injunction. Where the decision depends upon the consideration of the preponderance of inconvenience, the onus is upon the applicant to demonstrate that his inconvenience would exceed that of the respondent.

The central question facing the court is the extent to which it can go into the merits of the case involving complex factual issues in dispute at the interlocutory stage to identify which party has the better case particularly where the parties by agreement have agreed to refer the matter to arbitration. If the Court examines only the substance of the dispute for decision on the application, the other two tests become redundant. The classical model thus postulates that the Court as a matter of principle ought not to delve deep into controversy between the parties to make a forecast about the outcome of the case and that it would be sufficient for the Court to decide that the applicant has put forward a case that is arguable or at least not a frivolous one and after making this determination to move to discover whether the balance of convenience favours the grant of the injunction by striking a balance between the interests of the applicant and that of the beneficiary. In doing so, the Court should bear in mind the extent to which damages are likely to be an adequate remedy and the ability of the other party to pay the same. Similarly, where the legal right claimed is not sufficiently clear to enable the Court to form an opinion thereon, the relevant convenience or inconvenience in granting injunction (or refusal thereof) to the parties should be considered. The Court, while exercising jurisdiction under section 20 of the Arbitration Act, can only go so far in determination of the so-called prima facie case test as the decision on the dispute falls within the jurisdiction of the arbitrators. It is thus imperative that the Courts must not make findings of fact or construe the provisions of contract between the parties particularly when they have expressly agreed to refer such dispute to arbitration.

Lansing Linde Ltd. v. Kerr [1991] 1 WLR 251 (CA) ref.

The jurisdiction to grant interim injunction is designed to preserve the rights of the parties or to minimize irreparable loss of legal rights pending the trial. The adjudication on an application for grant of interlocutory injunction takes place at a time and on material not tested by cross-examination. Any interference with the position of parties prior to merit adjudication runs the risk of infringement with the due process standards and additionally the Courts are concerned with the likelihood of error that is significantly greater in interlocutory proceeding than on a merit investigation. In order to prevent the probability of mistake and its magnitude and to reconcile the above-mentioned competing considerations, the Courts have devised the three tests to regulate their discretion.

While making the determination at the interlocutory stage, the legal nature of the right involved must be central to any consideration of grant of injunction, which is another way of saying that the Courts must take into account the juridical nature of the dispute before entering upon any inquiry into the three tests. Although the guidelines are anchored in tradition and policy, it would be a fallacy to think that their application to cases is anything but uniform. A case involving immovable property or public interest/public safety or freedom of expression/speech would not give rise to the same concerns regarding the jural nature of irreparability as a commercial dispute arising out of a contract between the private parties. Moreover, considerable difficulties may arise in assessment of damages even in commercial disputes particularly in cases where patents or trademarks are involved in which case damages shall never be the fully adequate remedy. These are all variables that a Court would contemplate and examine in granting (or refusing) interim injunctions. It must, however, be stated that it is not possible to pinpoint all the matters required to be considered by the Court in determining where the balance lies let alone the relative weight to be attached to each of them as it will vary from case to case.

American Cyanamid Co. v. Ethicon Ltd. [1975] 2 WLR 316; Hoffman LaRoche & Co. Ltd. v. Secretary of State for Trade and Industry [1975] AC 295; State Transport Authority v. Apex Quarries Ltd., [1988] V.R. 187, 193; City of Melbourne v. Hamas Pty Ltd. (1987) 62 L.G.R.A. 250, 261-262; Lewis v. Heffer [1978] 1 W.L.R. 1061; Series 5 Software Ltd. v. Clark [1996] 1 All ER 853; NWL Ltd v. Woods [1979] 1 WLR 1294; Merck Sharp and Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65 and Uber Builders and Developers Pty Ltd. v. MIFA Pty Ltd. [2020] VSC 596 ref.

(d) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5----Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Performance bond, encashment of---Power of the Court to grant interim injunction---'Unconscionability'---Jurisprudence on grant of interim injunctionon the ground of 'unconscionability' as developed by theCourts of Singapore and its criticism stated.

AES Façade Pte Ltd. v. Wyse Private Limited [2018] SGHC 163; Bocotra Construction Pte Ltd. v. Attorney-General [1995] 2 SLR(R) 262; CKR Contract Services Pte Ltd. v. Asplenium Land Pte Ltd. and another [2015] SGCA 24; JBE Properties Pte Ltd. v. Gammon Pte Ltd. [2010] SGCA 46; The Problems of Abusive Calls on Demand Guarantees [2007] MLCLQ 83; Dauphin Offshore Engineering and Trading v. Private Office of HRH Sheikh Sultan bin Khalifa bin Zayed Al Nahyan [2000] 1 SLR 657; Kitchen v. Royal Air Force Association [1958] 2 All ER 241; Injuncting Calls on Performance Bonds: Reconstructing Unconscionability SAcLJ 30 (2003); Eltraco International Pte Ltd. v. CGH Development Pte Ltd [2000] 4 SLR 290; Restraining a Call on a Performance Bond: Should 'Fraud or Unconscionability' be the New Orthodoxy?" (2000) 12 SAcLJ 132; Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary Ministry of Communications and others 2010 SCMR 524; Shapoorji Pallonji & Co. Pvt. Ltd. v. Yumn Ltd. and Standard Charter Bank [2021] EWHC 862 and Permasteelisa Japan KK v. Bouyguesstroi and Bank Intesa SpA [2007] EWHC 3508 (QB) ref.

(e) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5----Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Unconditional bank guarantee, realization of---Power of the Court to grant interim injunction---Jurisprudence relating to grant of an injunction to restrain the realization of an unconditional bank guarantee as developed by the Courts of India stated.

U.P. Cooperative (U.P. Coop. Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (1988) 1 SCC 174; U.P. State Sugar Corporation v. Sumac International Ltd 6 [1997] 1 SCC 568; Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company 7 [2007] 8 SCC 110; Mahatma Gandhi Sahakra Sakkare Karkhane v. National Heavy Engg. Coop. Ltd. (2007) 6 SCC 470; Vinitec Electronics (P) Ltd. v. HCL Infosystems Ltd. (2008) 1 SCC 544; Standard Chartered Bank v. Heavy Engg. Corpn. Ltd. (2020) 13 SCC 574; CRSC Research and Design Institute Group Co. v. Dedicated Freight Corridor Corpn. of India Ltd. 274 (2020) DLT 89 and FAO (OS) (Comm) 123 of 2020 CRSC Research and Design Institute Group Co. v. Dedicated Freight Corridor Corpn. of India Ltd. 2020 SCC OnLine Del 1526 ref.

(f) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5----Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Autonomous demand bond---On-demand guarantees---Power of the Court to grant interim injunction---Jurisprudence relating to grant of an injunction to restrain the call upon an autonomous demand bond or on-demand guarantee as developed by the Courts in England stated.

Tetronics (International) Limited v. HSBC Bank PLC [2018] EWHC 201 (TCC); Alternative Power Solution's case [2015] 1 WLR 697; Simon Carves Ltd. v. Ensus UK Ltd. [2011] EWHC 657 (TCC); Doosnan Babcock v. Commercializadora de Equipos ("MABE") [2013] EWHC 3201 (TCC); MW High Tech Projects UK Ltd v. Biffa Waste Services Ltd. [2015] EWHC 949; Shapoorji Pallonji and Company Private Ltd v. Yumn Ltd. and Standard Chartered Bank [2021 ] EWHC 862 (Comm); Ouais Group Engineering and Contracting v Saipem SpA [2013] EWHC 990 (Comm); Salam Air SAOC v. Latam Airlines Group SA [2020] EWHC 2414 (Comm); United City Merchants (Investments) Ltd. v. Royal Bank of Canada (1982) 2 W.L.R. 1039; Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827; Bolivinter Oil SA v. Chase Manhattan [1984] 1 All ER 351; Wuhan Guoyu Logistics

Group Company Limited v. Emporiki Bank of Greece Sa (No 2) [2013] EWCA (Civ) 1679, [2014] 1 All ER (Comm) 817); MW High Tech Projects UK Ltd v. Biffa Waste Services Ltd. [2015] EWHC 949 (TCC) and Bridge v. Campbell Discount Co Ltd. [1961] 2 WLR 596 (at 605) ref.

(g) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5---Arbitration Act (X of 1940), S. 41 & Second Sched. Clause 4---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---On-demand performance guarantee---Bank guarantee, encashment of---Arbitration proceedings before the Court---Principles relating to grant of an injunction to restrain the encashment of abank guarantee stated.

(i) Mere allegations regarding breaches of contractual obligations in the plaint regarding fraud/unfair conduct shall be insufficient for an applicant to succeed in obtaining an interim injunction;

(ii) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy; the determination that damages are a sufficient remedy means that the balance of convenience favours a refusal to grant an injunction;

(iii) The facts before the court must reflect the conduct of the respondent to be of such magnitude and consequence and the harm to the applicant to be of such irretrievable nature so as to override the twin considerations of the autonomy principle. This rule cannot be accorded an elastic construction such that it would snap the principle of autonomy;

(iv) It must be demonstrated before the court that the applicant on being successful at the trial shall not be restituted/compensated by the respondent; and

(v) The applicant must be able to clearly establish fraud and also that the bank has notice of such fraud.

The rules above are the insurmountable barriers for the applicant to cross before a case can be made out before the Court for grant of injunction. Mere breaches of contract for which there are counter allegations shall not bring the case in any of the exceptions to the non-interference rule and in commercial cases the allegation of breach of contract shall not suffice to claim that damages are not an adequate remedy. In addition to that the applicant must also plead that if it succeeds at the conclusion of the trial, it shall not be able to recover the amount from the beneficiary.

Courts do intervene in cases where the applicant is successful in demonstrating incontrovertibly that the demand made on the guarantee is wholly without any valid basis or that the beneficiary is acting fraudulently or that the call on the bond amounts to fraud and that the damages shall not be an adequate remedy.

(h) Negotiable Instruments Act (XXVI of 1881)---

----Ss. 13 & 5---Arbitration Act (X of 1940), S. 41 & Second Sched. Clause 4---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Contract for supply of goods---Supplies made beyond the period stipulated in the contract---Late payment charges---Unconditional bank guarantee, encashment of---Payment under the bank guarantee regardless of the dispute between the contracting parties---Scope---Bank guarantee is an independent contract and if it is unconditional the payment thereunder has to be made regardless of dispute between the contracting parties---Guarantee in the present case was unconditional and thus the demand made by respondent on the bank guarantee was required to be met by the Bank---Petitioner (supplier) had not made out the case required for the purposes of considering whether interlocutory relief should be granted to restrain payment under the guarantee---In relation to the order refusing to grant injunction by the courts below preventing respondent from making a call on the guarantee, no case for fraud had been made out---Case put forward by the petitioner that it was not in breach of its obligations, which assertion the respondent disputed, required proof for its validity and adjudication in this regard shall be done before the arbitrator(s)---Petitioner furthermore had not made any allegation about its prospective financial bankruptcy in case an injunction was refused---In any event, there did not appear to be any serious doubt about the financial position of respondent to pay the amount back to the petitioner together with compensatory costs should it succeed before the arbitrators in demonstrating that respondent could not have imposed late payment charges on it---In such circumstances, the petitioner had on facts and material before the Court failed to dislodge the burden of getting around the twin considerations underpinning the non-interference rule---Both the courts below had rightly dismissed the application of the petitioner for interim injunction to restrain the respondent from making any demand on the bank guarantee---Writ petition was dismissed.

EFU General Insurance Limited v. Zhongxing Telecom Pakistan (Pvt.) Limited and others PLD 2022 SC 809; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Limited PLD 2003 SC 191; Messrs National Construction Limited. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and Atif Mehmood Kiyani and another v. Messrs Sukh Chain Private Limited, Royal Plaza, Blue Area, Islamabad and another 2021 SCMR 1446 ref.

Sh. Usman Karim ud Din for Petitioner.

P L D 2024 Lahore 41

Before Abid Hussain Chattha, J

Messrs COMPUTER TIPS through Managing Partner and others---Petitioners

Versus

PROVINCE OF PUNJAB through School Education Department and others---Respondents

Writ Petitions Nos. 28679 and 33077 of 2023, decided on 3rd October, 2023.

Punjab Procurement Rules, 2014---

----Rr. 4 & 62---Contract Act (IX of 1872), Ss. 16 & 23---Constitution of Pakistan, Arts. 4, 18, 24 & 25---Public procurement---Transparency---Final payment---Non-clearance---Coercive measures to seek unlawful demand of rebates---Petitioner supplied computers to respondent/ authorities after competing in open bidding tenders---Grievance of petitioners was that despite supply of goods, their final payments were not released by respondent/authorities who were forcing them to give rebates in prices---Validity---There was no legal justification to force petitioners to give rebates to the tune of 15% to 20% with respect to fully executed and duly performed contracts at the time of making payments to them---This was an arbitrary, unreasonable and capricious act in colorable exercise of authority and offended R. 62 of Punjab Procurement Rules, 2014 and express contractual stipulations and this was also against principle of transparency enshrined in R. 4 of Punjab Procurement Rules, 2014---Transparency in procurement process not only envisages that procurement should be made through transparent, open and competitive processes at the lowest price but also equally safeguards and protects right of technically qualified lowest bidder to receive timely payment against successfully performed contract---Mere fact that payments were not made to petitioners within thirty days with respect to Second Contract, Third Contract and Fourth Contract was sufficient to establish that petitioners were being pressurized, coerced and blackmailed to satisfy unlawful demand of rebates of respondents/ authorities---Rights of petitioners after successful performance of their respective contracts awarded after due process of law were fully protected in terms of Arts. 4, 18, 24 & 25 of the Constitution and Ss. 16 & 23 of Contract Act, 1872---High Court directed the respondents to forthwith release complete contract prices to petitioners---High Court further directed Competent Authority to take appropriate steps to ensure transparency in public procurements---Constitutional petition was allowed, in circumstances.

Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 rel.

Hussain Tahir Zaidi, Umer Abdullah, Zarak Zaman Khan and Ahmed Abdullah for Petitioners.

Sikandar Nisar Soroya, Assistant Advocate General, Muhammad Imran, Law Officer for School Education Department, Muneer Ahmad, Administration and Accounts Officer, PMIU, PESRP for Respondents.

P L D 2024 Lahore 49

Before Sultan Tanvir Ahmad, J

MUHAMMAD AZAM---Petitioner

Versus

MUHAMMAD ANWAR KHAN and 6 others---Respondents

Civil Revision No. 50670 of 2020, decided on 3rd March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O. XVI, R.1---Suit for cancellation of document, declaration, injunction and recovery of mesne profit---List of witness, delay in filing---Term "showing of good cause"---Petitioner/defendant sought filing of list of witnesses on the plea that the same was filed within the stipulated time period but was misplaced by Court official (Ahalmad) due to rush of work---Trial Court dismissed the application filed by petitioner/defendant---Validity--- Under O. XVI, R. 1, C.P.C. parties were required to provide list of witnesses within seven (07) days of settlement of issues---If omission in such regard took place, it was imperative to obtain permission of Trial Court and concerned Court was required to see availability of 'good cause' for excuse from such omission, keeping in view fact of each case and attending circumstances---If Trial Court was satisfied as to availability of good cause then permission could be granted for which reasons were required to be recorded---In order to explain delay of more than one year and to satisfy Trial Court as to availability of 'good cause' for not providing list of witnesses within stipulated time, petitioner/defendant adopted specific stance that original list of witnesses was filed, as directed by Trial Court but it was misplaced by the Ahalmad of Trial Court---Petitioner/defendant instead of showing 'good cause' for the omission, took a fake and false plea and failed to support his stance in the application or to show availability of 'good cause' from record and circumstances of the case---High Court declined to interfere in order passed by Trial Court whereby petitioner/defendant was not allowed to submit list of his witnesses---Revision was dismissed, in circumstances.

Syed Zulfiqar Ali Shah v. Habib Bank Limited through Attorney and 7 others 2006 CLD 139 ref.

Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Muhammad Iqbal v. District Judge, Vehari and others 2020 MLD 1760 rel.

Aamir Majeed Rana and Sana Iqbal for Petitioner.

Mian Khalid Habib Elahi for Respondents.

P L D 2024 Lahore 54

Before Jawad Hassan, J

RIZWAN ALI SAYAL---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 1938 of 2023, heard on 19th September, 2023.

(a) Words and phrases---

----Aetiology---Connotation---Aetiology means investigation or attribution of case or reason for something often expressed in terms of historical or mythical explanation.

(b) Public functionaries---

----Appointment---Fintess to hold public office---First Information Report, registeration of---Acquittal on basis of compromise---Mere registration of FIR against any person cannot be used as a definitive test to label him as having a bad character---All acquittals including acquittal on compromise are honorable for the reason that prosecution does not succeed to prove its case against accused on the strength of evidence of unimpeachable character---There can be no acquittals, which may be said to be dishonorable---Law has not drawn any distinction between any types of acquittals.

Jawad Ahmad Mir v. Prof. Dr. Imtiaz Ali Khan, Vice-Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others 2023 SCMR 162; Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others PLD 2002 SC 1060 and (Suo Motu Case No. 03 of 2017) PLD 2018 SC 703 rel.

(c) Income Tax Ordinance (XLIX of 2001)---

----S. 130 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto---Appellate Tribunal Inland Revenue---Judicial Member, appointment of---Pre-conditions---Involvement in criminal case---Effect---Petitioner assailed appointment of respondent as Member Judicial in Appellate Tribunal Inland Revenue on the ground that an FIR was registered against him---Validity---No restrictions or conditions were provided under S. 130 (3) of Income Tax Ordinance, 2001 relating to character verification during probationary period of respondent---Mere involvement of a candidate in any criminal case/FIR was not sufficient to bring any clog for appointment of respondent as a Judicial Member of Appellate Tribunal Inland Revenue---Respondent was never adjudged as guilty of the charges, rather complainant of that case had entered into a compromise with him and he was acquitted on the basis thereof---No other occasion, besides registration of one FIR pertaining to any criminal liability of respondent was brought on record by petitioner---Respondent was appointed as Member Judicial Appellate Tribunal Inland Revenue by Federal Government after he qualified the Federal Public Service Commission Exam.---Petitioner was appointed under S. 130(3) of Income Tax Ordinance, 2001 read with Appointment of Income Tax Appellate Tribunal Member's Rules, 1998---Office of Member Judicial, Appellate Tribunal Inland Revenue by all intents and purpose is a public office which office is created by the State and the statute, and duties attached to the office are of a public nature---Petitioner neither challenged qualifications of respondent, as mentioned in S. 130 of Income Tax Ordinance, 2001 nor his experience---Respondent was holding public office strictly as per criteria stipulated in S. 130(3) of Income Tax Ordinance, 2001---Such requirement was duly considered by Federal Government at the time of appointment of respondent through notification of his appointment followed by memorandum which was sent to him clearly mentioning terms and conditions mentioned therein---High Court declined to interfere in the appointment of respondent---Constitutional petition was dismissed in circumstances.

Messrs Service Global Industries Limited through Usman Liaqat v. Federation of Pakistan and others PLD 2023 Lahore 471 = 2023 PTD 1120; President National Bank of Pakistan and others v. Waqas Ahmed Khan 2023 SCMR 766; Saqib Ali v. Government of Punjab and others 2023 PLC (C.S.) 310; Mirza Shahzeb v. City Police Officer and others 2023 PLC (C.S.) 749; Dr. Muhammad Islam v. Government of NWFP and others 1998 SCMR 1993; Malik Muhammad Ejaz Channar v. The State PLD 2022 Lah. 427; Naimat Ullah v. The State 2021 PCr.LJ 1339; Mst. Kulsoom v. Sessions Judge 2018 MLD 1484; Muhammad Qasim v. Muhammad Iqbal 2017 YLR 752; Muhammad Zafar v. Rustam Ali 2017 SCMR 1639; Raja Muhammad Safdar v. District Returning Officer, Rawalpindi 2006 CLC 87; Ismail Ijaz v. The State 2023 PCr.LJ 114; Nadeem Ahmad v. Saif-ur-Rehman 2021 MLD 354 and Muhammad Umais v. Rawalpindi Cantonment Board and others PLD 2022 Lah. 148 ref.

Nisar Khan Khattak v. Haji Adam, Director General (Admin), PEMRA Headquarter, Mauve Area, Islamabad and another 2021 PLC (C.S,) 140; Attaullah Khan v. Ali Azam Afridi and others 2023 PLC (C.S.) 182; Mirza Abdul Rehman v. Federation of Pakistan and others 2017 PLC (C.S.) 1327; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326; Lahore Stock Exchange v. Lahore Appellate Bench S&EC 2006 CLD 988; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Akbar Khan v. Said Gul PLD 2020 Pesh. 10; Dr. Farzana Bari v. Ministry of Law, Justice And Human Rights PLD 2018 Isl. 127 and Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others 2016 PLC (C.S.) 1335 rel.

(d) Constitution of Pakistan---

----Art. 199---Writ of "quo warranto", issuance of---Principle---Writ of quo warranto should only be issued in exceptional cases and relief should not be allowed in a casual manner, especially when candidate's qualifications were thoroughly examined during his appointment.

Abrar Hassan v. Government of Pakistan and Respondents PLD 1976 SC 315 and Asif Hassan and others v. Sabir Hussain and others 2019 SCMR 1720 rel.

(e) Words and phrases---

----Public office---Defination.

Masud-ul-Hassan v. Khadim Hussain PLD 1963 SC 203; M.A.U.Khan v. M. Sultan PLD 1974 SC 228; Black's Law Dictionary 9th Edition; Pramanatha Aiyar's The Advanced Law Lexicon, 4th Edition; Ferris' Extraordinary Legal Remedies 72 CWN 64, Vol. 72; V.C. Shukla v. State (1980) Supp SCC 249 and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 rel.

Tanveer Iqbal, Advocate Supreme Court and Barrister Usama Tanveer Iqbal for Petitioner with Rizwan Ali Sayal, Petitioner.

Malik Muhammad Siddique Awan, Additional Attorney General along with Arshad Mahmood Malik, Assistant Attorney General, Barrister Asfandyar Khan Tareen with Arslan Saleem Chaudhry for Respondent No.5.

Abid Aziz Rajori and Jalil Akhtar Abbasi, Assistant Advocates General and Rashid Mehmood, Research Officer, Lahore High Court, Rawalpindi Bench, Rawalpindi for Respondents.

Date of hearing: 19th September, 2023.

"heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent. The law is developed by the application of old principles to new circumstances. Therein lies its genius".11

P L D 2024 Lahore 70

Before Sultan Tanvir Ahmad, J

FAYYAZ AHMAD---Petitioner

Versus

SUBAY DEEN---Respondent

Civil Revision No. 66481 of 2023, decided on 11th October, 2023.

(a) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11---Special oath, administration of---Procedure---Section 9 of the Oaths Act, 1873 ('the Oaths Act') provides that if any party offers to be bound by special oath or solemn affirmation, as mentioned in S. 8 of the Act, the Court, if thinks fit, can communicate the offer to other party or witness concerned---Section 10 of the Oaths Act provides that upon acceptance of the offer the Court can proceed with the administration of oath---Evidence/oath so given, then in terms of S. 11 of the Act, is binding upon the person who made the offer and it is deemed to be conclusive proof of the matter stated therein.

(b) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11---Special oath, administration of---Binding upon the party---Principle of approbate and reprobate---Petitioner/plaintiff instituted suit for specific performance on the basis of an agreement, allegedly executed between him and the respondent/defendant with respect to suit-property---Process of adducing evidence was in progress when an application for administration of special oath was filed by the petitioner/plaintiff; offer contained therein was accepted by the respondent/defendant and as a consequence of the same oath of one person(defendant' witness) was administered and on the basis of the same, the suit was dismissed---Said decision was assailed through appeal by the petitioner/plaintiff, which was also dismissed---Contention of the petitioner was that said witness, when appearing as one of the defendant's witnesses, made some false statement, which disturbed him, due to which he made the offer for administration of special oath whereas Trial Court should have acted carefully to see that the statement was not recorded in snap speed and the Trial Court should not have acted so promptly, rather every possibility of ambiguity or emotions should have been ruled out before permitting the administration of oath and/or to rest the decision on such oath---Validity---Record revealed that the proceedings of the suit was at the stage of producing evidence---Petitioner completed his evidence and when the evidence of the respondent was being recorded, the petitioner filed the application which clearly revealed that the petitioner was desirous to have decision on special oath---Petitioner made the offer in terms of S. 9 of the Oaths Act, and the application to such effect was signed by him as well as his counsel---Application was filed after three days of the relevant event( i.e. the statement of defendant' witness, upon which the petitioner showed satisfaction to make the offer-in-question); said offer was accepted by the other side as well as the witness concerned and the Trial Court proceeded to administer the special oath of said person/witness in terms of the Oaths Act---There appeared to be no haste, in making the offer or its acceptance---Petitioner took his time, then instructed his lawyer to make the offer, who after drafting the application obtained his signatures on the application---Thereafter, the statements of the counsel for the parties were recorded, which were followed by the special oath---Wording of the application as well as the impugned order passed by the Trial Court revealed that there was no ambiguity as to the offer or the significance upon acceptance---Petitioner was fully aware that the statement on oath, if given, would be binding upon him and it could have consequence of dismissal of the suit---Trial Court noticeably remained careful---Not only the written request duly signed by the petitioner, containing his verification, was brought on the record but at the same time the statements of the counsel for the parties were recorded---Consequences of the offer were very clear to the petitioner---Petitioner could not be allowed to back out from a statement/offer after it had culminated into a binding contract and when the contract had been acted upon---Said attempt by the petitioner to withdraw from the statement and his dual stance also attracted the principle of approbate and reprobate with full force---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below---Revision was dismissed, in circumstances.

Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224; Sajid Mehmood v. Mst. Shazia Azad and others 2023 SCMR 153 and Muhammad Rafique v. Nasir Mehmood PLD 2016 Lah. 428 ref.

Khushi Muhammad through L.Rs. v. Mst. Nazira Bibi and 4 others 2007 CLC 1874; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 and Ahmad Khan and others v. Jewan PLD 2002 SC 655 distinguished.

P L D 2024 Lahore 76

Before Ahmad Nadeem Arshad, J

SHABBIR AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others---Respondents

Writ Petition No. 3227 of 2022, decided on 19th January, 2023.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Civil Procedure Code (V of 1908), Ss.114 & 152---Constitution of Pakistan, Art.199---Constitutional petition---Correction of judgment and decree---Review---Scope---Suit for specific performance of agreement to sell, declaration and injunction was filed by petitioner/ plaintiff who claimed to have entered into agreement with respondents/ defendants regarding purchase of suit property---Respondent/defendants made consenting statement and judgment was passed by Trial Court on the basis of ex-parte evidence---Petitioner/ plaintiff filed application for correction of decree as the same did not contain any finding regarding specific performance of agreement and injunction---Trial Court and Lower Appellate Court declined to correct the judgment---Validity---Only where slip or omission was accidental or unintentional it could be supplemented or added in exercise of jurisdiction conferred under S. 152, C.P.C.---Such course was provided to foster cause of justice to suppress mischief and to avoid multiplicity of proceedings---Petitioner/plaintiff specifically pleaded in his plaint that respondents/ defendants agreed to sell their shares to him and after receipt of consideration amount executed agreements to sell in his favour---Petitioner/plaintiff produced the agreements in his documentary evidence---Respondents/defendants conceded stance of petitioner/plaintiff in their written statements---Reliefs of specific performance and perpetual injunction were the basic reliefs, which required determination from Trial Court---Failure on the part of Trial Court to give any findings on said reliefs and to decide either way did not suggest that said omissions were made by Trial Court through positive application of mind intentionally---Trial Court did not expressly refuse to grant reliefs as claimed---Such omission was not a deliberate one and was an inadvertent accidental slip, which squarely fell within the ambit of S. 152, C.P.C.---High Court directed Trial Court to make necessary corrections by incorporating reliefs of specific performance and perpetual injunction---High Court set aside orders/judgments and remanded the matter to Trial Court for necessary correction in judgment in question---Constitutional petition was allowed, in circumstances.

Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Muhammad Akram v. DDCO, Rahim Yar Khan and others 2017 SCMR 56; Bank of Credit and Commerce International (Overseas) Ltd. v. Messrs Ali Asbestos Industries Ltd and 5 others 1990 MLD 130; Mst. Forosha v. Fazal Gul and others PLD 1983 SC 220 and Amjad Butt v. Amjad Ali 2017 CLC Note 45 ref.

Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Muhammad Aslam Lone v. Additional District Judge Gujranwala and 10 others PLD 2008 Lah. 373; Habib Bank Limited v. Ist Additional District Judge and others 2005 MLD 1525; Ansar Mahmood v. Jamshed Ahmed Mustafa Zuberi and 6 others PLD 2015 Isl. 1; Iftikhar Ahmad and 7 others v. Habib Bank Limited, Karachi and another 1993 CLC 101 and Muhammad Yaqoob v. Bawar and 2 others 1998 CLC 456 distinguished.

Ram Singh v. Sant Singh and others AIR 1930 Lah. 210; Raj Raj Bahadur Singh v. Shatranjai AIR 1942 Oudh 226; Bank of Credit and Commerce International (Overseas) Ltd. v. Messrs Ali Asbestos Industries Ltd. and 5 others 1990 MLD 130; Mst. Forosha v. Fazal Gul and others PLD 1983 SC 220; Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Muhammad Shafi and others v. Muhammad Boota and others 2004 SCMR 1611 and Baqar v. Muhammad Rafique and others 2003 SCMR 1401 rel.

Muhammad Asghar Bhutta for Petitioner.

Muhammad Jawad Asghar Bhutta for Respondent No.4 with Respondent No.4.

Muhammad Mehmood Ashraf Khan for Respondents Nos.5(i)-(iv) and (vi).

P L D 2024 Lahore 86

Before Jawad Hassan, J

KHUSHDIL KHAN MALIK---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 3542 of 2022, heard on 5th October, 2023.

Decorations Act (XLIII of 1975)---

----S. 3---Constitution of Pakistan, Art. 259---Institution or creation of decorations---Nomination---Vested right---Scope---Petitioner was nominated for Sitara-i-Imtiaz, but was not conferred the award by President of Pakistan---Validity---Petitioner was employee of an Institution which was attached department of Ministry of Defence under Schedule II of Rules of Business, 1973---Name of petitioner was forwarded by his Institution to the Ministry for further recommendation to Cabinet Division for conferment of the Award in relation to his public service as a civil servant---Ministry of Defence did not further recommend name of petitioner for nomination of the Award---Merely nominating name of petitioner by his parent Department to relevant Division, did not create any legal/vested or fundamental right in his favour---Petitioner neither approached Ministry of Defence nor Cabinet Division for agitating the matter---Merely, recommendation of his name by nominating agency did not create any substantial or fundamental right for conferment of Award in favour of petitioner---High Court declined to direct respondent authority to forward name of petitioner to Cabinet Division---Constitutional petition was dismissed, in circumstances.

Muhammad Akbar v. Federation of Pakistan, Ministry of Law and Justice (Justice Division), Islamabad through Secretary and another 1996 SCMR 1017; Nazir A. Khan Swati v. Ministry of Law and Justice and others 1998 PLC (C.S.) 372; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Kamran Martin v. Mst. Siera Bibi and 4 others 2017 PLC (C.S.) 597 and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 rel.

Petitioner in person.

Malik Muhammad Siddique Awan, Additional Attorney General and Arshad Mahmood Malik, Assistant Attorney General with Sajid Khan, Legal Officer and Madiha Hussain, Legal Assistant for Respondents.

P L D 2024 Lahore 94

Before Shujaat Ali Khan, J

NESTLE PAKISTAN LIMITED through Authorized Signatory---Petitioner

Versus

SUB-REGISTRAR, NISHTAR TOWN, LAHORE and another---Respondents

Writ Petition No. 53187 of 2022, decided on 24th October, 2022.

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

----Preamble---Object, purpose and scope---Provisions of Stamp Act, 1899, are meant to ensure payment of dues on documents/instruments for registration and to save national exchequer.

(b) Interpretation of statutes---

----Reference to another statute---Principle---When a word, term or phrase has not been defined in an enactment, reference can be made for such purpose to some other related enactment or its general meanings are taken to decide a lis pending before a forum---When language of a statute itself is unambiguous about any word, term or phrase, reference to other statutes for such purpose is not permissible---While defining any provision of an enactment, plain meanings of a word, term or phrase should be applied instead of stretching or minimizing intent of the Legislature by borrowing its meanings from other enactments to the disinterest of a particular party.

Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1; Hotel Metropole Ltd. v. Government of Sindh and 2 others PLD 1982 Kar. 810 and Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630 rel.

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

----Ss. 2(22A), (22B) & (23A)---Stamp duty, short levy of---Impounding of document---Public office---Jurisdiction of Local Commission---Duty on service charges---Scope---Petitioner company was aggrieved of impounding of document by Local Commission on behalf of Sub-Registrar for short levy of stamp duty---Validity---Public office was an office maintained out of national exchequer and public officer was paid from national exchequer---Status of Local Commission was that he had not been paid out of the national exchequer rather he received fee determined by Sub-Registrar, in consultation with the party concerned---Local Commission could not be considered as in-charge of a public office for the purpose of Stamp Act, 1899---Local Commission had no authority to impound any document handed over to him for completion---Local Commission was to act on behalf of a Sub-Registrar but in case of any omission or commission, instead of taking action by himself, Local Commission was bound to report the matter to Sub-Registrar---Status of Local Commission was that of a representative of Sub-Registrar---Petitioner company was not liable to pay stamp duty in lieu of the amount to be paid by it to the lessor, in lieu of service charges---After deposit of Rs. 50,44,378/- by petitioner company, Sub-Registrar had no authority to impound lease deed---High Court set aside orders passed by Sub-Registrar impounding the lease deed and that of Registrar rejecting representation of petitioner company---High Court directed Sub-Registrar to register Lease Deed of petitioner company and return the original---Constitutional petition was allowed accordingly.

Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172; Burmah Shell Oil Storage and Distributing Co. Ltd. of India AIR 1933 Allahabad 735 and Nadeem Ellahi through Special Attorney v. Deputy District Officer (Registration)/Sub-Registrar and another 2011 MLD 1961 ref.

(d) Interpretation of statutes---

----Redundancy, principle of---Applicability---It should be presumed that the Legislator chooses its words carefully and if a word or phrase has been added somewhere such addition is not deemed to be redundant.

(Reference No.1 of 2012) PLD 2013 SC 279 rel.

(e) Interpretation of statutes---

----Fiscal statute---Charing provision---Applicability---While interpreting any charging provision of fiscal statute, in the event of two possible interpretations, the one favouring the individual should be applied.

The Commissioner Inland Revenue Zone-II, Larger Taxpayers Unit, Lahore v. Kohinoor Sugar Mills Limited and another 2021 SCMR 536 and Commissioner of Income Tax and another v. Balochistan Concrete and Block Workers Ltd. and others 2017 SCMR 1 rel.

Farooq Amjad Mir for Petitioner-company.

Rana Shamshad Khan, Additional Advocate General assisted by Rai Shahid Salim Khan, Additional Advocate General with Zahoor Hussain, Sub-Registrar, Allama Iqbal Town, Lahore for Respondents.

P L D 2024 Lahore 109

Before Anwaarul Haq Pannun and Abid Hussain Chattha, JJ

Dr. MANZOOR HUSSAIN MALIK and another---Appellants

Versus

Mahar MUHAMMAD KHALID AHMAD, ADDITIONAL COMMISSIONER (REVENUE), BAHAWALPUR and 2 others---Respondents

I.C.As. Nos. 174 of 2021/BWP and 81 of 2020/BWP, heard on 2nd November, 2021.

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

----Ss. 3, 5 & 19---Contempt of Court---Power to punish---Object, purpose and scope---Non-implementation of Court order---Complainant, status of---Appellants were aggrieved of dismissal of their contempt proceedings filed against non-compliance of injunctive order passed by Court---Validity---Power relating to contempt is confined to "power to punish"---Such power is not contemplated as a mechanism for execution, enforcement or implementation of orders of Court---Alleged contemnor is subject to punishment, however, after undergoing punishment, the contemnor cannot be coerced to implement an order---Power to punish a contemnor invariably implies that all orders of Court have to be implemented otherwise contempt proceedings would follow---Power of contempt can be expanded and structured to meet changing needs and requirements of the society---Contempt jurisdiction can validly be regulated by law and subject thereto by rules made by the Court underlying the rationale that power of contempt is a serious, significant and unfettered power required to be exercised in a manner which prevents its abuse and ensures its effectiveness so as to strike a balance between the two extremes---Contempt proceedings can be initiated suo motu by Court or at the instance of any party who has status of a mere informer---Once information is laid before Court, the informer loses his further right to pursue the same---Contempt proceedings or an appeal thereagainst does not lie at the desire of a litigant party---Primary purpose of civil contempt is always vindication of dignity of Court and administration of justice but it is also an additional tool for implementation and clarification of Court orders employed in the manner and to the extent in the sole discretion of Court---Directions in contempt proceedings do not constitute contempt but their "willful disobedience" may give rise to fresh contempt and may eradicate bona fide as a defense---Appeal is only competent as of right against order of conviction or sentence but not against order refusing to convict or resulting in exoneration---Appeal is not maintainable regarding orders refusing to initiate or dropping contempt proceedings at any stage after due satisfaction of Court---Appeal is competent regarding orders passed in contempt proceedings which are inherently without jurisdiction or void or coram non judice or for multiple reasons in the discretion of Appellate Court or of the nature requiring exercise of jurisdiction in appeal---Any observations made by Court in original or appellate proceedings have no bearing or effect on the merits of any pending adjudication between parties to the lis before any judicial forum---Inherent discretion of Court can be enlarged and invoked to thwart any real threat to judicial authority and constitutional disorder---In the present case contempt proceedings were initiated by the Court against respondents at the instance of appellants regarding non-compliance of its orders---Court after its due satisfaction that there was no "willful disobedience" by alleged contemnors dropped contempt proceedings---Division Bench of High Court declined to interfere in the order passed by Judge in Chambers of High Court---Appeal was dismissed, in circumstances.

Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466; Muhammad Mohsin Rafiq and others v. Messrs Siddiqui & Co. 2021 CLC 1; Midnapore Peoples Co-op. Bank Ltd. and others v. Chunilal Nanda and others AIR 2006 SC 2190; B.N. Taneja (IFS) v. Bhajan Lal 1988 SCC (3) 26; Dr. Nazeer Saeed v. Muhammad Javed and 16 others PLD 2014 Lah. 660; Chief Executive, Multan Electric Power Company (MEPCO), Multan and others v. Messrs Colony Textile Mills Limited and others 2012 SCMR 906; Chand and others v. Abdul Ghaffar and others PLD 1965 (W.P.) Lahore 596; Bakhtawar and others v. Amin and others 1980 SCMR 89; Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore PLD 1960 (W.P.) Lahore 751; Matjhabeng Local Municipality and others v. Eskom Holdings Limited and others 2018 SCMR 100; Saeeda Sultan v. Liaqat Ali Orakzai and others PLD 2021 SC 671 and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 ref.

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

----Ss. 2(a), 2(b), 2(c) & 3---Classification of contempt---Scope---Contempt classified under Contempt of Court Ordinance, 2003, is divided into three different species, i.e. "Civil Contempt", "Criminal Contempt" and "Judicial Contempt"---Each type of contempt has been defined in Ss. 2(a), 2(b) & 2(c) of Contempt of Court Ordinance, 2003, respectively---Civil contempt means willful flouting or disregard of an order, whether interim or final; a judgment or decree of a Court; a writ or order issued by a Court in the exercise of its constitutional jurisdiction; an undertaking given to, and recorded by, a Court; or the process of a Court---Criminal contempt means doing of any act with intent to, or having the effect of, obstructing administration of justice---Judicial contempt means scandalization of Court and includes personalized criticism of a Judge while holding office.

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

----Ss. 2(a)(iii)(iv), 3 & 12(2)---Contempt proceedings---Object, purpose and scope---Civil contempt, distinct from other forms of contempt---Common feature in all three types of contempt is that the Court may initiate contempt proceedings suo motu or on information provided by an informer---Criminal contempt brings moral authority of Court into disrepute and encompasses a host of situations which the Court by exercising its contempt jurisdiction is required to deal effectively to ensure due process regarding all aspects of free and fair trial as ordained by applicable law without causing prejudice to rights and interests of all stakeholders---Judicial contempt aims to protect, preserve and uphold the authority, sanction and dignity of Court---Civil contempt is conspicuously different and is deliberately expanded in terms of its manifestations and ramifications---This is the only type of contempt that speaks of an "order" and includes the expression "interim" or "final", a "judgment" or "decree", or a "writ or order" passed in constitutional jurisdiction within the contemplation of overarching term "order" employed in S. 2(a) of Contempt of Court Ordinance, 2003---Civil contempt is expanded to include "an undertaking given to and recorded by a Court" and "the process of the Court" itself as contained in S. 2(a)(iii) & (iv) of Contempt of Court Ordinance, 2003---Such conscious attempt on the part of the Legislature to expand power in cases of civil contempt is fortified by unflinching declaration under S. 12(2) of Contempt of Court Ordinance, 2003, to the effect that provisions relating to civil contempt are in addition to and not in derogation of power of Court under any law for the time being in force to enforce its orders, judgments or decrees---Civil contempt can only be initiated if there is an order which is duly served upon alleged contemnor and there is "willful" and "mala fide" non-compliance of such order by contemnor who is a party in proceedings in his personal capacity.

(d) Jurisdiction---

----Object---Court's jurisdiction cannot be invoked or exercised for mere academic discussion or futile purpose.

(e) Appeal---

----Right of appeal---Object, purpose and scope---Purpose of providing remedy of appeal is to evaluate and examine correctness and validity of orders passed by Court below to eliminate chances of miscarriage of justice.

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

----Ss. 3 & 19---Contempt proceedings---Appeal, right of---If contempt proceedings are terminated, not even the State or informer can agitate the same in appeal---Contempt proceedings are between contemnor and Court which provide no vested right to any aggrieved person to press for enforcement of contempt proceedings against the alleged contemnor.

Shahid Orakzai v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan and another 2016 PCr.LJ 1017; Zahid Waheed Khan v. Crystal Chemicals Ltd. 2006 YLR 2577; Mrs. Razia Yaqub v. Malik Muhammad Ashiq and 2 others PLD 2003 Lah. 486; Adeel Arshad v. Ishfaq Ahmad Chaudhry, D.C. Khanewal and others PLD 2021 Lah. 741; West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 and M. H. Khondkar and another v. The State and another and M. Noman v. Dacca Improvement Trust and 3 others 1971 SCMR 743 rel.

Muhammad Naveed Farhan and Ahmad Mansoor Chishti for Appellant.

Malik Imtiaz Mehmood Awan and Jam Muhammad Afzal Gasoora, Assistant Advocate General for Respondents.

P L D 2024 Lahore 129

Before Ali Baqar Najafi, Abid Aziz Sheikh, Shahid Karim, Asim Hafeez and Anwaar Hussain, JJ

ASHFAQ AHMAD KHARAL and 21 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Law and Parliamentary Affairs and others---Respondents

Writ Petitions Nos. 5324, 5343, 5055 and 6545 of 2023, decided on 14th February, 2023.

Per Ali Baqar Najafi, J; Abid Aziz Sheikh, Shahid Karim and Anwaar Hussain, JJ agreeing; Asim Hafeez, J., dissenting [Majority view]

(a) Words and phrases---

----Care-taker---Meaning---Care-taker is a person who takes care of certain things and fulfills his responsibility so entrusted to him---Such person holds the fort to protect and discharge his assigned duties---Care-taker is the one who looks after in the owner's absence.

Collins English Dictionary rel.

(b) Constitution of Pakistan---

----Art. 224(1), (1A) & (1B)---Elections Act (XXXIII of 2017), S. 230---Care-taker government---Object, purpose and scope---Care-taker Government is a government temporarily in power until election is held---It is a temporary Government commissioned by Governor-General or State Governor, usually for short period until stable Government can be formed---Care-taker governments are established during the time of uncertainty when it is not clear whether any party or coalition of parties is capable of forming a stable government---Care-taker governments carry on routine business of government but they are expected to refrain from making important policy decisions.

Dictionary of Politics and Government Third Edition rel.

(c) Punjab Law Department Manual, 1938---

----Part 1, Chap. 1, Cls. 1.5 & 1.18---Elections Act (XXXIII of 2017), S. 230---Constitution of Pakistan, Art. 140---Advocate General---Appointment and functions---Dispute was with regard to removal of Advocate General of Punjab Government along with Law Officers working there by Care-taker government---Held, that dispensing with service of Law Officers is not to be necessary based upon displeasure of the Governor---Sole purpose of Care-taker government is to conduct fair and free elections---If Care-taker government was of the view that such Law Officers were not helpful in creating impression of impartiality in the mind of public, their services could be dispensed with---This was objective decision of Care-taker Chief Executive---High Court upheld the notification for removal of Advocate General Punjab and other law officers---High Court set aside notification for appointment of such new Law Officers to the extent of Law Officers who retained their offices in the political government immediately preceding the last government---Constitutional petition was allowed accordingly.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Rab Nawaz Randhawa, Advocate and others v. Rana Muhammad Akram, Advocate and others PLD 2014 Lah. 591; Raja Muhammad Zubair and others v. Government of Khyber Pakhtunkhwa through Chief Secretary and others PLD 2022 Pesh. 100; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; (Reference No.1 of 2020) PLD 2021 SC 825; Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad PLD 1988 Lah. 725; The Regional Commissioner of Income-Tax Central Region, Lahore and others v. Zaffar Hussain and others PLD 1992 SC 869; Government of Balochistan through Secretary Services and General Administration Department and others v. Abdul Rauf and others PLD 2021 SC 313; Malik Muhammad Bashir Lakhesar, Assistant Advocate-General, Punjab v. Government of Punjab and others 2019 PLC (C.S.) 206; Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others v. Muhammad Ashraf Khan and others PLD 2011 SC 7; B.P. Singhal v. Union of India and another (2010) 6 Supreme Court-Cases 331; State of U.P. v. U.P. State Law Officers Association and others AIR 1994 SC 1654; Joginder Singh Wasu v. State of Punjab (1994) 1 Supreme Court Cases 184; V.C. Rangadurai v. D. Gopalan and others AIR 1979 SC 281; P.K.Kunjukrishnan Nair v. State of Kerala and others AIR 1989 Kerala 253; Lalit Mohan Taran v. Lal Mohan and others AIR 1985 Gauhati 35; Imtiaz Ahmad Kaifi v. Government of Punjab and others PLD 2013 Lah. 598 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 rel.

Per Abid Aziz Sheikh, J; agreeing with Ali Baqar Najafi, J

(d) Interpretation of statutes---

---Maxim "Leges posteriores priores contrarias abrogant"---Applicability---When there is conflict between two special laws containing overriding clauses, generally statute later in time prevails over the statute prior in time---This principle is based on maxim leges posteriores priores contrarias abrogant.

Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Ahmad Saeed Kirmani v. Fazal Elahi, Speaker and others PLD 1956 Lah. 807; Messrs Usmani Associates Sub Proprietary Firm v. Central Board of Revenue and another 2001 PTD 2982; Sui Northern Gas Pipeline Limited, (SNGPL) through General Manager v. Director (Legal), President Secretariat (Public), Aiwan-e-Sadar Islamabad and 2 others PLD 2018 Isl. 51 and Messrs Federal Bank For Cooperatives, Islamabad v. Commissioner of Income Tax, Companies Zone, Islamabad 2021 PTD 1203 rel.

(e) Punjab Government Rules of Business, 2011---

----Rr. 13(1), 14(1), Third Schedule, Part-A, Serial No. 4 & Seventh Schedule, Part-A Serial No. 16---Punjab Law Department Manual, 1938, Part 1, Chap. 1, Cls. 1.5 & 1.18(4)---Constitution of Pakistan, Art. 140 (3)---Advocate General and Law Officers---Appointment and removal---Counsel and client relationship---Distinction---Chief Minister is Competent Authority for appointment and removal of Advocate General, Additional and Assistant Advocates General under the Constitution, Rules of Business and Punjab Law Department Manual---Law Officers cannot be treated at par with government employees or public servants compelling Government to retain a particular counsel irrespective of lack of faith and confidence on said Law Officers by the Government.

(f) Counsel and client---

----Relationship---Scope---Client is under no obligation to give reasons for withdrawing his brief from his lawyer---Lawyer is not agent of his client but is a spokesman and advisor to his client.

BP Singhal v. Union of India 2010 5 (SCC) 331 rel.

(g) Interpretation of statutes---

----Word 'Public interest'---Scope---Term "public interest" is not capable of precise definition and has no strict meaning but it takes colour from the statute in which it occurs.

(h) Elections Act (XXXIII of 2017)---

----S. 230---Term "public interest"---Scope---Term "public interest" is to ensure honest, just, free and fair elections in accordance with law, which is also the mandate of Arts. 218 to 224 & 224-A of the Constitution.

(i) Constitution of Pakistan---

----Art. 140---Elections Act (XXXIII of 2017), S. 230---Punjab Law Department Manual, 1938, Part 1, Chap. 1, Cl. 1.5---Advocate General and other law officers---Removal from office---Public interest---Dispute was with regard to notification appointing Law Officers, who were also Law Officers in the Government preceding previous Government---Validity---Such Law Officers could not be justified on the touch stone of public interest and if they were allowed to continue as Law Officers, that would defeat the entire purpose of transparency urged and appointment of those independent Law Officers who have not been appointed by any political Government earlier to ensure free and fair elections in the public interest---High Court declared the notification as ultra vires of law and S.230 of Elections Act, 2017, to the extent of such Law Officers and not sustainable---Constitutional petition was dismissed in circumstances.

Nemat Ullah and others v. Chairman Government Body, Worker Welfare Board/Secretary to Government of KPK, Labour Department and others 2016 SCMR 1299; Ministry of Information Technology and Telecommunications, Islamabad and another v. C.M. Pak (Pvt.) Ltd., Islamabad and another PLD 2020 SC 551; Rasheed Ahmad v. Federation of Pakistan through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan, Islamabad and others PLD 2017 SC 121; Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Bayindir Insaat v. Pakistan through Ministry of Communication and 3 others PLD 2001 Lah. 426; Abu Dhabi Medical Devices Co. L.L.C. v. Federation of Pakistan through the Ministry of Health and another 2010 CLC 1253; Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kar. 513; Ashiq Ali Bhutto v. President, Summary Military Court No.2, Karachi and 2 others PLD 1979 Kar. 814 and Raja Muhammad Zubair and others v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2022 PLC (C.S.) 778 rel.

Per Asim Hafeez, J; dissenting with Ali Baqar Najafi and Abid Aziz Sheikh, JJ. [Minority view]

(j) Constitution of Pakistan---

----Art. 224(1), (1A) & (1B)---Elections Act (XXXIII of 2017), S. 230---Care-taker government---Scope---Care-taker Government is a government 'sui generis' - one of its kind---Constitution draws distinction between elected Chief Minister and care-taker Chief Minister, as far as obligations, responsibilities, powers and functions are concerned---Elected Provincial Government is accountable and answerable to Assembly and care-taker Provincial Government works in absence of an Assembly.

(k) Punjab Law Department Manual, 1938---

----Part 1, Chap. 1, Cl. 1.5---Elections Act (XXXIII of 2017), S.230---Constitution of Pakistan, Arts. 25 & 140---Advocate General and other law officers---Appointment and removal---Care-taker government, jurisdiction of---Scope---Discrimination---Dispute was with regard to removal of Advocate General and other Law Officers by Care-taker government of Punjab province on the plea of political affiliation with outgoing political party---Validity---Appointment of Advocate General is a substantial appointment and otherwise falls in the realm of major policy decision---Simplicitor removal of Advocate General on the allegation of having political affiliation/association - solely because appointed by elected Provincial Government - and without any plausible justification and reasoning and without seeking indulgence of Election Commission, per se violated mandate of S. 230(1)(d) of Elections Act, 2017---Such action could not otherwise be construed as an impartial act to a political party---Segregation so made had no basis in law and in fact stigmatized excluded Law Officers, risking their chances of seeking appointment in the office, by dint of their competency and merits---This was discrimination and did not meet test of reasonable classification---Excluding nineteen (19) Law Officers contravened the Constitutional mandate and had rendered effect of Art. 140(2) of the Constitution ineffectual, which prescribed scope of duties for Advocate General---High Court directed Care-taker Provincial Government to operate and function within the ambit of S. 230 of the Elections Act, 2017 and set aside appointment of fresh Law Officers---Constitutional petition was allowed in circumstances.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Rab Nawaz Randhawa, Advocate and others v. Rana Muhammad Akram, Advocate and others PLD 2014 Lah. 591; Raja Muhammad Zubair and others v. Government of Khyber Pakhtunkhwa through Chief Secretary and others PLD 2022 Pesh. 100; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1992 SC 646; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others PLD 2023 SC 42; Ijaz Muhammad and others v. Raja Muhammad Zubair and others C.P. No.3145 of 2018; Aurangzeb v. Managing Director, Sui Northern Gas Pipelines Limited and 3 others. 2017 PLC 12; Sindh Employees' Social Security Institute v. Pakistan National Produce Co. Ltd. 1989 PLC 81; Sardar Hussain Babak and another v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others PLD 2015 Pesh. 206; Haji Ameerzada and 6 others v. Secretary to Government of Khyber Pakhtunkhwa, Revenue Department and others PLD 2016 Pesh. 278; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Dewan Petroleum (Pvt.) Ltd. through M.D/Chief Executive and another PLD 2012 SC 189; Malik Muhammad Bashir Lakhesar, Assistant Advocate General, Punjab v. Government of Punjab and others 2019 PLC (C.S.) 266; Syed Aziz-ud-Udin Kakakhel v. Governor Khyber Pakhtunkhwa through Principal Secretary and 8 others PLD 2019 Pesh. 145; Shafaqat Mahmood Lodhi v. The Accountant-General West Pakistan Lahore PLD 1968 Lah. 786; State of Uttar Pardesh and others. v. Rakesh Kumar Keshari and another (2011) 5 Supreme Court Cases 341; Bhadreswar Tanti v. S.N. Choudhary and another AIR 1985 Gauhatti 32; Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1; Vice-Chairman Punjab Bar Council and others v. Government of The Punjab and others PLD 2021 Lah. 544; Mehran Security Service (Pvt.) Ltd. and 2 others v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan Islamabad and 3 others 2000 YLR 2655; Muhammad Usman v. Additional Sessions Judge, Rawalpindi and 3 others 2022 YLR 1131; Hadayat Ullah and others v. Federation of Pakistan and others 2022 SCMR 1691; M. Ashraf Khan, Advocate Supreme Court of Pakistan v. Secretary Law, Parliamentary Affairs and Human Rights, Government of The Punjab, Lahore and 19 others PLD 2008 Lah. 312; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Tanveer A. Qureshi v. President of Pakistan, President House, Islamabad and 3 others PLD 1997 Lah. 263; Commissioner of Police, Bombay v. Gordhandas Bhanji AIR 1952 (SC) 16; Constitutional Law of India by H.M. Seervai -- Fourth Edition/Silver Jubilee Edition, Volume 2 and Shapiro v. United States' (335 U.S. 1, 16 (1948) ref.

S.R. Bommani and others v. Union of India and others AIR 1994 Supreme Court 1918 rel.

Barrister Abid S. Zubairi, Ch.Muhammad Sarwar, Mian Ihsan-ul-Haq Sajid, Usama Zubair, Amna Khalili, Menahil Malik, Arif Ansari, Qazil Ali Bash, Salma Riaz, Ashhad Ali Azhar, Ali Awais, Belal Awais, Moeen Ahmad, Hassan Awais, Usman Fazal, Syed Faisal G. Meeran, Mian Haq Nawaz Saqib, Tanveer Ahmad Gill, Uzma Firdous, Muhammad Nadeem Abbasi for Petitioners (in W.Ps. Nos.5324 and 5343 of 2023).

Hasham Ahmad Khan for Petitioner (in W.P. No.6545 of 2023).

Ch. Rizwan Kashif Kalaar, Ch. Adnan Faiz Kalaar, Waheed Ahmad and Belal Awais for Petitioners (in W.P. No. 5055 of 2023).

Ahmad Awais, Advocate General Punjab, Ghulam Sarwar Nihang, Additional Advocate General, Rai Shahid Saleem Khan, Additional Advocate General, Mustafa Imran Pasha, Additional Advocate General and Syed Abul Ali Jafari, Assistant Advocate General.

Tahir Mehmood Khokhar, Additional Attorney General, Malik Javed Awan, Additional Attorney General and Mian Waseem Shahabi, Assistant Attorney General, Ch. Usman Ghani, Assistant Attorney General for Federation.

Mansoor Usman Awan, Barrister Hamza Shehram Sarwar, Haris Irfan, Ms. Maham Shehzad Laun, Mian Shahzeb Quddous and Asad Zaman Tarar for Respondents Nos. 1 and 2.

Shezada Mazhar, Muhammad Jawad Khan Lodhi, Asad Raza, Muhammad Ahmad Khan Niazi, Rizwan Rasool, Samir Sohail and Imran Arif Ranjha (Legal Advisor) for ECP with Khurram Shehzad, ADG (Legal) ECP. Nasar Ahmad, Additional Attorney General for Federation.

On 14.02.2022 these Writ Petitions were disposed of through the following short order:-

"For the reasons to be recorded later, with a majority of four to one with Asim Hafeez, J. dissenting, these writ petitions are partially allowed in the following terms:-

1. The removal of the Advocate General Punjab and other law officers vide notifications dated 24.01.2023 is upheld.

2. The notification of even date for the appointment of new law officers to the extent of law officers who retained their offices in the political government immediately preceding the last government and headed by Muhammad Hamza Shahbaz Sharif as Chief Minister, is set-aside."

P L D 2024 Lahore 204

Before Mirza Viqas Rauf and Jawad Hassan, JJ

EJAZ HUSSAIN RATHORE---Petitioner

Versus

BAHRIA TOWN (PRIVATE) LIMITED, Ahmad Ali Riaz and Riaz Malik---Respondents

R.F.A. No. 8 of 2018, heard on 18th October, 2023.

Contract Act (IX of 1872)---

----S. 73---Specific Relief Act ( I of 1877) , Ss. 12 & 54---Suit for possession, permanent injunction and recovery of damages---Special damages, proof of---Requirements and scope---Claim of the plaintiff was that he was allotted two plots in a particular Phase/Sector/ Location (Premier Awami Villa) after balloting , however, despite delivery of possession of said plots, the defendants (Housing Society) subsequently carried out two successive balloting on two dates and allotted plots (Villa) in a different Phase/Sector/Location against earlier allotted/registered plots---Civil Court partially decreed the suit---Plaintiff preferred present appeal only to the extent of special damages to the tune of Rs.524,017,300/- ---Contention of the appellant/plaintiff was that due to violation of terms and conditions by the respondents/defendants (Housing Society) he was entitled for recovery of special damages---Validity---Record revealed that although the contents of the plaint showed that the appellant/plaintiff claimed total damages to the tune of Rs.524,017,330/- allegedly suffered by him providing the details of damages on account of different heads/items of losses (total amount of money paid to the defendants; loss of profit on the said money @ Rs.14% per annum; cost of loss of opportunity due to the investment; compensation for the loss of mense profit due to failure to deliver the possession of the villas; compensation for torture and agony faced by the plaintiff due to non-performance of the defendants; and damages for failure to perform by the defendants as per their representations and projections)---However, the appellant/plaintiff remained unable to adduce any evidence to prove special damages allegedly sustained on account of said/mentioned losses---For awarding special damages, the person claiming special damages had to prove each item of loss with reference to the evidence brought on record, which might also include out-of-pocket expenses and loss of earnings incurred down to the date of trial, and generally capable of substantially exact calculation---Ground had been agitated by the appellant that documents (six in number) duly exhibited by him in the evidence had not been considered, whereas said documents related to acknowledgment slips for different tax years only, which had no nexus to the grant of special damages---Appellant's claim did not qualify aspired destination even if same be tested and evaluated on touchstone of parameters envisaged in Section 73 of the Contract Act, 1872---Mere breach of the agreement on part of the respondent being alleged by the appellant/plaintiff was not sufficient enough to straightaway grant special damages in his favour---In said connection, he was obliged to establish, substantiate and prove all heads of his claim separately and distinctly---However, in the present case, the appellant had not embraced success on any count in proving the actual damages he suffered and all heads of the damages he claimed for to enable the court for assessment and grant thereof---Thus, Trial Court had rightly decreed the suit of appellant/plaintiff partly---Appellant had failed to make his case for the exercise of appellate jurisdiction of the High Court---Appeal was dismissed, in circumstances.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 PLC (C.S.) 574; Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 SCMR 507; Mrs. Alia Tareen, Managing Director, Pakistan General Hospital, Quetta and others v. Amanullah Khan, Advocate and 3 others PLD 2005 SC 99; Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf and others PLD 2021 SC 564; Malik Muhammad Riaz v. Muhammad Hanif and others 2022 SCMR 1572; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; Mirza Muhammad Moin Baig v. Mst. Amtul Rauf and others 2007 MLD 1978 and Messrs Sagaria Brothers v. Messrs Azim Markaz and 2 others PLD 1994 Kar. 149 ref.

Syed Ashfaq Hussain Naqvi, Advocate Supreme Court for Appellant.

Qaiser Qadeer Qureshi, Advocate Supreme Court for Respondents.

P L D 2024 Lahore 211

Before Shahid Karim, J

JAN MUHAMMAD TAYAB through Authorized Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Law and Justice, Islamabad and 7 others---Respondents

Writ Petition No. 36748 of 2022, decided on 1st February, 2023.

Foreign Exchange Regulation Act (VII of 1947)---

----S. 23C(4)---Adjudication Proceedings and Appeal Rules, 1998, R. 8---Constitution of Pakistan, Arts. 4, 10-A & 199---Order of penalty imposed by the Adjudicating Officer of State Bank of Pakistan, assailing of---Appeal before the Foreign Exchange Regulation Appellate Board, admitting of---Deposit of surety of the equivalent amount of the penalty by the appellant---Pre-condition, vires of---Right to fair trial---Due process---Scope---Appellant invoked constitutional jurisdiction of the High Court as the Presiding Officer of the Appellate Board, while relying upon S. 23C (4) of the Foreign Exchange Regulation Act, 1947 ("the Act, 1947"), had required the petitioner/ appellant to deposit before the Appellate Board a surety equivalent to the amount of penalty imposed upon him holding the same as a sine qua non for the appeal to be entertained and decided---Petitioner prayed for holding the provisions of S. 23C(4) to be unconstitutional on the ground that the same offended the rights of the petitioner/accused to be treated in accordance with law fairly and justly and his right to access of justice was also infringed---Validity---Provisions set out in S.23C(4) of the Act, 1947 provides that no appeal shall be admitted for hearing unless the appellant before the Appellate Board deposits in cash amount of penalty or at the discretion of the Appellate Board furnishes security equal in value to such amount of penalty, therefore, there is a complete prohibition enacted by subsection (4) of S. 23C of the Act 1947 to the hearing of the appeal unless the pre-condition is satisfied by an appellant, which is an infringement of the right which inheres in the petitioner to access to justice---One of the most important planks of the right of access to justice is the right to file at least one appeal against the order which affects the rights of a person---Right to file an appeal must be unimpeded and should not be circumscribed by a condition which surely takes away that right---Subsection (4) of S. 23C of the Act 1947 is one such provision which in fact is tantamount to taking away the right of the petitioner in not only filing of the appeal but also the hearing to be granted on that appeal irrespective of whether it fulfills the condition or not---It is one thing to say that petitioner may be burdened with a condition in case he seeks the suspension of the determination of a liability against him pending the appeal but another aspect entirely to provide in the law that the hearing of the appeal will be contingent upon the fulfillment of a condition precedent which if unfulfilled takes away the right of appeal---Distinction will have to be drawn between the two circumstances---Surely, under civil law a money decree can only be suspended if adequate security is provided by the judgment debtor and as determined by Appellate Court, but that mere fact does not mean that in case of failure to do so the appeal shall not be heard on its merits and that the appellant will be deprived of grant of hearing in the appeal itself unless he deposits the security equivalent to the amount of penalty---Subsection (4) of S. 23C of the Act 1947is a clog on the right of the petitioner to be dealt with in accordance with law---Petitioner has the right of filing at least one appeal and for that appeal to be heard without any pre-conditions attached to it, which is a fundamental right under the Constitution and springs from Art. 10A of the Constitution which provides, inter alia, that for the determination of civil rights and obligations, a person shall be entitled to due process, which also emanates from Art. 4 of the Constitution---Said right is absolute and cannot be taken away by laying down a condition which undermines that right---Rule 8 of the Adjudication Proceedings and Appeal Rules, 1998, makes the receipt of an appeal by the Appellate Board subject to compliance with subsection (4) of S. 23C of the Act, 1947, thus, said Rule too prohibits the Appellate Board from hearing the appeal unless the condition is satisfied---High Court set-aside the impugned orders, and struck down subsection (4) of S. 23C of the Foreign Exchange Regulation Act, 1947, as well as R. 8 of the Rules 1998 (to the extent said Rule makes the receipt of an appeal subject to the compliance with subsection (4) of S. 23C of the Act 1947) holding the same as unconstitutional and violative of the fundamental rights of the petitioner/appellant---Constitutional petition was allowed, in circumstances.

Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal Lahore and others PLD 1996 Lah. 672 and Messrs Eastern Rice Syncicate v. Central Board of Revenue, Government of Pakistan and others PLD 1959 SC (Pak.) 364 ref.

Waqas Ahmad Mir, Mian Tariq Hassan, Hassan Ali and Jahangir Dogar for Petitioner.

Rehan Nawaz and Dr. Shahid Raza for Respondent-SBP.

P L D 2024 Lahore 215

Before Mirza Viqas Rauf and Ch. Abdul Aziz, JJ

MUHAMMAD FARRUKH and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 68886 of 2019, decided on 13th September, 2023.

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

----Art. 40---Disclosure made by accused---Evidentiary value---Discovery of any fact which is not known to anyone has legal significance and such fact is admissible under Art. 40 of Qanun-e-Shahadat, 1984.

Sh.Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----S. 7 (3)---Penal Code (XLV of 1860), S. 365-A---Qanun-e-Shahadat (10 of 1984), Arts. 46-A & 164---Abduction of minor for ransom---Appreciation of evidence---Evidence through modern devices---Voice sampling---Identification parade, non-conducting of---Accused persons were convicted and sentenced by Trial Court for abducting minor child of four years of age and releasing him against receipt of ransom---Validity---Living in a technological era and well conversant with prevailing menace of false depositions, Courts can legitimately use data generated through modern devices for ascertaining truth of a fact through enabling provisions of Arts. 46-A & 164 of Qanun-e-Shahadat, 1984---From the data collected through modern devices brought on record in the evidence it was proved beyond any shred of doubt that voice samples available on CD and voice recorded on USB were the same, which aspect further strengthened the prosecution case---Both the appellants were apprehended in thick of incident when after receipt of ransom they were making an endeavour for decamping from the spot---Ransom was also recovered from the possession of both the accused persons and at the same time veil was lifted from the place of captivity of minor abductee---Identification of both the accused persons did not necessarily have to be conducted by minor abductee, who was just four years old and during trial was found not be competent enough in such regard---Holding of identification parade was not essential in an abduction incident---Prosecution successfully proved its case against accused persons for abduction of minor---High Court maintained conviction and sentence awarded to accused persons under S. 365-A, P.P.C.---High Court set aside conviction and sentence of accused person under S. 7(e) of Anti-Terrorism Act, 1997, as accused persons were tried by a Judge of Anti-Terrorism Court for a scheduled offence and conviction under Anti-Terrorism Act, 1997, had become uncalled for---Appeal was dismissed accordingly.

Saifal v. The State 2013 PCr.LJ 1082; Ali Raza alias Peeter and others v. The State and others 2019 SCMR 1982; Muneer Ahmad v. The State 1998 SCMR 752; Bashirullah and another v. The State 2002 PCr.LJ 1183 and Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

Ms. Malika Saba for Appellants Nos.1 and 3.

Muhammad Younas Bhullar for Appellant No.2.

Muhammad Sher Gul Qureshi for the Complainant.

Rai Akhtar Hussain, Additional Prosecutor General for the State.

P L D 2024 Lahore 228

Before Muzamil Akhtar Shabir, J

AKEEL AHMAD---Petitioner

Versus

CHAIRMAN, PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and others---Respondents

Diary No. 149609 of 2022, decided on 12th October, 2022.

Electronic Transactions Ordinance (LI of 2002)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 76---Certified copy of a document---Scope---Judgment on website of the High Court---Admissibility---Office objection---Some pages of a judgment were downloaded from the official website of the Court and was produced, which was not accepted---Validity---Perusal of the said pages showed that apparently the same comprised of an unsigned copy of judgment passed in the case, however, nothing was available on the record to substantiate that the said pages had been downloaded from the official website of the Court and had remained un-altered or un-changed thereafter---Besides, there was no mechanism available with the office of the Court to verify whether the said copy had been compared with the original judgment/order of the Court by any competent authority and was free from errors and omissions so as to be treated as a true and real copy of the judgment actually passed by the Court---Moreover, such a copy had neither been made per se admissible in a Court of law as evidence of what had been decided therein through permission granted by the Lahore High Court Rules and Orders nor by any notification issued by the Court in that regard rather the said copies were uploaded subject to all just and legal exceptions and were not claimed to be authentic and true copies of the orders actually passed by the Court and free from errors and omissions---Section 12 of the Electronic Transactions Ordinance, 2002 although made an electronically generated printout of documents admissible as evidence as a true copy of the original document/order yet the same had been made admissible subject to the condition that the print out or other form of electronic documents in addition to fulfillment of requirements specified in applicable law were also verified in the manner that might be laid down by the appropriate authority---Moreover, the said copy was an unsigned copy downloaded by the petitioner himself, statedly from the official website, without any involvement of and authentication by the office of High Court---Such a copy could be allowed to be placed on the record where the High Court would have permitted the same or made the same as admissible---Hence a copy claimed to be downloaded from official website of High Court could not be treated as an equivalent or at par with the certified copy---In the present case, the said copy had not been placed on the record as an impugned order rather the same had been placed on the record for reference only---Said unattested and unsigned copy of the judgment available on the file as an annexure comprised of 23 pages and had 41 paragraphs and it was not possible for High Court while hearing the objection case to determine whether the said copy was an exact copy of judgment passed by High Court and was free from errors or omissions to allow the same to be retained on the file by treating the same as atpar with an authentic document---Office objection was sustained.

Saif ur Rehman Jasra for Petitioner.

Muhammad Jehan Zaib, A.A.G., Hassan Khalid Ranjha, Ahmad Hassan Khan Khichi, Syed Sabahat Hussain Hamdani and Alamdar Hussain for Respondents.

P L D 2024 Lahore 233

Before Raheel Kamran, J

ASAD MUMTAZ WARRAICH---Petitioner

Versus

ALI MUMTAZ WARRAICH---Respondent

Civil Revision No. 60871 of 2023, decided on 14th November, 2023.

Civil Procedure Code (V of 1908)---

----O.V, Rr. 16, 17, 19 & O. XXXVII, R. 4---Suit for recovery of money---Ex-parte decree, setting aside of---Appellant/defendant sought setting aside of ex-parte judgment and decree passed by Trial Court against him through an application, which was dismissed---Validity---Case of the petitioner was that he was not properly served in the suit---Record reflected that the suit under O. XXXVII, C.P.C. was instituted on 25.05.2022 on which the summons was ordered to be issued to the defendant/petitioner for 14.06.2022---On the said date it was observed that service upon the defendant was effected, however, summons was again ordered to be issued along with affixation at conspicuous place/address of the defendant---Copies of both the summons were available on record and though it had been stated in the report of the process server that the defendant had received the same yet his signatures were not obtained in acknowledgement of their receipt---Rule 16 of O. V, C.P.C., required the Serving Officer/Process Server to obtain signature of the defendant while delivering him a copy of the summons personally---Thus, the requirement of law had not been properly adhered to in the instant case inasmuch as signatures or thumb impressions of the petitioner had not been apparently obtained in acknowledgement of receipt of the summons nor was it stated in the reports of Process Server that signatures of the petitioner were required upon delivery of the summons in acknowledgement of service endorsed on the original summons---Necessary pre-conditions for invoking R. 17 of O. V, C.P.C., i.e. refusal of the petitioner or his agent to sign the acknowledgement or failure of the Process Server to find the petitioner after using all due and reasonable diligence were clearly missing, therefore, procedure adopted by the Process Server was clearly not under the said rule---Even otherwise a copy of the summons was not specified to have been affixed on the door or some conspicuous part of premises of the petitioner to satisfy requirement of said rule---Additionally, no further inquiry in the matter was carried out under R. 19 of O. V, C.P.C., facilitating examination of the Serving Officer---Service of the defendant/petitioner shown to be affected in the proceedings of the suit did not seem to be proper and in accordance with the law on the subject, in circumstances---Revision petition was accordingly allowed.

Abdul Rehman Wahla v. Dr. Sher Dil Batra PLD 1986 SC 234; Amar Jeet Singh v. Sant Singh 2022 CLC 6; Shahzad Akhtar v. Farukh Jameel 2023 MLD 1118; Cotton Export Corporation of Pakistan (Pvt.) Limited v. Messrs Saleem Rehman, Model Cotton Ginning and Pressing Factory (Pvt.) Limited and others 1994 CLC 308; United Bank Ltd. v. Noor Textile Mills Limited and 7 others PLD 1995 Kar. 162 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

Hamid Iftikhar Pannu, Saad Hayat Pannu and Muhammad Mansoor Ali Sial for Petitioner.

Fazal-ur-Rehman Butt for Respondent.

P L D 2024 Lahore 238

Before Shahid Jamil Khan, J

MUHAMMAD RAZZAQ and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 5973 of 2017, decided on 16th November, 2023.

Police Order (22 of 2002)---

----Art. 37---Police reforms---Provincial and District Public Safety Commissions---Non-establishment of---Statutory obligation of the Provincial government---Devolution of political, administrative and financial responsibility and authority was one time act which could not be withdrawn after insertion of the Art. 140A in the Constitution---Moreover, there was difference between delegation and devolution---Delegation was a power of the superior forum like Provincial government, which could be withdrawn at any time---Devolution of responsibility and authority under the Constitution once given could not be revoked---Though the dissolution of local government and role of the provincial government after devolution is not directly in question yet, there had to be a continuity for elected representation of the people which was essence of the Constitution for exercising sovereignty---Article 37 of the Police Order, 2002, if read with the Preamble and Article 140A of the Constitution, clarified without any doubt that a public check, through their chosen representatives, was envisaged on the misuse of power by the police---At least for the purpose of the Art. 37, in absence of newly elected representation, the representatives lastly elected by the people shall continue to represent the people unless newly elected representatives replaced them---There cannot be any gap for the people to exercise sovereignty through their elected representation---Provincial government was directed to comply with the obligation of Art. 37 of the Police Order, 2002, within 30-days, without fail by nominating amongst last representatives of the respective local government.

Usama Khawar Ghumman, assisted by Hasan Safdar Khan, Rana Zohaib, Asfand Javed, Rai Riaz Ahmad, Zohaib Ali Sidhu, Syed Ali Talab, Ch. Aqib Ali, Ch. Muslim Abbbas, Dabeer Ali Awan, Abbas Shehryar Ch. and Muhammad Afzal Dharala for Petitioners.

Syed Sajjad Haider Rizvi, Assistant Attorney General for Federation of Pakistan.

Khalid Ishaq, Advocate General, Punjab, Waseem Majeed Malik, Additional Advocate General, Punjab, Muhammad Afzal Bashir, Deputy Secretary (Law) Home Department and Syed Tahir Raza, Section Officer (P-III), Home Department for Province.

P L D 2024 Lahore 244

Before Shams Mehmood Mirza, J

ABDUL SABOOR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 16567 of 2021 (and other connected petitions), decided on 2nd September, 2022.

(a) Anti-Money Laundering Act (VII of 2010)---

----Ss. 2 (xviii), 3, 8, 9 & Schedule-I---Income Tax Ordinance (XLIX of 2001), Ss. 192, 192A, 194 & 199---Constitution of Pakistan, Arts. 12 & 199---Constitutional petition---Money laundering---Investigation---Predicate offence---Directorate of Intelligence and Investigation (I&I), Inland Revenue---Status---Petitioners were aggrieved of investigation of offence of money laundering by Directorate (I&I), Inland Revenue, during proceedings under Income Tax Ordinance, 2001---Validity---Conduct of investigation of an offence was an essential part and closely related to procedure---Authority which was subsequently added as investigating agency had no bar on its powers and authority to investigate cases in which the offense was committed in the past---Purpose of Anti-Money Laundering Act, 2010, was to prevent money laundering and to attach/confiscate properties generated from the proceeds of crime which had its genesis in the predicate offence---Commission of predicate offence was prerequisite for proceedings under Anti-Money Laundering Act, 2010, to commence before the Court---Proceeds of crime could only materialize once a predicate offence was committed---As Anti-Money Laundering Act, 2010, was a penal statute therefore, it could have no retrospective operation by virtue of Art. 12 of the Constitution---Any proceedings commenced under Anti-Money Laundering Act, 2010, could not sustain in respect of transaction which crystallized prior to the introduction of Ss. 192, 192A, 194 & 199 of Income Tax Ordinance, 2001, as predicate offences through amendment made in Schedule-I of Anti-Money Laundering Act, 2010---Punishment prescribed for the offence under Anti-Money Laundering Act, 2010, did not relate to the commission of predicate offence rather it was the offence of money laundering that had been made punishable---Date of commission of predicate offence was not material---Offence of money laundering that could be proceeded must be committed after Anti-Money Laundering Act, 2010, had come into force or inclusion of predicate offence in Schedule-I to Anti-Money Laundering Act, 2010---Question Whether any person was in possession of any property derived from proceeds of crime was a question of fact ---High Court directed investigating officer to strictly adhere to law laid down by superior courts and declined to interfere in the process of investigation---Constitutional petition was dismissed, in circumstances.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Ghulam Muhammad v. Secretary Housing and others 2018 CLC 176 and Ghulam Hussain Baloch and another v. National Accountability Bureau and others PLD 2007 Kar. 469 rel.

Mustafa Impex and others v. Federation of Pakistan PLD 2016 SC 808; F.M. Textile Mills and others v. Federal Board of Revenue and others 2017 PTD 1875; Nestle Pakistan Limited and another v. The Federation of Pakistan and others 2021 PTD 521; Assistant Director Intelligence and Investigation v. Messrs B.R. Herman PLD 1992 SC 485; A.M.Z. Spinning and Weaving Mills (Pvt.) Limited v. Federation of Pakistan 2009 PTD 1083; Commissioner Inland Revenue v. MCB Bank Limited 2021 SCMR 1325; Amanullah Khan v. The Federal Government of Pakistan PLD 1990 SC 1092; Abid Hassan v. PIAC 2005 SCMR 25; Sarhad Development Authority v. Syed Muhammad Latif 2015 SCMR 1061; Government of Baluchistan v. Azizullah Memon PLD 1993 SC 341; Election Commission of Pakistan v. Province of Punjab PLD 2014 SC 668; Mandi Hassan v. Muhammad Arif PLD 2015 SC 137; Secretary Housing and Physical Environmental Plannings v. Muhammad Ramzan 2018 SCMR 301; Muhammad Tariq Badr v. National Bank of Pakistan 2013 SCMR 314; Sheikh Fazal Ahmad v. Raja Ziaullah Khan PLD 1964 SC 494; Qazi Faez Isa v. The President of Pakistan PLD 2001 SC 1; Rafi Ullah v. The State 2019 PCr.LJ 1608; Pakistan Mental and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956; Chief Commissioner IR v. Messrs Giggy Food (Pvt.) Limited C.P. No. 1622-L of 2018; Pakistan Tobacco Co. Limited v. Karachi Municipal Corporation PLD 1967 SC 241; S. Zafar Ijaz v. Chairman Steel Mills Corporation 1998 PLC (C.S.) 777; Adamjee Insurance Company Limited v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Ghulam Hussain Baloch and another v. National Accountability Bureau and others PLD 2007 Kar. 469 and Muhammad Idress and another v. The State and others 2021 SCMR 612 ref.

(b) Anti-Money Laundering Act (VII of 2010)---

----S. 9---Call-up notice---Ingredients---Call-up notice must at the bare minimum specify information regarding alleged commission of offence of money laundering and details of property which has allegedly been acquired from proceeds of crime or contravention of any provision of Anti-Money Laundering Act, 2010---Notice which does not fulfill such requirements cannot be termed as a valid notice under S. 9 of Anti-Money Laundering Act, 2010.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903 and Assistant Director Intelligence and Investigation Karachi v. Messrs B.R. Herman and others PLD 1992 SC 485 rel.

(c) Interpretation of statutes---

----Rules, framing of---Scope---Where Legislature intends that rules are required to be framed for a certain function under the statute to be performed or carried out, it makes provision for it by requiring it to be done through the prescribed manner.

(d) Anti-Money Laundering Act (VII of 2010)---

----Ss. 8 & 9---Inquiry and investigation---Non-framing of rules---Effect---Process for inquiry/investigation under Anti-Money Laundering Act, 2010 and Standard Operating Procedure is expansive and envisages rigorous and intrusive regime that does not warrant any further guidance to investigating officers through rules---Standard Operating Procedures are consistent with the provisions of Income Tax Ordinance, 2001 and Directorate (I&I) Inland Revenue can frame in-house rules for conducting investigation of offences of money laundering---Rules are neither necessary nor inevitable for carrying out functions of investigating and prosecuting agencies under sections 8 and 9 of Anti-Money Laundering Act, 2010---Non-framing of rules does not impair functions of investigating officer in any manner.

M.A.U. Khan v. Rana M. Sultan and another PLD 1974 SC 228; M.S. Khawaja v. The State PLD 1965 SC 287; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Director, Central Bureau of Investigation v. Niyamavedi AIR 1995 SCW 2212 rel.

(e) Anti-Money Laundering Act (VII of 2010)---

----S. 21(2)---Criminal Procedure Code (V of 1898), Ss. 173 & 202---Term "complaint"---Scope---Term "complaint" mentioned in S. 21(2) of Anti-Money Laundering Act, 2010, is not the same complaint as contemplated by S. 202, Cr.P.C.---Such complaint is in the nature of report/challan to be filed by investigating/prosecuting agency in terms of S. 173, Cr.P.C. before appropriate Court.

Manzoor Ahmad Akhtar v. The Special Judge Central, Lahore another PLD 1995 Lah. 1; Rafi Ahmed and others v. Special Judge Central, Lahore and another PLD 2010 Lah. 692 and Said Bakhshad v. The State PLD 2020 Pesh. 129 rel.

(f) Interpretation of statutes---

----Harmonious construction--- Scope--- Rule of harmonious construction dictates that the provisions be construed such that as between two or more reasonable constructions of their terms which saves them should prevail---Statue must be read as a whole to ascertain meaning of its various provisions---Courts must interpret offending provisions in such a manner so as to give effect to each of them.

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

----S. 4(l)---Investigation---Scope---Investigation of cognizable offence or non-cognizable offence has reference to procedure which does not affect substantive rights of accused.

(h) Interpretation of statutes---

----Substantive and procedural law---Scope---Litigant has a vested right in substantive law but no such right exists in procedural law.

The Commissioner of Income Tax v. Asbestos Cement Industries Limited 1993 SCMR 1276 rel.

(i) Anti-Money Laundering Act (VII of 2010)---

----Ss. 8 & 9---Criminal Procedure Code (V of 1898), S. 5(2)---Investigative process---Scope---Investigative process prescribed by provisions of sections 8 and 9 of Anti-Money Laundering Act, 2010, are closely connected with attachment of property involved in the offence of money laundering---Procedure so provided is distinct and separate that bears no resemblance with the procedure envisaged by Criminal Procedure Code, 1898.

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

----S. 154---First Information Report---Object, purpose and scope---Principal objective of F.I.R. is to set the law in motion for initiation of investigation by police officer for the purpose of collecting evidence relating to crime.

Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 rel.

(k) Anti-Money Laundering Act (VII of 2010)---

----S. 9---First Information Report, registration of---Scope---Investigating officer is empowered to register FIR against accused person under Anti-Money Laundering Act, 2010---Inquiry/investigation can be carried out after registration of FIR under Anti-Money Laundering Act, 2010, when the person to whom notice under S. 9 of Anti-Money Laundering Act, 2010, has been issued is not forthcoming in providing information to investigating officer.

(l) Interpretation of statutes---

----Retrospective effect---Scope---There is no prohibition on the Parliament to make retrospective legislation, particularly when such intention is expressly or impliedly clear from the text of the statute.

(m) Anti-Money Laundering Act (VII of 2010)---

----S. 3, Explanation-II---Predicate offence, commission of---Scope---Mere allegation of commission of predicate offence suffices for registration of FIR and initiation of inquiry/investigation under Anti-Money Laundering Act, 2010.

(n) Anti-Money Laundering Act (VII of 2010)---

----Ss. 3, 8, 9 & Sched.-I---Income Tax Ordinance (XLIX of 2001), Ss. 192, 192A, 194 & 199---Compounding of offence---Principle---Predicate offences mentioned in Schedule-I of Anti-Money Laundering Act, 2010, in relation to Income Tax Ordinance, 2001, are all compoundable---In case an accused compounds predicate offence, the trial of offence of money laundering continues and is decided on its own merits---It is not necessary for both the trials to be held simultaneously.

(o) Anti-Money Laundering Act (VII of 2010)---

----S. 9 (5)---Attachment of property---Duration---Attachment of property, under S. 9(5) of Anti-Money Laundering Act, 2010, ceases to have effect if on conclusion of trial of both the offences of money laundering and predicate offence the person concerned is acquitted.

Petitioners By:

Imtiaz Rashid Siddiqui, Barrister Sheheryar Kasuri, Raza Imtiaz Siddiqui, Jamshaid Alam, Sabeel Tariq Mann, Qadeer Ahmad Kalyar and Muhammad Hamza Sheikh (in W.Ps. Nos.16567, 27072, 67652 and 28111 of 2021)

Barrister Muhammad Umer Riaz, Saqib Haroon Chishti, Haroon Rashid Mir, Waqas Umer and Rana Rehan (in W.Ps. Nos. 56349, 67310, 56280, 60213 of 2021 and 3646 of 2022).

Ashtar Ausaf Ali, Barrister Asad Rahim Khan, Ms. Nimra Arshad and Khalil Ahmed Bhulla (in W.Ps. Nos.24755 and 24757 of 2021).

Mohammad Shoaib Rashid, Waleed Khalid and Faizan Daud (in W.Ps. Nos. 21462 of 2022, 80285 of 2021 and 363 of 2022).

Muhammad Ajmal Khan, Mian Ejaz Latif and Malik Farhan Babar (in W.Ps. Nos. 48665, 18942, 38830, 48846 of 2021, 12661,3678, 3189, 12657, 3675, 12660 and 12662 of 2022).

Muhammad Mohsin Virk, Tahir Shabbir, Nasir Khan, Malik Farhan and Muhammad Fezan Saleem (in W.Ps. Nos. 37934, 39048, 39045, 39058, 42302, 49013, 45025, 67756 and 74919 of 2021).

Syed Tassadaq Murtaza Naqvi and Syed Tassadaq Mustafa Naqvi (in W.P. No.74306 of 2021).

Shahbaz Butt, Khurram Shahbaz Butt, Muhammad Ahsan Mahmood Butt, Asad Abbas Raza, Muhammad Usman Zia, Muhammad Ibraheem Hassan, Mudassir Aftab, Muhammad Yaqoob, Muhammad Danish Zuberi and Aqeel Jffar (in W.Ps. Nos. 12031, 34504, 35964, 35967, 35977, 35989, 36873, 36889, 36883, 36900, 42551, 46861, 47618, 48978, 52337, 55404, 27704, 29710, 29716, 39236, 39243, 39249, 39253, 45551, 57164, 52333, 58076, 44232, 59967, 60012, 65189, 63615, 70197 of 2021 and 50 of 2022).

Ch. Muhammad Arfan Faiz Kalaar, Ch. Rizwan Kashif and Ch. Adnan Faiz Kalaar (in W.P. No. 25509 of 2022).

Muhammad Mansha Sukhera, M. Muqadam Sukhera and Malik Muhammad Ali Awan (in W.Ps. Nos.9830, 9839, 29000, 29005, 29011 and 30179 of 2022).

Hashim Aslam Butt, M. Hafeez Uppal, Syed Saqlain Hussain, Asad Tariq and Ahmad Yar Khan (in W.P. No.28990 of 2022).

Touqeer Ahmad Ranjha, Shahzaib Chattha and Ali Ijaz Shah (in W.Ps. Nos.4624, 4626, 12486, 15993 and 16001 of 2022).

Riaz Ahmed Ch. (in W.P. No. 71322 of 2021).

Mukhtar Ahmad Awan (in W.P. No. 26299 of 2022).

Ghulam Ahmed Ansari (in W.P. No. 35694 of 2021).

Mian Muhammad Naseer and Zunaira Pattrick (in W.P. No. 39503 of 2021).

Mian Danish Quddous (in W.P. No. 363, 21462 of 2022 and 80285 of 2021).

S.M. Raheel, Qamar ul Haq Bhatti, Muhammad Imran ul Haq Bhatti and Murtaza Naeem (in W.Ps. Nos. 36488 and 78377 of 2021).

Farhan Shahzad, Zohaib Ali Sidhu, Syed Ali Tarab and Ghulam Ahmed Ansari (in W.Ps. Nos. 57350, 56291, 57342, 76686, 76689, 71303, 76711, 72157, 72160 of 2021 and 6284 of 2022).

Mian Shakeel Ahmad (in W.P. No. 81801 of 2021).

Riaz Ahmed Khan (in W.P. No. 54711 of 2021).

Syed Abid Raza Kazmi (in W.Ps. Nos. 61531 and 61524 of 2021).

Rana Rehan (in W.P. No. 60213 of 2021).

Muhammad Zikria Sheikh, Ch. Amanat Ali and Rai Shaban Ali Kharal (in W.P. No. 80410 of 2021).

Hafeez ur Rehman Ch., Malik Asif Iqbal, Noor Dad Chaudhary and Ms. Roha Khan (in W.Ps. Nos. 30005, 30008 and 21623 of 2021).

Muhammad Naeem Shah (in W.Ps. Nos. 49933 and 50183 of 2021).

Muhammad Naeem Munawar (in W.Ps. Nos. 5087, 34780 and 34695 of 2022).

Muhammad Nasir Khan (in W.P. No.71354 of 2021).

Asif Shahdat, Ahmad Hassan, Rana M. Khurram Rafique and Rana M. Umer Rafique (in W.Ps. Nos.29771 and 71399 of 2021).

Muhammad Akram Sheikh (in W.Ps. Nos.79268, 37382 of 2021 and 15377 of 2022).

Aftab Ahmed Bajwa (in W.P. No.42491 of 2021).

Shahnawaz (in W.P. No. 54858 of 2021).

Tanveer Ahmed and Sh. Zafar ul Haq (in W.Ps. Nos. 68138, 68534, 71353, 71354 and 71355 of 2021).

Muhammad Ayub Sheikh (in W.P. No. 50533 of 2021).

Syed Imtiaz Hussain (in W.P. No.72160 of 2021).

Muhammad Ashfaq Mughal (in W.P. No.36529 of 2022).

Shahzad Hassan Sheikh (in W.Ps. Nos. 23432 and 23428 of 2021).

Shakeel Ahmad Basra, Ijaz Rehmat Basra and Mirza Mubashir Baig (in W.P. No. 30611 of 2022).

Mudassar Shuja ud Din, Behwal Asad Rasul, Touseef Arshad and Shahid Pervez Jami (in W.Ps. Nos. 26906, 77267, 77978, 77986, 77239, 76158, 78051, 78231, 81539, 78010, 75273, 81529, 31599 and 61491 of 2021).

Rana Usman Habib Khan, Noreen Fouzia and Haseeb Arif (in W.Ps. Nos. 48846 of 2021 and 3189 of 2022).

Muhammad Ijaz Ali Bhatti (in W.P. No.42983 of 2021).

Waseem Ahmed Malik (in W.Ps. Nos.30790 and 75214 of 2021).

Muhammad Imran Rasheed (in W.Ps. Nos. 74742, 71849 and 71877 of 2021).

Imran Muhammad Sarwar (in W.Ps. Nos.77284, 77186 of 2021).

Mustafa Kamal (in W.Ps. Nos. 1253 of 2021 and 25389 of 2022).

Haris Tanveer Rana and Mian Tabassum Ali (in W.P. No.3 of 2022).

Mian Shakeel Ahmad (in W.P. No. 81808 of 2021).

Mahar Saghir Ahmad (in W.Ps. Nos.29011 and 29000 of 2022).

Sh. Muhammad Akram(in W.Ps. Nos. 74742, 37382, 71877, 79268 and 71849 of 2021).

Omer Wahab and Muhammad Ahsan Nawaz Sial (in W.P. No. 38830 of 2021).

Tanveer Ahmad, Shahid Rafiq Mayo and Ms. Nasreen Naseer-ud-Din (in W.Ps. Nos. 63138, 68534, 71355, 71354 and 71353 of 2021).

Barrister Osama Zafar (in W.P. No.71654 of 2021).

Zafar Iqbal Mian (in W.Ps. Nos. 76889, 76884 of 2021, 17981, 21673, 26529, 30166 and 37408 of 2022).

Mian Muhammad Arshad (in W.P. No. 48194 of 2021).

Syed Muhammad Ghazanfar (in W.P. No. 50533 of 2021).

Ghulam Hussain Awan and Ch. Zeeshan ur Rehman (in W.P. No. 44548 of 2021).

Barrister Danyal Ijaz Chadhar (in W.P. No.80680 of 2021).

Shehzad Hassan Sheikh (in W.Ps. Nos.23432 and 23428 of 2021).

Usman Khalil, Ali Ijaz Shah, Tuqeer Ahmad Ranjha and Shahzaib ul Hassan Chattha (in W.Ps. Nos.4624, 4626, 12486, 15993 and 16001 of 2022).

Ch. Qamar uz Zaman, Muhammad Waqar Akram, Muhammad Khalid, Rai Inam Qadir, Arif Munir and Ms. Zeba Munir (in W.P. No.39064 of 2021).

Mian Muhammad Naseem (in W.P. No. 39503 of 2021).

Muhammad Amir Latif Sehr Bhutta (in W.P. No.38746 of 2021).

Muhammad Naseem Munawar (in W.P. No.5087 of 2022).

Farrukh Ilyas Cheema (in W.P. No.76686 of 2021).

Ch. Anwaar ul Haq Arif (in W.P. No.59858 of 2021).

Zahid Ateeq Choudhry, M. Ehsan Awan and Rashid Khan (in W.P. No.22738 of 2021).

Fahad Azhar Butt (in W.Ps. Nos. 35710, 23666 and 23584 of 2022).

Ikram-ul-Haq Sheikh (in W.P. No.31668 of 2022).

Respondents By:

For Federation

Azmat Hayat Khan Lodhi, Assistant Attorney General for Pakistan (in all cases).

For FBR

Sarfraz Ahmed Cheema (in W.Ps. Nos. 65189, 22738, 37934, 27072, 23432, 28111, 24755, 24757, 60219, 61524, 29716, 29710, 67756, 71322, 76711, 76686, 80680, 80285, 77186, 63615, 67652, 81808, 77284, 69545, 74919, 38830, of 2021 and 363, 3189, 1406, 4624, 3646, 4626, 6284, 12031, 12486, 15993, 16001, 19916, 19910, 19913, 19906, 21462, 29011, 23666, 23584 and 26299 of 2022).

Khawar Ikram Bhatti (in W.Ps. Nos. 29771, 31599, 38746, 26906, 60012, 59967, 78377, 81539 and 70197 of 2021).

Riaz Begum and Muhammad Waseem Malik (in W.Ps. Nos. 61491, 71354, 71353, 71355, 71399, 75214, 77978, 77986, 78010, 50533, 52333, 39058, 39045, 39064, 61531, 44548, 60213, 80410 of 2021 1253, 9830, 9839, 12661, 15377, 12660, 26529, 37408, 48194 and 3678 of 2022).

Zain ul Abideen Bukhari (in W.Ps. Nos.27704, 77267, 78231, 81529, 42302, 42983, 48846, 48978, 56291, 68138, 68534, 27072 of 2021, 3675, 16507, 17981, 21673, 25509, 34695, 34780 and 25389 of 2022).

Adeel Shahid Karim (in W.Ps. Nos.36873, 34504, 35989, 36889 and 36883 of 2021).

Mrs. Amina Parveen (in W.Ps. Nos. 21623, 30005, 39243, 39236, 30008, 39249, 39253, 55404 and 67310 of 2021).

Malik Abdullah Raza (in W.Ps. Nos.35964, 35967, 35977, 36900 of 2021 and 3646 of 2022).

Yahya Johar (in W.Ps. Nos. 74306, 76158, 76889, 78051, 30179, 37382, 39503, 54858, 60206, 71849, 71877, 75273 and 76884 of 2021).

Ch. Muhammad Imtiaz Elahi (in W.Ps. Nos. 30790, 61521, 60213, 39045, 39058, 39064, 44548, 50533, 52333 and 48194 of 2021).

Ahmed Pervaiz and Scheherezade Shaharyar (in Instant petition and in W.Ps. Nos. 18942, 79269, 16567, 79268 of 2021 and 74742, 35710, 39982 and 3 of 2022).

Sohail Zahid Butt (in W.P. No.30166 of 2022).

Faran Ahmad Cheema (in W.Ps. Nos.76686, 80680, 80285 and 77186 of 2021).

Izhar ul Haque for Respondents Nos.2 to 4 (in W.P. No.42491 of 2021 and 31688 of 2022).

Ch. Muhammad Ashfaq Bhullar (in W.Ps. Nos. 50337, 50183, 46861 and 49933 of 2021).

Ms. Shagufta Ijaz (in W.Ps. Nos. 44232 and 47618 of 2021).

Aamir Riaz Minhas, Sardar M S Tahir, M. Yasir Khan and Zafar Iqbal Bhatti (in W.Ps. Nos.76689, 48665, 49013, 61491,16567 and 42302 of 2021).

Ch. Muhammad Zafar Iqbal, Mohsin Ali and M. Wasaf Masood (in W.Ps. Nos. 48665, 49013, 76689, 71303, 72157, 72160 of 2021, 5087, 12657, 29000, 29005, 28990, 30166 and 12262 of 2022).

Anas Sheikh (in W.Ps. Nos.23428 of 2021 and 34700 of 2022).

Abu Bakr Shahzad (in W.Ps. Nos. 37011 and 54401 of 2021).

Ch. Umar Imran Mayo for Respondents Nos.3 and 4 (in W.Ps. Nos.56280 and 56349 of 2021).

Mian Faisal Naseer (in W.P. No.29716 of 2021).

Ch. Imran Masood for Respondents Nos.3 and 4 (in W.Ps. No.56280, 56349 of 2021 and 6039 of 2022).

Usman Azam Gondal (in W.P. No.29710 of 2021).

Ms. Nadia Bashir Chaudhary, Legal Advisor on behalf of Director Intelligence (in W.Ps. Nos. 45025, 42551, 77239, 36488 and 50 of 2022).

Representatives of FBR in all cases

Dr. Khalid Malik Director and Dr. Tanvir Hussain Bhatti Additional Director, (I&I) Islamabad.

Ms. Sarkhshan Khalid, Deputy Director (I&I) Faisalabad.

Abid Rasool, Additional Director (I&I) Multan.

Muhammad Irfan, Additional Director (I&I) Lahore.

For Customs Department

Huma Shahid Butter (in W.P. No 74742 of 2021).

P L D 2024 Lahore 300

Before Muhammad Ameer Bhatti, CJ, Masud Abid Naqvi and Raheel Kamran, JJ

MUHAMMAD ASLAM---Petitioner

Versus

JUDGE FAMILY COURT, FEROZEWALA and others---Respondents

Writ Petition No. 126306 of 2017 (and other connected Petitions), decided on 13th February, 2024.

(a) Interpretation of statutes---

----Reading in, principle of---Applicability---Reading in of words or meaning into a statutory provision is not permissible when its meaning is otherwise clear---Courts generally abstain from providing omissions in a statute.

Messrs State Cement Corporation of Pakistan Ltd. v. Collector of Customs, Karachi and another 1998 PTD 2999; Abdul Haq Khan and others v. Haji Ameerzada and others PLD 2017 SC 105 and Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566 rel.

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

----S. 14(2)(c)---Constitution of Pakistan, Arts. 10A & 199---Constitutional petition---One right of appeal---Question of law---Determination---Petitioners were aggrieved of provision of S. 14(2)(b) and (c) of Family Courts Act, 1964 curtailing right of appeal for maintenance fixed for a meager amount of Rs.5000/- in aggregate---Full Bench of High Court was constituted primarily to consider following two questions: first whether a decree for maintenance granted for an amount less than Rs.5000/- per month to each of the plaintiffs is appealable under S. 14(2)(c) of Family Courts Act, 1964 by judgment debtor if aggregate amount of decree is more than Rs.5000/- per month?; and second whether Clauses (b) and (c) of Subsection (2) of S. 14 of the West Pakistan Family Courts Act, 1964 are not ultra vires to the Constitution of Islamic Republic of Pakistan, 1973 after insertion of Art. 10A in the Constitution?---Plea raised by petitioners was that right of one appeal must be provided---Validity---Right to fair trial and due process is guaranteed under Art. 10A of the Constitution, for determination of civil rights and obligations of a person---There is nothing in the language of Art. 10A of the Constitution that guarantees at least one right of appeal against all such determinations---Curtailment of right of appeal under S. 14(2)(c) of Family Courts Act, 1964 is in very limited circumstances which does not unreasonably restrict access to justice when High Court, in its supervisory jurisdiction under Art. 199 of the Constitution, keeps a check on whether judgment assailed in such proceedings is based on any patent violation of law, disregard of evidence available on file or in denial of fair procedure which ought to have been followed in facts and circumstances of the case---Provision of Art. 25(3) of the Constitution permits special provisions to be made for the benefit of women and children, and the right of appeal of a husband or father has been ousted under S. 14 (2)(c) of Family Courts Act, 1964 only in such limited cases where amount of maintenance was deemed by the Legislature to be meager---High Court directed Government of Punjab to operationalize Punjab Legal Aid Agency to ensure effective enforcement of rights of access to justice and fair trial as guaranteed under Arts. 9 & 10A of the Constitution to women and children, and to provide legal aid services to indigent persons in family matters---Questions of law were answered accordingly.

Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Sarfraz v. Additional District Judge and 5 others 2017 YLR 1684; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672; Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another AIR 1955 SC 781; Thomas Dana v. State of Punjab AIR 1959 SC 387; Saiyyid Abula'la Maudoodi and 2 others v. The Government of West Pakistan and another PLD 1964 SC 673; Muhammad Latif Kashif v. Judge Family Court/Civil Judge, 1st Class, Bahawalpur and 3 others PLD 2005 Lah. 296; Shaukat Ali v. Election Commission of Pakistan through Secretary, Islamabad and others 2018 SCMR 2086; Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802; Saif-Ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Uzin Export Import Enterprises For Foreign Trade, Karachi v. Union Bank of Middle East Ltd. PLD 1994 SC 95; Constitution Petitions Nos. 21, 22 and 23 of 2023 and Federation of Pakistan and others v. Public At Large and others PLD 1988 SC 202 ref.

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

----S. 14 (2)(c)---Constitution of Pakistan, Arts. 199, 203D & 203G---Constitutional petition---Maintainability---Section 14(2)(c) of the Family Courts Act, 1964---Repugnancy to Injunctions of Islam---Federal Shariat Court, jurisdiction of---Petitioners were aggrieved of provision of S. 14(2)(b) and (c) of Family Courts Act, 1964 curtailing right of appeal for maintenance fixed for a meager amount of Rs.5000/- in aggregate and sought it to be declared as un-Islamic---Validity---In view of the provisions of Art. 203D of the Constitution, it was essentially the authority of the Federal Shariat Court, if any, to declare any law repugnant to Injunctions of Islam---Jurisdiction of High Court in such regard was expressly barred under Art. 203G of the Constitution---High Court declined to declare provision of S. 14(2)(c) of Family Courts Act, 1964, repugnant to Injunctions of Islam.

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

----S. 17A (3)---Annual increase in maintenance---Principle---Annual increase under S. 17A (3) of Family Courts Act, 1964 comes into operation where Family Court has failed to prescribe annual increase in maintenance while passing judgment and decree---Annual increase under S. 17A (3) of Family Courts Act, 1964 does not form part of adjudication resulting in decree, however, the same is automatically enforceable by operation of law.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternative to right of appeal---Scope---Remedy under Art. 199 of the Constitution cannot be equated with right of appeal provided under any law---Former is confined to interference in cases of violation of law whereas the latter includes arriving at any point of view after reappraisal of evidence.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246 and M. Hamad Hassan v. Mst. Isma Bukhari and 2 others 2023 SCMR 1434 rel.

Muhammad Asif Mian for Petitioner.

Muhammad Shan Gul, Advocate General and Qamar Zaman Qureshi, Additional Advocate General for Government of Punjab.

Abaid Ullah Bhatti, Adnan Tariq, Muhammad Asif Chohan and Mian Muhammad Sajid for Respondents Nos.3 and 4.

Muhammad Shahzad Shaukat, Zafar Iqbal Kalanori, Khalid Ishaq and Malik Muhammad Awais Khalid, Amici Curiae.

P L D 2024 Lahore 315

Before Jawad Hassan, J

NETHERLANDS FINANCIERINGS MAATSCHAPPIJ VOOR ONTWIKKELINGSLANDEN

N.V. (F.M.O.)---Petitioner

Versus

MORGAH VALLEY LIMITED and SECP---Respondents

Civil Original No. 08 of 1989, decided on 20th December, 2022.\

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

----S. 89-A, O. IX-A & IX-B---Alternative Dispute Resolution Act (XX of 2017), S. 2 (i)---Mediation---Object, purpose and scope---Mediation is used to settle contract, interpersonal and human resource conflicts---Mediation involves intervention of a third person, or mediator, into a dispute to assist parties in negotiating jointly acceptable resolution of issues in conflict---Mediator meets with the parties at a neutral location where parties can discuss the dispute and explore a variety of solutions---Each party is encouraged to be open and candid about its own point of view---Mediator, as a neutral third party, can view a dispute objectively and assist the parties in considering alternatives and options that they might not have considered---Mediator is neutral and does not stand for personal benefit from the terms of settlement, and is impartial in that he or she does not have a preconceived bias about how the conflict should be resolved---Mediation is a process where parties meet with mutually selected impartial and neutral person who assists them in negotiation of their differences---Such process brings in hope of getting parties to discuss settlement through a trustworthy and skilled mediator who encourages settlement freeing up valuable court time and resources.

(b) Companies Act (XIX of 2017)---

----Ss. 6, 276 & 277---Companies (Mediation and Conciliation) Regulations, 2018, Reglns. 3, 4, 9, 10 & 11---Company dispute---Mediation---Company Judge, duty of---Dispute between the parties was non-payment of loan amount extended by petitioner company to respondent company---High Court persuaded the parties to settle their dispute through mediation---Validity---Due to ever growing economic activism, stimulation and expansion of international investment, trade entities are eagerly and consistently falling in interactions, deals and transactions, not only with local citizens but with foreign business communities as well---In course thereof, parties aspire certain securities safeguarding and protecting their investments, interests and rights as well as guaranteeing resolution of trade/commercial/corporate disputes at the earliest and at the lowest costs of time and money, that too, under the umbrella of law---Using mediation as a technique to resolve trade/commercial/corporate disputes has now been transformed in a global movement---It is duty of Company Judge to protect interest of company and minimize adverse effect to it---Based on the strong principles to safeguard the interest of company and to resolve corporate dispute developed by Supreme Court in various judgments, provisions of Ss. 276 & 277 of Companies Act, 2017, can be invoked in order to protect interest of company and the Court can initiate process of Early Neutral-Party Evaluation ("ENE") and then mediation---Parties are encouraged throughout the litigation process to attempt to settle disputes, for good reason, and such decision may encourage more litigants to explore settlement possibilities before being ordered to do so by the court---Mediation outcomes not only save time and money of parties, but it also reduces load of work in Courts as well as it is the most updated way on resolutions based on the "divine culture of peace"---Issue between the parties pertained only claim of debt amount, which issue stood settled in the way that receipt of amount was admitted by petitioner---Disputed debt claim stood thoroughly satisfied and there was no justification for winding up the "Company" in such a scenario---Petition was disposed of accordingly.

Daniels v The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312; Faisal Zafar and another v. Siraj-ud-Din and 4 others, GENOME Pharmaceuticals and SECP 2024 CLD 1; M.C.R. (Pvt.) Ltd., Franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639; Federation of Pakistan and others v. Attock Petroleum Ltd. Islamabad 2007 SCMR 1095; The Additional Registrar Company v. Al-Qaim Sugar Mills Ltd. 2021 CLD 931; Saudi Pak Industrial and Agricultural Investment Company Ltd. v. Chenab Limited 2020 CLD 339; Messrs U.I.G. (Pvt.) Limited through Director and 3 others v. Muhammad Imran Qureshi 2011 CLC 758; Messrs Alstom Power Generation through Ashfaq Ahmad v. Pakistan Water and Power Development Authority through Chairman and another PLD 2007 Lah. 581; Atlantic Pipe Corp. (304 F.3d 135 (1st Cir. 2002); African-American Slave Descendants' Litigation MLD No.1491, Lead Case No.02 C 7764 (307 F. Supp. 2d 977 (N.D. Ill. 2004); Messrs Afcons Infra Ltd. and another v. Messrs Cherian Varkey Constn (2010 (8) SCC 24); Pitamber B Ruchandani v. Arti Bharatbhai Ruchandani and 5 (O.J.Appeal No. 7 of 2014); James Churchill v. Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416; Halsey v. Milton Keynes General NHS Trust [2004] 1 WLR 3002; Kelly v. Miller and others [2014] EWCA Civ 1151; Wright v. Michael Wright Supplies Ltd [2013] EWCA Civ 234; Ghaith v Indesit Company UK Ltd. [2012] EWCA Civ 642; DK (Iraq) v. Secretary of State for the Home Department [2008] EWCA Civ 1169; Ezsias v. Welsh Ministers [2008] EWCA Civ 874; R (on the application of) v. Birmingham East and North Primary Care Trust [2008] EWCA Civ 465; Burchell v. Bullard and others [2005] EWCA Civ 358; Day v. Day [2002] EWCA Civ 1842; Circuits Ltd. v. Coates Brothers Plc [2002] EWCA Civ 333; Lt. General (Retd.) Mahmud Ahmad Akhtar and another v. Messrs Allied Developers (Private) Limited and others 2022 CLD 718; Shaheen Merchant v. Federation of Pakistan and others 2021 PTD 2126; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; D. G. Khan Cement Company Ltd. v. Government of Punjab through Chief Secretary, Lahore and others 2021 SCMR 834; Messrs Bahria Town (Pvt.) Ltd. through Manager (Operations) v. District Consumer Court, Rawalpindi and 2 others PLD 2022 Lah. 488; Ch. Fayyaz Hussain v. Province of Punjab and others PLD 2022 Lah. 1; The Additional Registrar Company v. Al-Qaim Textile Mills Limited 2021 CLD 931; Messrs Jet Green (Pvt.) Limited v. Federation of Pakistan and others PLD 2021 Lah. 770; Saif Ur Rehman Khan v. Securities and Exchange Commission of Pakistan (SECP) through Chairman and 2 others 2022 CLD 1460 and Tariq Iqbal Malik v. Messrs Multiplierz Group Pvt. Ltd. and 4 others 2022 CLD 468 rel.

Anwar Kamal, Senior Advocate Supreme Court with Muhammad Umar Khan Vardaq, Advocate Supreme Court for Petitioner.

Malik Qamar Afzal, Advocate Supreme Court with Malik Shahriyar Qamar Afzal, Raja Asad Iqbal Sati and Usman Jillani and Barrister Zainab Nasir along with Nasir Jabbar Khan for Respondent.

Muzaffar Ahmad Mirza, Executive Director, Legal Affairs with Adeel Peter and Hassnain Raza, SPP for SECP.

Malik Amjad Ali, Additional Advocate General.

M. Kamal Hassan, ENE Mediator with M. Bilal Riaz and Barrister Mian Sheraz Javaid.

Ch. Ali Abbas, Advocate for IDBL Bank with Officials of Bank namely Faizan Khan, Officer Grade-II, IDBL and Zargham Shah.

Sadique Akbar Abbasi, Advocate Supreme Court for NBP.

Attiq-ur-Rehman Kiani, Advocate Supreme Court, Official Liquidator (Applicant in C.Ms. Nos. 7 and 8 of 2022) Syed Bulent Sohail and Zarmeeneh Rahim.

Malik Aneeq Ali Khatana, Barrister S.M. Hafeez Shah.

Rashid Mehmood, Civil Judge 1st Class/Research Officer Lahore High Court (Rawalpindi Bench).

Date of hearing: 20th December, 2022.

Each will have to accept that those who live by the sword must risk dying by the sword as well. That is the inevitable risk of litigation…. What can the court do to prevent what, to those outside the litigation, may seem like an unseemly, or at least uncommercial, squabble? We can and we do encourage mediation, the earlier the better. It does have an extraordinary knack of producing compromise, even where the parties appear, at the start, to be intractably opposed.1

P L D 2024 Lahore 338

Before Mirza Viqas Rauf, J

WAHEED MEHMOOD and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary Election Commission of Pakistan and others---Respondents

Writ Petitions Nos. 4099, 4100, 4101, 4135 and 4151 of 2023, heard on 14th December, 2023.

Elections Act (XXXIII of 2017)---

----Ss. 17 & 20---Constitution of Pakistan, Art. 199---Constitutional petition---Election dispute---Delimitation process---Inconvenience of voters---Scope---Petitioners were aggrieved of delimitation scheme finalized by Election Commission---Validity---Office of Election Commission is creation of Constitution and its prime duty is to conduct elections in fair and transparent manner---One of the foundational steps to hold elections emerges from delimitation of constituencies which is undoubtedly within the domain of Election Commission---Before finalizing delimitation process, Election Commission has to ensure that every genuine objection is attended and dealt with properly---Objections of petitioners related to exclusion of a specific area (Patwar Circle) from one constituency and inclusion in other, which in their estimation would result into serious inconvenience to voters of the constituencies---Mere inconvenience of a segment of people could not be made basis for delimitation of constituencies---Suitability and proximity of an area to be part of a constituency was to be determined on the basis of various factors---It was not the job of High Court in constitutional jurisdiction to evaluate suitability or otherwise of delimitation of constituencies merely as per whims of a segment of society---Constitutional jurisdiction is always discretionary with the Court and person(s) approaching for such purpose has/have to establish negation of his/their vested rights---Constitutional mandate is not unbridled and High Court is precluded to exercise constitutional jurisdiction in an omnibus fashion---High Court declined to interfere in delimitation of constituencies by Election Commission---Constitutional petition was dismissed, in circumstances.

Workers' Party Pakistan through Athar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission, Islamabad PLD 2003 Lah. 125 rel.

Ch. Uffan Iftikhar for Petitioners (in instant Writ Petition as well as W.Ps. Nos. 4100 and 4101 of 2023).

Ch. Muhammad Mobeen Shazib for Petitioner (in W.P.No. 4135 of 2023).

Atif Nawaz Khokhar for Petitioners (in W.P. No.4151 of 2023).

Malik Muhammad Siddique Awan, Additional Attorney General for Pakistan with Zulqarnain Hyder, Assistant Director, Legal and M. Shabbir Abbas Bukhari, REC, Delimitation Committee, Election Commission of Pakistan for Respondents.

P L D 2024 Lahore 351

Before Ch. Abdul Aziz, J

Hafiz AMMAR YASIR---Petitioner

Versus

RETURNING OFFICER NA-59 and another---Respondents

Election Appeals Nos. 95, 98 and 99 of 2024, heard on 9th January, 2024.

(a) Elections Act (XXXIII of 2017)---

----Ss.132 & 133---Election expenses---Exclusive bank account---Object---Candidate contesting elections from more than one constituencies without opening of exclusive account for each of them, gets leverage of incurring expenditure more than the prescribed limit---Such failure frustrates mandate of Ss. 132 & 133 of Elections Act, 2017---Word "exclusive" used in Ss. 132 & 133 of Elections Act, 2017, is self-explanatory.

(b) Words and phrases---

----Exclusive---Meaning.

Black's Law Dictionary Tenth Edition rel.

(c) Elections Act (XXXIII of 2017)---

----Ss. 60 & 62---High Court (Lahore) Rules and Orders, Vol. IV, Chap. 12, Rr.11, 14 & 15---Election dispute---Affidavit---Identification of deponent---Non-appearance of deponent before Oath Commissioner---Effect---Appellant/candidate was aggrieved of rejection of his nomination papers by Returning Officer---Validity---Appellant/candidate had to submit affidavit of his assets and liabilities on solemn affirmation attested by Oath Commissioner---Though declaration of appellant was attested by Oath Commissioner but at some unknown time and place---Oath commissioner attested the document in Pakistan whereas appellant was in Saudi Arabia on the given date---Such attestation under Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders had no legal worth---According to R. 11 of Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders, if executant of affidavit is not known to the officer appointed to administer oath then he has to be identified by some person known to him and such fact is essentially required to be mentioned at the foot of affidavit---According to Rr. 14 & 15 of Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders, executant is personally required to appear before Court, Magistrate or officer for an oath or affirmation---Appellant/ candidate never appeared before Oath Commissioner due to his presence in Saudi Arabia---High Court declined to interfere in the order passed by Returning Officer---Appeal was dismissed, in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089; Muzaffar Abbas v. Maulana Muhammad Ahmad Ludhianvi and 31 others PLD 2017 Lah. 394; Mian Shafique Ahmed and another v. Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 5 others 2017 MLD 1975; Ghulam Mustafa Wassan v. Abdul Salam Taheen and 13 others PLD 2008 Kar. 60; Nadeem Sultan and another v. Hamza Shamim and 2 others PLD 2023 Lah. 334; Black's Law Dictionary Tenth Edition; Speaker, National Assembly of Pakistan, Islamabad and others v. Habib Akram and others PLD 2018 SC 678 and Mian Muhammad Shahbaz Sharif through Attorney v. Election Commission of Pakistan, Islamabad and 15 others PLD 2003 Lah. 646 rel.

Sardar Abdul Raziq Khan and Najam ul Hassan Kazmi for Appellant.

Zulqarnain Haider Gondal, Assistant Director (Law) assisted by Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan, with Bilal Bin Abdul Hafeez, ADC(G) R.O NA-59, Fazal Shar DD, (Dev), Chakwal, R.O PP-23 for ECP.

Hassan Raza Pasha, Objection Petitioner.

P L D 2024 Lahore 360

Before Shahid Karim and Asim Hafeez, JJ

Messrs NATIONAL TRANSMISSION AND DESPATCH COMPANY LTD. through Chief Law Officer---Applicant

Versus

The COMMISSIONER INLAND REVENUE, LARGE TAXPAYERS OFFICE (L.T.O.) and another---Respondents

Income Tax References Nos. 72345 and 45067 of 2023, decided on 28th December, 2023.

(a) Income Tax Ordinance (XLIX of 2001)---

----S. 133(1)---Reference---Documents, consulting of---Principle---Undisputed public documents can be looked at by High Court while deciding Reference application sand can take notice of such documents in any case.

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

----Ss. 17, 21(2) & 35---Income Tax Ordinance (XLIX of 2001), Ss. 113, 122 & 133(1)---Reference---Transmission license---Sale and purchase of electricity---Amendment of assessment---Applicant/National Transmission and Dispatch Company (NTDC) was licensed by National Electric Power Regulatory Authority to transmit electricity from Generation Companies (GENCOs) to Distribution Companies (DISCOs)---Dispute was with regard to charging of minimum tax on turnover---Validity---There was no difference in the functions of Central Power Purchasing Agency (Guarantee) Limited (CPPA-G) as it existed now and functions performed by CPPA of NTDC prior to 03-06-2015---CPPA-G was incorporated as a special purpose vehicle and was tasked with administering a Market Settlement System for commercial transactions envisaged by agreement---DISCOs remained principal and primary obligor in respect of payments and obligations of purchaser (a DISCO in a particular case) towards seller or supplier (GENCOs) under the power purchase agreement---NTDC merely recovered the Use of System Charges and similarly CPPA-G was entitled to market operation fee while operating Market Settlement System---DISCOs were paying minimum tax on turnover including purchase price of electricity---Electricity which was purchased from GENCOs by DISCOs was made liable to minimum tax on the turnover of DISCOs and FBR did not demand that tax from NTDC as well---Purchase of electricity was not done firstly by NTDC and thereafter NTDC did not sell electric power to DISCOs at inflated price---Authorities did not produce any evidence to such effect---NTDC would be falling in breach of its transmission license if it were to engage in such a business---High Court set aside the orders passed by Appellate Tribunal Inland Revenue---Reference was allowed accordingly.

PSO v. CIT 2018 SCMR 894 and PLD 1985 SC 109 ref.

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

----S. 21(2)---Transmission license---Scope---Grant of transmission license is distinct and separate from issuance of distribution license---Distribution company in whose favour license has been issued has exclusive right to provide distribution services and to make sales of electric power to the consumers.

Shoaib Rashid for Applicant.

Asma Hamid, Hasan Ali, Noor Ahsan and Sana Azhar for Respondents.

P L D 2024 Lahore 379

Before Ch. Abdul Aziz, J

RIZWAN ELLAHI and others---Petitioners

Versus

PROVINCE OF PUNJAB through Chief Secretary Punjab, Lahore and others---Respondents

Writ Petitions Nos. 91, 106, 107 and 136 of 2022, decided on 7th November, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Scope---In order to oust a litigant from Court to seek remedy under Art. 199 of the Constitution, respondents must satisfy that alternate remedy to seek justice is not only effective but expeditious as well---To hold a person disentitled from seeking relief under Art. 199 of the Constitution, alternate remedy must be convenient, beneficial and effective---If alternate remedy, upon evaluation, is found to be less effective, time consuming and calls for invoking jurisdiction of multiple Courts/forums, then High Courts are all competent to exercise jurisdiction within the framework of Art. 199 of the Constitution.

Habib Metropolitan Bank Ltd. v. Administrator, Karachi Municipal Corporation, Karachi and 3 others PLD 2014 Sindh 20 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Pro bono publico litigation---Principle---Bona fide of a pro bono publico litigant is to be adjudged on the touchstone of his status as an aggrieved person and secondly on the ground that he is petitioning in the interest of general public---It is further incumbent upon litigating person to demonstrate that if agitated grievance is not immediately addressed, it is destined to adversely affect the society as a whole.

Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482 rel.

(c) Constitution of Pakistan---

----Art. 199 (1)(c)---Constitutional petition---Enforcement of Fundamental Rights---Scope---High Court is well equipped with powers to issue direction for enforcement of Fundamental Rights of the subjects, guaranteed under Chapter 1 of Part-II of the Constitution.

(d) Constitution of Pakistan---

----Art. 9---Term "life"---Connotation---Term 'life' used in Art. 9 of the Constitution cannot be restricted to mere existence of a living person rather is stretched to all and every aspect of quality of human life---Word 'life' is not defined in the Constitution, thus cannot be given a restricted meaning rather is of wider import---Provision of Art. 9 of the Constitution bespeaks that an individual is entitled to enjoy pleasures of life by having access to natural and ecological beauty of places like Murree Hills, needless to mention, within a defined sphere of law---Right to live a life is not required to be established through customary protracted litigation, since it has been guaranteed under Art. 9 of the Constitution explicitly and unrestrictedly---Such right is to be enforced vigorously even through a constitutional petition, once the agitated grievance is found to have reasonable substance in it.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

(e) National Disaster Management Act (XXIV of 2010)---

----S. 15---Notification No.149-2017/186/Admin-I dated 22-06-2017 and Notification No. SOFT (EXT)XII-2/2009 dated 15-09-2009, issued by Government of Punjab---Fundamental rights---Enforcement---Mal governance---Natural disaster---Loss of human lives---Provincial Disaster Management Authority (PDMA), role of---Petitioners approached High Court to initiate actions against officials responsible for loss of lives of 22-tourists, who got stuck in a blizzard in Murree after remaining stranded in their vehicles for whole night---Validity---Legislative object of National Disaster Management Act, 2010, could best be achieved through proper coordination of the offices mentioned in schedule to Notification No.149-2017/186/Admin-I dated 22-06-2017, issued by Government of Punjab---Record showed that though role of PDMA in disaster management was nothing less than a protagonist but it badly failed to cope with the situation---Metrological Department issued forecast of heavy snowfall and not about the blizzard---Even forecast of heavy snowfall was not properly transmitted to concerned Departments either by Metrological Department or by PDMA---Event which led to loss of 22-lives did not give rise to any criminal aspect, thus registration of case was not warranted---Government of Punjab could not be absolved from its responsibility and mishandling of affairs in the region by various departments which could be described as one of the causes behind the tragedy---Provincial Government shall enhance compensation amount to the families of every victim---Provincial Disarter Management Authority should devise proper plan for achieving object of National Disaster Management Act, 2010, by making plans of disaster management in areas vulnerable to calamities, and organize specialized training programs for officials, voluntary rescue workers and members of communities---Representatives of Metrological Department should be included in the structure of District Disaster Management Authority---Punjab Highway Department should hire services of persons having competency and skills to handle equipment including snow blowers and utilize their own resources for sprinkling salt on the roads instead of outsourcing it to the private contractors as it was being done previously---For effective management a committee headed by Commissioner Rawalpindi be formed to pool all machinery/equipment and man-power of civil and armed formations for proper utilization in snow season---Provincial Government was to ensure implementation of construction policy in Murree and should demolish illegal structures after giving notice to their respective owners and providing them an opportunity of hearing in accordance with law---Already existing building by-laws of Murree shall be replaced so as to bring them in conformity with environmental protection measures and preferably a restriction be imposed that in future at least forty percent of a plot be left vacant and construction be allowed only on the sixty percent of the plot---Provincial Government shall promote construction of prefab homes in Murree region which were besides being cost effective and environment friendly could also be built without mountain cutting and excavation--- Provincial Government had to consider construction of Parking Plazas in the outskirts of Murree and vehicles should be permitted to enter the town with some restrictions and limitations, preferably by charging appropriate tourism fee through proper receipts to be collected by Municipal Committee and revenue so generated was to be spent in the same area---For facilitating tourists to reach town of Murree from Parking Plaza, neat and clean public transport was to be arranged, and motorists were to be restrained from parking their vehicles on both sides of the roads and parking of vehicles should be allowed only on one side of the road that too after paying parking fee, which appeared to be reasonable to concerned authority---To manage traffic inflow in Murree, a Joint Coordination Committee comprising of representatives of Galiyat Development Authority, Islamabad Capital Territory and Administration of Murree should be established empowering them to take decisions for the closure of roads in snow season, if the circumstances so warranted---Murree Administration shall obtain FM radio frequency for proper guidance of tourists in respect of available parking spaces, hotel bookings and on ground load of visitors etc. and steps in such regard were to be taken in consultation with business community of Murree so as to save them from financial strangulation---Provincial Government shall add topics pertaining to traffic discipline, cleanliness and environment in educational curriculum at least upto intermediate level so as to inject discipline and generate importance of ecofriendly environment amongst the coming generation---Punjab Environmental Protection Agency was to give practical effect to requirement of Environmental Impact Assessment and examination in every project, and the Agency shall control emissions of toxic gasses from vehicles and industrial units throughout the province of Punjab---Murree Administration should impose complete ban upon the use of plastic bags in the city and clean all water channels leading to Rawalpindi-Islamabad, and for improving sewerage system and for proper waste disposal, immediate steps be taken and while doing so, companies and manufacturers be persuaded to contribute in environment in accordance with the concept of Corporate Social Responsibilities---Authorities were to immediately install water treatment plants at water channels leading to Simly Dam and Rawal Dam, and Capital Development Authority was to be persuaded rigorously to install water treatment plants at the water channels, stemming out from its territory, leading to the afore-mentioned water reservoirs---Authorities should also properly equip Punjab Wildlife Department and Forest Department with sufficient manpower for preservation of forests and conservation of wildlife and laws to deal with delinquencies of forest theft and poachers should be re-visited by providing strict punishments to the violators---Furthermore immediate steps be taken for removal of encroachments and illegal occupation of forest lands---Authorities had to look into possibility of providing LPG to residents of Murree on subsidized rates as alternate source of energy---Subordinate courts in Province of Punjab shall put cases registered on complaints of afore-mentioned two Departments at fast track and decide them expeditiously---National Highway Authority had to protect every single inch of its land and was to proceed against encroachers in accordance with law for restoration of its possession---Tree plantation campaign shall be launched in the province during upcoming season and plantation be made which would be suitable for conservation of birds, and Government of Punjab should ponder upon possibility of introducing tenure posts in Wildlife and Forest Departments for proper implementation of policies by making respective officers responsible in that regard---Residents of houses constructed on land not less than 10-marlas be persuaded to plant at least one tree in their houses, preferably the one suitable for nesting---D.G. Anti-Corruption Punjab should constitute a team for examining construction affairs of Murree and Kotli Sattian and if any criminal misdeed was found divulging therefrom, appropriate action be taken---D.G. FIA shall look into the affairs of NHA which resulted in unchecked encroachments upon the State land and proceed through registration of FIRs, if legally warranted---Authorities had to give practical effect to notification No. SOFT (EXT)XII-2/2009 dated 15-09-2009 whereby Murree and Kotli Sattian was declared as National Park Area by taking immediate steps---Construction of a bypass road leading to Galiyat should be considered for decreasing traffic stress on Kuldana Crossing---Data of all hotels, guest houses, apartments and residential buildings used for commercial purposes was to be collected and they were to be regularized through centralized software/link to monitor their working/business through proper legislation and at the same time, provisions of Punjab Hotels and Restaurants Act, 1976, be properly implemented---Government of Punjab had to look into the causes which led to the tragic incident of 07-01-2022 and if delinquency of any official surfaced on record, proceedings were to be initiated against him---Federal Government shall draw impeccable system of weather forecast through which concerned departments could be timely intimated, and failure to impart timely weather forecast to appropriate departments should be probed into and actions be taken against officials of Metrological Department and PDMA/NDMA by appropriate governments---Tourism Department, Government of Punjab had to develop more tourist resorts at various places but while taking precautions to preserve ecosystem---High Court directed concerned departments to submit reports with regard to steps taken by them towards implementation of directions issued by the High Court in the present case---Constitutional petition was disposed of accordingly.

Habib Metropolitan Bank Ltd. v. Administrator, Karachi Municipal Corporation, Karachi and 3 others PLD 2014 Sindh 20; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Ms.Shehla Zia and others v. WAPDA PLD 1994 SC 693; Muhammad Asjad Abbasi and others v. Iqbal Muhammad Chauhan and others 2018 SCMR 2051 and Rehan Rauf's case PLJ 2011 Magazine 384 rel.

Jalil Akhtar Abbasi, Amir Abdullah Abbasi and Ch.Muhammad Fahad Bashir for Petitioners.

Qaiser Abbas Shah, Assistant Advocate General Punjab, Farhat Majeed Chaudhry, Assistant Advocate General, Punjab, Arfan Ahmed Khan Niazi, Assistant Advocate General, Punjab, Haroon Rasheed Janjua Deputy Attorney General for Pakistan, Rashid Hanif, Deputy Attorney General for Pakistan, Nayyer Abbas Assistant Attorney General for Pakistan, Syed Muhammad Shah, Legal, Advisor Rawalpindi District Administration, Noor-ul-Ameen Mengal, Commissioner, Rawalpindi Division, Tariq Farooq, D.C, Rawalpindi, Waqas Ahmed, Assistant Commissioner Rawalpindi, Asadullah Faiz, Secretary Tourism, Waseem Riaz, CTO, Rawalpindi, Waqas Safdar Jehangri, Assistant Commissioner Murree, Majeed DSP Traffic Murree, Dilshad Ahmed, XEN Highway Mechanical Rawalpindi, Muhammad Saboor, PDMA, Punjab, Kamran Rashid, DEO, Rawalpindi Rescue 1122, Raja Saleem Ullah, Law Officer Commissioner Rawalpindi, Muhammad Irfan Virk, Deputy Director PDMA, Muhammad Usama, SDO Highway Mechanical Division, Dr. Naeem Rauf, Secretary LG & CDD, Masood Ahmed Abbasi Legal Advisor TMA Murree, Hamayun Akhtar Deputy Director CTW Department, Syed Ali Muzaffar, Addl. Chief Secretary, Punjab, Muhammad Ashraf, Deputy Secretary (S&GDA), Kamran Khan, Chief Officer District Council Rawalpindi, Raza Elahi, Deputy Municipal Officer, Usama Rehmat Khan Niazi, Director Anti-Corruption, Punjab, Junaid Mumtaz DFO, Rawalpindi, Arfa Batool Deputy Director Wildlife, Imran Zaidi, XEN Building Division Rawalpindi, Muhammad Rafiq, Deputy Director Environment, Inam-ul-Haq, Inspector EPA and Qasim Pervez Gondal, HR and Legal Officer THQ Hospital Murree for Respondents.

P L D 2024 Lahore 421

Before Raheel Kamran, J

CHINA HARBOUR ENGINEERING COMPANY LTD. and others---Petitioner

Versus

Z. Z. ENTERPRISES and another---Respondents

Civil Revision No. 54865 of 2023, decided on 3rd May, 2024.

(a) Punjab Commercial Courts Ordinance (XIX of 2021) [since repealed]---

----S. 3---High Court (Lahore) Rules and Orders, Volume-I, Chap-1, Part-K, R. 10---Constitution of Pakistan, Arts. 202 & 203---Commercial Courts, function of---Scope---Punjab Commercial Courts Ordinance, 2021, [since repealed]---Effect---Petitioners/defendants sought revision of order (dated 31.05.2023) passed by the Civil Judge 1st Class (Special Court for Commercial Cases), Lahore, whereby suit for recovery of Rs.851,170,923/- along with specific performance of contract filed by respondents/plaintiffs was considered as commercial case---Plea of the petitioners/defendants was that the Civil Judge had acted contrary to the mandate of Rule 10, Part-K, Chapter-1, Volume-I of the Rules and Orders of the Lahore High Court, Lahore ('the Rule 10') as said R. 10 could not operate in vacuum unsupported by any law as the Punjab Commercial Courts Ordinance, 2021 ('the Ordinance 2021'), which was promulgated on 13.04.2021, stood repealed on 12.06.2021 while suit-in-question was instituted (on 14.09.2022) after more than one year of the Ordinance, 2021 being repealed---Validity---In order to secure expeditious disposal of cases of commercial nature, the Lahore High Court vide its Notification No.6032 DDJ/DR(PD&IT) dated 28.04.2020 ('the Notification') designated a few courts of Additional District and Sessions Judge and Civil Judges at couple of stations entrusting the work of commercial cases pertaining to their districts to the Judicial Officers already dealing with the cases of Overseas Pakistanis---Rule 10, Part-K, Chapter-1, Volume-I of Rules and Orders of the Lahore High Court, Lahore, provides that commercial cases should be disposed of as speedily as practicable, which are to include cases arising out of ordinary transactions of merchants, bankers and traders---Said notification also did not show that the courts were being designated as Commercial Courts in accordance with the Ordinance, 2001---Therefore, it was quite clear that the subject notification was issued on 28.04.2020 prior to the promulgation of the Ordinance, 2001 and its repeal had no legal effect upon functioning of the Commercial Courts---Even as per said R. 10, a plaintiff or appellant may apply at the time of preliminary hearing or by subsequent application before the final hearing thereof to have its case classed as commercial case---Petitioners had not been able to point out any prejudice being caused to them because of hearing and adjudication of the case-in-question by the Civil Judge designated as Commercial Court---Thus courts designated to hear cases of commercial nature were functioning in accordance with the C.P.C. and the Rules and Orders of the Lahore High Court under its superintendence and control within the scope of Arts. 202 & 203 of the Constitution---High Court did not find any illegality or irregularity in the impugned order warranting interference in exercise of its revisional jurisdiction---Civil revision, being devoid of any merit, was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Arts. 202 & 203---High Court (Lahore) Rules and Orders, framing of---High Court, powers of---Scope---High Court (Lahore) Rules and Orders have been framed by the Lahore High Court in accordance with Art. 202 of the Constitution that empowers it to do so subject to the Constitution---Article 203 of the Constitution envisages that each High Court shall supervise and control all courts subordinate to it with the object to establish orderly, honorable, upright, impartial and legally correct administration of justice---Supervision and control over the subordinate judiciary vested in the High Courts under Art. 203 of the Constitution is exclusive in nature, comprehensive in extent and effective in operation.

Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others 2006 SCMR 1684 and Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504 ref.

(c) Punjab Commercial Courts Ordinance (XIX of 2021) [since repealed]---

----S. 3---Notification No.6032 DDJ/DR(PD&IT) dated 28.04.2020 issued by the Lahore High Court---Commercial Courts, functioning of---Scope---Punjab Commercial Courts Ordinance, 2021 [since repealed]---Effect---Petitioner/defendant sought revision of order (dated 31.05.2023) passed by the Civil Judge 1st Class (Special Court for Commercial Cases), Lahore, whereby suit for recovery (of Rs.851,170,923/-) along with specific performance of contract filed by respondents/plaintiffs was considered as a commercial case---Held, that contention of the petitioners that Commercial Courts were established pursuant to the promulgation of the Punjab Commercial Courts Ordinance, 2021 and the year of issuance of the Notification No.6032 DDJ/DR(PD&IT) [dated 28.04.2020 issued by the Lahore High Court] was 2021 instead of 2020, was apparently based on a misconception inasmuch as the official website of the Lahore High Court still showed the same notification dated as 28.04.2020; and a judgment of High Court in the case reported as M.C.R. (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others (2021 CLD 639) rendered on 08.03.2021 relied on the same notification having the date as 28.04.2020---Civil revision, being devoid of any merit was dismissed, in circumstances.

M.C.R. (Pvt.) Ltd. Franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639 ref.

(d) Punjab Commercial Courts Ordinance (XIX of 2021) [since repealed]---

----S. 3---Constitution of Pakistan, Art. 10A---Jurisdiction under the Code of Civil Procedure, 1908, exercise of---Scope---Courts of ordinary civil jurisdiction have been designated to hear and dispose of the commercial cases which are dealing with the same in accordance with the procedure provided under the Code of Civil Procedure, 1908, with the sole object to ensure expeditious disposal of the same on priority basis---Thus, for all practicable purposes all courts designated as Commercial Courts under the Notification No.6032 DDJ/DR(PD&IT) dated 28.04.2020 issued by the Lahore High Court are essentially Civil Courts exercising jurisdiction under the Code of Civil Procedure, 1908, for expeditious disposal of civil disputes---By considering a case as commercial one, the right of fair trial available to the opposite party is not being compromised since no special procedure has been laid down to dispose of the same.

S. Naeem Bokhari and Ijaz Janjua for Petitioners.

Barrister Hassan Khalid Ranjha, Additional Advocate General for Punjab.

Asad Ahmed Ghani and Muhammad Rizwan Rasheed for Respondents Nos.1 and 2.

P L D 2024 Lahore 428

Before Shahid Karim, J

Ch. BILAL EJAZ---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

W.P. No.16416 of 2024, heard on 16th April, 2024.

(a) Administration of justice---

----Public policy---Principle---Policy of a law has to be kept in view in making any decision by authorities entrusted with statutory discretions---This includes taking into account considerations of public policy.

(b) Elections Act (XXXIII of 2017)---

----S. 8---Constitution of Pakistan, Art. 218 (3)---Conducting of elections---Election Commission of Pakistan, powers of---Policy of law is to empower Election Commission of Pakistan "to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against".

(c) Elections Act (XXXIII of 2017)---

----Ss. 8 & 95---Constitution of Pakistan, Arts. 199 & 218(3)---Constitutional petition---Election dispute---Recounting of votes---Petitioner/returned candidate was aggrieved of order passed by Election Commission declaring respondent as returned candidate on the basis of recount of ballot papers after consolidation of results and notification issued in favour of petitioner/returned candidate---Validity---Election Commission of Pakistan did not have power of review---Election Commission of Pakistan was empowered to direct Returning Officer to recount ballot papers before conclusion of consolidation proceedings---All such matters must be dealt with and decided prior to the declaration of results under S. 98 of Elections Act, 2017---Election Commission of Pakistan and its Benches exercising jurisdiction in the matter of adjudication were cognizant of the scope of its powers under Ss. 8 & 95 of Elections Act,2017---Power of review could not be invoked once consolidation of result had taken place and notification regarding a returned candidate had been issued---Election Commission of Pakistan refused to exercise its jurisdiction in all such election disputes where Election Tribunals were notified and contrary to its stance in a number of cases, the Election Commission of Pakistan proceeded to exercise its jurisdiction without adverting to any of the grounds which found favour with the Bench in similar cases---Obligation cast upon Election Commission of Pakistan under Art. 218(3) of the Constitution to ensure free and fair election should start with the primary responsibility to make consistent decisions based on the principles of rule of law and by following the basic tenet that every power had legal limits---High Court set aside the order passed by Election Commission of Pakistan as the same was without lawful authority and of no legal effect---Constitutional petition was allowed, in circumstances.

Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others C.P. No. 142 of 2019 and Mian Tariq Mehmood v. Election Commission of Pakistan and others W.P No.30623 of 2019 ref.

Sardar Latif Khan Khosa and Rana Usman Ghani for Petitioners.

Waqas Ahmad Mir and Ch. Imran Raza Chadhar for Respondent No.3.

Asad Ali Bajwa, D.A.G., Hassan Ijaz Cheema, A.A.G., Imran Arif Ranjha, Legal Advisor for E.C.P with Bushra Siddique Ch., Deputy Director (Law) ECP for Respondents.

P L D 2024 Lahore 443

Before Tariq Saleem Sheikh, J

Mst. SHUMAILA SHARIF---Petitioner

Versus

The SECRETARY, UNION COUNCIL and 5 others---Respondents

Writ Petition No. 66288 of 2022, decided on 18th January, 2023.

(a) Divorce Act (IV of 1869)---

----Ss.10, 22 & 55---Christian Marriages Act (XV of 1872), Preamble---Family laws for Christians in Pakistan---Scope---Christian Marriages Act, 1872, and the Divorce Act, 1869, are the principal Family laws for Christians in Pakistan---Every church has its precepts, but said statutes prevail where there is a conflict---Divorce Act was enacted in 1869 ('the Divorce Act') to amend the law relating to divorce and matrimonial causes relating to persons professing the Christian religion and to confer jurisdiction on certain courts in respect thereof---Section 10 of the Divorce Act specifies the grounds on which the husband and wife may file petition for dissolution of marriage---Section 22 of the Divorce Act prohibits the court from passing a decree for divorce a mensa et thoro but allows the husband or wife to obtain a decree of judicial separation on the ground of adultery, cruelty, or desertion without reasonable excuse for two years or upwards of marriage---Section 55 of the Divorce Act states that all decrees and orders rendered by the Court in any suit or proceeding brought under the Divorce Act shall be enforced and may be appealed in the same manner as decrees or orders issued by the Court in the exercise of its original civil jurisdiction under the laws for the time being in force---A court-decree for dissolution of marriage entails legal consequences in all cases and creates rights and liabilities for the parties---Divorce Act stipulates such implications for Christians, and one of them is that either party can marry again after the prescribed period has elapsed.

(b) Divorce Act (IV of 1869)---

----Ss. 10, 22 & 55---Constitution of Pakistan, Arts. 2-A, 4, 9 & 14---Christian Marriages Act (XV of 1872), Preamble---Citizens including the minorities of Pakistan---Right to identity---Scope------Divorce certificate, issuance of---Identity of person---Right to a divorce certificate---Constitution of Pakistan, though, does not explicitly guarantee the right to identity, however, in the case reported as Hafiz Awais Zafar v. Judge Family Court, Lahore, and others (PLD 2022 Lahore 756), the High Court held that Art. 9 (right to life) and Article 14 (dignity of man) safeguard said right---Therefore, any citizen whose marital status changes due to the dissolution of marriage by divorce has a fundamental right to obtain a divorce certificate from the competent authority and then have their CNIC updated/revised---Constitution of Pakistan gives minorities a special status; its Preamble states that the State shall make adequate provisions for the minorities to profess and practice their religions and develop their cultures---Secondly, the State shall guarantee fundamental rights, including equality of status, opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship, and association, subject to the law and public morality---Thirdly, the State shall make adequate provisions to safeguard the legitimate interests of minorities---Said asseverations are then secured through Article 2A and Article 4 of the Constitution---High Court directed the petitioner/lady to re-apply to NADRA for the issuance of CNIC and submit her affidavit in the prescribed form along with a certified copy of the Civil Court's judgment and decree of separation of marriage for her application to be processed in accordance with the law and the Registration Policy dated 06.04.2021---Constitutional petition filed by Christian/lady divorcee was disposed of accordingly.

Hafiz Awais Zafar v. Judge Family Court, Lahore, and others PLD 2022 Lah. 756; Ameen Masih v. Federation of Pakistan and others PLD 2017 Lah. 610; Suo Motu Case No.1 of 2014 and others PLD 2014 SC 699 and Tayyab Mahmud, Freedom of Religion and Religious Minorities in Pakistan: A Study of Judicial Practice, Fordham International Law Journal, 19.1 (1995), p.51. ref.

(c) Punjab Local Government Act (XXXIII of 2022)---

----Ss. 33(1)(j), 202 & 203---National Database and Registration Authority Ordinance (VIII of 2000), S. 21--- Divorce Act (IV of 1869), S. 10---NADRA's Registration Policy dated 06.04.2021 (Version 5.0.2)---Divorce certificate, issuance of---Entitlement of citizen---Scope---Lady/petitioner and (private) respondent, both Christians, got married---Respondent filed a petition for the dissolution of their marriage, which was granted by the Civil Court---Subsequently, at her request, the concerned Pastor/Church issued a Certificate of Separation---Later, when petitioner's Computerized National Identity Card (CNIC) expired and she wanted to replace her ex-husband's name with her father's name, she applied to the National Database and Registration Authority (NADRA) (respondents) for renewal of her CNIC, but it refused to include the petitioner's father's name and asked her to provide divorce certificate from the concerned Union Council---Petitioner requested a divorce certificate from the concerned Secretary, Union Council (respondent), but he refused to do the same on the basis that it was not issued to the Christian community---Petitioner (Christian lady)sought a writ of mandamus against official respondents for issuance of a divorce certificate---Contention of the petitioner was that NADRA declined to accept the Court's decree and the Pastor's Certificate as sufficient proof of the dissolution of her marriage---Validity---It is the function of the Local Government to register births, deaths, marriages, and divorces and issue certificates in respect thereof---Under S. 33(1)(j) of the Punjab Local Government Act, 2022, it is the mandate of the Union Council---Section 21 of the National Database and Registration Authority Ordinance, 2000, ordains that the marriage or divorce of a citizen should be reported to the National Database and Registration Authority (NADRA)---Section 202 of Punjab Local Government Act, 2022, empowers the Government to make rules for carrying out the purposes of the Punjab Local Government Act, however, it has not framed any rules for the registration of divorces of minorities in general and the Christian community in particular and the issuance of divorce certificates---Local governments have also not made any bye-laws in this regard in terms of S. 203---Petitioner is not the only person who has complained of non-issuance of a divorce certificate by a Union Council as this is a general issue that the Christian community is facing---Rules/bye-laws under Ss. 202 & 203 of the Punjab Local Government Act, 2022, were necessary to meet this situation----Government of Punjab should frame the requisite rules and issue notifications and letters, etc., within 90 days from the date of announcement of this judgment---During the proceedings, it had been brought to the notice of High Court that NADRA's Registration Policy dated 06.04.2021 (Version 5.0.2) allowed a change of marital status of a divorcee on the basis of an affidavit in the prescribed form---Until the Provincial Government framed rules as directed above, NADRA shall accommodate the Christian community in accordance with the Registration Policy---High Court directed the petitioner/lady to re-apply to NADRA for the issuance of CNIC and submit her affidavit in the prescribed form along with a certified copy of the Civil Court's judgment and decree of separation of marriage for her application to be processed in accordance with the law and the Registration Policy dated 06.04.2021---Constitutional petition filed by Christian/lady divorcee was disposed of accordingly.

Umar Saeed for Petitioner.

Imran Muhammad Naeem with Hamid Rafiq, Law Officer, NADRA for Respondent No.2.

Mukhtar Ahmad Ranjha, Additional Advocate General for Respondent No.3.

Mian Muhammad Iqbal for Respondent No.4.

Hashim Ali Gill, Assistant Director (Litigation), Local Government and Community Development Department for Respondent No.5.

Ms. Rizwana Naveed, Additional Secretary, Human Rights and Minorities Affairs Department, with Naveed Ahmad Goraya and Faisal Mukhtar, Law Officers for Respondent No.6.

Kashif Alexander, Amicus curiae.

P L D 2024 Lahore 451

Before Raheel Kamran, J

BEACONHOUSE SCHOOL SYSTEM, OKARA---Petitioner

Versus

COMMISSIONER SAHIWAL DIVISION and others---Respondents

Writ Petition No. 755 of 2024, decided on 1st February, 2024.

(a) Constitution of Pakistan---

----Art. 25-A---Punjab Free and Compulsory Education Act (XXVI of 2014), Preamble---Fundamental rights---Right to free and compulsory education for children---Scope---Access to free and compulsory education is a universally acknowledged right of all children---It is a sine qua non for the development of any State in addition to ensuring equality of opportunity for its citizens and their right to live with dignity---In our country, such right has been included amongst the Fundamental Rights contained in Chapter 1 of Part II of the Constitution through the Eighteenth Constitutional Amendment---Fundamental Rights occupy a place of pride in the scheme of our Constitution and the same indeed are conscience of the Constitution---By insertion of Art. 25-A in the Constitution, an obligation has been cast upon the State to ensure provision of free and compulsory education to all children between the age of 5 to 16 years in such manner as may be determined by law---Subject of education has been devolved to the provinces for legislation and decisions regarding curriculum, syllabus, planning, policy and standard of education---Accordingly, the Punjab Free and Compulsory Education Act, 2014 was enacted.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(b) Punjab Free and Compulsory Education Act (XXVI of 2014)---

----Ss. 2, 13(b), 24(2) & Preamble---Constitution of Pakistan, Art. 25-A---Right to free and compulsory education---Obligation upon the educational institutions---Criteria etc. for disadvantaged children, determination of---Framing of relevant Rules, absence of---Petitioner (Beaconhouse School System) filed constitutional petition assailing the orders passed by the respondents (concerned District Registering Authority and the Commissioner/Appellate Authority), whereby its request for the issuance of School Registration Certificate was turned down as a penal action for not providing free education to disadvantaged children under S. 13(b) of the Punjab Free and Compulsory Education Act, 2014 ('the Act 2014')---Contention of the petitioner (school system) was that the relevant Rules required under S. 24(2) of the Act 2014 have not been framed/notified by the Government till date, thus in absence thereof impugned penal action has been wrongly invoked---Validity---Section 13 of Punjab Free and Compulsory Education Act, 2014 describes certain responsibilities of private schools for ensuring free education while S. 2 of the Act 2014, inter alia, defines "child", "education", "disadvantaged child", "free education" and "school"---However, there are certain features in the provisions of both sections (2 and 13 of the Act 2014) which are required to be determined by the Government and in that regard S. 24 of the Act 2014 empowers the Government to make Rules for carrying out purposes of the Act---Said provisions of the Act 2014 cumulatively manifest that without framing Rules, inter alia, to outline criteria for the determination of disadvantaged children or payment of vouchers and the manner of maintenance of records of children under clauses (a) & (b) of S. 24(2) of the Act 2014, any claim of compliance of obligations under S. 13 of the Act 2014 would remain subjective, open to objections and disputes---Legislation in the present case was enacted by the Punjab Assembly in the year 2014, but rights of disadvantaged children have been denied owing to procrastination at the hands of the Government which failed to frame and notify said Rules---Thus, when criteria for the determination of disadvantaged children or payment of vouchers and manner of maintenance of records of children under clauses (a) & (b) of S. 24(2) of the Act has not been prescribed, how could compliance of the same be verified and certified by any authority---High Court set aside impugned orders and passed directions to the respondent/District Registration Authority to ensure registration of the petitioner/school, if other conditions were satisfied---Constitutional petition filed by school was allowed, under circumstances.

(c) Punjab Free and Compulsory Education Act (XXVI of 2014)---

----Ss. 13(b) & 24(2)---Right to free and compulsory education for children---Obligation upon educational institutions---Criteria etc. for disadvantaged children, determination of---Framing of relevant Rules, absence of---Petitioner/school was penalized for not providing free education to disadvantaged children---Validity---Legislation i.e. Punjab Free and Compulsory Education Act was enacted by the Punjab Assembly in the year 2014, but rights of disadvantaged children have been denied owing to procrastination at the hands of the Government which failed to frame and notify the relevant Rules in discharge of its responsibilities under clauses (a) and (b) of S. 24(2) of the Punjab Free and Compulsory Education Act, 2014---Private education sector, which was supposed to share the responsibility of right to education for disadvantaged children, has benefitted from inaction on part of the Government Departments even after the lapse of 10 years of passing of the Act---At best, it shows an obvious neglect of the Government whereas, at worst, it may well be a case of regulatory capture warranting inquiry---High Court directed the Government of the Punjab to fulfill its obligation to frame rules, inter alia, to prescribe the criteria for the determination of disadvantaged children or payment of vouchers and the manner of maintenance of records of children under clauses (a) & (b) of S. 24(2) of the Act within a period of 30 days whereafter it shall proceed with the enforcement of S. 13 of the Act through penal actions in accordance with law---High Court set aside impugned orders and passed directions to the respondent / District Registration Authority to ensure registration of the petitioner/school, if other conditions were satisfied---Constitutional petition filed by school was allowed, in circumstances.

Mahr Haseeb Qadir for Petitioner.

Syed Wajid Hussain Rizvi, Assistant Advocate General, Punjab with Mushtaq Ahmad Sial, DPI (SE) and Wazir Ahmad Agha, CEO (DEA), Okara.

P L D 2024 Lahore 459

Before Muhammad Amjad Rafiq, J

MUHAMMAD ASIF---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 12454 of 2022, decided on 11th March, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 337 & 338---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Tender of pardon to accomplice---Power to grant or tender pardon---Scope---Accused assailed order passed by Trial Court whereby co-accused was tendered pardon under S. 338, Cr.P.C., to become approver against accused/petitioner---Validity---Not only the officer incharge of the prosecution but the Court could tender pardon to the accused at any stage of the trial before the judgment was passed with a view to obtaining evidence---In the present case, it had been done by the Trial Court but before that it was essential that accused should have volunteered to become approver in response to a request made by the complainant or the Court---Though application of the complainant stated that co-accused was ready to become approver but his consent in black and white was not available on the record---Similarly the Court had also not taken his consent before tendering him pardon---In that view of the matter, impugned order one-sidedly considered that co-accused would be a useful witness as an approver which was opposed to constitutional protection as ordained under Art. 13 of the Constitution---Likewise, S. 338, Cr.P.C., required that no person shall be tendered pardon who was involved in an offence relating to hurt or qatl without permission of the victim or, as the case might be, of the heirs of the victim---Present case was of qatl but Court had not obtained consent of legal heirs of the deceased before tendering pardon to the co-accused, therefore impugned order was liable to be set aside on such legal premise as well---When an accused was tendered pardon, he must be kept in custody until the trial was concluded and Officer Incharge of prosecution certified that accused had made full and true disclosure of the whole of the circumstances so as to prevent his trial as an accused under Ss. 339/339-A, Cr.P.C., but in this case, co-accused was not taken into custody which action was in violation of subsection (3) of S. 337 Cr.P.C, sub-rule (2)(f) of Rule 25.29 of Police Rules, 1934 and Rule 8 of Chap. 14 of High Court (Lahore) Rules and Orders, Volume-III, therefore, order impugned was bereft of legal sanctity---Reasons must be outlined by the Court before framing its mind to tender pardon to an accused---In the present case, Court had not taken the prosecution on board before tendering the pardon to the accused which was an illegality because though Court has power to tender pardon to any person but the Court can have no interest whatsoever in the outcome nor can it decide for prosecution whether particular evidence is required or not to ensure the conviction of the accused---Impugned order was set-aside accordingly.

Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lah. 690 ref.

Qamar-uz-Zaman and another v. The State PLD 1981 Lah. 543; Muhmammad Saleem v. The State 1989 PCr.LJ 1262; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) (2) SCC (Cri) 1150; Lt. Commander Pascal Fernandes v. State of Maharashtra AIR 1968 SC 594; Jasbir Singh v. Vipin Kumar Jaggi AIR 2001 SC 2734 and Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lah. 690 rel.

Ch. Awais Arif for Petitioner.

Miss Maida Sobia, Deputy Prosecutor General and Rana Muhammad Shafique, Deputy District Public Prosecutor for the State.

Jahanzeb Khan for Respondents.

P L D 2024 Lahore 467

Before Muhammad Sajid Mehmood Sethi and Asim Hafeez, JJ

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Islamabad and another---Appellants

Versus

MUHAMMAD SHARIF and others---Respondents

R.F.A. No. 31423 of 2021 (and other connected cases), heard on 29th May, 2024.

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

----Ss. 4 & 18---Acquisition of land---Compensation---Determination---Relevant witnesses---Appellants/Authorities acquired land of respondents/ landowners for public purpose---Referee Court enhanced compensation which was fixed in award by Land Acquisition Collector---Validity---Halqa Patwari was the most crucial and proximate witness who produced mutations and average sale price---Appellants/Authorities did not produce any plausible evidence to show any defect in determination of value by Referee Court---Witnesses produced by appellants/ authorities had no proximity or personal knowledge of the matters, touching determination of compensation---Absence of knowledge regarding material facts could not be construed or inferred as affirmation of actual facts---In Award filing of objections by respondents/landowners was mentioned, however no reasons were mentioned which prevailed upon Land Acquisition Collector to reject those objections---Award was based upon value assessed by District Price Assessment Committee (which was approved by Board of Revenue), however none of the members was produced in evidence to explain criteria adopted by the Committee while fixing the price---Award did not reflect independent assessment by Land Acquisition Collector keeping in view the complexion and character of acquired land, especially when respondents specifically asserted that their land was situated on a main road---Division Bench of High Court declined to interfere in order passed by Referee Court enhancing compensation in favour of respondents/land owners---Appeal was dismissed, in circumstances.

Federation of Pakistan and others v. Ghulam Mustafa and others R.F.A. No.74504 of 2019 rel.

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

----Ss. 23 & 24---Acquisition of land---Compensation, determining of---Principle---Mere production of handful of sale deeds, contemporaneous to acquisition proceedings, is not enough to disbelieve compensation already determined.

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

----S. 18---Acquisition of land---Compensation, determining of---Referee Court---Factors to be considered---Referee Court has to take into consideration market value of land; factum of delay in concluding acquisition proceedings; payment of compensation; and price escalation during intervening period.

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

----Ss. 11, 12, 18 & 23---Acquisition of land---Compensation, determining of---Duty of Courts---Guiding principle---Determination of compensation for land compulsorily acquired is the duty not only of the State/executive functionaries (particularly of the Land Acquisition Collector) but once landowners are not compensated by them, the duty for such determination, under the Constitution and the law, is cast upon judicial forums, including Referee Court and superior Courts.

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

----S. 18---Acquisition of land---Compensation, determining of---Appreciation of evidence---Principle---Evidence brought on record by parties is to be seen in its entirety, stressing less qua the obligation of onus to prove, and applying principle of preponderance of evidence.

Tahir Mehmood Khokhar, Deputy Attorney General and Muhammad Zain Qazi, Assistant Attorney General for Appellants.

Mian Abdul Quddus and Muhammad Qamar-uz-Zaman, for Respondents/Landowners.

P L D 2024 Lahore 476

Before Tariq Saleem Sheikh, J

ABID HAMEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, CHUNIAN and 2 others---Respondents

Writ Petition No. 66114 of 2022, decided on 29th December, 2022.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), Ss.7 & 9---Habeas Corpus proceedings---Scope---Custody of minor---Regulating meeting with minor---Petitioner was real father of minor and step sister of minor was claiming custody---During Habeas Corpus proceedings under S. 491, Cr.P.C., before Additional Sessions Judge, petitioner consented to visitation rights to respondent---On application filed by respondent, Additional Sessions Judge prepared schedule for respondent to meet the minor---Validity---Petitioner's custody was lawful and proper, as he was minor's real father and natural guardian duly looking after him, including his studies---Respondent was step-sister of minor who was married and living with her family---It was in the minor's welfare that his custody should remain with his father, i.e. the petitioner---Though Additional Sessions Judge dismissed application of respondent but directed petitioner to provide her an opportunity to meet the minor twice or thrice a month---Additional Sessions Judge exceeded his jurisdiction while making such a direction---Determination of visitation rights fell in the exclusive domain of Guardian Court---Order of Additional Sessions Judge enforcing meetings with minor was without jurisdiction and such application of respondent was not competent and all proceedings based on such order were unlawful---Respondent could not take benefit of petitioner's conceding statement that he made in earlier proceedings---When basic order was devoid of legal authority and void, the entire superstructure raised thereon would collapse---High Court set aside the orders passed by Additional Sessions Judge enforcing meeting schedule of respondent with minor---Constitutional petition was allowed accordingly.

Muhammad Ajmal Khan v. Lt.-Col. Muhammad Shafaat and others PLD 1976 Lah. 396; Secretary of State for Home Affairs v. O'Brien (1923) AC 603; Kanu Sanyal v. District Magistrate, Darjeeling and others AIR 1973 SC 2684; Cox v. Hakes, [1890] UKLawRpAC 36; [1890] 15 A.C.; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; R v. Greenhill, (1836) 4 A & E 624; Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217; Howarth v. Northcott, (1965) 152 Conn. 460, 208 A.2d 540; Syed Saleemuddin v. Dr. Rukhsana and others (2001) 5 SCC 247; Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others AIR 2019 SC 2318; Muhammad Javed Umrao v. Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Ch. Noor Hussain v. The State 1983 PCr.LJ 796; Naziha Ghazali v. The State and another 2001 SCMR 1782; Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119 and Pakistan Peoples Party Parliamentarians (PPPP) and others v. Federation of Pakistan and others PLD 2022 SC 574 rel.

Sardar Waseem Ahmad Mokal for Petitioner.

Mukhtar Ahmad Ranjha, Additional Advocate General for Respondents Nos. 1 and 2.

Kabir Ahmed Chaudhry for Respondent No.3.

P L D 2024 Lahore 486

Before Aalia Neelum and Farooq Haider, JJ

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

SPECIAL JUDGE, (ANTI-TERRORISM COURT), LAHORE and 3 others---Respondents

Criminal Revisions Nos. 54056, 54326 to 54331 of 2023 and Criminal Miscellaneous No. 01 of 2024, decided on 24th January, 2024.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324 & 395---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dacoity, act of terrorism---Ad-interim pre-arrest bail---Non-appearance of petitioner/accused due to conviction and sentence in another case---Personal appearance, exemption from---Petitioner after getting pre-arrest bail in different cases, was convicted in another case, hence he was arrested, confined in jail and it was not possible for him to appear of his own before the Court on two dates, thus his bail petition was dismissed---Validity---Admittedly, petitioner was on ad-interim pre-arrest bail in different cases by the order of the Anti-Terrorism Court when he was convicted and sentenced in another case, therefore, it was not possible for the petitioner to appear on due dates before Anti-Terrorism Court of his own without intervention/order of said Court and even said state of affairs was brought into notice/knowledge of the Court through applications filed for exemption from personal appearance on due date---During pendency of said applications for pre-arrest bail filed by the petitioner before said Court in those cases, at one stage, said Court obtained/marked attendance of the petitioner through video-link---Impugned order revealed that it was in the knowledge of the Court that petitioner had been convicted and sentenced in another case---Presence of accused on each and every date of hearing before the Court during pendency of application for pre-arrest bail was necessary/mandatory and if he was not present in the Court, his petition would be dismissed due to lack of his presence---If some explanation had been given or brought into the notice of the Court regarding non-appearance of the accused and said explanation was satisfactory, then his presence could be exempted---Court had to consider that whether absence of the accused was for the reason beyond his control and in such circumstances, Court could procure his attendance to decide the application for pre-arrest bail on merits---Impugned orders were set-aside with the directions that all the applications filed by the petitioner for pre-arrest bail shall be deemed as pending before the Trial Court and the Trial Court shall decide applications filed by the petitioner for pre-arrest bail after obtaining/marking personal attendance of the petitioner through video-link---Petitions stood allowed.

Farhan Masood Khan v. State and others PLJ 2021 Cr.C. (Lahore) 550 and Muhammad Umar Farooq Saleem v. The State and another 2022 PCr.LJ 1525 ref.

Shazaib and others v. The State PLD 2021 SC 886 and Farhan Masood Khan v. State and others PLJ 2021 Cr.C. (Lahore) 550 rel.

Barrister Salman Safdar along with Mazhar Ali Haider and Abdullah Kassar for Petitioner.

P L D 2024 Lahore 502

Before Muhammad Tariq Nadeem, J

IMRAN AHMED KHAN NIAZI---Appellant

Versus

The RETURNING OFFICER FOR NA-122, LAHORE-VI and another---Respondents

Election Appeal No. 831 of 2024, decided on 10th January, 2024.

(a) Elections Act (XXXIII of 2017)---

----S. 63(1)(h)---Word "moral turpitude"---Defined---Action can be considered "moral turpitude" if it violates a person's moral fiber, diminishes his moral standards, or involves an act of inherent baseness in fulfilling one's private, social, or public obligations to one's fellow citizens, society, country, institutions and government.

Major Law Lexicon the phrase Moral Turpitude; Advanced Law Lexicon 4th edition, volume 3 at page 3126 the phrase Moral Turpitude; Merriam-Webster Dictionary; Black's Law Dictionary; Imtiaz Ahmed Lali v. Returning Officer and 3 others 2008 PLC (C.S.) 934; Ghulam Hussain v. Chairman, P.O.F. Board, Wah Cantt and another 2002 SCMR 1691; Muhammad Shabbir Abbasi v. Abdur Rashid Mughal 1984 CLC 270 and Zaheer Ul Islam Abbasi v. Umar Ayub Khan and 5 others PLD 2003 Pesh. 27 rel.

(b) Elections Act (XXXIII of 2017)---

----S.63---Criminal Procedure Code (V of 1898), S. 426---Election dispute---Nomination papers, rejection of---Conviction and sentence---Scope---Suspension of sentence---Effect---Appellant/candidate was convicted and sentenced by Court of competent jurisdiction for commission of a criminal offence---Appellate Court suspended sentence of appellant/candidate but his conviction was intact---Returning Officer rejected nomination papers of appellant/candidate as he had been convicted for commission of a criminal offence---Validity---There was no order of any court of competent jurisdiction regarding suspension of appellant/candidate's conviction---Suspension of sentence under S. 426, Cr.P.C. and suspension of conviction were poles apart---Conviction attained finality upon determination of guilt by Court of competent jurisdiction---During pendency of appeal, the Appellate Court, pursuant to S. 426, Cr.P.C., suspended execution of appellant/ candidate's sentence---Suspension pertained solely to the sentence and not the conviction, which remained operative until set aside by higher Appellate Courts---Mere pendency of appeal did not automatically nullify conviction---Appellate Court under S. 426, Cr.P.C., was not empowered to suspend conviction rather, it was a discretionary measure extended to accused---Suspension of sentence did not imply expungement of underlying conviction---Suspension of sentence imposed on appellant/candidatedid not affect the completed conviction, which had arisen upon determination of guilt by a Court of competent jurisdiction and that conviction held the field---Election Appellate Tribunal declined to interfere in the order passed by Returning Officer as the same was speaking, well-reasoned and neither illegal nor without lawful authority---Appeal was dismissed, in circumstances.

Gul Khan and others v. Saeed-ur-Rehman and others Civil Revision No. 4305 of 2023; Jamshed Iqbal Cheema v. The Election Appellate Tribunal and 19 others 2022 CLC 463; Jamshed Iqbal Cheema v. The Returning Officer, NA-133 and others 2023 MLD 132; Nadeem Shafi v. Tariq Shuja Butt and others PLD 2016 SC 944; Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Muhammad Sohail and 2 others v. Government of N.W.F.P. and others 1996 SCMR 218; Abdul Jabbar v. Administrator Abandoned Project Organization and others PLD 2004 Kar. 260; Justice Khurshid

Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; AIR 1983 SC 684; AIR 1924 PC 126 and AIR 1959 AP 280 ref.

Nasir Mehmood and another v. Umar Sajid and others 2019 SCMR 382; Abdul Kabir v. The State PLD 1990 SC 823 and Ch. Zahid Iqbal v. Returning Officer NA-162 (Sahiwal--III) and 3 others 2013 CLC 1856 rel.

Uzair Karamat Bhindari, Muhammad Azhar Siddique, Mian Sami-ud-Din, Ameer Hamza Dogar, Asfand Mir, Ali Uzair Bhindari, Kamran Asif, Amna Liaqat and Rai Muhammad Ali for Appellant.

Imran Arif Ranjha, Legal Advisor and Bushra Rasheed, Deputy Director (Law) with Muhammad Iqbal, Returning Officer, NA-122, Lahore-VI for Election Commission of Pakistan.

Barrister Abdul Qudoos Sohal and Muhammad Ramzan Chaudhary for Respondent No.2.

P L D 2024 Lahore 522

Before Aalia Neelum, Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

Mst. SAIMA NOREEN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 59829 and Criminal Miscellaneous No. 2 of 2021, decided on 31st January, 2023

Criminal Procedure Code (V of 1898)---

----Ss. 428 & 561-A---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Appellate Court may take further evidence or direct it to be taken---Scope---Petition was filed during the trial for summoning representatives of Telecom Company for verification of Call Data Records and also exhibiting the same but the same was dismissed---Validity---Any accused or witness could claim or admit possession and use of any SIM "Subscriber Identity Module' by him or anybody else at the time of occurrence or any other relevant time yet such mere claim or admission was not sufficient for relying on CDR "Call Data Record" of said SIM because CDR only showed use of SIM in territorial/ geographical jurisdiction of "Cell Phone Tower" installed by Telecom Operator and did not disclose that who was actually/exactly carrying and using said SIM---However, "Voice Record Transcript" or "End to End Audio Recording" could reflect the detail/identification of the user---Therefore, without "Voice Recording Transcript", mere "Call Data Record" (CDR) alone of the SIM was inconclusive piece of evidence regarding identity of its user/carrier---Admission of the witness regarding use of any SIM must be corroborated not only by its CDR but also by "end to end" audio recording of "voice call" confirmed by due forensic analysis---Furthermore, CDR and voice record transcript as well as its forensic analysis report must be proved in accordance with law for reliance---In peculiar facts and circumstances of the case, at appellate stage, "Call Data Record" (CDR) was not conclusive piece of evidence for the purpose of determining and establishing the identity and presence of any witness or person at some exact locale/position/place---Application filed by applicant for summoning representative of a telecom company for verification of photocopy of CDRs was dismissed by the trial Court and said order was not challenged and same attained finality---Only such piece of evidence could be brought on record through additional evidence at appellate stage which had been considered as necessary for decision of the case and had concrete evidentiary worth beyond shadow of doubt, however, in the instant appeal, the Call Data Record (CDR) did not fulfill said condition/criteria---During trial, applicant did not ask/move for production and bringing any voice record transcript/"end to end audio recording" of any phone call as well as forensic analysis report of the same, on record as evidence---If any piece of evidence was in the knowledge/notice of party but was neither produced nor asked to be produced during trial then same could not be allowed to come on record under S. 428, Cr.P.C., at appellate stage---Application was dismissed, in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522; The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Muhammad Asif Ali Usama v. The State and 2 others 2022 PCr.LJ 59 and Dildar v. the State through Pakistan Narcotics Control Board, Quetta PLD 2001 SC 384 rel.

Muhammad Zubair Khalid Chaudhary for Applicant/appellant.

Rana Ahsan Aziz, Additional Prosecutor General and Muhammad Waqas Anwar, Deputy Prosecutor General.

Asad Ali Bajwa, Deputy Attorney General, Ch. Naseer Ahmad Gujjar, Assistant Attorney General and Muhammad Latif, Assistant Attorney General.

Ajmal Adil, Assistant Advocate General and Mian Shakeel Ahmad, Assistant Advocate General.

P L D 2024 Lahore 545

Before Jawad Hassan, J

STRATEGIC PLANS DIVISION and another---Petitioners

Versus

PUNJAB REVENUE AUTHORITY and others---Respondents

Writ Petitions Nos. 3150, 3151 of 2022, 3972 and 3973 of 2023, decided on 23rd April, 2024.

(a) Punjab Sales Tax on Services Act (XLII of 2012)---

----Ss. 2 (38), 5, 24 & 52---National Command Authority Act (V of 2010), Ss. 5 & 7---Civil Procedure Code (V of 1908), S. 89-A & O. IX-A---Recovery of tax---Show cause notice---Scope---Alternate Dispute Resolution (ADR) proceedings---Petitioners assailed show cause notice issued for recovery of sales tax on services---Validity---Show cause notice is an official document issued by an authority to inform a recipient of a potential violation or non-compliance with a law, providing an opportunity to respond---Show cause notice upholds principle of natural justice, ensuring fair hearing before any decision affecting the rights or interests is made---Recipient is given adequate time to respond, access to relevant evidence, and an opportunity to be heard---Such process ensures unbiased decision-making, based on facts and relevant laws, protecting recipient's rights and interests---Principles of impartiality and reasons are also upheld, requiring decision-maker to be unbiased and provide reasons for their decision---Show cause notice is a crucial tool for law enforcement, ensuring fair and transparent process before any adverse order is passed---High Court declared that resolution of issue between parties through ADR was need of day to afford parties with an opportunity for resolution of the matter through such medium under umbrella of requisite confidentiality, trust and compliance of law---High Court asked representatives of petitioners to appear before respondent/authority to proceed ahead with mechanism of ADR in accordance with law and guidelines of Supreme Court---High Court in the meanwhile, under Doctrine of Stopgap Arrangement, restrained respondent/authority from adopting any coercive measures against petitioners, till finalization of mediation process---Constitutional petition was disposed of accordingly.

Commissioner Inland Revenue v. Messrs RYK Mills 2023 SCMR 1856; Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others PLD 2020 Lah. 632 = 2020 PTD 1464; Sindh Revenue Board Through Chairman Government of Sindh and another v. The Civil Aviation Authority of Pakistan through Airport Manager 2017 SCMR 1344; State Bank of Pakistan v. Federation of Pakistan and 4 others PLD 2023 Lah. 392; Muslim Commercial Bank Limited v. Deputy Commissioner of Income Tax and others 2004 PTD 1901; Chaudhary Sugar Mills Limited v. Chief Commissioner and 2 others 2016 PTD 527; Northern Power Generation Company Ltd. v. Federation of Pakistan and others 2015 PTD 2052; Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Gatron (Industries) Ltd. v. Government of Pakistan and others 1999 SCMR 1072; Murree Brewery Co. Ltd. v. Pakistan through Secretary to GOP, Works and Division and 2 others PLD 1972 SC 279; Reliance Commodities (Private) Ltd. v. Federation of Pakistan and others PLD 2020 Lah. 632; Dr. Seema Irfan and others v. Federation of Pakistan PLD 2019 Sindh 519; Union of India (UOI) and others v. Vicco Laboratories (2007) 13 SCC 270; Siemens Engineering v. Union of India AIR 1976 SC 1785; S.N. Mukherjee v. Union of India AIR 1990 SC 1984; Shell Pakistan Limited v. Government of Punjab and others 2020 PTD 1607 and Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126 rel.

(b) Punjab Sales Tax on Services Act (XLII of 2012)---

----Ss. 24 & 52---Show cause notice---Object, purpose and scope---Show cause notice served to taxpayer must encompass all essential facts and clearly outline alleged actions or inaction by taxpayer that breached law, facilitating a substantial response from taxpayer---It's crucial that taxpayer is faced with precise allegations, along with basis for such allegations, to adequately respond and to record relevant material that would be necessary for any defense presented and for any adjudication by assessing officer related to it---Once a show cause notice is served, original adjudication on the notice can only be founded on the grounds and allegations raised therein---Without confronting taxpayer with allegations through a show cause notice, assessing officer cannot make determination regarding allegations as it exceeds department's competence to argue a case which department never proposed and taxpayer had never been given chance to address---Unless allegations, and grounds on which allegations are based, are specifically stated in show cause notice served to taxpayer, the entire process becomes futile and legally untenable.

Commissioner Inland Revenue v. Pakistan Tobacco Company 2022 SCMR 1251; Al-Khair Gadoon v. The Appellate Tribunal 2019 SCMR 2018; Raj Bahadur v. Union of India (1997) 6 SCC 81; New Delhi Television v. Deputy Commissioner of Income Tax AIR 2020 SC 2177; Collector of Central Excise v. H.M.M. Limited 1995 Supp. (3) SCC 322 and SACI Allied Products v. Commissioner of Central Excise (2005) 7 SCC 159 rel.

(c) Punjab Alternate Dispute Resolution Act (XVII of 2019)---

----S. 2(b)---Alternate Dispute Resolution Act (XX of 2017), Ss. 4 & 25---Income Tax Ordinance (XLIX of 2001), S. 134-A---Companies Act (XIX of 2017), Ss. 276, 277 & 278---Civil Procedure Code (V of 1908), S.89-A & O. IX-A---Alternate Dispute Resolution (ADR)---Mediation---Scope---Mediation, a form of Alternative Dispute Resolution (ADR), is praised for its efficiency, cost-effectiveness and ability to foster amicable settlements---Unlike litigation's adversarial nature, mediation promotes a collaborative approach for parties to find mutually beneficial solutions---Courts should encourage mediation and exhibit a pro-settlement and pro-mediation bias, favoring dispute resolution through mediation over litigation---Such bias, favoring mediation process itself, is based on the belief that settlements are generally more efficient and satisfactory for all parties compared to court-determined outcomes---By promoting a pro-settlement bias, Courts can contribute to a harmonious and efficient dispute resolution environment, empowering parties to resolve conflicts collaboratively and constructively---As such it aligns with broader goals of global justice systems to resolve disputes fairly, efficiently, and in a manner conducive to long-term well-being of all parties involved---Centuries old traditional method of settlement of private dispute through negotiation is not only familiar in modern world, but such voluntary scheme for settlement of tax dispute through mediation and negotiation is an effective method to be followed---There are various forms of ADR such as mediation, arbitration, conciliation and compromise with or without intervention of court.

Federation of Pakistan and others v. Attock Petroleum Ltd. Islamabad 2007 SCMR 1095; Province of Punjab through Secretary C&W, Lahore, and others v. Messrs Haroon Construction Company, Government Contractor and others 2024 SCMR 947; Halsbury's Laws of England Fifth Edition (2008) Volume 2, Para 1204; Faisal Zafar and another v. Siraj-ud-Din and 4 others 2024 CLD 1; Netherlands Financierings Maatschappij Voor Ontwikkelingslanden N. V. (F.M.O.) v. Morgah Valley Limited and SECP PLD 2024 Lah. 315; Sohail Nisar v. Nadeem Nisar and others 2024 LHC 1435; Messrs U.I.G. (Pvt.) Limited through Director and 3 others v. Muhammad Imran Qureshi 2011 CLC 758 and Shehzad Arshad v. Pervez Arshad and 2 others Suit No.1721 of 2022 rel.

Ahmar Bilal Soofi, Senior Advocate Supreme Court, Fatima Midrar, Usman Jilani and Waseem Doga for Petitioners.

Hassan Kamran Bashir, Advocate Supreme Court, Zeeshaan Zafar Hashmi, Ali Farooq Shujra, Advocates for PRA with Nadia Murad, Legal Officer, with Zubair Abbas, PLO, SPD.

Hassan Askari Kazmi, Muhammad Bilal, Malik Shaukat Mahmood and Faizan Naseer Chohan, Advocates.

Abid Aziz Rajori, Assistant Advocate-General with Barrister Talha Ilyas Sheikh and Syed Saim Hassan, Advocates.

Arshad Mahmood Malik, Assistant Attorney General and Sibah Farooq, Advocate for Respondents.

P L D 2024 Lahore 561

Before Tariq Saleem Sheikh J

MUHAMMAD SHAHID FAQIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, BHAKKAR and 5 others---Respondents

Writ Petition No. 77199 of 2023, decided on 25th March, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), S. 29A---Ex-officio Justice of Peace, jurisdiction of---Dishonestly issuing a Cheque---Partnership firm---Liability of partners---Contention of the petitioner/complainant was that Ex-officio Justice of Peace had wrongly ordered to register the case against one of the partners only who signed the cheque: that the other two partners (respondents Nos. 4 and 6) being partners of the joint business were also collectively liable for the offence under S.489-F, P.P.C---Validity---Term "whoever" in S. 489-F, P.P.C., encompasses all offenders without distinction, whether natural or juristic persons---Corporation could be liable under S. 489-F, P.P.C. for dishonestly issuing a bad cheque---However, the guilt of an individual who authors the cheque on behalf of the corporation depends on his role, position, and authority within the organization and whether he holds the status of its "directing mind"---Certain provisions of the Partnership Act, 1932 such as Ss. 10, 12 & 24, impose criminal liability on partners for the actions of another partner in specific circumstances---Determination of criminal liability for dishonestly issuing a cheque was governed by S. 489-F, P.P.C. read with S. 29A of the Negotiable Instruments Act, 1881 ---All the elements of the offence must be established accordingly to hold a partner guilty---In the present case, respondents Nos. 4 and 6 were not the signatories of Cheque under question---Section 29A of the Act, ibid explicitly stated that no person is liable as a maker, drawer, endorser, or acceptor of a promissory note, bill of exchange, or cheque unless they have signed it as such---Therefore, respondents Nos. 4 and 6 could not be prosecuted under S. 489-F, P.P.C.---Importantly, the petitioner had submitted a copy of the Partnership Deed executed between respondents Nos.4 to 6 by which they established the firm---According to Clause 7 of the Partnership Deed, respondent No. 5 was designated as the firm's Managing Partner---Furthermore, Clause 8 stated that the firm would maintain bank account/accounts with selected bank/banks, which would be operated exclusively by respondent No. 5---Such clauses, along with others, indicated that while respondents Nos. 4 to 6 shared profits and losses equally, regardless of their capital contribution, respondent No. 5 was responsible for managing the business---In his application under S. 22-A, Cr.P.C., the petitioner asserted that respondents Nos. 4 and 6 were present with respondent No. 5 during the business transaction conducted in his office---However, petitioner had neither alleged in the said application nor brought any evidence on record suggesting that respondents Nos. 4 and 6 were complicit in dishonesty with respondent No. 5 when cheque under dispute was issued---Impugned order did not call for interference by the High Court, in circumstances---Petition had no merit and was dismissed.

Anil Hada v. Indian Acrylic Limited AIR 2000 SC 145; Monaben Ketanbhai Shah and another v. State of Gujrat and another AIR 2004 SC 4274 and Kabir Akbar v. The State and others 2023 PCr.LJ 1588 ref.

Cox v. Hickman 1860 8 HL, Cas 268; Sham Sundar v. State of Haryana AIR 1989 SC 1982; Anil Huda v. India Acrylic Limited AIR 2000 SC 145; Monaben Ketanbhai Shah and another v. State of Gujarat and others AIR 2004 SC 4274; S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elanjovan 2022 INSC 968; Muhammad Sultan v. The State 2010 SCMR 806; Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; Ramchandra Rango Sawkar and others v. Emperor AIR 1939 Bom. 129; Muhammad Abaid Ullah v. Ateeq-ur-Rehman and others 2015 CLD 307; Pynda Venkatachalapati Garu v. Pynda Ramakrishnayya and others AIR 1930 Mad. 168; State of Pakistan and another v. Securities and Exchange Commission of Pakistan and others PLD 2018 SC 52 and Tahir Naqash and others v. The State and others PLD 2022 SC 385 rel.

Zafar Iqbal Chohan for Petitioner.

Ms. Khalida Parveen, Additional Advocate General for Respondents Nos.2 and 3.

Rai Tariq Saeed Kharal, assisted by Kashif Akbar Bandesha for Respondents Nos.4 and 6.

Nemo for Respondent No.5.

Research assistance by Asim Murtaza Cheema and Husnain Ahmad Anwar, Research Officers, LHCRC.

P L D 2024 Lahore 570

Before Raheel Kamran, J

MUHAMMAD ILYAS---Petitioner

Versus

MUHAMMAD SAEED and others---Respondents

Writ Petition No. 35336 of 2024, decided on 5th June, 2024.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 19, 21(4) & 22(3)---Proceedings before the Rent Tribunal---Ex-parte order, assailing of---Application for leave to contest, non-filing of---Scope and effect---Application of the petitioner/tenant for setting aside ex-parte final order, without accompanying application for leave to contest, was dismissed by the Rent Tribunal, which judgment was maintained by the Appellate Court---Contention of the petitioner/tenant was that although no application for leave to contest was filed by him, however, specific plea was taken in the application for setting aide ex-parte final order to question ownership of respondent/landlord qua demised premises which warranted grant of leave, framing of issues and decision after recording of evidence---Validity---Section 21(4) of the Punjab Rented Premises Act, 2009 ('the Act 2009'), states that if an ex-parte order is passed against a respondent, the respondent may, within ten days from the date of knowledge, apply to the Rent Tribunal for setting aside ex-parte order along with an application for leave to contest---Section 22(3) of the Act 2009 provides that an application for leave to contest shall be in the form of a written reply, stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession, and, if desired, affidavits of not more than two witnesses---From perusal of S. 21(4) of the Act 2009, it is abundantly clear that while applying for setting aside an ex-parte order, a separate application for leave to contest, in the form and manner prescribed in S. 22(3) of the Act 2009 has to be filed within the period of limitation---Any plea taken on merits of the case in the application for setting aside ex-parte order passed by the Rent Tribunal under S. 21 of the Act 2009 without an application seeking leave to contest in the form and manner prescribed under S. 22(3) of the Act cannot be taken into consideration---No illegality, infirmity or jurisdictional error had been noticed in the impugned decisions of the courts below warranting interference of the High Court---Constitutional petition filed by the tenant, was dismissed in limine.

P L D 2024 Lahore 573

Before Sadaqat Ali Khan and Mirza Viqas Rauf, JJ

Messrs ASHFAQ BROTHERS and another---Appellants

Versus

ANTI-DUMPING APPELLATE TRIBUNAL OF PAKISTAN through Registrar and 4 others---Respondents

F.A.O. No. 74 of 2022, heard on 8th February, 2023.

(a) Anti-Dumping Duties Act (XIV of 2015)---

----S. 70 (13)---Orders passed by the Anti-Dumping Appellate Tribunal (Islamabad), assailing of---Lahore High Court, territorial jurisdiction of---Scope---Appellants were Importers of various commodities subjected to duties under the Anti-Dumping Duties Act, 2015 ('the Act 2015')---Appellants preferred appeal, before the Lahore High Court, against orders passed by the Anti-Dumping Appellate Tribunal, situated at Islamabad ("Appellate Tribunal")---Contention of the appellants was that since the "Appellate Tribunal" was performing functions in connection with affairs of the Federation, so appeal could be adjudicated by any of the High Courts against its decision while it was negligence on the part of the Federation that it failed to establish Benches at Lahore, Karachi, Quetta and Peshawar and the appellants could not be penalized on that score---Plea of the official respondents was that decision of the "Appellate Tribunal" could only be assailed before the Islamabad High Court and that not only order in original, but order in appeal were passed at Islamabad---Validity---Decision of the "Appellate Tribunal" is appealable under subsection (13) of S. 70 of the Act 2015, and it is evident from (the wordings of) said S. 70(13) that an appeal against the decision of the "Appellate Tribunal" lies before the High Court---However the term "High Court" is nowhere defined in the Act 2015---"Appellate Tribunal" is performing functions in connection with the affairs of the Federation---Admittedly, in the present case, initially investigation was started at Islamabad, which resulted into passing of order in original; the said order was assailed through an appeal before the "Appellate Tribunal" under Ss. 70(1)(2) & 70 of the Act 2015", which decided the same through impugned order---Thus, the word "High Court" used in subsection (13) of S. 70 of the Act 2015 corresponded to Islamabad High Court and, as such, the Lahore High Court lacked territorial jurisdiction to ponder upon the decision of the "Appellate Tribunal"---Resultantly, all the appeals were returned to the appellants to present the same to the Court of competent jurisdiction---Appeals were disposed of accordingly.

(b) Anti-Dumping Duties Act (XIV of 2015)---

----S. 70(13)---Orders passed by the Anti-Dumping Appellate Tribunal (Islamabad), assailing of---Lahore High Court, territorial jurisdiction of---Scope---Forum non conveniens, doctrine of---Appellants were importers of various commodities subjected to duties under the Anti-Dumping Duties Act, 2015 ('the Act 2015')---Appellants preferred appeal, before the Lahore High Court, against orders passed by the Anti-Dumping Appellate Tribunal situated at Islamabad ("Appellate Tribunal")---Contention of the appellants was that they were residing within the territorial jurisdiction of the Lahore High Court and it would be convenient for them to invoke its jurisdiction---Plea of the official respondents was that the appellants had changed their addresses with mala fide intent, so said jurisdiction could not be assumed on their convenience---Validity---Cause of action, in the present case, arose either at Islamabad or Karachi and even the present appellants while preferring their appeals before the "Appellate Tribunal" mentioned their addresses of places other than Rawalpindi city---Apparently, the appellants had now changed addresses for their convenience or for any other reason best known to them---Court cannot assume jurisdiction on the whims of the parties or to facilitate any of them---Doctrine of forum non conveniens is founded on the principle that if some other forum is more appropriate and the interest of justice would be served better, the Court may decline to exercise jurisdiction on the ground that a case could be suitably tried by another Court---However, said principle, being a discretionary power, allows courts to dismiss a case where another court, or forum, is much better suited to hear the case, having competent jurisdiction, which is the appropriate forum---Word "High Court" used in subsection (13) of S. 70 of the Act 2015 corresponds to Islamabad High Court and, as such, the Lahore High Court lacks territorial jurisdiction to ponder upon the decision of the "Appellate Tribunal"---Resultantly, all the appeals were returned to the appellants to present the same to the Court of competent jurisdiction---Appeals were disposed of accordingly.

Hassan Shahjehan v. FPSC through Chairman and others PLD 2017 Lah. 665; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Let.-Gen.(R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Messrs Karachi Iron and Steel Mercants Association through Authorised Representative and 30 others v. Anti-Dumping Appellate Tribunal and 22 others 2021 PTD 1150 ref.

Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703 and Muhammad Fayyaz v. Federation of Pakistan and others 2022 PTD 399 distinguished.

Naveed Zafar Khan, Muhammad Siddique Akbar and Ms. Nazma Parveen Malik for Appellants.

Malik Muhammad Saddique Awan, Additional Attorney-General for Pakistan, Arshad Mehmood Malik, Ch. Sajid Mehmood, Ch. Muhammad Rizwan and Ch. Tayyab Bilal, Assistant Attorney-Generals for Pakistan for Respondent No.1.

Waqas Amir and Ahmed Sheraz for Respondent No.2.

Ch. Muhammad Nawaz for Respondents Nos.3 and 4.

Saif Ullah Khan for counsel for Respondent No.5.

P L D 2024 Lahore 584

Before Tariq Saleem Sheikh, J

MUHAMMAD BILAL NAWAZ---Petitioner

Versus

DIRECTOR GENERAL, FIA, PUNJAB, LAHORE and 5 others---Respondents

Writ Petition No. 75231 of 2023, decided on 4th April, 2024.

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

----Ss. 5(1) & 5(5)---Anti-Money Laundering Act (VII of 2010), Ss. 8, 9 & 25(1)---Criminal Procedure Code (V of 1898), S. 4(l)--- Restriction imposed on Bank account---Inquiry and investigation---Petitioner was aggrieved of initiation of inquiry by Federal Investigating Agency (FIA) and imposing restrictions on his bank accounts---Validity---Section 550, Cr.P.C. encompassed bank accounts---Since the FIA was competent to exercise powers under S. 550, Cr.P.C., it held the authority to freeze bank accounts or restrict their operation under S. 5(1) of the FIA Act, regardless of whether the matter was in the inquiry or investigation stage---However, this would be subject to the condition that there should be some nexus with the alleged offence or that circumstances created suspicion of the commission of any offence---Freezing of accounts affects the right to privacy and the reputation of the account holder---Federal Investigating Agency could not arbitrarily freeze bank accounts or keep them frozen indefinitely---Such actions would violate the account holder's constitutional and legal rights---However, these individual rights must be balanced with the duty of the State to combat crime and punish offenders---Whenever the FIA issued a directive restricting an individual's bank account, whether during an inquiry or investigation, it must promptly notify the relevant Magistrate or Court, which would then issue an order in accordance with the law appropriate to the situation and circumstances---In the present case, Respondent No.3 (Inspector, FIA) had debit-blocked the Petitioner's account by exercising the authority under S. 5(5) of the FIA Act read with S. 8 of the Anti-Money Laundering Act---Fact that Respondent No.3 did not register an FIR upon receiving a complaint alleging the commission of a cognizable offence did not hinder the initiation of the investigation---Perusal of the record showed that Respondent No.3 had blatantly disregarded Ss. 8 & 9 of the Anti-Money Laundering Act in the present case---Investigating Officer did not obtain permission from the competent Court before issuing directives to the Bank concerning the petitioner's account---Investigating Officer did not render findings under S. 9(2) of the Anti-Money Laundering Act or applied to the Court for an order under S. 9(3) thereof---Investigating Officer did not submit a monthly progress report of the investigation to the Court---Petition was accepted and the limitation placed on the petitioner's bank account by Respondent No.3 was annulled.

Najib Rahim v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2017 Sindh 53; Muhammad Sohail Shaikh v. The State and others PLD 2021 Lah. 612; Uzma Adil Khan and others v. Federal Investigation Agency through Director General and others 2023 CLD 599 and Hamza Khalid v. The State and another 2023 LHC 7628 ref.

Munir Ahmad Bhatti v. Director FIA Cyber Crime Wing, Lahore and others PLD 2022 Lah. 664; Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Nevada Properties Private Limited v. State of Maharashtra and another (2019) 20 SC 119; State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC 685; Teesta Atul Setalvad v. The State of Gujarat AIR 2018 SC 27; Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Suraj Mohan Babu Mishra v, State of Gujarat AIR 1967 Guj. 126 and Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 rel.

(b) Anti-Money Laundering Act (VII of 2010)---

----Ss. 8 & 9---Criminal Procedure Code (V of 1898), S. 5(2)---Investigative process---Scope---Restriction imposed on bank account---Petitioner was aggrieved of initiation of inquiry by Federal Investigating Agency (FIA) and imposing restrictions on his bank accounts---Validity---Section 8(1) of the Anti-Money Laundering Act stipulates that an Investigating Officer might, on the basis of a report from the concerned Investigating or Prosecuting Agency, with the prior permission of the Sessions Court having the jurisdiction, provisionally attach such property which he reasonably believes to be the property involved in money laundering for a period not exceeding 180 days from the date of the order---However, the Session Court might grant a further extension for up to 180 days---Section 8(2) states that the Investigating Officer shall, within forty-eight hours immediately after the attachment, forward a copy of the order and the investigating or prosecuting agency's report to the head of the concerned investigating agency in a sealed envelope---Section 8(3) specifies that every order of attachment made under S. 8(1) shall cease to have effect after the expiry of the period specified in that subsection or on the date of the finding made under S. 9(2), whichever is earlier---Section 8(5) mandates that the Investigating Officer who provisionally attached any property under S. 8(1) shall submit a monthly progress report to the Sessions Court regarding the investigation---In the present case the Investigating Officer did not render findings under S. 9(2) of the Anti-Money Laundering Act or applied to the Court for an order under S. 9(3) thereof---Investigating Officer did not submit a monthly progress report of the investigation to the Court---Petition was accepted accordingly and the limitation placed on petitioner's bank account was annulled.

Muhammad Osama Asif assisted by Waqar Ranjha for Petitioner.

Asad Ali Bajwa, Deputy Attorney General for Pakistan and Zain Qazi, Assistant Attorney General for Pakistan with Sh. Amer Sohail Anjum, Assistant Director (Legal) FIA for Respondents Nos.1 to 4.

P L D 2024 Lahore 598

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

CHIEF SETTLEMENT COMMISSIONER/ MEMBER (JUDICIAL-V) BOARD OF REVENUE, PUNJAB, LAHORE---Petitioner

Versus

AURANGZEB SHAAFI BARKI and others---Respondents

C. M. No.1160 of 2022 in I.C.A. No. 09 of 2020 in W.P. No. 2290 of 2019, heard on 10th June, 2024.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 21---Civil Procedure Code (V of 1908), S. 12(2)---Judgment, setting aside of---Fraud and misrepresentation---Framing of issues---Principle---Allotment of land in question was cancelled by Settlement Authorities and High Court restored the order of allotment---Authorities filed application under S. 12(2), C.P.C. for setting aside the judgment restoring allotment in question---Plea raised by respondents was that issues were required to be framed by Court prior to setting aside judgment in question---Validity---Application under S. 12(2), C.P.C. can be decided without framing of issues and recording of evidence, which is not obligatory for Court---It is the satisfaction of Court either to frame issues, record evidence or decide such applications as it may deem fit and proper after considering circumstances of each case---No yardstick can be fixed for adjudication of such application---Determination of allegations of fraud and misrepresentation usually involves investigation into questions of fact but it is not in every case that Court is under obligation to frame issues, record evidence of parties and follow procedure prescribed for decision of suit---Relevant authorities did not find any record of RL-II pertaining to land in question, available in record---No RL-II pertaining to land in question was issued either to respondents or others---If on the basis of void order/judgment, subsequent orders were passed either by same authority or by other authorities, the whole series of such orders, together with superstructure of rights and obligation built upon, them, must unless some statue or principle of law recognizing as legal, the changed position of the parties is in operation, fall to ground because such orders have as little legal foundation as the void order on which they are founded---In the present case there existed no need to frame issues and record evidence---High Court in exercise of powers under S. 12(2), C.P.C. set aside the order passed by authorities---Application was allowed in circumstances.

Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore v. Akhtar Ali Khan and others 2007 SCMR 459; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 and Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12 rel.

Shahid Munir, AAG with Agha Zaheer Abbas Sherazi, Deputy Commissioner Murree for Petitioner.

Syed Iqbal Husain Shah Gillani for Respondents.

P L D 2024 Lahore 608

Before Sultan Tanvir Ahmad, J

WAHEED YOUNAS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 3 others---Respondents

Writ Petition No. 47196 of 2022, decided on 11th June, 2024.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(a), 2(f) & 19---Eviction of tenant---Relationship of tenant and landlord, denial of---Dispute qua ownership of rented premises---Ejectment-petitioner (Masjid) sought eviction of the tenant from its (Masjid's) shops---Plea of the tenant was that he was not under tenancy of the ejectment-petitioner, instead (he was tenant) of Evacuee Trust Property Board ('Evacuee Board') to whom rented-premises belonged---Tenant filed present constitutional petition against eviction orders concurrently passed against him---Held, that record revealed that the petitioner/tenant, while making reference to a document having been exhibited as evidence, claimed that he was a tenant of respondent (Evacuee Board)---Said document was prepared after the filing of ejectment-petition---Petitioner, in his evidence, had even denied having any knowledge as to the amount paid to respondent (Evacuee Board) at the time of alleged execution of the said document---Petitioner also admitted that a real uncle of the petitioner was president of the mosque committee but then again denied, for want of knowledge, that the said uncle/president gave the premises to the predecessor of the petitioner, on rent---Reading of evidence had left no doubt that the predecessor of the petitioner entered into (exhibited) rent agreement with the ejectment-petitioner---Petitioner asserted that instead of ejectment-petitioner, respondent (Evacuee Board) was the actual owner, however, in said respect previous judgment passed in previous constitution petition had already been decided, which was contested by respondent (Evacuee Board) as well ; and, after hearing the parties, High Court reached to the conclusion that factual controversy was involved vis-à-vis the ownership dispute which could not be resolved without recording of evidence---Said order (passed in constitutional petition), admittedly, was never assailed and instead a reference had been filed by respondent (Evacuee Board), with respect to several shops including the premises before the Chairman of the Evacuee Trust Property Board which was pending adjudication---Record even revealed that the petitioner filed a suit before institution of present eviction proceedings claiming himself to be the owner of the premises---Thus, the petitioner could not be allowed to adopt two different versions in two different cases, which was hit by principle of approbate and reprobate; in one case he had pleaded himself to be the owner of the premises and in the ejectment-petition he had taken the defence quite contrary to the earlier---Dispute of ownership, between ejectment-petitioner (Masjid) and respondent (Evacuee Board) was to be determined by the forum having authority to record evidence---Undoubtedly, the ejectment-petitioner (Masjid) for the time being was receiving rent with respect to the premises (shops)---No benefit could be given to petitioner/tenant for the dispute of ejectment-petitioner and respondent (Evacuee Board)---No illegality, infirmity or mistake had been made by both the Courts below while passing eviction order---Constitutional petition, filed by tenants, was dismissed, in circumstances.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(a), 2(f) & 19---Eviction of tenant---Rented premises claimed to be "any place of religious worship"---Scope---Rent Tribunal, jurisdiction of---Scope---Ejectment-petitioner (Masjid) sought eviction of the tenant from its (Masjid's) shops---Tenant filed present constitutional petition against eviction orders concurrently passed against him---Held, that petitioner, while relying upon Ss. 2(a) & 2(f) of the Punjab Rented Premises Act, 2009, contended that the Rent Tribunal did not have jurisdiction to adjudicate upon the matters pertaining to "any place of religious worship"---Punjab Rented Premises Act, 2009, provides that application in respect of rented premises shall be filed in the Rent Tribunal for the settlement of the disputes in an expeditious manner; the "premises" as mentioned in S. 2(f) of the Act 2009 includes "building", while defining the word "building" S. 2(a) of the Act, 2009, excludes room in a hotel, hostel, boarding house, guest house or any place of religious worship---However the words 'any place of religious worship' by no means can be stretched to a premises or building that is being used for a commercial purpose---Admittedly, the premises-in-question are shops, being used for commercial purpose---Said provisions of the Act, 2009 cumulatively reveal that any property, space or premises let out for the purpose of business or trade are not intended to be excluded from the definition of building or for that matter premises---Thus, the objection of the petitioner as to maintainability of the ejectment-petition, was rejected---No illegality, infirmity or mistake had been made by both the Courts below while passing eviction order---Constitutional petition, filed by tenants, was dismissed, in circumstances.

Syed Zulfiqar Ali Shah for Petitioner.

Syed Muhammad Shah for Respondent No. 3.

Rana Zahid Nasim Shahid for Respondent No. 4.

P L D 2024 Lahore 615

Before Abid Hussain Chattha, J

MEEZAN BEVERAGES (PVT.) LIMITED through duly authorized officer ---Petitioner

Versus

COMPETITION COMMISSION OF PAKISTAN through Chairman and 2 others---Respondents

Writ Petition No. 48527 of 2021, decided on 26th June, 2024.

(a) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----S. 16 & Preamble---Intellectual Property Organization---Object, purpose and scope---Purpose of Intellectual Property Organization of Pakistan Act, 2012 is to consolidate regulation of all existing intellectual property laws included in its Schedule by Intellectual Property Organization and vests exclusive jurisdiction in the Tribunal to try all offences and adjudicate all suits and other civil proceedings regarding infringement or breach of intellectual property laws.

(b) Competition Act (XIX of 2010)---

----Ss. 10 & 12---Intellectual Property Organization of Pakistan Act (XXII of 2012), S. 3---Term "deceptive marketing practice"---Competition Commission and Intellectual Property Organization---Jurisdiction---Distinction---Provision of Competition Act, 2010, relates to competition laws, whereas, Intellectual Property Organization of Pakistan Act, 2012, pertains to intellectual property laws---Each enactment has created a specialized regulatory body and has put in place a self-contained regulatory framework to administer duties and obligations imposed by law---Provision of Intellectual Property Organization of Pakistan Act, 2012, consciously excludes Competition Act, 2010, from its Schedule---Legislature has intentionally kept Competition Act, 2010, beyond the purview of Intellectual Property Organization of Pakistan Act, 2012---Term 'deceptive marketing practices' under S. 10 of Competition Act, 2010, constitutes a necessary and essential element of competition law, jurisdiction of which is vested with Competition Commission of Pakistan under the Competition Act, 2010.

(c) Competition Act (XIX of 2010)---

----Ss.10 & 37(2)---Competition Commission (General Enforcement) Regulations, 2007, Regln. 16 (2)---Intellectual Property Organization of Pakistan Act (XXII of 2012), Ss. 3 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Deceptive market practice---Show cause notice---Inquiry officer, appointment of---Petitioner company was aggrieved of issuance of show cause notice by Competition Commission under Regln. 16(2) of Competition Commission (General Enforcement) Regulations, 2007, as a complaint had been filed by respondent company alleging deceptive marketing practices and an inquiry officer had been appointed---Validity---In terms of deceptive marketing practices, jurisdiction of Competition Commission under Competition Act, 2010 and Intellectual Property Organization or the Tribunal under Intellectual Property Organization of Pakistan Act, 2012, were distinct and separate in terms of ambit and scope of such laws and did not amount to any inconsistency or conflict of jurisdiction---Show cause notice issued by Competition Commission was not without jurisdiction---Constitutional jurisdiction of High Court as a normal rule could not be invoked on mere suspicion or apprehension when no substantive right was infringed and aggrieved party had right to advance its defence in response to a notice---Challenge to a show cause notice in constitutional jurisdiction at premature stage and tendency to bypass remedy provided under concerned statute amounted to fetter rights conferred on statutory functionaries specially constituted for the purpose to initially decide the matter---Objections of petitioner company would have been decided by Competition Commission during proceedings under show cause notice but such an occasion did not arise due to filing of petition before High Court---Petitioner company did not approach High Court with clean hands and resorted to uncalled for litigation, obstructing the Commission as a regulator empowered under the law to undertake and perform its routine functions and duties---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Competition Commission of Pakistan and others v. Dalda Foods Limited, Karachi 2023 SCMR 1991 ref.

Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others 2022 SCMR 92 rel.

Adil Bandial for Petitioner.

Ali Javed Darugar for Respondents.

P L D 2024 Lahore 626

Before Ali Zia Bajwa, J

MUHAMMAD IMRAN---Petitioner

Versus

INSPECTOR GENERAL OF POLICE and 5 others---Respondents

Writ Petition No. 8709 of 2024, decided on 20th February, 2024.

(a) Constitution of Pakistan---

----Art.199---Habeas corpus petition---Recovery of detenu from illegal custody of police---Petitioner sought recovery of detenu, his real brother, who was allegedly in illegal detention of police---Held, that through the orders dated 07.02.2024 and 09.02.2024, directions were issued to police of concerned Police Stations to produce the detenu before the Court---On 14.02.2024, SHO Police Station concerned appeared before the Court and filed his report according to which the detenu was arrested on 13.02.2024 and sent to judicial lockup for Test Identification Parade (TIP) in connection with case FIR for the offence under S. 392, P.P.C---Such conduct of the SHO Police Station concerned was sufficient to raise eyebrows, as the entire process of arrest and sending the detenu to the judicial lockup for TIP was carried out after the direction was issued by the High Court to produce him before the Court---In reply to the different Court queries, the conduct shown by SHO concerned was evasive, thus, he was issued a show-cause notice to explain why contempt proceedings should not be initiated against him---District Police Officer (DPO), concerned was also directed to appear before the Court along with the complete record of the said criminal case---On the next date of hearing, the DPO appeared before the Court and filed his report---Record of the case reflected that ASI arrested the detenu on 13.02.2024 at 6:00 p.m. and produced him before the Area Magistrate on the same day at 8:00 p.m. in a slipshod manner as the case before the High Court was fixed on 14.02.2024---Thus, it was seemingly done to legalize the custody of the detenu to avoid the legal consequences of keeping someone in illegal custody and to defeat the directions issued by the Court for the production of the detenu---According to the report of DPO, the detenu was lodged in District Jail on 13.02.2024 but the report of the Superintendent of that jail reflected that the detenu was received in the prison on 14.02.2024 at 7:10 p.m., meaning thereby that on 14.02.2024 the detenu was in the police custody but he was not produced before the Court---When confronted with such state of affairs, the DPO pledged before the Court to hold an independent inquiry to expose the illegalities committed by his subordinate Police Officials---Later, District Police Officer appeared before the Court and stated that during the fact-finding inquiry, it was proved that the detenu remained in illegal custody and apprised the Court that the detenu had been discharged from the said criminal case and strict action was initiated against the delinquent Police Officials involved in keeping the detenu in illegal custody, which would be concluded expeditiously---Show cause notice issued to the Station House Officer, Police Station concerned was withdrawn, leaving the matter to be dealt with by the internal mechanism of accountability in the police department---Petition was disposed of accordingly.

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

----Ss. 163 & 167(3)---High Court (Lahore) Rules and Orders, Vol-III, Part-B, Rr. 8 & 9---Remand of accused---Role and duty of Magistrate---Scope---Alleged accused was sent to judicial lockup for Test Identification Parade---In the present case when the accused was produced before the Magistrate, for sending him to judicial lockup, the Magistrate passed an order mechanically, without careful and thoughtful consideration that was required for such a significant order which curtailed the liberty of an individual---Magistrate's order, which authorized the incarceration of the detenu for Test Identification Parade, lacked a detailed justification or rationale based on the evidence available on the police file, therefore, it was a non-speaking order---Moreover, while dealing with the question of sending an accused to prison for TIP, a Magistrate has a crucial responsibility to thoroughly review the case diaries to determine the necessity of acceding to the request of the investigating agency---Such process is not a mere formality, but a substantive judicial duty aimed at safeguarding the rights of the accused while balancing the requirements of the investigation---Order of the Magistrate, in the present case, had no reference to the case diaries and material available on the record warranting sending of the detenu to judicial lock-up for TIP---Had the Magistrate adequately assessed the facts and circumstances of the case, he would have been in a better position to protect an innocent person from police oppression---Detenu was produced before the Magistrate after court hours---Practice of presenting the accused before a Magistrate outside of regular Court hours was deprecated by the Courts---Principle is that the accused should be produced before the Magistrate within official Court hours to ensure that the proceedings are conducted transparently and within the formal legal framework---Presenting an accused after Court hours could necessitate conducting such proceedings at the Magistrate's residence or another unofficial location, a practice that constitutional Courts have explicitly criticized for lacking transparency and formal procedural safeguards---Request of the investigating agency regarding remand should be entertained in open Court during Court hours unless there are extraordinary compelling reasons and circumstances for doing so in any other place than the open Courtroom.

Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 rel.

(c) Administration of justice---

----Judicial order---Proper adjudication---Judicial order in judicial proceedings is essential and refers to a judgment or decision delivered by a court that comprehensively outlines the reasons behind the court's conclusions---Speaking orders provide a clear and detailed explanation of the reasoning behind a decision---An order being a 'speaking one' is also essential for the parties involved in the case to understand the basis of the findings of the court---If a party wishes to challenge the decision, a speaking order provides a clear framework for the grounds of appeal---Without a reasoned judgment, it would be difficult to identify any potential errors in law or fact to challenge the same.

Sajjad Ahmad Jatoi for Petitioner.

Shahid Nawab Cheema, Assistant Advocate General with Abdullah Ahmad Malik, District Police Officer, Chiniot, Abaid Ullah DSP Legal, Ijaz Imran Station House Officer, Waseem Sajjad SI and Farasat Ullah Station House Officer for the State.

Sohail Khan Chadhar for Respondent No.6.

Research Assistance by Amad Tahir Ch.

P L D 2024 Lahore 637

Before Shahid Karim, J

HAROON FAROOQ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 59599 of 2022, decided on 30th March, 2023.

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

----S. 124A---Constitution of Pakistan, Arts. 19 & 19A---Sedition---Provision of S. 124A, P.P.C., vires of---Fundamental rights---Freedom of speech---Good governance---Doctrine of trust---Applicability---Petitioner assailed offence of sedition provided in S. 124A, P.P.C., as ultra vires the Constitution---Validity---Constitutional democracy enshrines fundamental rights which are conferred upon people and the most cherished of those rights is the right to freedom of speech and expression---There cannot be abridgement of speech unless it falls within the strict confines of exceptions to Art. 19 of the Constitution---Doctrine of trust and role of Government as a trustee, the structure of constitutional democracy and the new branch of IPDs (Institutions for Protecting Constitutional Democracy) conjointly bolster greater need for free speech---This is of the essence of rule of law and hews more closely to constitutionalism---Provision of S. 124A, P.P.C., is in significant tension with Constitutionalism and constitutional democracy---Freedom of speech cannot be defined as freedom to say what is welcome to an authority, which is precisely what S. 124A, P.P.C., seeks to achieve---Power to restrict free speech and freedom of press is circumscribed and hedged in by the fields of legislation specifically mentioned in Art. 19 of the Constitution---Any law which seeks to suppress freedom of speech and press and does not fall strictly within one of the exceptions in Art. 19 of the Constitution, falls afoul of it and is ultra vires to that extent---High Court in exercise of constitutional jurisdiction declared provision of S. 124A, P.P.C., unconstitutional as it offended fundamental rights enshrined in Arts. 19 & 19A of the Constitution---High Court further declared that the provision of S. 124A of P.P.C. void as whole, as it was inconsistent with and in derogation of fundamental rights---Constitutional petition was allowed, in circumstances.

Kedar Nath Singh v. The State of Bihar (1963) 1 MLJ 40 (SC); R v. Sullivan and R v. Pigott (1868) 11 Cox CC 44 at 49; Queen Empress v. Balagangadhar Tilak (1898) I.L.R 22 Bom. 112; Abrams v. United States 250 U.S. 616 (1919); Whitney v. California 274 U.S. 357, 375-77 (1927); Black's Law Dictionary (8th Edition); New York Times Co. v. Sullivan 376 U.S. 254; Muhammad Yasin v. Federation PLD 2012 SC 132; Syed Yousaf Raza Gillani v. Assistant Registrar Supreme Court PLD 2012 SC 466; Reynolds v. Times Newspapers [2001] 2 AC 127, 207; Attorney General v. Newspapers Ltd. (No.1) [1987] 1 WLR 1248, 1286; R v. Secretary of State for the Home Deptt. Exp. Simons [2000] 2 A.C 115; Begum Zeb un Nisa v. Pakistan PLD 1958 SC (Pak) 35, 39; United States v. Schwimmer, (1929) 279 US 644 and Yankov v. Bulgaria, 15 BHRC 592 rel.

(b) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of speech and right to information---Scope---Right to information is qualified only to the extent of interests mentioned in Art. 19 of the Constitution, otherwise right to information is absolute---Right under Art. 19A of the Constitution is subject to "reasonable restrictions imposed by law"---Provisions of Arts. 19 & 19A of the Constitution have to be read together to form a seamless web---Right to freedom of speech is incomplete without freedom of press which in turn, secures right to have access to information in all matters of public importance---Constitution guaranteed freedom of speech by Art. 19 and lest its significance be lost, enacted Art. 19A of the Constitution to confer right to have access to information in all matters of public importance.

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

----S. 124A---Sedition---Pre-conditions---It is an offence to bring into hatred or contempt or excite disaffection towards Federal or Provincial Government---There is a wide margin of appreciation of terms of "hatred" and "disaffection" and it is entirely subjective for a construction to be put on them---Their degrees may also vary considerably but that may not matter ultimately since if it is encompassed in the term in the opinion of a decision maker, it is sufficient for an offence to be cognizable.

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

----S. 124A---Constitution of Pakistan, Arts. 19 & 19A---Sedition---Freedom of speech and right to information---Role of media---Freedom of press---Scope---Proper functioning of a modern participatory democracy requires media to be free, active, professional and enquiring---Only limitation that can be placed on a free press is one enumerated as exceptions to Art. 19 of the Constitution and must be proportionate and no more than is necessary to promote legitimate object of restriction---Offence of sedition in S. 124A, P.P.C., travels beyond the limitation placed by Art. 19 of the Constitution regarding role of press and its freedoms which must not be abridged on the misplaced notion that government of the day can suppress political speech at will.

R (Rusbridger) v. A.G (2003 4 All ER 784); New York Times v. Sullivan (1964) 376 US 254; Whitney v. California (1927) 274 US 357; All Pakistan Newspapers Association v. Federation PLD 2012 SC 1; AIR 1986 SC 515; A.G. v. Guardian (No.2) (1988) 3 All ER 545, 600; Reynolds v. Times Newspaper (1999) 4 All ER 609, 628-9 and Lamont v. Postmaster General 381 U.S 301 (1965)

rel.

Abuzar Salman Khan Niazi, Shezal Khan Burki, Barrister Daraab W. Furqan, Zain Sheikh, Ali Raza Kasuri, Ch. Sabir Ali, Shehzad Ahmad, Ghulam Ahmad Ansari, Ashiq Ali Rana, Mian Faisal Naseer and Syed Kamal Ali Haider for Petitioner .

Ms. Asma Hamid, Amicus Curie assisted by Ms. Noor Ahsan for Petitioner.

Asad Ali Bajwa, D.A.G. and Muhammad Saad Bin Ghazi, A.A.G. for Respondents.

P L D 2024 Lahore 676

Before Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ

MUHAMMAD WASEEM---Appellant

Versus

MAPLE LEAF CEMENT FACTORY LIMITED---Respondent

Regular First Appeal No. 20 of 2024, decided on 9th September, 2024.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), S.6---Summary suit for recovery based on a cheque---Pre-requisites---Proof of contractual relationship/agreement between the parties---No suit under O.XXXVII, C.P.C can be filed without an agreement/relationship between the parties---Cheque is a negotiable instrument under the Negotiable Instruments Act, 1881 and without negotiation of the parties on an agreement, no such suit could be filed---Suit under O. XXXVII of the C.P.C has to be filed along with supporting negotiable instruments of the parties, instrument through a contract or through any relationship, which must be express, implied or in written form or oral.

Mehr Noor Muhammad v. Nazir Ahmed PLD 2024 SC 45; Telenor Microfinance Bank Limited v. Shamim Bano and others 2023 SCMR 1560 and Chand Bagh Foundation through Authorized Representative v. Standard Chartered Bank Limtied through Manager and another PLD 2011 Lah. 473 ref.

Ms. Nosheen Nazeer Raja for Appellant.

P L D 2024 Lahore 680

Before Raheel Kamran, J

MUZAMMAL RAFIQ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos. 50232 and 51306 of 2024, decided on 4th September, 2024.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Scope---Government policy---Courts cannot assume the role of Appellate Authority to examine the rightness, suitability and appositeness of a policy---Scope of judicial review while examing a policy of a Government is to see whether it encroaches upon the fundamental rights of the citizens or violates any provision of the Constitution or any statute.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Policy matter involving complicated economic factors---Privatization of State Owned Organization---Scope---Petitioner assailed policy of Government to privatize Utility Stores Corporation of Pakistan---Validity---Courts cannot interfere with policy either on the ground that it is erroneous or that a better, fairer or wiser alternative is available---Duty of Court is to confine itself to the question of legality and its concern should be whether a decision making authority exceeded its powers or committed an error of law---Policies of Government may not remain stagnant, rather with the change in economic climate, the wisdom and manner for Government to run commercial projects may require reconsideration---Policy might have been in the public interest at one point of time, however, the same may not be considered so at some other point of time---Therefore, any decision of Government that it could not run the Corporation departmentally or any other form was not justiciable---Indeed Parliament is the forum for debates on questions involving political economy and not the Courts---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Dr. Akhtar Hussain Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others AIR 2007 Supreme Court 1640 and BALCO Employees Union (Regd.) v. Union of India and others AIR 2002 SC 350 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Principle---Writ lies when some legal right of any party is infringed.

Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583 and Union of India and another v. Kunisetty Satyanarayana AIR 2007 Supreme Court 906 rel.

Asif Shahzad Sahi for Petitioner.

Ch. Imtiaz Elahi, Deputy Attorney General for Pakistan.

Hamza Sheikh and Muhammad Mansoor Ali Sial, Assistant Attorneys General for Pakistan.

P L D 2024 Lahore 684

Before Muhammad Amjad Rafiq, J

MEHMOOD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 10-T of 2024, decided on 29th April, 2024.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of a criminal case---Impartiality or bias of a Judge---Judicial proprietary--- Scope--- Grounds raised by the applicant/accused were that the Judicial Officer in connivance with the complainant had geared up the process of recording of evidence without fulfilling the requirement of fair trial and due process; that the Judicial Officer and the counsel for the complainant belonged to the same caste and the petitioner being accused of the case did not expect fair trial due to biasness of the Judicial Officer---Validity---Apprehension of the petitioner about not expecting fair trial on the face of it was not well founded because being caste fellow or from the same brotherhood by a counsel did not mean that the Judicial Officer would lean in favour of the complainant side as otherwise case was decided on the basis of evidential record and material produced by the parties, whereas in order to avert delayed justice expeditious trial was the requirement of law---Petitioner had also filed another application for transfer of another case lodged by a separate complainant wherein grounds for transfer were almost identical which showed the intention of petitioner to overawe the Judicial Officer---On one hand, Judicial Officers were expected to be fair and impartial and on the other hand, it could not be allowed that they might be subjected to undue harassment by way of moving baseless applications seeking transfer of the cases---Outlined grounds in the petition for seeking transfer of the case mainly roamed around the apprehension of unfair treatment due to expected biasness; therefore, it was essential to see the legal value of apprehension in such situation and the concept of biasness---Mere apprehension in the mind of a party about injustice at the hands of Presiding Officer was no ground for transfer of a case---Petitioner had not pointed out any material through which it could be inferred that Magistrate was personally interested in the case or was biased towards the petitioner in any manner---Allegation of bribery was also not made expressly nor advocated vigorously; so much so, it was conceded that trial was at initial stage, therefore, merely on the basis that Magistrate was the caste fellow of counsel for the complainant and was conducting trial expeditiously, alleged biasness could not be anticipated at such stage of the proceedings---Petition was dismissed accordingly.

Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327; Rahim Bakhsh v. Khalilur Rehman PLD 1971 Lah. 517; Daud Iqbal Pervaiz and another v. The State PLD 1990 SC 705; Aqa Syed Asghar Hussain v. The State 1968 SCMR 381; Muhammad Arshad v. The State 1997 SCMR 949; Sardar Khan and others v. Muhammad Afzal and others 2013 PSC Criminal 22; Ms. Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140; Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others PLD 1957 SC (Ind.) 346; Anwar and another v. The Crown PLD 1955 Federal Court 185; Adan Haji Jama and others v. The King 1948 AC 225; Terrance Williams v. Pennsylvania 2016 SCMR 1561 and Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A., Former President of Defunct National Awami Party PLD 1976 SC 57 rel.

Shahrukh Zaman Baloch for Petitioner.

P L D 2024 Lahore 695

Before Anwaar Hussain, J

BAGH ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PAKPATTAN SHARIF and 3 others---Respondents

Writ Petition No. 11458 of 2024, heard on 18th April, 2024.

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

----Arts. 117 & 120---Fact, proof of---Onus to prove---Maxim "onus probandi actori incumbit"----Applicability---He who asserts a fact must prove the same, which is based on Latin maxim "onus probandi actori incumbit"---Mode of proof is the procedure by which "facts in issue" and also "the relevant facts" have to be proved during trial.

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

----Art. 77---Specific Relief Act (I of 1877), S. 12---Secondary evidence, leading of---Principle---Prior notice---Requirement---In suit for specific performance of agreement to sell, petitioner/defendant was aggrieved of permission granted to respondents/plaintiffs to lead secondary evidence with regard to legal notice in question without filing application in such regard---Validity---Party may furnish secondary evidence and filing of application seeking permission to lead secondary evidence is not mandatory in every case---Application for leading secondary evidence by a party is not precluded---As filing of a formal application for leading secondary evidence is not mandatory, the stage at which such application is filed becomes irrelevant---Respondents/plaintiffs filed application for the reason that legal notice issued by their counsel, duly referred (by name) in plaint of their suit and copies of postal receipts were appended with plaint and petitioner/ defendant had denied the same, therefore, respondents/plaintiff sought to lead secondary evidence of legal notice---Lower Appellate Court in exercise of revisional jurisdiction correctly upheld the decision of Trial Court, with independent and cogent reasons---Respondents/plaintiffs made out a prima facie case to lead secondary evidence and prior notice in terms of Art. 77 (1) of Qanun-e-Shahadat, 1984 was not required, as document intended to be produced itself was a notice---High Court declined to interfere in orders passed by two Courts below---Constitutional petition was dismissed in circumstances.

Muhammad Khan and 9 others v. Ameer Khan Gaddi Balloch 2008 YLR 296; Altaf Hussain Shah and another v. Abdul Qadeer and 2 others 2004 YLR 824 and Liaqat Ali v. Muzaffar Khan and another 2003 YLR 1899 rel.

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

----Art. 72---Document---Proof---Marking of exhibit---Scope---Mere admission of a document in evidence and making exhibit thereof does not prove such document automatically---Attesting to authenticity, truthfulness or genuineness of a document has to be established during the course of trial, in accordance with law.

Arshad Ali Chohan for Petitioner.

Ch. Tanveer Ahmad Hajra and Rana Muhammad Arif for Respondents Nos.3 and 4.

P L D 2024 Lahore 702

Before Tariq Saleem Sheikh, J

MANZOOR AHMAD---Petitioner

Versus

MUHAMMAD UMAR FAROOQ and another---Respondents

Criminal Miscellaneous No. 78015/CB of 2023, decided on 1st April, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Juvenile Justice System Act (XXII of 2018), S. 6(3)---Penal Code (XLV of 1860), Ss. 337-F(vi) & 34--- Munaqqilah, common intention---Release of juvenile on bail---Petition for cancellation of bail---Section 6(3) of Juvenile Justice System Act, 2018---Inter-pretation---Accused were charged for assaulting the petitioner, which resulted in a fracture to his left arm---Respondent No.1 was admittedly a juvenile and was accused of an offence under Ss. 337-F(vi)/34, P.P.C---Said offence was classified as a "major offence" under the Juvenile Justice System Act, 2018, punishable with Daman and imprisonment of either description for a term which may extend to seven years as Ta'zir---Prison sentence was in the Court's discretion---Offence was non-bailable according to Schedule II of the Criminal Procedure Code, 1898---As adumbrated, S. 6(3) of the Juvenile Justice System Act, 2018, mandated that it was to be treated as bailable---Petitioner's contention was that the benefit of S. 6(3) of the Act, 2018, could not be extended to the juvenile if he applied for pre-arrest bail---Allegedly, the words "arrested or detained" in S. 6(3) of the Act, 2018. denoted that a juvenile must be in custody before S. 6(3) of the Act, 2018, could be applied to him---To put it differently, the benefit of said provision can only be granted to the juvenile when he seeks post-arrest bail---Juvenile Justice System Act, 2018, marks a paradigm shift in the treatment of juvenile offenders within the criminal justice system---Said Act modified and amended the law relating to juveniles by focusing on the disposal of their cases through diversion and facilitating their rehabilitation---Recognizing their unique vulnerabilities and the necessity for support, it provided that all offences except heinous ones are to be treated as bailable---However, the practical application of S. 6(3) of the Act, 2018, has raised a critical issue---It is absurd to say that offence would be considered bailable when a juvenile applied for post-arrest bail, but otherwise if he approached the Court for anticipatory bail---In other words, the bail process should not be contingent upon whether a juvenile is seeking post-arrest bail or anticipatory bail because it would introduce an arbitrary distinction that ran counter to the overarching objectives of the Act, 2018---Juvenile's eligibility for bail should be determined based on the nature of the offence and the specific circumstances of the case rather than the procedural mechanism through which bail is sought---Section 6(3) of the Act, 2018, aligns closely with the principles of the best interests of the child, rehabilitation and fairness---Furthermore, it effectively implements the principle that a child's arrest, detention, or imprisonment should be used only as a measure of last resort and for the shortest appropriate period of time---Application seeking cancellation of bail had no merits and was, therefore, dismissed.

In re: Gault, 387 U.S. 1 (1967); In re: Winship, 397 U.S. 358 (1970); Khawar Kiyani v. The State and others PLD 2022 SC 551; Alam Zeb and another v. The State and others PLD 2014 SC 760; Pepper v. Hart (1993) 1 All ER 42, 50 and Province of Punjab and another v. Muhammad Rafique and others PLD 2018 SC 178 rel.

Abdul Khaliq Safrani, assisted by Muhammad Saad Ullah and Syed Imtiaz Hussain Shah for Petitioner.

Rahat Majeed, Assistant District Public Prosecutor with Amjad/ASI for Respondents.

P L D 2024 Lahore 715

Before Muhammad Amjad Rafiq, J

KANEEZ FATIMA and another---Petitioners

Versus

SENIOR CIVIL JUDGE (FAMILY DIVISION) and 2 others---Respondents

Writ Petition No. 75322 of 2022, decided on 15th May, 2024.

(a) Constitution of Pakistan---

----Arts. 9, 14 & 199---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Paternity of a minor, determination of---Deoxyribonucleic Acid Test ('DNA test')---DNA test of the minor was ordered by the Trial Court---Contention of the petitioners was that DNA test could only be resorted to with the consent of the parties and not otherwise---Validity---Consent of the parties is essential to decide claim of the parties with respect to paternity of the child---If parties do not give consent for such DNA examination, then trial Court can draw adverse inference as per Art.129(g) of Qanun-e-Shahadat, 1984 and shall proceed to decide the question of paternity on the basis of evidence produced by the parties including resort to physiognomy (Qiyafah).

Muhammad Nawaz v. Additional District and Sessions Judge and others PLD 2023 SC 461; Abdul Latif v. Additional District Judge, Kasur and 4 others 2016 CLC 1553; Muhammad Nawaz v. Additional District and Sessions Judge and others PLD 2023 SC 461; Mst. Laila Qayyum v. Fawad Qayyum and others PLD 2019 SC 449; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, and others 2013 SCMR 203; Mst. Safia Bibi and another v. Muhammad Akbar and others PLD 2018 Lah. 758; Mst. Rubina Kausar v. Additional Sessions Judge and others PLD 2017 Lah. 604; Naseer Ahmed v. Mst. Azrah and another PLD 2010 Kar. 61 and Mst. Rajo Mai v. The State 1992 PCr.LJ 1011 rel.

(b) Words and phrases---

----Word "Physiognomy (Qiyafah)"---Meanings and connotation---Said word is derived from the Arabic root (qafa), which stands for the act of following or tracing and it conveys the ability to follow marks on the ground, mainly in the desert---It also denotes the ability to examine resemblance in bodily and physical features for the purpose of confirming family relationships, especially in paternity disputes.

Babar Bilal Awan for Petitioners.

Muhammad Jawad Yaqoob, Additional Advocate General with Majeed, SI.

P L D 2024 Peshawar 1

Before Rooh-ul-Amin Khan and Syed Arshad Ali, JJ

HAFEEZ UR REHMAN---Petitioner

Versus

CHIEF ELECTION COMMISSIONER through Secretary, Election Commission of Pakistan, Islamabad and 2 others---Respondents

Writ Petitions Nos. 533-P, 572-P and 592-P of 2023, decided on 8th March, 2023.

(a) Constitution of Pakistan---

----Arts. 32, 140A, 199 & 218(3)---Constitutional petition---Local bodies elections---Election Commission of Pakistan, duties of---Petitioners assailed notification issued by Election Commission suspending elections of all local government functionaries throughout the Province of Khyber Pakhtunkhwa---Validity---Object of local government was that it should function as an institution at grassroots level where local people were able to regulate their social, economic and political affairs through an independent manner---Mandate of the Constitution was that institution of Local Government should work with continuity---Any interruption or halt in the process was never approved by Superior Courts on the touchstone of Arts. 32 & l40A of the Constitution---Notification suspending election of local government was not only beyond the authority of Election Commission but also lacked reasons, therefore, the Notification was not sustainable in the eyes of law---High Court set aside the Notification as the same was illegal and without lawful authority---Constitutional petition was allowed accordingly.

Lahore Development Authority through DG and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Raja Rab Nawaz v. Federation of Pakistan through Secretary Defence and others 2013 SCMR 1629; Asad Ali Khan and others v. Province of Punjab through Secretary Government of Punjab and others PLD 2021 SC 770; M.Q.M. (Pakistan) and others v. Pakistan through Secretary Cabinet Division, Government of Pakistan and others PLD 2022 SC 439; Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; Election Commission of India through Secretary v. Ashok Kumar and others AIR 2000 SC 2979; Durga Das Basu, Commentary on Constitution of India, 9th Edition Page 11593, 11606 and 11608; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and R v. Higher Education Funding Council, ex parte Institute of Dental Surger [1994] I WLR 242 at 256-7 rel.

(b) Public functionary---

----Power, exercise of---Principle---Where a statute prescribes the manner in which power has to be exercised, the power must be exercised in that manner alone---Statutory authority is bound to proceed in accordance with law and exercise its jurisdiction within four corners of the statute---Where a statute confers a special affirmative power, the use of any general power relating to the subject matter is negative---Where a power is conferred to achieve a certain purpose, the power can be exercised only for achieving that purpose, and it must be exercised reasonably and in good faith to effectuate that purpose.

Durga Das Basu, Commentary on Constitution of India, 9th Edition Page 11593, 11606 and 11608 rel.

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

----S.24-A---Exercise of powers---Scope--- Statutory power, under section 24-A of General Clauses Act, 1897, is to be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment---Executive authority must give reasons for its decision---Any action by an executive authority which is violative of such principles is liable to be struck down and no other view is permissible.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Habibullah Butto v. Collector of Customs and another 2011 SCMR 1504; Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Zain Yar Khan v. The Chief Engineer, C.R.B.C. WAPDA D.I. Khan and another 1998 SCMR 2419 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

Ali Zaman, Noman-ul-Haq Kakakhel and Babar Khan Yousafzai for Petitioner.

Aamir Javed, Advocate General, Mohsin Kamran Siddique and Shahbaz Khan for Respondents.

Barrister Syed Mudassir Ameer, Barrister Yaseen Raza and Qazi Jawad Ehsanullah Amici Curaie.

P L D 2024 Peshawar 12

Before Muhammad Faheem Wali, J

WAZIR BADSHAH and others---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

R.F.A. No. 69-D of 2020, decided on 11th May, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 18, 23 & 24 (fifth clause)[as amended by Khyber Pakhtunkhwa Ordinance No. XVII of 2001]---Compensation, rate of---Re-assessment---Market value, determination of---Scope---Acquirer (National Highway Authority) and land owners both preferred appeal against the order of the Referee Court; the former for dismissal of reference while the later for further enhancement of rate of compensation---Held, that though nature of land acquired from the appellants (land-owners) , as mentioned in the Award, was agricultural but said nature was only for the purpose of maintaining the record of rights as well as cultivation and the same did not mean the said land was not usable for any other purposes---Land was not to be valued merely by reference to the use to which it was being put at the time of acquisition but also by the reference to the uses to which it was reasonably capable of being put in the future in said regard the Referee Court has to keep in mind a few factors in re-assessing the compensation, however, according to the S. 23 of the Land Acquisition Act, 1894 [as amended by Khyber Pakhtunkhwa Ordinance No. XVII of 2001], firstly the rate of compensation is to be determined on the basis of market-value of the land at the date of taking possession of the land---Factors for determination of rate of compensation included (a)size and shape of the land (b) the locality and its situation (c) the nature of property, the uses, its potential value, and (d) the rise or depression in the value of the land in the locality and even in its near vicinity---No doubt that in ascertaining the value of land , the possibility of it being used for building purposes would have to be taken into account, but it was equally true that the land must not be valued as though it had already been built upon ; that is the effect of the principle embodied in 5th clause of S. 24 of the Land Acquisition Act, 1894 , which is expressed by saying that it is possibilities of the land and not its realized possibilities that must be taken into consideration---Record (report, documents, evidence etc.) revealed that the land of the appellants (land-owners) was neither situated near main road nor was built-up, thus the rate of compensation for their acquired land was fixed by the Referee Court in view of compensation of similar lands of the vicinity---No erroneous principle had been invoked by the Referee Court and no important piece of evidence had been overlooked or mis-placed or any other ground for interference in question(s) of valuation by the High Court---Appeals preferred by both the acquirer and landowners were dismissed, in circumstances.

Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Sarhad Development Authority N.W.F.P. (now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265 and Land Acquisition Collector, G.S.C, N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 ref.

Noor Gul Khan Marwat for Appellant.

Ameer Muhammad Baloch for Respondents.

Date of hearing: 11th May, 2022.

JUGGMENT

MUHAMMAD FAHEEM WALI, J.---This single judgment is intended for the decision of present appeal as well as connected appeal filed by the acquiring department i.e. R.F.A. No.77-D/2020 titled "Project Director NHA and others v. Wazir Badshah and others" as both these appeals are the outcome of one and the same Judgment/ Decree dated 17.06.2020, rendered by learned Judge Referee Court/ JADJ-IV D.I. Khan, whereby the learned Court while allowing the reference of objectors, filed under Section 18 of the Land Acquisition Act, 1894, enhanced per kanal rate of compensation from Rs.17,691/- to Rs.15,00,000/-.

1. Facts forming factual canvas of these connected appeals are that in order to complete a Road Project known as "D.I.Khan - Sarai Gambila Road Project (N-55)" a chunk of land measuring 282 Kanals and 13 Marlas was intended to be acquired by the National Highway Authority. In this context, acquisition process set into motion through issuance of Notification under Section 4 of the Land Acquisition Act, 1894, on 31.08.2007 which was published in the official gazette on 06.09.2007. After fulfilling other codal formalities, the Collector Land Acquisition finalized the acquisition process by issuing Award No. 17 dated 08,05.2009, however, fixed per kanal rate of compensation Rs.200,000/- for residential lands and Rs.17,691/- for agricultural lands. Appellants/ objectors for redetermination of the rate of compensation, preferred a petition under section 18 of the Land Acquisition Act, 1894, which was processed in accordance with the procedure, whereby, learned Judge Referee Court recorded evidence of parties and also deputed a local commissioner for spot inspection, whose statement was thereafter recorded. Finally, upon hearing arguments of the learned counsel for parties, the learned Referee Court vide judgment/decree dated 17.06.2020 redetermined and fixed Rs.15,00,000/- per kanal as the rate of compensation of the land acquired from appellants/objectors. The judgment/decree dated 17.06.2020 has been assailed by the objectors in the instant appeal with a claim of further enhancement, whereas, acquiring department filed connected appeal with a prayer to dismiss the reference and to restore the compensation as determined in the award No.17 dated 08.05.2009.

2. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsel, same will be adequately dealt with at appropriate stages in this judgment.

3. Before discussing the merits of these appeals, I deem it apposite to mention that this case has a chequered history as, previously, the reference was decided four times and each time this Court remanded the case after setting aside the decision of Referee Court. However, for the last time, the case was remanded vide judgment dated 20.06.2019 in R.F.A. No.08-D/2019 with the direction to the learned referee Court to redetermine the rate of compensation with reference to the case of Qari Falaksher etc., who were awarded compensation to the tune of Rs.20,00,000/-. After receiving the case file on remand the learned trial court, Patwari Halqa Mauza Sagu Janubi was examined as CW-1, and then the learned Referee Court distinguished the acquired land in two categories for the purpose of determination of compensation; the land which was adjacent to the lands of Qari Falaksher etc was allowed the rate of compensation Rs.20,00,000/- per kanal, whereas, the land of appellants/objectors was placed in the second category for the award of compensation Rs.15,00,000/- per kanal.

4. Now, adverting to the merits of this case; in view of the appeals from objectors as well as acquiring department, the focal points for determination of controversy are:

a. the adequacy of the rate of compensation awarded by the Collector;

b. the consequence of rate of compensation redetermined by the Referee Court;

c. the scope, if any, of further enhancement of the rate of compensation over and above the rate so determined by the referee Court.

1. In the cases of acquisition of lands, the value in general can also be measured by a consideration of the prices that have been obtained in the past for lands of similar nature, quality and in similar positions, and this is what must be meant in general by 'the market value' in Section 23 of the Land Acquisition Act, 1894 (the Act). No doubt that the nature of land acquired from appellants, as mentioned in the Award, was agricultural but said nature was only for the purpose of maintaining the record of rights and cultivation and same does not mean that the said land was not usable for any other purposes. Sometimes it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentialities. In such a case the Collector in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the time of acquisition but also by reference to the uses to which it is reasonably capable of being put in the future; and in this regard some factors which the Referee Court has to be kept in mind in re-assessing the compensation are listed below:

a. market value of the acquired land at the prevalent time and its potential;

b. its likelihood of development and improvement;

c. a willing purchaser would pay to a willing buyer in an open market arms-length transaction entered into without any compulsion;

d. loss or injury occurred by severing of acquired land from other property of the land owner;

e. loss or injury by change of residence or place of business and loss of profit;

f. delay in the consummation of acquisition proceedings and;

g. peculiar facts and circumstances of each case.

In addition to above, according to Section 23 of the Land Acquisition Act, 1894 (as amended by Khyber Pakhtunkhwa Ordinance No. XVII of 2001) firstly the rate of compensation is to be determined on the basis of market-value of the Land at the date of taking possession of the land. While rendering this view I am fortified by the dictum laid down by the worthy Apex Court in the case of "Air Weapon Complex through DG v. Muhammad Aslam and others" (2018 SCMR 779).

1. Honourable Supreme Court of Pakistan in the case of "Land Acquisition Collector and others v. Mst. Iqbal Begum and others" PLD 2010 Supreme Court 719) enlisted certain factors for determination of compensation i.e.

a. size and shape of the land, b. the locality and its situation, c. the tenure of property, the uses, its potential value, and

d. the rise or depression in the value of the land in the locality and even in its near vicinity.

1. There is no doubt that in ascertaining the value of such land the possibility of its being used for building purposes would have to be taken into account. But it is equally true that the land must not be valued as though it had already been built upon. That is the effect of the principle embodied in fifth clause of Section 24 of the Act which is expressed by saying that it is possibilities of the land and not its realised possibilities that must be taken into consideration.

2. In evaluating a particular piece of land which can possibly be used for building purposes, the potential or the future possibility must be estimated by the Land Acquisition Collector or the Referee Court as best as it may from the materials before it for the land in that particular position and with those particular potentialities. However, compensation for the future utility or potentiality cannot be ascertained with mathematical accuracy. It must be estimated by prudent business calculations and not by mere speculative and impractical imagination. The principle that in the case of land which can reasonably be put to future use as a building site, it must be evaluated not on the basis of its existing value as a piece of agricultural land but with the future potentiality added to it, is too well settled to be the subject-matter of any controversy at the present date. Indeed, the learned trial Judge has taken into account the fact that the land under acquisition must be evaluated not only on the basis of its present market value but also on the basis of its having a future potentiality. The claim of appellants/objectors in this appeal is that some erroneous principle has been invoked but that the future potentiality has not been adequately valued.

3. Before the learned Referee Court there was the case of Qari Falaksher etc., whose lands too were acquired through the same Award No.17 and the Referee Court assessed Rs.20,00,000/- per kanal as the rate of compensation. This rate was confirmed by this Court in R.F.A. No. 09-D/2014 vide Judgment dated 04.12.2014 which was further upheld by the august Supreme Court of Pakistan. Besides, this Court vide Judgment dated 20.06.2019 in R.F.A. No.08-D/2018, had remanded the instant case and other similar cases with the direction to the learned Referee Judge to determine whether potentiality of the land of objectors and as to whether the land of objector is identical to the land whose compensation has been enhanced to Rs.20,00,000/- per kanal or otherwise.

4. It is almost admitted position that the land acquired under Award No.17 is superior land, and a metalled road i.e. D.I.Khan-Bannu Road, was already passing through it and acquisition was only for the purpose of expansion of the Road. In the Commission Report Ex.C.W.2/1, the learned local commissioner noted the nature of acquired land to be semi commercial which could be used for corporate or residential purposes at any time. Moreover, in Para-C of the Award in question, there is mention of market value of residential/commercial property to be Rs.10,00,000/- per kanal at the time of issuance of Notification under Section 4 of the Act but such rate was, thereafter, altered to Rs.200,000/- per kanal. After the remand vide Judgment dated 20.06.2019 by this Court with the direction to ascertain the similarities of the acquired land of appellants with that of the Qari Falaksher and then fix the rate of compensation, the learned Referee Judge for the purpose of assistance, recorded statements of Patwari Halqa of Mauza Sagu Janubi and ADK D.I.Khan and in the light of their assistances, the land acquired through award No,17 was divided into two categories, firstly the category of land similar to that of the Qari Falaksher etc for which the rate of compensation was assessed to be Rs.20,00,000/- per kanal; and the second category different from the first one whereby rate of compensation was fixed as Rs,15,00,000/- per kanal. In support of the latter kind of lands, the learned Referee Judge referred the cases of Lahore Khan and Muhammad Ramzan, who were awarded rate of compensation Rs.15,00,000/- per kanal for land acquired through the same Award and in the same vicinity vide Judgment dated 11.11.2013 by the learned ADJ-III/Judge Referee Court and such rates were affirmed by this Court vide Judgment dated 04.12.2014. Thus, there can be no denial of the fact that there had been two indices for assessment of the rate of compensation for lands acquired through Award No.17, whereby one category was worth Rs.20 lac per kanal and the other one worth Rs.15 lac per kanal. The learned trial court after recording statements of Patwari Halqa and ADK of D.I.Khan as court witnesses ascertained that the land of appellants was comprising Khasra Nos.290, 291, 292, 306, 321 and 322 which was 400 feet away from the land of said Muhammad Ramzan (compensation was awarded Rs. 15 lac per kanal), whereas, the land of Qari Falaksher was acquired from Khasra No.98 which was already a built-up property, which is not the case of appellants; and thus the rate of compensation for acquired land of appellants stood fixed at Rs.15,00,000/- per kanal by the learned trial court in view of the compensation of similar lands of the vicinity. Reliance in this regard may be derived from the verdict laid down by the august Supreme Court in the case of "Sarhad Development Authority N.W.F.P. (now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others" (2020 SCMR 265).

5. Now, the objectors and the acquiring departments are both dissatisfied; objectors claim that having recognised the need for evaluating the potentiality, the lower Court made an underestimate of that potentiality by putting it at Rs. 15 lac per kanal, while counsel for acquiring department is of the view that lower Court really indulged in a feat of imagination in valuing the potentiality of the land at the said rate. There is no evidence adduced by the affectees that there were any prospective purchasers who were willing to buy the acquired land for house building purposes. It is, therefore, contended by the learned counsel for acquiring department that in the absence of any such evidence, the lower Court should have confirmed the compensation awarded by the Land Acquisition Collector as being the best under the circumstances.

P L D 2024 Peshawar 20

Before Musarrat Hilali, C.J. and Wiqar Ahmad, J

Malik ISRAEL---Petitioner

Versus

APPELLATE TRIBUNAL MINES AND MINERALS, PESHAWAR and others---Respondents

Writ Petition No. 3870-P of 2022, decided on 25th May, 2023.

(a) Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017)---

----Ss. 8-A, 102 & 102-A---Mining Title Appeal before Appellate Tribunal Mines and Minerals---Maintainability---Petitioner being Mineral Title (Mining Lease) Holder for marble over an area of 200 acres, intended to assign/transfer (lease) of 38.71 acres out of said area in favour of respondent, however, under the process respondent was granted lease of 47.83 acres instead of 38.71 acres---Petitioner, as well as local community known as "Said Khan Kor" ('the local community') assailed said excess lease, which ultimately proceeded before Licensing Authority/Mineral Titles Committee ('MTC') where, it was decided to refer the case to Dispute Resolution Committee ('the DRC'), for looking into the matter and submitting its recommendations---Respondent approached the Appellate Tribunal Mines and Minerals ('the Tribunal'), whereby his appeal against the order of Licensing Authority/Mineral Titles Committee('MTC') was allowed---Petitioner challenged the order passed by Tribunal---Validity---Record revealed that MTC was seized with dispute-in-question, but had not yet finally decided the matter (and rather, merely, had decided to refer the case to the DRC) when the Tribunal entertained the appeal filed by respondent and allowed the same without hearing the petitioner---After report of the DRC, decision regarding allowing assignment or otherwise in favour of respondent was yet to be taken by MTC, thus, entertaining of appeal before decision of MTC was pre-mature as under S. 102 of Act, 2017, an appeal was provided against order of Licensing Authority (MTC)---When the Licensing Authority had not passed final order in the matter, appeal was not maintainable under S. 102 of the Act, 2017---In the present case, MTC had just referred the matter for resolution to DRC and had not taken decision regarding grant or refusal of mining title---Appeal had clearly been filed at a premature stage---High set aside the impugned order passed by the Appellate Tribunal and remanded the matter to Mineral Titles Committee with direction to decide the same afresh---Constitutional petition was allowed accordingly.

(b) Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022---

----R. 19---Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017), Ss. 8-A, 102 & 102-A---Mining Title Appeal before Appellate Tribunal Mines and Minerals---Procedure---Non-impleading of necessary party---Scope and effect---Record revealed that the Appellate Tribunal Mines and Minerals ('the Tribunal') entertained an appeal wherein petitioner, who had been Mineral Title Holder, had not been arrayed as party and the appeal was even allowed despite the fact that it had been brought to notice of Appellate Tribunal that petitioner had been the original Mineral Title Holder, as the discussion in impugned order devolved around said fact---Rule 19 of the Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022 provided that any person likely to be adversely affected by any decision had to be arrayed as respondent and given due notice of appeal---It was strange that despite having knowledge of the fact(s), Appellate Tribunal closed its eyes and the affected person i.e., existing Mineral Title Holder (petitioner), could not be impleaded in appeal nor given any notice of pendency of such appeal---On both scores, impugned judgment of Appellate Tribunal was not sustainable---High Court directed that Appellate Tribunal would comply with its own Rules, particularly Rule 19 of Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022---High Court set aside the impugned order passed by the Appellate Tribunal and remanded the matter to Mineral Titles Committee with direction to decide the same afresh---Constitutional petition was allowed accordingly.

(c) Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022---

----R. 19---Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017), Ss. 8-A, 102 & 102-A---Mining Title Appeal before Appellate Tribunal Mines and Minerals---Judgment/Orders passed by Public Authorities, issuing of---Manner---Name/designation/signature of adjudicating forum, non-mentioning of---Scope and effect---Record revealed that in the decision of appeal, names of members of adjudicating forum (Appellate Tribunal) could not be found anywhere; neither their names nor designations had been mentioned, even along with signatures at the end---Such manner of issuing of orders by public authorities was deprecated---High Court directed that Appellate Tribunal shall give full names of Chairman as well as members along with their respective designations in future---High Court set aside the impugned order passed by the Appellate Tribunal and remanded the matter to Mineral Titles Committee with direction to decide the same afresh---Constitutional petition was allowed accordingly.

Province of Sindh and others v. Shahzad Hussain Talpur 2022 SCMR 439 ref.

Muhammad Asghar Khan Kundi and Naveed Akhtar for Petitioner.

Shamsul Haq and Saqib Rana, A.A.G. for Respondents.

P L D 2024 Peshawar 25

Before Muhammad Faheem Wali, J

TAUHEED FAROOQI---Petitioner

Versus

FAIQA ANMOL and others---Respondents

Writ Petition No. 321-D of 2020 with C.M. No. 301-D of 2020, decided on 20th April, 2022.

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

----Ss. 5, Sched. & 17-A---Family suit---Striking off right of defence---Conduct of the defendant---Defendant's right of production of evidence was struck off by the Family Court, which order was maintained by the Appellate Court---Contention of the petitioner/defendant was that the striking off the right of production of evidence did not preclude him to record his own statement but only placed bar on production of his witnesses in evidence---Validity---Word "evidence" had a vast meaning, which could not be limited to mean witnesses of a party only, rather the same included party's own statement too---Thus, striking off the right of production of evidence placed a bar on the petitioner from recording his own statement---Record (order-sheet) revealed that although the counsel of the respondent/defendant was not (present), he was present before the Court on the day of striking-off his defence, but he did not opt to record his own statement before the Court and instead insisted upon adjournment without any sufficient cause, and he did not file any application thereafter expressing his readiness to record his own statement despite the fact that he used to attend the Trial Court on each and every date till the decision of suit---Petitioner/defendant did not duly mention said fact (his presence and asking for his examination) while approaching the Appellate Court, so at no stage before he had raised his said contention/ground---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 ref.

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

----S.5, Sched.---Suit for dissolution of marriage and recovery of dower---Plaintiff/wife claimed the dower (ten tolas gold ornaments and one-third share of the house ) against the defendant/husband on the basis Kabeen Nama (marriage-deed)---Family Court decreed the dower the respondent/plaintiff prayed for, which judgment and decree was maintained by the Appellate Court---Contention of the petitioner/ defendant was that later an arbitration decision had suspended the operation of the Kabeen Nama (marriage-deed)---Held, that stance of the petitioner amounted to a clean-breast admission of the execution of the said Kabeen Nama (marriage-deed), whereas the factum of its purported suspension had not been proved through evidence by the petitioner by examining any witness or even the arbitrator to said effect---Alleged arbitration decision remained scanty of proof, whereas the Kabeen Nama (marriage-deed) had become an admitted document---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

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

----S. 5, Sched.---Transfer of Property Act (IV of 1882), S.3---Suit for dissolution of marriage and recovery of dower (ten tolas gold ornaments and one-third share of the house)---Dower, dispute over---Jurisdiction of the Family Court---Scope---Actionable claim---Scope---Dower was claimed against the defendant/husband on the basis Kabeen Nama (marriage-deed) according to which the husband had bound down himself to give gold ornaments to his wife at the time of Nikah which would be the sole ownership of wife---Family Court decreed the dower prayed for by the petitioner/plaintiff, which judgment and decree was maintained by the Appellate Court---Contention of the petitioner/defendant that gold ornaments as mentioned in the Kabeen Nama (marriage-deed) was an actionable claim for which jurisdiction vested in the Civil Court---Held, that the Kabeen Nama (marriage-deed) was admittedly a matrimonial document between the parties which was not such an independent contract which might be interpreted as an 'actionable claim' within the contemplation of the provisions of the Transfer of Property Act, 1882('the Act 1882')---Section 3 of the Act 1882 means a claim to any debt (other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive of the claimant, which the Civil Court recognizes as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent---Hence, the claim of wife for gold ornaments per marriage-deed, was a consideration of marriage for which the Family Court had the jurisdiction to adjudicate upon---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 distinguished.

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

----S. 5, Sched.---Suit for dissolution of marriage and recovery of dower---Khula---Return of dower---Scope---Conduct of the husband---Scope and effect---Plaintiff/wife claimed the dower (ten tolas gold ornaments and one-third share of the house) against the defendant/ husband on the basis Kabeen Nama (marriage-deed)---Family Court decreed the dower the petitioner/plaintiff prayed for, which judgment and decree was maintained by the Appellate Court---Contention of the petitioner/defendant that the respondent recorded her statement before the Family Court wherein she prayed for dissolution of marriage on the basis of Khula, therefore, she was not entitled to claim any right on the basis of Kabeen Nama/Marriage-deed---Held, that relevant order-sheet revealed that after the statement of the respondent, the Family Court observed that, in view of dispute regarding payment of dower, the same would be decided after completion of evidence---Portion of the statement of the respondent recorded in the witness-box showed that she was ready to join her husband subject to his good behavior and fulfillment of her rights as per the marriage-deed---Petitioner, instead of fulfilling valid demands of the respondent, contracted second marriage, which reflected his conduct and the respondent could not be forced to relinquish her rights---Holy Quran had done away with every custom of pre-Islamic times depriving women of their rights including dower whereby when a man lost interest in his wife, he would to harass her to the extent that she would forego her rights including her dower---By using such pretext, on one hand, the marriage would be dissolved on the basis of Khula and on the other hand, the wife would be compelled to return what she was given at the time of marriage---Family Court, after the recording evidence and truly appraising the same, decreed the dower the plaintiff prayed for---No illegality or infirmity was found in the impugned judgment passed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Zia-ur-Rehman Kazi for Petitioner.

Muhammad Abdullah Baloch for Respondents.

P L D 2024 Peshawar 33

Before Syed Arshad Ali and Fazal Subhan, JJ

HAZRAT USMAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Peshawar and others---Respondents

Writ Petition No. 3987-P of 2021 with IR, decided on 25th July, 2022.

Canal and Drainage Act (VIII of 1873)---

----S. 68-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate and efficacious remedy---Water supply---Restoration---Petitioner sought restoration of water channel for uninterrupted water supply to his fields for irrigation---Validity---To deal with matters relating to irrigation, navigation and drainage, Canal and Drainage Act, 1873, was promulgated---Provision of S. 68-A of Canal and Drainage Act, 1873, specifically related to powers of Divisional Canal Officer and procedure to restore uninterrupted supply of water---Divisional Canal Officer was authorized under S. 64-A of Canal and Drainage Act, 1873, on an application, to conduct enquiry, as he deemed necessary, and could order interim restoration of dismantled water-course---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter as relevant law was available to redress grievance of petitioner and the matter fell within the domain of Divisional Canal Officer---Constitutional petition was dismissed, in circumstances.

Muhammad Irshad for Petitioner.

Mubashir Manzoor, Additional Advocate General for Respondents.

P L D 2024 Peshawar 35

Before Muhammad Ijaz Khan, J

GUL ZADA---Petitioner

Versus

HAZRAT GUL and others---Respondents

Cr. M. Q. P. No. 54-M of 2017, decided on 20th June, 2022.

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

----Ss. 145 & 561-A---Inherent jurisdiction of High Court---Quashing of complaint---Dispute concerning land etc.---Assuming of jurisdiction---Pre-conditions---On complaint filed by respondent, Trial Court declined to initiate proceedings under S. 145, Cr.P.C. with regard to land in question---Respondent assailed order of Trial Court before Lower Appellate Court which remanded the matter to Trial Court for decision afresh---Petitioner sought quashing of complaint filed under S. 145, Cr.P.C., with regard to land in question---Validity---Respondent/ complainant wanted that his share in land in question was to be separated and handed over to him---Complaint in question fell short of legal requirements for maintaining or proceeding with the same---Question of title or claiming share or separation of share could not be determined in proceedings under S. 145, Cr.P.C.---Such aspect of the matter was rightly appreciated by Trial Court---Proceedings under S. 145, Cr.P.C. could only be initiated if there was a dispute regarding land, water or boundaries of land but such dispute should be of such a nature which had either raised or was likely to raise apprehension of breach of peace---Such proceedings could not be initiated for establishing question of title or for separation of shares amongst joint owners---Proceedings under S. 145, Cr.P.C. could only be maintainable if rival parties claimed exclusive possession against each other and such dispute turned them inimical to each other---Proceedings under S. 145, Cr.P.C. were not maintainable where contents and language of complaint spoke of a civil dispute amongst joint owners/co-owners---High Court set aside order passed by Lower Appellate Court as the matter was wrongly remanded to Trial Court---Resultantly complaint was quashed---Petition was allowed accordingly.

Mst. Rifat Rana v. Rashid Mahmood PLD 2019 Pesh. 230; Saleem-ur-Rehman v. Faqir Hussain and others 2004 SCMR 667; Ghulam Maseih alias Gaman and another v. Ch. Abdur Rehman and 3 others 1973 PCr.LJ 439; Sultan Room and 6 others v. Bakht Karam and another 2010 MLD 1669; Abdus Salam Meaji and others v. Abdul Kadir Bepari PLD 1967 Dacca 715; Tarujan Bibee v. Asamuddi Bepari and others 4 CWN 426; Malik Manzoor Elahi v. Lala Bishambar Dass and another PLD 1964 SC 137; Abdur Razzaq and 3 others v. The State and 2 others PLD 2004 Pesh. 87; Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189 and Husein Ali J. Merchant v. The State and 2 others 2003 YLR 1742 rel.

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

----S. 145---Dispute, nature of---Scope---Dispute as defined in S. 145, Cr.P.C. should be of such a nature, which may likely cause breach of peace and in absence of such apprehension of breach of peace, Magistrate lacks jurisdiction to entertain proceedings.

Mukhtiar Ahmad and others v. Haji Muhammad Saleem and another 2013 SCMR 357 rel.

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

----S. 145---Dispute, settlement of---Principle---Settlement of disputes relating to property, which are not likely to lead to breach of peace is within the exclusive jurisdiction of Civil Court---Jurisdiction of Criminal Court cannot be invoked except on the ground of likelihood of a breach of peace.

Municipal Committee, Kohat v. Mst. Piari AIR 1947 Pesh. 8; Hail Shamsuddin Ismail and others v. The State and others PLD 1969 Kar. 515; Qazi Gran v. Muhammad Jan and State PLD 1996 SC 541 and Shamshamir Khan v. The State and 6 others PLD 1999 Pesh. 70 rel.

Hazrat Rehman for Petitioner.

Dost Muhammad Khan and Fayaz Muhammad Qazi for Private Respondents.

Sohail Sultan, Asst:A.G for the State.

P L D 2024 Peshawar 48

Before Shakeel Ahmad and Fazal Subhan, JJ

ASKAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 890-P of 2021, decided on 27th July, 2022.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 367(5) & 410---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Murder---Sentence other than the death---Scope---Awarding of lesser punishment---Cogent and convincing reason, non-assigning of---Effect---Word " shall" used in S. 302, P.P.C---Scope---Powers of the Trial Court under S. 367(5) of the Criminal Procedure Code, 1898---Scope---At the conclusion of trial the accused/appellant was convicted under S. 302(c) of the P.P.C. and sentenced to 10 years---Validity---When the Trial Court had arrived to the conclusion that prosecution had proved its case beyond doubt causing death of deceased lady, then the normal sentence of death under S. 302(a), P.P.C. or life imprisonment under S. 302(b), P.P.C. was required to have been awarded due to the use of word " shall" in S. 302, P.P.C, but, the appellant was sentenced under S.302(c), P.P.C. for 10 years without assigning any reason forwarding lesser punishment---Section 367(5) of the Criminal Procedure Code, 1898, ('Cr.P.C.') on one hand, empowers the Trial Court that in the offence punishable with death, the Trial Court instead of awarding punishment of death, may award any other sentence upon the accused but for awarding lesser punishment, the Court must give cogent and convincing reason for awarding sentence other than the death---Record revealed that the appellant, in his defense, had not taken any plea of self-defense throughout the trial but the Trial Court in its findings (at relevant page of the judgment) had concluded that the appellant had exceeded in his right of defense which seemed to be a conclusion drawn beyond the facts and circumstances of the case, because there was no plea of self defense in the case from the appellant---Thus when the question of determination of plea of defense was not raised before the Trial court, the impugned judgment was not handed down keeping in view of the provision of S. 367, Cr.P.C---Judgment recorded by the Trial Court was not sustainable in the eyes of law, in circumstances---Impugned judgment was set aside---Case was remanded for re-writing of the judgment afresh after hearing the parties in light of evidence available on record and in accordance with the provisions contained in S. 367, Cr.P.C.---Appeal filed by the accused (under trial prisoner) was disposed of accordingly.

Iftikhar alias Istikhar v. The State and another PLD 2004 Pesh. 143; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Jawad Ahmad Khan for Appellant.

Muhammad Bashar Naveed, Additional Advocate General for the State.

Barrister Amir Khan Chamkani for the Complainant.

P L D 2024 Peshawar 53

Before Kamran Hayat Miankhel, J

MUHAMMAD KHALID---Petitioner

Versus

SHERAZ KHAN---Respondent

Civil Revision No. 297-A of 2023, decided on 9th October, 2023.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 27 & S.115---Additional evidence---Principle---Misreading and non-reading of evidence---Indolent litigant---Suit filed by petitioner/plaintiff was dismissed by Trial Court and during pendency of appeal Lower Appellate Court declined his application to produce additional evidence---Validity---Parties to suit were to be vigilant while contesting the suit and if a party was careless and lax in conducting the suit or did not take necessary steps for production of evidence then subsequently any request on behalf of such party under the garb of O. XLI, R. 27, C.P.C. for production of additional evidence had to be considered with extreme caution as conduct of such party was always extremely relevant---Petitioner/plaintiff was to blame himself for not becoming his own witness, inspite of availing ample opportunities to adduce evidence---High Court declined to interfere in order passed by Lower Appellate Court as there was no misreading or non-reading of evidence nor there was any illegality or infirmity in that order---Revision was dismissed, in circumstances.

Mad Ajab and others v. Awal Badshah 1984 SCMR 440; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 and Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others 2013 SCMR 397 ref.

P L D 2024 Peshawar 57

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

Mst. AMNA and another---Petitioners

Versus

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

Writ Petition No. 1536-P of 2023, decided on 9th August, 2023.

Pakistan Citizenship Act (II of 1951)---

----S. 10(2)---Constitution of Pakistan, Arts. 2-A & 25 ----Alien husband of a Pakistani woman---Right of citizenship---Scope---Discrimination---Petitioner (Pakistani woman) invoked constitutional jurisdiction of the High Court with grievance that the respondents (Directorate General of Immigration and passport, Ministry of Interior) declined her husband (an Afghan refugee) a Pakistan Origin Card (POC) ---Validity ---Although S. 10 of the Pakistan Citizenship Act, 1951 gives a Pakistani husband the right to get citizenship for his foreigner wife, but denies a Pakistani wife the right to get citizenship for her foreigner husband---However, it was held in the judgments passed in Suo Motu (Gender Equality) case reported as PLD 2008 FSC 1 as well as PLD 2016 Lahore 857 titled Mst. Rukhsana Bibi and others v. Government of Pakistan and others, that denial of such right is discriminatory, negates gender equality and violates Arts. 2-A & 25 of the Constitution---On basis of said judgments a foreign husband was entitled to apply and to be considered by the Authorities for the issuance of POC in accordance with law ---High Court directed the respondents (Directorate General of Immigration and passport, Ministry of Interior) to consider the case of the husband (Afghan refugee) of the Pakistani woman for issuance of his Pakistan Origin Card (POC)---Constitution petition was disposed of accordingly.

Suo Motu's case PLD 2008 FSC 1 and Mst. Rukhsana Bibi and others v. Government of Pakistan and others PLD 2016 Lah. 857 ref.

Mian Zakir Hussain for Petitioner.

Tariq Khan, A.A.G and Shahid Imran Gigyani, AD (Legal) for Respondents.

P L D 2024 Peshawar 60

Before Lal Jan Khattak, S M Attique Shah and Syed Arshad Ali, JJ

SUHBAT KHAN and 5 others---Petitioners

Versus

KANDI BARAMI TAPPA KARNA KHEL, Khyber Agency and others---Respondents

Writ Petition No. 2337-P of 2019 (with other connected cases), decided on 2nd December, 2022.

(a) Interpretation of statutes---

----Omission and repeal---Distinction---Effect of omission of any law has a similar meaning to that of repeal---Repeal and omissions are not distinct terms rather they are expressions used by the Legislature to achieve the same object---Where the Legislature wants to abrogate and annul an entire/whole statute, it adheres to the word repeal but where a particular provision or part of the statute has to be rescinded, abrogated, or annulled expressions omitted or deleted are used.

(b) Constitution of Pakistan---

----Art. 264---Repeal---Pending proceedings---Effect---When a statute is repealed, everything stands obliterated except pending proceedings.

Muhammad Arif v. State 1993 SCMR 1589 and Neena Aneja v. Jai Prakash Associates Ltd. AIR 2021 SC 1441 rel.

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

----S. 6---Criminal trial---Repeal of law---Pending proceedings---Effect---All investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed---Trial of criminal case has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed.

(d) Constitution of Pakistan---

----Art. 264---General Clauses Act (X of 1897), S. 6---Repeal of law---Retrospective effect---Scope---Matters relating to investigation/inquiry/ trial/receiving of evidence are procedural and a new legal dispensation on the eve of omission/replacement of old legal dispensation may operate retrospectively.

Malik Gul Hassan & Co. v. Allied Bank of Pakistan 1996 SCMR 237; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; 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 Pak. PLD 1988 SC 391 and Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi 1994 SCMR 1007 rel.

(e) Frontier Crimes Regulations (III of 1901)---

----Ss. 8 & 55-A---Constitution of Pakistan, Art. 264 [as amended by the Constitution (Twenty-Fifth Amendment) Act (XXXVII of 2018)]---Constitutional petition---Repeal of Frontier Crimes Regulations, 1901---Pending investigations, trials and appeals---Effect---Petitioners were facing proceedings under Frontier Crimes Regulations, 1901, which were at investigation stage or before Tribunal and some were pending before Courts under ordinary laws---Petitioners were aggrieved of post repeal proceedings---Validity---No credence could be given to proceedings conducted by Jirga/Panchayat---Inquiry and investigation were procedural matters for which regular police agency was working under the merged area, therefore, in such peculiar circumstances it was requirement of natural justice that those matters were to be investigated by regular police and after completion of investigation, the matters were to be placed before Court of competent jurisdiction through the office of District Public Prosecutor---In certain cases re-investigation could be a futile exercise---Reinvestigation could be conducted to unearth the truth where fairness, rectitude and impartiality so demanded but there were certain conditions and limitations which might include visible defects in first investigation or flaws in final report detected subsequently or first investigation was unsatisfactory for many reasons including non-availability of evidence or successful induction of false evidence during investigation or corrupt behavior of police officer---High Court transferred all such cases to Federally Administered Tribal Area Tribunal established under S. 55-A of Frontier Crimes Regulations, 1901, which were transferred to High Court after repeal---High Court directed Provincial Government to constitute and notify Federally Administered Tribal Area Tribunal for adjudication of the such cases as well as other cases which would arise out of the judgment of the Commissioner or other fora---High Court transferred pending criminal appeal to Commissioner Kohat Division Kohat for adjudication under Frontier Crimes Regulations, 1901---High Court directed Provincial Government to also notify office of Commissioner under the enabling provision of Frontier Crimes Regulations, 1901---High Court directed to place before the respective Benches for determination on its own merits the cases in which offences were committed prior to promulgation of Constitution (Twenty-Fifth Amendment Act, 2018) and respective Bench might refer the case/ proceedings to District Public Prosecutor of the respective Districts/merged area, who would thoroughly examine the record and could refer the case for reinvestigation to the concerned Police Station with direction to reinvestigate the matter and thereafter submit a complete challan before the competent court of law under S. 173 of Criminal Procedure Code---High Court further directed that cases relating to civil disputes which did not culminate into final judgment, were pending before Political Agents, and were transferred to the regular Courts would remain pending with respective Courts---High Court set aside judgments/decree passed by the District Judges/Additional District and appeals which were transferred to the Courts were sent back to relevant forum (Commissioner FCR) for adjudication under Frontier Crimes Regulations, 1901---Constitutional petition was allowed accordingly.

Reference No. 01-P/2019; Samundar v. The Crown PLD 1954 SC 228; Constitutional Petition No. 3098-P of 2018; Civil Petition No 773-P of 2018; Muhammad Tarip Badr v. National Bank of Pakistan 2013 SCMR 314; Sardar Nawab Haji Muhammad Khan Versus Additional Commissioner and others PLD 1964 Lah. 401; Sona and another v. The State PLD 1970 SC 264; Abdul Samad v. Painda Muhammad PLD 1997 Pesh. 3; Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Habib Bank Limited v. The State and 06 others 1993 SCMR 1853; Government of the Punjab v. Abdur Rehman 2022 SCMR 25; National Commission on the Status of Women v. Government of Pakistan through Secretary Law and Justice PLD 2019 SC 218; Bahadur Khan v. Muhammad Azam 2006 SCMR 373; Atta Muhammad v. Inspector General of Police, West Pakistan, Lahore PLD 1965 (W.P.) Lahore 734 and Zeeshan Mustafa Lashari v. The Province of Sindh 2016 YLR Note 37 rel.

Sajeed Khan Afridi for Petitioners.

Shumail Ahmad Butt, A.G. for Respondents.

P L D 2024 Peshawar 83

Before Ijaz Anwar and S M Attique Shah, JJ

HYDRO ELECTRIC LABOUR UNION (PESCO), KPK through President---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Energy and Power, Power Division, Lahore and others---Respondents

Writ Petition No. 674-P of 2023, decided on 24th October, 2023.

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

----S. 20---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability--- Policy matter--- Distribution licence--- Proposal---Petitioners were Registered Trade Unions and aggrieved of bifurcation of electric distribution company into PESCO and a proposed company namely HAZECO---Validity---High Court in Constitutional jurisdiction only had to see whether action taken by respondent / government was within the four corners of law or not---Decision which required technical, commercial, manpower and administrative aspects of proposed bifurcation was outside the domain of High Court---Such matters specifically fall within the jurisdiction of Government for which it has been mandated by the citizens of country---Matter in question had yet not been finalized and numerous steps were to be taken to operationalize the decision so taken by Prime Minister of Pakistan---Matter was at initial stage and neither any company had been registered by Federal Government under the name of HAZECO nor any licence so far had been granted for distribution by National Electric Power Regulatory Authority---High Court declined to interfere in the matter as it was premature, besides being a policy matter---Constitutional petition was dismissed, in circumstances.

Privatization Commission v. Aftab Hussain PLD 2022 SC 267 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 ref.

Shumail Ahmad Butt for Petitioner.

Sanaullah D.A.G., Umar Farooq A.A.G., Barrister Afzal Khan Shinwari, Rizwan Faiz Muhammad, Sardar Haseeb Iftikhar, Shakir Ullah Afridi, Sardar Aslam Khan, Asad Jan, Sabir Hussain Tanoli with Irfan Ul Haq Legal Advisor, NEPRA, Umar Vaqar, SO and Muhammad Taufeeq, Focal Person, Ministry of Energy, Power Division and Irfan Riayat, Chief Law Officer, PESCO for Respondents.

Date of hearing: 12th September, 2023.

JUDGEMENT

IJAZ ANWAR. J.---By this single Judgment, we propose to decide the instant as well as the connected W.P. No. 1155-P/2023 "Zaka Ullah and others v. Federation of Pakistan through Secretary Ministry of Energy and Power, Power Division, Lahore and others" filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and COC No. 329-P12-23 "Hydro Electric Labour Union PESCO v. Ghulam Dastagir, Incumbent Minister for Power Division, Ministry of Energy and Power, Lahore and another" as identical questions of law and facts are involved therein. The following prayer has been made in the instant writ petition.

"It is therefore, humbly prayed that on acceptance of this Writ Petition this Honorable Court may very graciously hold, declare and order that:

I. The impugned Notification No. 12(24)/202019-DISCO-II dated 18.01.2023 of the Respondent No.6 and Office Order dated February 3, 2023 and subsequent process in this regard are all illegal, without legal sanctity, based on political gains, ethnic provocation and against the fundamental rights of the petitioner and its members/ Employees, hence declared to be redundant as such.

II. Respondents shall refrain from proceedings a further in the nature of formation of Hazara Electric Supply Company.

III. Costs throughout.

IV. Interim Relief. In view of all the three ingredients requisite for interim relief, the operation of the impugned Notification and subsequent proceedings be suspended forthwith and the Respondents may be restrained from proceeding a further in the matter till the final disposal of the main writ petition.

V. Any other relief, not specifically prayed may also graciously be granted if appears just, necessary and appropriate."

1. In essence, the petitioner which is a registered Trade Union, formed under the Industrial Relations Act, 2010 for the workmen and employees of PESCO is aggrieved of the Notification No. 12(24)/ 202019-DISCO-II, dated 18.1.2023 of the Government of Pakistan, Ministry of Energy (Power Division), Islamabad whereby the Prime Minister of Pakistan was pleased to approve bifurcation of PESCO into two companies i.e. PESCO and a new company with the name of Hazara Electric Supply Company (HAZECO).

2. Comments were called from the respondents which were submitted accordingly wherein issuance of the desired writ has been opposed.

3. Learned counsel for petitioner argued that the decision of the Prime Minister to bifurcate PESCO into two companies i.e. PESCO and Hazara Electric Supply Company (HAZECO) is politically motivated and not for public good. He further argued that the impugned notification so issued is violative of Article 153 read with Article 154 of the Constitution of Islamic Republic of Pakistan, 1973 as such, is not maintainable. He further argued that the decision to create HAZECO is not feasible and against the ground realities as duly considered by the Board of PESCO in its meeting held on 28.12.2016. He further argued that the Ministry of Energy vide letter dated 21.9.2017 has also asked for the review and optimization of licensed area of PESCO for better management. He placed reliance on PLD 2022 SC 267 "Privatization Commission v. Aftab Hussain", 2018 SCMR 1956 "Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others". He further argued that till date the matter has not been taken up with the NEPRA which has to issue licenses for generation, distribution and transmission Companies and also for determination of tariff rates, charges and other terms and conditions as such, the Notification issued to this effect is against the law. He lastly argued that even HAZECO Company has not been registered, albeit the Board has been notified in order to accommodate the favorites of the respondents.

4. As against this, learned counsel representing the respondents argued that the matter in hand is premature as yet only a formal decision has been taken and the formalities required for registration of the Company and permission/license from the NEPRA are the proceedings that would be taken thereafter. He further argued that it being a policy decision of the Federal Government cannot be questioned on such flimsy grounds of hardships or feasibility as according to him, it is within the domain of the Government to see the viability, feasibility and the organizational structure to follow. He further argued that the constitutional requirements have already been taken when it was decided to unbundle the power wing of the Water and Power Development Authority and this decision was taken in pursuance of the strategic plan which was duly approved by the Council of Common Interests in the year 1993 and therefore, it is not required that for registration of every Distribution Company, repeated approval would be required from the Council of Common Interests (CCI).

5. Arguments of learned counsel for the parties heard and record perused.

6. Perusal of the record reveals that vide Notification No. 12(24)/ 202019-DISCO-II dated 18.1.2023, the approval of the Prime Minister of Pakistan has been conveyed for the establishment of Hazara Electric Supply Company (HAZECO). The aim and object was mentioned as "For overall better management of the Electricity Utility of Peshawar Electric Supply Company (PESCO), to increase the operational efficiency and reduce line losses and for improvement in customer services". The following further decision was taken in para 2 of the Notification. It being relevant is reproduced as under:

"2. Accordingly, the following decisions are made:--

(a) PESCO shall be bifurcated into 02 Companies i.e. PESCO and new Company with the name of Hazara Electric Supply Company (HAZECO).

(b) PESCO shall compromise 06 Circles namely Peshawar, Khyber, Swat, Bannu, Mardan and Swabi circles, whereas HAZECO shall consist of 02 Circles namely Hazara-I and Hazara-II circles with new Company's Headquarter at Abbottabad.

(c) To implement the bifurcation plan, successfully, PPMC will assist PESCO and HAZECO."

1. The West Pakistan Water and Power Authority Act, 1959 (W.P. Act XXXI of 1958) was promulgated on 24.4.1958 to provide for the unified and co-ordinated development of the water and power resources of Pakistan. Later, by virtue of Article 12 of the West Pakistan (Dissolution Order) 1 of 1970, Water and Power Development Authority continued to function under the Act of 1958 subject to certain modifications as duly provided in para 12 of the Dissolution Order. Subsequently, vide Ordinance LXXII of 1979, as amended by Ordinance XX of 1998, the Water and Power Development Authority was constituted and the Pakistan Water and Power Act was extended to the whole of Pakistan except the Districts of Karachi. The record placed on file further suggests that the Council of Common Interests in its meeting held on 12.9.1993 took the following decision:

"The Council of Common Interests considered the summary dated 9th September, 1993 submitted by the Ministry of Water and Power on Privatization of WAPDA and amendment of WAPDA Act and approved:

"i) Amendment in WAPDA Act, 1958 (Annex II) subject to the condition that in clause 4 (i) (c) (vii) after the word Authority, the words 'except' hydel generating power station and national grid transmission be added'

ii) Plan for Privatization of WAPDA as recommended by Privatization Commission (Para 5 and Annex VI).

iii) To provide categorical assurance to the provinces that the hydel profits payable to them under the Constitution would not fall below the level which these would have obtained had there been no privatization".

1. Accordingly, vide Water and Power Development Authority (Amendment) Act, 1994 (Federal Act No. XIII of 1994) certain amendments were introduced to carry out the decision so taken in the above referred meeting of the Council of Common Interests. Though both the parties took us to various pros and cons of the decision that would follow after carrying out the bifurcation, however, we feel that we in our Constitutional jurisdiction have only to see whether the action taken by the respondent/Government is within the four corners of law or not; while the decision which requires technical, commercial man power and administrative aspects of the proposed bifurcation is outside our domain because such matters specifically fall within the jurisdiction of the Government for which it has been mandated by the citizens of this country. Even otherwise, the matter in hand has not yet been finalized and numerous steps are yet to be taken to operationalize the decision so taken by the Prime Minister of Pakistan. We have also gone through the bifurcation of other Distribution Companies carried out by the respondents after the initial decision of the Council of Common Interests and find that where the Council of Common Interests has approved the summary, pursuant thereto, amendments were introduced in the WAPDA Act, as such, it is not the requirement of law that for each bifurcation of Companies or creation of Distribution Companies, separate approval be required from the Council of Common Interests.

P L D 2024 Peshawar 89

Before Ishtiaq Ibrahim, Ijaz Anwar, S M Attique Shah, Shakeel Ahmad and Syed Arshad Ali, JJ

SUNNI ITTEHAD COUNCIL and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 1272-P of 2024 with C.Ms. Nos. 525-P and 551-P of 2024, decided on 25th March, 2024.

(a) Interpretation of Constitution---

----Redundancy---Effect should be given to every word, paragraph, clause and article of the Constitution---Redundancy should not be imported thereto.

(b) Elections Act (XXXIII of 2017)---

----Ss. 4 & 104---Election Rules, 2017, Rr. 92 & 94---Constitution of Pakistan, Arts. 51(6)(d), 199 & 224---Constitutional petition---Reserved seat, allocation of---Entitlement---Petitioner was a political party which did not participate in General Elections---Independent returned candidates, backed by another political party which was not allowed to participate in elections by Election Commission of Pakistan, joined the petitioner party---Petitioner party claimed its right to allocation of reserved seats---Validity---Reserved seats for women and non-Muslims under the mandate of Art. 51(6)(d) of the Constitution, were to be allocated amongst the political parties present in National Assembly---Procedure for allocation of such seats has been provided under S. 104 of Elections Act, 2017 and mechanism for its allocation under Rr. 92 & 94 of Election Rules, 2017 respectively---Election Commission was a Constitutional body invested with mandate to conduct elections to Assemblies and to ensure the same was conduced in accordance with the letter of Constitution---It has the jurisdiction under S. 4 of Elections Act, 2017, to issue directions or orders as were necessary for the performance of its functions and duties, including order for doing complete justice in any matter pending before it---Order of Election Commission of allocating/distributing reserved seats for women and non-Muslims amongst the political parties that were present in Assembly by securing seats through contest was held to be in accordance with the letter of Art. 51 of the Constitution---Petitioner party was not entitled for any share in reserved seats for women, therefore, request for filing list of candidates for reserved seats at a belated stage did not arise---Petitioner party assailed interpretation of S. 104 of Elections Act, 2017 done by Election Commission of Pakistan which was not a substantive provision rather it merely provided a mechanism for effective conduct of election---High Court declined to interfere in allocation of reserved seats---Constitutional petition was dismissed in circumstances.

Asghar Hussain v. Election Commission of Pakistan PLD 1968 SC 387; The Federal Government v. Ayan Ali and others 2017 SCMR 1179; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board Karachi and others 1985 SCMR 758; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others 2009 CLD 1498; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others PLD 2023 SC 42 and Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673 rel.

(c) Interpretation of Constitution---

----Written Constitution---Object, purpose and scope---Written Constitution is an organic document designed and intended to cater needs for all times to come---Such Constitution is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people---Approach, while interpreting a Constitutional provision, should be dynamic, progressive and oriented with desire to meet a situation or suppress a mischief, which has arisen effectively---Interpretation cannot be narrow and pedantic but Court's effort should be to construe the same broadly, so that it may be able to meet requirements of an ever changing society---General words cannot be construed in isolation but the same are to be construed in the context in which they are employed and their colour and contents are derived from their context.

Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior, Islamabad and others PLD 2023 SC 42 rel.

Qazi Muhammad Anwar, Barrister Ali Zafar, Rehmat Ali Shah, Ali Zaman and Changez Khan for Petitioners.

Mansoor Usman Awan Attorney General for Pakistan and Sana Ullah, Deputy Attorney General for Respondents.

Mubashir Manzoor, Assistant Advocate General for Provincial Government.

Sikandar Bashir Mohmand and Mohsin Kamran Siddique along with Khurram Shahzad, A.D.G. (Law), Muhammad Amjad Deputy Director (Law) and Samran Jehangir, Assistant Director D (Law) for Election Commission of Pakistan.

Farooq H. Naek along with Syed Nayyar Hussain Bukhari, General Secretary, PPPP for Pakistan People's Party Parliamentarian "PPPP").

Barrister Haris Azmat for Pakistan Muslim League (N).

Kamran Murtaza for Jamiat Ulma Islam Pakistan.

Muhammad Tariq Afridi for Respondents.

Amir Javed for Respondents.

Naveed Akhtar and Jehanzaib Shinwari for Respondents.

Qazi Jawad Ehsanullah Qureshi for Respondent.

Gohar Rehman Khattak, Wali Khan Afridi, Lajbar Khan Khalil and Bilal Ahmad Durrani for Respondents.

P L D 2024 Peshawar 112

Before Ishtiaq Ibrahim and Syed Arshad Ali, JJ

AFTAB ALAM and another---Petitioners

Versus

SECRETARY HOME AND TRIBAL AFFAIRS, GOVERNMENT OF KPK, PESHAWAR and others---Respondents

Writ Petition No. 1783-P of 2023 (with other connected petitions), decided on 31st May, 2023.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Detention---Judicial review---Petitioners assailed their detention orders passed by authorities---Validity---High Court in exercise of Constitutional jurisdiction was to see whether any material existed before Deputy Commissioner while making orders of detention of petitioners/detenus---Action against petitioners was initiated under West Pakistan Maintenance of Public Order Ordinance, 1960---Orders of detention lacked essential attributes envisaged by S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960 and the law laid down by the Supreme Court---High Court set aside orders issued by Deputy Commissioners, as the same were not sustainable in the eyes of law and petitioners were released forthwith on furnishing bail bonds---High Court directed the petitioners to submit undertakings they would not involve themselves in any anti-state activities and acts prejudicial to public safety in any manner---High Court directed that the District Administration/ Provincial Government would be at liberty to initiate proceedings and pass appropriate orders under West Pakistan Maintenance of Public Order Ordinance, 1960 against petitioners when it was satisfied that there was sufficient material against any of the petitioner relating to any of their activity prejudicial to public safety or maintenance of public order and their arrest/detention was necessary for maintaining public safety and public order---Constitutional petition was allowed accordingly.

Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar. 604; Darwesh M. Arbev, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206; Shahid Rasool v. Government of the Punjab through Secretary Home Department, Lahore and 6 others 2023 YLR 333; Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Zafar-ul-Ahsan v. The Republic of Pakistan PLD 1960 SC 113; Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and Judicial Review of Public Acts (Volume-1) by Justice (R) Fazal Karim and Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 rel.

(b) Jurisdiction---

----Forum, determination of---Scope---If there is a dispute on the point whether a Court has or does not have jurisdiction over a certain subject-matter, such Court can hear that dispute even if it has to hold that it has no jurisdiction.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Arts. 4 & 9---Detention of a person---Principle---In order to curtail liberty of a citizen, which is guaranteed through Art. 9 of the Constitution and similarly to be treated in accordance with law being inalienable rights of every citizen of Pakistan under Art. 4 of the Constitution; the Government or an officer of the Government exercising delegated powers has to satisfy himself that order of detention is issued solely for the purpose of preventing any person from acting in any manner prejudicial to public safety or maintenance of public order and when it is necessary to do so by an order in writing direct arrest and detention of such persons.

Fundamental Law of Pakistan by A.K. Brohi and Muhammad Younas v. Province of Sindh through the Secretary to the Government of Sindh Home Department and Secretariat, Karachi and 2 others PLD 1973 Kar. 694 rel.

Fahim Khan, Shah Faisal Utmankhel, Muhammad Muazzam Butt, Muhammad Taif Khan and Ali Zaman for Petitioners.

Aamir Javed, Advocate General Khyber Pakhtunkhwa and Sanaullah, Deputy Attorney General for Respondents.

P L D 2024 Peshawar 140

Before Muhammad Naeem Anwar, J

ZAFAR KHAN---Petitioner

Versus

SADDAM HUSSAIN and others---Respondents

Criminal Revision No. 80-M of 2023, decided on 14th March, 2024.

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

----S. 539-B---Illegal Dispossession Act (XI of 2005), Ss. 3 & 7---Illegal dispossession---Local inspection---Scope---After hearing the final arguments, the Trial Court appointed a local commission for spot inspection---Validity---Petitioner/complainant had averred in his complaint that he was owner in possession of the disputed land along with his son on which the accused/respondent had made illegal construction in his absence---Trial Court observed that the stance of accused was unambiguous that he had no concern with khasra Nos. 1276 and 1277 and that his cousins were owners in khasra No. 1277 in which they had raised construction which had been attributed by the complainant to him---Petitioner, as per statement, had purchased the land through registered deed of 1980 with specification of the boundaries---Trial Court had held that the spot inspection was the sole option to determine as to whether or not the alleged construction had been made within the boundaries mentioned in the deed relied upon by the complaint---Perusal of S. 539-B, Cr.P.C., showed that the power of spot inspection could not be delegated by Trial Court to any other officer even to a subordinate Judicial Officer rather the exercise shall be made by the Presiding Officer itself---Power under S. 539-B, Cr.P.C., could not be a substitute for collection of evidence nor the Court could assume the status of an Investigating Officer---Section 539-B, Cr.P.C., envisaged that in case spot inspection was deemed necessary, the Trial Court would without unnecessary delay record a memorandum of any relevant facts observed at such inspection---Such object could not be achieved through appointment of a local commission because the report submitted by a local commission could not be equated with the memorandum mentioned in S. 539-B(1), Cr.P.C.---Trial Court instead of deciding the case in the light of evidence produced by petitioner had committed an irregularity by appointing a local commission for the purpose of collecting evidence, therefore, the impugned order could not legally sustain---Thus, petition was allowed by setting aside impugned order and the Trial Court was directed to decide the case in the light of evidence brought on record during inquiry and trial.

Tirkah v. Nanak AIR 1927 All. 350; Bazal Ahmed Sowdagar v. Nur Muhammad PLD 1963 Dacca 852; Abdul Rashid v. The State and others 1999 YLR 1298 and Asfandyar and another v. Kamran and another 2016 SCMR 2084 rel.

(b) Criminal trial---

----Conviction---Scope---Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134; Shamoon alias Shamma v. The State 1995 SCMR 1377 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 ref.

Altaf Hussain for Petitioner.

Khwaja Salahuddin, A.A.G. for the State

Muhammad Mushtaq Khan for Respondent No.1.

P L D 2024 Peshawar 146

Before Rooh-ul-Amin Khan and Syed Arshad Ali, JJ

Messrs APALLO PLASTIC AND CHEMICALS (PVT.) LTD., MALAKAND---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Federal Secretary, Finance and Revenue Division, Islamabad and others---Respondents

Writ Petition No. 5105-P with C.M. No. 125-P of 2022, decided on 09th February, 2022.

(a) Federal Board of Revenue Act (IV of 2007)---

----S. 4---Constitution of Pakistan, Art. 199---Constitutional petition---Statutory circulars---Validity---Federal Board of Revenue has the authority to issue statutory circulars/instructions not in conflict with other fiscal laws including Sales Tax Act, 1990, Income Tax Ordinance, 2001 and Customs Act, 1969---Legality of statutory circulars on the touchstone of reasonability and whether same is in conflict to any other statutory dispensation can be looked into by Constitutional Court.

(b) Federal Board of Revenue Act (IV of 2007)---

----S. 4---Income Tax Ordinance (XLIX of 2001), S. 177---Sales Tax Act (VII of 1990), S. 25---Customs General Order No. 01 dated 25.02.2021, vires of---Petitioners assailed Customs General Order No. 01 dated 25.02.2021 on the plea of it being ultra vires, unreasonable and suffering from excess of law and authority---Validity---In order to protect State interest i.e. leakage of Revenue, Federal Board of Revenue through Customs General Order No. 01 dated 25.02.2021, provided a mechanism for transportation of goods from Port of Karachi to its onward destination where industrial unit was situated---Conditions No. (i) to (iv) of Customs General Order No. 01 dated 25-02-2021 provided safe and supervised transportation of goods which were exempted from payment of duties and taxes---Federal Board of Revenue had the lawful authority to issue Circulars and Instructions as provided under S. 4 of Federal Board of Revenue Act, 2007 and issuance of Customs General Order No. 01 dated 25.02.2021 except condition No.(v) of the same---Authorizing the Revenue to subject importers for annual audit, under condition No. (v) of Customs General Order No. 01 dated 25.02.2021, was illegal and ultra vires to S. 177 of Income Tax Ordinance, 2001 and S. 25 of Sales Tax Act, 1990---High Court in exercise of Constitutional jurisdiction struck down condition No. (v) of Customs General Order No. 01 dated 25.02.2021---Constitutional petition was disposed of accordingly.

Messrs Taj Packages Company (Pvt.) Ltd. through Manager v. The Government of Pakistan through Federal Secretary Finance and Revenue Division and 6 others 2016 PTD 203; Pakistan through Chairman, FBR and others v. Hazrat Hussain 2018 SCMR 939; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others 2016 PTD 1555; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others 2019 SCMR 124 and S. G. Jaisinghani v. Union of India AIR 1967 SC 1427 rel.

(c) Income Tax Ordinance (XLIX of 2001)---

----S. 177---Sales Tax Act (VII of 1990), S. 25---Audit---Object, purpose and scope---Purpose of audit is to ensure that taxpayer has complied with relevant fiscal laws and instructions issued by Fiscal Regulator i.e. Federal Board of Revenue---Audit is not meant to conduct a roving and fishing inquiry into the affairs of any taxpayer in order to fish for default.

Isaac Ali Qazi for Petitioner.

Aamir Javed, Addl. Attorney General and Ishtiaq Ahmad (Junior) Advocate along with Arshad Hilali, Law Officer Customs Department and Siraj Muhammad, Assistant Commissioner Inland Revenue for Respondents.

P L D 2024 Peshawar 176

Before S M Attique Shah and Muhammad Faheem Wali, JJ

BAZED KHAN and others---Petitioners

Versus

LAND ACQUISITION COLLECTOR and others---Respondents

Writ Petition No. 977-D of 2018, decided on 30th March, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 12(2) & 18, proviso---Acquisition of land---Compensation---Reference to Court---Limitation---Petitioners/land owners were aggrieved of order passed by Land Acquisition Collector declining to transmit their Reference under S. 18 of Land Acquisition Act, 1894, to Referee Court on the plea that it was filed beyond six months---Validity---If award was announced in presence of person interested (or his authorized representative), such person has to make application within six weeks from the date of Collector's award itself---If award is not made in presence of person interested (or his authorized representative) but served with notice of pronouncement of award under S. 12(2) of Land Acquisition Act, 1894, he has to make application seeking reference within six weeks of the receipt of such notice---If person interested (or his representative) is not present when award is made and if he does not receive notice under S. 12(2) of Land Acquisition Act, 1894, from the Collector, he has to make application within six months of the date on which he actually or constructively came to know about the contents of award---If the person interested is not present at the time of announcement of Award but he receives a notice under S. 12(2) of Land Acquisition Act, 1894, after expiry of six weeks from the date of receipt of such notice, he can not claim benefit of the provision of six months for making the application on the ground that date of receipt of notice under S. 12 (2) of Land Acquisition Act, 1894, is the date of knowledge of contents of award, rather he has to file reference within six weeks after receipt of notice under S. 12(2) of Land Acquisition Act, 1894---Petitioners were not provided copies of the Award and they finally applied for the same through filing an application dated 19-04-2018 under the provision of Right to Information Act, 2013, and thereafter petitioners got acquainted with Award in question---Petitioners presented Reference under S. 18 of Land Acquisition Act, 1894, on 04-06-2018 which was well within a period of six months from the date of knowledge of the contents of award---High Court directed Land Acquisition Collector to transmit Reference of petitioners to Referee Court---Constitutional petition was allowed, in circumstances.

Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer AIR 1961 SC 1500; State of Punjab v. Mst. Qaisar Jehan Begum and another AIR 1963 SC 1604; Allahdino v. Faqir Muhammad PLD 1969 SC 582 and Muhammad Jan and 4 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 7 others 1996 CLC 1967 rel.

Muhammad Yousuf Khan for Petitioners.

Muhammad Anwar Awan and Nasrullah Jan for Respondents.

P L D 2024 Peshawar 184

Before S M Attique Shah and Syed Arshad Ali, JJ

Messrs YAR STEEL MILLS through Representative---Petitioner

Versus

The FEDERATION OF PAKISTAN through Federal Secretary, Islamabad and others---Respondents

Writ Petition No. 4030-P of 2022, decided on 24th November, 2022.

(a) Negotiable Instruments Act (XXVI of 1881)---

----S.6---Cheque---Connotation---Cheque is a request of drawer to the bank where the drawer maintains an account to pay a specific sum of amount to the payee on presentation of the cheque or on the date fixed on the cheque---Under banking practice in our country, bank is supposed to make payment to payee if there is sufficient amount payable to the payee equal to the amount mentioned on the cheque.

Mitra's Legal and Commercial Dictionary; The Chambers 21st Century Dictionary; The Law Laxicon and The Black's Law Dictionary rel.

(b) Interpretation of statutes---

----Fiscal laws---Intendment---Scope---In a tax statute one has to look at what is clearly said---There is no room for any intendment; nothing is to be read and nothing is to be implied.

Commissioner of Income Tax Kanpur v. Upper Doab Sugar Mills (1978) All LJ 128 rel.

(c) Administration of justice---

----Where law requires something to be done in a particular manner, it must be done in that manner---What cannot be done directly cannot be done indirectly.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 rel.

(d) Sales Tax Act (VII of 1990)---

----Sixth Schedule, Entry No. 152---Post-dated cheques---Vires---Petitioner/importer assailed demand of respondents/authorities to provide post-dated cheque with endorsement "good for payment" from the banker---Validity---It was not the will of Legislature in Entry No.152 in Sixth Schedule to Sales Tax Act, 1990,which mandated that importer at the time of clearance of imported goods, destined for consumption at Erstwhile Tribal Area, to provide a post-dated Cheque for the amount of sales tax under Sales Tax Act, 1990, to be accompanied with a certificate "good for payment" from bank for its clearance---Such demand of respondents/authorities that post-dated cheque as required through Entry No.152 in Sixth Scheduleto Sales Tax Act, 1990 shall be accompanied with the certificate "good for payment" was ultra-vires to Entry No.152 in Sixth Scheduleto Sales Tax Act, 1990---High Court declared such demand as illegal and without lawful authority---Constitutional petition was disposed of accordingly.

Messrs Taj Packages Company (Pvt.) Ltd. through Manager v. The Government of Pakistan through Federal Secretary Finance and Revenue Division and 6 others 2016 PTD 203; Pakistan through Chairman, FBR and others v. Hazrat Hussain 2018 SCMR 939; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others 2016 PTD 1555; Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad 2012 PTD 1869; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Khalid Saeed v. Shamim Rizwan and others 2003 SCMR 1505; Muhammad Ibrahim v. The State 2021 PCr.LJ 412; Hafiz Abdul Salam v. Hassan Din 2020 YLR 2297; Messrs Jet Green (Pvt.) Limited v. Federation of Pakistan and others PLD 2021 Lah. 770; National Bank of India Ltd., Lahore v. Dost Muhammad and Bros, the Mall, Lahore PLD 1957 Lah. 420; Punjab National Bank, Ltd. v. Bank of Baroda Ltd and others AIR 1941 Cal. 372 and Bank of Baroda, Ltd. v. Punjab National Bank, Ltd, and others AIR 1944 Privy Council 58 ref.

Abdul Rahim Khan Jadoon for Petitioner.

Aamir Javed, Addl. Attorney General, Sanaullah, D.A.G. and Azhar Naeem Qarni for Respondents.

P L D 2024 Peshawar 197

Before Ijaz Anwar and Wiqar Ahmad, JJ

Mst. ZAIBI---Petitioner

Versus

ZAHID ALI and others---Respondents

Writ Petition No. 1406-P of 2024, decided on 22nd April, 2024.

Family Courts Act (XXXV of 1964)---

----S.13---Civil Procedure Code (V of 1908), Ss. 38, 39 & O.XXI---Execution of decree---Transfer of proceedings--- Dispute was with regard to transfer of proceedings from one District to another to execute decree passed by Family Court---Held, that Family Courts Act, 1964 is silent on the subject but in such circumstances Executing Court may take recourse to the provisions of C.P.C.---Execution proceedings can be transferred by the Family Court and can well be executed by the Transferee Court under the relevant provisions of C.P.C. (regulating such proceedings for transferred execution petitions)---Procedure of C.P.C. shall be borrowed and accordingly an alternate mechanism would be deemed to be provided not only for transfer of the decree but also for regulating the proceedings of such transferred execution petitions--- High Court directed the appellant to move respective Executing Court for transfer of execution proceedings/ petition---Constitutional petition was allowed accordingly.

Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR 1145 and Mst. Amman Gul v. Judge Family Court Rawalpindi and 2 others 2023 CLC 1300 rel.

Malik Anwar ul Haq for Petitioner.

Nemo for Respondents.

P L D 2024 Balochistan 1

Before Naeem Akhtar Afghan. C.J. and Shoukat Ali Rakhshani, J

QADIR BAKHSH JAMOTE---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta

and others---Respondents

C. Ps. Nos. 1424, 1477 and 280 of 2022, decided on 21st June, 2023.

Balochistan Land Revenue Act (XVII of 1967)---

----Ss.5 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Creating new district---Board of Revenue, jurisdiction of---Judicial review---Scope---Petitioners assailed notification creating new district on the basis of 7th Digital Population Census, 2022---Validity---Government of Balochistan was empowered by Ss. 5 & 6 of Balochistan Land Revenue Act, 1967, to vary number and limits of Districts, Divisions or to create new Districts or Divisions---Such policy decision of the Government had to be taken in public interest keeping in view practical administrative convenience and difficulties of local population---Notification in question was a policy decision of Government of Balochistan and was not immune from being called in question before High Court as power of judicial review under Art. 199 of the Constitution was available in case of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of Government---Petitioners failed to show that creation of new district by division/bifurcation of existing district by Government of Balochistan was infraction of law or same was unfair, unreasonable, arbitrary or was mala fide warranting judicial review of the same by High Court under Art. 199 of the Constitution---Petitioners did not fall within the purview of Art. 199 of the Constitution as no prejudice was caused to them due to creation of new district after division/bifurcation of existing district---Constitutional petition was dismissed, in circumstances.

Sher Shah Kasi for Petitioner (in C.P. No.1424 of 2022).

Zahoor Ahmed Baloch, Additional Advocate General along with Hussain Rasheed, Assistant Legal Officer Board of Revenue Quetta for Respondents Nos. 1 to 7 (in C.P. No.1424 of 2022).

Amanullah Kanrani, Muhammad Ali Kanrani and Hazrat Ali Kakar for Respondents Nos.8 to 65 (in C.P. No.1424 of 2022).

Ellahi Bakhsh Mengal for Applicant/intervener (in C.P. No.1424 of 2022).

Muhammad Hanif assisted by Ghulam Qadir for Petitioner (in C.P. No.1477 of 2022).

Zahoor Ahmed Baloch, Additional Advocate General along with Hussain Rasheed, Assistant Legal Officer Board of Revenue Quetta for Respondents Nos. 1 and 2 (in C.P. No.1477 of 2022).

Rauf Atta, Additional Attorney General assisted by Shehzad Aslam, Law Officer, Election Commission of Pakistan and Naseer Ahmed, Senior Personal Assistant for Respondent No.3 (in C.P. No.1477 of 2022).

Amanullah Kanrani, Ghulam Azam Qambrani, Muhammad Ali Kanrani and Hazrat Ali Kakar for Respondents Nos.4 to 60 (in C.P. No.1477 of 2022).

Ellahi Bakhsh Mengal for Applicant/intervener (in C.P. No.1477 of 2022).

Ameer Muhammad Tareen for Petitioners (in C.P. No.280 of 2022).

Zahoor Ahmed Baloch, Additional Advocate General for Respondents Nos. 1 to 7 (in C.P. No.280 of 2022).

Adnan Ejaz Sheikh and Tahir Ali Baloch for Respondent No.9 (in C.P. No.280 of 2022).

Ellahi Bakhsh Mengal for Applicant/intervener (in C.P. No.280 of 2022).

P L D 2024 Balochistan 6

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

Prof. Dr. NAHEED HAQ---Petitioner

Versus

PROVINCE OF BALOCHISTAN through Secretary Governor/Chancellor of Balochistan and 2 others---Respondents

Constitution Petition No. 1639 of 2022, decided on 27th June, 2023.

(a) Balochistan Protection Against Harassment of Women at the Workplace Act (I of 2016)---

----Ss. 2(j) & 12---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S. 2(h)---Harassment complaint under Balochistan Protection Against Harassment of Women at the Workplace Act, 2016---'Harassment'---Petitioner was assigned acting charge of the Pro Vice-Chancellor in absence/removal of the Vice-Chancellor/respondent---Contention of the petitioner was that, after resuming the charge of Vice-Chancellor, the respondent (Vice- Chancellor) having developed personal grudge against her, started taking adverse steps against her including summoning her in a false and baseless case of harassment filed by one Chairperson of Department---Validity---Vice-Chancellor/respondent as well as members of the Harassment Committee had failed to apply their mind while entertaining the complaint-in-question and summoning the petitioner as the complaint-in-question did not certain any allegation of sexual orientation and nature---Any misdemeanor, behavior or conduct unbecoming of an employee or employer at workplace towards a fellow employee or employer, may it be generically classifiable harassment, is not actionable per-se, unless such behavior or conduct is shown to be inherently demonstrable of its 'sexual' nature---On the contrary, complaint-in-question showed that the same contained general allegations i.e. calling of complainant by petitioner in her office, treating her in allegedly undignified manner or giving verbal orders while very harsh, poor and contemptuous language, that too against petitioner (a teacher/pro-vice chancellor), had been used in the complaint---Petitioner, who also happened to be a female, had also a right to perform her duties as Pro-Vice Chancellor in a safe and inclusive work environment, whereas it seemed that she had been made scape goat, harassed and discriminated merely on linguistic basis by a local inhabitant---Similarly, the removal of the petitioner from several committees being Pro-Vice Chancellor was also flat defiance of law and illegal---High Court declared the summoning of the petitioner in the complaint-in-question as illegal, mala fide and void ab-intio---Constitutional petition filed by the lady professor was allowed, in circumstances.

Nadia Naz v. The President of Pakistan and others PLD 2021 SC 784 ref.

(b) Balochistan Protection Against Harassment of Women at the Workplace Act (I of 2016)---

----Ss. 2(J) & 12---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S. 2(h)---harassment complaint under Balochistan Protection Against Harassment of Women at Workplace, 2016---"Harassment"---Scope---Though the Act of 2016, enacted by the Provincial Assembly of Balochistan is ditto copy of the federal legislation i.e. the Act of 2010, however, departure has been made while defining the term of "harassment" where the words "any kind of threats, blackmailing, mental and physical torture, attempt for defamation or defamation through modern techniques" have been added---Said definition and its interpretation by the heads of some organizations is a serious matter because it undermines the intent of the legislation and has detrimental effects on both individuals and the overall workplace environment---There are a number of instances of misuse of the said law, however, the main cause is the novel definition of term 'harassment'---Although the Act, 2016 is/was a legislative measure aimed at providing a safe and harassment-free working environment for women and to prevent sexual harassment at workplaces, however, due to the novel definition of 'harassment' in the Act of 2016, the same is /was being misused and the present case is/was one such example---It is also worth mentioning that under S. 12 of the Act of 2016, the provisions of the Act are in addition to and not in derogation of any other law---Act of 2016 is basically a myopic piece of legislation that focused only on a minute faction of harassment and it confines or limits its application to sexualized forms of harassment---High Court declared the summoning of the petitioner in the complaint-in-question as illegal, mala fide and void ab-intio---Constitutional petition was allowed, in circumstances.

Nadia Naz v. The President of Pakistan and others PLD 2021 SC 784 ref.

Ahmed Rehman Bazai for Petitioner.

Shai Haq Baloch, Additional Advocate General (AAG) for Respondent No.1.

Muhammad Akram Shah assisted by Ms. Nafisa Rehman Shahwani, representative of Mehrgarh for Respondents Nos.2 and 3.

P L D 2024 Balochistan 13

Before Muhammad Kamran Khan Mulakhail and Sardar Ahmed Haleemi, JJ

Messrs SARA ENTERPRISES GOVERNMENT CONTRACTORS through Proprietor ---Petitioner

Versus

SECRETARY FINANCE, GOVERNMENT OF BALOCHISTAN, QUETTA and 2 others---Respondents

C. P. No. 2026 of 2022, decided on 31st May, 2023.

(a) Balochistan Revenue Authority Act (VII of 2015)---

----S. 4(2)(a) & Preamble---Prospective/Retrospective application of a new law---Scope---Payment of works, done in the year 1998, by the petitioner (government contractor) was finally decreed in the year 2019, however, the decretal amount was released after deducting 15% tax under the provisions of Balochistan Revenue Authority Act, 2015---Petitioner invoked constitutional jurisdiction of the High Court against the said tax deduction---Validity---Balochistan Revenue Authority Act, 2015 ('the Act 2015') came into force on 1st July 2015 whereas the matter-in-question was related to the works having already been done in the year 1998---According to the canons of constructions, every statute, including amendatory statute, is, prima facie prospective, unless it is given retrospective effect either expressly or by necessary implication---Statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the Statute is to affect vested rights, past and closed transactions or facts or events that had already occurred---Said principles are attracted to fiscal Statutes which have to be construed strictly, for they tend to impose liability and are, therefore, burdensome (as opposed to beneficial legislation)---The Act 2015 had no retrospective effect whereas the dispute, in the present case, related to the fiscal year 1998---High Court set aside impugned order of deduction of 15% tax from the bill of the petitioner, declaring the same void ab initio for having been passed in the year 2019; and directed the Official respondents to refund the deducted amount to the petitioner---Constitutional petition was allowed, in circumstances.

Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan 2021 SCMR 1871; Sardar Sher Bahadar Khan v. Election Commission of Pakistan through Secretary, Election Commission, Islamabad and others PLD 2018 SC 97 and Mst, Sarwar Jan and others v. Mukhtar Ahmed and others PLD 2012 SC 217 ref.

(b) Maxim---

----'Nova constitutio futuris formam imponere debet, non praeteritis, principle of---Meaning---Said maxim means 'a new law ought to regulate what is to follow, not the past'.

(c) Interpretation of statutes---

----Fiscal statute---Charging section of a fiscal part of a Statute, is the key and pivotal provision which imposes a fiscal liability upon a taxpayer/person, thus it should be strictly construed and applied---If a person does not clearly fall within the four corners of the charging section of such a Statute he cannot be saddled with a tax liability.

Atif Faizan Usto for Petitioner.

Tahir Iqbal Khattak, Addl: A.G. for Official Respondent.

Jam Saka Dashti for Respondent No.3.

P L D 2024 Balochistan 18

Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, JJ

ABDUL GHAFFAR---Appellant

Versus

MUHAMMAD AYUB and another---Respondents

R.F.A. No. 26 of 2021, decided on 24th March, 2023.

Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Qanun-e-Shahadat (10 of 1984), Art. 60---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of promissory notes---Document, execution of---Proof---Presumption---Denial by the defendant---Comparison of signatures---Claim of the appellant/plaintiff was that on the request of respondents/defendants he arranged a loan of ten million rupees for which a guarantee agreement and promissory notes were executed---Trial Court dismissed the suit of the appellant/plaintiff on the ground that he failed to prove execution of alleged documents---Validity---Record revealed that respondents had strongly denied the execution of both the agreement and promissory notes so much so that they filed an application under Art. 60 of the Qanun-e-Shahadat, 1984, for analysis of documents from the Forensic Science Lab ('the FSL'), in which regard, in the opinion of expert, (appellant') asserted signatures (in Urdu as well as in English) of both the respondents did not tally with the specimen/routine signatures supplied by them---Although the initial presumption under S. 118 of the Negotiable Instruments Act, 1881 ('the Act 1881') that a negotiable instrument was made or drawn, or accepted or endorsed for consideration, yet the said presumption was rebuttable, but in the present case, the respondents had straight away denied the execution of alleged promissory notes, therefore, the appellant had to discharge the said burden that the promissory notes had been duly executed and signed by the respondents---Opinion by the FSL after analysis of documents created serious doubts regarding execution of the promissory notes---Appellant had failed to prove payment to the respondents and execution of promissory notes---Contents of the promissory notes read that payment in millions was made, surprisingly, "in cash" at Court premises (Katchehri), therefore, the complete edifice upon which the appellant had built his case stood crumbled---Even alleged agreement having been exhibited by the appellant was not notarized in accordance with applicable laws which created another doubt regarding its authenticity---Even the Oath Commissioner, who according to the appellant had attested promissory notes, was not produced---Appellant also failed to prove his source and capacity to make payment, therefore, the presumption contained in S. 118 of the Act, 1881 stood rebutted---No infirmity in reasoning and no perversity in interpretation of relevant provisions of law had been noticed in the impugned judgment and decree passed the Trial Court---Appeal was dismissed, in circumstances.

Ghulam Murtaza v. Muhammad Rafi 2020 CLD 265 ref.

Ajmal Khan Kasi for Appellant.

Abdul Aziz Achakzai for Respondents Nos. 1 and 2.

P L D 2024 Balochistan 23

Before Naeem Akhtar Afghan,C.J. and Rozi Khan Barrech, J

CONSTRUCTORS ASSOCIATION OF PAKISTAN through Secretary General and 4 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Communication Department, Quetta and 8 others---Respondents

Constitution Petition No. 757 of 2021, decided on 24th June, 2022.

Balochistan Public Procurement Rules, 2014---

----R. 29(1)---Constitution of Pakistan, Art. 143---Rule 29 of the Balochistan Public Procurement Rules, 2014 ('BPPRA Rules 2014'), vires of---Pakistan Engineering Council, Standard Form of Bidding Documents (Civil Works) dated 11-06-2007, Clause 15.2---Bid Security (of 2% in the shape of Bank Guarantee/Deposit at Call (CDR) by the participating contractors/firms), submitting of---Notice Inviting Tender was issued in newspapers by Secretary Communication Department, Government of Balochistan ('GoB') (respondent) for procurement of seven different works for construction of roads ('the subject works') with condition of submitting Bid Security of 2% in the shape of Bank Guarantee/Deposit at Call (CDR) by the participating contractors/firms (which condition was) based on R. 29 of the Balochistan Public Procurement Rules, 2014 ('BPPRA Rules 2014')---Petitioners (Constructors Association of Pakistan and other contractors/firms) invoked constitutional jurisdiction of the High Court seeking amendment in the said condition/requirement and prayed that, instead the Insurance Guarantees from a AA Ranking Insurance Company for the subject projects be accepted from them (petitioners)---Validity---Clause 15.2 of the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by Pakistan Engineering Council (PEC) had been duly notified in the official Gazette vide Notification dated 12.02.2008 and it was mandatory for all concerned engineering organizations/ departments to use the said Standard Form of Bidding Documents for procurement of civil works funded locally or through donor agencies---Surprisingly, in bidding documents of different projects in the Province of Balochistan, GoB issued interest free mobilization advance to the successful bidders for the projects against guarantee for the full amount of mobilization advance from a scheduled bank or an insurance bond from an insurance company having at least AA Rating from PACRA/JCR, but R. 29(1) of BPPR 2014 did not provide option to the bidder to furnish bid security of 2% in the shape of insurance bond of an insurance company having at least AA rating from PACRA/JCR in favour of the employer---Rule 29(1) of BPPR 2014 is in contradiction to Federal and other Provincial Public Procurement Rules ,and it also not in conformity with Clause 15.2 of the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC which has an obligatory effect/is mandatory for all engineering organizations, departments at Federal and Provincial levels and District Governments for procurement of Civil Works---According to Art. 143 of the Constitution, in case of conflict between Federal and Provincial enactments, privilege of overriding supremacy is conceded to the Parliament/Federal Legislature---High Court directed the relevant quarters including Chief Secretary GoB to suitably amend R. 29(1) of BPPR 2014 and bring the same in conformity with procurement rules of other Provinces and the Federal Government and with the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC---Constitutional petition was allowed, in circumstances.

Muhammad Masood Khan and Muhammad Nasir Khan for Petitioners.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents Nos. 1,2,5 to 9.

Muhammad Hanif Sumalani for Respondent No.3.

Sanaullah Ababaki, Additional Attorney General for Respondent No.4.

P L D 2024 Balochistan 30

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

HAIDER KHAN---Petitioner

Versus

SHER KHAN and 3 others---Respondents

Constitution Petition No. 1076 of 2020, decided on 21st September, 2022.

Balochistan Civil Disputes (Shariat Application) Regulation, 1976---

----S. 2---Constitution of Pakistan, Arts. 246 & 247 [as amended through Constitution (Twenty-Fifth Amendment) Act (XXXVII of 2018)---Balochistan Civil Courts Ordinance (II of 1962), Preamble---Civil Procedure Code (V of 1908), O. VII, R. 10---Notification No.240/ RHC/JM/2019 dated 10-10-2019 issued by the Balochistan High Court---Civil suit filed by a private person where Government is also a party (to the suit)---Maintainability---Suit filed by the plaintiff/ petitioner was returned under O. VII, R. 10 of the Civil Procedure Code, 1908, by the Court of Qazi under S. 2 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ('the Regulation, 1976'), which order was maintained by the Appellate Court---Validity---Record revealed that both the Courts below, while not entertaining his claim, had not referred to (suggested) to the petitioner the competent Court having jurisdiction---In the earlier scheme of the Regulation, 1976 where the government functionary was a party to a lis, the Court having jurisdiction was Court of Civil Judge but after promulgation of Constitution (Twenty-Fifth Amendment) Act, 2018, Art. 246 of the Constitution was inserted/amended, whereby the tribal areas were merged into respective provinces---Regulation, 1976 was applicable in tribal areas of Balochistan, but after the Constitution Twenty-Fifth Amendment, the tribal areas had been merged and made part of the Province of Balochistan, hence the tribal areas were no more in existence ; powers enjoyed by the President of Pakistan in case of Federally Administrated Tribal Areas ('FATA') and the Governor of Balochistan in case of Provincially Administrated Tribal Areas ('PATA') were no more available to them under Art. 247(4) of the Constitution---In view of Notification No. 240/RHC/JM/2019 dated 10-10-2019 issued by the Balochistan High Court, the litigations pending before the Qazi Courts and Member Majlis-e-Shoora exercising jurisdiction under the Regulation, 1976, stood transferred to the Civil Courts having original jurisdiction constituted under the Balochistan Civil Courts Ordinance, 1962---Matters related to the civil disputes were to be adjudicated by the Civil Courts constituted under the Balochistan Civil Courts Ordinance, 1962, thus the petitioner having any civil dispute regarding property might approach a Civil Court having ordinary jurisdiction---Constitutional petition was disposed of accordingly.

Naimatullah v. Faizullah (C.R.P. No.209 of 2011) ref.

Siraj Ahmed for Petitioner.

Mehrullah Khan Kakar for Respondents.

Nusrat Baloch, A.A.G. for Official Respondents.

P L D 2024 Balochistan 33

Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ

MASOOMA and another---Petitioners

Versus

FEDERAL GOVERNMENT through Ministry of Interior Pak Secretariat and another---Respondents

Constitution Petitions Nos. 656 and 662 of 2022, decided on 3rd November, 2022.

Pakistan Citizenship Act (II of 1951)---

----Ss. 10(2) & 17---Constitution of Pakistan, Art. 199---Constitutional petition by alien/foreign national seeking directions for issuance of Computerized National Identity Card (CNIC)---Fore-father of petitioners migrated from Afghanistan to Pakistan and the petitioners were born in Pakistan---Petitioners got married to Pakistani citizens---Both the petitioners applied for issuance of CNIC after fulfilling all the legal requirements, however, their request was declined---Validity---Computerized National Identity Card could not be issued in favour of petitioners in absence of Certificate of Domicile issued by the Federal Government---Besides marrying Pakistani citizens, petitioners were also entitled for Pakistani citizenship being born in Pakistan within the purview of S. 4 of the Pakistan Citizenship Act, 1951 (Act, 1951), however, for the said purpose, they had to approach the Federal Government for issuance of Certificate of Domicile under S. 17 of the Act, 1951---However, it was a case of hardship as the refusal of CNIC in favour of petitioners had exposed them to horrendous consequences however, the Authority was bereft of jurisdiction and power to issue CNIC in absence of Certificate of Domicile by the Federal Government---Under S. 10(2) of the Act, 1951, a women who had been married to a citizen of Pakistan would be entitled on making application to the Federal Government in the prescribed manner and if she was an alien, on obtaining a certificate of domicile and taking the oath of allegiance in the form set out in the Schedule to the Act to be registered as a citizen of Pakistan but such special concession was not available to male aliens within the purview of S. 10(2) of the Act, 1951---Petition was disposed of with direction that the petitioners shall approach the Federal Government in the prescribed manners for the grant of Certificate of Domicile.

Salman Khan Kakar for Petitioners.

Rashid-ur-Rehman, Assistant Attorney General for Respondent No.1.

Zubair Naseem Khawaja, Law Officer, NADRA for Respondent No.2.

P L D 2024 Balochistan 38

Before Naeem Akhtar Afghan,C.J. Muhammad Aamir Nawaz Rana, J

M. N. CONSTRUCTION COMPANY through Authorized Officer/Attorney--Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and 10 others---Respondents

Constitution Petition No. 571 of 2023, decided on 29th May, 2023.

Balochistan Public Procurement Rules, 2014---

----Rr. 37 & 41---Procurement process---Pre-bidding stage---Bid security---Insurance Bond/Guarantee of Insurance Company---Petitioner company was aggrieved of deposit of bid security in the form of Bank Guarantee and Deposit at Call and intended to furnish Insurance Bond/Guarantee of Insurance Company---Validity---Provision of R. 37 of Balochistan Public Procurement Rules, 2014, prohibited discriminatory and difficult conditions for procurement while R. 41 of Balochistan Public Procurement Rules, 2014, provided procedure for competitive bidding---For procurement of projects in question, only three contractors/firms (including petitioner) had pre-qualified---If petitioner company failed to submit Bid Security with bids in shape of Bank Guarantee or Deposit at Call and if petitioner company was not permitted to furnish Insurance Bond/Guarantee of an Insurance Company of AA Rating in required sums as Bid Security with its bids for procurement of two projects, the petitioner company would be deprived of submitting its bids/financial proposal for two projects and in such circumstances only two prequalified bidders would be able to submit their bids/financial proposals for procurement of the two projects which could not be termed as competitive bidding and would be violative of provisions of Rr. 37 & 41 of Balochistan Public Procurement Rules, 2014---High Court permitted petitioner company for the sake of competitive bidding for two projects to furnish Bid Security in the shape of Guarantee/Insurance Bond of AA Rating Insurance Company of Pakistan---Constitutional petition was allowed accordingly.

Masood Khan for Petitioner.

Zahoor Ahmed Baloch, Additional Advocate General along with Syed Arshad Hussain, Director (J) Irrigation Department Government of Balochistan Quetta for Respondents Nos. 1, 2, 3, 6 and 10.

Umar Ijaz Gilani for Respondent No.4.

Rauf Atta, Additional Attorney General for Respondents Nos. 5 and 11.

Muhammad Naeem Marri for Respondent No.7.

P L D 2024 Balochistan 50

Before Naeem Akhtar Afghan, C.J. and Shaukat Ali Rakhshani, J

Messrs USMAN SHIP BREAKERS through Proprietor---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Ministry of Planning and Development, Balochistan and 4 others---Respondents

Constitution Petition No. 1338 of 2021, decided on 10th January, 2023.

Balochistan Ship Breaking Industry Rules, 1979---

----R. 14(1)---Shipbreaking---Allotment of plots---Lease agreement, violation of---Cancellation of allotment---Petitioner was a Ship-Breaking Company which was allotted plots in Gaddani Ship-breaking Yard for beaching vessels by the respondents (Balochistan Development Authority)---Petitioner invoked constitutional jurisdiction of the High Court alleging that allotment order had been cancelled in clandestine manner by the respondents while it was facing financial crises---Validity---Petitioner was allotted two plots in Gaddani Ship-breaking Yard in the year 2012 and a lease agreement was also executed---During the first five years of the lease agreement, several vessels were beached and salvaged due to which no controversy arose between the petitioner and the respondents, which led them to renewal of the allotment for further five years, following execution of lease agreement in the year 2017---Rule 14(1) of the Rules 1979 manifested that after the allotment of the lease, the allotted plots could not be left vacant without a ship for more than four months, however, the same could be extended for further four months, but with the prior approval of the Authority in writing for good reasons shown after being satisfied for not beaching the ship within the stipulated period of four months and that if the Rule was violated the lease would automatically stand terminated---Furthermore, the relevant para of the lease-deed executed by the petitioner also provided a similar condition---There was no denial on the part of the petitioner and endorsed by the respondents that the last vessel beached on the allotted pots in the year 2017, but thereafter no vessel had been beached by the petitioner---Petitioner had not placed on record any tangible evidence to substantiate his claim regarding his inability, including financial crises faced by him to beach the vessels---Record revealed that after cancellation of the allotment of the plots-in-question, the same had been allotted to another ship-breaking company which had executed lease agreement, in consequence thereof a vested rights had been created in its favour, but the petitioner had not arrayed the said company as respondent in the present petition, which now had an infeasible right in the allotted plots---Moreover, the lease-in-question was executed in the year 2017 for five years which had elapsed in the year 2022---Hence, the lease executed in favour of the petitioner was no more in field---Allegation about cancellation of allotment order by putting back dates on the same in clandestine manner had not been substantiated by the petitioner---Constitutional petition was dismissed, in circumstances.

Tahir Ali Baloch for Petitioner.

Syed Ayaz Zahoor and Abdul Zahir Kakar for Respondents Nos. 2 to 4.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondent No.5.

P L D 2024 Balochistan 56

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

Messrs CONTRACTORS ASSOCIATION OF BALOCHISTAN through Authorized representative and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and others---Respondents

Constitution Petitions Nos. 1963 and 2082 of 2022, decided on 29th May, 2023.

Balochistan Public Procurement Regulatory Authority Act (VIII of 2009)---

----Ss. 4, 26 & 27---Balochistan Public Procurement Rules, 2014, R. 11-A---Notification No. FD.US (Procurement) 2-1/e Procurement/ 2022-23/854- 797 dated 18-11-2022---Vires of---Electronic Public Procurement---Petitioners assailed bidding process on the plea that procurements/bids were not conducted electronically via e-bidding---Validity---Electronic bidding was an advanced, fool proof secured procurement system free from all encumbrance and indulgence of Government officials and public representatives---Such bidding process guaranteed a fair competition among the bidders and was to bring real value of public money in terms of services on one hand and on the other hand it could save public money---Difficulties arising in giving effect to any of the provisions could be removed under S. 26 of Balochistan Public Procurement Regulatory Authority Act, 2009, by the Government---Notification on the touch stone of Ss. 4, 26 & 27 of Balochistan Public Procurement Regulatory Authority Act, 2009, basically created difficulties rather than eradicating the same and was inconsistent with the provisions of Balochistan Public Procurement Regulatory Authority Act, 2009 and Balochistan Public Procurement Rules, 2014---Notification bearing No. FD.US (Procurement) 2-1/e Procurement/2022-23/854- 797 dated 18-11-2022, wherein, threshold for e-bidding for works had been revised and enhanced from Rs. 50.00 M to 500.00 M till 30-06-2023 was arbitrary---High Court declared the notification No. FD.US (Procurement) 2-1/e Procurement/ 2022-23/854- 797 dated 18-11-2022, void ab initio and cancelled the same---Constitutional petition was allowed, in circumstances.

Muhammad Ishaq Nasar (in C.P. No. 1963 of 2022) and Manzoor Ahmed Kakar for Petitioners (in C.P. No. 2082 of 2022).

Shai Haq Baloch, Additional Advocate General for Respondents Nos.1 to 3.

Muhammad Naeem Marri assisted by Abid Saleem Qureshi, MD BPPRA, Ghulam Jan Naseer, Director (MIS) BPPRA and Mubashir Ali Khan (MCIPS) Specialist Goods and Services for Respondent No.4.

P L D 2024 Balochistan 62

Before Abdul Hameed Baloch, J

MUHAMMAD AZAM KHAN SWATI---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, BALOCHISTAN and others---Respondents

Criminal Qashment Petitions Nos. 640, 641 and 649 of 2022, decided on 19th December, 2022.

Penal Code (XLV of 1860)---

----Ss. 123-A, 124-A, 153-A, 504 & 505---Criminal Procedure Code (V of 1898), S. 561-A---Condemnation of creation of State, and advocacy of abolition of its sovereignty; sedition; Criminal intimidation with intentional insult to provoke breach of the peace; and statements conducing to public mischief---Quashing of FIR---Petitioner was accused in more than one FIRs containing same allegations based on same material---Validity---Each and every organ of the State was under legal obligation to obey decision/observation of Supreme Court---First Information Reports were registered in different police stations of the Province, which was flagrant violation of dictum laid down by Supreme Court in Sughra Bibi's case reported as PLD 2018 SC 597 and was willful disregard/disobedience---Station House Officers of all police stations were not above the law and they had to follow the law in letter and spirit---Law did not allow the authorities to act on their whims and in capricious manner---Registration of same offence was mockery with law and had amounted to misuse of authority---High Court quashed all FIRs registered against petitioner/accused---Petition was allowed, in circumstances.

Naseem Khan Kasi v. Station House Officer, Police Station Quetta 2022 PCr.LJ 887; Muhammad Essa Roshan v. State 2021 PCr.LJ 1342; Captain (R) Muhammad Safdar v. Inspector General of Police, Khyber Pakhtunkhwa, Central Police Office, CPO, Peshawar 2022 PCr.LJ 1342; Noor-Un-Nisa v. United Bank Limited PLD 2021 Lah. 90 and Abdul Waheed's case 2006 SCMR 489 ref.

Sugra Bibi v. State PLD 2018 SC 597 fol.

Syed Iqbal Shah, Naseebullah Ullah Tareen, Ali Hassan Bugti, Ghulam Mustafa Buzdar, Muhammad Imran Alvi, Jamil Bostan, Muhammad Azam Safi, Saqib Raza Hasan, Taimur, Agha Faisal and Muhammad Hassan Bugti for Petitioner.

Nasraullah, Additional P.G., Wajahat Ghaznavi, State Counsel, Gul Baran, AIG (Legal) CPO Quetta, Sakhi Daad SI Lasbella P.S. Windar, Qadir Bakhsh, SI PS Bela and Hassan Abbas Malik PDSP Quetta for Respondents.

P L D 2024 Balochistan 70

Before Iqbal Ahmed Kasi, J

DILAWAR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 55 of 2023, decided on 20th November, 2023.

(a) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 14---Criminal Procedure Code (V of 1898), Ss. 242, 243, 244, 265-D, 265-E & 265-F---Illegally entering into Pakistan---Appreciation of evidence---Benefit of doubt---Confessional statement recorded at belated stage---Effect---Accused was charged that he being Afghani National entered into Pakistan without any legal documents---Record showed that charge against accused was framed on 26.12.2022 and he pleaded not guilty---Accused filed an application on 25.03.2023 through his counsel and voluntarily made an offer to make a confessional statement---Now the issue to be determined was whether the Trial Court was justified in accepting the offer of the appellant/ convict to record the appellant's/convict confessional statement at a belated stage, when admittedly as per the order sheet dated 26.12.2022 and impugned order the appellant/convict did not plead guilty and claimed trial in explicit terms or otherwise---Bare perusal of the provisions of Ss. 242, 243 & 244, Cr.P.C. clearly depicted that once a formal charge was framed and put to the appellant/convict, which was denied by him under S. 242, Cr.P.C. provisions of S. 243, Cr.P.C., shall ipso facto become inoperative and Court had to proceed under S. 244, Cr.P.C., by recording the prosecution evidence as well as that of the accused, if led in defence---Thus, the confessional statement made after so many dates of hearing when at the time of the framing charge, the appellant/convict in explicit terms had denied the same, was of no legal effect in the presence of Ss. 244, 265-D, 265-E & 265-F of the Criminal Procedure Code, 1898---Hence, in the foregoing circumstances, the conviction and sentence inflicted by the Trial Court in terms of the impugned order dated 29-03-2023 was not sustainable in the eyes of the law, which was set-aside and the case was remanded to the Trial Court to decide the same in accordance with law, after recording the evidence.

King Emperor v. Kasim Waled Mohamed Saffer AIR 1925 Sindh 188 rel.

(b) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 14---Illegaly entering into Pakistan---Appreciation of evidence---Benefit of doubt---Time barred appeal---Scope---Allegedly appeal was filed with delay---Right of appeal is a substantial right which normally should not be denied on technical counts/reasons particularly when it came to the criminal administration of justice---Normally condonation of delay would do nothing with the merits of the case, but would only require the Court to decide the lis on merits---Condonation of delay is normally subject to giving a "reasonable explanation" which might have prevented party in approaching the Court---Thus, while examining the question of limitation, the circumstances claimed to have prevented one in approaching the Court in time, would always be a decisive---If the circumstances pleaded appear to be justified or even likely to be believable though no proof is offered then the delay must always be condoned---Even condonation of delay would not absolve the party from establishing his case on merits---Hence, in the foregoing circumstances, the conviction and sentence inflicted by the Trial Court in terms of the impugned order dated 29-03-2023 was not sustainable in the eyes of the law, which was set-aside and the case was remanded back to the Trial Court to decide the same in accordance with law, after recording the evidence.

Fazli Hakeem and another v. Secretary: State and Frontier Regions Division and others 2015 SCMR 795 rel.

Awais Ahmed Kasi for Appellant.

Fazal-ur-Rehman, State Counsel.

P L D 2024 Balochistan 75

Before Gul Hassan Tareen, J

ZAKAULLAH and 6 others---Petitioners

Versus

GHAZI KHAN and 3 others---Respondents

Civil Revisions Nos. 244 and 344 of 2020, decided on 26th August, 2022.

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

----S. 35-A---Qanun-e-Shahadat (10 of 1984), Art.57---Recovery of money---Special costs, awarding of---Judgment, relevancy of---Petitioner/plaintiff sought recovery of money from respondents/ defendants on the ground that the money was given in consideration of marriage of his three sons with three sisters of respondents/ defendants---Petitioner/plaintiff relied upon ex-parte judgments passed by Family Court---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court---Validity---Ex-parte judgments of Family Court reflected that not a single penny was paid to sisters of respondents/defendants by plaintiff/petitioner on account of dower, maintenance or dowry articles---Existence of judgments of Family Court were relevant under Art. 57 of Qanun-e-Shahadat, 1984, to prove non-existence of fact in issue and relevant fact---Findings of Trial Court on relevant issue were result of non-reading of evidence and misinterpretation of law, which had rightly been set aside by Lower Appellate Court---High Court declined to interfere in judgment and decree passed by Lower Appellate Court and imposed special cost against petitioner/plaintiff who unnecessarily and with malafide intention dragged respondents/defendants into protracted litigation without reasons---Petitioner/plaintiff was guilty of bad faith by instituting, false vexatious and baseless claim against respondents/ defendants, therefore was liable to be penalized by imposing compensatory costs of Rs. 200,000/- (Rupees two hundred thousand) as compensation to respondents/defendants, as envisaged by S. 35-A, C.P.C.---Revision was dismissed, in circumstances.

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

----Ss. 17, 21, 22, 30 & 33---Registration Act (XVI of 1908), S. 17(1)(e)---Civil Procedure Code (V of 1908), S. 115---Award, setting aside of---Un-registered award---Effect---Format of objections---Petitioner was aggrieved of an un-registered award made rule of the Court by Lower Appellate Court---Validity---Award related to an immoveable property of value more than Rs. 100/- ---Such award was compulsorily registerable under S. 17(1) (e) of Registration Act, 1908---Such award if not registered could not be made rule of the Court under S. 17 of Arbitration Act,1940---Written reply, counter affidavit or objections, submitted in reply of application made under S. 17 of Arbitration Act, 1940 amounted to an application under Ss. 30 & 33 of Arbitration Act, 1940---Separate application for setting aside the award was not requirement of law---Provisions of Ss. 30 & 33 of Arbitration Act, 1940, were meant to provide an opportunity to objector to the award to raise objections with a view to have the award set aside---Respondent filed objections to the application made under Ss. 14 & 17 of Arbitration Act, 1940 in which he had raised all the objections---Objections of respondent could be considered as an application under S. 33 of Arbitration Act, 1940---Lower Appellate Court while making award as rule of the Court had exercised jurisdiction not vested in it and the order was result of jurisdictional error---High Court set aside judgment and decree passed by Lower Appellate Court---Revision was allowed, in circumstances.

2007 YLR 245; AIR 1967 SC 526; Messrs Nisar-ul-Haq Associates, Government, Contractors, Multan Cantt v. Cantonment Board, Multan PLD 2002 SC 747; Farmers Equity Private Limited (FEP) through Chief Executive and 3 others v. Mehboob Alam 2013 CLD 522; Muhammad Saleem v. Muhammad Shafi and 4 others 2004 YLR 1882 and Hamid Razi Sarwar v. Rohi Sarwar and others 2002 CLC 107 ref.

Farida Malik v. Khalida Malik 1998 SCMR 816; Haji Nawab Din v. Sh. Ghulam Haider and another 1988 SCMR 1623; Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662 and Chiragh Din v. Jilal Din through legal heirs and others 2004 YLR 1961(2) rel.

Mumtaz H. Baqri and Rasool Bakhsh Baloch for Petitioners (in Civil Revision Petition No. 244 of 2020).

Jameel Ramzan and Jamila Kakar for Respondents (in Civil Revision Petition No. 244 of 2020).

Muhammad Akram Shah for Petitioners (in Civil Revision Petition No. 344 of 2020).

Jameel Ramzan and Jamila Kakar for Respondents (in Civil Revision Petition No. 344 of 2020).

P L D 2024 Balochistan 87

Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ

DEPUTY COMMISSIONER/COLLECTOR, QUETTA and others---Appellants

Versus

HABIB-UR-REHMAN and others---Respondents

Civil Miscellaneous Appeals Nos. 20 of 2021, 2, 10, 139, 140, 141, 143 and 152 of 2022, decided on 27th October, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Acquisition of land---Compensation---Evaluation---Factors for consideration---Authorities were aggrieved of increase in compensation by Referee Court on reference filed by landowners---Validity---Mechanism provided under S. 23 of Land Acquisition Act, 1894, which is to be considered for determining amount of compensation to be awarded to landowners for compulsorily acquiring their property, includes market value of land at the date of publication of notification under section 4 of Land Acquisition Act, 1894; damages sustained by the person interested by reason of his construction; and deprivation of running business by forced displacement---Next best method is to take into consideration instance of sale of adjacent land in neighboring locality; its potentialities and its likelihood of developing and improvement; and past sale would also be a necessary factor for determining rate of compensation---Property in question was situated in urban area within the limit of Municipal Corporation---Deputy Commissioner/Collector Quetta, earlier in year 2011, while giving award of adjacent property/land also acquired land for public purpose namely "construction of flyover at Sariab Phattak Quetta", wherein compensation of Rs.5000/-, Rs.4200/- and Rs.3500/- per square feet was fixed and after seven years of the above award, price of the land in question escalated as the land was situated in mid of the city of Quetta and most properties were commercial in nature---High Court declined to interfere in judgment and decree passed by Referee Court, as documentary evidence was not refuted by authorities and judgment/decree was in accordance with settled principle of law and based on correct appreciation of evidence on record---Appeal was dismissed, in circumstances.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Murad Khan through its widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361; Collector, Land Acquisition, Nowshera and another v. Abdur Rashid and others 1996 CLC 1193; Collector Land Acquisition, Nowshera v. Abdur Rashid and others 1996 CLC 1193; West Pakistan WAPDA v. Mst. Hiran Begum 1972 SCMR 138; Government of Pakistan, Rawalpindi and another v. Malik Muhammad Aslam and 5 others 1978 SCMR 5; Land Acquisition Collector, Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 and Sarhad Development Authority N.W.F.P (Now KPK) through COO/CEO (Officio) and another v. Nawab Ali Khan and others 2020 SCMR 265 rel.

Shahid Baloch, A.A.G. for Appellants.

Jameel Shah for Private Respondents.

P L D 2024 Balochistan 92

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

ABDUL RAZZAQ---Petitioner

Versus

SECRETARY, EDUCATION DEPARTMENT, QUETTA and 4 others---Respondents

Constitution Petition No.(s)158 of 2021, decided on 29th August, 2022.

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

----S. 23---Constitution of Pakistan, Art. 199(1)(a)(i)--- Specific performance of agreement---Writ of mandamus, issuance of---Scope---Brother of the petitioner donated his land to the Education Department for up-gradation of local school for which an agreement was executed with the Education Department/respondents---Petitioner asserted that the consideration of said agreement was the employment of his (brother's) relatives with the respondents---Petitioner invoked constitutional jurisdiction of the High Court contending that he was not appointed by the respondents---Held, that the petitioner filed constitutional petition on the strength of an agreement, as such, the petitioner indeed had sought specific performance of agreement through writ of mandamus---In clause (i) of Art. 199(1)(a) of the Constitution, the word "law" meant sub-constitutional piece of legislation; and the relevant law, in the present case, was S. 23 of the Contract Act, 1872---Agreement-in-question was in violation of S. 23 of the Contract Act, 1872, being against the public policy as every agreement against public policy was void ,and as such, not enforceable---Respondents were not under obligation to perform the agreement under provisions of the S. 23 of the Contract Act, 1872, therefore, they could not be compelled to do an act which they were not required by the law to do---Petitioner was not an aggrieved party within meaning of Art. 199(1)(a)(i) of the Constitution because he had no legal grievance to maintain present constitutional petition---Constitutional petition was dismissed, in circumstances.

Umer Said and others v. District Education Officer (Female) and others 2007 SCMR 296 ref.

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

----S. 21(9)---Contract Act (IX of 1872, S.23---Constitution of Pakistan, Art. 199(1)(a)(i)---Specific performance of agreement---Constitutional petition---Maintainability---Brother of the petitioner donated his ancestral land to the Education Department for upgrading of school and an agreement was executed with the Education Department and the consideration of the agreement was employment of relatives with the respondents (Education Department)---Petitioner invoked constitutional jurisdiction of the High Court contending that he was not appointed by the respondents despite favourable observations of concerned Complaint Redressal Committee (C.R.C)---Held, that apart from provisions under S. 23 of the Contract Act, 1872, regarding public policy etc., the agreement-in-question could not be specifically enforced/performed under S. 21(9) of the Specific Relief Act, 1877, as in the present case, the agreement appeared to be in perpetuity for all times to come, generation after generation---Such an agreement which had cast a duty of performance for a period longer than three years could not, therefore, specifically be enforced---Section 21 of the Specific Relief Act, 1877, related to specific relief which could not be obtained in a civil suit---When a law for the time being enforced places an embargo on the jurisdiction of Court in certain circumstances as prescribed by S. 21 of the Specific Relief Act, 1877, then such embargo could not be brushed away through invoking the constitutional jurisdiction of the High Court---While exercising jurisdiction under Article 199 (1)(a)(i) of the Constitution, High Court could not direct respondents to do an act that they were not required by law to do (under S. 23 of the Contract Act, 1872 and S. 21 of the Specific Relief Act, 1877)---Observations of the C.R.C. in favour of the petitioner were passed on the basis of donation of land for the school, however, said observations in light of provisions of the law were illegal as such bore no binding effect upon the respondents---Constitutional petition was dismissed, in circumstances.

Ms. Sarwat Mukhtiar Hina for Petitioner.

Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos. 1 to 4.

Muhammad Ali Kanrani for Respondent No. 5.

P L D 2024 Balochistan 97

Before Iqbal Ahmed Kasi, J

SHER ALI MIRWANI and 4 others---Petitioners

Versus

AHMEDULLAH---Respondent

Civil Revision No. 745 of 2022, decided on 31st October, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 11 & 48---Execution of decree---Res judicata, principle of---Maxim "excaptio res judicata"---Scope---Petitioners were aggrieved of order passed by Lower Appellate Court allowing second application for execution of decree---Plea raised by petitioners was that in view of principle of res judicata, second execution proceedings were not maintainable---Validity---Respondent filed execution application and sought execution of order and decree, whereas first execution application had already been disposed of and no one from contesting parties had challenged the same before higher forum and that order took finality---Respondent's execution application had come under the purview of res judicata---Doctrine of res judicata is a well-settled rule in nearly all judicial systems, which empowers the Court to put at rest the litigation at some terminating point---Provision of S.11, C.P.C., embodies such rule of conclusiveness of judgment---Principle of res judicata enacts that once a matter is finally decided by competent Court, no party can be permitted to reopen it in subsequent litigation---To bring an end to litigation and to save parties from constant troubles, harassment and expenses, the rule of res judicata was made in Civil Procedure Code, 1908---To bring finality of judgment, such rule is applied, which is a rule of universal application and almost in every civilized legal system, this rule is being followed---Concept of res judicata evolved from common law system and it rests on the overriding concept of judicial economy, consistency and finality of a civil action---It has roots in Roman law also where a defendant could successfully contest a suit under the plea of excaptio res judicata, meaning that "one suit and one decision is enough for any single dispute"---Doctrine of res judicata is conceived in general interest of public policy, which requires that all litigation must come to an end at a point of time---Principle of res judicata is also founded on justice, equity and good conscience, which requires that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving same issue---High Court in exercise of revisional jurisdiction dismissed execution proceedings filed by respondent and order passed by Lower Appellate Court was set aside---Revision was allowed accordingly.

Mazhar Saeed Qureshi v. Government of Punjab through Secretary, Irrigation and Power Department, Lahore and 49 others 1986 SCMR 12 and Ejaz Hussain v. Bashir Ahmad and others 2000 SCMR 1190 rel.

Kamran Arshad for Petitioners.

Mujeeb Ahmed Hashmi for Respondent.

P L D 2024 Balochistan 101

Before Muhammad Ejaz Swati, J

KHRUM SHEZAD ZAFAR and 2 others---Petitioners

Versus

RAZIA BEGUM and 2 others---Respondents

Civil Revision No. 329 of 2022, decided on 29th November, 2022.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), Ss. 39 & 12---Suit for cancellation of gift-mutation and restoration of possession of suit-property---Rejection of plaint---Averments of the plaint---Cause of action---Relief(s) sought for---Evidence, requirement of---Scope---Plaintiff/lady, apart from cancellation of mutation, sought second relief praying restoration of her possession over two rooms constructed by her claiming that she was forcibly dispossessed without adopting proper course of law---Civil Court rejected the plaint of the lady/ plaintiff allowing an application filed by the defendants, however, the Appellate Court partly allowed plaintiff's appeal remanding the case with a direction to decide the second relief/prayer on merit---Contention of the petitioners/defendants was that gift-mutation was admitted---Plea of the respondent /plaintiff was that evidence was required in respect of second limb /relief sought by her---Validity---While deciding an application under O. VII, R. 11 of the Civil Procedure Code, 1908, only averments of the plaint were to be taken into consideration and every case was to be decided as per its own peculiar fact and circumstances---Respondent/plaintiff beside seeking cancellation of the impugned gift also sought relief for restoration of her possession of two rooms, which were allegedly constructed by her and said fact was also admitted in another suit filed by the petitioners which was already decreed---Since the respondent/plaintiff was allegedly forcibly dispossessed from the suit-property without adopting proper course of law, and in respect of second limb of her prayer the suit did not fall in the penal provision of O. VII, R. 11 of the Civil Procedure Code, 1908---Trial Court considered only one prayer/relief while deciding application filed by the petitioners/ defendants under O. VII, R. 11, of the Civil Procedure Code, 1908---Suit could be considered and decided independently on the basis of pleadings and evidence of the parties with regard to the other prayer---Such partial rejection, as in the present case, was not permissible under the law---Appellate Court for justifiable reason had set-aside the order of the Trial Court, therefore, impugned order passed by the Appellate Court did not call for any interference by the High Court---Revision was dismissed, in circumstances.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Mrs. Anis Haider and others v. S.Amir Haider and others 2008 SCMR 236; Saleem Malik v. Pakistan Cricket Board and 2 others PLD 2008 SC 650; Jeewan Shah v. Muhammad Shah and others PLD 2006 SC 202; S.M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Ch. Muhammad Siddique and another v. Mst. Faiz Mai and others PLD 2012 SC 211; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Rashid Ahmed and others v. Nazar Hussain and others 2022 SCMR 1842 ref.

Shahid Javed Nagi for Petitioners.

Tariq Ali Tahir for Respondent No.1.

P L D 2024 Balochistan 106

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

Syed MUHAMMAD ZAHIR and others---Appellants

Versus

Mrs. SHAHNAZ AKHTAR and others---Respondents

R.F.As. Nos. 22 and 33 of 2021, decided on 27th March, 2023.

Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Civil Procedure Code (V of 1908), O.XXXVII, R. 2(2)---Suit for recovery on the basis of three cheques---Negotiable instrument---Presumption of truth---Scope---Application for leave to defend, acceptance of---Effect---Onus of proof---Plaintiff impugned the judgment passed by the Trial Court as his suit was partially decreed---Held, that provisions of S. 118 of the Negotiable Instruments Act, 1881 and O. XXXVII, R. 2(2) of the Civil Procedure Code, 1908, indicate that statutory presumption is attached with a negotiable instrument---Such presumption operates in favour of plaintiff unless and until leave to defend is granted---Where the Court, ceased with such a suit, refuses leave to defend or where a defendant fails to fulfill a condition attached to a leave granting order or fails to apply within the prescribed time for leave to defend, then the Court shall decree the suit without any further proof of the suit on the basis of statutory presumption under S. 118 of the Negotiable Instruments Act, 1881---However, where the very execution of instrument is denied and leave is granted by the Court, then the said initial presumption in favour of plaintiff would not arise---In such a case, the mode of disposal of the suit from summary would convert to ordinary regular form of suit---In such circumstances the consideration for discharging the burden of proof would be the same as in an ordinary civil suit pending before a Civil Court---In the present case, after grant of leave to defend, appellant's predecessor submitted written- statement and denied execution as well as consideration of three cheques, sued upon---Therefore, the burden of proof of the execution of cheques by appellant' predecessor as well as consideration was upon the appellant---Appellant produced the official witnesses who merely produced the record of impugned cheques and dishonor slips and he had not led any evidence to prove that indeed the impugned cheques were executed towards fulfillment of an obligation or towards consideration---Appellant's own statement, without proof of consideration independently through concrete evidence, was not sufficient to prove his claim---Since, the appellant failed to discharge burden of proof, therefore, the burden did not shift upon the shoulders of defendants/respondents to disproof in rebuttal as the same would not make any difference---Defendants in evidence denied execution of the impugned cheques as well as the consideration mentioned therein---Thus, the Trial Court had misinterpreted S. 118 of the Negotiable Instruments Act, 1881 and was wrong in placing the onus of proof of relevant issue on the defendants---High Court set-aside the impugned judgment being not sustainable in law; resultantly, suit instituted by the appellant was dismissed---Appeal filed by the plaintiff was dismissed with costs of Rs. 50,000/- and costs of proceedings.

Syed Haider Aabdi v. Syed Javed Aabdi 1986 MLD 2298; Habib Bank Ltd. v. Ali Mohtaram Naqvi PLD 1987 Kar. 102 and Muhammad Aziz-ur-Rehman v. Liaquat Ali 2007 CLD 1542 ref.

Shabbir Sherani and Khalil Ahmed for Appellant (in Regular First Appeal No. 22 of 2021).

Adnan Ejaz Sheikh for Respondents (in Regular First Appeal No. 22 of 2021).

Adnan Ejaz Sheikh for Appellants (in Regular First Appeal No. 33 of 2021).

Shabbir Sherani and Khalil Ahmed for Respondent (in Regular First Appeal No. 33 of 2021).

P L D 2024 Balochistan 115

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ALLAH MUHAMMAD alias HAJI MALIK NOORZAI and others---Petitioners

Versus

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

Constitution Petitions Nos. 1247 and 1276 of 2021, decided on 23rd August, 2022.

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

----S.11-EE---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Proscription of person---Freezing of bank account and imposing travel restrictions---Pre-condition---Petitioners/accused persons were aggrieved of freezing/blocking of their bank accounts; placing them in watch list and imposing restrictions on their travel for having connections with a proscribed organization---Validity---Provision of S. 11-EE of Anti-Terrorism Act, 1997, prescribed "reasonable ground to believe" standard to impose sanctions---Powers under S. 11-EE of Anti-Terrorism Act, 1997, were exercisable subject to condition that the authority must take into account all relevant facts and circumstances to form an opinion---Such opinion must be based on information received from any credible source which should be authentic and not just mere suspicion---There must evidence to establish reasonableness---The ground should be communicated to the person within three days---Authority was required to place entire material before the Court---State functionaries while discharging official functions were to ensure that no one was denied right to earn livelihood---Word "lawful" used in Art. 18 of the Constitution qualified right of a citizen in relevant field---High Court set aside freezing/blocking of accounts of petitioners as the same were illegal and void ab initio and petitioners could not be prohibited from doing lawful business---Constitutional petition was allowed accordingly.

Joti Parshad v. The State of Haryana AIR 1993 SC 1167; Choudhry Shujahat Hussain's case 1999 SCMR 1149; Agha Shahid Hassan Bugti v. Federation of Pakistan PLD 2007 Quetta 25; Government of West Pakistan and another's case PLD 1969 SC 14; Muhammad Jameel Das (W. Gopal Das) v. Federation of Pakistan 1999 CLC 541 and Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi PLD 2007 Kar. 116 rel.

Akhtar Shah for Petitioners.

Syed Iqbal Shah, D.A.G., Hamidullah Babar, Asstt. Director (Legal) FIA, Ayaz Khan, Litigation Manager, NBP, Shoaib Ahmed Malik, District Operation Manager, UBL, Rehan, Head Banking Services, Allied Bank Limited for Respondents Nos. 1 and 2.

Muhammad Ali Rakhshani, A.A.G. for Respondent No.3.

P L D 2024 Balochistan 123

Before Shaukat Ali Rakhshani, J

SHAMASULLAH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE-I, QUETTA and 2 others---Respondents

Criminal Revision No. 81 of 2023, decided on 2nd November, 2023.

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

----Art. 150---Hostile witness---Scope---If a prosecution witness, who shows that he is not desirous of telling the truth to the Court or his answers to certain questions are directly in conflict with the evidence of the other witnesses, then for such reasons he will be treated as hostile witness and the Court may in its discretion allow the prosecution to cross-examine such witness.

Dost Muhammad v. Malik Shah Muhammad 2023 PCr.LJ 326; Muhamamd Sarfaraz v. The State PLD 2013 SC 386; Sana Mia v. The State PLD 1959 Dacca 400; Anis Mondal v. The State PLD 1959 Dacca 36; Shaukat Ali v. The State 2005 MLD 1470 and Dwarka Singh v. Emperor AIR (34) 1947 Patna 107 rel.

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

----Art. 150---Declaration of a witness as hostile---Powers of the Trial Court---Scope---Trial Court dismissed the request of complainant for declaring one of prosecution witnesses as a hostile witness---Contention of the petitioner/complainant was that the prosecution witness came up with a different version as statedly recorded under S. 161, Cr.P.C---Trial Court refused to declare prosecution witness as hostile on the ground that although his statement was on record but since his signatures or thumb impression did not figure on the same, therefore, he could not be declared as hostile, which approach of the Trial Court was contrary to the law and was unjustified, albeit prosecution witness during cross examination categorically replied that on 22.10.2022 he did not make a statement against accused, which meant that he disowned his previous statement recorded under S. 161 of Cr.P.C. against him---In such situation the prosecution witnesses whose statement had been recorded under S. 161 of Cr.P.C could be declared as hostile and the prosecution could be allowed to cross-examine its own witness, but the prosecution witness could not be allowed to confront and contradict a witness to his statement recorded under S. 161 of Cr.P.C, except those prosecution witnesses, whose statements were substantially proved otherwise such as the complainant; person whose signatures or thumb impression figured on the application for lodging an FIR, or fard-e-bayan signed by him; recovery witness whose signatures appeared on the recovery memo(s); and Police Officers who submitted reports under S. 173 of Cr.P.C with their signatures---Petition was allowed by setting aside the impugned order with the directions to the Trial Court to summon and re-consider the testimony of said witness for declaring him as hostile witness.

Muhammad Shabbir Rajput for Petitioner.

Sarwar Khan Kakar for Respondent No. 2.

Wajahat Khan Ghaznavi, State Counsel.

P L D 2024 Balochistan 129

Before Naeem Akhtar Afghan, C.J. and Muhammad Aamir Nawaz Rana, J

AHMEDULLAH and another---Petitioners

Versus

PROVINCE OF BALOCHISTAN through Addl. Chief Secretary (Dev) and others---Respondents

C.Ps. Nos. 195, 1079 and 1309 of 2020, decided on 4th May, 2023.

(a) Balochistan Development Authority Act (X of 1974)---

----S. 18---Balochistan Ship Breaking Industry Rules, 1979, S. 15(2)---Constitution of Pakistan Arts. 199 & 270-A---Tonnage fee, levy of---Petitioners alleged that they were carrying out their activity on the private plots, as such the demand of respondents for tonnage fee was illegal---Validity---Martial Law Order (MLR) No. 115, which was subsequently adopted by Parliament by inserting--Article 270-A in the Constitution on 30.12.1985 through 8th Amendment in the Constitution, contemplated that the ship breaking industry in the coastal area shall be conducted only and exclusively on a plot or land allotted for that purpose by the Balochistan Development Authority---Further, ship breaking in any other area/place without the express permission of the Balochistan Development Authority was prohibited in the said order---Thus, the contention of the petitioners that they were carrying out scrapping of imported vessels by beaching the same at private plots had no relevance or significance as any such activity was prohibited under the law---Petitions were accordingly dismissed.

Mustafa Impex's Case PLD 2016 SC 808 ref.

(b) Interpretation of statutes---

----Fiscal statute---Fee, charging of---Principles---No doubt fee is always levied on services rendered by Government to its payer---If the charge of money by the Government is not against the service provided, then such levy cannot be termed as fee---In other words, quid pro quo is an essential ingredient which brings a levy within the definition of term 'fee', i.e. charge payable for rendering specific service or extending specific privilege which the payers can avail subject to the conditions that may be attracted to it.

Osman A. Hadi, Mujeeb Ahmed Hashmi and Sarosh Jameel for Petitioners.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondent No. 1.

Syed Tanweer Ashraf for Respondent No. 2.

P L D 2024 Balochistan 137

Before Shaukat Ali Rakhshani and Sardar Ahmed Haleemi, JJ

SHAZAIN BUGTI---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN (ECP), SECRETARIAT, ELECTION HOUSE and 7 others---Respondents

Constitution Petitions Nos.(s) 10 and 11 of 2024, decided on 26th January, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 8(b)(c) & 59---Election Rules, 2017, R. 50---Constitution of Pakistan, Arts. 199 & 218(3)---Constitutional petition---Election dispute---Polling stations---Shifting/relocation---Safety and security---Applicability---Petitioners/candidates were aggrieved of shifting/relocation of polling stations---Contention of authorities was that there was perilous law and order situation that could lead to sabotaging the election process or could influence voters or put their lives in danger, therefore, polling stations in question were shifted and relocated accordingly---Validity---Such shifting and relocation of polling stations is prerogative of Returning Officers and District Returning Officers under the supervision of Election Commission of Pakistan, which is duty bound to hold fair and free election as guaranteed under Art. 218(3) of the Constitution as well as Elections Act, 2017 and Rules framed thereunder---Petitioners/candidates failed to resort to the remedy stipulated under S. 8(b) and (c) of Elections Act, 2017, before Election Commission of Pakistan---High Court in exercise of constitutional jurisdiction declined to interfere in the matter as factual controversies were involved regarding distance in between polling stations, and it required thorough probe and evidence---Constitutional petition was dismissed, in circumstances.

Mehta Rajesh Nath Kohli and Mehta Mukesh Nath Kohli for Petitioner along with Petitioner (in Constitutional Petition No. 10 of 2024).

Shehzad Aslam and Muhammad Raees, Assistant Directors Election Commission of Pakistan (ECP) for Respondents Nos. 1 and 2 (in Constitutional Petition No. 10 of 2024).

Amir Zaman Jogezai, Additional Advocate General for Respondents Nos.3 and 4 (in Constitutional Petition No. 10 of 2024).

Adnan Ejaz Sheikh, Advocates for Respondent No.5 (in Constitutional Petition No. 10 of 2024).

T.H Khan for Respondent No.7 (in Constitutional Petition No. 10 of 2024).

Mehta Rajesh Nath Kohli and Mehta Mukesh Nath Kohli for Petitioner along with Petitioner (in Constitutional Petition No. 11 of 2024).

Shehzad Aslam and Muhammad Raees, Assistant Directors Election Commission of Pakistan for Respondents Nos. 1 and 2 (in Constitutional Petition No. 11 of 2024).

Amir Zaman Jogezai, Additional Advocate General for Respondents Nos. 3 and 4 (in Constitutional Petition No. 11 of 2024).

Adnan Ejaz Sheikh for Respondent No.5 (in Constitutional Petition No. 11 of 2024).

T.H Khan for Respondent No.8 (in Constitutional Petition No. 11 of 2024).

P L D 2024 Balochistan 142

Before Muhammad Ijaz Swati and Nazeer Ahmed Langove, JJ

MUHAMMAD ULLAH alias SAMSOOL and another---Petitioners

Versus

SAADULLAH, S.I. and 2 others---Respondents

Constitution Petition No. 1501 of 2023, decided on 26th September, 2023.

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

----Ss. 124-A, 147, 149,153, 153-A & 341---Balochistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 196---Constitution of Pakistan, Art. 199---Hateful speeches, order violation, promulgating, and promoting feelings of hatred amongst different racial regional groups and communities---Constitutional petition---First Information Report, quashing of---Petitioners were workers of a political party (Pashtoon Tahaffuz Movement /P.T.M.), against whom the allegation was that they gathered at road near a Masjid and delivered speeches against the Government, Pakistani Forces, Security Agencies and wanted to provoke the people---Petitioners sought quashing of FIR registered against them on the ground that cognizance for said offences could only be taken upon a complaint filed by the Authority of a Federal or Provincial Government or some other Officer empowered in said behalf---Validity---Record reflected that the police registered a criminal case against the petitioners and others , with the allegation of hateful speeches etc. , whereas for the prosecution for such offences against the State, no Court could take cognizance of the same, unless upon a complaint made by order of, or with the authority from the Federal or Provincial Government concerned under the process governed by S. 196 of the Cr.P.C.---This had not been done in the present case; thus, no Court could initiate the process against the accused , because (in the present case) FIR was registered by the Duty Officer/Sub Inspector of the concerned Police Station on his own and competent authority under the law had not initiated said process---Such FIR can be assailed in constitutional jurisdiction of the High Court to prevent abuse of process of any Court to secure the ends of Justice---In the present case, the process of the law had been abused with mala fide intention to scandalize and create harassment for the petitioners and disrepute them in the society, which needed interference by the High Court---Constitutional petition filed by the accused persons was allowed, and the FIR registered against them and proceedings were quashed, in circumstances.

(b) Constitution of Pakistan---

----Arts. 15, 17 & 19---Political Party operating against integrity of Pakistan---Reference to the Supreme Court---Scope---Right to freedom of assembly, association, expression and speech, provided and protected under Arts. 16, 17 & 19 of the Constitution, are subject to any reasonable restrictions imposed by law in the interest of public order, the sovereignty or integrity of Pakistan, public order, or morality etc.---Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan---Where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, it shall within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

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

----Ss.124-A, 147, 149, 153, 153-A & 341---Balochistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965), Ss. 3 & 4---Constitution of Pakistan, Art. 199---Constitutional petition---First Information Report, quashing of---Petitioners were workers of political party (Pashtoon Tahaffuz Movement /P.T.M.), against whom FIR was registered by the Police with the allegation that they gathered at road near a Masjid and delivered speeches against the Government, Pakistani Forces, Security Agencies and wanted to provoke the people---Petitioners sought quashing FIR registered against them on the ground that cognizance for said offences could only be taken upon a complaint filed by the Authority of a Federal or Provincial Government or some other Officer empowered in said behalf---Validity---No doubt, the inherent power (of High Court) should be rarely and sparingly invoked only in the interest of justice to redress grievances for which, considering the facts and circumstances of the case, no other procedure or remedy is available---It is an extraordinary jurisdiction that can not override provisions of the Court, but issues may arise where demands of justice require immediate, honest, and substantial justice---In such circumstances the Courts would be justified to exercise their jurisdiction to save a party from harassment and abuse of the process of Court---Such power may be used sparingly, but it confers broad powers on the Court to meet such eventualities and pass any order which ends of justice may require---Present case fell within the said parameters---Allegations contained in the FIR were general; there was no specific role attributed to the petitioners and no offence, thus, had been made nor could be proved against them---High Court declared that the process of the law had been abused with mala fide intention to scandalize and create harassment for the petitioners and disrepute them in the society, which needed interference---Constitutional petition filed by the accused persons was allowed, and the FIR registered against them and proceedings were quashed, in circumstances.

Muhammad Qaseem Khan for Petitioners.

Abdul Kareem Malghani for P.G. for Respondents.

P L D 2024 Balochistan 147

Before Gul Hassan Tareen, J

UMAR FAROOQ and another---Petitioners

Versus

MUHAMMAD USMAN and 7 others---Respondents

Civil Revision No. 634 of 2022, decided on 17th April, 2024.

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

----S. 8---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for possession, declaration and injunction---Operation of transfer---Maxim "res accessoria sequitur rem principalem"----Applicability---Concurrent findings of facts by two Courts below---Scope---Petitioners/plaintiffs sought restraining the respondents/defendants from using the street leading to their houses---Suit and appeal filed by petitioners/plaintiffs were dismissed Trial Court and Lower Appellate Court respectively---Validity---Provision of S. 8 of Transfer of Property Act, 1882 is based on maxim "res accessoria sequitur rem principalem", which means that "an accessory follows the principal things"---Principle underlying section 8 of Transfer of Property Act, 1882 is that transferor must not derogate from his own transfer---Rule regarding transfer is that the transferor conveyed all that he was possessed of in the property transferred---Such presumption may be rebutted by use of express words or such words which limit the interest which the transferor intends to convey by necessary implication---Transfer of disputed property to transferees included transfer of everything annexed to it permanently and would get not only disputed property but also easements annexed to it---Petitioners/plaintiffs were transferors of land to respondents/defendants and claimed exclusive right to the exclusion of transferees to pass through subject street on the strength of dominant heritage---Besides petitioners/plaintiffs, their transferees had a legal right to pass through the subject street---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed in circumstances.

Jamil Ahmed Khan Babai for Petitioners.

Kaleemullah Quresh for Respondents Nos. 5 to 7.

Muhammad Ali Rakhshani, Addl. Advocate General (AAG) for Respondent No.8.

P L D 2024 Balochistan 154

Before Rozi Khan Barrech, J

ASADULLAH---Petitioner

Versus

ALLAH DAD and 2 others---Respondents

Criminal Revision No. 105 of 2022, decided on 30th November, 2022.

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

----Art. 150---Hostile witness---Scope---Petitioner assailed order of Trial Court whereby it declined to declare the eye-witness as hostile witness---Validity---On perusal of the impugned order, it appeared that the complainant and prosecutor made an oral request to declare the eyewitness, as hostile on the ground that the said witness in his statement under S. 161, Cr.P.C., implicated accused/respondents No. 1 and 2, but when he appeared before the Court, he only implicated one accused in his statement, which was contrary to what he had deposed in his statement under S. 161, Cr.P.C.---As per law, it was the decision of the Court to permit the party who called a witness to put any question to him, and it was not the right of such party---Such discretion was to be exercised with due caution and attention, keeping in view the interests of both parties so that no one would be prejudiced from the order of the Court---In order to make a party entitled to invoke Art. 150 of the Qanun-e-Shahadat Order, 1984, it is necessary to establish that the witness is guilty of equivocation, or that he is varying in his statement, or trying to suppress the truth, or that he bears animosity towards the party who called him---In the absence of any act on the part of the witness of the said nature, a party is not entitled to cross-examine its witness to impeach his credibility---Record showed that the eyewitness fully endorsed the occurrence and did not deviate from the story as narrated by the prosecution; however, he gave the specific role to one accused and had not given any role to the other accused/respondents---Thus, such witness did not come in the category of a hostile witness; however, he was an unfavourable witness of the prosecution---Eye-witness, in an unguarded moment, deposed something which was unfavourable to the prosecution; however, no such material existed on the record showing that the witness was deliberately suppressing the truth or had changed his loyalty and the intention was clear---In the absence of all these circumstances, the discretion to allow the party to re-examine its own witness could not be allowed---No improvement, deviation, accumulation or suppression of material facts in the statement of eye-witness had been seen, adverse to the interest of complainant and inconsistent with his previous statement under S. 161, Cr.P.C., to declare him hostile---Therefore, the instant petition had no force to warrant interference by High Court as there was no impropriety, illegality or jurisdictional error in the order passed by the Trial Court---Petition was dismissed accordingly.

Muhammad Boota and another v. The State 1984 SCMR 560 rel.

Abdul Khair Achakzai for Petitioner.

Akhian Gul for Respondents Nos. 1 and 2.

Fazal-ur-Rehman, State Counsel for the State.

P L D 2024 Balochistan 158

Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ

MIHRAL and another---Petitioners

Versus

Mst. ZARGUL and another---Respondents

C. P. No. (T) 04 of 2022, decided on 29th November, 2022.

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

----S. 5, Sched.---Suit for recovery of dower (85 Misqal gold)---Dower--- Proof---Claim of the plaintiff/lady was concurrently decreed to the effect that only 15 Misqal gold, out of fixed 100 Misqal gold, was given to her---Plea taken by the petitioner/husband was that 24 Misqal gold had been paid at the time of Nikkah---Validity---Haq-Meher (dower amount), was admittedly fixed as 100 Misqal gold, as the witnesses of the petitioner/husband before the Trial Court had admitted said fact---Record (evidence) revealed that the petitioner failed to prove his plea, therefore, the decree to the extent of 85 Misqal gold as Haq-Meher, had correctly been passed by both the Courts below by appreciating the evidence produced by the parties---Constitutional petition, filed by husband, was disposed of.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance---Father/husband alleged to be of unsound mind---Proposition was whether the defendant (husband/father) was of unsound mind---Held, that though the proposition, whether petitioner No.1 (defendant/ husband/father) was of unsound mind, had been decided by the Trial Court in negative by holding that said question / proposition could be confirmed by medical evidence, but at the same time petitioner No.2 (grand-father/defendant) was directed to pay the decretal amount to respondents/plaintiffs (wife and daughter), meaning thereby the Trial Court in the light of case Jamila Begum v. Awam-un-Nass" PLD 1978 Lah. 1376 had impliedly held that the petitioner No. 1 was of unsound mind; even otherwise in view of the dictum laid down in the case Sultan Ahmad v. Judge Family Court" PLD 2012 Lah. 148, the petitioner No. 2 (grand-father) was rightly directed to pay the decretal amount, being grandfather of minors---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Constitutional petition, filed by the defendants (father and grand-father), was disposed of.

Jamila Begum v. Awam-un-Nass PLD 1978 Lah. 1376 and Sultan Ahmad v. Judge Family Court PLD 2012 Lah. 148 ref.

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

----Art. 120---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance---Limitation---Scope---Past maintenance allowance, entitlement to---Scope---Trial Court decreed maintenance allowance to plaintiff (wife) for 17 years, which decree was maintained by the Appellate Court---Question was whether the past maintenance allowance was decreed in accordance with law?---Held, that grant of past maintenance allowance, in the present case, was not in accordance with law as Art. 120 of the Limitation Act, 1908, was applicable to a suit for maintenance which stipulated 6 years---Trial Court could have decreed past maintenance for the period of six years but had wrongly awarded the maintenance beyond the period of 6 years which was not in accordance with law---High Court modified the impugned judgments and decrees to the extent of past maintenance holding that respondent (plaintiff/wife) was entitled for 6 years' past maintenance before filing of the suit---Constitu-tional petition, filed by defendant/husband, was partly allowed.

Mst. Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457; Bushra Qasim v. Abdul Rasheed 1993 CLC 2063; Shagufta Bibi v. Amanat Ali 2018 YLR 645 and Muhammad Sharif v. Additional District Judge 2007 SCMR 49 ref.

Abdul Latif for Petitioners.

Sarfraz Saleem for Respondent No.1.

P L D 2024 Balochistan 165

Before Gul Hassan Tareen, J

IMAM BAKHSH and 6 others---Petitioners

Versus

MUHAMMAD SIDDIQUE---Respondent

Civil Revision No. 144 of 2013, decided on 15th August, 2022.

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

----S.14---Balochistan Land Revenue Act (XVII of 1967), S.7---Limitation---Exclusion of time---Terms "another civil proceeding" and "Court"---Applicability---Terms "another civil proceeding" and "Court" incorporated in S. 14 of Limitation Act, 1908, do not include revenue proceeding and Revenue Authority respectively---Revenue Authority is not a Court within the meaning of S. 7 of Balochistan Land Revenue Act, 1967, nor its proceeding is judicial/civil.

Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Investment Corporation of Pakistan v. Jamaat Ali Shah 1992 SCMR 1195 and Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 rel.

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

----S. 9---Continuous running of time---Scope---Once period of limitation commences, it cannot be avoided by introducing another cause of action or relief in the suit.

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

----Ss. 12, 22 & 42---Suit for declaration and specific performance of agreement to sell---Limitation---Time barred suit---Effect---Illiterate old woman---Equitable relief---Suit was concurrently decreed by Trial Court and Lower Appellate Court in favour of respondent/plaintiff---Plea raised by petitioner/defendant was that suit was barred by limitation---Validity---Respondent/plaintiff instituted suit with delay of 4 ½ years and such delay defeated equity---Respondent/plaintiff failed to prove that he paid price of suit land---Plaintiff was out of possession and respondent/defendant was an illiterate woman of extremly old age---Equity leaned in favour of petitioner/defendant and not in favour of respondent/plaintiff, who had come with tainted hands---Relief of specific performance is equitable under Ss. 12 & 22 of Specific Relief Act, 1877---High Court set aside concurrent findings of facts by two Courts below as the same were perverse---Revision was dismissed, in circumstances.

Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 and Samar Gul v. Mohabat Khan 2000 SCMR 974 rel.

Muhammad Saleem Lashari for Petitioners.

Muhammad Riaz Ahmed for Respondent.

P L D 2024 Supreme Court 1

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its Secretary, Islamabad and others---Petitioners

Versus

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

Constitution Petitions Nos. 32, 36 of 2023, Civil Miscellaneous Appeals Nos. 118 and 119 of 2023 in Constitution Petition No. NIL of 2023, decided on 3rd November, 2023.

Per Qazi Faez Isa, CJ.; Amin-ud-Din Khan, J. agreeing; Athar Minallah, J. also agreeing but with his separate note.

(a) Constitution of Pakistan---

----Arts. 48(5)(a), 184(3), 222(b), 224(2) & 254---Elections Act (XXXIII of 2017), S. 57---General Elections 2024, holding of---General elections not held within a period of ninety days after dissolution of the Assemblies, as stipulated by the Constitution---Supreme Court facilitating the President and the Election Commission of Pakistan to meet and decide an election date---President and the Election Commission of Pakistan agreeing to 8th February, 2024 as poll date for the General Elections 2024---Detailed observations recorded by the Supreme Court with regard to the date of holding of General Elections 2024 provided.

Article 224(2) of the Constitution requires that general election 'shall be held within a period of ninety days after the dissolution'. However, Council of Common Interest (CCI) took almost four years to approve the '6th Population and Housing Census, 2017' which delayed the '7th Population and Housing Census, 2023' and in turn delayed delimitation of constituencies. Section 57(2) of the Elections Act, 2017 stipulates that within 'seven days of the announcement under subsection (1)' of section 57, the election programme is announced, which, requires a minimum period of 54 days. However, it was no longer possible to hold elections within ninety days of the dissolution of the assemblies.

Present matter which should have been dealt with by the President and the Election Commission of Pakistan (ECP) was quite unnecessarily brought to the Supreme Court.

Since the election date was not announced, concerns were rising amongst the people of Pakistan, where many of them apprehended that elections may be indefinitely postponed or not take place, which undoubtedly would cause irreparable damage to democracy and the country. Conscious of the Supreme Court's lack of jurisdiction and careful not trespass on the jurisdiction of the President and of the ECP, the Court encouraged them to meet and determine that which was within their constitutional domain. Consequently, the ECP and the President met and agreed to appoint 8th February, 2024 as a poll date for General Elections 2024. The ECP has also issued a notification dated 3 November 2023, which states that 8 February 2024 is the poll date for general election to the National Assembly and the provincial assemblies. The Attorney-General, on behalf of the Federal Government, and the respective law officers, on behalf of the four provinces and the Islamabad Capital Territory, have also expressed their concurrence for the holding of general election on the said date.The matter of the holding of general election on 8 February 2024 stands resolved. Supreme Court observed that no one should now put forward any pretext to derail democracy, and that a decreased confidence in democracy diminishes people's engagement with it and suppresses voter turnout.

The impact of disinformation on democratic processes and human rights in the world' Carne Colomina, Hector Sanchez Margalef, Richard Youngs, European Parliament, Directorate-General for External Policies ref.

(b) Constitution of Pakistan---

----Art. 5 & Third Sched.---Constitutional office holders---Obedience to the Constitution---Scope---Higher the constitutional office or body the greater is the responsibility---Obedience to the Constitution and law is an inviolable obligation of every citizen, however, an added responsibility and obligation is placed on all those who assume their office by taking an oath (under the Constitution)---Constitutional office holders must adhere to the Constitution; fulfil the duties assigned to them as a sacred trust, and divest themselves from all that is outside their constitutional domain; only then do they serve the people of Pakistan.

Per Athar Minallah, J.

(c) Constitution of Pakistan---

----Arts. 4, 5, 9, 14, 17, 48(5), 105(3)(a), 112(1), 112(2), 184(3), 212(1)(b), 219(d), 224(2) & 254---Elections Act (XXXIII of 2017), S. 57---General Elections 2024, holding of---General elections not held within a period of ninety days after dissolution of the Assemblies, as stipulated by the Constitution---Disregard and violation of the Constitution and the Elections Act, 2017 by the President, the Governors and the Election Commission---Deprivation of the people's right to vote and to participate in governance---Breach of right to govern---Remedy for violation of Constitutional rights---Observations recorded by His Lordship with regard to the duties imposed on the President, the Governors and the Election Commission with respect to holding elections in accordance with the Constitution and the Elections Act, 2017; the breach of duties and violation of the Constitution committed by the President, the Governors and the Election Commission in the present case, and the remedy available to the citizens against their tortious acts stated.

Present matter highlights misfeasance in public office by those upon whom the Constitution has imposed the onerous duty to exclusively serve the people and to protect their rights. The violation of the Constitution and denial to the people of Pakistan of their most valuable rights stands established because of failure to hold elections within the time expressly specified by the framers of the supreme law.

There was no ambiguity whatsoever regarding who was competent to appoint the date for general elections in the case of the National Assembly. Under Article 48(5) of the Constitution, the duty to 'appoint' a date was imposed upon the President while the announcement was to be made by the Election Commission ('Commission') as required under section 57(1) of the Elections Act, 2017 (Act of 2017). It is not the function of the Supreme Court to appoint a date nor was it conferred with any power or jurisdiction to do so.

The duty to ensure that the people of Pakistan are not deprived of their right to vote and they do not remain unrepresented for more than a ninety day period was that of the President, the Governors and the Commission. The Constitution was made unworkable by their reckless disregard for the duties imposed upon them under the Constitution and the Act of 2017. The date of February 08, 2024 for holding of General Elections 2024 was appointed by the President and announced by the Commission without prejudice to and notwithstanding the consequences that they may have exposed themselves to on account of the violations of the Constitution anddenial of rights to the people of Pakistan. The violation of Article 224(2) of the Constitution and the resultant denial of the rights to the people of Pakistan is so grave and profound that it cannot be cured, condoned nor the acts are immune from being held to account.

The general elections in the Provinces of Punjab and Khyber Pakhtunkhwa could not be held within the time frame expressly set out in the Constitution. The general elections to the National Assembly and the other two Provinces cannot be held within the specified time because the strict liability imposed under the Constitution and the Act of 2017 upon the President, Governors and the Commission have been breached. The legal rights of the people have been violated so has been the Constitutional command. It appears that the neutrality of the exalted offices of the President and Governors were compromised. The Commission failed in its duty imposed under the Constitution read with the Act of 2017 to ensure that elections are held in accordance with its commands, particularly the time frame expressly set out by its framers. Their actions and conduct have materially contributed to violation of the Constitution which has deprived the people of their most fundamental and valuable rights. Their egregious public wrongdoings and reckless disregard to the duties imposed upon them under the Constitution were the cause for the loss or injury suffered by the people of Pakistan, deprivation of their constitutional rights. The Federal Government, prior to dissolution of the National Assembly, also, prima facie, seems to have been complicit because of its actions and refusal to comply with the directions of the Supreme Court.

The offices of the President and the Governor are premised on the principle of neutrality and its incumbents ought to foresee that failing to perform their constitutional duties could lead to depriving the people of their most valuable rights. In case of a constitutional impasse created either by the President or a Governor, regardless of whether it is politically motivated, deliberate or reckless disregard for the constitutional rights of the people, it becomes a duty of the Commission to proactively make the Constitution workable. This duty of the Commission is implicit in the functions assigned to it by the framers of the Constitution. It is misfeasance in public office and amounts to misconduct when public powers entrusted to the exalted holders of public offices are used in a manner which they ought to have foreseen would result in denying the people their constitutional rights. When the President or a Governor fail to perform their duties enshrined under the Constitution, which ought to be foreseen as infringing the rights of the people, the Commission cannot remain a silent spectator. In such an eventuality the Commission is charged with the duty to remove any impediment likely to delay the general elections in violation of the express command of the Constitution. The Commission, in order to hold a general election in accordance with the Constitution, is also empowered to give advice and directions to the governments, Federal or Provincial, and it is not bound by their decisions which are seen as delaying the general elections in violation of the Constitution. The buck stops with the Commission because the framers of the Constitution have 'charged it with the duty' to hold the general elections within the time expressly enshrined in the Constitution. No reason or excuse can condone the violation of the Constitution in relation to holding the general elections within the expressly provided time frame therein. This is a strict liability duty because deprivation of the people of their right to vote and to participate in the governance is so serious and grave that the violation is intolerable and an attempt to condone it is complicity. The statutory duties of the Commission under section 57 of the Act of 2017 are onerous and they are also strict liability obligations. The onus will always be on the Commission, the Commissioner and its members to establish on the touchstone of the principles of strict liability duty to establish that they were not in breach nor accountable for denial of constitutional rights to the people. It is also the duty of the governments whether Federal or Provincial not to act in any manner during the term of the Assemblies that may impede or prejudice the holding of elections within the time frame explicitly provided under the Constitution.

The appointment of caretaker governments is temporary and only for the period specified under the Constitution i.e till the election of a leader of the House after the holding of the general elections within the mandatory period of sixty or ninety days. The State cannot be governed in the absence of the chosen representatives for more than the ninety days expressly provided for holding the general elections followed by election of a leader of the House. Delay of a single day in holding the general elections beyond the expressly provided time frame, i.e. ninety days, is the most grave violation of the Constitution and denial of the constitutional rights of the people. It amounts to suspension of the Constitution because it breaches its foundational principle; exercise of powers and authority of the State through the chosen representatives.

The Constitutional violation of the political right to participate in the governance of the State and exercise the powers and authority through chosen representatives can neither be condoned nor cured on the touchstone of Article 254 of the Constitution. The impunity for deprivation of such a fundamental right of the people of Pakistan and thus allowing the powers and authority of the State to be exercised by other than the chosen representatives for more than the expressly specified period would erode and suspend the order established by the will of the people of Pakistan as enshrined under the Constitution. The undermining and suspension of an order established by the people for the governance of the State amounts to holding the Constitution in abeyance. An attempt to delay elections deprives the people of exercising their fundamental right to exercise the powers and authority of the State through chosen representatives and thus alienates and isolates them, besides undermining the legitimacy of the scheme of the Constitution. Associated with this basic constitutional right are the right to form or to be a member of a political party, the right to participate or contest in the elections and then to form a government if successful. (Article 17). The exercise of the right to vote in a free, fair and transparent election is the first and integral step in giving effect to the order established by the will of the people. Denial of the fundamental right to exercise powers and authority of the State due to violation of the Constitutional command of holding general elections within the prescribed time frame is simultaneously a denial of the right to vote in accordance with the dictate of the Constitution. They are absolute rights which cannot be restricted in any manner or for any reason. They are definitely not derogated nor suspended. The violation of these rights are so serious that the effect extends to denial of other constitutionally guaranteed rights, inter alia, the right to enjoy the protection and to be treated in accordance with law, the right to life and liberty and inviolability of dignity.

PLD 2012 SC 681 ref.

In the petitions in hand, the jurisdiction of the High Courts was invoked. Binding and enforceable declarations and injunctions were granted by the Lahore High Court but they were not executed. The Supreme Court had also exercised its original jurisdiction and had granted declarations and injunctions but they were not implemented nor appropriate action was sought or any effort made to have them implemented. The citizens were deprived of their most valuable constitutional rights. The Constitution also stood violated. Each day of delay in holding general elections after expiry of the ninety day mandatory constitutional period gives rise to a fresh cause of action. The registered voters in Islamabad, Baluchistan, Khyber Pakhtunkhwa and Punjab have been deprived of their constitutional rights and they have been forced to be governed by the unelected caretakers in transgression of the Constitution. The registered voters are victims and the responsible authorities i.e the President, Governors and the Commission are accountable to them for causing injury and loss; depriving them of their legal rights. For such circumstances the Constitution has created a right for claiming remedies for constitutional torts. In our Constitution under Article 212(1)(b) the framers have expressly created the right to claim remedies for tortuous acts of the Government or any person in the service of Pakistan or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant. It is a unique and distinguishable feature of the Constitution because it expressly confers the right to claim public law remedies for tortuous acts of three categories of public authorities. It is a right which appears to have escaped the attention of the courts nor has it been invoked by a victim of wrongful exercise of public power. It can create a formidable deterrence for violations of the Constitution and constitutional rights if the victims are enabled to effectively exercise this right. It is regrettable that no initiative has been made since the promulgation of the Constitution to establish special courts as contemplated by the framers. Nonetheless, since this right has been created under the Constitution it cannot be denied nor made redundant on account of failure to establish the special courts to exercise exclusive jurisdiction as was intended by the framers. The right to claim remedies against the tortuous acts of the three categories of public authorities cannot be denied to the citizens or other persons merely because a special court has not been established to exercise exclusive jurisdiction. The jurisdiction of the courts of plenary civil jurisdiction and, in an appropriate case, the High Courts are not barred till such time that a special court conferred with exclusive jurisdiction has been established. In such regard the courts enjoy wide discretion to design or create a remedy to appropriately redress a constitutional right and to deter repetition of the tortuous acts in future. Besides compensatory damages the court can, in addition, award exemplary or vindicatory damages, as the case may be. The criterion for assessment of damages in the case of vindication of a constitutional right is presumed general damages.

Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All E R 670; Ramanoop Attorney General of Trinidad and Tobago v. Ramanoop (2006) 1 AC 328; Plenty v. Dillon and others (1991) 171 CLR 635; Vancouver (City) v. Ward (2010) 2 SCR 28); Henry v. British Columbia (Attorney General) (2015) 2 SCR 214; Simpson v. Attorney General (Baigent's case) (1994) 3 NZLR 667; Dunlea v. Attorney General (2000) 3 NZLR 136; Taunoa v. Attorney General (2008) 1 NZLR 429; R (Greenfield) v. Secretary of State for the Home Department (2005) 1 WLR 673; Lumba (Congo) v. Secretary of State for the Home Department (2011) 2 WLR 671; Rookes v. Bernard (1964) AC 1129; Wilkes v. Wood 98 ER 489; Ashby v. White (1 ER 417)/126 (K.B 1703); Nixon v. Herndon 273 US 536; Hoffmann v. South African Airways (2001) [1] SA 1; Fose v. Minister of Safety and Security (1997) [3] SA 786 and Modder East Squatters v. Modderklip Boerdery (Pvt.) Ltd. (2004 [6] SA 40) ref.

In the case in hand the people of Pakistan, particularly the registered voters are victims of the wrongful exercise of public powers and reckless disregard for duties imposed under the Constitution and statutes upon the President, Governors and the Commission i.e the Commissioner and the members. They are all in breach of their statutory duties. Their conduct and failure to discharge their constitutional duties has made them answerable to the people. They have exposed themselves to actions against their tortuous acts. The registered voters who have suffered the denial of their most valuable constitutional rights may, if they so desire, exercise their right to claim remedies for the tortuous acts and thus vindicate their rights and set an example for creating a deterrence for the future. As a corollary, it is the duty of the courts to ensure that if citizens file claims for alleged tortuous acts of public authorities that they are decided expeditiously and in accordance with the law.

For the Petitioners:

Abid S. Zuberi, Advocate Supreme Court, assisted by Miss Amna Khalili and Agha Ali Durrani, Advocates.

Muqtadir Akhtar Shabbir, Advocate Supreme Court and Shakeel-ur-Rehman, Advocate Supreme Court.

Ms. Bushra Qamar, Advocate Supreme Court.

Saim Chaudhry, Advocate Supreme Court.

Irfan Mir Halepota, Advocate Supreme Court. (through video-link from Karachi) (in Const.P.No.32 of 2023).

For the Petitioner:

Anwar Mansoor Khan, Senior Advocate Supreme Court (in Const. P. No. 36 of 2023).

For the Appellant:

Syed Ali Zafar, Advocate Supreme Court assisted by Syed Haider Ali Zafar, Advocate (in C.M. Appeal No. 118 of 2023).

For the Appellant:

Ibad-ur-Rehman Lodhi, Advocate Supreme Court (in C.M. Appeal No. 119 of 2023).

For the Federation:

Mansoor Usman Awan, Attorney-General for Pakistan assisted by Maryam Ali Abbasi, Ahmed-ur-Rehman and Saad Javid Satti, Advocates.

Ch. Aamir Rehman, Additional Attorney General for Pakistan.

For Government of Punjab:

Waseem Mumtaz Malik, Additional Advocate-General, Punjab.

For Government of Sindh:

Saulat Rizvi, Additional Advocate-General, Sindh.

For Government of Khyber Pakhtunkhwa:

Sultan Mazher Sher Khan, Additional Advocate-General, KP.

For Government of Balochistan:

Ayaz Khan Swati, Additional Advocate-General, Balochistan.

For Islamabad Capital Territory:

Ayaz Shaukat, Advocate-General, Islamabad.

For the ECP:

Sajeel Sheryar Swati, Advocate Supreme Court.

M. Arshad, DG (Law) ECP.

Khurram Shehzad, Addl. DG (Law) ECP.

Falak Sher, Legal Consultant, ECP.

P L D 2024 Supreme Court 45

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

Mehr NOOR MUHAMMAD---Appellant

Versus

NAZIR AHMED---Respondent

Civil Appeal No.317-L of 2011, decided on 6th November, 2023.

(On appeal against the judgment dated 31.03.2008 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in R.F.A. No. 10 of 1997).

(a) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---Stamp Act (II of 1899), S. 2(5)(b)---Promissory note---Proof---No requirement of attestation---Non-appearance of second attesting witness---Inconsequential---As per Section 4 of the Negotiable Instruments Act, 1881, a promissory note is required to contain four essential ingredients: (i) an unconditional undertaking to pay; (ii) the sum should be the sum of money and certain; (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, and; (iv) the maker should sign it---If an instrument fulfils these four conditions, it will be called a promissory note, and the requirement of attestation of a document provided under Article 17(2)(a) of the Qanun-e-Shahdat,1984, does not apply to a promissory note---If an instrument, notwithstanding the provisions of Section 4 of the Negotiable Instruments Act, 1881, is attested by witnesses, the nature and character thereof shall not be affected---It shall remain a promissory note and shall not be converted into a bond within the meaning of section 2(5)(b) of the Stamp Act, 1899---If a promissory note is not witnessed, and it does not appear that any third person saw it signed, in such a case, the best evidence is the handwriting of the parties---Attestation of the promissory note was not a requirement of law; the non-appearance of the second witness could not be made a ground for excluding the promissory note from evidence.

Shiekh Muhammad Shakeel v. Shiekh Hafiz Muhammad Aslam 2014 SCMR 1562; Muhammad Ashraf v. Muhammad Boota PLJ 2016 SC 169 and January v. Goodman 1 U.S 2008 (1787) ref.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Stamp Act (II of 1899), S. 36---Promissory note---Admissibility in evidence---Section 36 of the Stamp Act, 1899 provides that when a document has once been admitted in evidence, such admission cannot be called into question at any stage of the suit or in proceedings, on the ground that the instrument has not been duly stamped---Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided there and then when the document is tendered in evidence---Once the Court, rightly or wrongly, admits the document in evidence and allows the parties to use it in examination and cross-examination, so far as the parties are concerned, the matter is closed---It is, therefore, essential that parties to litigation, where such a controversy is raised, must be cautious, and the party challenging the admissibility of the document must be alert to see that the document is not admitted in evidence by the Court---Court is also required to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case---So, once a promissory note has been marked as an exhibit and the trial has proceeded along the footing that the promissory note is made an exhibit, and has been used by the parties in the examination and cross-examination of their witnesses, then Section 36 of the Stamp Act, 1899, will come into operation---In the present case as the promissory note had been admitted in evidence, as aforesaid, it was not open to the Trial Court to exclude it from consideration while writing the final judgment, nor to the appellate Court---Admission of the document in terms of Section 36 of the Stamp Act, 1899, cannot be reviewed or revised by the same Court or a Court of superior jurisdiction---Appeal was dismissed.

Javer Chand and others v. Pukhraj Surana AIR 1961 SC 1655; Rehmat Ali v. Wahid Bux NLR 1979 Civil (SC) 809 and Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 ref.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Summary suit based on a promissory note---Promissory note---Burden of proof---Proof---Circumstantial evidence, reliance upon---Initial onus to prove whether the promissory note was a forged document was upon the defendant; he discharged this onus by making a statement, on oath, to the effect that he was an illiterate person and had thumb impressed several blank papers for the plaintiff---Onus then shifted to the plaintiff to prove that the transaction was bona fide and that the promissory note was legal---Plaintiff stated before the Trial Court that he accompanied the defendant and the witnesses to the Court premises, where at the instance of the defendant, a deed writer scribed the promissory note, upon which the defendant had thumb-marked, and the witnesses had signed, and then he gave Rs.800,000 to the defendant in the presence of the witnesses---However, in his cross-examination, the plaintiff admitted that he had no business relationship with the defendant or family ties with him, which raised the question as to why he lent a considerable amount to a stranger---Perusal of the promissory note in question showed that the blanks of a printed form of a promissory note were filled in with black ink, names of the parties and witnesses were also written with black ink, while the ink of the thumb mark (of the defendant) was purple---It was also clear that black ink superimposed the purple ink of the thumb mark, and this depiction elucidated that the paper was first thumb-marked and then written upon -- Fair and reasonable conclusion drawn from such circumstances was that the stance of the defendant that blank documents thumb-marked by him had been converted to a promissory note was correct---There was nothing on record to suggest that the defendant had, expressly or impliedly, authorized the plaintiff to use the said blank papers as a promissory note---Deed writer was one of the plaintiff's material witnesses, and he, in his statement, admitted that though he wrote the amount of Rs.800,000, but this fact was reflected in his register by pencil; he was confronted with the various entries made in his register in black ink and asked as to why he wrote the amount of Rs.800,000 with pencil and not black ink that he had used for the promissory note, and he had no plausible explanation to give in his cross-examination---Another witness of the plaintiff stated that the sum of Rs.800,000 was given to the defendant in the form of notes having denominations of 500 and 1000 in the Court premises---Again, this was an unusual act, because, normally, such dealing take place in private, where money can safely and securely be handed over and counted by the other party; this clearly cannot be done in Court premises, on the stall of a stamp vendor---Consequently payment of any amount to the defendant had not been proved---Plaintiff had failed to prove that the promissory note was not forged; therefore, he was not entitled to the decree he had sought in his plaint---Appeal was dismissed.

Johnson v. The Duke of Marlborough (2 Stark. Rep 313); Henman v. Dickinson (5 Bing. 183) and Simpson v. Stackhouse (9 Barr. 186) ref.

(d) Evidence---

----Circumstantial evidence--- Scope--- Circumstantial evidence is sufficient when it enables the Court to make reasonable inferences about the ultimate facts in issue; it must be more than mere conjecture, speculation, or guess.

Galloway v. United States 319 US 372 and Popken v. Formers Mut. HomesIns. Co. 180 Neb.250 ref.

Mrs. Tabinda Islam, Advocate Supreme Court for Appellant.

Mian Shah Abbas, Advocate Supreme Court via video link from Lahore for Respondent.

P L D 2024 Supreme Court 54

Present: Umar Ata Bandial, C.J., Mrs. Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

GHULAM MUSTAFA LUND---Petitioner

Versus

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

Civil Petition No. 1303 of 2020, decided on 3rd August, 2023.

(Against judgment dated 10.03.2020, passed by the High Court of Sindh at Karachi in Constitution Petition No.D-1884 of 2017).

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

----Ss. 25(a) & 25(b)---Voluntary Return ("VR")---Plea Bargain ("PB")---Distinction---"VR" envisages full deposit and "PB" a commitment to pay---"VR" is linked with the condition of full deposit whereas "PB" becomes operative if the accused "agrees to return" to the NAB the amount determined by the Chairman, NAB, and the Court approves such agreement.

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

----S. 25(a)---Voluntary Return ("VR")---Scope---"VR" under the law is a one-time facility of depositing the determined amount and not a long-term repayment arrangement---Even if the accused is allowed to pay the amount in installments, VR will only be effective once the determined amount is deposited in full.

National Accountability Bureau v. Shabbir Ahmed Malik PLD 2020 SC 193 ref.

(c) Interpretation of statutes---

----Language of the statute---In constructing and interpreting statutes, the Court has first to look at the language of the law and interpret the same in accordance with the ordinary meaning and usage of the words---Context in which the said words have been used by the legislature as is evident from the language of the provisions itself can also be considered without adding to or subtracting anything from the same---In case of lack of clarity, as a second step, the Court may look for the intent and purpose of the lawmaker in using a particular language and words as is evident from the language of the statute.

Allied Bank Limited v. Zulfiqar Ali Shar 2021 SCMR 1213 and Jurists Foundation through Chairman v. Federal Government PLD 2020 SC 1 ref.

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

----S. 25(a)---Government officer---Owning assets beyond known sources---Voluntary Return ("VR")---Scope---Amount of "VR" approved by Director General, NAB paid by accused in installments---Subsequent notice based on order of Accountability Court asking accused to pay additional amount after approval of VR---Legality---Accountability Court, jurisdiction of---Petitioner, while in custody, made an offer to the Director General, NAB for voluntary return ("VR") and showed his willingness to return all the assets gained/acquired by him which were the subject matter of the inquiry against him---Respondents determined the liability of the petitioner as Rs.210.311 million and as such the petitioner, on the direction of the respondents, filed an affidavit for the agreement under section 25(a) of the National Accountability Ordinance, 1999 ("NAO") whereby the petitioner undertook to pay the said liability as per the schedule mentioned/agreed therein---Said offer of the petitioner was approved by the competent authority i.e. Director General, NAB---Petitioner started making the agreed payments and was released from the custody of the respondent/NAB---Later, the respondents, through a Final Notice demanded an (additional) amount of Rs. 140.62 million in addition to the earlier agreed amount of Rs.210.311 million from the petitioner on the ground that the earlier liability was re-determined/re-evaluated/re-assessed in compliance of an order of the Administrative Judge, Accountability Court, who had observed that the initial assessment was not carried out properly as the value of assets was calculated merely on the basis of the value of the property as mentioned on the sale deeds and Investigating Officer (I.O.) was advised to re-value the assets of the petitioner on the basis of market value from some reliable sources---Questions that arise are whether the Accountability Court has the jurisdiction to direct the I.O. to calculate or re-assess/re-value the VR liability, in certain manners, which has already been approved by the Competent Authority and whether NAB authority is bound by such order and can unilaterally enhance the value/amount of the VR while ignoring the voluntary offer made by the petitioner---Held, that Accountability Court has got no role, power, or authority to direct or supervise the VR proceedings---It is only the Chairman NAB (or his delegate under section 34-A of the National Accountability Ordinance, 1999, if any) who is competent to accept the offer of VR and determine or fix the liability of an accused thereunder---In the present case the Accountability Court had exercised a jurisdiction not vested in it; hence, its order directing the I.O. to re-asses or re-value the VR liability of the petitioner (which had already been approved by the competent authority) is nothing but nullity in the eyes of law being coram-non-judice---However, this does not, in any manner, mean that the Chairman NAB had no authority to re-value or re-assess the liability of an accused already approved by him under the VR or to again initiate an inquiry for the same allegations---Admittedly, the petitioner has made the full payment of Rs.210.311064 million under the VR as determined by the Director General NAB, therefore, the petitioner is held to be discharged of his liability under the subject inquiry by the NAB---Petition for leave to appeal was converted into appeal and allowed.

Dan Gunnar Bjarne Anderson v. Federation of Pakistan PLD 2019 Isl. 566 ref.

(e) Administration of justice---

----Void order--- When the basic order is void, the superstructure built thereon is also void and it would fall to the ground automatically.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Mansab Ali v. Amir PLD 1971 SC 124; Abdul Salam alias Abdul Khair v. Allah Miah Serang PLD 1971 SC 189; Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208; Nawabzada Zafar Ali Khan v. Chief Settlement Commissioner 1999 SCMR 1719; Muhammad Ramzan v. Member (Rev.) CSS 1997 SCMR 1635; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami 2007 SCMR 818 and Executive District Officer (Education) v. Muhammad Younas 2007 SCMR 1835 ref.

Rasheed A. Rizvi, Senior Advocate Supreme Court and Haq Nawaz Talpur, Advocate Supreme Court for Petitioner.

Raja Rizwan Ibrahim Satti, Special Prosecutor for NAB.

P L D 2024 Supreme Court 67

Present: Syed Mansoor Ali Shah, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

BASHIR AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, HAFIZABAD and others---Respondents

C.P. No. 5918 of 2021, decided on 3rd November, 2023.

(Against the order of the Lahore High Court, Lahore, dated 06.10.2021, passed in W.P. No. 50349 of 2019).

(a) Constitution of Pakistan---

----Arts. 4 & 10A---Fair trial---Scope---Duty of Courts to deal with everyone in accordance with law---Courts, from top to bottom, must always remember that while dealing with matters of life, liberty, body, reputation or property of all persons must be dealt with in accordance with law, and that every person appearing before them is entitled to a fair trial and due process for the determination of his civil rights and obligations or in any criminal charge against him.

Maxwell v. Department of Trade 1974 QB 523 per Lawton, L.J. ref.

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

----S. 5 & Sched.---Constitution of Pakistan, Arts. 4 & 10A---Maintenance of minor---Grandfather, obligation of---Scope---Decree for maintenance of minor passed against the father of a child by the Family Court---Such decree cannot be executed against the grandfather---Child has to institute a suit for maintenance against his grandfather, in case no property of his father, the judgment debtor, is found for the execution of the decree.

Under the Islamic law of maintenance of the children, if the father of a child has died or the father, being a poor person, has no financial resources to maintain his child, the obligation to maintain such child passes on to his grandfather provided he is financially in easy circumstances. Thus, obligation of a grandfather to maintain his grandchild is dependant upon two conditions: (i) the father of the child must be a poor person who has no financial resources to maintain that child, and (ii) the grandfather of the child must be a person who is financially in easy circumstances. In case either of these conditions is not fulfilled, the grandfather is not under any obligation to maintain his grandchild. These two conditions are thus also the grounds of defence available to a grandfather against whom his grandchild makes a claim of maintenance. The grandfather must be provided with an opportunity to defend the claim made against him by rebutting the existence of either of these two facts. This is the requirement of the fundamental right guaranteed by Article 10A of the Constitution of Pakistan, which mandates that for the determination of his civil rights and obligations, a person shall be entitled to a fair trial and due process.

Rehmat Bibi v. Mohammad Ali PLD 1971 Lah. 151 and Nizam Khan v. Additional District Judge PLD 1976 Lah. 930 ref.

The matter of providing maintenance to his grandchild is a matter of civil obligation; for its determination, the grandfather must be provided with a fair trial and due process. Both the above conditions, the fulfillment of which brings a grandfather under obligation to maintain his grandchild, are factual propositions, not legal ones. Their existence or non-existence can, therefore, only be proved through producing their respective evidence by the parties in a properly instituted suit for maintenance. Such evidence cannot be recorded in the execution proceeding nor can any determination be made therein by the executing court on these facts. The recording of evidence and making of findings on these facts in an execution proceeding would be a useless exercise, as despite making a positive finding, an executing court cannot modify the decree nor can it execute the decree against a person who was not a party to the suit. Further, the Family Courts Act, 1964 prescribes a procedure for how the claims of maintenance are to be entertained and decided by the Family Courts. Such a claim made against a grandfather operates against his property; he is, therefore, entitled to be dealt with the procedure prescribed by law, i.e., the Family Courts Act, as per Article 4 of the Constitution. Therefore, a decree for maintenance passed against the father of a child cannot be executed against the grandfather, and the child has to institute a suit for maintenance against his grandfather, in case no property of his father, the judgment debtor, is found for the execution of the decree.

Naseem Akhtar v. Shalimar General Insurance 1994 SCMR 22; Province of Punjab v. Burewala Textile Mills 2001 SCMR 396; Tariq Khan v. Jawad Asami 2007 SCMR 818; Attiq-ur-Rehman v. Sajad Hussain 2009 SCMR 684; Humayun Hassan v. Arslan Humayun PLD 2013 SC 557; Ahmed Nawaz v. Province of Punjab 2015 SCMR 823 and Shajar Hussain v. Abdul Majeed 2006 SCMR 913 ref.

Nawazish Ali v. Family Judge 2021 CLC 1841 approved

Mavra Arshad v. Ehsan Ghani 2005 SCMR 1293 distinguished.

In the present case, the petitioner (grandfather) was neither a party to the suit instituted by his grandchild against his father nor was any decree passed against him. A decree that was not passed against the petitioner cannot be executed against him or his property. The order, whereby the executing court attached the property of the petitioner, and the order, whereby his application for the release of the attached property was dismissed, both are illegal. Petition for leave to appeal was converted into appeal and allowed accordingly with the observation that the minor decree-holder, if so advised, is at liberty to institute a suit for maintenance against the petitioner, his grandfather, in accordance with the law, and if such a suit is instituted, the Family Court may make an appropriate order for interim maintenance of the minor at an appropriate stage of the suit if it is satisfied that the two conditions which make a grandfather liable for providing maintenance to his minor grandchild are prima facie fulfilled.

Muhammad Shahid Tasawar Rao, Advocate Supreme Court for Petitioner.

Khalid Pervaiz Warraich, Advocate Supreme Court for Respondents.

P L D 2024 Supreme Court 73

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

JAVID KHAN---Petitioner

Versus

ARSHID KHAN and another---Respondents

Criminal Petition No. 149-P of 2023, decided on 15th November, 2023.

(Against the order dated 18 September 2023 passed by Peshawar High Court, Peshawar in Cr. Misc. B.A. No. 3366-P of 2023).

(a) Practice and procedure---

----Law Officer (Additional Advocate General) using the term 'sahib' to refer to a police official in Court---Supreme Court deprecated such practice and observed that it is about time that the practice of adding the word sahib with one's job title is discontinued, as it unnecessarily elevates the status of public servants, which may instil in them delusions of grandeur and a perception of unaccountability, which is unacceptable since it is against the interests of the public whom they are meant to serve.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 364-A---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, kidnapping or abducting a minor---Bail, grant of---Further inquiry---Investigation carried out incompetently---Counsel for the petitioner (accused) stated that it was reported to the police on 5 August 2022 that deceased minor aged about 9/10 years was missing, and on 8 August 2022 after the recovery of his body the FIR was registered wherein the petitioner was nominated, however, he was not mentioned when it was first reported to the police that minor was missing; that statements under section 161 of the Code of Criminal Procedure, 1898 ('the Code') of two relatives of the deceased were recorded which stated that they had last seen the minor with the petitioner, but this did not stand to reason because they would have not permitted a young boy to be taken with an adult and not have informed the boy's father---Validity---Investigation of the case showed that the police report (challan) had only relied upon the two statements of relatives of the deceased---It was most unfortunate that a young boy died but proper investigation did not take place to ascertain what had happened let alone who was responsible---Present case was a classic example of an incompetently handled investigation---Case of further enquiry was made out - Petition for leave to appeal was converted into appeal and allowed, and petitioner was admitted to bail.

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Petition for leave to appeal before the Supreme Court seeking bail---Developing practice whereby despite prior notice to the State preparation of the case is done before the (Supreme) Court---Supreme Court deprecated such practice and observed that it rendered the Supreme Court into an office of the prosecution; that rather than attending to the present matter with the seriousness that it deserved two police officers, who were investigating the crime travelled from another city (Peshawar) to bring documents which could have been e-mailed, faxed or sent by Whatsapp, and then the relevant documents could have been filed, which would have been useful in determining the outcome of present bail application.

Shabbir Hussain Gigyani, Advocate Supreme Court (through video link from Peshawar) for Petitioner.

Respondent No. 1 in-person.

Altaf Khan, Addl. A.G. KPK along with Sikandar Shah, DSP and Islam Shah, I.O. for the State.

P L D 2024 Supreme Court 75

Present: Syed Mansoor Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and Irfan Saadat Khan, JJ

ZAIGHAM HASSAN KHAN ---Petitioner

Versus

The STATE and others---Respondents

Crl.P.172-L of 2023, decided on 7th November, 2023.

(Against the order of Lahore High Court, Lahore, dated 30.01.2023, passed in Cr. Revision No. 6092 of 2023).

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

----S. 466---Release of lunatic pending investigation or trial---Principles---Accused who is of unsound mind and incapable of making his defence should be released on sufficient security under Section 466, Cr.P.C., as a rule while the order for detaining him in safe custody is to be made only as an exception when there is an apprehension that he would not be properly taken care of or prevented from doing injury to himself or any other person.

A bare reading of Section 466, Cr.P.C., shows that in cases where the accused person is found to be of unsound mind and incapable of making his defence, the court has been conferred with special power to release him on sufficient security, notwithstanding whether the case is one in which bail may be taken or not. The sufficient security required is that of a person who binds himself (i) to properly take care of the accused, which includes his proper medical treatment, (ii) to prevent the accused from doing injury to himself or any other person, and (iii) to produce the accused when required before the court or before such officer as ordered by the court. If in the opinion of the court, bail should not be taken, i.e., the accused should not be released, or if the required sufficient security is not given, the court can order the accused to be detained in safe custody in such place and manner as it thinks fit.

The primary course prescribed under Section 466, Cr.P.C. is to release the accused, who is of unsound mind and incapable of making his defence, on sufficient security while detaining him in safe custody secondary to the primary course. It, therefore, follows that the course of releasing such an accused on sufficient security must be adopted as a rule while the order for detaining him in safe custody is to be made only as an exception. Next comes the question: what may be the circumstances that can justify adopting the exceptional course of detaining the accused in safe custody? The answer to this question also lies within the provisions of Section 466, Cr.P.C. The noticeable point is that while conferring the discretion on the court, by using the word 'may', Section 466 provides an inbuilt guidance for the exercise of that discretion by making it conditional on giving sufficient security to properly take care of the accused and to prevent him from doing injury to himself or any other person. These two conditions are the touchstone on the basis of which the court is to exercise its discretion in either way. If keeping in view the facts and circumstances the court forms an opinion that in releasing the accused on bail, there is an apprehension that he would not be properly taken care of or prevented from doing injury to himself or any other person, it can then decline to release him on bail and direct for keeping him in safe custody in such place and manner as it may think fit. The facts and circumstances that are relevant in forming such an opinion by the court may be that no one from the kith and kin of the accused comes forward to give sufficient security for the fulfillment of the said conditions, or that his kith and kin have previously remained unsuccessful in preventing him from doing injury to other persons.

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

----S. 466---Penal Code (XLV of 1860), S. 295-C---Making derogatory remarks against the Holy Prophet (peace be upon him)---Release of lunatic on bail pending trial---Accused person suffering from 'schizophrenia'---Family members of the petitioner (accused) were pursuing the legal remedies for him and were ready to give the requisite sufficient security for the fulfillment of the conditions that they would properly take care of the petitioner and prevent him from doing any injury to the body or property of other persons, and there was no past record of the petitioner to have done any such injury to other persons which may show that his family members have previously remained unsuccessful in preventing him from doing injury to other persons---Incident involved in the present case was also not of a violent nature involving any injury to the body or property of other persons---Thus, there were no such exceptional facts and circumstances that may justify departure from the rule of releasing the petitioner on sufficient security under Section 466, Cr.P.C., and adopting the exceptional course of detaining him in some Mental Health Hospital instead of handing him over to his family for his proper care and treatment---Petitioner was ordered to be released on bail subject to furnishing of a bond by any family member of the petitioner who binds himself (i) to properly take care of the petitioner, (ii) to prevent the petitioner from doing injury to himself or any other person, (iii) to produce the petitioner before the court when required, and (iv) to produce the petitioner before the Medical Board of the Punjab Institute of Mental Health, Lahore, after every three months for his medical examination as to his recovery from the mental disease and fitness to stand trial, and to submit the report of the Board to the trial court for information and appropriate order---Petition for leave to appeal was converted into appeal and allowed accordingly.

Abdul Hameed Khan Rana, Advocate Supreme Court for Petitioner.

Mirza Abid Majeed, DPG, Punjab along with Ghulam Rasool, I.O. for the State.

Ghulam Mustafa Ch., Advocate Supreme Court (Through V.L. from Lahore Registry) for the Complainant.

P L D 2024 Supreme Court 81

Present: Ijaz ul Ahsan, Munib Akhtar and Ayesha A. Malik, JJ

PROVINCE OF SINDH through Secretary, Agriculture Department, Government of Sindh and another---Appellants

Versus

MULTILINE ENTERPRISES and another---Respondents

Civil Appeals Nos. 477 and 478 of 2021, decided on 25th October, 2023.

(On appeal against judgment dated 24.04.2019 passed by the High Court of Sindh at Karachi in High Court Appeals Nos. 139 and 109 of 2019).

Sale of Goods Act (III of 1930)---

----S. 64A---Provincial Government tender for supply of imported tractors---Suit for recovery of advance income tax and sales tax paid by the supplier on import of tractors---Single Judge of the High Court dismissed the claim of supplier insofar as it related to the reimbursement of advance income tax at import stage at the enhanced rate, however, the claim for reimbursement of sales tax was sustained and decreed---Division Bench of the High Court dismissed both appeals filed by the supplier and the Provincial Government---Validity---Section 64A of the Sale of Goods Act, 1930 applies only in relation to three types of taxes: central excise duty, customs duty and sales tax---Said section makes no mention of income tax, thus, section 64A does not apply to income tax---In such circumstances both the Single Judge and the Division Bench rightly disallowed the supplier's claim with regard to income tax---With respect to sales tax, Clause 26.1 of the general conditions appended to the contract stipulated that the contract was on DDP basis, i.e., Delivery Duty Paid---'DDP' is a term that is part of "Incoterms", which is a well known and established system in international trade---In respect of the contract in the present case eighth version, Incoterms 2010, was applicable---Contract on DDP basis is most favorable for the buyer in that almost all the risks, costs and tasks are to the account of the seller---This includes any duties or taxes payable---Thus, a contract on DDP basis maximizes the risks and responsibilities of the seller and minimizes those of the buyer---Given this distribution, it is hardly surprising that in the present case the Provincial Government chose to incorporate this term in the general conditions of its contract---Clause 26, and the requirement that the contract was on DDP basis, was a stipulation that was precisely within the contemplation of section 64A of the Sale of Goods Act, 1930, i.e., it was an agreement between the parties as to what would happen if there was a change in the duties and taxes applicable after the contract had been entered into---That burden fell entirely upon, and was wholly and solely the responsibility of the supplier---Section 64A, on its own terms, did not have any application to the present case in such regard---Legal liability to pay the sales tax lay on the supplier, and clause 26 threw the financial burden also on it---Supplier therefore could not base a claim in these terms either---Appeals were disposed with the result that supplier's suit failed in its entirety and was liable to be dismissed.

Pakistan Beverage Ltd. v. Large Taxpayer Unit Karachi 2010 PTD 2673 distinguished.

For the Appellants:

Sibtain Mehmood, Addl. AG, Sindh.

Shahab ud Din Abro, D.G.

Zulfiqar Ali, Focal Person, Agriculture Department, Sindh

(via Video-Link, Karachi) (in C.A. No. 477 of 2021).

Ali Asad Gondal, Advocate Supreme Court

(via Video-Link, Karachi) (in C.A. No. 478 of 2021).

For the Respondents:

Sibtain Mehmood, Addl. AG, Sindh.

Shahab ud Din Abro, D.G.

Zulfiqar Ali, Focal Person, Agriculture Department, Sindh

(via Video-Link, Karachi) (in C.A. No. 478 of 2021).

Ali Asad Gondal, Advocate Supreme Court

(via Video-Link, Karachi) (in C.A. No. 477 of 2021).

P L D 2024 Supreme Court 88

Present: Qazi Faez Isa, C.J. Amin-ud-Din Khan and Athar Minallah, JJ

Raja MUHAMMAD HAROON---Petitioner

Versus

PROVINCE OF SINDH through Board of Revenue and others---Respondents

C.M.A. No.8758 of 2018 in C.M.A. No. 376-K of 2014, C.M.A. No.8038 of 2021 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014, C.M.A. No.9963 of 2018 in C.M.A. No.8758 of 2018, C.M.A. No. 10096 of 2018 in Civil Review Petition No.288 of 2018, C.M.A. No. 10604 of 2018 in C.M.A. No. 8578 of 2018, C.M.A. No. 4058 of 2019 in C.M.A. No.8758 of 2018, C.M.A. No.5000 of 2019 in Civil Review Petition Nil of 2019 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014, C.M.A. No. 11052 of 2019 in C.M.A. No.8758 of 2018, C.M.A. No.3519 of 2021 in C.M.A. No.7923 of 2019 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014 in Suo Motu Case No. 16 of 2011, C.M.As. Nos. 1234 and 1235 of 2021 in C.M.A. No.8758 of 2018 in C.M.A. No. 376-K of 2014 in Suo Motu Case No. 16 of 2011, C.M.A. No.7469 of 2021 in C.M.A. No.7923 of 2019 in C.M.A. No.8758 of 2018, C.M.A. No.339 of 2019 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014 in Suo Motu Case No. 16 of 2011 and C.M.A. No.12602 of 2019 in C.M.A. No.339 of 2019 in C.M.A. No.8758 of 2018 in C.M. A No.376-K of 2014 in Suo Motu Case No. 16 of 2011. C.M. Appeal No.6 of 2020 in C.M.A. Nil of 2019 in C.M.A. No.8758 of 2018, C.M. Appeal No.7 of 2020 in C.M.A. Nil of 2019 in C.M.A. No.8758 of 2018, C.M. Appeal No.8 of 2020 in C.M.A. Nil of 2019 in C.M.A. No.7417 of 2019 in C.M.A. No.8758 of 2018, C.M. Appeal No. 147 of 2023 in C.M.A. Nil of 2023 in C.M.A. No. 376-K of 2014, C.M. Appeal No. 152 of 2020 in C.M.A. Nil of 2020 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014 in Suo Motu Case No.16 of 2011, Civil Review Petition No.15 of 2021 in C.M.A. No.6924 of 2020 in C.M.A. No.8758 of 2018 in C.M.A. No.376-K of 2014 in Suo Motu Case No. 16 of 2011, decided on 23rd November, 2023.

(a) Malir Development Authority Act, 1993 (XI of 1994)---

----Ss. 8(2)(iii) & 14---Colonization of Government Lands Act (V of 1912), S. 17---Implementation of judgment of the Supreme Court reported as Syed Mehmood Akhtar Naqvi and others v. Malik Israr, Sr. Member Board of Revenue Sindh and others (PLD 2018 SC 468)---Private housing society---Illegalities in adjustment of Government land with land belonging to a private real estate developer [Bahria Town (Private) Limited] ('the developer')---Developer's offer of paying Rs. 460 billion in installments within a period of seven years for settlement of the case accepted by the Supreme Court---Default in payments of instalments by the developer---Unauthorised foreign remittances and alleged proceeds of crime remitted into Supreme Court's accounts to offset the developer's liability---Observation recorded and directions given by the Supreme Court in the present matter stated.

A Committee was constituted on the orders of the Supreme Court to determine the land in actual possession of the private real estate developer [Bahria Town (Private) Limited] ('the developer'), as the developer claimed that the land in its possession was less than the land it was supposed to receive pursuant to the orders of the Supreme Court dated 21 March 2019. After a survey of the land was undertaken the Committee submitted its Report which states that the developer (Bahria Town) is in possession of 19,931.63 acres; 17,709.45 acres in District Malir and 2,222.18 acres in District Jamshoro. The unauthorized possession of land in developer's possession is 3,035.63 acres. Encroachment and occupation of additional land could not have happened without the complicity of the concerned officers/officials; who lost sight of the fact that they are public servants to serve the people and bartered away the rights and interest of the people and of the province for personal gain.

The myth of the stated shortfall of land has been fully exposed by the Report and developer's own filings in Court. Developer undoubtedly knew that there was no shortfall in the land in its possession because it did not abandon the project and made no effort to have its applications, alleging shortfall, fixed for hearing in Court, nor filed a single application stating that the matter was urgent. It appears that the developer filed applications, alleging shortfall in land, merely as a pretext to avoid paying the installments which it had agreed to pay. The applications were also used as a smokescreen to conceal the additional land in developer's possession. Developer's conduct was an abuse of the process of the Court. Even if the Report is disregarded it would not help the developer, because it has not produced any evidence to show, let alone establish, that there was a shortfall in the land. The developer also did not relinquish the excess/additional land in its possession and stopped paying the installments it had agreed to pay.

The monthly installments were required to be paid by the developer into the account in the name of Registrar of the Supreme Court maintained with the National Bank of Pakistan. The statement of account issued by the Bank shows that the last installment of Rs.2,500,000,000 (2.5 billion rupees) was paid by the developer on 31 October 2019, and then a number of lesser amounts were paid over a one year period (from November 2019 to October 2020) amounting to Rs.173,849,522, which is less than one monthly installment. Thereafter, no further payment was made. An amount of 166.25 billion rupees (excluding applicable markup) should have by now been paid by the developer, but only 24 billion is paid. The cost of the development work to be undertaken by the developer and the cost of the land (460 billion rupees) is recovered by the developer from its allottees, and a portion therefrom was to be paid towards the cost of the land. The developer retained the land and collected money from its allottees but did not honour its commitment to make payment, nor apparently honoured its commitment to its allottees. The consent order (passed by the Court) had also stipulated that two consecutive installments or three installments in toto, shall constitute a default resulting, inter alia, in the whole balance amount becoming due and payable. Admittedly, the developer is in default, and consequently the entire balance amount has become due and payable.

In the account in the name of the Registrar of the Supreme Court maintained by the National Bank of Pakistan remittances were received from abroad. The amount remitted from abroad from the account of eight individuals and entities was about 35 billion Pakistani rupees at the relevant time. The consent order did not permit payments to be made from abroad. It is unfortunate that without seeking permission of the Supreme Court amounts were remitted into its account and the Supreme Court was unnecessarily involved with money detected by the National Crime Agency ('NCA') of the United Kingdom, which probably were proceeds of criminal activity which was detected by NCA, seized and then frozen by 'Account Freezing Orders' ('AFOs'). Apparently, these monies were used to offset the developer's stated liability. Therefore, the amount received from abroad and the markup earned thereon be remitted to the Government of Pakistan. The Registrar of the Supreme Court and the National Bank of Pakistan shall do the needful in this regard.

The developer has not deposited into the account of the Supreme Court the installments it had agreed to pay for a considerable time, and is in default of the consent order. Therefore, there is no reason to retain the amounts in the account, and these amounts constituting a portion of the cost of land which is of the people of province of Sindh should be remitted to the Government of Sindh. The amounts received from abroad in foreign currency and the markup earned thereon is to be paid to the Government of Pakistan and the balance amount in the account in the name of the Registrar of the Supreme Court is to be paid to the Government of Sindh. After such payments have been paid, the National Bank of Pakistan should close the account in the name of the Registrar of the Supreme Court maintained by it.

The developer filed frivolous applications and review petition and wasted the time of the Supreme Court, therefore, costs of an amount of one million rupees are imposed on it which should be paid to the Sindh Institute of Urology and Transplantation. The developer should in addition also reimburse to the Provincial Government of Sindh the amount of one million rupees regarding the amount spent on the survey to determine the land in actual possession of the developer.

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

----S. 17---Housing/commercial schemes launched by developers/ builders---Allotees, rights of---Issues faced by allotees such as (i) allotments not honoured; (ii) duplicate allotments issued to more than one person and; (iii) allotments arbitrarily cancelled by developers/builders---Insufficient record keeping of allotments and other transactions by developers/builders---Observations recorded by the Supreme Court with regard to the adverse effects of insufficient record keeping of allotments and other transactions by developers/ builders stated.

Advocate General Sindh informed the Court that when a sale or a lease deed is registered pursuant to the Registration Act, 1908 the transaction gets recorded, but, before this stage neither the government nor any official organization maintains the record of the allotments and of their ownership. Allottees suffer in the absence of requisite record keeping and are left at the complete mercy of developers/builders. Developers and builders, including public sector authorities and societies, should be required to electronically, and automatically, transmit to a designated record keeper every transaction with complete particulars thereto, and to periodically provide a hard copy of the transactions. In addition to protecting the public this would also prevent double book-keeping by developers/builders and will document the economy. Double book-keeping, and the cash received by some developers/builders, facilitates the growth of the undocumented (black) economy, with its attendant ills and criminal activity. On payment of a nominal fee the allottee could also monitor allotments and changes made thereto. The absence of record keeping encourages unscrupulous builders/developers to exploit allottees. Litigation also ensures, adding to the cases already pending and it further overwhelms the courts. In the absence of record keeping of properties courts are faced with the difficult task to ascertain facts and then to determine the respective rights of parties. Such litigation would be avoided if there was proper record keeping of allotments and other transactions. A record keeping mechanism could also be designed to prevent duplicate or multiple allotments in respect of the same plot of land or apartment, and to also prevent arbitrary cancellation of allotments.

For Bahria Town:

Salman Aslam Butt, Senior Advocate Supreme Court.

Shoaib Rashid, Advocate Supreme Court.

M. Asif, Internal Legal Advisor, Bahria Town.

Mudassir Mehmood, Financial Advisor, RACO.

On Court Notice in C.M.A. No.339 of 2019:

For Mashreq Bank:

Mr. Rashid Anwar, Advocate Supreme Court.

For Government of Sindh:

Hassan Akbar, A.G. Sindh.

M. Saeed Laghari, Deputy Commissioner Malir.

For Survey of Pakistan:

Shah Muhammad, Director.

M. Aqib, Deputy Director.

For MDA:

Muhammad Irfan, Director (Legal) MDA.

For SBCA:

Nadir Khan Burdi, Advocate Supreme Court.

For Petitioner in CP. 34 of 23:

Ali Sibtain Fazli, Sr. Advocate Supreme Court.

Appellant in C.M. Appeals Nos.6 to 8 of 2020 and applicant (in C.M.A. No. 339 of 2019):

Syed Mehmood A. Naqvi, in person.

For Appellants (allottees) in C.M. Appeal No. 176 of 2021.

Haseeb Jamali, ASC (via video link from Karachi).

For Appellant in C.M. Appeal No. 152 of 2020:

Dr. M. Shafique (in person).

P L D 2024 Supreme Court 102

Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

IMRAN AHMAD KHAN NIAZI ---Petitioner

Versus

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

Constitution Petition No. 21 of 2022 and C.M.A. No. 5029 of 2022 in Constitution Petition No. 21 of 2022, decided on 30th October, 2023.

Per Umar Ata Bandial, CJ.; Ijaz ul Ahsan, J. agreeing; Syed Mansoor Ali Shah, J. dissenting. [Majority view]

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

----Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)---National Accountability (Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14---National Accountability (Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14---Constitution of Pakistan, Arts. 9, 14, 23, 24 & 184(3)---Constitutional petition filed before the Supreme Court challenging amendments made to the National Accountability Ordinance, 1999 ("NAB Ordinance") by the National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments")---Maintainability---The 2022 Amendments have rendered the NAB toothless in accomplishing its objective of eradicating corruption and corrupt practices and holding accountable all those persons accused of such practices and have left public property belonging to the people of Pakistan vulnerable to waste and malfeasance by the holders of public office, thereby ex-facie violating Articles 9, 14, 23 and 24 of the Constitution---Detailed reasons for finding the present Constitutional petition as maintainable stated.

Acts of corruption and corrupt practices do infringe the Fundamental Rights of the public and thus meet the test of Article 184(3) of the Constitution.

(Suo Motu Case No.19 of 2016) 2017 SCMR 683; Corruption in Hajj Arrangements in 2010's case PLD 2011 SC 963; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.

The National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments") have limited the NAB's jurisdiction thus excluding hundreds of pending references from trial before any forum and have also made the proof of the offence of corruption and corrupt practices significantly harder for references that satisfy the jurisdictional requirements of Section 4 and Section 5(o) of the National Accountability Ordinance, 1999 ("NAB Ordinance").

The 2022 Amendments exclude the jurisdiction of the NAB to investigate and prosecute holders of public office in two significant respects thereby ex-facie violating Articles 9, 14, 23 and 24 of the Constitution by exonerating the holders of public office from their alleged acts of corruption and corrupt practices by failing to provide a forum for their trial. The 2022 Amendments have therefore rendered the NAB toothless in accomplishing its objective of 'eradicat[ing] corruption and corrupt practices and hold[ing] accountable all those persons accused of such practices' and have left public property belonging to the people of Pakistan vulnerable to waste and malfeasance by the holders of public office. Such interference in the NAB's jurisdiction and powers most certainly affects the Fundamental Rights of the people at large. Present Constitutional petition fulfils the requirements of Article 184(3) of the Constitution and so is maintainable.

Progress Report of NAB in OGRA's case 2015 SCMR 1813 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution filed before the Supreme Court---Antecedents or standing of the petitioner---Not relevant---When the Supreme Court exercises jurisdiction under Article 184(3) of the Constitution it is not concerned with the antecedents or standing of the person who has filed the petition because that person is merely acting as an informant---Instead, the Court favours a substantive approach focusing more on the content of the petition and whether the same crosses the threshold set out in Article 184(3)---Locus standi (of petitioner) is not an impediment when the Court is exercising original jurisdiction (under Art. 184(3) of the Constitution).

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Muhammad Ashraf Tiwana v. Federation of Pakistan 2013 SCMR 1159 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Vires of legislation---Supreme Court can consider and decide the vires of legislation in its original jurisdiction.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 and Zulfiqar Ahmed Bhutta v. Federation of Pakistan PLD 2018 SC 370 ref.

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

----Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)---National Accountability (Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14---National Accountability (Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14---Penal Code (XLV of 1860), S. 21---Prevention of Corruption Act (II of 1947), Ss. 2 & 5---Constitution of Pakistan, Arts. 9, 14, 23, 24, 25, 62(1)(f), 175(3), 184(3) & 260(1)---Constitutional petition filed before the Supreme Court challenging amendments made to the National Accountability Ordinance, 1999 ("NAB Ordinance") by the National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments")---Vires of the "2022 Amendments"---Supreme Court declared sections 2, 8, 10 & 14 of the First Amendment and sections 2, 3 & 14 of the Second Amendment as ultra vires the Constitution---Detailed reasons for finding the said sections as ultra vires the Constitution stated.

The National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments") have brought about the following modifications in the National Accountability Ordinance, 1999 ("NAB Ordinance"):

i. Section 3 of the Second Amendment has changed the definition of 'offence' in Section 5(o) of the NAB Ordinance by inserting a minimum pecuniary jurisdiction of Rs.500 million below which value the NAB cannot take cognizance of the offence of corruption and corrupt practices;

ii. Section 2 of the First Amendment by inserting subsections (a)-(f) into Section 4 of the NAB Ordinance and Section 2 of the Second Amendment by adding subsection (g) in Section 4 of the NAB Ordinance has excluded certain holders of public office from application of the NAB Ordinance and thereby limited its effect;

iii. Section 8 of the First Amendment has inserted new ingredients in the offence under Section 9(a)(v) of the NAB Ordinance and added explanations thereto. Section 9(a)(v) criminalizes the act of holding assets beyond means;

iv. Section 10 of the First Amendment has deleted Section 14 of the NAB Ordinance which provides evidentiary presumptions that may be drawn against the accused;

v. Section 14 of the First Amendment has deleted Section 21(g) of the NAB Ordinance which permitted foreign evidence to be admissible in legal proceedings under the mutual legal assistance regime; and

vi. Section 14 of the Second Amendment has added a second proviso to Section 25(b) of the NAB Ordinance whereby an accused who enters into a plea bargain duly approved by the Accountability Court under Section 25(b) can renege from the same if he has not paid the full amount of the bargain settlement as approved by the Accountability Court.

Section 3 of the Second Amendment

Section 3 of the Second Amendment has amended Section 5(o) of the NAB Ordinance to set the minimum pecuniary jurisdiction of the NAB at Rs.500 million for inquiring into and investigating cases involving the commission of the offence of corruption and corrupt practices. As a result, offences that cause loss valued at less than Rs.500 million no longer come within the ambit of the NAB. The principal focus of the NAB is to mainly prosecute mega scandals. Whilst the judgments of the Superior Courts indicate that the minimum pecuniary threshold of NAB should be Rs.100 million (except in limited circumstances where offences less than Rs.100 million cannot be prosecuted by any other accountability agency), Section 3 of the Second Amendment has increased this minimum threshold to Rs.500 million. No cogent argument was put forward by counsel for the respondent Federation as to why Parliament has fixed a higher amount of Rs.500 million for the NAB to entertain complaints and file corresponding references in the Accountability Courts when the Superior Courts have termed acts of corruption and corrupt practices causing loss to the tune of Rs.100 million as mega scandals.

State v. Hanif Hyder 2016 SCMR 2031; Amjad Hussain v. National Accountability Bureau 2017 YLR 1 and Iftikhar Ali Haideri v. National Accountability Bureau 2019 YLR 255 ref.

Counsel for the respondent Federation submitted that merely because the minimum pecuniary threshold of the NAB has been increased does not mean that holders of public office stand absolved; that other accountability fora exist in the country where the trials of the accused holders of public office who have been removed from the jurisdiction of the NAB can be held. Counsel referred to the provisions of Prevention of Corruption Act, 1947 ("1947 Act") and Pakistan Penal Code, 1860 ("P.P.C.") amongst other laws. However, on a careful examination of these legislations it becomes clear that the two are applicable only to public servants. Under the Constitution persons in the service of Pakistan are those who are holding posts in connection with the affairs of the Federation or Province. As a result, such persons are either dealing with the property of the Federal/Provincial Government or with the pecuniary interests of the Federal/Provincial Government. They, therefore, come within the definition of public servant set out in the Pakistan Penal Code, 1860 ('P.P.C.") and adopted by the Prevention of Corruption Act, 1947 ('the 1947 Act') and so can be prosecuted under these laws for the offence of corruption and corrupt practices. However, elected holders of public office do not qualify as public servants under the guise of being in the service of Pakistan because Article 260 of the Constitution specifically excludes them from such service. Resultantly elected holders of public office are not triable either under the 1947 Act or the P.P.C. for the offence of corruption and corrupt practices.

R.S. Nayak v. A.R. Antulay AIR 1984 SC 684 and Zakir Hossain Sarkar v. State (70) DLR (2018) 203 ref.

By virtue of Section 3 of the Second Amendment elected holders of public office have been granted both retrospective and prospective exemption from accountability laws. Once excluded from the jurisdiction of the NAB no other accountability fora can take cognizance of their alleged acts of corruption and corrupt practices. Such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution because it permits and encourages the squandering of public assets and wealth by elected holders of public office as there is no forum for their accountability. This in turn affects the economic well-being of the State and ultimately the quality and dignity of the people's lives because as more resources are diverted towards illegal activities less resources remain for the provision of essential services to the people such as health facilities, education institutes and basic infrastructure etc. The immunity also negates Article 62(1)(f) of the Constitution which mandates that only 'sagacious, righteous, non-profligate, honest and ameen' persons enter Parliament. It also offends the equal treatment command of Article 25 of the Constitution as differential treatment is being meted out to persons in the service of Pakistan than to elected holders of public office. This is because persons in the service of Pakistan can still be prosecuted for the offence of corruption and corrupt practices under the 1947 Act as they fall within the definition of public servants.

Section 3 of the Second Amendment is ultra vires the Constitution and of no legal effect on account of absolving persons accused of the offence of corruption and corrupt practices without a judicial verdict which amounts to legislative judgment. Since persons in the service of Pakistan can be tried for offences contained in Section 9(a)(i)-(v) of the NAB Ordinance under the 1947 Act, the bar

of Rs.500 million shall continue for such offences. To this extent Section 3 of the Second Amendment is declared to be intra vires the Constitution. However, on account of the fact that persons in the service of Pakistan cannot be tried for the offences noted in Section 9(a)(vi)-(xii) under the 1947 Act or any other accountability law the bar of Rs.500 million will not apply to them for such offences. Section 3 of the Second Amendment is therefore declared to be void and without legal effect for these offences for discharging the accused without trial which is tantamount to legislative judgment and is held to be so from the date of commencement of the Second Amendment.

Province of Punjab v. National Industrial Cooperative Credit Corporation 2000 SCMR 567 ref.

Section 2 of the 2022 Amendments

Section 2 of the 2022 Amendments has altered Section 4 of the NAB Ordinance. Section 2 of the 2022 Amendments is an attempt by Parliament to rein in the unguided powers of the NAB and to protect the bureaucracy from unnecessary harassment. However, the exceptions granted by Section 2 operate as an enmasse exemption for holders of public office from facing accountability. The freshly inserted condition that the NAB shall provide evidence of monetary or other material benefit received by the holder of public office or a person acting on his behalf to overcome the exceptions listed in Section 2 of the 2022 Amendments cannot be satisfied in the references already pending before the Accountability Courts. Therefore, where such condition will not be met by the NAB the result will be (and in fact has been) that references will be returned. Section 2 of the 2022 Amendments affects the same Fundamental Rights i.e., Articles 9, 14, 23 and 24 and raises the same problems in terms of the accountability of elected holders of public office as Section 3 of the Second Amendment, namely, that whilst persons in the service of Pakistan may still be investigated and prosecuted under the 1947 Act for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance, elected holders of public office will not be amenable to the jurisdiction of any other accountability fora for the offence of corruption and corrupt practices.

Section 2 of the 2022 Amendments is also declared to be void from the date of commencement of the 2022 Amendments. Section 2 of the 2022 Amendments insofar as these pertain to the offences set out in Section 9(a)(i)-(v) of the NAB Ordinance are declared to be intra vires the Constitution because persons in the service of Pakistan can be prosecuted for these offences under the 1947 Act. However, Section 2 is ultra vires the Constitution from the date of commencement of the 2022 Amendments for the offences listed in Section 9(a)(vi)-(xii) of the NAB Ordinance because persons in the service of Pakistan cannot be tried for such offences under the 1947 Act or any other accountability law.

Sections 8 and 10 of the First Amendment

Section 8 of the First Amendment has significantly altered Section 9 of the NAB Ordinance which lays down various categories of the offence of corruption and corrupt practices. Apart from reducing the circumstances in which the offence of assets beyond means can be made out against the holder of a public office, the First Amendment has made another material change in Section 9(a)(v) of the NAB Ordinance, namely, the obligation on the NAB to prove that an accused has accumulated substantially disproportionate assets 'through corrupt and dishonest means.' This element was previously not a part of Section 9(a)(v). Prior to First Amendment the NAB was not required to demonstrate that the accused had obtained the resources or property 'through corrupt and dishonest means' because the mere presence of disproportionate assets led to the presumption that the accused had engaged in corrupt and dishonest conduct. Such a presumption is provided in Section 14(c) of the NAB Ordinance. The fact of the matter is that the proof of acquisition of assets 'through corrupt and dishonest means' itself constitutes a complete offence. Therefore, by changing Section 9(a)(v), the First Amendment has amalgamated two separate offences into one. As a result, the original offence contained in Section 9(a)(v) has now been rendered redundant. To further ensure the futility of the said offence all of the evidentiary presumptions contained in Section 14 of the NAB Ordinance sustaining the erstwhile offence under Section 9(a)(v) and the remaining offences in the NAB Ordinance have been omitted by Section 10 of the First Amendment.

Further, by the insertion of Explanation II to Section 9(a)(v) of the NAB Ordinance entries in bank statements have been removed from the scope of assets whereas banking transactions can only be regarded as assets if there is evidence of the creation of a corresponding asset through specific transactions. The source, object and quantum of credits/receipts in the bank accounts can now no longer be shown for proving the creation of assets. Nor can debit transfers from one account to another be used to show accumulation of money for the creation of an asset. It goes without saying that bank records are usually the most pivotal evidence in financial crimes. However, by virtue of Explanation II limited resort can be made to them. If accused persons cannot be held to account for owning or possessing assets beyond their means, the natural corollary will be that public assets and wealth will become irrecoverable which would encourage further corruption. This will have a direct adverse effect on the peoples' right to life and to public property because the economic well-being of the State will be prejudiced.

The amended Section 9(a)(v) and the omission of Section 14(c) would treat similarly placed persons differently because while elected holders of public office are relieved from prosecution for the offence under Section 9(a)(v), persons in the service of Pakistan will still have to go through the rigors of trial under the 1947 Act for the same offence. This would offend the equal treatment command of Article 25 of the Constitution.

The phrase 'through corrupt and dishonest means' used in Section 9(a)(v) along with its Explanation II is struck down from the NAB Ordinance from the date of commencement of the First Amendment for being unworkable. Additionally, Section 14 in its entirety is restored to the NAB Ordinance from the date of commencement of the First Amendment. Sections 8 and 10 of the First Amendment are declared invalid to this extent.

The amendments made in Section 9(a)(v) of the NAB Ordinance by Section 8 of the First Amendment are upheld in their entirety as persons in the service of Pakistan can be tried for the same offence under the 1947 Act. However, Section 10 of the First Amendment is struck down from the date of commencement of the First Amendment and Section 14(a), (b) and (d) stand restored to the NAB Ordinance because such presumptions do not exist in any other accountability law.

Section 14 of the First Amendment

Section 14 of the First Amendment has omitted Section 21(g) of the NAB Ordinance, which dealt with International Cooperation Request for mutual legal assistance. It is a common fact that many accused persons being tried under the NAB Ordinance have stashed their wealth and assets abroad in tax havens under fiduciary instruments. However, after the omission of the said provision the admissibility of foreign public documents shall be governed by Article 89(5) of the Qanun-e-Shahadat Order, 1984 ("1984 Order"). The process of admitting foreign public documents under the 1984 Order is protracted and cumbersome because it requires either the production of the original document or a copy which is certified not only by the legal keeper of the document but also by the Embassy of Pakistan. Further, the character of the document needs to be established in accordance with the law of the foreign country. Additionally, foreign private documents would need to be established through the procedure set out in Articles 17 and 79 of the 1984 Order which would require that two attesting witnesses from the foreign country enter personal appearance for proving the execution of the foreign private document. Such a process naturally entails time as the foreign evidence needs to pass through red tape. It therefore defeats the purpose for which Section 21(g) was inserted into the NAB Ordinance. By deleting Section 21(g) from the NAB Ordinance, Section 14 of the First Amendment has made it near impossible for relevant and

necessary foreign evidence to be used in the trials of accused persons. It therefore offends the Fundamental Rights of the people to access justice and protect public property from waste and malfeasance.

Section 21(g) is hereby restored in the NAB Ordinance for both elected holders of public office and persons in the service of Pakistan with effect from the date of commencement of the First Amendment for facilitating peoples right to access justice and for protecting their public property from squander. Accordingly, Section 14 of the First Amendment is struck down for being illegal.

Section 14 of the Second Amendment

Section 14 of the Second Amendment has inserted two new provisos to Section 25(b) of the NAB Ordinance, which provision pertains to plea bargains entered into by accused persons. Despite the benign purposes behind introducing the second proviso to Section 25(b), the actual effect of it is that it nullifies Section 25(b) itself which was inserted in the NAB Ordinance to facilitate early recovery of the ill-gotten wealth through settlement where practicable because it places no restrictions on the accused from revoking the plea bargain entered into by him. Further, the second proviso gives the accused an uninhibited right to withdraw from a plea bargain without obtaining the approval of the Accountability Court which in the first place approved the plea bargain. The exclusion of the Accountability Court by the second proviso to Section 25(b) of the NAB Ordinance therefore undermines the independence of the Judiciary and is violative of Article 175(3) of the Constitution. Furthermore allowing an accused person to renege from his plea bargain would be tantamount to conferring an unlawful benefit on him i.e., he would escape the consequences (disqualification to contest elections or to hold public office) stipulated in Section 15(a) of the NAB Ordinance.

The second proviso to Section 25(b) is struck down from the NAB Ordinance from the date of commencement of the Second Amendment. As a result, Section 14 of the Second Amendment is declared to be void and of no legal effect to this extent.

Supreme Court directed that all orders passed by the NAB and/or the Accountability Courts placing reliance on the struck down Sections are declared null and void and of no legal effect. Therefore, all inquiries, investigations and references which have been disposed of on the basis of the struck down Sections are restored to their positions prior to the enactment of the 2022 Amendments and shall be deemed to be pending before the relevant fora. The NAB and all Accountability Courts shall proceed with the restored proceedings in accordance with law. The NAB and/or all other fora shall forthwith return the record of all such matters to the relevant fora and in any event not later than seven days from date of present judgment which shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned. Constitutional petition was allowed.

(e) Interpretation of statutes---

----Proviso to a section---Scope---Whilst a proviso can qualify or create an exception to the main section it cannot nullify the same.

Muhammad Anwar Kurd v. State 2011 SCMR 1560 ref.

Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, CJ. [Minority view]

(f) Constitution of Pakistan---

----Art. 184(3) & Part.II, Chapt. 1---Legislation---Judicial review---Scope---Courts can judicially review the acts of the legislators if they offend the Constitution, in particular the fundamental rights guaranteed by the Constitution---While examining this conflict of rights and the legislation, the courts must consider that they are dealing with a legislative document that represents multiple voices, myriad policy issues and reflective of public ethos and interests, voiced through the chosen representatives of the people; and remembering that undermining the legislature undermines democracy---With this background, only if such a legislation is in conflict and in violation of the fundamental rights or the express provisions of the Constitution, can the courts interfere and overturn such a legislation.

(g) Constitution of Pakistan---

----Art. 184(3)--- Legislation--- Judicial review--- Scope--- Judicial restraint, doctrine of---Courts have formulated the doctrine of judicial restraint which urges Judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated---As the legislative acts of a legislature are the manifestation of the will of the people exercised through their chosen representatives, the courts tread carefully to judicially review them and strike them down only when their constitutional invalidity is clearly established beyond any reasonable doubt---Reasonable doubt is resolved in favour of the constitutional validity of the law enacted by a competent legislature by giving a constitution-compliant interpretation to the words that create such doubt.

Jurists Foundation v. Federal Government PLD 2020 SC 1 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

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

----Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)---National Accountability (Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14---National Accountability (Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14---Penal Code (XLV of 1860), S. 21---Prevention of Corruption Act (II of 1947), Ss. 2 & 5---Qanun-e-Shahadat (10 of 1984), Art.122---Constitution of Pakistan, Arts. 9, 14, 23, 24, 25, 175(3) & 184(3)---Constitutional petition filed before the Supreme Court challenging amendments made to the National Accountability Ordinance, 1999 ("NAB Ordinance") by the National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments")---Vires of the "2022 Amendments"---The 2022 Amendments in no way take away or abridge any of the fundamental rights guaranteed by the Constitution to the people of Pakistan---Even after the 2022 Amendments elected holders of public offices (members of Parliament, Provincial Assemblies and Local Government Bodies, etc.) are still triable under the Prevention of Corruption Act 1947 ('PCA') and the Pakistan Penal Code 1860 ('P.P.C.')---Changes brought about by the 2022 Amendments relate to criminal law, criminal procedure and rules of evidence and fall within the legislative competence of the Parliament and in no way take away or abridge any of the fundamental rights---If Parliament can enact the NAB Ordinance in the exercise of its ordinary legislative power, it can surely amend the same in the exercise of the same legislative power---Detailed reasons given by His Lordship for disagreeing with the majority view stated.

The Parliament has, through the impugned National Accountability (Amendment) Act, 2022 ("First Amendment") and the National Accountability (Second Amendment) Act, 2022 ("Second Amendment") (collectively referred to as the "2022 Amendments"), merely changed the forums for investigation and trial of the offences of corruption involving the amount or property less than Rs.500 million. After the amendment, the cases of alleged corruption against the holders of public offices that involve the amount or property of value less than Rs.500 million are to be investigated by the anti-corruption investigating agencies and tried by the anti-corruption courts of the Federation and Provinces respectively, under the Prevention of Corruption Act 1947 and the Pakistan Criminal Law Amendment Act 1958, instead of the National Accountability Ordinance, 1999 ("NAB Ordinance"). This matter undoubtedly falls within the exclusive policy domain of the legislature, not justiciable by the courts. This and other challenged amendments, which relate to certain procedural matters, in no way take away or abridge any of the fundamental rights guaranteed by the Constitution to the people of Pakistan.

The majority view in the present case is not correct as even after the challenged amendments:

(i) the elected holders of public offices (members of Parliament, Provincial Assemblies and Local Government Bodies, etc.) are still triable under the Prevention of Corruption Act 1947 ('PCA') and the Pakistan Penal Code 1860 ('P.P.C.') for the alleged offences of corruption and corrupt practices and no one goes home scot-free. They are still triable under other laws. This aspect has been seriously misunderstood by the majority;

(ii) the challenged amendment of adding the threshold value of Rs.500 million for an offence to be investigated and tried under the NAB Ordinance, simply changes the forums for investigation and trial of the alleged offences of corruption and corrupt practices involving the amount or property less than Rs.500 million. The matter of defining a threshold of value for the investigation and trial of offences under the NAB Ordinance is undoubtedly a policy matter that falls within the exclusive domain of the legislature (Parliament), not of the courts. If a legislature has the constitutional authority to pass a law with regard to a particular subject, it is not for the courts to delve into and scrutinize the wisdom and policy which led the legislature to pass that law; and

(iii) the said and other challenged amendments (law made by the Parliament) do not take away or abridge any of the fundamental rights guaranteed under Articles 9, 14, 23, 24 and 25 of the Constitution. The majority view has assumed the right to accountability of the elected holders of public offices through criminal prosecution as included in the fundamental rights to life, dignity and property guaranteed by Articles 9, 14 and 24 of the Constitution, without making any discussion for establishing its close relationship of such an extent with those fundamental rights that makes this right to be an integral part of them.

Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 distinguished.

The omission of Section 14 of the NAB Ordinance by the 2022 Amendments has made no substantial effect in view of the provisions of Article 122 of the Qanun-e- Shahadat 1984. Clauses (a), (b) and (d) of the omitted Section 14 of the NAB Ordinance relate to the intention of the accused other than that which the character and circumstances of the act proved against him by the prosecution suggest. These clauses are, therefore, merely descriptive instances of the applicability of Article 122 read with its illustration (a) of the Qanun-e-Shahadat. And clause (c) of the omitted Section 14 of the NAB Ordinance that relates to possessing assets disproportionate to known sources of income is the descriptive instance of the applicability of Article 122 read with its illustration (b) of the Qanun-e-Shahadat. Notwithstanding such an innocuous effect, the change in the rules of evidence squarely falls within the scope of the legislative competence of the Parliament under Article 142(b) of the Constitution and unless such change offends any of the fundamental rights, it is not justiciable in courts.

Pir Mazharul Haq v. State PLD 2005 SC 63; Mansur-Ul-Haque v. Government of Pakistan PLD 2008 SC 166; State v. Idrees Ghauri 2008 SCMR 1118; Qasim Shah v. State 2009 SCMR 790; Rehmat v. State PLD 1977 SC 515 and Hashim Babar v. State 2010 SCMR 1697 ref.

Similar is the position with the addition of words "through corrupt and dishonest means" by the challenged amendments in Section 9(a)(v) of the NAB Ordinance: It also has no substantial effect on the mode of proving the offence of unaccounted assets possessed by a holder of public office beyond his known sources of income; as when the prosecution succeeds in proving that the particular assets of the accused are disproportionate to his known sources of income (legal means) and are thus acquired through some corrupt and dishonest means, the burden of proving the "fair and honest means" whereby the accused claims to have acquired the same, being within his knowledge, are to be proved by him as per provisions of Article 122, read with its illustration (b), of the Qanun-e-Shahadat.

The majority view has also declared ultra vires the Constitution the addition of Explanation II to Section 9(v) of the NAB Ordinance; the omission of clause (g) of Section 21; and the addition of second proviso to Section 25(b). However in declaring these amendments as ultra vires the Constitution, the majority view has not explained how they infringe any of the fundamental rights or any other provision of the Constitution, nor could the counsel for the petitioner point out in his arguments any such infringement. These amendments being related to "criminal law, criminal procedure and evidence" fall within the legislative competence of the Parliament as per Article 142(b) of the Constitution and in no way take away or abridge any of the fundamental rights in terms of Article 8(2) of the Constitution.

The mode of holding the elected representatives accountable for the offences of corruption and corrupt practices through criminal prosecution has not been provided by the Constitution but by the sub constitutional laws - the P.P.C., the PCA and the NAB Ordinance. If Parliament can enact these laws in the exercise of its ordinary legislative power, it can surely amend them in the exercise of the same legislative power. The argument cannot be acceded to that Parliament after enacting these laws has no power to amend, modify or repeal them.

The counsel for the petitioner could not explain how the right to accountability of the elected holders of public offices through criminal prosecution under the NAB Ordinance is an integral part of the fundamental rights to life, dignity, property and equality or how it partakes of the same basic nature and character as the said fundamental rights so that the exercise of such right is in reality and substance nothing but an instance of the exercise of these fundamental rights. Nor could he establish that the "direct and inevitable effect" of the challenged amendments constitutes an infringement of these fundamental rights. The "effect" of the challenged amendments on these fundamental rights portrayed by him is so "remote and uncertain" that if such effect is accepted as an infringement of the fundamental rights then there would hardly be left any space and scope for Parliament to make laws on any subject; as all laws enacted by Parliament would "ultimately" reach any of the fundamental rights, particularly rights to life or property, in one way or the other through such a long winding conjectural path of farfetched "in turn" effects. Constitutional petition was dismissed.

Corruption in Hajj Arrangements' case 2010 PLD 2011 SC 963 and Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109 distinguished.

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

----S. 21---Public servant---Scope---Every officer remunerated by the fees or commission for the performance of any public duty is a public servant under Section 21, P.P.C., irrespective of the fact whether the fee is paid by the Government or by any other public body or by an Act of Parliament under the Constitution.

Henly v. Mayor of Lyme (1928) 5 Bing 91 and R v. Whittaker (1914) 3 KB 1283 ref.

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

----S. 21---Prevention of Corruption Act (II of 1947), Ss. 2 & 5---Public servant---Scope---Member of Parliament---To fall within the scope of the definition of "public servant" a person should be an officer; he should perform any public duty; and he should be remunerated by fees or commission for the performance of that public duty---Member of Parliament is "holder of an office" and is thus an "officer" within the meaning and scope of this term used in clause ninth of Section 21, P.P.C.---Person in his position as a member of Parliament does perform a "public duty"---Furthermore a member of Parliament is, remunerated by fees (salary and allowances) for the performance of public duties---Member of Parliament, thus, fulfills all the three conditions to fall within the scope of the definition of "public servant" provided in the second limb of the latter part of clause ninth of Section 21, P.P.C., and is, therefore, triable as a "public servant" for the alleged commission of an offence of corruption and corrupt practices (criminal misconduct) under the Pakistan Penal Code, 1860 and the Prevention of Corruption Act, 1947.

McMillan v. Guest (1942) AC 561; Shorter Oxford English Dictionary, 6th ed., p. 1988; G.W. Railway Co. v. Bater [1920] 3 KB 266; G.W. Railway v. Bater [1922] 2 AC 1; Kanta Kathuria v. Manakchand Surana AIR 1970 SC 694; American Jurisprudence, 2nd ed. Vol. 63A, p. 667; Grahm Zellic, Bribery of Members of Parliament and the Criminal Law, Public Law (1979) 31 at p. 37; L.K. Advani v. C.B.I. 1997 Cri.LJ 2559; Anti Corruption Commission v. Shahidul Islam (6 SCOB [2016] AD 74; R v. Boston [1923] HCA 59; Narsimha Rao v. State AIR 1998 SC 2120; The Members of Parliament (Salaries and Allowances) Act, 1974; R v. Postmaster-General (1876) 1 QBD 663; National Embroidery Mills Ltd. v. Punjab Employees' Social Security Institution 1993 SCMR 1201; Accountant General, Bihar v. N. Bakshi AIR 1962 SC 505; Khurshid Soap and Chemical Industries v. Federation of Pakistan PLD 2020 SC 641; Abul Monsur v. State PLD 1961 Dacca 753; Mujibur Rahman v. State PLD 1964 Dacca 330; Emperor v. Sibnath Banerji AIR 1945 PC 156 and Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1953 SC 394 ref.

(k) Constitution of Pakistan---

----Art. 184(3)---Legislation---Judicial review---Scope---Courts cannot force the legislature to act upon their recommendations nor can they strike down any law competently enacted by the legislature which does not commensurate with their recommendations.

(l) Constitution of Pakistan---

----Art. 175(3)---Trichotomy of power, principle of---Scope---Constitution of Pakistan is based on the principle of trichotomy of power in which legislature, executive and judiciary have their separately delineated functions---Legislature is assigned the function to legislate laws, the executive to execute laws and the judiciary to interpret laws---None of these three organs are dependent upon the other in the performance of its functions nor can one claim superiority over the others---Each enjoys complete independence in their own sphere and is the master in its own assigned field under the Constitution---Any one of these three organs cannot usurp or interfere in the exercise of each other's functions, nor can one encroach upon the field of the others---This trichotomy of power is so important that it is said to be a basic feature of the Constitution, a cornerstone of the Constitution, a fundamental principle of the constitutional construct, and one of the foundational principles of the Constitution.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Registrar, SCP v. Wali Muhammad 1997 SCMR 141; Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Government of KPK v. Saeed-Ul-Hassan 2021 SCMR 1376; Jurists Foundation v. Federal Government PLD 2020 SC 1; Dossani Travels v. Travels Shop PLD 2014 SC 1 and Mamukanjan Cotton Factory v. Province of Punjab PLD 1975 SC 50 ref.

(m) Legislation---

----Legislative power of Parliament---Scope---Doctrines of exhaustion and functus officio---Not applicable---What Parliament has done, Parliament can undo---Legislative power of Parliament does not exhaust by enactment of any law nor does Parliament become functus officio by making a law, on a particular subject---Doctrines of exhaustion and functus officio are not applicable to legislative powers---Legislature that has made any law is competent to change, annul, re-frame or add to that law---Even the legislature of today cannot enact a law, whereby the powers of a future legislature or of its own to amend a law are curtailed.

M.P. High Court Bar Association v. Union of India AIR 2005 SC 4114; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.

(n) Constitution of Pakistan---

----Part.II, Chapt. 1---Fundamental rights, interpretation of---Progressive, liberal and dynamic approach---Fundamental rights guaranteed in the Constitution, an organic instrument, are not capable of precise or permanent definition delineating their meaning and scope for all times to come---With the passage of time, changes occur in the political, social and economic conditions of the society, which requires re-evaluation of their meaning and scope in consonance with the changed conditions---Therefore, keeping in view the prevailing socio-economic and politico-cultural values and ideals of the society, the courts are to construe the fundamental rights guaranteed in the Constitution with a progressive, liberal and dynamic approach---But this does not mean that the judges are at liberty to give any artificial meaning to the words and expressions used in the provisions of the fundamental rights, on the basis of their subjective ideological considerations---Progressive, liberal and dynamic approach in construing fundamental rights guaranteed in the Constitution must be guided by an objective criterion, not by subjective inclination.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(o) Constitution of Pakistan---

----Part.II, Chapt. 1---Fundamental rights---New rights---Objective criterion for recognizing new rights as fundamental rights---Objective criterion in such regard is to see whether the claimed right is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right---Right is an integral part of a named fundamental right which gives life and substance to the named fundamental right.

Maneka Gandhi v. Union of India AIR 1978 SC 597 and Griswold v. Connecticut (1965) 381 US 479 ref.

(p) Constitution of Pakistan---

----Art. 184(3)---Legislation---Judicial review---Scope---Locus standi of a Parliamentarian to challenge the constitutional validity of an Act of Parliament---Parliament is a constitutional body, but being comprised of the chosen representatives of the people of Pakistan it attains the status of a prime constitutional body---Any action made or decision taken by the majority of a constitutional body is taken to be and treated as an action or decision of that body as a whole comprising of all its members, not only of those who voted for that action or decision---Any member of a constitutional body who was in the minority in making that decision can not challenge the validity of that decision in court---Principle that decisions taken by a majority of members in a constitutional body (like a parliament or legislature) usually cannot be directly challenged in court by those in the minority is rooted in the doctrine of parliamentary sovereignty and the separation of powers---Democratic systems are often built on the principle of majority rule; this ensures that decisions reflect the will of the majority while still respecting the rights of the minority---Allowing minority members to easily challenge majority decisions would undermine this fundamental democratic principle.

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

----Ss. 9 & 10---Prevention of Corruption Act (II of 1947), Ss. 2 & 5---Judges of the constitutional courts and Members of the Armed Forces---Accountable and fully liable under the National Accountability Ordinance, 1999 and the Prevention of Corruption Act, 1947, like any other public servant of Pakistan.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

For Petitioner(s)/Applicant(s)

Khawaja Haris Ahmad, Senior Advocate Supreme Court and Dr. Yasir Aman Khan, Advocate Supreme Court.

Assisted by:

Isaam Bin Haris, Ms. Zaynib Chaudhary, Muhammad Hashim Waqar, Advocates.

Barrister Faiza Asad, Advocate.

Muhammad Shoaib Ilyas, Advocate.

For Federation/Respondent No.1.

Muhammad Makhdoom Ali Khan, Senior Advocate Supreme Court.

Anis Muhammad Shahzad, Advocate-on-Record.

Assisted by:

Saad Muhammad Hashmi, Advocate.

Umair Muhammad Malik, Advocate and Kh. Aizaz Ahsan, Advocate.

Yawar Mukhtar, Advocate.

Kh. Azeem Armaghan, Advocate.

Waqar Umar Farooq, Advocate.

Ch. Aamir Rehman, Addl. AGP, Malik Javed Iqbal Wains, Addl. AGP and Raja Shafqat Abbasi, DAG.

For NAB/Respondent No.02:

Mumtaz Yousf, Addl. Prosecutor General.

Muhammad Sattar Awan, Deputy Prosecutor General.

Qazi Babar Irshad, Special Prosecutor General.

Barrister Syeda Jugnu Kazmi, Special Prosecutor General.

P L D 2024 Supreme Court 192

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

MUKHTAR AHMAD ALI---Petitioner

Versus

The REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD and another---Respondents

Civil Petition No. 3532 of 2023, decided on 16th October, 2023.

(On appeal against the judgment dated 13.06.2023 passed by the Islamabad High Court, Islamabad in I.C.A. No. 190 of 2023).

Per Qazi Faez Isa, CJ.; Amin-ud-Din Khan, J. agreeing; Athar Minallah, J. also agreeing but with his separate opinion.

(a) Supreme Court Rules, 1980---

----O. III, R. 1---Registrar of Supreme Court, powers of---Registrar initiating litigation on behalf of the Supreme Court without approval from the latter---Not permissible---Supreme Court Rules, 1980 ('the Rules') provide that the Registrar is the 'executive head of the office and shall exercise such powers as assigned to him'---Said Rules do not grant to the Registrar the specific power to initiate litigation and though the Chief Justice may assign 'any function required by the Rules to be performed by the Registrar', the Rules do not require, nor envisage, initiating litigation---Therefore, the Registrar could not be given this responsibility nor could he undertake it.

Registrar Supreme Court of Pakistan v. Hassan Akbar 1987 PCr.LJ 1321 and Registrar Supreme Court of Pakistan v. Qazi Wali Muhammad 1997 SCMR 141 distinguished.

(b) Right of Access to Information Act (XXXIV of 2017)---

----S.2(ix)---Constitution of Pakistan, Art. 19A---Public body---Scope---Supreme Court of Pakistan---Right of Access to Information Act, 2017 ('the Act') applies only to public bodies as defined in section 2(ix) of the Act and this definition does not include the Supreme Court of Pakistan---However, the Supreme Court is not excluded from the purview of Article 19A of the Constitution, and information of 'public importance' can be sought thereunder---Article 19A stipulates that information be provided subject to regulation and reasonable restrictions imposed by law---However, there is no law which attends to the Supreme Court in this regard nor has the Supreme Court itself made any regulations---If a law is enacted and/or regulations made, requests for information would be attended to in accordance therewith and in accordance with Article 19A of the Constitution.

(c) Constitution of Pakistan---

----Art. 19A---Right to information---Scope---What previously may have been on a need-to-know basis Article 19A of the Constitution has transformed it to a right-to-know---Burden has shifted from those seeking information to those who want to conceal it---Access to information is no longer a discretion granted through occasional benevolence, but is now a fundamental right available with every Pakistani which right may be invoked under Article 19A of the Constitution---Access to information secures the well-being of the people.

NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978); The World's Right to Know' Thomas Blanton, Foreign Policy No. 131 (Jul-Aug 2002), pp. 50-58; Tara Vishwanath, Daniel Kaufman, The World Bank Research Observer, Vol. 16, No. 1, pp. 41-57 and Ibn Qayyim al-Jawziyah, I 'lam al-Muwaqqi 'in 'an Rabb al-'Alamin (Beirut: Dar al-Kutub al-'Ilmiyyah, 1991), vol. 2, p. 133 ref.

(d) Constitution of Pakistan---

----Art. 19A---Right to information---Scope---Information about staff members, vacancies, and Service Rules of the Supreme Court of Pakistan---Details of such information sought by the petitioner and the consequent directions issued by the Supreme Court stated.

The petitioner addressed a letter to the Registrar of the Supreme Court and sought the following information:

i) Total sanctioned strength of staff members of Supreme Court of Pakistan (categories-wise) against different positions/pay-scales i.e. from pay scale 1 to 22 (category-wise).

ii) Total vacancies in the Supreme Court of Pakistan against different pay-scales/positions (category-wise); and dates since which these positions have been lying vacant.

iii) Number of staff members who are not regular but have been engaged on daily-wages basis or through short-term or long-term contracts against various positions/pay-scales (category-wise).

iv) Number and types of positions created a new since January 1, 2017.

v) Total number of female staff members (category-wise) against various positions/pay-scales. The response may distinguish between the short-term/temporary staff members and regular ones.

vi) Total number of persons with disabilities working with Supreme Court of Pakistan against various positions/pay-scales (category-wise). The response may distinguish between the short-term/temporary staff members and regular ones.

vii) Total number of transgender persons working with Supreme Court of Pakistan against various positions/pay-scales (category-wise). The response may distinguish between the short-term/temporary staff members and regular ones.

viii) A certified copy of the latest approved Service Rules of the Supreme Court of Pakistan.

Article 19A of the Constitution envisages the placing of reasonable restrictions on the provision of information, but refusing to provide information is to be justified by the person, authority or institution withholding it. In the present case, there is no reason why the information sought by the petitioner should not be provided, nor can the provision of such information be categorized as being contrary to the public interest. Consequently, the information sought by the petitioner should have been provided to him. Petition for leave to appeal was converted into an appeal and allowed and the Registrar of the Supreme Court was directed to provide the information sought by the petitioner within seven days. The office was also directed to refund to the petitioner the court fee paid by him on present petition and on the intra-court appeal filed in the High Court.

Per Athar Minallah, J.; agreeing with Qazi Faez Isa, CJ. but with his own separate opinion.

(e) Constitution of Pakistan---

----Art. 19A---Right to information---Scope---Article 19A of the Constitution guarantees to every citizen the fundamental right of having access to information in all matters of public importance---Exercise of this right is subject to regulation and reasonable restrictions imposed by law---Expression 'subject to regulation and reasonable restrictions' does not and cannot confer competence upon the legislature to abridge, impair, restrict or curtail the scope of the constitutionally guaranteed right by granting outright or indiscriminate exclusion to a public entity---Right under Article 19A is related to access to information in all matters of public importance, including information regarding public bodies.

(f) Right of Access to Information Act (XXXIV of 2017)---

----S.2(ix)---Constitution of Pakistan, Art. 19A---Public body---Scope---Supreme Court of Pakistan---Plain reading of the Right of Access to Information Act 2017 ('Act of 2017') shows, prima facie, that the Supreme Court has not been expressly excluded from the definition of 'public bodies' under section 2 (ix) of the Act---Parliament while promulgating the Act of 2017 could not have intended to take away or abridge the right under Article 19A by an outright and indiscriminate exclusion of the Supreme Court and thus barring a citizen from having access to information relating to its activities of public importance---It appears that the Supreme Court has not been expressly excluded from the purview of the exercise of the right of a citizen under Article 19A---Any interpretation of the Act of 2017, having the effect of giving immunity to the Supreme Court from the exercise of the right of a citizen to have access to information would amount to abridging and taking away a constitutionally guaranteed right---In such an eventuality and to such an extent the Act of 2017 would be void because of inconsistency with a fundamentally guaranteed right---On the touchstone of the principles of presumption of constitutionality and saving the law from being declared void, the Act of 2017 ought to be construed as not granting impunity to the Supreme Court nor barring a citizen to exercise the right to have access to information---No citizen should walk away from the Supreme Court perceiving the refusal to entertain a request for access to information as concealment or suppression of public information---Internal regulations, information relating to human resource, privileges and perks enjoyed by judges and the employees, the budget allocated to the Supreme Court and its expenditure are some of the areas that are matters of public importance and thus of interest to the citizens---There is no reason for the Supreme Court to refuse a request of access to information unless it falls within the exceptions described under the Act of 2017---It is critical that the Act of 2017 is rigorously implemented and followed by the administration of the Supreme Court because it enforces the right under Article 19A of the Constitution even though it does not expressly apply to it---To repose the peoples' trust, the Supreme Court has to adopt the principle of proactive disclosure of information by placing all the information of matters relating to public importance on its website or displaying it through other means---Supreme Court has to set an example for others by proactively disclosing information, rather be seen as withholding information and thus infringing a guaranteed fundamental right. [Minority view]

(g) Constitution of Pakistan---

----Art. 19A---Right of access to information---Significance---Right of access to information is a bulwark against corruption and corrupt practices---It enables the citizen to know how they are being served and how the resources that belong to them are being utilized and spent---It empowers the citizens and promotes democratic values and participatory governance.

Petitioner in person.

Respondent No. 1 in person

Mansoor Usman Awan, Attorney-General and Ch. Aamir Rehman, Addl. A.G.P. on Court's call.

P L D 2024 Supreme Court 207

Present: Sardar Tariq Masood, A.C.J. Syed Mansoor Ali Shah and Athar Minallah, JJ

GUL KHAN and others---Petitioners

Versus

SAEED UR REHMAN and others---Respondents

Civil Petition No. 4305 of 2023, decided on 18th December, 2023.

(Against the order of the Balochistan High Court, Quetta, dated 12.12.2023, passed in C.P. No. 2010 of 2023).

Elections Act (XXXIII of 2017)---

----Ss. 57(2), 17 & 19---Constitution of Pakistan, Art. 17---General Elections, 2024---Delimitation of constituencies, dispute over---Proportionality, principle of---High Court interfering with the delimitation order of the Election Commission of Pakistan about three days before notification of the Election Programme of the General Elections, 2024---Propriety---Principle of proportionality and the concept of the larger good demand that general elections be given primacy, and issues concerning the delimitation of constituencies, while important, should be addressed subsequent to the elections---Such an approach ensures the continuity of democratic governance and upholds the fundamental rights of the electorate, while still acknowledging the need for eventual and necessary adjustments in constituency boundaries.

In democratic systems general elections are the cornerstone of representative governance, ensuring the people's right to choose their leaders and influence policy decisions. The periodic conduct of these elections is not merely a procedural necessity but a fundamental principle upholding the democratic ethos. On the other hand, the delimitation of a constituency, although significant for ensuring fair and effective representation, does not hold the same immediacy or overriding importance as the conduct of general elections. Delimitation, by its nature, is a detailed and often prolonged exercise, aimed at creating constituencies that reflect current demographic realities. While this is undoubtedly important for the health of a democratic system, it is not so critical that it should impede the timely conduct of general elections. In applying the principle of proportionality, it becomes evident that the larger good - the uninterrupted continuation of democratic processes and the assurance of the people's right to government formation - takes precedence. Postponing general elections to address constituency delimitation could lead to a vacuum in governance and a potential crisis of legitimacy. Such a situation would be antithetical to the principles of democracy and the larger good of the populace. Therefore, the principle of proportionality and the concept of the larger good demand that general elections be given primacy. Issues concerning the delimitation of constituencies, while important, should be addressed subsequent to the elections. This approach ensures the continuity of democratic governance and upholds the fundamental rights of the electorate, while still acknowledging the need for eventual and necessary adjustments in constituency boundaries. Therefore, if the Supreme Court proceeds to adjudicate upon the present issue of delimitation of two constituencies thereby re-examining or altering the notified constituencies by the Election Commission of Pakistan ("ECP") under challenge, the Court will invariably upset the timeline of the Election Programme and derail the electoral process already set afoot by the Election Programme announced on 15 December, 2023.

Supreme Court Bar Association v. Federation of Pakistan PLD 2024 SC 1 ref.

Applying the scale of proportionality, the constitutional importance of holding of General Elections in a constitutional democracy as per the Election Programme far outweighs the need for re-examining the delimitation of a constituency at this critical electoral juncture. Any intervention by the Supreme Court in revisiting the contours of delimitation of a constituency done by the ECP at this stage will open floodgates of similar litigation, resulting in choking the election process. Therefore, proceeding with the present case at this stage when the electoral clock has started ticking, would undermine democracy and adversely affect the fundamental right to vote and form a political government of millions of voters and political workers countrywide. The importance of elections in a democracy and the fulfillment of the larger objective of holding a timely election should be given due consideration to ensure that the Court remains within its democratic remit, which in the present case necessitates organizing and conducting of free, fair and timely elections by the ECP.

In the present case, the holding of timely elections in the two constituencies is more important than insisting upon otherwise proper delimitation thereof. Therefore, it is best that the court lays its hands off this matter for the time being till the General Elections are successfully completed. Supreme Court suspended the operation of the impugned order and granted leave to appeal to consider inter alia the question: whether in the circumstances of the case, the judicial intervention by the High Court with the delimitation order of the ECP, in its discretionary jurisdiction under Article 199 of the Constitution, was justified. Supreme Court directed that the ECP shall organize and conduct the election in the two constituencies as per the final delimitation notified on 30 November 2023 and in accordance with the Election Programme notified on 15 December 2023; that the controversy as to the delimitation of the two constituencies shall be decided after the elections, only for the purpose of future general elections if conducted on the basis of the population census of 2023; and that Office shall fix this case for hearing after the General Elections, 2024 are over.

Afnan Karim Kundi, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Adeel Aftab, Advocate for Petitioners.

Kamran Murtaza, Sr. Advocate Supreme Court for Respondent No. 1.

Taimoor Aslam Khan, Advocate Supreme Court, Masoom Khan Kakar, Advocate Supreme Court and M. Amir Malik, Advocate-on-Record for Respondent No.3.

Muhammad Arshad, DG (Law), ECP., Khurram Shahzad, ADG (Law), ECP and Falak Sher, Legal Consultant, ECP for Respondents Nos. 5-8.

P L D 2024 Supreme Court 212

Present: Qazi Faez Isa, C.J., Sardar Tariq Masood, Syed Mansoor Ali Shah, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

REFERENCE NO. 1 OF 2011

[Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution]

Constitution of Pakistan---

----Art. 186---Reference by the President under Article 186 of the Constitution to revisit the cases of Zulfiqar Ali Bhutto reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Directions issued by the Supreme Court in the present matter provided.

Supreme Court after appointing several amici curiae to attend to the constitutional and legal aspects of the present matter directed that the first and foremost constitutional and legal points, in addition to those recorded in the previous order dated 21 April 2011, reported as Reference No.1 of 2011: In re (2011 SCMR 962) that require consideration are:

(i) Whether the Presidential Reference is maintainable under Article 186 of the Constitution;

(ii) Whether the Presidential Reference requires a factual inquiry, and if so, whether under Article 186 of the Constitution an opinion can be given in this regard;

(iii) The constitutional/legal position of the trial and appeal, and its credibility/legitimacy when the person being tried was removed from power by a usurper who himself assumed power and then launched the prosecution of Mr. Bhutto in a criminal case which was filed as 'untraced'; and

(iv) Were certain judge(s) removed from the trial and/or hearing the appeal to secure a particular result.

Supreme Court further directed that with regard to the criminal law aspects of the present matter the amici curiae may assist on the following:

(i) If, and when, can a murder trial be conducted by the High Court, and to cite local and international precedents;

(ii) Was the murder-trial being conducted by the High Court objected to, and if it was, how was the objection attended to;

(iii) The consequences, if any, of departing from the usual mode of trial;

(iv) The admissibility or otherwise of a confessional statement of an approver and to what extent can it be used against a co-accused;

(v) Was there any legal bias, and if so its effects; and

(vi) What were the facts leading to reopening the investigation, and was it because fresh evidence had been discovered or was it on account of the usurper securing his position.

Supreme Court issues notices to a certain television channel to provide unedited-complete recording of the interview of a Judge who was on the Bench of the Supreme Court which decided the appeal and review in the present matter, and any other interview which it may have with any other Judge who had conducted the trial or the appeal of Mr. Zulfiqar Ali Bhutto.

In Attendance:

On behalf of President:

Mansoor Usman Awan, Attorney-General for Pakistan with Javed Iqbal Wains, Additional Attorney-General for Pakistan.

On Court Notice:

Hassan Akbar, Advocate-General, Sindh, Ayaz Swati, Addl. A.G., Balochistan, Sultan Mazhar Sher Khan, Addl A.G., Khyber Pakhtunkhwa.

For Applicant:

Farooq H. Naek, Sr. Advocate Supreme Court with Bilawal Bhutto Zardari (in C.M.A. No. 8622 of 2018).

Amicus Curiae

Ali Ahmed Kurd, Advocate Supreme Court.

For the Complainant

Ahmed Raza Kasuri.

P L D 2024 Supreme Court 218

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

C.A. No. 538 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi

and another---Appellants

Versus

AKHTAR ULLAH KHAN KHATTAK and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No. 5567-P of 2019).

C. M.A. No. 9963 of 2021 in C.A. No. 538 of 2022 (Stay Application)

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

AKHTAR ULLAH KHAN KHATTAK and others---Respondents

C.A. No. 539 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

ASHFAQ AHMAD and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 5680- P/2019).

C.A. No. 540 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

MUHAMMAD SAEED BUTT and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No.5885- P of 2019).

C.A. No. 541 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi

and another---Appellants

Versus

KHURSHID ANWAR and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 141-P of 2020).

C.A. No. 542 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi

and another---Appellants

Versus

MUHAMMAD YASIR KHATTAK and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No.1867-P of 2020).

C.A. No. 799 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

Mst. DILSHAD BEGUM and others---Respondents

(Against the order dated 22.01.2019 passed by the Peshawar High Court, Peshawar in W.P. No.191-P of 2017).

C. M.A. No. 3083 of 2019 in C.A. No. 799 of 2022 (Stay Application)

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

Mst. DILSHAD BEGUM and others---Respondents

C.A. No. 2025 of 2022

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Rawalpindi and another---Appellants

Versus

MUHAMMAD YASIR KHATTAK and others---Respondents

(Against the order dated 22.01.2019 passed by the Peshawar High Court, Peshawar in W.P. No. 869-P of 2019).

C.P. No. 396-P of 2021

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

AKHTAR ULLAH KHAN KHATTAK and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P No.5567-P of 2019).

C.M.A. No. 667-P of 2021 in C.P. No. 396-P of 2021

(Stay Application)

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

AKHTAR ULLAH KHAN KHATTAK and others---Respondents

C.P. No. 397-P of 2021

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

ASHFAQ AHMAD and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No.5680-P of 2019).

C.M.A. No. 668-P of 2021 in C.P. No. 397-P of 2021

(Stay Application)

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

ASHFAQ AHMAD and others---Respondents

C.P. No. 398-P of 2021

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

MUHAMMAD SAEED BUTT and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 5885-P of 2019).

C.M.A. No. 669-P of 2021 in C.P. No. 398-P of 2021

(Stay Application)

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

MUHAMMAD SAEED BUTT and others---Respondents

C.P. No. 399-P of 2021

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

KHURSHID ANWAR and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 141-P of 2020).

C.M.A. No. 670-P of 2021 in C.P. No. 399-P of 2021

(Stay Application)

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

KHURSHID ANWAR and others---Respondents

C.P. No. 400-P of 2021

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

MUHAMMAD YASIR KHATTAK (ADVOCATE) and others---Respondents

(Against the order dated 10.06.2021 passed by the Peshawar High Court, Peshawar in W.P. No. 1867-P of 2020).

C. M.A.671-P of 2021 in C.P. No. 400-P of 2021

(Stay Application)

DEPUTY COMMISSIONER, NOWSHERA and others---Appellants

Versus

MUHAMMAD YASIR KHATTAK (ADVOCATE) and others---Respondents

C.P. No. 4517 of 2019

GOVERNMENT OF PAKISTAN through Secretary Ministry of Defence Islamabad and another---Appellants

Versus

SHAH SAUD and others---Respondents

(Against the order dated 24.09.2019 passed by the Peshawar High Court, Peshawar in W.P. No. 1163-P of 2019).

C.A. No. 538 of 2022, C.M.A. No. 9963 of 2021 in C.A. No. 538 of 2022, C.A. No. 539 of 2022, C.A. No. 540 of 2022, C.A. No. 541 of 2022, C.A. No. 542 of 2022, C.A. No. 799 of 2022, C.M.A. No. 3083 of 2019 in C.A. No. 799 of 2022, C.A. No. 2025 of 2022, C.P. No. 396-P of 2021, C.M.A. No. 667-P of 2021 in C.P. No. 396-P of 2021, C.P. No. 397-P of 2021, C.M.A. No. 668-P of 2021 in C.P. No. 397-P of 2021, C.P. No. 398-P of 2021, C.M.A. No. 669-P of 2021 in C.P. No. 398-P of 2021, C.P. No. 399-P of 2021, C.M.A. No. 670-P/ 2021 in C.P. No. 399-P of 2021, C.P. No. 400-P of 2021, C.M.A. No. 671-P of 2021 in C.P. No. 400-P of 2021 and C.P. No. 4517 of 2019, decided on 14th December, 2023.

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

----Ss. 4, 16, 17& 48---General Clauses Act (X of 1897), S. 21---Acquisition of land, withdrawal from---Power of the Commissioner to withdraw from acquisition of any land---Scope---Power of the Commissioner to withdraw from the acquisition of any land is unfettered till possession has been taken---As such, the Land Acquisition Act, 1894, contemplates that once possession has been taken, acquisition is complete, and the Commissioner can no longer exercise the power to withdraw---Possession must be actual possession of the land, as all interests in the land are sought to be acquired; there can be no question of taking "notional" or "symbolical" possession, nor would possession merely on paper be enough---Possession ought to be either under Section 16 or 17 of the Land Acquisition Act, 1897---It is implicit that after possession has been taken, the land is vested in the Government, and the notifications issued prior to it cannot be cancelled under Section 21 of the General Clauses Act, 1897.

Messrs Dewan Salman Fiber Ltd. and others v. Government of NWFP through Secretary Revenue Department Peshawar and others PLD 2004 SC 441; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Farzand Begum and others 2022 SCMR 1383; Lt. Governor of Himachal Pradesh and another v. Sri Avinash Sharma AIR 1970 SC 1576 and B.N Bhagde v. M.D. Bhagwat AIR 1975 SC 1767 ref.

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

----Ss. 4, 11 & 48---Acquisition of land, withdrawal from---Acquiring department after taking possession seeking to withdraw from the acquisition on the ground that the department did not have the funds to make payment---Legality---As a result of the award, the possession of the land was obtained from the landowners, which was confirmed by the record of rights for the year 1999, which reflected the acquiring department as the owner of the land---Land had been absolutely vested with the acquiring department of the Government since 1999---Since the appellants/petitioners had taken possession of the land in pursuance of the award under Section 11 of the Land Acquisition Act, 1894, the acquisition had become past and closed, denuding the Commissioner of the right to withdraw, rescind, recall or amend any notification regarding the acquisition---Therefore, he could not rely on Section 48 merely because the acquiring department had no funds to pay for the compensation---Land Acquisition Act, 1894, did not allow such grounds of withdrawal from the acquisition of land once possession was obtained---Landowners could not be left in a quandary; they could not be expected to wait indefinitely, as the Government had acquired their valuable right to the immovable property---If the Government or its acquiring department did not have the funds, it should have made up its mind quickly and that too before taking possession and told the landowners where they stood---Land acquisition process started in 1977 and was delayed due to ineptitude and negligence of the appellants/petitioners---Since then, the landowners had been struggling to get their legitimate rights---Impugned notification under Section 48(1) of the Act by which the acquisition was withdrawn could not be held to be bona fide; rather, it was invalid, illegal and without jurisdiction and would be construed as a clever ploy on the part of the appellants/petitioners to deceive the landowners---High Court had rightly set-aside the impugned notification - Matters were disposed of accordingly.

For the Appellant(s)/

Applicant(s)/Petitioner(s)

Malik Javed Iqbal Wains, Addl. A.G.P., Saad Rasool, Advocate (in C.M.A. No. 9420 of 2023).

Ms. Ammara Ammar, MEO.

Arif Mehmood, Survey Officer, MEO.

For the Respondent(s)

Muhammad Yasir Khattak, Advocate Supreme Court.

Sh. Mahmood Ahmad, Advocate-on-Record.

Muhammad Saad Butt, Advocate in person.

Ashfaq Ahmad, in person.

For Government of KPK

Zahid Yousaf Qureshi, Advocate-on-Record.

P L D 2024 Supreme Court 230

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Ayesha A. Malik, JJ

Messrs FUN INFOTAINMENT (PVT.) LIMITED/ NEO T.V., LAHORE ---Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through its Chairman, Islamabad and others---Respondents

Civil Petition No.5438 of 2021, decided on 15th June, 2023.

(Against judgment dated 30.06.2021 passed by the Lahore High Court, Lahore in FAO No.32274 of 2021).

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

----Ss. 13, 26 & 29(6)---Delegation of powers of Pakistan Electronic Media Regulatory Authority (PEMRA) to Chairman PEMRA---Scope and principles---Council of Complaints ("COC")---Whether the Chairman PEMRA had the authority to approve the recommendations of the COC---Held, that as the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') gives discretion to PEMRA to delegate its powers, responsibilities or functions subject to conditions imposed by rules and the power to make rules is conferred on PEMRA, the validity of the exercise of discretion will be judged by the same principles as the exercise of any other administrative discretion---Any rules delegating PEMRA's powers, responsibilities or functions must meet the test of reasonableness and non-arbitrariness -- Act of delegation must align with the statutory purpose---PEMRA while delegating a power, responsibility or function shall not exercise the discretion of delegation in a manner that distorts the purpose of the statutory scheme---Conditions accompanying such delegation should possess rationality---Furthermore, the determination of the suitable recipient for delegation primarily rests within the purview of PEMRA---Nevertheless, it is imperative that the selection be not characterized by irrationality, as any instance of improper delegation shall be a matter for the courts to decide---Power to impose fine, which was the recommended action in the present case, resides in Section 29(6) of the Ordinance and belongs to PEMRA---It follows that the COC is to place its recommendation before PEMRA and the power to impose fine vests in PEMRA---In the instant case, PEMRA has placed reliance on a decision taken in a meeting held on 31.07.2007 wherein the powers to approve the minutes of meeting of the COC in terms of Section 26 of the Ordinance was delegated to the Chairman PEMRA [Notification No. PEMRA-1(2)/Secy.2007-44 dated 01.09.2007]---Delegation could only be in terms of, and subject to, legally relevant and sustainable conditions imposed by rules---No rules have been framed whereby the authority to approve the recommendation of the COC has been delegated to the Chairman PEMRA---What PEMRA has done in its meeting dated 31.07.2007 has been to delegate the power in the very terms in which it was given to PEMRA to the Chairman PEMRA specifying no standards and leaving everything in the Chairman PEMRA's discretion---Public bodies in whom discretion is vested are under an obligation to confine and structure it by the promulgation of decisional criteria so as to strike the best balance in the context between rules and discretion---In the present case the Chairman PEMRA did not have any validly delegated authority to approve the recommendation of the COC---Petition for leave to appeal was converted into appeal and allowed.

PEMRA v. Pakistan Broadcasters Association 2023 SCMR 1043; Harry Woolf and others (eds), De Smith's Judicial Review (8th Edn., Sweet and Maxwell 2018) 331; Fazal Karim, Judicial Review of Public Actions (2nd edn, Pakistan Law House 2018) Vol 3, 1824 and Harry Woolf and others (eds), De Smith's Judicial Review (8th Edn., Sweet and Maxwell 2018) 335 ref.

Barrister Afzal Hussain, Advocate Supreme Court and Muhammad Talha, Advocate High Court for Petitioner(s).

Barrister Haris Azmat, Advocate Supreme Court, Barrister Syed Ali Asghar, Law Officer, Mohsin Hameed Dogar, Director Regulations and Tahir Farooq Tarrar, Head Legal for Respondent(s).

Hassan Riaz, Research Officer, SCRC, Research Assistance.

P L D 2024 Supreme Court 235

Present: Umar Ata Bandial, H.C.J., Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Ex. Col. MUHAMMAD AZAD MINHAS and another---Appellants/Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others---Respondents

Civil Appeal No. 1191 of 2016 and Constitution Petition No. 18 of 2000, decided on 12th September, 2023.

(On appeal against the judgment dated 20.05.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 1146 of 2010).

(Constitution Petition filed to challenge the conviction of the petitioner by the Field General Court Martial).

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

----S. 111(5)---Pakistan Army Act Rules, 1954, Rr. 21(4) & 51(7) & 51(8)---Criminal Procedure Code (V of 1898), Ss. 236 & 237---Principal charge/offence under the Pakistan Army Act, 1952 not proved---Conviction for an alternative charge/offence---Legality---Whether an accused person under the Pakistan Army Act, 1952 can be convicted for an alternative charge/offence in case the principal charge/offence is not proved---Held, that the concept of alternative charge is not unknown in the sphere of Pakistan Army Act---Section 111(5) of the Pakistan Army Act and Rules 21(4) and 51(7) & (8) [of the Pakistan Army Act Rules, 1954] speak about the framing and punishment of an accused under alternative charge/offence---If an accused is charged with one offence but from the evidence appears to have committed a different offence for which he might have been charged under the said provisions of law, he may be convicted for the offence he is found to have committed, although he was not charged with the same---Furthermore cumulative reading of sections 236 & 237, Cr.P.C shows that if an accused is charged with one offence but from the evidence appears to have committed an alternative offence for which he might have been charged under the provisions of that section, he may be convicted for an offence which he is shown to have committed, if supported by record, although he was not charged with the same---Even this aspect is not absolute, as in absence of any alternative charge he can be convicted for any offence if it covers the ingredients of said offence---In the present case, the appellant/ petitioner were not only charged for the main offence but for the alternative charges as well, which is spelled out from bare reading of charge sheet---All courts (below) after evaluating the evidence led by the prosecution found that the main offence could not be proved against them but as there was sufficient evidence to sustain their conviction under the alternative charge, hence, they were convicted accordingly---Appeal and Constitutional petition were dismissed.

Jiand v. The State 1991 SCMR 1268 ref.

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

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Decision of Military courts---Constitutional jurisdiction of the Supreme Court and High Courts to interfere in such decision---Scope and grounds---Any order passed or sentence awarded during a Court Martial or other forums under the Pakistan Army Act, 1952, is subject to judicial review both by the High Courts and the Supreme Court only on the ground of mala fides including malice in law, without jurisdiction or coram non judice---Before invoking the jurisdiction of the Supreme Court or the High Court, the test to pass is strictly confined as to whether the order/ sentence passed during Court Martial suffers from mala fides, or is without jurisdiction or is coram non judice---In absence of any mala fide on the part of the prosecution, the conviction and sentences awarded to an accused by the Field General Court Martial cannot be stamped to be coram non judice.

(c) Equity---

----Delay in availing remedy---Effect---Delay defeats equity and equity leans in favour of the vigilant---Any person may have an enforceable right but if he fails to enforce such right within the time stipulated by law then the right becomes unenforceable.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---Availing remedy in Constitutional jurisdiction of the Supreme Court or High Courts---Limitation---Laches---Scope---Although as a general principle bar of limitation is not applicable to the proceedings under Articles 199 & 184 of the Constitution but insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches---In case the Court finds that the party invoking Constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non- suiting such person on the premise of laches.

Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413; Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 and S.A. Jameel v. Secretary to the Govt. of the Punjab 2005 SCMR 126 ref.

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

----Ss. 55 & 97---Constitution of Pakistan, Art. 13(a)---Criminal Procedure Code (V of 1898), S. 403---Army oficer dismissed from service after being convicted and sentenced under the Pakistan Army Act, 1952---Membership in housing scheme, allotment of plots and further amenity services meant for the army personnel cancelled after dismissal from service---Legality---Double jeopardy---Whether withdrawal of all such facilities fell within the ambit of 'double jeopardy'---Dismissal from service squarely takes away all the perks, privileges and amenity services from an army personnel conferred in lieu of his induction into the Pakistan Army---All these benefits are subject to service and any action contrary to service structure takes away not only perks and privileges rather the privilege of salary, pension, gratuity etc for which he was otherwise entitled---After dismissal from service, the present appellant/petitioner cannot claim any benefit as their termination was in pursuance of the defiance of the discipline and order of the institution discretely---Case of the appellant/petitioner does not fall within the ambit of Article 13 of the Constitution or section 403, Cr.P.C, hence the claim of the appellant/ petitioner that they are victims of double jeopardy is without any legal foundation---Appeal and Constitutional petition were dismissed.

Appellant/Petitioners in person (in both cases).

Sajid Ilyas Bhatti, Addl. Attorney General, Barrister Hassan Adeel, Major Haider Sultan, JAG Branch and Major Zeeshan Zaman for the State.

P L D 2024 Supreme Court 251

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

HUMAN RIGHT CASE NO. 82928 of 2018: In the matter of

Human Right Case No. 82928 of 2018, decided on 8th November, 2023.

(Application in respect of Property Dispute)

Per Qazi Faez Isa, CJ; Amin-ud-Din Khan, J. agreeing; Athar Minallah, J. also agreeing but with his own separate note.

Constitution of Pakistan---

----Arts. 10-A & 184(3)---Supreme Court Rules, 1980, O.XXV---Supreme Court (Practice and Procedure) Act (XVII of 2023), S. 2(1)---Complaint filed in Human Rights Cell of the Supreme Court---Scope---Orders passed by the Chief Justice in his chambers on such complaint---Legality---[Per Qazi Faez Isa, CJ. : Neither can the Chief Justice nor any Judge in Chamber alone can pass an order beyond what is provided for in the Supreme Court Rules, 1980---Therefore, the proceedings that the former Chief Justice undertook (in his chamber) with regard to the present matter, were not legal proceedings, and were of no legal effect---Human Rights Cell (of the Supreme Court) can only consider the complaints it receives, and if the same meet the test of Article 184(3) of the Constitution, that is, the matter is one of public importance with reference to enforcement of any of the Fundamental Rights put it up for consideration of the Chief Justice, and the Chief Justice in Chamber could only direct that it be numbered and put up for consideration in Court---However, since the promulgation of the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') the Chief Justice has lost even this power as now the Committee, under section 2(1) of the Act, comprising of the Chief Justice and the next two senior Judges, will determine whether the matter should be numbered and fixed in Court for hearing]---[Per Athar Minallah, J.: Human Rights Cell ('Cell') of the Supreme Court set up in the Supreme Court building in 2005 was not established under any law, nor did its proceedings, held by the Chief Justice in his Chambers, or orders/directions and letters issued to public bodies and organisations have any legal backing---Orders, directions and letters in the name of the Supreme Court create a wrongful impression of being judicial---Summons issued to parties and the proceedings held in the Chamber of the Chief Justice or a meeting room, rather than in open Court, are likely to infringe the right to a fair trial and due process---Human Rights Cell ('Cell') is bereft of jurisdiction or power to, directly or indirectly, perform any functions or exercise purported powers which are judicial in nature or may affect the rights of the parties in any manner---Only function that the Cell may perform is to receive representations, letters or correspondence from the general public and then place them before the Chief Justice to be dealt with under the Supreme Court Rules, 1980---Any proceedings undertaken or held by the Chief Justice or the Director General of the Cell and summons, orders, directions or letters issued pursuant thereto are declared as illegal and ultra vires the Constitution---Registrar of the Supreme Court may, therefore, restrain the Cell from undertaking any activity, proceedings or to issue summons, orders, directions and letters having no legal backing].

Azhar Iqbal v. Government of Pakistan PLD 2015 Isl. 140 ref.

Hafeez-ur-Rehman Ch., Advocate Supreme Court along with Moeez Ahmed Khan in attendance.

Ch. Aamir Rehman, Addl. Attorney-General for Pakistan, Farooq H. Naek, Senior Advocate Supreme Court and Salman Aslam Butt, Advocate Supreme Court on Court's Call.

P L D 2024 Supreme Court 256

Present: Qazi Faez Isa, C.J., Syed Mansoor Ali Shah, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Musarrat Hilali, JJ

HAMZA RASHEED KHAN and another---Appellants

Versus

ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE and others---Respondents

Civil Appeals Nos. 982, 984 of 2018, 880 of 2015, C.M.As. Nos. 6370, 7534 of 2017 in Civil Appeal No. 880 of 2015, Civil Appeal No. 1946 of 2023, Civil Petition for Leave to Appeal No. 2680 of 2023, Civil Appeal No. 981 of 2018, C.M.As. Nos. 10919, 10920, 10921, 10939 of 2023, 2, 3, 4, 5, 6, 13 and 18 of 2024 in Civil Appeal No. 981 of 2018, Civil Appeal No. 985 of 2018, C.M. Appeals Nos. 22, 135 of 2022 in C.P. Nil of 2022 and Constitution Petition No. 40 of 2022, decided on 8th January, 2024.

Per Qazi Faez Isa, CJ., Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Musarrat Hilali, JJ.; Yahya Afridi, J. dissenting [Majority view]

Constitution of Pakistan---

----Arts. 10A, 17 & 62(1)(f)---Elections Act (XXXIII of 2017), S. 232(2)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Life time disqualification under Article 62(1)(f) of the Constitution---Constitutionality---Interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution---View taken in the case reported as Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled.

Per Qazi Faez Isa, CJ., Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Musarrat Hilali, JJ [Majority view]:

i. Article 62(1)(f) of the Constitution is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.

ii. There is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder, to meet the requirements of the Fundamental Right to a fair trial and due process guaranteed by Article 10A of the Constitution.

iii. The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution.

iv. Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.

v. Until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.

vi. The view taken in Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled.

vii. Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 promulgated on 26 June 2023, prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and has also made such declaration subject to the due process of law. This provision is already in field, and there remains no need to examine its validity and scope in the present case.

Sami Ullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405 overruled.

Per Yahya Afridi, J. dissenting [Minority view]:

The extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) of the Constitution is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force. Therefore, the conclusion so drawn by the Supreme Court in Sami Ullah Baloch v. Abdul Karim Nousherwani (PLD 2018 SC 405) is legally valid, hence affirmed.

Sami Ullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405 affirmed.

For the Appellants:

M. Saqib Jilani, Advocate Supreme Court (C.As. Nos. 981 and 985 of 2018).

Kamran Murtaza, Sr. Advocate Supreme Court (in C.A. No. 982 of 2018).

Sh. Usman Karim-ud-Din, Advocate Supreme Court (in C.A. No. 984 of 2018).

M. Ahmed Qayyum, Advocate Supreme Court (in C.A. No. 880 of 2015)

Waleed Rehan Khanzada, Advocate Supreme Court (in C.A. No. 1946 of 2023)

Syed Asghar Hussain Sabzwari, Sr. Advocate Supreme Court (in C.P. No. 2680 of 2023).

Saeed Khurshid Ahmed, Advocate Supreme Court (in Const. P. No. 40 of 2022).

Syed Ali Imran, Advocate Supreme Court/Secy. SCBA, Anis Muhammad Shahzad, Advocate-on-Record (in C.M. Appeal No. 22 of 2022).

Mir Aurangzeb, Advocate-on-Record (in C.M. Appeal No. 135 of 2022).

For the Applicants:

Nemo. (in C.M.A. No. 10919 of 2023).

Ch. Akhtar Ali, Advocate-on-Record (in C.M.A. No. 10920 of 2023).

Khurram Mahmood Qureshi, Advocate Supreme Court (in C.M.A. No. 10921 of 2023).

Dil Muhammad Khan Alizai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No.10939 of 2023).

Mian Abdul Rauf, Advocate Supreme Court (in C.M.A. No. 3 of 2024).

Shoukat Hayat, Advocate Supreme Court (in C.M.A. No.4 of 2024).

M. Anwar Malik, Advocate Supreme Court/Advocate-on-Record (in C.M.A. No. 5 of 2024).

M. Makhdoom Ali Khan, Sr. Advocate Supreme Court, Saad Mumtaz Hashmi, Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Barrister Imran Khan and Hamza Azmat Khan, Advocates (in C.M.A. No. 6 of 2024).

Ch. Munir Sadiq, Advocate Supreme Court and Syed Ali Imran, Advocate Supreme Court (in C.M.A. No.18 of 2024).

For the Respondents:

Khalid Ibn-e-Aziz, Advocate Supreme Court for Respondent No.1 (in C.A. 981 of 2018).

Nemo for Respondent No.3 (in C.A. No. 982 of 2018).

Nemo for Respondent No.1 (in C.A. No. 984 of 2018).

Nemo for Respondent No.2 (in C.A. 880 of 2015).

Barrister Khuram Raza, Advocate Supreme Court for Respondent No.3 (in C.A. No. 880 of 2015).

On Court's Notice:

For the Federation

Mansoor Usman Awan, Attorney-General for Pakistan.

Ch. Aamir Rehman, Addl. AGP.

Malik Javed Iqbal Wains, Addl. AGP and Raja M. Shafqat Abbasi, D.A.G.

For Government of Punjab:

Khalid Ishaq, Advocate-General, Punjab.

Sana Ullah Zahid, Addl. A.G. Punjab.

Wasim Mumtaz, A.A.G., Punjab.

For Government of Sindh:

Hassan Akhtar, A.G. Sindh.

Suresh Kumar, A.A.G. Sindh (through video-link, Karachi).

For Government of K.P:

Amir Javed, Advocate-General and Sultan Mazhar Sher Khan, A.A.G. Khyber Pakhtunkhwa.

For Government of Balochistan:

Ayaz Khan Swati, Additional Advocate-General, Balochistan.

For Islamabad Capital Territory:

Ayaz Shaukat, Advocate-General, Isb.

For ECP:

Muhammad Arshad, D.G. (Law) ECP and

Falak Sher, Legal Consultant, ECP.

Amici Curiae:

Uzair Karamat Bhandari, Advocate Supreme Court, Faisal Siddiqi, Advocate Supreme Court and Ms. Reema Omer, who submitted amicus brief in writing.

P L D 2024 Supreme Court 262

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

Hafiz Malik KAMRAN AKBAR and others---Petitioners

Versus

MUHAMMAD SHAFI (deceased) through L.Rs. and others---Respondents

Civil Petition No. 2341-L of 2016, decided on 2nd January, 2024.

(Against the order dated 19.5.2016 passed by Lahore High Court, Lahore, in C.M. 723 of 2016 in R.S.A No. 61 of 1998).

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

----S. 12(2)---Application under section 12(2), C.P.C---Framing of issues and recording of evidence---Discretion of Court---For determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application moved under section 12(2), C.P.C., the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for framing of issues and recording of evidence, without which the allegations leveled in the application filed under Section 12(2), C.P.C. cannot be decided.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Amiran Bibi and others v. Muhammad Ramazan and others 1999 SCMR 1334 ref.

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

----S. 12(2)---Application under section 12(2), C.P.C---'Person' competent to file such an application---Scope---Person can challenge the validity of a judgment, decree, or order on plea of fraud and misrepresentation or want of jurisdiction under Subsection (2) of Section 12 C.P.C. by making an application with full particulars of the fraud and misrepresentation to the Court which passed the final judgment, decree, or order and not by a separate suit---Term "person" provided in this section cannot be interpreted narrowly to restrict its scope and application only to the judgment-debtor or his successors but it includes any person adversely affected by the judgment and decree or order of the Court without any distinction on whether he was party to the original proceedings or not.

Sardar Muhammad Ramzan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2024 Supreme Court 267

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

ELECTION COMMISSION OF PAKISTAN through Special Secretary, Islamabad---Petitioner

Versus

PAKISTAN TEHREEK-E-INSAF, ISLAMABAD through authorized person and others---Respondents

Civil Petition No. 42 of 2024, decided on 13th January, 2024.

(On appeal against the judgment dated 10.01.2024 passed by Peshawar High Court, Peshawar, in W.P. No. 6173-P of 2023).

Elections Act (XXXIII of 2017)---

----Ss. 208 & 215(5)---Political party---Intra party elections---Failure to hold intra party elections in accordance with the party's own Constitution---Effect---Political party declared ineligible to obtain the elections symbol it had applied for.

Election Commission of Pakistan (ECP) wanted to ensure that the political party Pakistan Tehreek-e-Insaf ('PTI') holds intra party elections. The mere production of a certificate stating that such elections were held would not suffice to establish that intra party elections had been held when a challenge was thrown to such an assertion. Nor, should ECP concern itself with minor irregularities in the holding of a political party's elections. However, in the instant case not even prima facie evidence was produced to show that a semblance of elections had been held. Fourteen PTI members, with stated credentials, had complained to ECP that elections had not been held. These complaints were brushed aside in the writ petition by simply asserting that they were not members of PTI and thus not entitled to contest elections, but this bare denial was insufficient, particularly when they had credibly established their long association with PTI. And, if any member of a political party is expelled it must be done in accordance with section 205 of the Elections Act, 2017 ('Act'), but no evidence in this regard was forthcoming.

Democracy founded Pakistan, a fundamental aspect of which is the ability to put oneself forward as a candidate and to be able to vote, both within a political party and in general elections. Anything less would give rise to authoritarianism which may lead to dictatorship.

Section 208 of the Act mandates that political parties must hold intra party elections periodically, and that a period not exceeding five years elapse within two elections. It further stipulates that every member of a political party 'be provided with an equal opportunity of contesting election for any political party office.' Members of PTI were not provided nomination papers when they went to get them nor were any intra party elections held. Incidentally, the notice issued by the PTI Secretariat stated that the elections were to be held in Peshawar city but did not mention the venue, and then the venue was shifted to Chamkani, which is a village adjacent to Peshawar.

If it had been established that elections had been held then ECP would have to justify if any legal benefit to such a political party was being withheld, but if intra party elections were not held the benefits accruing pursuant to the holding of elections could not be claimed.

Impugned interpretation of the High Court Judges that the ECP did not have 'any jurisdiction to question or adjudicate the Intra Party Elections of a political party.' could not be agreed with. If such an interpretation is accepted it would render all provisions in the Act requiring the holding of intra party elections illusory and of no consequence and be redundant.

Petition for leave to appeal was converted into an appeal and allowed by setting aside the impugned order and judgment of the (Peshawar) High Court; resultantly, the order of the ECP whereby it held that PTI had failed to hold intra party elections in accordance with PTI's constitution, the Act and the Election Rules, 2017 with the consequence that PTI was 'declared ineligible to obtain the Election Symbol' which it had applied for, was upheld.

M. Makhdoom Ali Khan, Sr. Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Saad Mumtaz Hashmi, Advocate Supreme Court, Arshad Khan, DG (Law) ECP, Masood Sherwani, DG (P/F) ECP and Khurram Shehzad, Addl. DG (Law) ECP for Petitioners.

Ch. Aamir Rehman, Addl. AGP for the Federation.

Hamid Khan, Sr. Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme Court and Ajmal Ghaffar Toor, Advocate Supreme Court, Niazullah Khan Niazi, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record assisted by Abdullah Malik, Advocate High Court for Respondents Nos. 1, 2 and 4.

Syed Ahmed Hassan Shah, Advocate Supreme Court assisted by Badar Chaudhry, Advocate along with Akbar S. Babar for Respondent No. 10.

N.R. for Respondents Nos. 3, 5 to 9, 13 to 15 and 19 to 22.

Ms. Noureen Farooq Khan for Respondent No. 11.

Mehmood Ahmed Khan for Respondent No. 12.

M. Muzammil Sandhu for Respondent No. 16.

Yousaf Ali for Respondent No. 17.

Bilal Azhar Rana for Respondent No. 18.

P L D 2024 Supreme Court 273

Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Shahid Waheed, JJ

AMMAD YOUSAF---Petitioner

Versus

The STATE and another---Respondents

Crl. Petition No. 225 of 2023, decided on 14th September, 2023.

(Against the judgment of the Islamabad High Court, Islamabad dated 14.02.2023 passed in Crl. Revision No. 07 of 2023)

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

----S. 265-D---Charge, framing of---Trial Court, duty of---Object and purpose of section 265-D, Cr.P.C. stated.

Section 265-D, Cr.P.C casts a duty upon the Trial Court to frame a charge. A charge is a gist and precise statement of the allegation(s) made against a person(s), which is the foundation of a criminal trial. It specifies the offence with which an accused is charged, by giving a specific name, if any, and the relevant provision(s) of law(s). Section 265-D provides that before framing of a charge, the Court must consider the FIR, the police report, all the documents, and the statements of the witnesses filed by the prosecution available before it in order to determine whether it has jurisdiction to take cognizance of the matter. If the Court is of the opinion that it is competent to take cognizance and prima facie reasonable grounds exist for proceeding with the trial of the accused, only then, charge has to be framed. Its object and purpose are to enable the Court to initiate judicial proceedings against an accused. It is a fundamental right of the accused to know the exact allegation(s) and offence(s) with which they are charged, in order to defend themselves so as to prevent prejudice. Upon considering all the material available before it, if the Court is of the opinion that it lacks jurisdiction and sufficient material or there exist no grounds for proceeding with the trial of the accused, it should refrain itself from framing charge, so as to avoid a purposeless and frivolous prosecution and abuse of process of the Court.

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

----Ss. 249-A & 265-K---Power of Trial Court to acquit the accused at any stage of the proceedings---Scope and principles relating to sections 249-A & 265-K, Cr.P.C stated.

The Criminal Procedure Code, 1898 ("Cr.P.C.") has granted an inherent jurisdiction by virtue of sections 249-A and 265-K to the trial courts, as the case may be, to acquit any or all accused at any stage of the judicial proceedings for reasons to be recorded, after providing an opportunity of hearing to the parties. The words "any stage" used in both the sections include the stages before or after framing of the charge or after recording of some evidence. Such power can only be exercised where the Court is of the opinion that no charge could be framed because of lack of jurisdiction; because the material available before it is insufficient for the purposes of constituting an offence; that if charge is framed, but the Court considers it to be groundless and to allow the prosecution to continue with the trial would amount to an abuse of process; or that in all circumstances, where there is no probability of conviction of the accused, even after a full-fledged trial. Thus, if circumstances for exercise of inherent powers exist, the Court must use such powers at any stage of the proceedings on its own or upon an application by the accused, provided that an opportunity of hearing is afforded to the parties before making any order. The power assigned to the Courts by the legislature is to avoid the abuse of process of the Court; to protect the integrity of the criminal justice system; to safeguard a person involved in the case from the agony of a purposeless, malicious, and frivolous criminal prosecution; or otherwise, to secure the ends of justice. The exercise of the inherent powers is mandatory in nature, therefore, any departure therefrom would be a violation of the substantive provisions of law and would prejudice the interests of the accused, which is an illegality. If the Court considers that the available material is sufficient to proceed with the trial and refuses to quash the judicial proceedings, it does not preclude the Court from exercising its inherent power subsequently after recording some evidence or surfacing any material for the purpose of quashing the proceedings. However, the exercise of such power by the Courts must be in exceptional circumstances, with great caution and by applying its mind judiciously.

The State v. Raja Abdul Rehman 2005 SCMR 1544 and Zahoor-ud-Din v. Khushi Muhammad and others 1998 SCMR 1840 ref.

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

----S. 196---Criminal Procedure Code (V of 1898), Chapts. XVI & XVII---Prosecution for offences against the State---Procedure for prosecuting a person for offences mentioned in section 196 of Pakistan Penal Code, 1860 stated.

According to section 196, P.P.C cognizance can only be taken by a Court upon a complaint made by the Federal Government, the Provincial Government concerned or some officer empowered in this behalf in respect of the offences mentioned therein. Section 196 mandates that no person or authority other than the Federal Government or the Provincial Government or any officer empowered by the respective Governments in this behalf is competent to file a complaint in respect of the offences mentioned in section 196. Chapter XVI of Criminal Procedure Code, 1898 ('the Code') provides a forum and procedure for filing of a complaint and authorizes the Court to conduct a preliminary inquiry and, if need be, to investigate the matter in order to ascertain its veracity. If the Court finds that no case is to be made out from the material available on the record, it has to dismiss the complaint by exercising powers under section 203 of the Code. Where the Court is of the opinion that there are sufficient grounds to take cognizance of the matter upon the complaint, only then the judicial proceedings can be commenced by adopting a method as provided under Chapter XVII of the Code.

The object and purpose of giving power only to the Government concerned or an officer empowered in this behalf for filing a complaint is to prevent unauthorized persons from initiating judicial proceedings in respect of State prosecution regarding the offences stated in section 196, P.P.C. This is to ensure prevention of human rights violations and to ensure prevention of purposeless, malicious, and frivolous prosecutions. Thus, in order to prosecute a person for offences mentioned in section 196, firstly, there must be a complaint only by an order of the Federal Government or the concerned Provincial Government or by an officer empowered in this behalf by either of the two Governments. Secondly, the complaint must contain the name of a person(s), against whom proceedings are required to be initiated and all the details in respect of the alleged offence(s). Moreover, after filing a complaint, if subsequently, it surfaces that some person(s) other than the one(s) named in the complaint is/are also connected in commission of the offences, the Federal Government, the Provincial Government or an officer empowered by either of the two Governments, as the case may be, may pass an order for filing of a supplementary complaint against them with all the stated details. In any case, before submitting a complaint, the authorities concerned must conduct a preliminary inquiry in order to avoid frivolous, malicious and purposeless prosecution. Similarly, the Magistrate upon receiving a complaint and before assumption of the jurisdiction, must cross the threshold by applying his mind and analysing the evidence, in order to determine its jurisdiction and to ascertain that on the basis of the available material, charge can be framed. The Magistrate, if satisfied, that prima facie case against the nominated person is made out, he can then initiate judicial proceedings against the person nominated in the complaint. If he reaches a conclusion that the complaint or the supplementary complaint has been filed by an unauthorized person or that the same suffers from mandatory requirements of section 196 or he lacks jurisdiction, he should not issue process in a mechanical manner, rather, should refrain himself from initiating judicial proceedings.

(d) Administration of justice---

----When a law stipulates that some thing has to be done in a prescribed manner, it must be done in that manner and should not be done otherwise.

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

----Ss. 121-A, 124, 153-A, 196 & 505---Constitution of Pakistan, Arts. 15, 16, 17, 19 & 19A---Prosecution for offences against the State---Politically motivated FIRs against politicians, political workers, media persons, and human rights activists---Observations recorded by the Supreme Court regarding adverse consequences of such politically motivated FIRs and how the same deprive citizens from their fundamental rights provided.

Every citizen has a right of political and social justice, freedom of speech and thought, subject to a reasonable restriction imposed by law. In order to protect and promote such rights, the State must exercise its power and authority in accordance with the Constitution. Print and electronic media are the means of receiving and providing such information to and from the people. Upon exercise of such right, it has been observed that politically motivated FIRs are being registered for offences mentioned in section 196 of the Pakistan Penal Code, 1860 mostly against politicians, political workers, media persons, and human rights activists, and in some cases against their family members as well. It is hard to believe that the chosen representatives of the people, political activists, right activists and media persons can indulge themselves in anti-State activities. The act of indulging its citizens in malicious and frivolous prosecution by the Government without any substance on the plea that the thoughts are anti-State, amounts to undermining the constitutional command and as such, depriving citizens from their fundamental rights of freedom of movement, assembly, speech, and right to information. Such misuse of authority creates a sense of fear and insecurity in the society, which result into hatred against the State's institutions. When citizens are put in fear, they cannot perform their functions freely, which amounts to preventing them from contributing towards the society in accordance with the Constitution, law and as per their conscience. In such a hostile atmosphere, the media cannot also perform its functions freely, rather it will undermine the freedom of speech, expression, and access to information of the citizens, as guaranteed by the Constitution, resulting into mistrust in the institutions. A democratic Government is considered to be by the people, of the people and for the people. It must, therefore, develop an atmosphere of tolerance, to promote political and social justice; to create a habit of listening to healthy criticism, which is the beauty of democracy. Thus, the Government must accept the will of the people, instead of considering its critics and political opponents as enemy of the State, to avert hatred and mistrust of citizens upon the institutions, by refraining itself from misusing the power and authority and to avoid malicious, baseless and frivolous prosecution against its citizens.

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

----Ss. 120-B, 121-A, 124, 131, 153, 153-A, 196, 505, 506, 201, 109 & 34---Prosecution for offences against the State---Procedure provided under section 196, P.P.C not followed---Effect---Criminal proceedings, quashing of---After permission was obtained from the Secretary, Ministry of Interior, the Magistrate registered an FIR under sections 120-B, 121-A, 124, 131, 153, 153-A, 505, 506, 201, 109 & 34, P.P.C against the main accused, who appeared live on a news channel and allegedly made some remarks against the armed forces---Petitioner was subsequently implicated in the case during the investigation, on the pretext that as Director of the news channel, he conspired with the main accused for the commission of the alleged offences---Legality---Record reflects that vide a Notification, the Federal Government had empowered the Secretary to file complaints on its behalf, against a person(s) for the offences mentioned in section 196, P.P.C---Admittedly, the Secretary did not file any complaint against the petitioner, rather, the FIR was registered against the main accused by the Magistrate after getting permission from the Secretary---Secretary being a delegate himself, had no jurisdiction to redelegate the authority to anyone else---In the present case, the FIR was registered with permission of the Secretary without considering the provisions of section 196, P.P.C that no Court shall take cognizance of any offence punishable under the offences mentioned in section 196, P.P.C---Neither an FIR can be registered nor can a permission from the Secretary justify the act of the Magistrate---As contemplated in section 196, P.P.C, no Court shall take cognizance of the offences of the P.P.C., mentioned therein, unless upon a complaint filed by the authorities concerned, therefore, the Trial Court had no jurisdiction to take cognizance of sections 121-A, 124, 153-A & 505 of the P.P.C., on the basis of the FIR, hence, the judicial proceedings initiated by it to the extent of such offences were coram non judice---Admittedly, the petitioner was not nominated in the FIR---During the investigation, the Investigating Officer reached a conclusion that the petitioner is a conspirator along with the main accused, therefore, subsequently through a supplementary statement he was involved in this case---Even if the alleged views orally expressed by the main accused during the live telecast are believed to be true and in violation of any reasonable restriction imposed by law, a question arises as to how the petitioner, can be held responsible for the act of the main accused, merely on the ground that he being a member of the administration of the broadcaster, is equally responsible---Manner in which the petitioner was proceeded against, amounts to inciting fear not only amongst the entire administration of the broadcaster, but will also have an impact upon rest of the print and electronic media, which will certainly obstruct their constitutional right---On the basis of the material available on the record, no case was made out against the petitioner---Petition for leave to appeal was converted into appeal and allowed, and the proceedings initiated against the petitioner, pursuant to the FIR were quashed to his extent, and he was acquitted from the case.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Syed Iqbal Hussain Gillani, Advocate Supreme Court and Ms. Suzain Jehan Khan, Advocate High Court for Petitioner.

Raja Rizwan Abbasi, Special Prosecutor Islamabad, Ayyaz Shaukat, A.G. Islamabad, M. Ghouse, S.I. and Khalid Awan, SP for the State.

P L D 2024 Supreme Court 286

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

ALL PAKISTAN MUSLIM LEAGUE through Chairman ---Applicant/Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad---Respondent

C.M.A. No. 10566 of 2023 in C.A. NIL of 2023, decided on 12th January, 2024.

(Permission to file Civil Appeal).

Elections Act (XXXIII of 2017)---

----Ss. 209 & 210---Constitution of Pakistan, Art. 17(3)---Political party [All Pakistan Muslim League (APML)]---Failure to provide statement of accounts to the Election Commission of Pakistan (ECP)---Non-existence of office bearers of the party---Effect---Delisting of political party (APML) and rejection of its application for allocation of elections symbol.

By way of the impugned order the Election Commission of Pakistan ("ECP") held that there were no elected office bearers of the political party [All Pakistan Muslim League (APML)], therefore, the party was virtually non-existent; that due to non-existence of the elected office bearers in accordance with the party constitution and the provisions of the Elections Act, 2017 (Act of 2017), the party had been unable to provide valid consolidated statements of accounts of last four (4) years which was requirement of the Article 17(3) of the Constitution read with Section 210 of the Act of 2017; that the APML had failed to fulfill the requirement of sections 209 and 210 of the Act of 2017 which was one of the pre-requisite for enlistment of a political party in terms of section 202, and that in exercise of powers conferred upon under Article 218(3) read with section 202(5) of the Act, APML, as a political party was delisted and the applications for allocation of symbol submitted by unauthorized and self styled office bearers were rejected, as a result of which the symbol 'Eagle' became available for allocation in accordance with law.

Counsel for the applicant (APML) was asked whether the statements of accounts, which were required by the ECP, were provided but he could not refer to a single document in this regard; further establishing that the requisite statements were not provided to the ECP. Accordingly, the Supreme Court sustained the impugned order of the ECP. Appeal was dismissed.

Sher Aman, Advocate Supreme Court along with the applicant for Applicant/Appellant.

Nemo for Respondents.

P L D 2024 Supreme Court 288

Present: Sardar Tariq Masood, HACJ, Syed Mansoor Ali Shah and Athar Minallah, JJ

GOHAR ALI KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.47 of 2023, decided on 22nd December, 2023.

Constitution of Pakistan---

----Art. 218(3)---Election Commission of Pakistan ('ECP'), duties of---Level playing field for all political parties, importance of---ECP plays a crucial role in the democratic process, especially in conducting elections----Under Article 218(3) of the Constitution, ECP enjoys the constitutional responsibility to conduct elections honestly, justly, fairly and in accordance with law and to guard against corrupt practices---While under Article 220 of the Constitution all the executive authorities in the country shall assist the ECP in the discharge of its functions----ECP is to ensure that elections are conducted in accordance with the democratic principles and that elections are free from undue influence, coercion, and corruption---ECP is also to ensure that all political parties and candidates have an equal opportunity to participate in the election process---Importance of free and fair elections, and maintaining a level playing field during elections, cannot be overstated---Free and fair elections provide legitimacy to the elected government and maintain the trust of the public in the democratic process---Level playing field is essential for the healthy competition, ensuring that elections are a true reflection of the people's choice, rather than the result of manipulation or coercion---Organizing free and fair elections is more important than the results itself.

M. Shoaib Shaheen, Advocate Supreme Court, Niaz Ullah Khan Niazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Mansoor Usman Awan, Attorney General, Zafar Iqbal Hussain, Spl. Secy. ECP/D.R., M. Arshad, D.G. (Law) ECP and Falak Sher, Legal Consultant, ECP on Court's call.

P L D 2024 Supreme Court 291

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

Mst. HASEENA BIBI---Petitioner

Versus

ABDUL HALEEM and others---Respondents

Civil Appeal No.1227 of 2016, decided on 15th November, 2023.

(On appeal against the judgment dated 22.12.2015 passed by the Peshawar High Court, Abbottabad Bench, in W. P. No.573-A of 2015)

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

---S. 5---Dower/Haq mehr---Entitlement of wife---Dower is a right rendered by Islam and has its footing in statutes---Since right to dower has its footing in Section 5 of the Dissolution of Muslim Marriages Act, 1939, therefore, a wife cannot be estopped from such right and any agreement where she waives the same is void---It is imperative that the wife must be made a party to the agreements concerning her rights---Wife enjoys exclusive and absolute right over her dower and the same cannot be waived via lqrarnama/ Agreement/Compromise and any such document, registered or unregistered, attempting to compromise the wife's right to dower, especially in the context of familial dissolution, lacks legal validity.

The Quran IV:4 and Zulfiqar Ali v. Musarrat Bibi and others 2006 SCMR 1136 ref.

(b) Estoppel---

----No estoppel lies against a statute---There can be no estoppel against a statute or rules having statutory force.

Bahadur Khan and others v. Federation of Pakistan 2017 SCMR 2066 ref.

(c) Islamic law---

----Custody of minor---Hizanat, right of---Iqrarnama / Agreement/ Compromise made by the mother waiving her statutory right of Hizanat---Legality---Mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty---These rights cannot be denied to the mother as any such action would be contrary to law---Any agreement related to the custody of minor child (which stops the mother from claiming custody) would be violative of law and cannot be enforced by a Court of law---Any Iqrarnama/Agreement/Compromise made by the mother waiving her statutory right of Hizanat of a minor child would be violative of law and cannot be enforced by a Court of law.

Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508 and Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 ref.

Malik Tahir Mehmood, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for the Appellant.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Respondents.

P L D 2024 Supreme Court 295

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar, and Musarrat Hilali, JJ

The ELECTION COMMISSION OF PAKISTAN through Secretary and others---Petitioners

Versus

PAKISTAN TEHREEK-E-INSAF through Authorized person and others-- Respondents

Civil Petition No. 42 of 2024, decided on 13th January, 2024.

(On appeal against the judgment dated 10.01.2024 passed by Peshawar High Court, Peshawar, in Writ Petition No. 6173-P of 2023).

(a) Elections Act (XXXIII of 2017)---

----Ss. 208, 209 & 215(5)---Political party---Intra party elections---Political party failing to hold intra party elections in accordance with its own Constitution---Effect---Party declared ineligible to obtain the elections symbol it had applied for.

The law under consideration is the Elections Act, 2017 ('Elections Act') which was promulgated by a democratically elected Parliament. The Elections Act seeks to strengthen political parties and mandates that intra-party elections must be held in every political party. To ensure that political parties are and remain democratic their members must be given an equal opportunity to aspire to its political offices. If a political party does not periodically hold intra-party elections the consequences for not holding them are mentioned in the Elections Act, 2017, which is the party not being eligible to get its election symbol.

Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 distinguished.

Section 208 of the Elections Act mandates that political parties must hold intra party elections periodically, and that a period not exceeding five years elapse within two elections. It further stipulates that every member of a political party 'be provided with an equal opportunity of contesting election for any political party office.'

Both of the following scenarios would constitute a violation of section 209 of the Elections Act, 2017: (i) A political party fails to submit a certificate as required by section 209 of the Elections Act; or (ii) A political party submits a certificate under section 209 of the Elections Act, which certificate is false because no intra-party elections were held by the party in accordance with the party's constitution and the Elections Act. Either of these scenarios would entitle the Election Commission of Pakistan (ECP) to issue a show cause notice to the party under section 215(4) of the Elections Act and, if the violation is not cured, the consequences envisioned in section 215(5) of the Elections Act would follow, that is, the party would not be eligible to obtain an election symbol.

If intra-party elections are not held in a political party it severs its relationship with its members, and renders a party a mere name without meaning or substance.

In the instant case no one sought to deprive the political

party ['Pakistan Tehreek-e-Insaf' (PTI)] of an election symbol; not the ECP, the Government nor any political party. The ECP not once but repeatedly had called for the holding of intra-party elections in the PTI and had clearly spelt out the consequences if elections were not held.

Independent analysis of the present matter did not show anything which may suggest that the ECP acted in a mala fide manner. The mala fide allegation was further dispelled when it was noted that ECP had also issued similar notices to other political parties. When the ECP first took notice that intra-party elections had not been held in the PTI it was in the Federal Government and in the Provinces of Punjab and Khyber Pakhtunkhwa.

It is clear from the record that ECP did not act contrary to the law and did not act arbitrarily. The ECP persistently and repeatedly called for the holding of intra-party elections in the PTI. Initially the pretext of the prevalence of the Covid-19 virus was used for not having held elections, and a year's extension was sought from the ECP. The ECP extended the period which too expired but still intra-party elections were not held. The ECP gave repeated opportunities for intra-party elections to be held but to no avail, as a result of which the ECP issued a show cause notice but this too was not taken seriously. ECP then passed an order and directed that intra-party elections be held in the PTI, in response to which, and for no justifiable reason, the direction was challenged before the Lahore High Court. And, when a favourable result could not be obtained the Peshawar High Court was approached. Those at the helm of affairs of the PTI disregarded the law, the directions of the ECP calling upon them to comply with the law and repeatedly filed petitions/appeal first before one High Court then before another High Court.

Election Commission of Pakistan (ECP) wanted to ensure that PTI holds intra party elections. The mere production of a certificate stating that such elections were held would not suffice to establish that intra party elections had been held when a challenge was thrown to such an assertion. The provision of a piece of paper - the certificate - that intra-party elections were held, even when they are not held, would be fraudulent. ECP should not concern itself with minor irregularities in the holding of a political party's elections. However, in the instant case not even prima facie evidence was produced to show that a semblance of elections had been held. Fourteen PTI members, with stated credentials, had complained to ECP that elections had not been held. These complaints were brushed aside in the writ petition by simply asserting that they were not members of PTI and thus not entitled to contest elections, but this bare denial was insufficient, particularly when they had credibly established their long association with PTI. And, if any member of a political party is expelled it must be done in accordance with section 205 of the Elections Act, 2017, but no evidence in this regard was forthcoming.

Counsel representing thePTI could not refer to anything tangible which may show that even a semblance of intra-party elections were held in the PTI. The filings by the party in the Peshawar High Court also did not indicate the holding of elections. And except a few documents which self-served the beneficiaries thereof, nothing was filed in the Supreme Court to suggest that intra-party elections were held.

Members of PTI were not provided nomination papers when they went to get them. Place for holding elections was changed but no notice in this regard was issued nor were the PTI members/voters informed about it. It is thus indisputable that intra-party elections in the PTI were not held. And, no opportunity to contest intra party elections and to vote for candidates was provided to the members of the PTI.

The Fundamental Right enshrined in Article 17(2) of the Constitution secures the right to form political parties. If members of political parties are not allowed to participate in intra-party elections, their Fundamental Right of putting themselves forward as candidates, contesting elections and voting for the candidates of their choice is violated. To hold otherwise would render Article 17(2) of the Constitution, and the judgment in the case of Benazir Bhutto v Federation of Pakistan (PLD 1989 Supreme Court 66), meaningless and ineffective.

Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66; State v. Drexel, 74 Neb. 776, 105 N. W. 174 (1905); Commonwealth v. Willcox, 111 Va. 849 at 860, 69 S. E. 1027 at 1031 (1911); Leonard v. Commonwealth, 112 Pa. 607, 4 Atl. 220 and Commonwealth v. Willcox, 111 Va. 849 at 860, 69 S. E. 1027 at 1031 (1911) ref.

As a consequence of not holding intra-party elections in PTI it became ineligible to be allocated an election symbol. The sole responsibility for which lies on those running the affairs of the PTI, who did not want democracy in the party. They unilaterally and arbitrarily took over a political party in utter disregard of the eight hundred and fifty thousand stated members of the PTI. Because of their actions and by negating the very fundamentals of democracy, that is, not holding elections, the party suffered and was rendered ineligible to receive its election symbol. A political party must never be deprived of its election symbol for some minor violation, but forsaking intra-party elections is a major violation of the law, and of the Constitution. Those in charge of the PTI were adamant not to hold intra-party elections and their intransigence alone deprived the PTI of its symbol. If intra-party elections had been held, all benefits mentioned in the Elections Act would accrue, including the party getting its symbols.

If it had been established that elections had been held then ECP would have to justify if any legal benefit to such a political party was being withheld, but if intra party elections were not held the benefits accruing pursuant to the holding of elections could not be claimed.

Impugned interpretation of the High Court Judges that the ECP did not have 'any jurisdiction to question or adjudicate the Intra Party Elections of a political party.' could not be agreed with. If such an interpretation is accepted it would render all provisions in the Elections Act requiring the holding of intra party elections illusory and of no consequence and be redundant.

Petition for leave to appeal was converted into an appeal and allowed by setting aside the impugned order and judgment of the (Peshawar) High Court; resultantly, the order of the ECP whereby it held that PTI had failed to hold intra party elections in accordance with PTI's constitution, the Elections Act, 2017 and the Election Rules, 2017 with the consequence that PTI was 'declared ineligible to obtain the Election Symbol' which it had applied for, was upheld.

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

----S. 10---Res sub judice, doctrine of---Scope---Party cannot simultaneously agitate the same matter before two courts---Section 10 of the Code of Civil Procedure, 1908 prohibits this; it stipulates that cases 'in which the matter in issue is also directly and substantially in issue in a previously instituted' case, the court in which the subsequent case is filed shall not proceed therewith---Rule of law and judicial process would be seriously undermined if a party simultaneously agitates the same matter before two different High Courts.

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

(c) Elections Act (XXXIII of 2017)---

----Ss. 208 & 215(5)---Constitution of Pakistan, Arts. 218(1) & 185(3)---Political party---Intra party elections---Failure to hold intra party elections in accordance with the party's own Constitution---Election Commission of Pakistan (ECP) declaring the political party ineligible to obtain the elections symbol it had applied for---Petition for leave to appeal filed by the ECP before the Supreme Court against a judgment of the High Court - Maintainability---If the ECP could be sued before the High Court, it would be a denial of justice and manifestly unfair if it could not then assail the decision of the High Court (before the Supreme Court)---Therefore, the objection to the maintainability of present petition was without legal substance and was overruled.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396 ref.

For the Petitioners:

Makhdoom Ali Khan, Senior Advocate Supreme Court.

Sikandar Bashir Mohmand, Advocate Supreme Court.

Saad Mumtaz Hashmi, Advocate Supreme Court.

Muhammad Arshad, DG (Law) ECP.

Masood Sherwani, DG (P/F) ECP.

Khurram Shehzad, Addl. DG (L) ECP.

For the Federation:

Ch. Aamir Rehman, Additional Attorney-General for Pakistan.

For Respondents Nos. 1, 2 and 4:

Hamid Khan, Senior Advocate Supreme Court.

Ali Zafar, Advocate Supreme Court.

Gohar Ali Khan, Advocate Supreme Court.

Ajmal Ghaffar Toor, Advocate Supreme Court.

Niazullah Khan Niazi, Advocate Supreme Court.

M. Sharif Janjua, Advocate-on-Record

Assisted by Abdullah Malik, Advocate High Court.

Respondents Nos. 3, 5 to 8, 9, 13, 14, 15, 19-22:

Not represented.

For Respondent No. 10:

Ahmad Hassan Shah, Advocate Supreme Court.

assisted by Badar Chaudhry, Advocate along with Akbar S. Babar.

Respondent No. 11:

Ms. Noureeen Farooq Khan.

Respondent No. 12:

Mehmood Ahmed Khan.

Respondent No. 16:

M. Muzammil Khan Sandhu.

Respondent No. 17:

Yousaf Ali.

Respondent No. 18:

Bilal Azhar Rana.

P L D 2024 Supreme Court 337

Present: Ijaz ul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ

JAWWAD S. KHAWAJA and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 24, 25, 26, 27, 28 and 30 of 2023, decided on 9th January, 2024.

(Petitions to declare the trials of civilians under the Army Act, 1952 as violative of Constitution).

Per Munib Akhtar, J: Ijaz ul Ahsan, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik, JJ. agreeing; Yahya Afridi, J. dissenting with the majority only to the extent of declaring section 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 as ultra vires the Constitution

Per Munib Akhtar, J. [Majority view]

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

----Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 8(3)(a), 8(5), 9, 10A, 184(3) & 233---Criminal Procedure Code (V of 1898), S. 549---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---Sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 were ultra vires the Constitution, with reference and regard to Articles 8(5) and 10A of the Constitution---Fate of the section 59(4) of the Pakistan Army Act, 1952 was tied to section 2(1)(d) of the same Act; the two would stand and fall together, and since section 2(1)(d) failed, so must section 59(4)---Even when the Constitution was operating under a Proclamation of Emergency, and even if that Proclamation was "bolstered" by an Order under Article 233(2), sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 would be, and remain, ultra vires the Constitution, on account of the continued protection provided by Article 8(5)---In the present case manner in which around 103 accused persons were handed over to the Army authorities by the Anti-Terrorism Courts (ATCs) on the applications made by Army authorities under section 549, Cr.P.C. was unlawful---Not only could the Army authorities not have filed any applications under section 549, Cr.P.C. but the same could not even be entertained by the ATCs---There was a double lack of jurisdiction---Manner in which the 103 persons were dealt with was therefore contrary to law and hence a violation of Articles 9 and 10A of the Constitution---Detailed reasons, declarations and directions issued by the Supreme Court in the present matter stated.

Both sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 are ultra vires the Constitution, with particular reference and regard to Article 8(5) of the Constitution. Said sections are also ultra vires the Constitution on account of being inconsistent with, and in derogation of Article 10A of the Constitution.

Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 (page 531) distinguished.

Attorney General's submission that one of the purposes given in Article 8(3)(a), i.e., the ensuring of proper discharge of duties by the Armed Forces, has an "external" aspect that brings third parties and outsiders (i.e., civilians) within its fold cannot be accepted. The reason is that this effectively splits Article 8(3)(a) into standalone portions. That is an incorrect approach to this provision. It is one whole, which has to be interpreted and applied holistically. Any other approach would mean that the provision ceases to be an ouster clause that has to be interpreted and applied strictly. The correct approach is that the provision applies (as presently relevant) to a law relating to members of the Armed Forces for achieving either (or both) of the stated purposes, to the extent and in the manner that such purpose(s) cannot be achieved without such a law. It is only in this way that the rationale for Article 8(3)(a)-the complete and immediate denial of fundamental rights-is understandable and acceptable. For if, and to the extent that, either of the stated purposes can be achieved even without a law relating to the Armed Forces, that would mean that the law in question would apply also to persons who are not members of such Forces. And in respect of a law such as last mentioned, Article 8(5) would intervene and deny the denial of fundamental rights. Civilians cannot directly be dragged into the ambit of Article 8(3)(a) by reason of Article 8(5). That result certainly cannot be achieved indirectly by postulating internal and external "aspects" to the stated purposes of the former provision, and thereby expand its scope to include classes of persons other than the three listed categories of State employees. That would be in utter disregard of Article 8(5).

The fate of the section 59(4) of the Pakistan Army Act, 1952 is tied to section 2(1)(d) of the same Act, since it is in the nature of a subsidiary provision. It has effect and meaning only if section 2(1)(d) has meaning, and has no independent or standalone purpose or existence. The two stand and fall together. Since section 2(1)(d) fails, so must section 59(4).

For Article 8(5) of the Constitution to continue to override and deny the denial of fundamental rights brought about by Article 8(3)(a), fundamental rights must not be in a state of suspension. It is only then that the protection provided by clause (5) continues to remain available, vis-à-vis clause (3)(a). This is indeed so when the Constitution is operating in its ordinary course. It continues to remain true even if a Proclamation of Emergency is in the field and an Order is made under Article 233(2) of the Constitution. Other than the six fundamental rights enumerated in clause (1) of Article 233, the others are not suspended even if such Order is made, because the Constitution does not so provide expressly. There can, in the present context, be no suspension by implication. Furthermore, the fact that some fundamental rights would stand expressly suspended by reason of Article 233(1) is of no moment. Most of the fundamental rights would not be suspended. Clause (5) of Article 8, therefore, would continue to stand athwart the gateway even if an Order is in the field in terms of Article 233(2), and continue to deny the denial of fundamental rights that would result from an application of clause (3)(a) of Article 8. It follows that even when the Constitution is operating under a Proclamation of Emergency, and even if that Proclamation is "bolstered" by an Order under Article 233(2), sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 would be, and remain, ultra vires the Constitution, on account of the continued protection provided by Article 8(5).

Makhan Singh Tarsikka v. State of Punjab AIR 1964 SC 381; Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506; Liaquat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and Said Zaman Khan and others v. Federation of Pakistan and others 2017 SCMR 1249 distinguished.

Durga Das Basu's Shorter Constitution of India 15th Ed., (2018), Vol. 2, pg. 1888 ref.

Separate and distinct from the constitutional position set out above for section 2(1)(d) of the Pakistan Army Act, 1952, in respect of offences within the scope of either of its sub-clauses, the lawfully correct procedure and manner is for the civilians to be charged for the relevant offence outside of the Army Act and by a Court of competent jurisdiction. It is only then that such civilians, having become subject to the said Act, can lawfully be taken into custody by the Army authorities and proceeded against in terms of that statute, by way of court martial.

The lawfully correct procedure and manner is for the civilians to be charged for the relevant offence outside of the Army Act and by a Court of competent jurisdiction. It is only then that such civilians, having become subject to the said Act, can lawfully be taken into custody by the Army authorities and proceeded against in terms of that statute, by way of court martial. In the present case with regard to around 103 accused persons, nothing of the sort appears to have happened. Firstly, they were all before the Anti-Terrorism Courts (ATCs) because the FIRs under which they were arrested listed offences under the Anti-Terrorism Act, 1997. Now, this statute does not give any jurisdiction to the ATCs to try offences either under section 131, P.P.C. or the Official Secrets Act, 1923 ("1923 Act"). No application could at all have therefore been made to the said Courts by the Army authorities under section 549, Cr.P.C. Furthermore, even if these Courts did have jurisdiction over the offences, the persons before them had not yet been charged for the same. They had therefore not become subject to the Army Act. Therefore not only could the Army authorities not have filed any applications under section 549, Cr.P.C. but the same could not even be entertained by the ATCs. There was, in other words, a double lack of jurisdiction. The manner in which around 103 persons were dealt with was therefore contrary to law and hence a violation of Articles 9 and 10A of the Constitution.

Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 (Pg. 531) distinguished.

In the present judgment, section 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 have been considered and declared ultra vires the Constitution. However present judgment applies equally, and in like manner, to laws relating to the other Services i.e. the Pakistan Air Force Act, 1953 and the Navy Ordinance, 1961.

Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. The trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the Attorney General and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and / or special law of the land in relation to such offences of which they may stand accused. Any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are and would be of no legal effect.

As on the date of the short order of present matter (23.10.2023), and in relation to and by reason of sub-clauses (i) and (ii) of clause (d) of section 2(1) of the Pakistan Army Act, 1952 read with section 59(4) and/or the equivalent provisions of the Pakistan Air Force Act, 1953 or the Navy Ordinance, 1961 [all as inserted by the Defence Services Laws Amendment Ordinance (III of 1967) and the Defence Services Laws (Second Amendment) Ordinance (IV of 1967)]:

(i) Cases of persons convicted by court martial and who have either (a) served out the sentence, or (b) who are serving the sentence but have exhausted legal remedies and/or whose convictions have otherwise become final, shall be regarded as past and closed and remain unaffected by the present judgment;

(ii) Persons who have been convicted by court martial and who are still pursuing legal remedies (whether statutory or before a Court of law) may apply to the appropriate Court, which shall consider the lawfulness of the conviction without reference to present judgment, but if it concludes that the person is otherwise entitled to any relief (including, but not limited to, with regard to the sentence) may, in the facts and circumstances of the case before it, also take present judgment into consideration: For purposes of this sub-para "appropriate Court" means (a) the Supreme Court if the remedy is being pursued here; (b) a High Court if the remedy is being pursued there; and (c) in all other cases, the High Court exercising jurisdiction over the place where the person is undergoing sentence or otherwise located;

(iii) For purposes of sub-paras (i) and (ii) above, neither a petition filed under Article 184(3) of the Constitution nor a petition before the President under Article 45 of the Constitution or any provision of law whereby relief equivalent to the latter can be sought (other legal remedies having been exhausted) shall be regarded as a pending, or (as the case may be) the pursuing of a, legal remedy; and

(iv) Any person or class of persons for whom a special remedy has been created by law to a Court outside the Pakistan Army Act, 1952 or equivalent laws (whether by way of a right of review or re-consideration or otherwise) shall, whether convicted or still being tried by court martial, seek his remedy accordingly, and his case shall remain unaffected by the present judgment.

(b) Constitution of Pakistan---

----Art. 8(3)(a)---Laws inconsistent with or in derogation of fundamental rights to be void---Exceptions---Restrictive interpretation---Given the drastic consequences that flow from it, Article 8(3)(a) of the Constitution must be given a narrow and restricted meaning and application.

Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 (pg. 531) ref.

(c) Constitution of Pakistan---

----Arts. 8(5) & 8(3)(a)---Fundamental Rights in the Constitution not to be suspended except as expressly provided by the Constitution---Protection afforded by Article 8(5) of the Constitution---Scope---Such protection is not just when a breach has actually occurred; it is also anticipatory, i.e., it acts to prevent a breach occurring at all in the first place---In an appropriate context, even before the situation has reached the point where the claimant has to show a denial of or derogation from this or that fundamental right, clause (5) of Article 8 is there---That context includes the situation where it can be shown that either the purpose or effect of the impugned action (whether a law or otherwise) would be to displace fundamental rights---In this sense it can even be regarded as preceding clauses (1) and (2) of Article 8---Clause (5) of Article 8 approaches, and protects, fundamental rights in a collective sense---While it would certainly be engaged even if a single fundamental right is, in effect, placed in a state of suspension (or worse) contrary to what is permissible, its real substance and power is revealed when one takes a step back and looks at fundamental rights as a whole---Reason is that when the clause is so engaged, it is not necessary to identify a specific fundamental right that is being affected---If it can be shown that the whole panoply of rights is being, or would be, placed, either actually or potentially, in a state of suspension (or worse) that suffices---Indeed, on such analysis even if it is shown that one or more fundamental rights are not suspended or denied or derogated from, that would not matter---Clause (5) of Article 8 locks in its embrace the aggregate of fundamental rights, without any need for differentiating between individual rights, an exercise that is invariably necessary when a law is being tested on the touchstone of clauses (1) and (2) of Article 8---No law, whether existing or one minted under the present Constitution, can defeat the protections provided by clause (5) of Article 8---For persons other than the three categories of State employees specified in Article 8(3)(a), and especially in relation to civilians, any and every existing law claiming to be within the contemplation of the said provision must pass through the sieve of clause (5) of Article 8 and also, if so required, be tested on the anvil of any violation of a particular and specified fundamental right---Sieve of Article 8(5) applies equally to an existing law or one sought to be made under the Constitution.

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

----Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 8(3)(a), 8(5), 9, 10A & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Maintainability---Determination in the present petitions was the denial, through Article 8(3)(a) of the Constitution, of fundamental rights as protected by Article 8(5)---That provision protects all fundamental rights---Therefore, present petitions involved and, in effect, sought the enforcement of all fundamental rights---Of these, two in particular had also been found involved specifically, being Articles 9 and 10A---Without doubt the questions raised in the present petitions were of public importance---Thus, both the conditions required for invoking the jurisdiction of the Supreme Court in terms of Article 184(3) were met---Finally, the rules of standing in relation to the jurisdiction of the Supreme Court are much more relaxed and liberal as, e.g., compared to corresponding requirements in relation to Article 199---There could be no doubt regarding the standing of the petitioners to file present petitions and bring the very serious questions of fundamental constitutional importance identified by them before the Court---Constitutionals petitions were held to be maintainable.

Per Ayesha A. Malik, J. [Majority view]

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

---Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 4, 10A & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians in military courts under the Pakistan Army Act, 1952---Maintainability---Constitutional values of fair trial, due process, independence of the judiciary and access to justice have to be considered in the context of the trial of civilians before a military court---In the same context, the issues raised in the present petitions are of serious concern to the citizens of the country given that they directly relate to the enforcement of their fundamental rights being the right to fair trial and due process by an independent and impartial court as guaranteed under the Constitution---Consequently, the issues raised unequivocally fall within the original jurisdiction of the Supreme Court under Article 184(3) of the Constitu-tion---Constitutional petitions were maintainable.

Miss Benzir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation through M.D. Karachi and others 1998 SCMR 793; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Suo Motu Case No.7 of 2017 PLD 2019 SC 318 and Justice Qazi Faez Isa v. President of Pakistan PLD 2023 SC 661 ref.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional remedy---Forum---Supreme Court or the High Court?---Choice of petitioner---Opening words of Article 184(3) of the Constitution without prejudice to the provisions of Article 199 means that it is for the party who is affected to choose which of the two forums it wishes to invoke being either before the High Court or the Supreme Court---However scope of jurisdiction and exercise of power by the Supreme Court under Article 184(3) of the Constitution is not bound by the procedural trappings of Article 199 of the Constitution nor its limitation for the exercise of power by the High Court---Provisions of Article 184(3) of the Constitution are self contained and they regulate the jurisdiction of the Supreme Court on its own terminology such that it is not controlled by the provisions of Article 199 of the Constitution---Plain language of Article 184(3) of the Constitution shows that it is open ended as it does not stipulate who has the right to move the Supreme Court nor does it require that the enforcement of fundamental rights must relate to a large group or class of persons rather the only requirement is that the test of public importance for the enforcement of fundamental rights be met with.

Miss Benzir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 ref.

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

----Ss. 2(1)(d)(i), 2(1)(d)(ii), 59(4), 133 & 133B---Pakistan Army Act Rules, 1954, Rr. 13(5), 23(1), 26 & 51---Constitution of Pakistan, Arts. 4, 9, 8(1), 8(2), 8(3)(a), 8(5), 10A, 14(1), 175 & 184(3)---Criminal Procedure Code (V of 1898), S. 549---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---Concept of a civilian facing military trial is violative of the fundamental right of fair trial and due process---There is a lack of impartiality and independence within a military trial and the concept of fairness and due process is missing from the procedure---Trial of a citizen by a military court for an offence which can be tried before the ordinary courts established under Article 175 of the Constitution offends the principles of independence of the judiciary and of fair trial---Decision of the Federal Government to try civilians before military courts totally defies the constitutional command and is in derogation to the rights contained in Articles 4, 9, 10A, and 14 read with Article 175 of the Constitution---Article 8(3)(a) of the Constitution specifically applies to members of the Armed Forces and laws related to them and the argument that a person can be deprived of any of their fundamental rights especially the right to fair trial and due process because they have been made otherwise subject to the Army Act would mean that the Constitutional guarantee of fundamental rights can be taken away by ordinary legislation---This would totally defeat the purpose of Articles 8(1), 8(2) and 8(5) of the Constitution---In the present case none of the 103 persons detained were reported for offences under the Official Secrets Act, 1923, yet applications were made under Section 549 Cr.P.C. for their delivery to military authorities---Sections 2(1)(d) and 59(4) of the Pakistan Army Act, 1952 were ultra vires the Constitution---Detailed reasons for declaring Sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 as ultra vires the Constitution stated.

Fundamental rights guaranteed by the Constitution cannot be taken away by ordinary law. That would in fact defeat the very purpose of a constitutional guarantee. Furthermore, in terms of Article 8(5) of the Constitution, fundamental rights cannot be suspended save as provided by the Constitution. The rigors of Article 8(5) of the Constitution are so hard-hitting that it is only in terms of an express constitutional command that fundamental rights can be suspended which means that fundamental rights are not mere accessories rather they are there for the protection of the people, worn like an armour by the people, being an intrinsic part of their being that remains impervious regardless of the circumstances and challenges. So, this raises the question as to how citizens can be subjected to a military trial when they are protected by fundamental rights at all times.

Judicial independence is a pre-requisite to the rule of law, which requires judicial forums to be independent, impartial and maintain integrity. Furthermore, the independence of the judiciary requires that judicial forums have exclusive jurisdiction over issues that require adjudication in courts. In this context, instances of military tribunals hearing cases of civilians have been frowned upon by the Human Rights Committee in general but especially so due to the procedures followed by the military courts.

Report 2017 and 2022 Human Right Practices: Lebanon: A Crisis by Design - Mid-Term UPR Report 2023 ref.

The very concept of a civilian facing military trial is violative of the fundamental right of fair trial and due process. This is evident from the facts of this case as the names of the detained civilians, facing military trial were revealed to the Court for the first time, pursuant to an order of the Supreme Court dated 22.06.2023 on 23.06.2023 vide an application. The Attorney General of Pakistan (AGP) then sought time to see if these names could be made public. In the order of 21.07.2023, the AGP gave certain assurances to the Court with respect to the manner in which civilians were being detained and tried before military courts. This included the fact that evidence shall be recorded at the trial of accused civilians under the law and procedure applicable to the criminal courts of ordinary jurisdiction and that the judgment delivered in the trial shall be supported by reasons. The AGP again sought time to seek instructions of whether the right of appeal could be given before an independent forum. These assurances and statements by the AGP in themselves reflect the fact that the concept of fair trial and due process being a fundamental right is not inherent in the proceedings for the benefit of civilians before a military court. However, notwithstanding the same, the AGP also highlighted some aspects of the Rules to further assure the Court of the fact that elements of due process and fair trial do exist within the military justice system as under the Pakistan Army Act, 1952 (Army Act) and the Pakistan Army Act Rules, 1954 (the Rules). On examining the Rules, it appears that the presiding officers in a military court are serving members of the military who in terms of Rule 51 of the Rules are not required to give a reasoned judgment rather merely record a finding of "guilty or not guilty" against every charge. There is no independent right of appeal against such a verdict as Section 133 of the Army Act provides that no remedy of appeal shall lie against any decision of a court martial save as provided under the Army Act. Section 133B prescribes for an appeal to the court of appeals consisting of the Chief of Army Staff or one or more officers designated by him or a Judge Advocate who is also a member of the armed forces. Rule 26 of the Rules permits the suspension of the rules on the grounds of military exigencies or the necessities of discipline which means that where in the opinion of the presiding officer convening a court martial or a senior officer on the spot, that military exigencies or discipline renders it impossible or inexpedient to observe some of the Rules then the operation of the Rules can be suspended which in turn means that any limited rights under the Rules such as Rule 13(5), being the right to cross-examine any witness, or Rule 23(1) being the right of preparation of a defence by the accused which includes the right to free communication with witness or friend or legal advisor can be suspended. These are but some of the more glaring issues that arise within a military trial, from which it is clear that there is a lack of impartiality and independence within a military trial and the concept of fairness and due process is missing from the procedure.

Brig. (Rtd.) F.B. Ali v. The State (PLD 1975 SC 506) distinguished.

The basic principle of the independence of the judiciary is that everyone is entitled to be tried by the ordinary courts or tribunals established under the law. The trial of a citizen by a military court for an offence which can be tried before the courts established under Article 175 of the Constitution offends the principles of independence of the judiciary and of fair trial.

The military justice system is a distinct system that applies to members of armed forces to preserve discipline and good order. Hence, they are subjected to a different set of laws, rules and procedures which ensures internal discipline and operational effectiveness. The purpose of a separate military justice system is to allow the armed forces to deal with matters pertaining directly to the discipline, efficiency and morale of the military effectively, swiftly and severely so as to ensure control over military personnel. Military jurisdiction covers members of the armed forces and includes matters related to their service which ensures the proper discharge of their duties and the maintenance of discipline amongst them. This is precisely why the Constitution brings such matters under the exception to Article 8(1)(2) in the form of Article 8(3)(a) of the Constitution which excludes the operation of fundamental rights when it relates to the members of the armed forces who are charged with the maintenance of public order in the discharge of their duties and the maintenance of discipline amongst them. Military trials of civilians on the other hand totally negates the requirement of an independent and impartial judicial forum, hence, it compromises the right to fair trial. Citizens enjoy the protection of fundamental rights under the Constitution and are assured that they will be treated as per law, such that their life and dignity is protected. At the same time, the Constitution commands the legislature to not make law which takes away any fundamental right protected under the Constitution. In this context, the requirement of the Federal Government to try civilians before military courts totally defies the constitutional command and is in derogation to the rights contained in Articles 4, 9, 10A, 14 read with Article 175 of the Constitution.

Liaquat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 distinguished.

Article 8(3)(a) of the Constitution applies to laws relating to the members of the armed forces specifically with reference to matters pertaining to the proper discharge of their duties and the maintenance of discipline amongst them. Laws relating to the armed forces includes the Army Act to the extent that it relates to persons subject to the Army Act because it is with reference to such persons that discharge of duty and discipline has to be maintained. Furthermore, when such persons are subjected to military courts, they do not enjoy the protection of any fundamental right as contemplated by Articles 8(1), 8(2) and 8(5) of the Constitution. It does not bring within its scope civilians who are persons not otherwise subject to the Army Act because they are not responsible for the maintenance of public order and the question of discharge of duties and maintenance of discipline does not arise. Article 8(3)(a) of the Constitution specifically applies to members of the Armed Forces and laws related to them and the AGP's argument that a person can be deprived of any of their fundamental rights especially the right to fair trial and due process because they have been made otherwise subject to the Army Act would mean that the Constitutional guarantee of fundamental rights can be taken away by ordinary legislation. This would totally defeat the purpose of Articles 8(1), 8(2) and 8(5) of the Constitution which goes against the clear and unequivocal intent of the Constitution.

Although, the vires of section 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 were previously challenged in the case reported as Brig. (Rtd.) F.B. Ali v. The State (PLD 1975 SC 506) ["F.B Ali case"] the grounds for challenge today are totally different and specifically with reference to the fundamental right to fair trial under Article 10A of the Constitution and the right to an independent judiciary. Where a law has been challenged with reference to it being in derogation to fundamental rights or any constitutional command such a law has to be declared unconstitutional and ultra vires the Constitution. Thus, the establishment of military courts cannot be upheld on the basis of reasonable classification as provided in the 'F.B Ali case' nor can it be declared as valid law on the touchstone of Article 10A of the Constitution.

Brig. (Rtd.) F.B. Ali v. The State PLD 1975 SC 506 distinguished.

The offences under the Official Secrets Act, 1923 are triable before the ordinary criminal courts, which guarantees fair trial, due process and independence as mandated by the Constitution. However, in the present case none of the 103 persons detained were reported for offences under the said Act. Yet applications were made under Section 549 of the Code of Criminal Procedure, 1898 (Cr.P.C.), for their delivery to military authorities. The referral of an accused person to a trial before a military court is in terms of Section 549 of the Cr.P.C. read with Sections 59(4), 94 and 95 of the Army Act. The criminal court having jurisdiction over the matter is obligated to form a reasoned opinion as to whether an accused person is to be tried by a military court because the transfer from the ordinary court to the military court for trial amounts to the loss of the right to fair trial and due process as well as the right to independent forum. This places a heavy burden on the Magistrate under Section 549, Cr.P.C. to protect the rights of the accused before it as the Magistrate must satisfy itself that the accused is subject to the Army Act and can only be tried before a military court. From the documents placed before the Supreme Court the denial of a reasoned order by the Magistrate is in fact the start of the process which is in contravention to the law as well as denial of the fundamental right of fair trial and due process for the detained citizens.

The facts in present petitions are unique and unfortunate, however, they do not justify the trial of civilians before a military court for offences which can be tried before ordinary courts which have the protection of Article 175 of the Constitution. If the ordinary or special courts are unable to meet the challenges of trying the civilians detained in these cases then the solution is to make an effort to strengthen the system. Relying on military courts on the ground that the ordinary courts are neither effective nor efficient reflects poorly on the State and the government whose primary responsibility is to maintain the rule of law and to ensure a strong and effective justice sector for the people. The Federation cannot blame a system it is responsible for and thereafter subject citizens to a system that violates their fundamental rights.

Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. The trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the Attorney General and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and/or special law of the land in relation to such offences of which they may stand accused. Any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are and would be of no legal effect.

(h) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope and essential ingredients---Basic ingredients for a fair trial in the light of Article 10A of the Constitution are that there should be an independent, impartial court, a fair and public hearing, right of counsel, right to information of the offence charged for with an opportunity to cross examine witnesses and an opportunity to produce evidence---It also includes the right to a reasoned judgment and finally the remedy of appeal---Hence, the ultimate objective is to ensure fairness in the process and proceedings and fairness itself being an evolving concept cannot be confined to any definition or frozen at any moment, with certain fundamentals which operate as constants---Independence of the decision maker and their impartiality is one such constant---A reasoned judgment before a judicial forum is another constant without which the right to fair trial would become meaningless---Right of an independent forum of appeal is another relevant constant which ensures fair trial.

Suo Motu Case No.4 of 2010 PLD 2012 SC 553; Muhammad Bashir v. Rukhsar PLD 2020 SC 334; Allah Dino Khan v. Election Commission of Pakistan PLD 2020 SC 591 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 ref.

(i) Constitution of Pakistan---

----Arts. 10A, 14(1) & 25(1)---Right of human dignity---Correlation with right to fair trial and due process---One of the most compelling human values recognized as a fundamental principle is the right of human dignity which actually constitutes the basis of all fundamental rights and encapsulates the right to fair trial, justice and equality---When this fundamental principle is declared as a fundamental right its significance increases as it signifies the manner in which rights, norms, state practices and the law should be implemented and prescribes the limits---State's duty to secure human dignity is the lynchpin as it forms the bedrock upon which all fundamental rights stand---Fundamental right to dignity acts as a compass that orients people and state functionaries in all their actions---Consequently, as a fundamental right it becomes a matter of judicial interpretation to determine whether executive decisions or legislative enactment have encroached upon these rights---It places a positive obligation on the State and requires it at all times that it protects and enforce the rights of the people so as to maintain their dignity---Right to dignity lends real meaning to human rights as it is inherent in every right protected by international human rights law---Therefore, when the right to fair trial and due process is invoked, so is the right to dignity which right under the Constitution is inviolable---Article 10A of the Constitution fortifies this right to fair trial and due process which is an essential requirement of human dignity.

Human Dignity in National Constitution: Functions, Promises and Dangers by Doron Shulztiner and Guy E. Carmi, published in American Journal of Comparative Law, Spring 2014, Vol. 62 No.2 and Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, UN document A/HRC/30/18(2015), Para 5 ref.

(j) Law, vires of---

----Past and closed transaction, doctrine of---Concept of past and closed transactions was evolved to safeguard accrued and vested rights of parties under a statute which subsequently was found and declared to be ultra vires the Constitution.

Pakistan Steel Mills v. Muhammad Azam Katper 2002 SCMR 1023; Muhammad Mobeen us Salam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Moizuddin and another v. Mansoor Khalil and another 2017 SCMR 1787 ref.

Per Yahya Afridi, J. [Minority view]

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

----Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 4, 10A, 184(3) & 199---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians in military courts under the Pakistan Army Act, 1952---Maintainability---Question raised in the present petitions, as to the constitutional validity of the military trial of civilians, is definitely one of public importance and with reference to the enforcement of the fundamental right of access to justice enshrined in the right to life and liberty guaranteed by Article 9 of the Constitution---Present petitions, thus, fulfill the two conditions precedent for invoking the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Furthermore no case with similar subject matter is pending before any of the High Courts under Article 199 of the Constitution---Authority of the Supreme Court to hear the present matter could not be stultified only because the petitioners had an alternative remedy before the High Court---Present constitutional petitions were, thus, maintainable.

Balochistan v. Azizullah Memon PLD 1993 SC 341 and Sh. Riaz-Ul-Haq v. Federation of Pakistan PLD 2013 SC 501 ref.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 distinguished.

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

----Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 9, 10A, 25, 175(3) & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---In the case reported as Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 ('F.B. Ali case'), sections 2(1)(d)(i) & (ii) and 59(4) of the Pakistan Army Act, 1952 ('Army Act') were adjudged to be intra vires the (1962) Constitution---The F.B. Ali case was decided by a Bench of five Judges, a Bench co-equal in numeric strength to that of the present Bench, therefore, the present Bench was bound by the view taken in F.B. Ali case on the constitutional validity of sections 2(1)(d)(i) & (ii) and 59(4) of the Army Act---Definite findings on 'fair trial' under the Army Act, expressed in the F.B. Ali case, were later referred to and relied upon in several cases before the Supreme Court that followed---Further in none of these cases it was found that the law declared in the F.B. Ali case was no longer a good law, or for that matter, has lost its efficacy. [Minority view]

It is not for the first time that the constitutional validity of sections 2(1)(d)(i) & (ii) and 59(4) of the Pakistan Army Act, 1952 ('Army Act') has been agitated and decided before the Supreme Court. It was earlier raised, considered, and decided by the Supreme Court in the case reported as Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 ('F.B. Ali case'), wherein, the said provisions of the Army Act were challenged on the ground of offending fundamental rights to life and liberty, and right to equality before law, as provided under the 1962 Constitution, which are essentially the predecessor provisions of Article 9 and 25 of the present Constitution, respectively. After testing the provisions of sections 2(1)(d)(i) & (ii) and 59(4) of the Army Act on the touchstone of the said fundamental rights, the Supreme Court adjudged them to be intra vires the Constitution, and not violative of Articles 9, 10A and 25 of the (present) Constitution. More importantly, the F.B. Ali case was decided by a Bench of five Judges, a Bench co-equal in numeric strength to that of the present Bench. It is a well-settled principle that an earlier judgment of a Bench of the Supreme Court is binding not only on the Benches of smaller numeric strength but also on the Benches of co-equal strength. A Bench of the Supreme Court cannot deviate from the earlier view held by a co-equal Bench of the Supreme Court. If a contrary view has to be taken, the proper course is to request for the constitution of a larger Bench to reconsider the earlier view. This being the legal position, while sitting on a Bench of co-equal strength, the present Bench is bound by the view taken in F.B. Ali case on the constitutional validity of sections 2(1)(d)(i) & (ii) and 59(4) of the Army Act.

Qaiser v. State 2022 SCMR 1641; Samrana Nawaz v. M.C.B. PLD 2021 SC 581; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 ref.

The counsel for the petitioners, in the present case, have argued that F.B. Ali case has been impliedly overruled by the cases reported as Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) [' the Mehram Ali case'] and Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) ['the Liaquat Hussain case']. However, this impression is not correct. The Mehram Ali case was decided by a five-member Bench, as was the Bench that decided F.B. Ali case. It could not have, nor has it, overruled F.B. Ali case, on the principle that a Bench of the Supreme Court cannot deviate from the earlier view held by a co-equal Bench. So far as Liaquat Hussain case is concerned, the Bench that decided the case consisted of nine Judges. Being a larger Bench, it could have overruled F.B. Ali case, if it intended to do so, but it has not done so, despite the fact that F.B. Ali case was brought to its notice. The Liaquat Hussain case has, instead of overruling F.B. Ali case, as argued by the petitioners, affirmed the principles decided therein by quoting and affirming the reasoning thereof. The doubt as to whether after Liaquat Hussain case, the law declared in F.B. Ali case, still holds the field or otherwise is further clarified by a more recent case reported as District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), wherein through a plurality judgment of eight judges, the Supreme Court relied on the findings rendered in F.B. Ali case and declared that the trial before a military court is a fair trial.

Definite findings on 'fair trial' under the Army Act, expressed in the F.B. Ali case, were later referred to and relied upon in several cases that followed, including cases reported as Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632), Muhammad Akram v. Federation of Pakistan (PLD 2009 FSC 36) and District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)['the District Bar case']. Similarly, the legal implications of Article 175(3) of the Constitution had also ripened at the time the Liaquat Hussain case and District Bar case were being heard and decided, yet none of the judges in both cases found that the law declared in the F.B. Ali case was no longer a good law, or for that matter, has lost its efficacy.

Moreover, it is not appropriate, to pass a definite finding on the vires of sections 2(1)(d) and 59(4) of the Army Act, without giving the Federation a reasonable opportunity to assist the Court on this point, in particular, regarding the applicability of these provisions to foreigners, foreign spies, alien enemies or such civilians, who attack the defence installations and/or defence personnel with the intention or object of causing damage to the defence of Pakistan.

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

----Ss. 2(1)(d)(ii) & 59(4)---Official Secrets Act (XIX of 1923), S. 2(8)---Constitution of Pakistan, Arts. 9, 10A, 25, 175(3) & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Non-applicability of section 2(1)(d)(ii) of the Pakistan Army Act, 1952 to such civilians---Held, that section 2(1)(d)(ii) of the Pakistan Army Act, 1952 ('the Army Act') would apply to an offence under the Official Secrets Act, 1923 which relates to any 'work' of the Armed Forces that has a direct and close nexus with the defence of Pakistan or to any 'affairs' of the Armed Forces that has such a nexus with the defence of Pakistan, and is committed with the intention or object of causing damage to the defence of Pakistan---Record of present case showed that these pre-requisites were missing in the case of the 103 civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023---Furthermore there has been a pick and choose by the authorities, in referring the cases for the trial of 103 civilian protesting perpetrators before the court martial under the Army Act---Detailed reasons for finding that the provisions of section 2(1)(d)(ii) of the Pakistan Army Act, 1952 were not applicable to the civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023 stated. [Minority view]

For determining the applicability of the provisions of section 2(1)(d)(ii) of the Pakistan Army Act, 1952 ('the Army Act') to a particular incident involving civilians, they have to be read in the light of the principle deduced in the case reported as Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 ('F.B. Ali case'), i.e. to be triable before a military court under the Army Act, the offences mentioned in section 2(1)(d) of the Army Act must have a close and direct nexus with the defence of Pakistan and must have been committed with the intention or object of causing damage to the defence of Pakistan. Thus, section 2(1)(d)(ii) of the Army Act would apply to an offence under the Official Secrets Act, 1923 which relates to any 'work' of the Armed Forces that has a direct and close nexus with the defence of Pakistan or to any 'affairs' of the Armed Forces that has such a nexus with the defence of Pakistan, and is committed with the intention or object of causing damage to the defence of Pakistan. Viewed in this perspective, clause (d)(ii) of section 2(1) of the Army Act broadly relates to the protection and preservation of the defence installations. Furthermore, it is not the commission of any offence by a civilian under the Official Secrets Act, 1923 relating to any 'work' or 'affair' of the Armed Forces that can make that civilian subject to the Army Act, but the offence must relate to such work or affair of the Armed Forces that is an integral part of their core function of defending Pakistan against external aggression or threat of war, which is missing in the case of the 103 civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023.

There is nothing on record to even suggest that the civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023 acted with the intention or object of causing damage to the defence of Pakistan or that their alleged acts relate to such work or affair of the Armed Forces which forms an integral part of the core function of defending Pakistan against external aggression or threat of war so as to come within the preview of section 2(1)(d)(ii) of the Army Act.

There is yet another aspect of the case that requires anxious consideration. The glaring fact that 'similarly situated' persons have been discriminated against, and there has been a pick and choose by the authorities, in referring the cases for the trial of 103 civilian protesting perpetrators before the court martial under the Army Act, while others 'similarly situated' persons are being proceeded against under the ordinary criminal dispensation. This was never the legislature's intent for the insertion of sections 2(1)(d)(i) & (ii) and 59(4) in the Army Act.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 43 ref.

Section 2(1)(d)(ii) of the Army Act does not apply to the 103 civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023 and they cannot, thus, be tried by a military court under the Army Act and are to be tried under the relevant criminal laws.

The trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the Attorney General and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and / or special law of the land in relation to such offences of which they may stand accused. Any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are declared void and of no legal effect.

For Petitioners:

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court.

Abid S. Zubairi, Advocate Supreme Court.

Khawaja Ahmad Hosain, Advocate Supreme Court Assisted by Ms. Rida Hossain, Advocate and Faisal Siddiqui, Advocate Supreme Court.

Sardar Shahbaz Ali Khosa, Advocate Supreme Court and Muhammad Vawda, Advocate Supreme Court.

Zaman Khan Vardag (In person)

(Via video link, Lahore)

Salman Akram Raja, Advocate Supreme Court along with Asad Rahim Khan, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-Record.

Ms. Bushra Qamar, Advocate Supreme Court

Muqtedir Akhtar Shabbir, (Members, Supreme Court Bar Association).

For the Federation:

Mansoor Usman Awan, Attorney General for Pakistan, Ch. Aamer Rehman, Additional Attorney General Assisted by Ibrahim Khan, Umair Ahmad, Advocate, Ahmed ur Rehman, Yasir Shah, and Saad Javid Sattil, Associates.

For Government of Punjab:

Sana Ullah Zahid, Additional AG, Punjab.

For Government of Khyber Pakhtunkhwa:

Amir Javed, Advocate General, Khyber Pakhtunkhwa.

(Via video link, Peshawar)

Sultan Mazhar Sher Khan, Additional AG, Khyber Pakhtunkhwa.

For Government of Sindh:

Akbar Hussain, AG. Sindh

Saifullah, Additional A.G. Sindh

For Government of Balochistan:

Muhammad Ayaz Khan Swati, Addl. AG, Balochistan

For Respondent No.9 in C.P. No. 25 of 2023:

Uzair Karamat Bhandari, Advocate Supreme Court.

For (then) Interior Minister:

Shah Khawar, Advocate Supreme Court

For respondent No. 12 in C.P. No. 25 of 2023:

Ashtar Ausaf Ali, Advocate Supreme Court

(via video link, Lahore)

For (then) Defence Minister:

Irfan Qadir, Advocate Supreme Court

(via video link, Lahore)

P L D 2024 Supreme Court 486

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

ALI KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through A.G., Islamabad and another---Respondents

C.U.O.18/2024 in C.P. NIL of 2024, decided on 21st February, 2024.

(Declaring General Elections 2024 Null and Void due to the Flagrant violations of Democratic Norms).

Constitution of Pakistan---

---Art. 184(3)---General Elections 2024---Constitutional petition under Article 184(3) to declare the General Elections 2024 null and void due to the flagrant violations of democratic norms---Withdrawal of petition---Abuse of the process of the Court---Waste of Court's time---Imposition of costs---In his email to the Fixation Branch of the Supreme Court, the petitioner did not disclose the fact of being court martialed and mentioned the rank which he held before being court martialed---Petitioner misused the rank which he had previously held in the Pakistan Army which he could not do so---Petitioner must have used his rank to attract publicity and to ensure that the contents of his petition are widely broadcast in the media and published in newspapers, and after having achieved such purpose, the petitioner immediately bought a ticket to catch a flight out of the country -- Usual practice is to buy a return ticket, but the petitioner bought a one-way ticket, and he also did not disclose when he will return to Pakistan---Petitioner also did not disclose the reason for his sudden departure from Pakistan nor why he had to go to a foreign country---It is also not disclosed why, just one day after filing the petition, he sought its withdrawal---Petitioner's conduct demonstrates that he wants to undermine the credibility of constitutional bodies, which is neither in the citizens nor in the country's interest---Present petition has also consumed valuable court time, which is to be spent on deciding the cases of genuine litigants; not use the media for ulterior and nefarious purposes---Application for withdrawal of the petition was allowed and the petition was dismissed as withdrawn with costs of five hundred thousand rupees which were to be paid equally to the Pakistan Bar Council and to the Supreme Court Bar Association within thirty days, failing which they were to be recovered from the petitioner as arrears of land revenue.

Nemo for Petitioner.

Ch. Aamir Rehman, Addl. AGP along with Lt.-Col. Kafeel Khan, Director (Legal) Ministry of Defence and Akhtar Zaman, S.H.O. Humak for the State.

M. Shahzad Shaukat, Advocate Supreme Court (President SCBA) (on Court's call).

P L D 2024 Supreme Court 489

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

ANJUMAN GHULAMAN MUSTAFA ---Petitioner

Versus

DARUL ISLAMIA SOCIETY and others---Respondents

C.P.L.A.No.6052 of 2021, decided on 26th January, 2024.

(On appeal against the judgment dated 16.09.2021 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.386 of 2021).

Limitation Act (IX of 1908)---

----Sched. I, Art. 181---Civil Procedure Code (V of 1908), S. 115---Execution petition, filing of---Limitation---Commencement of period of limitation---Principles---In the present case, the decree of the Court of first instance was first challenged in appeal and then in revision before the High Court---After exhausting all statutory remedies under the Code of Civil Procedure, 1908, none of the parties considered it appropriate to avail of constitutional remedy before the Supreme Court---In such a situation, till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified---In light of this principle, the application, brought by the decree-holder/respondent for the execution of the decree cannot be held to be barred by time---If the decree/order passed in revision had been challenged by filing a petition for leave to appeal before the Supreme Court, the position would have been different, and the period of limitation would have been governed by the principle laid down in the case reported as Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5), which expounds that unless the Supreme Court stays the proceedings of the decree or converts the petition into an appeal, the period of limitation cannot be deemed to have been clogged---Merely filing a petition for leave to appeal does not automatically extend the time for filing an execution application---However, if the leave is granted, the petition is converted into an appeal and allowed, in which case, the order of the Supreme Court will merge into the order of the lower forums and, thus, the period of limitation will start from the order of the Supreme Court---Since, in the case under consideration, the remedy before the Supreme Court was not availed of, the precedent of Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5) does not apply to it---Petition was dismissed and leave was declined.

Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5 and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah 1992 SCMR 241 ref.

Junaid Iftikhar Mirza, Advocate Supreme Court and Syed Rifaqat Hussain, Advocate-on-Record for Petitioner.

Malik Muhammad Kabeer, Advocate Supreme Court for Respondents.

P L D 2024 Supreme Court 492

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

ROHAN AHMAD---Petitioner

Versus

The STATE and others---Respondents

Crl. P. No. 894-L of 2023, decided on 15th January, 2024.

(Against the order of Lahore High Court, Lahore dated 22.08.2023, passed in Crl. Misc.No.12650-B of 2023).

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

----S. 497(1), third proviso---Constitution of Pakistan, Arts. 4, 9, 10A & 185(3)---Bail---Delay in conclusion of trial---Grant of statutory bail where the delay in the conclusion of the trial is due to the act of the Court---Principles stated.

According to the third proviso to Section 497(1), Cr.P.C. a court shall release the accused on bail in an offence punishable with death if he has been detained for a continuous period exceeding two years, unless the delay in the trial has been occasioned by an act or omission of the accused or any other person on his behalf or the conditions mentioned in the fourth proviso are attracted. The statutory right to be released on bail under the third proviso to Section 497, Cr.P.C. is not merely a statutory right but also stands firmly on constitutional guarantees under Articles 4, 9 and 10A of the Constitution. Under the said Articles the accused, like any other citizen enjoys the protection of law and to be treated in accordance with law; the accused cannot be deprived of liberty, except in accordance with law; and in determination of any criminal charge against him the accused shall be entitled to a fair trial and due process. These basket of rights are available to an accused who enjoys a presumption of innocence in his favour and understandably cannot be subjected to an indefinite pre-trial detention and therefore cannot be denied bail under the third proviso to section 497(1), Cr.P.C unless there is convincing material that the delay has been occasioned by the act or omission of the accused himself or if his case falls under any of the exceptions under the fourth proviso to section 497, Cr.P.C.

For an accused to be denied statutory bail, it must be demonstrated that his act or omission, was intentionally aimed at prolonging the trial. It must show a deliberate pattern of seeking adjournments without valid reasons during key hearings such as the examination or cross-examination of prosecution witnesses. Mere counting the number of adjournment requests alone is not enough to justify withholding bail. The application of the third proviso to Section 497(1) of the Cr.P.C when interpreted in the light of Articles 9 and 10A of the Constitution, broadens and enhances the rights of an accused who is presumed innocent during trial. The prosecution must present clear evidence that the accused or his counsel was actively trying to delay the trial through unnecessary adjournments or irrelevant applications, in order to justify denying bail. The act or omission on the part of the accused to delay of the timely conclusion of the trial must be an outcome of a concerted and consistent effort of the accused orchestrated to delay the trial.

Shakeel Shah v. The State 2022 SCMR 1 and Nadeem Samson v. State PLD 2022 SC 112 ref.

In the present case the record showed that the delay has been due to the act of the court. The trial has been suspended by the High Court on the filing of the Criminal Revision by the petitioner and during the continuum of the said suspension, the statutory period of delay i.e., continuous period exceeding two years under clause (b) of the third proviso to Section 497(1), Cr.P.C. has lapsed. The Criminal Revision is still pending before the High Court and it has been over three years since the petitioner (accused) was arrested. The Criminal Revision has not progressed for no fault of the petitioner, there is nothing on the record that the delay has been occasioned by the act or omission of the petitioner. The delay has been mainly due to the act of the High Court as the case was repeatedly relisted and not taken up on several hearings for no fault of the accused and thus the indefinite delay in the trial has been due to the act of theHigh Court which cannot be attributed to the accused in any circumstance. Petition was converted into appeal and allowed; and petitioner was admitted to bail.

Fida Hussain v. State PLD 2002 SC 46; Sher Ahmed v. State 1995 SCMR 1944 and Zahir Hussain Shah v. State PLD 1995 SC 49 ref.

(b) Administration of justice---

----Criminal trial---High Court staying or suspending proceedings of Trial Court---Expeditious disposal by the High Court---While the High Court enjoys the authority to order stay or suspend the proceedings in a criminal trial, in a deserving case, it is equally important that such an exercise of authority must be carried out with caution and circumspection, ensuring expeditious disposal of the case after the grant of injunctive relief---High Court should not lose sight of the case where it has exercised its extraordinary power of staying or suspending the proceeding of a criminal trial but should make it a point of finally disposing of such proceedings as early as possible.

Imtiyaz Ahmad v. State of Uttar Pradesh AIR 2012 SC 642 ref.

Sh. Usman Karim-ud-Din, Advocate Supreme Court for Petitioner.

Shahid Tasawar Rao, Advocate Supreme Court for the Complainant along with Complainant.

Raja M. Shafqat Khan Abbasi, D.A.G. along with Naveed, I.O. for the State.

P L D 2024 Supreme Court 497

Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Amin-ud-Din Khan and Athar Minallah, JJ

General (Retd.) PERVEZ MUSHARRAF---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

Criminal Appeal No. 785 of 2020, decided on 10th January, 2024.

(On appeal from the order dated 17.12.2019 passed by the Special Court, Islamabad in Complaint No. 1 of 2013).

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

----S. 12(3)---Criminal Procedure Code (V of 1898), S. 431---Appeal to the Supreme Court against final judgment of the Special Court---Legal heirs of convict neither responding to notices nor appearing before the Supreme Court---Effect---Abatement of appeal---Supreme Court, though not obliged to do so, but in the interest of justice, had also issued notices to the legal heirs of the appellant (convict) on all available addresses and which were provided, both within the country and abroad---Notices were also published in a leading English newspaper and a leading Urdu newspaper---However, none of the legal heirs had come forward and elected to contest present appeal--- Counsel for the deceased appellant stated that the legal heirs did not approach him, let alone engage him, and had also not responded to the notices/publications issued by the Supreme Court; that in his opinion the instant appeal abates in terms of section 431 of the Code of Criminal Procedure, 1898---In the given circumstances, and as none of the legal heirs had come forward, the present appeal was dismissed as having abated---Consequently, the conviction of the appellant by the Special Court subsisted.

Barrister Salman Safdar, Advocate Supreme Court for Appellant.

Ch. Aamir Rehman, Additional Attorney-General for Pakistan for Respondents.

P L D 2024 Supreme Court 499

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

REHM DAD---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Lahore and others-- Respondents

Civil Petition No. 1857 of 2022, C.M.A. No. 3899 of 2022 and C.M.A. No. 1032 of 2023 in C.P. No. 1857 of 2022, decided on 15th February, 2024.

(Against judgment dated 24.03.2022 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in I.C.A. No. 13 of 2021).

Land Acquisition Act (I of 1894)---

----Ss. 18 & 54---Law Reforms Ordinance (XII of 1972), S. 3(2), proviso---Punjab Land Acquisition Rules, 1983, Rr. 14 & 15---Intra Court Appeal ('ICA')---Maintainability---Division Bench of the High Court dismissed the ICA on the ground that the same is not maintainable in light of the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 ('LRO') as Sections 18 and 54 of the Land Acquisition Act, 1894 ('LAA') provides the right of reference and appeal respectively to the petitioner against the order of the Member, Board Of Revenue ('BOR')---Division Bench further found that the petitioner even had the right to file a review under Section 8 of the West Pakistan Board of Revenue Act, 1957 ('BOR Act')---Validity---Essential requirement to invoke the proviso to Section 3(2) of the LRO is to see whether the right of at least one appeal, revision or review is available to the original order in a proceeding where the relevant law is applicable---In relation to the applicability of the law, the determining factor is the order with which the proceedings under the relevant statute commenced---Hence, in terms of the proviso to Section 3(2) of the LRO, the settled principle is that the law applicable shall be the law by which the proceeding started or commenced, which forms the basis of the original order---In the instant case, the petitioner moved an application under Rules 14 and 15 of the Punjab Land Acquisition Rules, 1983 ('1983 Rules') before the BOR, which, was dismissed---It may be noted that the 1983 Rules were made under Section 55 of the LAA---It is established law that the rules framed under the relevant statute are an integral part of the parent Act---If the very existence of rules is based on legislation, then it shall be the said statute, including its rules, which will be the law applicable to proceedings within the meaning of the proviso to Section 3(2) of the LRO---Hence, in the existing matter, both the LAA and 1983 Rules are laws applicable to proceedings before the BOR---Scope of Section 18 of the LAA is very limited and restricted towards the subject-matter of measurement and compensation of land---Petitioner has not raised any objections as stated in Section 18 of the LAA---Instead, the contention of the petitioner has remained that the subject land has not been utilized for the purpose for which it was acquired, hence, the same may be returned to him---That is why, he filed the application under Rules 14 and 15 of the 1983 Rules---Hence, the petitioner cannot invoke reference provisions under the LAA----Moreover, the appeal under Section 54 of the LAA lies before the High Court from the award, or from any part of the award---Meaning thereby the appeal can only be filed before the High Court after the decision of the Referee Court---As the petitioner has not raised objections before the Referee Court under Section 18 of the LAA so he cannot seek the remedy of appeal under Section 54 of the LAA---Therefore, no right of appeal was available to the petitioner in terms of Section 54 of the LAA---Consequently, the proviso to Section 3(2) of the LRO is not attracted to the existing case as no right of appeal, revision or review is available to the application under Rules 14 and 15 of the 1983 Rules filed by the petitioner---Lastly, BOR Act is not the law applicable to the order passed by the Member, BOR under the proviso to Section 3(2) of the LRO---Law applicable to the instant proceeding is the LAA and 1983 Rules; so the BOR Act is inapplicable within the meaning of proviso to Section 3(2) of the LRO---Therefore, the Division Bench of the High Court has incorrectly concluded that the ICA is not maintainable--- Intra-Court Appeal is maintainable as no right of appeal, revision or review is available on the order passed by the Member, BOR on the application under Rules 14 and 15 of the 1983 Rules---Petition was converted into an appeal and the same was allowed and present matter was remanded to the Division Bench of the High Court for deciding the ICA afresh within a period of thirty (30) days.

International Islamic University v. Syed Naveed Altaf 2024 SCMR 472; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I PLD 1985 SC 107; Muhammad Aslam Sukhera v. Collector Land Acquisition PLD 2005 SC 45; Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344; Wazir Begum v. Member, Board of Revenue 2000 SCMR 989; Secretary to the Government of Punjab v. Sajjad Ahmad 2012 SCMR 114; Mirza Muhammad Nazakat Baig v. Federation of Pakistan 2020 SCMR 631; JS Bank Limited v. Province of Punjab 2021 SCMR 1617 and Land Acquisition Collector v. Mian Khan PLD 2007 SC 620 ref.

Ch. Imran Hassan Ali, Advocate Supreme Court for Petitioner.

Sanaullah Zahid, Additional Advocate General, Punjab for the Government of Punjab.

Tariq Aziz, Advocate-on-Record /Advocate Supreme Court for Respondent No. 5.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Respondent No. 6.

P L D 2024 Supreme Court 509

Present: Qazi Faez Isa, CJ, Sardar Tariq Masood, Syed Mansoor Ali Shah, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

REFERENCE NO. 1 OF 2011

[Reference by the President of Islamic Republic of Pakistan under Article 186 of the Constitution]

Reference No. 1 of 2011, decided on 6th March, 2024.

(a) Constitution of Pakistan---

----Arts. 4, 8, 9, 10A, 14, 25 & 186---Reference by the President under Article 186 of the Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Requirements of due process and fair trial---Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial against Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guaranteed under Article 4, sub-Articles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution?; and, if it does not, its effect and consequences?---Supreme Court opined that the proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan do not meet the requirements of the Fundamental Right to a fair trial and due process enshrined in Articles 4 and 9 of the Constitution and later guaranteed as a separate and independent Fundamental Right under Article 10A of the Constitution---Constitution and the law do not provide a mechanism to set aside the judgment whereby Mr. Bhutto was convicted and sentenced; the said judgment attained finality after the dismissal of the review petition by the Supreme Court.

(b) Constitution of Pakistan---

----Arts. 186 & 189---Reference by the President under Article 186 of the Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Whether the conviction leading to execution of Zulfiqar Ali Bhutto could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution? and, if not, its effect and consequences?---Supreme Court opined that referenced questions do not specify the principle of law enunciated by the Supreme Court in the Zulfiqar Ali Bhutto case regarding which the Supreme Court's opinion is sought---Therefore, it cannot be answered whether any principle of law enunciated in the Zulfiqar Ali Bhutto case has already been dissented to or overruled.

(c) Constitution of Pakistan---

----Art. 186---Reference by the President under Article 186 of the Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Whether in the peculiar circumstances of the present case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Zulfiqar Ali Bhutto?; and, whether on the basis of conclusions arrived at and inferences drawn from the evidence/material in the case an order for conviction and sentence against Zulfiqar Ali Bhutto could have been recorded?---Supreme Court opined that in its advisory jurisdiction under Article 186 of the Constitution, it cannot reappraise the evidence and undo the decision of the case---However, in the detailed reasons, the Supreme Court shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.

(d) Constitution of Pakistan---

----Art. 186---Reference by the President under Article 186 of the Constitution to revisit the cases of Zulfiqar Ali Bhutto (former Prime Minister of Pakistan) reported as Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 Supreme Court 38) and Zulfikar Ali Bhutto v. The State (PLD 1979 Supreme Court 53)---Murder trial of Zulfiqar Ali Bhutto by the Trial Court (the Lahore High Court) and the appellate court (the Supreme Court)---Whether the decision in the case of murder trial against Zulfiqar Ali Bhutto fulfils the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (SAW)?; if so, whether present case is covered by doctrine of repentance specifically mentioned in the following Suras of Holy Quran: (i) Sura Al-Nisa, verses 17 and 18; Sura Al-Baqara, verses 159, 160 and 222; Sura Al-Maida, verse 39; Sura Al-Aaraaf, verse 153; Sura Al-Nahl, verse 119; Sura Al-Taha, verse 82, as well as Sunan Ibn-e-Maaja, Chapter 171, Hadith No. 395; and, what are effects and consequences of doctrine - Re: Repentance---Supreme Court opined that it was not rendered any assistance on this question, therefore, it would be inappropriate to render an opinion on the same.

In Attendance:

On behalf of President:

Mansoor Usman Awan, Attorney-General for Pakistan assisted by Ch. Aamir Rehman, Additional Attorney-General, Malik Javed Iqbal Wains, Additional Attorney-General, Raja M. Shafqat Abbasi, Deputy Attorney-General and Ms. Marium Ali Abbasi, Advocate.

On Court Notice:

Khalid Ishaq, Advocate-General, Punjab, assisted by Sanaullah Zahid, Addl. A.G. Hassan Akbar, Advocate-General, Sindh assisted by Qazi M. Bashir, Addl. A.G. Amir Javed, Advocate-General, Khyber Pakhtunkhwa, assisted by Sultan Mazhar Sher Khan, Addl. A.G. Asif Reki, Advocate-General, Balochistan assisted by M. Ayaz Swati, Addl. A.G.

For the LRs of the Late Zulfiqar Ali Bhutto:

Farooq H. Naek, Sr. Advocate Supreme Court, assisted by Iftikhar Shah and Sheraz Shaukat Rajpar, Advocates (on behalf of Bilawal Bhutto Zardari).

Mian Raza Rabbani, Advocate Supreme Court, assisted by Zeeshan Abdullah, Advocate (on behalf of Ms. Sanam Bhutto, Ms. Bakhtawar Bhutto and Ms. Aseefa Bhutto).

Zahid F. Ibrahim, Advocate Supreme Court, assisted by Altamash Arab, Advocate (on behalf of Ms. Fatima Bhutto and Zulfiqar Ali Bhutto).

Amicus Curiae

Manzoor Ahmad Malik.

Hon'ble former Judge, assisted by Ansar Nawaz Mirza, Advocate Supreme Court, Haider Rasul, Advocate Supreme Court and Shahryar Riaz, Advocate High Court.

M. Makhdoom Ali Khan, Sr. Advocate Supreme Court, assisted by Saad Mumtaz Hashmi, Advocate Supreme Court.

Khalid Jawed Khan, Advocate Supreme Court.

Ch. Aitzaz Ahsan, Sr. Advocate Supreme Court, assisted by Ms. Zunaira Fayyaz Siwia, Advocate and Qaiser Nawaz, Advocate.

Assadullah Khan Chamkani, Advocate Supreme Court, assisted by M. Tariq Khan Hoti, Advocate Supreme Court.

Salahuddin Ahmed, Advocate Supreme Court, assisted by Ehsan Malik and Aman Aftab, Advocates.

Complainant:

Ahmed Raza Khan Kasuri, Advocate Supreme Court (in person).

For SCBA:

Ali Imran, Advocate Supreme Court.

Dates of hearing: 12th December, 2023, 8th January, 20th, 26th, 27th, 28th February and 4th March, 2024.

OPINION

In the course of performing our core duty to administer justice 'in accordance with the Constitution of the Islamic Republic of Pakistan and the law', we (judges) are bound to 'do right to all manner of people, according to law, without fear or favour, affection or ill-will.'1 There have been some cases in our judicial history that created a public perception that either fear or favour deterred the performance of our duty to administer justice in accordance with the law. We must, therefore, be willing to confront our past missteps and fallibilities with humility, in the spirit of self-accountability, and as a testament to our commitment to ensure that justice shall be served with unwavering integrity and fidelity to the law. We cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes.

1. The advisory jurisdiction, under Article 186 of the Constitution, requires this Court to render an opinion on any question of law of public importance referred to by the President. To us, the question of law, in essence, is whether the requirements of due process and fair trial were complied with in the murder trial of Mr. Zulfiqar Ali Bhutto ("Mr. Bhutto"), the former Prime Minister of Pakistan, by the trial court (the Lahore High Court) and the appellate court (the Supreme Court). This question we approach and answer considering whether the trial court and the appellate court attended to and dealt with the requirements of due process and fair trial.

2. The reference filed by the President of Pakistan has provided us an opportunity to reflect upon the proceedings of the trial, conviction and death sentence of Mr. Bhutto, under the regime of the military dictator General Zia Ul Haq. The reference was filed during the government of the political party founded by Mr. Bhutto but the successive governments of other major political parties carried forward this inquiry and did not opt to withdraw the reference. This collective interest reflects the widespread desire of the people of Pakistan to seek the opinion of this Court on whether Mr. Bhutto was afforded a fair trial and due process for his trial for the murder of Mr. Muhammad Ahmed Khan Kasuri.

3. With the able assistance of the eminent legal minds of the country, we for the reasons to be recorded later and subject to amplifications and explanations made therein, render an opinion on the referred questions in the following terms:

Question (1)

Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guaranteed under Article 4, sub-Articles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973? If it does not, its effect and consequences?

Opinion

(i) The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan do not meet the requirements of the Fundamental Right to a fair trial and due process enshrined in Articles 4 and 9 of the Constitution and later guaranteed as a separate and independent Fundamental Right under Article 10A of the Constitution.

(ii) The Constitution and the law do not provide a mechanism to set aside the judgment whereby Mr. Bhutto was convicted and sentenced; the said judgment attained finality after the dismissal of the review petition by this Court.

Question (2)

Whether the conviction leading to execution of Shaheed Zulfiqar Ali Bhutto could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973? If not, its effect and consequences?

Opinion

Referenced questions do not specify the principle of law enunciated by this Court in the Zulfiqar Ali Bhutto case regarding which our opinion is sought. Therefore, it cannot be answered whether any principle of law enunciated in the Zulfiqar Ali Bhutto case has already been dissented to or overruled.

Questions (3) and (5)

Whether in the peculiar circumstances of this case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Shaheed Zulfiqar Ali Bhutto?

Whether on the basis of conclusions arrived at and inferences drawn from the evidence/material in the case an order for conviction and sentence against Shaheed Zulfiqar Ali Bhutto could have been recorded?

Opinion

In its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case. However, in our detailed reasons, we shall identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.

Question (4)

Whether the decision in the case of murder trial against Shaheed Zulfiqar Ali Bhutto fulfils the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (SAW)? If so, whether present case is covered by doctrine of repentance specifically mentioned in the following Suras of Holy Quran:

P L D 2024 Supreme Court 515

Present: Munib Akhtar, Muhammad Ali Mazhar and Athar Minallah, JJ

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

Versus

FAZAL-E-SUBHAN and others---Respondents

C.Ps. Nos.2314, 2317, 2318 of 2022 and C.M.As. Nos. 863-P, 866-P, 869-P of 2022 in C.Ps. Nil of 2022, decided on 30th May, 2023.

(Against judgment dated 10.05.2022 passed by the Peshawar High Court, Peshawar in W.Ps. Nos.712-P, 370-P and 377-P of 2022).

AND

C.M.As. Nos. 863-P, 866-P and 869-P of 2022 in C.Ps. No. NIL of 2022.

(Permission to file and argue)

Per Muhammad Ali Mazhar, J.; Munib Akhtar, J. agreeing; Athar Minallah, J. partially dissenting. (Majority view)

(a) Constitution of Pakistan---

----Arts. 175A(8) & 175A(12)---Judicial Commission of Pakistan Rules, 2010, R. 3---Parliamentary Committee on Judges Appointment in the Superior Courts Rules, 2010, Rr. 4(3) & 4(4)---Additional Judges of (Peshawar) High Court, appointment of---Appointment of District judges as Additional Judges of the High Court---Appointment criteria---Seniority-cum-merit---Judicial Commission and Parliamentary Committee---Scope and powers of Judicial Commission and Parliamentary Committee in regard to appointment of Judges in the superior Courts under Article 175A of the Constitution stated.

Per Muhammad Ali Mazhar, J. (Majority view)

The role and powers assigned to the Judicial Commission ('the Commission') and the Parliamentary Committee ('the Committee') in the Constitution as two of the most important limbs of the judicial appointment process is to be vetted under the doctrine of harmonious interpretation which is akin to the notion of an extensive approach within the basic structure and constitutional scheme.

A reading of Article 175A of the Constitution makes it abundantly clear that two different limbs have been created to examine and scrutinize the nominations of judges for appointment in the superior Courts, but it is apparent that the Parliamentary Committee ('the Committee') is neither vested with any role to act as an appellate forum for the Judicial Commission ('the Commission'), nor does the Committee have any right or authority to remand the nomination for reconsideration to the Commission. The Committee can neither travel beyond its bounds or limits, nor can it undertake or embark on the role and functions of the Commission. The role of the Committee is confined to the confirmation, or non-confirmation, of the name nominated and, in case the nomination is not confirmed, the reasons thereof shall be sent to the Commission for sending another nomination. In the present case the Committee remanded the matter to the Commission for fresh consideration due to the alleged seniority issue, which exercise of powers by the Committee is alien to Article 175A of the Constitution.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatti and others PLD 2011 SC 752; Sindh High Court Bar Association, Sukkur v. Pakistan through Secretary Ministry of Law, Parliamentary Affairs and Justice, Islamabad and another PLD 2012 Sindh 531; Al-Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Sharaf Faridi and others v. Federation of the Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan and others PLD 2010 SC 61; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 ref.

The Committee cannot be considered an ineffectual or superfluous corpus, rather it has the capability and competence to complement value added role in bringing forth judicial appointments by taking into consideration material which is different from and may not have been available to the Commission. The Committee may examine and gauge the antecedents, such as character, moral and or financial integrity and can reach an independent decision on the basis of factual data, if any, collected by them and which was not before the Commission, and communicate its independent reasoning in order to avoid any controversial appointment. A rational demarcation of roles of two constitutional bodies cannot be considered adversarial or on the warpath. Quite the opposite, the object of both bodies is to ensure the appointment of the most suitable and deserving persons as Judges of superior Courts.

In the present case the bone of contention was with regard to the breach of seniority due to which the Committee did not confirm the names of the District Judges as recommended by the Commission. Though no right of appeal is provided to an aggrieved person under the Constitution or the Judicial Commission of Pakistan Rules, 2010 and the Parliamentary Committee on Judges Appointment in the Superior Courts Rules, 2010 against a decision of the Commission and Committee, nor can the proceedings before the Commission be considered a 'trial' within the meaning of Article 10A of the Constitution, but in all fairness, it is clear that the nominations in the present case were finalized by the Chief Justice (of Peshawar High Court) in consultation with his fellow judges at the High Court and then proposed for recommendation to the Commission, and it is reflected from the minutes of meeting of the Commission that, after due diligence of the service record, and deliberation on the issue of seniority, the recommendations were made by a majority of the members with their collective wisdom.

In view of the fact that the elevation of District Judges corresponds with and reckons from the service cadre, therefore for all practical purposes, the guiding principle as accentuated and envisioned in the civil servant structure may be contemplated to appreciate the phraseology of seniority-cum-fitness and/or seniority-cum-merit. While considering the eligibility for promotion or progression, the predominant factor is not solely seniority, instead it is always coupled with fitness and/or merit. Seniority or length of service is not considered a solitary benchmark or standard, in fact competence, antecedents and credentials are also predominant components for progression to the particular post.

Muhammad Amjad v. Director General, Quetta Development Authority and another 2022 SCMR 797 = 2022 PLC (C.S.) 594 and State of Mysore v. Syed Mahamood and others AIR 1968 SC 1113 ref.

The minutes of meeting of the Commission reflect that, after effectual and lengthy discussion and deliberation, including on the issue of seniority, and considering the pros and cons of the views expressed by the members, the Commission, according to the mandate of Article 175A of the Constitution, recommended the nominees (District Judges) for appointment as Additional Judges of the Peshawar High Court by a majority of ten members and forwarded the recommendations to the Committee. The raison d'être of enacting Article 175A in the Constitution for the appointment of judges to the superior Courts through the Commission is to make recommendations by majority without according any primacy or supremacy to any individual member. Absolute discretion is not given to any one, not even to the Chairman of the Commission, rather the decision is to be made by majority without any provision for a casting vote where there is a tie among the members. The majority decision or recommendation rendered by the Commission cannot be made subject to review by the Committee whose dominion and province of expertise is entirely different. The Commission and Committee are both obligated and duty-bound to act within the spheres of their dominions and command. The realm of powers and jurisdiction of the Commission within the framework of the collegium is to evaluate the professional caliber, judicial skill, legal acumen, personal conduct and suitability of the nominees, which terminus cannot be trespassed or encroached on by the Committee under the region of its powers. In this case too, while remanding the matter to the Commission, the Committee failed to render any independent evaluation or reasoning even with regard to the seniority issue, and instead, on the basis of a discussion among some members of the Commission on the issue of seniority, jotted down in the minutes of the meeting, decided to remand the matter for reconsideration without proper application of mind. The Committee cannot make their decision on the basis of minority views expressed (in the Commission) during discussion but in totality, the majority discussion must be considered and in case of a variance of opinion, the Committee should provide independent reasoning and the decision should not be based on guesswork or picking and choosing the points from the gist of discussion recorded in the minutes of meeting of the Commission. In the present case there is no indication in the decision of Committee that any independent vetting was done by the Committee with regard to the antecedents, character, and integrity, instead the Committee has relied entirely on the pre-discussion and deliberation of the members of the Commission made prior to finalizing the recommendations. Under the mandate of Article 175A of the Constitution, the Committee may confirm or may not confirm the candidate with reasons, but there is no power vested in the Committee to call upon the Commission to reconsider the nominations. In this case the Committee's act of remanding the matter to the Commission for reconsideration was not only against the command and mandate of Article 175A of the Constitution, but also transgression of the enabling Rules and the hierarchy identified and demarcated for the functioning of the Commission and Committee, hence, the High Court rightly set aside the decision of the Committee.

Per Athar Minallah, J. (Minority view)

It is the duty of the Commission to identify, evaluate and ultimately nominate for each vacancy in accordance with an objective predetermined criteria. The terms of the power that authorizes the Commission to make the nomination for each vacancy implies that it will conduct its proceedings as a collegium, rather being influenced by the subjective opinion of one of the members. The decisions and nominations must be based on relevant considerations and for the objective for which the power has been conferred. The Commission, despite the presence of serving or retired judges, performs an executive function; appointment of judges and its proceedings are therefore not immune from the power of oversight conferred on the Committee. There is no reason why the grounds that renders a decision void and unenforceable e.g illegality, irrationality, procedural impropriety or taking irrelevant matters into consideration, will not apply and be attracted in the case of the proceedings and decisions of the Commission. The Commission involved in the performance of a duty as an executive feat is definitely not above the law nor immune from oversight scrutiny of the Committee. It will be a breach of the terms of the power conferred on the Commission to make a nomination otherwise than on merit. As a corollary, lack of transparency will render the proceedings and nomination as illegal and flawed.

The Committee performs the duty of democratic accountability or, in other words, oversight. It forms part of the performance of a duty of paramount public importance; appointing each judge on merit. It is, therefore, a duty, not a discretion, of the Committee to ensure that the Commission has not breached or exceeded the terms of its power and has performed the duty for the objective for which it has been conferred. The Committee will be within its powers if it does not confirm a nomination if it finds that the Commission had breached or failed to perform its public duty i.e to nominate on the basis of merit; the best and most worthy amongst the eligible. The Committee and Commission are not adversaries and no one is superior to the other. Both have been created to perform a duty of paramount public importance that have consequences for every citizen and their rights and freedoms. This duty can only be performed in accordance with the intent of the framers of the Constitution and mutual respect by both forums for each other. The objective for which the power has been conferred on the Commission is to identify, evaluate and then decide to make a nomination for each vacancy on merit. The public confidence cannot be reposed in the Commission merely because of its composition, rather it depends on the transparency and credibility of its proceedings. The Committee is worthy of respect because of its unique representative character. Its role as a forum of democratic accountability and oversight is because it represents the stakeholders of the judicial organ of the state; the society and the litigant.

Rule 3 of the Judicial Commission of Pakistan Rules, 2010, confer powers on the Chief Justices, as the case may be, to initiate nominations in the Commission. The Commission has not prescribed an objective criteria in this regard. The initiation of nominations relates to identifying eligible persons to be considered by the Commission. This is the most crucial stage because it deprives the Commission of exercising its inherent duty of identification of the eligible candidates. Rule 3 creates a bottleneck by allowing the Chief Justices to regulate the entire process and that too in the absence of predetermined objective criteria. The Commission contravenes the terms of its powers and fails in pursuing the objective for which they have been conferred. Rule 3, therefore, is ultra vires Article 175A of the Constitution. Notwithstanding Rule 3, powers conferred under Article 175A to nominate also includes the power to identify the eligible persons and such duty has to be performed by the Commission functioning as a collegium.

In the present case the entire process of the Commission lacked transparency. The minutes of the meeting of the Commission clearly manifest that; the Commission had acted in a manner that was inconsistent with the purpose for which the power has been conferred under Article 175A of the Constitution; there was no predetermined objective criteria for selection and evaluation of the candidates; the names were initiated by the Chief Justice of the High Court in consultation with the other judges; the power conferred under Article 175A was neither exercised in a transparent manner nor for the purpose for which it has been conferred there under; absence of predetermined and clear objective criteria had unquestionably rendered the entire decision making process non-transparent; the subjective opinion of the Chief Justice of the High Court with respect to the District Judges was given primacy by the Commission; the decision of the Commission had endorsed the supersession of four judicial officers, solely relying on the subjective opinion of the Chief Justice of the High Court; the members of the Commission had no opportunity to apply an independent mind as a collegium in the absence of the relevant record; the decision of the Commission in the absence of predetermined objective criteria suffered from lack of transparency and thus was not a valid exercise of power for the purpose contemplated under Article 175A of the Constitution. The Committee was justified and had acted within the powers authorizing it under Article 175A not to confirm the nomination. All that the Committee had done was to highlight the illegality of the nomination and contravention of the terms of powers conferred on the Commission under Article 175A. The High Court, while passing the impugned judgment, has not appreciated that the present case was distinct and did not attract the law laid down in the case reported as Munir Hussain Bhatti and others v. Federation of Pakistan and another (PLD 2011 SC 407)

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Orya Maqbool Abbasi v. Federation of Pakistan and others 2014 SCMR 817 and Federation of Pakistan and others v. Dr. Muhammad Arif and others 2017 SCMR 969 ref.

Per Muhammad Ali Mazhar, J. (Majority view)

(b) Precedent---

----Stare decisis, doctrine of---'Vertical stare decisis' and 'horizontal stare decisis'---Meaning and scope---Doctrine of stare decisis is a latin term that connotes "let the decision stand" or "to stand by things decided"---This represents an elementary canon of law that Courts and judges should honor the decisions of prior cases on the subject matter which maintains harmony, uniformity and renders the task of interpretation more practicable and reasonable while adhering to it for resolving a lis based on analogous facts---Doctrine of stare decisis is to be adhered to as long as an authoritative pronouncement holds the field, until and unless the dictates of compelling circumstances fortified by rationale justify the exigency of a fresh look for judicial review---Terminology "vertical stare decisis" explicates that the decisions of higher courts should take precedence over the decisions of lower courts---Whereas the concept of "horizontal stare decisis" provides that prior decisions made by courts at a particular appellate level should provide some precedent for cases heard by courts of the same appellate level, however horizontal stare decisis is generally seen to be less forceful as compared to vertical stare decisis.

(c) Precedent---

----Binding precedent, doctrine of---Significance---Doctrine of binding precedent fosters and disseminates firmness and uniformity and also supports the development of law.

Per Athar Minallah, J.; partially dissenting with Muhammad Ali Mazhar, J. (Minority view)

(d) Constitution of Pakistan---

----Art. 4---Judicial independence---Scope---Concept of judicial independence and significance of internal and institutional independence explained.

Judicial independence is the bedrock of the rule of law and a fundamental guarantee to every citizen that the latter will be dealt with accordingly. Judicial independence aims at ensuring and guaranteeing to each litigant access to an independent, impartial and competent court or a judge. Inappropriate influences or the appearance of being compromised and partial undermines and erodes the independence of justice. The concept is multifaceted and involves different aspects of judicial independence. It is not secured merely by insulating the judiciary from the other branches of the state i.e. the executive and the legislature. There are other aspects, which are equally important if not more, such as inappropriate pressures and influences from within the judiciary and factors that operate and influence at the institutional level. The judiciary may be independent from the other political branches of the state on the touchstone of the trichotomy of powers, yet the individual judges may not be so because of lack of internal and institutional independence.

The aspects of internal and institutional independence are of paramount importance because they ensure the liberty of a judge to perform duties without undue influence and interference from within the judiciary i.e. from fellow judges or on account of operational and supervisory administrative powers relating to the governance of the court system. The undue interference, influence and pressures from within the judiciary could have more profound, subtle and insidious effect vis-a-vis the judicial independence. The organizational structure, nature of administrative and supervisory powers, professional values, hierarchy, mindsets, ethos, deeply ingrained institutional culture, exercise of powers regarding the mode and procedure of appointments, terms and conditions of tenure, conduct and manner of accountability are factors that have consequences for the internal and institutional independence of the judiciary.The concentration of unstructured and unfettered discretionary administrative powers in one office in the context of the governance of court systems or in decision making process relating to appointment of judges undermines the internal and institutional independence. As an illustration, the unfettered power of the Chief Justice to identify eligible persons in the absence of an objective predetermined criteria by no stretch of the imagination promotes or advances independence of judiciary.

(e) Constitution of Pakistan---

----Art. 175A---Appointment of judges in the superior Courts---Transparency---Importance of internal and institutional independence in the matter of judicial appointments explained.

The internal and institutional independence is pivotal in relation to appointment of judicial officers. Transparency, accountability and effective checks and balances in relation to the judicial appointments are foundational principles in order to ensure internal and institutional independence. The existence of the aforementioned factors reinforces public confidence in the appointment process and guarantees that each appointment shall be made on merit i.e on the basis of identifying, selecting and ultimately appointing the best and worthy from amongst the eligible persons. Transparency in the process of judicial appointments is the most critical and overarching principle for achieving the goal of independence of judiciary. It must permeate at each stage of the appointment process. Public confidence is enhanced and, consequently, judicial independence is promoted and guaranteed by adopting predictable and transparent processes. On the other hand, secrecy, arbitrary decisions, subjective opinions, unstructured exercise of discretion and lack of checks and balances erodes independence of judiciary. The onerous task of appointing a judge on merit can only be achieved by ensuring that the entire process, from identifying the eligible persons to the final decision of appointment, is based on the principle of transparency. Each appointment should not only be made on merit but it must be seen by a reasonable observer to have been made so. The predictability of the decision making process is the test of transparency and its pre-condition is the existence of an objective predetermined criteria; a clearly defined criteria notified to the public in advance. The objective criteria must apply and extend to each stage of the process i.e identification of eligible persons, selection, evaluation and then followed by appointment. Judicial appointments sans a transparent process at any stage erodes confidence of the people and enables decision makers to make appointments for extraneous and inappropriate purposes. Even if the appointment has been made on merit, lack of transparency will still not exclude legitimate doubts being raised by a reasonable observer. In a nutshell, transparency entails clear predetermined objective criteria that has been placed in the public realm in advance, absence of concentration of powers and taking decisions on the basis of subjective discretionary choices, an effective system of checks and balances that makes all those involved in the process to be accountable for their decisions.

The independence from other branches of the state, therefore, is not sufficient to secure and advance the independence of judiciary unless the other aspects i.e the internal and institutional independence have also been ensured. The unaccountable self-governance system and exercise of unfettered powers exercised by individual judges in relation to the process of appointment of judges has a chilling effect on the internal independence. The pressures could be latent in nature. A deeply entrenched institutional culture that does not value independent judges enables the power wielding judicial hierarchy to flout merit if the process is not transparent. In such an eventuality the system loses its capability to ensure that the judges are appointed on merit i.e the best amongst the eligible persons.

Ch. Aamir Rehman, Addl. AGP for Petitioner (in all C.Ps.)

M. Siddique Haider Qureshi, Advocate Supreme Court for Applicant (in C.M.As. Nos. 863-P, 866-P and 869-P of 2022).

Syed Mudassar Ameer, Advocate Supreme Court for Respondents Nos. 1-2 (in C.P. No.2314 of 2022).

N. R. for Respondent (in C.P. No.2317 of 2022).

Dr. Adnan Khan, Advocate Supreme Court for Respondent No.1 (in C.P. No.2318 of 2022).

Syed Mudassar Ameer, Advocate Supreme Court for Respondent No. 1 (in C.M.A. No.863-P of 2022).

N. R. for other Respondents (in all C.Ps. and C.M.As.)

P L D 2024 Supreme Court 571

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

PERVEZ ELAHI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petition No. 181 of 2024, decided on 26th January, 2024.

(Against the order of Lahore High Court, Lahore dated 13.1.2024, passed in Writ Petition No.2433 of 2024).

(a) Elections Act (XXXIII of 2017)---

----S. 60(2)(b)---Constitution of Pakistan, Art. 17(2)---Elections for seat of Provincial Assembly---Nomination papers---Exclusive bank account for election expenses---Connotation---Nomination paper of the petitioner (candidate) was rejected on the ground that the petitioner did not maintain an exclusive account for the purpose of election expenses for every seat he proposed to contest under Section 60(2)(b) of the Elections Act, 2017 ("Act")---Validity---Right to contest election is a fundamental right guaranteed by Article 17(2) of the Constitution---Right to contest election being a fundamental right, the provisions in the Act including Section 60 thereof that curtail or in any manner affect this right are to be construed strictly and applied restrictively---Under Section 60(2)(b) of the Act, a candidate is to submit a declaration that he has opened an exclusive account, or dedicated an existing account, in a scheduled bank for the purpose of election expenses---Exclusivity of the required bank account is for the "purpose of election expenses", and not for the number of seats the candidate is contesting for in the elections---One exclusive bank account for the election expenses to contest for any number of seats, meets the statutory requirement---For the purpose of requiring such exclusive bank account is to ensure compliance with the provisions of Section 132(3) of the Act, which has prescribed an upper limit of expenses for election to a seat in the Senate, the National Assembly and a Provincial Assembly---If a person contests for election to more than one seats, his expenses should not exceed the aggregate of the prescribed expenses for all those seats---Stance taken by the respondents that the candidate must open a separate bank account for every seat he is contesting for, is not the intent and purpose of the law and is therefore not legally sustainable---Petition was converted into an appeal and allowed; impugned order as well as the orders of the Appellate Tribunal and the Returning Officer were set aside; consequently, the nomination paper of the petitioner filed for the seat of a Member of the Provincial Assembly stood accepted with the observation that the right to vote freely for the candidate of one's choice is the essence of a democratic society, and any undue restrictions on that right strike at the heart of representative government.

Wesberry v. Sanders 376 U.S. 1 (1964); Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(b) Elections Act (XXXIII of 2017)---

----S. 60(2)(d)---Elections for seat of Provincial Assembly---Nomination papers---Alleged misdeclaration of asset in Form B---Nomination paper of the petitioner (candidate) was rejected on the ground that the petitioner failed to mention an asset, i.e., 10 marla land, in the statement of his assets to be accompanied with the nomination paper through Form B under Section 60(2)(d) of the Elections Act, 2017---Validity---According to the mutation placed before the Court the land was purchased on 30.11.2023, whereas the requirement of Section 60(2)(d) is that the statement of assets and liabilities should be as on the preceding 30th day of June i.e., 30.06.2023 and, therefore, the alleged procurement of the asset in question, though denied by the petitioner, has no bearing on the nomination paper filed by the petitioner---Perusal of the Form B submitted by the petitioner clearly shows that the listed assets are as on 30.06.2023---Even otherwise, the petitioner has categorically denied that he has purchased the said property and no summary inquiry has been conducted by the Returning Officer (RO) to ascertain the factual position under section 62(9) of the Act---Rejection order of the RO was therefore not legally sustainable on this ground---Petition was converted into an appeal and allowed; impugned order as well as the orders of the Appellate Tribunal and the Returning Officer were set aside; consequently, the nomination paper of the petitioner filed for the seat of a Member of the Provincial Assembly stood accepted.

Faisal Siddiqui, Advocate Supreme Court, Barrister Haris Azmat, Advocate Supreme Court, Aamir Saeed, Advocate Supreme Court, Sardar Abdur Raziq, Advocate Supreme Court (assisted by Ch. Muhammad Ali, Advocate) and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Arshad, DG (Law), Masood Akhtar, DG (Finance) Khurram Shahzad, ADG (Law) and Falak Sher, Consultant Law for the ECP.

Hafiz Ahsan Ahmed, Advocate Supreme Court for Respondent No.4 along with Respondent No.4 in person.

P L D 2024 Supreme Court 576

Present: Qazi Faez Isa, C.J., Amin-ud-Din Khan and Athar Minallah, JJ

OFFICER INCHARGE ARMY HOUSING DIRECTORATE, KARACHI-- Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and others---Respondent

Civil Petition No. 1026 of 2021 along with C.M.A. No. 5076 of 2021, decided on 25th October, 2023.

(Against the judgment dated 2.11.2020 of the High Court of Sindh, Karachi passed in Const. P. No.D-2890 of 2018), (C.M.A. seeking special permission to argue the case on behalf of respondents Nos.5 to 8)).

Rules of Business, 1973---

----R. 5(15)---Secretariat Instructions, 2005, Instruction Nos. 65, 66, 67, 67-A & Appendix F, Clauses 1, 4---Housing (Askari Colonies Management) ('Askari Housing') ["the petitioner"]---Advocate On Record (AOR) filed present Civil Petition for Leave to Appeal (CPLA), without first ascertaining the petitioner's legal status; he assumed that the 'Authority Letter' issued by an Assistant Director of Askari Housing was sufficient, and, on its basis also engaged an Advocate Supreme Court (ASC)---Underlying assumption of the AOR being that the executive authority of the Federation can be exercised by Askari Housing through its Assistant Director---Question was whether Askari Housing is a legal entity established by law and whether it has the locus standi to initiate and defend legal proceeding---Held, that neither Askari Housing nor its Officer Incharge is a separate entity---In the present case the requisite authorisation to initiate/defend legal proceedings was also not obtained---If the High Court's judgment was to be challenged it had to be done by one of the legal entities which have been arrayed as respondents herein, and after obtaining requisite approval/permission---Petitioner arraying them as respondents suggests that the respondents were satisfied with the judgment of the High Court, which has been assailed herein---As regards the query whether the petitioner (Askari Housing) could engage a private counsel the Supreme Court did not receive any answer from the counsel---Askari Housing is a component of the Federal Government and has no independent legal status---Private counsel can only be engaged as stipulated in the decision in Rasheed Ahmed's case reported as Rasheed Ahmad v. Federation (PLD 2017 Supreme Court 121)---Present CPLA has been filed without complying with the Rules of Business, 1973 and the Secretariat Instructions 2005, and permission to engage private counsel was also not obtained in terms of Rasheed Ahmed's case---Petition for leave to appeal was dismissed as not maintainable.

Rasheed Ahmad v. Federation of Pakistan PLD 2017 SC 121 ref.

Abid S. Zuberi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Nemo for Applicant (in C.M.A. No. 5076 of 2021).

P L D 2024 Supreme Court 581

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

QUDRAT ULLAH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RENALA KHURD DISTRICT OKARA and others---Respondents

Civil Petition No.8-L of 2023, decided on 25th January, 2024.

(Against the order dated 30.11.2022 of the Lahore High Court, Lahore passed in W.P. No. 3332 of 2022).

(a) Interpretation of statutes---

----Word 'includes' appearing in a statute---Scope---Word "includes" is generally used in interpretation clauses in order to enlarge the meaning of words or phrases, occurring in the body of the Statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.

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

----S.5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S. 9---United Nations Convention on the Rights of the Child (UNCRC), Arts. 3(1) & 27(4)---Maintenance for daughter---Scope---Educational expenses---Maintenance includes necessary expenses for mental and physical well-being of a minor---Educational expenses are included within the concept of maintenance of a child--- In the present case admittedly, respondent was the unmarried daughter of the petitioner (father), and she was studying in a University, thus, in order to meet her educational expenses, she required a sufficient amount---In the Trial as well Appellate court the mother had sufficiently established, with cogent evidence, that besides receiving pension, the petitioner (father) had other sufficient sources of income---Thus, he had the ability to pay her educational expenses---Although petitioner (father) was not bound to provide the maintenance for education at higher levels ad infinitum however, he was duty bound to provide maintenance to his daughter till she completed her graduation studies and gained an employment to support herself---Before enhancing the maintenance amount, the Appellate Court duly undertook expenses analysis and concluded that sum of Rs. 25,000/- per month was required to ensure the continuation of the studies of the respondent (daughter)---Therefore, the amount of maintenance so granted was neither excessive nor unjustified---Petition was dismissed and leave was refused.

Section 369 of the Principles of Muhammadan Law by D.F Mulla; Black's Law Dictionary, 9th Edition, 2009; Arslan Humayun and another's case PLD 2013 SC 557; Nasr, Sayyad Hossein, Islamic Spirituality Foundations, Crossroad, New York, 1987.page 147; Holy Qur'an, 2:233 and Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75 ref.

Petitioner In person (via video link from Lahore).

Respondents Nos. 3 and 4: In person (via video link from Lahore).

P L D 2024 Supreme Court 588

Present: Qazi Faez Isa, CJ, Muhammad Ali Mazhar and Musarrat Hilali, JJ

Haji MUSHARRAF MAHMOOD KHAN (deceased) through L.Rs.---Petitioner

Versus

SARDARZADA ZAFAR ABBAS (deceased) through L.Rs. and others-- Respondents

Civil Petition No. 423-L of 2018, decided on 4th March, 2024.

(Against the Order dated 28.11.2017 passed by Lahore High Court on Diary No. 45031/2017 in C.R. No. 3054 of 2012).

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

----S. 115---Revisional jurisdiction---Scope---Suo motu jurisdiction---Revisional Court can even exercise its suomotu jurisdiction to ensure effective superintendence and visitorial powers to make sure the strict adherence to the safe administration of justice, and may correct any error unhindered by technicalities.

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

----S. 115---Limitation Act (IX of 1908), First Sched. , Art. 181---Civil revision dismissed for non-prosecution---Restoration of---Limitation---Residuary Article 181 of First Schedule to the Limitation Act, 1908---In the present case civil revision was dismissed by the High Court due to lack of instructions with the rider that the petitioner may move an application within 60 days for resurrection of the case---When the application for revival of the proceedings was filed, the office had raised objection and the application was dismissed for the reasons that; (i) the revision petition was dismissed due to lack of instructions (from the client/petitioner) with the rider that the petitioner may apply for revival within 60 days, but the application was filed after about 18 months; (ii) it was the duty of the petitioner to be vigilant in pursuing his case and; (iii) the petitioner was obliged under the law to explain each and every day of the delay but he has miserably failed to do so---Validity---In the C.P.C., there is no specific section or order which applies to the restoration of revision application dismissed in default---In unison, no specific Article is mentioned in the Limitation Act, 1908 whereby any specific period of limitation is provided for applying for restoration of a revision application dismissed for non-prosecution---To address this situation, the legislature has provided a residuary Article 181 in the Limitation Act, 1908 which is meant for all applications for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the C.P.C., and within the province and under the purview of this Article 181, all such applications can be preferred within a period of 3 years when the right to apply accrues---While dismissing the case for non-prosecution, the Court cannot fix any specific time or period for applying for restoration as was done by the High Court in this case, whereby a barrier of 60 days was fixed for filing of the restoration application---Such directions were contrary to the provisions of Limitation Act, 1908wherein the limitation period for applying for restoration of a revision petition or application is regulated and controlled by the Article 181 of the Limitation Act, 1908---Fixation of time or limitation of 60 days by the Court is tantamount to curtailing or restricting the statutory period of 3 years to only 60 days which was unwarranted and in excess of jurisdiction---Petition was converted into an appeal and allowed; the impugned order passed by the High Court was set aside and the civil revision was restored with the direction that the High Court shall decide the civil revision on merits after issuing notice to the parties.

Wali and others v. Manak and others PLD 1965 SC 651; House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Kar. 329; Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137; Mst. Jameela Bibi (Deceased) through LRs v. Mst. Fatima Bibi (Deceased) through LRs 2023 SCMR 485 and Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 ref.

Ch. Abdul Khaliq Thind, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record along with Khurram Musharaf Petitioner No.1(b) for Petitioner.

Nemo for Respondents.

P L D 2024 Supreme Court 595

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah, JJ

Malik ARSHAD HUSSAIN AWAN---Petitioner

Versus

Messrs UNITED BANK LIMITED---Respondent

Civil Petition No. 1393-L of 2020, decided on 22nd February, 2024.

(Against the judgment of Lahore High Court, Lahore, dated 18.06.2020 passed in F.A.O No. 512 of 2013).

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

----O.XXXII, R. 15---Mental Health Ordinance (VIII of 2001), Ss. 29 & 32---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 7(2)---Suit for recovery of finance---Defendant of unsound mind---Guardian in the suit, appointment of---Banking Court, powers of---Banking Court has the power to determine the unsoundness of mind or mental infirmity of a person on an inquiry under Order XXXII of the C.P.C. based on the evidence and appoint a guardian for the suit for the limited purpose of representation before the court of law, without first seeking an appointment of a guardian under the Mental Health Ordinance, 2001.

Rule 15 of Order XXXII of C.P.C. provides that Rules 1 to 14 of Order XXXII shall apply to (i) persons adjudged to be of unsound mind and (ii) persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. The said Rule, therefore, acknowledges two categories of persons of unsound mind: one who is already adjudged by a court of competent authority as a person of unsound mind; and the other, who is not so adjudged but the court itself on inquiry finds that the person is of unsound mind. In both cases, the court is to appoint a guardian for the suit for such a person. In the first category, in view of the provisions of Rule 4(2) of Order XXXII of C.P.C. the court is to ordinarily appoint the same person as guardian for the suit who has been appointed the guardian under the Mental Health Ordinance, 2001 ("MHO"); while in the second, the court may appoint any suitable person who has no interest against the person of unsound mind. In the second category, the court cannot decline to appoint the guardian for the suit merely for the reason that the defendant has not been so adjudged under the MHO by the competent authority.

Where no guardian has been appointed under the MHO, it does not preclude the Civil Court, or the Banking Court, to proceed and appoint a guardian for the suit under Order XXXII of C.P.C. so that the interest of a mentally disordered person is protected before the court of law and also ensures the continuation and efficient conclusion of the trial. The Banking Court, therefore, has the power to determine the unsoundness of mind or mental infirmity of a person on an inquiry under Order XXXII of the C.P.C. based on the evidence and appoint a guardian for the suit for the limited purpose of representation before the court of law, without first seeking an appointment of a guardian under the MHO.

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

----O.XXXII, Rr. 1, 3, 4(2) & 15---Mental Health Ordinance (VIII of 2001), S. 32---Minor---Defendant of unsound mind---'Guardian for the suit' and 'Guardian of the person or property'---Distinction---Concept of next friend or guardian for the suit is to provide proper representation to a minor or a person with unsound mind during litigation, in order to protect his interests; therefore, their role is limited to the particular litigation or legal action for which they are appointed---Guardian for the suit is also called as "Guardian ad Litem"; the Latin term "ad litem" means "for the lawsuit"---Thus, guardian for the suit is appointed by a court specifically for the duration of legal proceedings and his role is temporary and limited to the particular lawsuit or legal matter---This might involve making decisions about litigation, settlement or other legal strategies---A guardian of the person or property of a minor or a person of unsound mind, on the other hand, is a person legally appointed to manage all the affairs of another person---Such a guardian has the authority to make decisions on behalf of the said person in various aspects of life, including financial, medical, and personal matters.

Ms. Saba Saeed Sheikh, Advocate Supreme Court and Syed Fayyaz Ahmad Sherazi, Advocate-on-Record for Petitioner.

Jam Khurshid Ahmed, Advocate Supreme Court for Respondent.

P L D 2024 Supreme Court 600

Present: Yahya Afridi and Jamal Khan Mandokhail, JJ

KHALEELULLAH and others---Appellants

Versus

MUHAIM KHAN and others---Respondents

Civil Appeal No. 25-Q of 2018, decided on 19th December, 2023.

(Against the judgment dated 17.06.2023 of the High Court of Balochistan, Sibbi Bench passed in C.R. No.(s)11 of 2012).

(a) Islamic law---

----Inheritance---Estate of a Muslim, on his death, is transferred to his legal heirs by operation of law, with each heir having constructive possession of his share in the estate till the partition of the entire estate or transfer of his share under the law.

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

----S. 18---Inheritance---Inheritance cases where third party interest has been created in the property---Commencement of limitation period---Burden of proof on claimant to prove that he was not aware of having been deprived of his inheritance share---Principle stated.

Court while dealing with inheritance cases tread very cautiously to balance the proprietary rights of the legal heirs of the deceased Muslim owner and third party, who has acquired proprietary rights therein, and that too, in good faith and for valuable consideration. It is for this reason that, legal heirs must be vigilant and not indolent regarding their proprietary rights in their sharai share of inheritance. There is a stark distinction between cases in which an heir has been deprived of his sharai share and disregarded at the time of recording of the inheritance mutation, and those cases in which the heir comes forward to seek his sharai share after third-party rights in the subject land have been created. To succeed in respect of the former category of cases, as compared to the latter, is legally less cumbersome, as it is not hurdled by the rigors of limitations - the possession over the inherited property by one heir is considered as constructive possession on behalf of all the heirs, and the cause of action would only arise, when the deprived heir seeks his share and the same is denied by the other in possession of the inherited property. However, to succeed in respect of the latter category of cases, where third-party interest is created in the inherited property, is legally more problematic, as the legal heir would then have to face the wrath of the period of limitation. The burden ofproof would rest on the claimant heir to demonstrate and prove that he was not aware of having been deprived, give cogent reasons for not challenging the long-standing property record, or showing complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of his interest in the property and yet proceeded to acquire the same. It is when faced with such legal handicap that the claimant heir may seek exception to the bar of limitation provided under Section 18 of the Limitation Act, 1908 by establishing that he was kept oblivious to the cause of action or accrual of his rights through fraud, and therefore, was an "injuriously affected person‟. Thus, in cases, where the claimant heir, being an "injuriously affected person‟ has a right to sue, does not institute the suit claiming his right within the prescribed limitation period, no fresh period of limitation can be available to him, his legal heir(s) or any other person who derives his right to sue from or through him (the injuriously affected person).

Mst. Rabia Gula v. Muhammad Janan 2022 SCMR 1009 ref.

(c) Limitation---

----Inheritance---Denial of inheritance rights---Cause of action to sue, accrual of---Scope---In the case of denial of the inheritance to an heir, the cause of action to sue accrues to him, when the co-sharer[s]/legal heir[s] in actual possession of the inherited property denies (actually) or is interested to deny (threatens) the share of the claimant legal heir in the inherited property---Actual denial of right of a co-sharer by the other co-sharer may occur, when the latter does something explicit in denial of the rights of former, such as by making a fraudulent sale or gift deed---Transfer of property to a third party, be it through sale or gift, constitutes an actual denial of rights---In contrast, a simple annotation in the revenue records is regarded as a threatened or apprehended denial of rights.

Haji Muhammad Yunis v. Mst. Farukh Sultan 2022 SCMR 1282 and Salamat Ali v. Muhammad Din PLD 2022 SC 353 ref.

(d) Pleadings---

----According to the principles of pleadings, once an assertion is duly recorded, its specifics need not be detailed therein.

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

----S. 3---Objection as to limitation---If the objection as to the law of limitation is not raised by any of the parties to the suit, the trial Court and the appellate Court are obligated under section 3 of the Limitation Act, 1908 to consider and decide the same.

Khushnood Ahmed, Advocate Supreme Court and Abdul Rahim Mengal, Advocate-on-Record for Appellants.

Abdul Rashid Awan, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Respondents Nos. 1 to 8.

Nemo for Respondents Nos. 9-11, 13-16.

Abdul Fateh, Naib Tehsildar.

P L D 2024 Supreme Court 610

Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Amin-ud-Din Khan and Athar Minallah, JJ

TAUFIQ ASIF and others---Petitioners

Versus

General (Retd.) PERVEZ MUSHARRAF and others---Respondents

Civil Petitions Nos. 3797 to 3800 of 2020, decided on 10th January, 2024.

(Against the judgment of the Lahore High Court, Lahore, dated 13.01.2020, passed in Writ Petition No. 71713 of 2019).

(a) High Treason (Punishment) Act (LXVIII of 1973)---

----Ss. 2 &3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Territorial jurisdiction of Lahore High Court---Scope---Special Court convicted the respondent (former Chief of Army Staff) and sentenced him to death---However, the High Court ignored the judgment of the Special Court and decided the writ petition filed before it by allowing it through the impugned judgment ("impugned judgment")---High Court, amongst other reliefs granted therein, held that the very basis of initiation of proceedings against the respondent for the offence of high treason was beyond the constitutional mandate, ultra vires, coram non judice and unlawful---Legality---In the present case, the main grievance agitated and the ultimate relief sought by the respondent in his writ petition were about the acts done and the proceedings taken by the Special Court at Islamabad---Over such acts and proceedings, only the Islamabad High Court enjoyed territorial jurisdiction, and only the Islamabad High Court could judicially review the legality thereof under Article 199(1)(a)(ii) of the Constitution---Lahore High Court had no such jurisdiction; it wrongly assumed and exercised the jurisdiction that was not vested in it by the Constitution

The matter relating to the trial of the respondent (former Chief of Army Staff) for the offence of high treason had earlier come before the Supreme Court on at least three occasions. On two of these occasions, the Supreme Court had specifically directed the Special Court to continue with the trial of the respondent. However, the Lahore High Court, in purported exercise of its writ jurisdiction under Article 199 of the Constitution, set aside the entire proceedings of the trial, which was conducted by the Special Court against the respondent at Islamabad. The impugned judgment was passed by the Lahore High Court after the final judgment convicting the respondent had been announced by the Special Court.

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

Lahore High Court lacked territorial jurisdiction to entertain the writ petition of the respondent filed against the acts done and proceedings taken by the Special Court at Islamabad. Any act done or proceeding taken by the Special Court at Islamabad could only be challenged, as per Article 199(1)(a)(ii), before the High Court within whose territorial jurisdiction such act was done or proceeding taken, that is, the Islamabad High Court. The respondent, instead of agitating his grievance in the Islamabad High Court against the act done and proceeding taken by the Special Court at Islamabad, chose the forum of the Lahore High Court, and the latter court wrongly entertained the same.

Government of Pakistan v. Special Court PLD 2020 Isl. 82 ref.

In the present case, the main grievance agitated and the ultimate relief sought by the respondent in his writ petition were about the acts done and the proceedings taken by the Special Court at Islamabad. Over such acts and proceedings, only the Islamabad High Court enjoyed territorial jurisdiction, and only the Islamabad High Court could judicially review the legality thereof under Article 199(1)(a)(ii) of the Constitution. The Lahore High Court had no such jurisdiction; it wrongly assumed and exercised the jurisdiction that was not vested in it by the Constitution with regard to the acts done and proceedings taken outside its territorial jurisdiction. Though the Federal Government is deemed to function all over Pakistan, the actions of the Federal Government in constituting the Special Court and filing a complaint

for high treason against the respondent in Islamabad, and the trial

being conducted by the Special Court in Islamabad, can in no manner be said to have affected the respondent within the territorial jurisdiction of the Lahore High Court. Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O. II, R. 2---Territorial jurisdiction of a High Court---Scope---It is the dominant object of the petition, i.e., the main grievance agitated and the ultimate relief sought in the petition, which determines the territorial jurisdiction of the High Courts---If the ultimate relief sought relates to an act done or proceeding taken within the territorial jurisdiction of a particular High Court, no other High Court in the country can assume and exercise writ jurisdiction on the pretext that one of the reliefs sought relates to an act of a federal body---Splitting of claims and reliefs in several actions (suits or petitions) regarding one cause of action is also not legally permissible under Order II, Rule 2, C.P.C.---No person can, therefore, seek relief regarding an act of a federal body from one High Court and relief regarding an act done in furtherance of or pursuance to that act from another High Court---Both reliefs must be sought in one petition and adjudicated by the High Court which has territorial jurisdiction over both acts.

Sandalbar Enterprises v. Central Board of Revenue PLD 1997 SC 334; Amin Textile Mills v. Federation of Pakistan 1998 SCMR 2389; Sethi and Sethi v. Federation of Pakistan 2012 PTD 1869 and Province of Punjab v. Shehzad Anjum 2024 SCMR 766 ref.

(c) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 2---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 12(3)---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Writ petition filed before the Lahore High Court to set aside the entire proceedings of the trial conducted by the Special Court---Maintainability---Availability of an alternate adequate remedy---Writ jurisdiction of the High Court cannot be exploited while having an alternate equally efficacious and adequate remedy provided under the law; such remedy cannot be bypassed to attract the writ jurisdiction---Doctrine of exhaustion of remedies accentuates that a litigant must not circumvent or bypass the provisions of the relevant law that provide for an adequate remedy---If a party does not choose the remedy available under the law, the writ jurisdiction of the High Court cannot be invoked and exercised in his favour---Where a matter arises under a statute and is adjudicated by a forum provided therein, and the said statute also provides a remedy of appeal or revision either in the High Court itself or directly before the Supreme Court, the High Court should not in its writ jurisdiction interfere with such matter---In the present case the remedy of appeal provided before the Supreme Court by Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976 against the judgment of the Special Court was an alternate, adequate and efficacious remedy---In view of the availability of an adequate remedy of appeal before the Supreme Court, the High Court could not have exercised its writ jurisdiction under Article 199 of the Constitution, arrogating to itself the appellate jurisdiction vested in the Supreme Court under Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

Imran Khattak v. Sofia Waqar Khattak 2014 SCMR 122; Tariq Transport Company v. Sarghodha-Bhera Bus Service PLD 1958 SC (Pak.) 437; Deputy Commissioner of Income Tax/Wealth Tax v. Punjab Beverage Company 2008 SCMR 308; Amin Textile Mills v. Commissioner of Income Tax 2000 SCMR 201; Sher Afgan Khan Niazi v. Ali S. Habib 2011 SCMR 1813; Muhammad Abbasi v. SHO Bhara Kahu PLD 2010 SC 969; Special Secretary-II v. Fayyaz Dawar 2023 SCMR 1442; Mian Azam Waheed v. Collector of Customs 2023 SCMR 1247; Sana Jamali v. Mujeeb Qamar 2023 SCMR 316; Mehboob Ali Malik v. Province of West Pakistan PLD 1963 (W.P.) Lahore 575; Chief Settlement Commissioner v. Ashfaque Ali PLD 2003 SC 132 and Khalid Mehmood v. Collector of Customs 1999 SCMR 1881 ref.

(d) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 2---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 12(3)---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court---Legality---Not only did the High Court assume jurisdiction not vested in it but it also dilated upon the merits of the matter, which it could not do as the High Court was not the appellate forum---High Court, without enjoying any jurisdiction whatsoever, gave its own findings on the core subject matter of the trial, i.e., whether the respondent (former Chief of Army Staff) had committed the offence of high treason under Article 6 of the Constitution read with Section 2 of the High Treason (Punishment) Act, 1973---By doing this the High Court unlawfully assumed the appellate jurisdiction exclusively vested in the Supreme Court under Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976---High Court had also granted relief which was not even sought in the writ petition---Relief sought in the prayer clause of the writ petition mainly challenged the order of the Special Court, whereby it had reserved its judgment---No prayer was made to seek a determination as to whether the respondent had committed the offence of high treason---However, the High Court overstretched its jurisdiction by proceeding to determine the core question of whether the respondent had committed the offence of high treason, and then held that the actions of the respondent were not part of Article 6 at the time of the commission of the said actions---High Court not only assumed the exclusive jurisdiction of the Special Court which was to determine whether the respondent had committed the offence of high treason but also usurped the appellate jurisdiction of the Supreme Court----Matter of the trial of the respondent for the offence of high treason had come before the Supreme Court a number of times and despite authoritative judgments and orders of the Supreme Court dealing specifically with the trial of the respondent by the Special Court, the High Court in derogation of the same set aside the entire proceedings of the trial of the respondent through the impugned judgment---Disregard of the judgments of the Supreme Court amounted to judicial effrontery and impropriety---Impugned judgment passed by the High Court in sheer violation of the judgments and orders of the Supreme Court was, therefore, not only without jurisdiction but also unconstitutional---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

Irfan Bashir v. DC, Lahore PLD 2021 SC 571 ref.

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

----S. 9---High Treason (Punishment) Act (LXVIII of 1973), S. 2---Constitution of Pakistan, Arts. 6 & 199(1)(a), (c)---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court and also declared the entire Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 ('Special Court Act') as ultra vires the Constitution---Legality---Plain reading of Section 9 shows that it deals with the absence of the accused person not only due to his illness but also where the absence of the accused person or his counsel has been brought about by the accused person himself, or where the behaviour of the accused person prior to such absence has been such as to impede the course of justice---In such cases, the Special Court is mandated to proceed with the trial after taking the necessary steps to appoint an advocate to defend such an accused person---Respondent/convict (former Chief of Army Staff) was neither "aggrieved", as required by Article 199(1)(a) or (c) of the Constitution, nor had assailed the entire provision of Section 9---However, the High Court proceeded to declare the entire provision as ultra vires the Constitution without providing any reasoning except that trial in absentia cannot take place---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

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

(f) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 3---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court and observed that the Secretary Interior, in his capacity as the officer authorized by the Federal Government vide SRO 1234(I)/94 dated 29.12.1994 under Section 3 of the High Treason (Punishment) Act, 1973 ('High Treason Act'), can only file a complaint for high treason on the recommendations of the Federal Government, and under Section 3 of the Criminal Law Amendment (Special Court) Act, 1976 ('Special Court Act') it is the Federal Government that constitutes the Special Court; that the whole exercise was illegal, unconstitutional and void ab initio as said actions were taken by the Prime Minister, not by the Federal Government, and therefore, were not conducted in accordance with the principle laid down in the judgment reported as Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 ("Mustafa Impex")---Held, that High Court, did not consider the decision of the Supreme Court rendered in the case reported as PMDC v. Muhammad Fahad Malik, 2018 SCMR 1956 ("PMDC"), which had held that the principle settled in Mustafa Impex did not have retrospective application, and applies only from the date of its pronouncement, i.e., 18.06.2016---In the present case the Special Court was constituted vide notification dated 20.11.2013 and the complaint was filed on 12.12.2013---Both these actions were taken before Mustafa Impex; therefore, the law declared therein did not apply to them---Any reconstitution of the Special Court before Mustafa Impex could also not be challenged for the same reason---As to the reconstitution of the Special Court after Mustafa Impex, the relevant summaries moved, approvals granted and notifications issued showed that the process of reconstituting the Special Court was, in fact, in compliance with the law declared in Mustafa Impex---Particularly, the three Judges of the Special Court, who announced the final judgment on 17.12.2019, were appointed with the approval of the Federal Government, i.e., the Federal Cabinet---Therefore, the High Court could not have set aside the acts of filing the complaint and the constitution or reconstitution of the Special Court on the ground that Mustafa Impex was not complied with---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 and PMDC v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

Hamid Khan, Senior Advocate Supreme Court, Taufiq Asif, Advocate Supreme Court and Ajmal Ghaffar Toor, Advocate Supreme Court for Petitioner (in C.P. No. 3797 of 2020).

Hassan Raza Pasha, Advocate Supreme Court, (Chairman, Executive Committee, PBC), Haroon-ur-Rasheed, Advocate Supreme Court. (Vice-Chairman, Executive Committee, PBC) assisted by Wajih Hassan Pasha, Advocate for Petitioner (in C.P. No. 3798 of 2020).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.P. No. 3799 of 2020).

Nemo for Petitioner (in C.P. No. 3800 of 2020).

Ch. Aamir Rehman, Additional Attorney-General for Pakistan for the Federation.

Assisted by Muhammad Hassan Ali, Law Clerk Supreme Court of Pakistan for the Federation.

Date of hearing: 10th January 2024.

Table of Contents

Preface 616

Facts 617

Contentions of the Parties 619

Opinion of the Court 620

Territorial jurisdiction of the Lahore High Court 620

Availability of an alternate adequate remedy 622

Decision by High Court on merits of the case 625

High Court granted the relief not sought 625

Constitutionality of Section 9 of the Special Court Act 626

Misapplying Mustafa Impex 627

P L D 2024 Supreme Court 629

Present: Amin-ud-Din Khan and Athar Minallah, JJ

SHAISTA HABIB---Petitioner

Versus

MUHAMMAD ARIF HABIB and others---Respondents

Civil Petition No.3801 of 2022, decided on 6th March, 2023.

(Against the order dated 21.09.2022 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.2582 of 2022).

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

----S. 25---Custody of minor---Welfare of child---Scope---Any decision regarding the custody of a child without assessment and determination of the latter's welfare and best interests by taking into consideration the relevant factors and variables cannot be sustainable, nor can the exercise of discretion be lawful---Welfare of a minor and the latter's best interest is the foundational principle for deciding custody disputes.

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

----Ss. 17 &25---Custody of minor---Principles governing custody of a minor and guidelines which are to be taken into consideration by courts while deciding custody disputes stated.

The father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father's obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions. The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e. to ascertain the course which is in the latter's best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the 'best interest of the child'. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter's wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment. The mother's disability, illiteracy or financial status are not the sole determinant factors. The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child. The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed.

Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others PLD 1967 SC 402; Mst. Rubia Jilani v. Zahoor Akhtar Raja and others 1999 SCMR 1834; Mst. Zahida Kiani and another v. Capt. (Rtd.) Shahid Ali Khan 1993 SCMR 2303; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mst. Feroze Begum v. Lt.Col. Muhammad Hussain 1983 SCMR 606; Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508; Bashir Ahmed v. Incharge (Female) Darulaman, Mianwali and others 2011 SCMR 1329; Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123 and J. v. C. 1970 (H.L. (E.) 668 ref.

The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. It is the duty of the court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child.

While determining the welfare of the child in the context of custody disputes the court may grant the custody to a person other than the parents e.g. the grandparents or aunt, if doing so would promote the welfare and best interest of the child.

Raja Muhammad Owais v. Mst. Nazia Jabeen 2022 SCMR 2123; Zahoor Ahmad v. Mst. Rukhsana Kausar and others 2000 SCMR 707 and Mst. Razia Rehman v. Station House Officer PLD 2006 SC 533 ref.

The court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child.

Mst. Rania Jilani v. Zahoor Akhtar Raja and others 1999 SCMR 1834 ref.

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

----S. 25---Custody of minor---Welfare of child---Scope---Mother contracting second marriage---Not a bar to granting custody to the mother---In the present case admittedly, the petitioner (mother) has contracted another marriage after her divorce and her second husband had children from his first wife---From the reasoning recorded in the judgments rendered by the Guardian Judge/Judge Family Court as well as the appellate court it appeared that the petitioner's second marriage and the age of the minor were the two factors that had prevailed for granting custody of the minor to the respondent (father)---Validity---In the present case, the minor was confident, intelligent and mature enough to form his own preferences---He had unambiguously stated before the Supreme Court that his father was no more than a stranger because he had not had the opportunity to spend time with him---He had also stated that he was not familiar with the other members of his father's family and thus for him they too were strangers---Minor visibly appeared to be happy and comfortable with his mother and his relationship with his step father also seemed to be pleasant---It was obvious from the record that the respondent, despite being his father, had not made a serious and meaningful effort to assert his visitation rights---Minor was definitely not prepared nor willing to live with his father at this stage---He unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth---Crucial factor of the welfare of the minor and his best interest was not taken into consideration by the courts---In such an eventuality the minor would have been compelled, without his consent, to abruptly shift to a new abode where all the inhabitants would have been strangers to him---It would have definitely exposed him to unimaginable mental and emotional trauma---It could have resulted in irreversible lifelong psychological scars---It was obvious from the record that neither the family court nor the appellate court had taken appropriate steps to assess the welfare of the minor and, instead, the question of custody was decided on the basis of other factors---Factors taken into consideration could not override the criterion of adopting the course which would have been in the best interest of the child---Courts had erred in failing to inquire into or assess the emotional and psychological impact on the minor in case of an abrupt displacement from the custody of his mother with whom he had lived since his birth---Relevant factors such as the parenting capacity, relationship of the child with each parent, the mental health of both the parents as well as the minor, the latter's emotional and mental needs and such other relevant factors in the context of determining the welfare of the child were not taken into consideration let alone assessment and determination of a course that would have been in the best interest of the child---Petition was converted into an appeal and allowed; the impugned judgments/orders were setaside, and consequently it was directed that the custody of the minor shall be retained by the petitioner (mother)---Supreme Court expected that as reasonable and responsible parents the respondent and the petitioner would amicably settle the custody dispute having regard to the best interest and welfare of the minor, and that a visitation schedule would also be settled by them in such manner which would not breach the principle of the welfare of the minor.

Petitioner in person along with Ibrahim (minor).

Raja Muhammad Sattar, Advocate Supreme Court for Respondent No. 1 along with Respondent No.1.

P L D 2024 Supreme Court 639

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

MEHBOOB-UR-REHMAN AND JAWAR---Appellants

Versus

The STATE through Prosecutor General, Balochistan---Respondent

Crl. M. Appeal No.1-Q/24 in Criminal Petition No. Nil/2024, decided on 21st March, 2024.

(Against the order of Officer In charge, Quetta of this Court dated 19.12.2023).

Supreme Court Rules, 1980---

----O.XXIII, R. 8---Criminal proceedings---Conviction and sentence maintained by the High Court---Criminal petition for leave to appeal filed before the Supreme Court---Pre-requisites---Surrendering to the order of imprisonment---For an accused challenging any adverse order relating to his prayer for the grant of bail before arrest, the accused may not surrender to the police, and still undertake to appear and surrender in the Supreme Court at the time of hearing of his petition for the grant of bail before arrest, to render the petition maintainable---For a convict challenging his conviction and sentence of imprisonment, he has to first surrender to undergo the term of the sentence awarded, so as to render his petition (before the Supreme Court) as maintainable---In the present case, since the appellants had been convicted and sentenced to imprisonment, they both had to first surrender to serve their sentences of imprisonment, in order for their present petitions for leave to appeal to be maintainable under the Supreme Court Rules, 1980---Accordingly, appeal, being not entertainable, was dismissed.

Muhammad Adnan alias Dana v. The State and others 2015 SCMR 1570; Zahid v. The State PLD 1991 SC 379; The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 and Atif Ali v. Abdul Basit 2022 SCMR 2055 ref.

Nemo for Appellant No.1.

Appellant No.2 in person.

Syed Pervaiz Bokhari, Advocate Supreme Court (State counsel for Balochistan) for the State.

P L D 2024 Supreme Court 642

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Athar Minallah, JJ

SUNNI ITTEHAD COUNCIL, FAISALABAD and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through its Secretary, Islamabad, and others---Respondents

C.P.L.As. Nos. 1328, 1329 and C.M.A. No. 3554 of 2024, decided on 6th May, 2024.

(Against the judgment of Peshawar High Court dated 25.03.2024, passed in Writ Petition No. 1272-P/2024, etc.)

Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(2)(c)---Reserved seats for women and non-Muslims in the National and Provincial Assemblies, allocation of---Plea of petitioner (political party) was that it was a parliamentary party having 82 general seats in the National Assembly, therefore, it was entitled to reserved seats as per the proportional representation system in terms of Articles 51(6)(d) & (e) and 106(2)(c) of the Constitution---Counsel for the Election Commission of Pakistan ("ECP"), contended that according to Articles 51 and 106 of the Constitution the reserved seats have to be allocated on the proportional representation system only to those political parties who have contested the general elections and won atleast one seat in the said elections; that since the petitioner-party did not contest the elections and did not win even a single seat in the general elections, it cannot be considered as a political party in terms of Articles 51(6)(d) & (e) and 106(2)(c) of the Constitution, for the purpose of allocating the reserved seats---Supreme Court observed that questions of allocation of reserved seats in the National and Provincial Assemblies touch upon the foundational constitutional concept of a parliamentary democracy that the voice of the electorate is truly reflected in the composition of the assemblies; that democratic mandate necessitates that the allocation of reserved seats enhances the representativeness of the electorate in the assemblies and upholds the principles of fairness and transparency in the electoral process, and that it is paramount to prioritize the integrity of the elections so that the Parliament remains a true reflection of the will of the people---Supreme Court granted leave to appeal to consider the contentions of all parties to the case on the meaning and scope of proportional representation system for allocating the reserved seats for women and non-Muslims under Articles 51(6)(d) & (e) and 106(2)(c) of the Constitution---Supreme Court directed that in the meantime operation of the impugned judgment of the (Peshawar) High Court, as well as, the order of the Election Commission of Pakistan is suspended; that such interim order relates to the disputed seats only, i.e., the reserved seats allocated over and above the initially allocated reserved seats to the political parties; that present order is to operate prospectively, w.e.f., from today, and that since the questions under consideration require constitutional interpretation, the matter be placed before the Committee under Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 for constitution of a larger bench to hear the appeals.

For the Petitioner(s):

Faisal Siddiqui, Advocate Supreme Court, Barrister Gohar Ali Khan, Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court.

Through V.L. Lahore:

Sameer Khosa, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record and Muhammad Usman Mirza, Advocate-on-Record.

For the Respondent(s):

Mansoor Usman Awan, AGP., Ch. Aamir Rehman, Addl. AGP., Sikandar Bashir Mohmand, Advocate Supreme Court, Zafar Iqbal, Sp. Secy. (ECP), M. Arshad, D.G. (L) (ECP), Khurram Shahzad, ADG(L), Falak Shair, L.C. (ECP) and Amir Javed, Advocate Supreme Court.

P L D 2024 Supreme Court 645

Present: Yahya Afridi, Amin-ud-Din Khan and Ayesha A. Malik, JJ

IBRAHIM KHAN---Petitioner

Versus

Mst. SAIMA KHAN and others---Respondents

Civil Petition No. 4657 to 4659 of 2022, decided on 15th February, 2024.

(Against judgment dated 28.11.2022 passed by the Peshawar High Court, Abbottabad Bench in W.Ps. Nos.394-A, 395-A and 310-A of 2017).

(a) Islamic law---

----Dissolution of marriage---Khula---Halala---As khula is a special and exclusive right given to a woman, which is not available to a man, she can seek dissolution on the basis of khula in which one of the consequences is that she can re-marry the same man, without entering into intervening or intermediary marriage i.e. halala.

Khurram Shehzad v. Federation of Pakistan PLD 2023 FSC 286 ref.

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

----Ss. 2 & 5---Family Courts Act (XXXV of 1964), S. 5, Sched.---Khula---Scope---Khula is a basic right of a woman under Muslim family law---Right to seek khula is the exclusive and absolute right of the woman---She must in unambiguous and unequivocal terms express her intention to exercise such right before the court, that is to say, she must put her offer before the court that she seeks release from the marriage by waiving her dower and only then the court can grant her khula---Fundamentally, the principle is that khula cannot be granted, if it has not been explicitly sought for by the woman because she has to give up her right to dower---Hence, a court cannot on its own pass the decree of khula if it has not been sought for by the woman---Therefore, her consent is vital.

Principles of Mahomedan Law Para No. 319(2); Saleem Ahmad v. Government of Pakistan PLD 2014 SC 43; Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Bilqis Fatima v. Najm-ul-Ikwam Qureshi PLD 1959 Lah. 566; Mukhtar Ahmed v. Ansa Naheed PLD 2002 SC 273 and Muhammad Siddiq v. Ghufran Bibi PLD 1971 SC 192 ref.

Khawaja Shahid Rasool Siddiqui, Advocate Supreme Court for Petitioner (in all cases).

Nemo for Respondents (in all cases).

P L D 2024 Supreme Court 653

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

SHAUKAT MAHMOOD---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN (ECP) through Secretary ECP, Islamabad and others---Respondents

Civil Petition No. 183 of 2024, decided on 26th January, 2024.

(Against judgment dated 12.01.2024 passed by the Lahore High Court, Lahore in W.P. No. 2361 of 2024).

(a) Elections Act (XXXIII of 2017)---

----Ss. 60(2)(b), 62(9)(c) & 62(9)(d)---Election Rules, 2017, R. 51---Election for seat of National Assembly---Nomination papers, acceptance of---Joint bank account for elections expenses---Permissibility---In terms of S. 60(2)(b) of the Elections Act, 2017 ('the Act') there is a requirement of a declaration that an 'exclusive' bank account, for the purpose of recording election expenses, has been opened, or an existing bank account be dedicated for the same, to be nominated for an election---However, the said section, or rather any section of the Act, does not create a distinction between an 'exclusive bank account' or a 'joint bank account'---After all, a 'joint bank account' could be 'exclusive' as well---There is nothing on the record to suggest that the 'joint bank account' which is at the forefront of the present case, was not being exclusively used by the petitioner (candidate) and his wife---Moreover, S. 60(2)(b) of the Act gave the petitioner the option to dedicate an existing bank account for recording election expenses; in this regard, the Act does not specify, once again anywhere in any section of Act, that this existing bank account cannot be a joint account---If the legislature so desired that this exclusive bank account be owned 'exclusively' by one individual, or that an existing account which has to be dedicated is to be solely owned by the individual seeking nomination for elections, it would have added a proviso on its own---When the legislature has already mandated that the declaration required for nomination for election will be that of opening an exclusive bank account or dedicating an existing bank account, it was beyond the legislative competence of the Election Commission of Pakistan (ECP) to require that such bank account shall not be a joint signatory account---Legislature did not envision such a bifurcation, and therefore S.R.O. No. 1793(I)/2023, dated 12.12.2023, which amended Rule 51 of the Election Rules, 2017 ('the Rules'), by adding the proviso, impinges upon the fundamental rights guaranteed under the Constitution and is in conflict with the Constitution, specifically the right to contest elections, which is a fundamental right guaranteed by Article 17(2) of the Constitution---Said proviso was beyond the legislative competence of the delegate, the ECP, making it and the proviso is violative and beyond the scope of its parent and enabling statute, i.e. Elections Act, 2017---Therefore, S.R.O. No. 1793(I)/ 2023, dated 12.12.2023, which amended Rule 51 of the Rules, by adding the proviso, is in conflict and contradiction hence is not applicable to the matter at hand---Insofar as the question of vires of Rule 51 is concerned, that may be taken up in another case---Petition was converted into an appeal and allowed, and it was directed that the nomination papers of the petitioner (candidate) for NA-163 (Bahawalnagar) are deemed accepted and his name is deemed included in the final list of candidates for the General Elections of 2024.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994 and Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955 ref.

(b) Delegated legislation---

----Rules made under a statute---Interpretation---Rules have to be consistent with the statute under which they are framed and with all that is deemed to be incorporated in the statute---Rule making authority cannot clothe itself with power which the statute itself does not give---Since the Rules are the wheels on which the hypothetical vehicle of the Act runs, it is tantamount that both work in harmony; otherwise, the Act would not be able to serve the purpose for which it was passed by the legislature.

Sh. Abdur Rehman v. The Collector and Deputy Commissioner, Bahawalnagar PLD 1964 SC 461; Province of East Pakistan v. Nur Ahmad PLD 1964 SC 451 and Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806 ref.

Shazib Masud, Advocate Supreme Court, Moiz Tariq, Advocate Supreme Court, assisted by Mian Ali Ashfaq, A. Ahad Khokhar, M. Fiaz Kandwal, Advocates and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zafar Iqbal, Spl. Secy. M. Arshad, D.G. (Law), Mansoor Akhtar Sherwani, DG (Political Finance), Khurram Shahzad, Addl. Director and Falak Shar, Legal Consultant for ECP (On Court's call).

Ahsan Jehangir Khan, Law Clerk, Research Assistance.

P L D 2024 Supreme Court 663

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

MATLOOB ELLAHI PARACHA---Appellant

Versus

Raja ARSHAD MAHMOOD and another---Respondents

Civil Appeal No.1877 of 2016, decided on 14th November, 2023.

(On appeal against the judgment dated 27.05.2016 passed by the Islamabad High Court, Islamabad in Civil Revision No.65 of 2016).

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

----O. II, R.2---Suit to include the whole claim---Order II, Rule 2, C.P.C---Object and scope stated.

Order II, Rule 2, C.P.C is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim that the plaintiff is entitled to make in respect of the cause of action on which he sues and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtlessly to prevent a multiplicity of suits. It is to be noted that this rule does not require that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit.

Saminathan Chetty and another v. Planaiappa Chetty (1915) 26 IC 228 ref.

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

----O. II, R.2---Suit to include the whole claim---Agreement to sell immoveable property, cancellation of---Earnest money paid, recovery of---First suit for specific performance of agreement to sell filed by plaintiff (vendee) was withdrawn---Plaintiff filed second suit for recovery of earnest money paid---Whether second suit was maintainable, and whether the cause of action in both suits was different?---Held, that cause of action in the second suit was not the same as in the first suit---First suit was brought alleging that the defendants (vendor and his attorney) illegally got cancelled the agreement to sell, and as such, the plaintiff claimed a decree for possession of the property by specific performance of the said agreement---Whereas the second suit of the plaintiff was based upon the allegations that the agreement to sell was cancelled by mutual consent of the parties, and it was agreed that the defendants would return the earnest money of Rs.5,000,000 to the plaintiff---In support of these allegations, the plaintiff relied on the statement of attorney of the vendor, which he recorded before the Deputy Registrar (Judicial) of the High Court, and the prayer of the plaint was for recovery of earnest money---This relief could not have been claimed by the plaintiff in his first suit for possession of the property by specific performance of the agreement to sell, because the right to possession accrues only when specific performance is decreed---Similarly, the right to refund of earnest money accrues only when specific performance is denied---As such, the facts relating to the denial of specific performance resulting from the cancellation of the agreement to sell, and the settlement agreement in the case constituted a fresh cause of action, and therefore, the second suit for recovery of money based thereon could not be held to be barred under Order II, Rule 2, C.P.C.---Appeal was allowed, and Trial Court was directed to decide the second suit of plaintiff on merits.

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

----S. 3 & First Sched.---Periods of limitation provided in Articles under First Schedule to the Limitation Act, 1908---Interpretation---Law of limitation being a disabling provision, its various Articles are to be construed by its plain language.

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

----First Sched., Arts. 97 & 181---Agreement to sell immoveable property, cancellation of---Earnest money paid, recovery of---First suit for specific performance of agreement to sell filed by plaintiff (vendee) was withdrawn---Plaintiff filed second suit for recovery of earnest money paid - Whether Article 97 or 181 of the Limitation Act, 1908 applied in the case of the second suit?---Held, that the only Article which could have been applied, in the given circumstances of the present case, was Article 97 of the Limitation Act, 1908---This Article deals with a suit "for money paid upon an existing consideration which afterwards fails"---Plain reading of said Article dictates three ingredients for its applicability: firstly, the suit must be for money; secondly, such money must have been paid upon a consideration which was in existence at the time of the payment; and lastly, the said consideration must have afterwards failed---If all these ingredients are established, the application of Article 97 cannot be resisted, and the starting point of limitation of three years under it would not be the date when the money was paid but when the consideration fails---All these three ingredients were fulfilled in this case---Payment of earnest money under the agreement to sell dated 20th of July, 2005, would fall within the meaning of the phrase "for money paid"---Money paid under the agreement was paid for "existing consideration"---Lastly facts stated by the plaintiff in the second suit show that the transaction did not fructify in a completed sale and thus the inevitable conclusion is that the consideration for which the money was paid was extinguished---Thus, all the three requirements of Article 97 were fully met in the present case, and, that being so, the limitation for the plaintiff's second suit would rightly start from the date of failure of the consideration, and the second suit would be within time having been brought within three years of the date of the failure of the consideration, which in this case could be said to have failed only when the first suit was dismissed as withdrawn---Appeal was allowed, and Trial Court was directed to decide the second suit of plaintiff on merits.

Mussamat Basso Kuar and others v. Lala Dhum Singh 15 Indian Appeals 211 (PC); Udit Narain Misr and others v. Muhammad Minnat-Ullah [(1903) ILR 25 Allahabad 618 (PC) and Amna Bibi and others v. Uditnarain Misra and others 36 Indian Appeal 44 (PC) ref.

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

----S. 12---Suit for specific performance of an agreement to sell immoveable property---Dismissal of suit---Earnest money paid, recovery of---Suitable amendments proposed by the Supreme Court in the Specific Relief Act, 1877 for refund of earnest money---In the present case the sale agreement was executed on 20th of July, 2005---After that, a suit for specific performance was instituted---Case continued until it was dismissed on 18th of November, 2013, after eight years of litigation---On 13th of February, 2014, the second round of litigation was brought by the plaintiff to recover earnest money, to which the cause of action arose after the dismissal of the first suit for specific performance, and has reached the Supreme Court in appeal 18 years after the agreement---In total, these two rounds of litigation, starting with the same agreement, had almost completed 19 years of litigation---Supreme Court observed that based on empirical study it is advisable to suggest that suitable amendments to the Specific Relief Act, 1877, be made so as to do away with such litigations and reduce the burden on the courts and on parties; that proposed amendments should provide for a provision by which any person suing for the specific performance of a contract for the transfer of immovable property, in appropriate cases, may ask for (i) possession or partition and separate possession, of the property in addition to such performance; or (ii) any other relief to which he is entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

Ms. Hifza Ibrar Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Zulfiqar Ali Abbasi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2

P L D 2024 Supreme Court 672

Present: Sardar Tariq Masood, Amin-ud-Din Khan and Syed Hasan Azhar Rizvi, JJ

DUNIYA GUL and another---Petitioners

Versus

NIAZ MUHAMMAD and others---Respondents

Civil Petition No.920-P of 2023, decided on 16th January, 2024.

(Against the judgment dated 30.11.2023 passed by Peshawar High Court, Peshawar passed in FAO No.212 -P of 2023).

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

----O.XVII, R.3---Adjournments---Prevalent trend of frequent adjournment requests in lower courts---Such trend amounts to an abuse of the process of the court---This practice has significantly contributed to a substantial backlog of litigation in the lower judiciary---It is imperative that the courts actively discourage this behavior to ensure the prompt delivery of justice to the citizens of Pakistan---By curbing the routine use of adjournments, the courts can expedite legal proceedings, alleviate the burden on the lower judiciary, and ultimately enhance the efficiency of the judicial system, and this, in turn, will contribute to a more timely and effective resolution of legal matters, promoting access to justice for all---It is imperative for the court to exercise vigilance and refrain from granting adjournments liberally and without any compelling reasons----Such a cautious approach is necessary to prevent abuse of the legal system, ensure a fair and timely resolution of cases, and optimize the use of judicial resources---In this regard, the Code of Civil Procedure, 1908 ("C.P.C.") under Order XVII, Rule 3, empowers the court to proceed to decide the suit forthwith if a party, to whom time has been granted, fails to produce evidence, secure the attendance of witnesses, or perform any other act necessary for the further progress of the suit.

Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300 ref.

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

----O. XVII, R. 3---Seeking multiple adjournments on frivolous grounds---Defendants failing to produce their oral evidence and prolonging the matter by seeking adjournments---Right to produce evidence struck off---Detail of the trial court proceedings showed that the petitioners (defendants) were afforded more than forty-three adjournments spreading over more than two years for the production and recording of their evidence---Case was repeatedly adjourned at the request of the petitioners for the production of their evidence---Despite clear warnings i.e. "last opportunity" by the trial court and the imposition of costs, the petitioners failed to produce and record the oral evidence---Trial court vide different orders gave specific warnings to the petitioner by issuing notice under Order XVII, Rule 3 of the C.P.C. with cost, but, the petitioners did not take it seriously and omitted to produce and record their evidence---Instead, they filed an application under Order VII, Rule 11 of the C.P.C. for the rejection of the plaint, albeit at a belated stage, when the case was fixed for the evidence of the defendants and was about to be finalized---Said application was dismissed by the trial court but the petitioners did not stop there; they unnecessarily dragged the plaintiff (respondent) up to the Supreme Court while challenging the order of the trial court dismissing their application for rejection of the plaint---During that period, the proceedings of the case remained suspended---Trial court was fully justified in striking off the right of the petitioners to produce the oral evidence by invoking the penal provision of the Order XVII, Rule 3 of the C.P.C.---Petition was dismissed and leave was refused.

Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi, and another 2020 SCMR 300 ref.

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

----O. XVII, R. 3---Party failing to produce its evidence---Power of the Trial Court to strike off a party's right to produce oral evidence---When the last opportunity to produce evidence is granted and the party has been duly warned of the consequences, the court must execute its order consistently and strongly, without exceptions---Such a measure would not only realign the system and reaffirm the authority of the law but also curb the trend of seeking multiple adjournments on frivolous grounds, which serve to needlessly prolong and delay proceedings without valid or legitimate justification---Moreover, when the court issues an order providing the final chance, it not only issues a judicial order but also extends a commitment to the parties that no further adjournments will be permitted for any reason---Court must stand by its order and uphold its commitment, leaving no room or option for any alternative action.

Inayat Ullah Khan, Advocate Supreme Court for Petitioners.

Naveed Maqsood, Advocate Supreme Court for Respondents.

(Via video link Peshawar)

P L D 2024 Supreme Court 681

Present: Qazi Faez Isa, C.J., Muhammad Ali Mazhar and Musarrat Hilali, JJ

ZUBAIR SAEED SABRI/ SAIN ZUBAIR SHAH---Petitioner

Versus

The STATE through A.G., Islamabad and another---Respondents

Criminal Petition for Leave to Appeal No. 1359 of 2023, decided on 14th February, 2024.

(Against the order dated 10.11.2023 passed by the Islamabad High Court, Islamabad in Crl. Misc. No. 1627-B of 2023).

Criminal Procedure Code (V of 1898)---

----Ss. 156-A & 497---Penal Code (XLV of 1860), Ss. 295-A, 295-C & 298-B---Constitution of Pakistan, Arts. 4(1), 14(1) & 185(3)---Use of derogatory remarks, etc., in respect of Holy Prophet (pbuh)---Bail, grant of---Complainant alleged that he went to house of the petitioner (accused) where he allegedly saw a panaflex banner on which there were photographs allegedly of the Prophet and 12 Imams---Complainant then went to the police station and asked the police to accompany him, and they entered into the petitioner's house, removed the panaflex from the wall and took it into possession---Held, that the police were required to obtain a search warrant before entering the house of the petitioner, but did not do so---Without obtaining a search warrant the privacy of the petitioner's home was violated---Police, in entering the petitioner's house without a search warrant, violated the law, Islamic Injunctions and moral standards---Illegal entry of the police into the petitioner's house also brings into question anything recovered by the police from his house, which is another legal transgression---Since section 295-C of the P.P.C. was mentioned as the only offence in the FIR, it was required to be investigated by an officer not below the rank of SP, as required by section 156-A of the Cr.P.C., but this was not done in the present case---Article 4(1) of the Constitution mandates that individuals must be treated in accordance with law, which includes section 156-A of the Cr.P.C---Section 295-C of the P.P.C., for which the petitioner was initially charged, is a capital offence---If the complainant's allegations were accepted in their entirety, even then this offence was not made out---It is, therefore, surprising that the police mentioned this offence in the FIR, which can only mean that they did so under pressure of the complainant or for ulterior purposes---Only other explanation could be their gross incompetence---In all offences against religion the particulars of the offence must be clearly stated---Merely levelling such a charge attracts great odium because even if the accused is subsequently found to be not guilty, it becomes inconsequential as his life has already been destroyed---In this case the charge was also amended to sections 295-A and 298-B of the P.P.C.---Petitioner has remained incarcerated for over seven months but his trial is nowhere near conclusion---All the said factors entitled the petitioner to bail---Petition was converted into appeal and allowed, and petitioner was admitted to bail.

Verse 27, chapter 24 (An -Nur) of the Holy Qur'an and Abu 'Abdillah Muhammad bin Ahmad al-Qurtubi, al-Jami' li -Ahkam al-Qur'an (Beirut: Mu'assasat al-Risalah, 2006), vol. 19, pp. 400-401 ref.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioner.

Raja M. Shafaqat Abbasi, D.A.G., Masood Bangash, SSP (Investigation) and Rukhsar Mehdi, SP (Investigation), Islamabad, Ch. M. Rafaqat Khokhar, Law Officer and Muhammad Hanif, Inspector/IO for the State.

The Complainant in person.

P L D 2024 Supreme Court 688

Present: Munib Akhtar, Shahid Waheed and Irfan Saadat Khan, JJ

UMAR FAROOQ---Petitioner

Versus

SAJJAD AHMAD QAMAR and others---Respondents

C.P.L.As. Nos. 210, 211, 212, 213 and 214 of 2024, decided on 30th January, 2024.

(On appeal against judgments dated 16.01.2024 passed by the Lahore High Court, Lahore in W.Ps. Nos. 2610 and 2620, 2168 and 2664 of 2024).

(a) Elections Act (XXXIII of 2017)---

----S. 62(2)---Elections for seat of National Assembly/Provincial Assembly---Nomination papers---Scrutiny---Attendance of candidate at the time of scrutiny---Not mandatory---There is no requirement for the candidate to be in attendance before the returning officer at the time of scrutiny of his nomination papers---Subsection (2) of section 62 of the Elections Act, 2017 is an enabling provision, which makes it permissible (but not mandatory) for, inter alia, a candidate to attend the scrutiny of his nomination paper.

(b) Elections Act (XXXIII of 2017)---

----S. 62(9)---Elections for seat of National Assembly/Provincial Assembly---Nomination papers---Absconder---Fugitive from law---Proclaimed offender---Eligibility to contest elections---Disadvantage, if any, for being a proclaimed offender ordinarily relates only to the case in which a person has been so proclaimed, and not to the other cases or matters which have no nexus to that case---In the absence of any contrary provision in the Constitution or the Elections Act 2017 ("Act"), status of a person as a proclaimed offender in a criminal case does not affect his civil right to contest an election---Clearly, if a proclaimed offender can contest elections someone who is only alleged to be an absconder can equally do so.

Tahir Sadiq v. Faisal Ali and others 2024 SCMR 775 ref.

(c) Elections Act (XXXIII of 2017)---

---S. 62(9)---Election Rules, 2017, R. 51---Elections for seat of National Assembly/Provincial Assembly---Nomination papers---Form and content---Requirement of filing an affidavit along with nomination papers disclosing such criminal cases (if any) as were pending against the candidate six months prior to the filing of the nomination in terms of the order reported as Speaker, National Assembly of Pakistan and others v. Habib Akram and others PLD 2018 SC 678 ("Habib Akram order")---Not applicable to General Elections 2024---Such arrangement of filing affidavits brought about by the 'Habib Akram order' was only an interim measure---Looking at the 'Habib Akram order' as a whole and the context in which it came to be made, it applied only to the General Elections of 2018 and, at most, to the 2018 election cycle that those elections engendered---That would include any bye-elections held in that cycle and also elections to the Senate held during that period---But that is all---To conclude otherwise, i.e., that the order extended beyond that cycle, would be incorrect---Firstly, that would give the order a degree of permanence and continuity quite contrary to its stated interim nature---It would be as though the matters in which the order was made had been finally decided and disposed of---That, of course, is not the case---Secondly, such characterization and application of the order would run against the grain of the present electoral framework, where the form and contents of the nomination paper were within the domain of the primary legislative process---'Habib Akram order', being an interim measure, had ceased to be operative, since the 2018 election cycle had come to an end -- It had no application for the General Elections of 2024 or for any elections held or to be held in the present election cycle---Inasmuch as candidates have been required to file affidavits in terms thereof or with reference thereto for the said General Elections or any elections thereafter, that cannot entail any legal consequences or penalties at any stage of the relevant electoral process, including any election dispute taken, or to be taken, to an Election Tribunal---This will continue to be so until either the electoral framework relating to nomination papers is altered by primary legislation, or the matters in which the 'Habib Akram order' came to be made are decided finally and conclusively in the same or similar terms, or the said order is expressly extended by the Court---Certainly, absent any such contingencies, the Election Commission cannot require candidates for any election in the present election cycle to file such affidavits.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Petitioner (in all cases).

Ahsan Bhoon, Advocate Supreme Court (in all cases) for Respondent No. 1 (via Video-Link, Lahore).

Khurram Shehzad, Addl. DG. Law and Falak Sher, Legal Consultant for ECP.

P L D 2024 Supreme Court 698

Present: Amin-ud-Din Khan, Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi, Musarrat Hilali and Irfan Saadat Khan, JJ

FEDERATION OF PAKISTAN through the Secretary, Ministry of Law and Justice, Islamabad and others---Appellants

Versus

SUPREME JUDICIAL COUNCIL through Secretary, Supreme Court Building, Islamabad and others---Respondents

Intra Court Appeals Nos. 1 and 2 of 2024 in Constitutional Petition No.19 of 2020, decided on 21st February, 2024.

(On appeal from the judgment of this Court dated 27.06.2023 passed in Constitution Petition No. 19 of 2020).

Per Amin-ud-Din Khan, J.; Jamal Khan Mandokhail, Musarrat Hilali and Irfan Saadat Khan, JJ. agreeing; Syed Hasan Azhar Rizvi, J. dissenting.

(a) Constitution of Pakistan---

----Arts. 209(5) & 209(6)---Supreme Judicial Council ("SJC")---Proceedings against a Judge pending before the SJC---Resignation/retirement of Judge---Effect---If proceedings have already been initiated by the Supreme Judicial Council ('SJC') against a Judge, same shall not abate on his resignation or retirement, as the case may be, during such proceedings---Proceedings pending before the SJC which are initiated after issuance of notice to a Judge do not automatically drop or become infructuous on superannuation or resignation of the Judge---It is the prerogative of the SJC to proceed with the matter accordingly.

Per Jamal Khan Mandokhail, J; agreeing with Amin-ud-Din Khan, J. [Majority view]

(b) Constitution of Pakistan---

----Arts. 209(5) & 209(6)---Supreme Judicial Council ("SJC")---Proceedings against a Judge pending before the SJC---Resignation/ retirement of Judge---Effect---Proceedings pending before the Supreme Judicial Council ("SJC") shall not abate on account of retirement and resignation of a Judge---Judge who retires or resigns during pendency of proceedings against him/her before the SJC should not be allowed to escape the consequences of removal---Resignation by a Judge during pendency of proceedings against him/her before the SJC does tantamount to circumvention/avoidance of accountability enshrined and envisaged under Article 209 of the Constitution---Circumvention of proceedings under Article 209 of the Constitution would result in erosion of public trust in the Judiciary---When an inquiry into conduct of a judge initiated by the SJC is terminated without an opinion, on account of retirement or resignation of a judge from his office, it would render Article 209(5) & (6) of the Constitution redundant---Termination of inquiry proceedings upon retirement of a judge would otherwise give an impression that the SJC is dependent on the will of the judge, who can overpower the control of the constitutional body---It may create a perception that the judges are above the law---There is no express provision in the Constitution, nor is there any enactment, preventing the SJC from continuing its proceedings of inquiry in a situation where a judge is retired or resigns before conclusion of the inquiry, therefore, it is the constitutional obligation of the SJC to conclude the inquiry initiated against a judge and form an opinion regarding his conduct---If after inquiring into the matter, the SJC is of the opinion that the judge has been guilty of misconduct, under such circumstances, he shall not be eligible for post-retirement benefits---His Lordship observed that in order to ensure independence of the SJC, it is imperative that the Supreme Judicial Council Procedure of Inquiry, 2005' ("Procedure of 2005") is suitably amended in line with the provisions of Article 209 of the Constitution, to introduce a regular vigilant mechanism for convening a meeting of the SJC on a regular interval, for initiating and concluding the inquiry proceedings upon a reference or a complaint by the SJC before retirement or resignation of a judge.

In re: Seaman, 627 A. 2d 106, 121 (N.J 1993) and In re Nowell, 293 N.C. 235 and Steensland v. Ala. Judicial Inquiry Comm'n 87 So. 3d 535 ref.

Per Syed Hasan Azhar Rizvi, J.; dissenting with Amin-ud-Din Khan and Jamal Khan Mandokhail, JJ. [Minority view]

(c) Supreme Court Rules, 1980---

----O.XXXIII, R. 6---Inherent powers of the Supreme Court---Scope---Where an express provision is made in a law for a particular purpose, resorting to inherent powers to achieve the same purpose is not permissible---Thus, the inherent power cannot be applied to defeat the express provisions of the statute---Rule 6 of Order XXXIII of the Supreme Court Rules, 1980, can be pressed into service only in a matter which is competently filed before the Supreme Court but it does not give an independent right to initiate proceedings.

Shahkot Bus Service, Shahkot v. The State and another 1969 SCMR 325 and University of Malakand through Registrar and others v. Dr. Alam Zeb and others 2021 SCMR 678 ref.

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

----Ss. 3 & 5---Cases involving the Federal or Provincial Government, departments or autonomous bodies filed before the Supreme Court---Limitation prescribed by law not followed without providing any justifiable reasons acceptable under the law---His Lordship observed that the concerned governments, departments or autonomous bodies must understand that the delay in the limitation for filing proceedings can only be condoned if sufficient grounds are provided; otherwise, in the absence of such grounds, no preferential treatment can be offered to the governments, departments or autonomous bodies, and their cases must be dealt with in the same manner as those of an ordinary litigant or citizen.

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd. 1990 SCMR 1059; Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307; Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376; Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436 and Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others 2022 SCMR 189 ref.

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

----S. 3---Limitation, law of---Object and scope---Public interest requires that there should be an end to litigation---Law of limitation provides an element of certainty in the conduct of human affairs---Law of limitation is a law that is designed to impose quietus on legal dissensions and conflicts---It requires that persons must come to Court and take recourse to legal remedies with due diligence---Therefore, the limitation cannot be regarded as a mere technicality---With the expiration of the limitation period, valuable rights accrue to the other party.

Ghulam Rasool and others v. Ahmad Yar and others 2006 SCMR 1458; Collector Sales Tax (East), Karachi v. Customs, Excise and Sales Tax Appellate Tribunal, Karachi and another 2008 SCMR 435 and Messrs SKB-KNK Joint Venture Contractors through Regional Director v. Water and Power Development Authority and others 2022 SCMR 1615 ref.

(f) Interpretation of Constitution---

----Principles---Constitution should be read as a whole giving every part thereof meaning consistent with the other provisions of the Constitution---As far as possible each provision of the Constitution should be construed to harmonize with all the others---But, in applying these rules the Courts however have to remember that to harmonies is not to destroy---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 Constitution should have effect---An argument based on what is claimed to be the spirit of the Constitution is always attractive, as it has a powerful appeal to sentiment and emotion---However, a Court of law must derive the spirit of the Constitution from its language---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, especially 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---Courts cannot, under the disguise of progressive interpretation, amend the Constitution and read that into it which is not enshrined in any provision of the Constitution.

Mc Culloch v. Maryland 17 US (4Wheat) 316 (1819); State v. Superior Court (1944) at 547; Gompers v. U.S. 233 (1914); Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921; Kalpana Mehta and others v. Union of India (UOI) and others AIR 2018 SC 2493; Government of NCT of Delhi v. Union of India (UOI) and others (2018) 8 SCC 501; Justice K.S. Puttaswamy and others v. Union of India (UOI) and others AIR 2017 SC 4161; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Aam Log Itehad and another v. The Election Commission of Pakistan and others PLD 2022 SC 39 and Hamza Rasheed Khan v. Election Appellate Tribunal, Lahore High Court, Lahore and others (Civil Appeal No. 982 of 2018) ref.

(g) Constitution of Pakistan---

----Arts. 209(5) & 209(6)---Supreme Judicial Council ("SJC")---Proceedings against a Judge pending before the SJC---Resignation/retirement of Judge---Effect---Judge, after retirement or resignation, cannot be termed as 'a judge of the Supreme Court or a High Court,' within the purview of Article 209 (5) of the Constitution and as such, the Supreme Judicial Council ('the Council') lacks authority to conduct an inquiry against him/her---Being so, any complaint pending against a judge, whether proceedings have been initiated or not, shall abate after his retirement or resignation, accordingly---To avoid such an eventuality, the Council, being aware of the date of retirement, can inquire into and resolve the complaint before the retirement of the Judge---Unfortunately, Article 209 of the Constitution does not address the scenario in which a Judge, against whom a complaint is pending or under inquiry, resigns before its conclusion---His Lordship observed that it is expected that the Council, to ensure the smooth functioning of its operations and to safeguard the independence of the Judiciary, will implement clear and transparent procedures for fixing, listing, and hearing complaints, thereby preventing any undue delays or manipulation in the process of accountability---Intra-Court Appeals were dismissed. [Minority view]

(h) Legislation---

----Abuse of legal process---If a provision of law is misused and subjected to the abuse of the legal process, it is for the legislature to amend, modify, or repeal it, if deemed necessary---If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them.

Padmasundara Rao (dead) and others v. State of Tamil and others (2002) 255 ITR 147 (SC); Halsbury's Laws of England, 3rd Edition, Volume 36, page 390; Supreme Court Bar Association of Pakistan through President and another v. Federation of Pakistan through Ministry of Interior Islamabad and others PLD 2023 SC 42 and Muhammad Ismail v. The State PLD 1969 SC 241 ref.

For Appellants in I.C.A. No.1 of 2024

and Respondent No.5 in I.C.A. No.2 of 2024:

Mansoor Usman Awan, Attorney General for Pakistan assisted by Ms. Maryam Ali Abbasi, Advocate, Ms. Maryam Rashid, Advocate, Ch. Aamir Rehman, Additional Attorney General for Pakistan, Malik Javid Iqbal Wains, Additional Attorney General for Pakistan, Raja M. Shafqat Abbasi, Deputy Attorney General and Anis Muhammad Shahzad, Advocate-on-Record.

For Appellants in I.C.A. No. 2 of 2024 and

Respondents Nos. 3, 4, 6, 7, 8 and 10 in I.C.A. No.1 of 2024.

Waqqas Ahmad Mir, Advocate Supreme Court assisted by Hammad Hussain Shah, Advocate and Anas Irtiza, Advocate (At Islamabad on 31.01.2024, 19.02.2024 and 21.02.2024 and via video link from Lahore on 12.02.2024) and Ch. Akhtar Ali, Advocate-on-Record.

Amici Curiae:

Kh. Muhammad Haris, Sr.Advocate Supreme Court assisted by Yaser Aman Khan, Advocate Supreme Court.

Faisal Siddiqi, Advocate Supreme Court assisted by Muhammad Usman Mumtaz, Advocate (At Islamabad on 19.2.2024 and via video link from Karachi on 21.2.2024.)

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Abu Bakar Siddique, Advocate and Ms. Sehar Mahsud, Advocate.

Abdul Moiz Jaferii, Advocate High Court (through video link from Karachi.)

P L D 2024 Supreme Court 746

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan, Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

SHAUKAT AZIZ SIDDIQUI---Petitioner

Versus

FEDERATION OF PAKISTAN, SECRETARY MINISTRY OF LAW

AND JUSTICE and another---Respondents

Constitution Petitions Nos. 76 of 2018, 15 of 2020 and 2 of 2021, decided on 22nd March, 2024.

(a) Constitution of Pakistan---

----Arts. 4, 10A, 209(5)(b) & 209(6)---Code of Conduct for Judges of the Supreme Court and High Courts, Arts. II, III, V & IX---Judge of the (Islamabad) High Court---Removal from service due to misconduct---Legality---Petitioner (Judge) was not given an opportunity to establish his allegations nor brought face to face with those he had accused---Supreme Judicial Council ("SJC") did not give any credence to petitioner's own words and to the contents of his replies; the SJC assumed that they were false; and having made this assumption concluded that petitioner was guilty of misconduct---Petitioner was deprived of his Fundamental Rights of fair trial and due process---Supreme Judicial Council had dispensed with the holding an inquiry but did not do so for any compelling or justifiable reason---Supreme Judicial Council did not specify which particular provision or aspect of the Code of Conduct for Judges of the Supreme Court and High Courts, the petitioner had violated---Report/Opinion of the SJC and the Notification by which the petitioner was removed from his office were set aside by the Supreme Court with the direction that the petitioner shall be deemed to have retired as a Judge of the (Islamabad) High Court.

Petitioner, who was a Judge of the (Islamabad) High Court, had levelled very serious allegations against the then DG-C of Inter Services Intelligence ('ISI'), and a few of his subordinates in the ISI who he accused of manipulation of certain sensitive cases in the Islamabad High Court and in the Accountability Court, which was under the jurisdiction of the Islamabad High Court. However, petitioner was not given an opportunity to establish his allegations nor brought face to face with those he had accused. All those against whom the petitioner made allegations denied their stated involvement before the Supreme Court. Therefore, it was all the more necessary for the Supreme Judicial Council ("SJC") to have inquired into the matter and to have determined who was telling the truth. The SJC did not give any credence to petitioner's own words and to the contents of his replies; the SJC assumed that they were false; and having made this assumption concluded that petitioner was guilty of misconduct. It would be difficult to categorize such a determination as fair or one which accorded with the requirements of due process. Petitioner was not given an opportunity to establish the veracity of his allegations, which was incumbent on the SJC when the same formed the basis of his removal from office. The Fundamental Rights enshrined in the Constitution include the right to a fair trial and due process (Article 10A) and all citizens, including Judges, must be dealt with in accordance therewith. However, petitioner was deprived of his Fundamental Rights of fair trial and due process. Article 209 of the Constitution does not stipulate that in determining whether a Judge is guilty of misconduct he is denuded of the Fundamental Rights nor permits the SJC to act contrarily to them.

State v. Mr. Justice Akhlaque Hussain PLD 1960 SC 26; The President v. Justice Shaukat Ali, PLD 1971 SC 585; Error! Hyperlink reference not valid. https://www. supremecourt.gov.pk/downloadsjudgements/complaint_586_2023_sjc_04032024.pdf and Ghulam Muhammad Khan v. Prime Minister of Pakistan 1996 SCMR 802 ref.

The SJC had dispensed with the holding an inquiry but did not do so for any compelling or justifiable reason and did so by negating petitioner's Fundamental Right to a fair trial and due process.Without the holding of an inquiry the punishment awarded to the petitioner of removing him from office could not be imposed. At the very the petitioner should have been asked to testify on oath and provided an opportunity to support his allegations, but this was not done. And those against whom the allegations were levelled should have been provided an opportunity to cross-examine him and also be provided an opportunity to testify and rebut the allegations. In not holding an inquiry, by not providing the petitioner an opportunity to establish his allegations and without recording of evidence it cannot be stated that petitioner had received a fair trial and that due process requirements were met. He was also not dealt with in accordance with law, as prescribed by Article 4 of the Constitution, and in particular action detrimental to him, including his reputation, was taken.

Senior Superintendent of Police v. Shahid Nazir 2022 SCMR 326; Nawab Khan v. Government of Pakistan PLD 1994 SC 222 and Government of Pakistan v. Farheen Rashid 2011 SCMR 1 ref.

If a Judge can be removed without even inquiring into the allegations levelled by or against the Judge the independence of the Judiciary receives a severe setback.

Report/Opinion of the SJC stated that the petitioner had not only violated some express provisions of theCode of Conduct for Judges of the Supreme Court and High Courts("Code of Conduct") but he had also displayed conduct unbecoming of a Judge and had violated the traditional requirements of behavior expected of a Judge of a superior Court. However, the SJC did not specify which particular provision or aspect of Articles II, III, V & IX of the Code of Conduct, or of any other, the petitioner had violated and had persuaded the SJC to opine that he was guilty of misconduct.

The SJC's Report/Opinion, dated 11 October 2018, which was submitted to the President and the Notification No. F.9(2)/2018-A.II, dated 11 October 2018, stated to have been issued on the advice of the Prime Minister and his Cabinet of Ministers were set aside. Consequently, the Supreme Court directed that the petitioner shall be deemed to have retired as a Judge of the (Islamabad) High Court and he will be entitled to receive all the benefits and privileges due to a retired Judge. Constitutional petitions were allowed.

(b) Constitution of Pakistan---

----Art. 211---Removal of a Judge by the Supreme Judicial Council---Bar of jurisdiction of Courts---Scope---Bar of jurisdiction contained in Article 211 of the Constitution is not applicable in cases where the action taken against a Judge by the Supreme Judicial Council constitutes mala fide, or is coram non judice, or in respect of acts taken without jurisdiction.

Justice Shaukat Siddiqui v. President of Pakistan PLD 2018 SC 538; Justice Qazi Faez Isa v. President of Pakistan PLD 2021 SC 1; Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan PLD 2010 SC 61; Dynes v. Hoover 61 U.S. 65 (1857); Dred Scott v. Sanford 60 U.S. 393 (1857); Dred Scott v. Sanford 495 U.S. 604 (1990); Burham v. Superior Court of California PLD 1965 SC 671 and Federation of Pakistan v. Saeed Ahmed PLD 1974 SC 266 ref.

(c) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts ("Code of Conduct")---Code of Conduct issued by the Supreme Judicial Council does not prohibit a judge from addressing a bar association or even apublic gathering, neither does any law.

(d) Constitution of Pakistan---

----Art. 209(8)---Code of Conduct for Judges of the Supreme Court and High Courts ("Code of Conduct")---If Judges are to be adjudged by unspecified, arbitrary and vague notions of what constitutes appropriate traits and patterns of behavior of a Judge and the Supreme Judicial Council ("SJC") is to consider whether an alleged conduct of a Judge is offensive to the qualities and behavior traditionally expected of a Judge it would place a Judge at the complete mercy of those who constitute the SJC---Constitution, stipulates that the SJC shall issue a code of conduct to be observed by Judges of the Supreme Court and the High Courts [Article 209(8)]---Constitution has empowered the SJC to issue the code of conduct, however, once it issues it the SJC must only adjudge in accordance therewith---This is also concomitant in ensuring the independence of the Judiciary since judges must not be left vulnerable to the likes and dislikes of the members of the SJC or to the vicissitudes of governments or to that of complainants.

Hamid Khan, Sr. Advocate Supreme Court, Ajmal Ghaffar Toor, Advocate Supreme Court for Petitioner along with the petitioner (in C.P. No. 76 of 2018).

Salahuddin Ahmed, Advocate Supreme Court (Through video-link from Karachi) along with Ch. Hafeezullah Yaqoob, Advocate Supreme Court and Muhammad Amir Malik, Advocate-on-Record for Petitioner (in C.Ps. Nos. 15 of 2020 and 2 of 2021).

Kh. Haris Ahmed, Sr.Advocate Supreme Court for Respondents Nos.3 and 4 (in Const.P. No.76 of 2018), Wasim Sajjad, Senior Advocate Supreme Court for Respondent No. 5 (in Const. P. No. 76 of 2018) and Arbab Muhammad Arif, in person.

Mansoor Usman Awan, Attorney-General for Pakistan assisted by Malik Javed Iqbal Weins, Additional Attorney-General along with Mir Aurangzeb, Advocate-on-Record and Nazakat Ali Bhand, Assistant Solicitor, Ministry of Law and Justice for the Federation.

P L D 2024 Supreme Court 771

Present: Yahya Afridi and Amin-ud-Din Khan, JJ

FOZIA MAZHAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and others---Respondents

Civil Petition No. 1737-L of 2020, decided on 26th April, 2024.

(Against the judgment dated 29.10.2020 passed by the Lahore High Court, Lahore in W.P. No. 13063 of 2020).

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

----S. 17---Civil Procedure Code (V of 1908), S. 12(2)---Decree passed by Family Court challenged through an application under section 12(2), C.P.C.---Maintainability---Family Court may apply the general principles enshrined in C.P.C. in proceeding with not only the trial but also exercise jurisdiction in entertaining an application of an aggrieved party, challenging the validity of a judgment, decree or order on the plea of fraud or misrepresentation---Section 12(2) of C.P.C. can be invoked to challenge the judgment and decree passed by a Family Court under the Family Courts Act, 1964.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool 2010 SCMR 1840; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore 2014 SCMR 1365 and Muhammad Arshad Anjum v. Mst. Khurshid Begum 2021 SCMR 1145 ref.

(b) Constitution of Pakistan---

----Art. 199---Family Courts Act (XXXV of 1964), S.5 & Sched.---Concurrent findings of fact recorded by the Family Court and Appellate Court---Interference by the High Court in its Constitutional jurisdiction---Scope---High Court, in exercise of its constitutional writ jurisdiction, is not supposed to interfere in the findings on controversial questions of fact based on evidence---Scope of judicial review by the High Court under Article 199 of the Constitution in such cases is limited to the extent of misreading or non-reading of evidence, or if the finding is based on no evidence, which may cause a miscarriage of justice---It is not proper for the High Court to disturb the finding of fact through a reappraisal of evidence in constitutional writ jurisdiction or to exercise this jurisdiction as a substitute for revision or appeal---Findings of facts rendered by the District Court on appeal under the Family Courts Act, 1964, must as a rule be treated final and any interference in the same by the High Court in its constitutional writ jurisdiction should only be resorted to as an exception in cases where the findings are based on no evidence or the findings are the result of gross misreading or non-reading of material evidence, making the findings without lawful authority and of no legal effect in terms of Article 199(1)(a)(ii) of the Constitution.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 and Hamad Hassan v. Isma Bukhari 2023 SCMR 1434 ref.

(c) Administration of justice---

----Issue in a case not directly impacting the adjudication of the dispute---If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

Dobbs v. Jackson Women's Health Org. (597 U.S. 215, 348) ref.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Petitioner (via video link from Lahore).

Ali Masood Hayat, Advocate Supreme Court for Respondent No.3 (via video link from Lahore).

P L D 2024 Supreme Court 780

Present: Yahya Afridi, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

HAFSA HABIB QURESHI and others---Petitioners

Versus

AMIR HAMZA and others---Respondents

Civil Petitions Nos. 3747 and 3748 of 2023, decided on 17th November, 2023.

(Against the judgments dated 09.10.2023 of the Peshawar High Court, Peshawar passed in W.P. No.4015-P of 2023).

(a) Jurisdiction---

----Objection regarding the jurisdiction of a court is of a serious nature and demands careful consideration---It is incumbent upon such a court to give due attention to this objection, diligently examine the relevant legal provisions and precedents, and arrive at a well reasoned decision regarding the maintainability of any dispute before it.

(b) Constitution of Pakistan---

----Art. 199---Suo motu powers of the High Court---Scope---High Court cannot exercise suo motu jurisdiction under Article 199 of the Constitution.

Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority 2018 SCMR 414; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Mian Irfan Bashir v. The Deputy Commissioner (D.C.), Lahore and others PLD 2021 SC 571 and Messrs Sadiq Poultry (Pvt.) Ltd. v. Government of Khyber Pakhtunkhwa through Chief Secretary and others PLD 2023 SC 236 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court has the power to convert and treat one type of proceeding into another type---After doing so, it can proceed to decide the matter itself, provided it has jurisdiction over the issue, or it may remit the matter to the competent authority, forum, or court for a decision on its merits.

Muhammad Akram v. DCO, Rahim Yar Khan and others

2017 SCMR 56; Sher Alam Khan v. Abdul Munim and others PLD 2018 SC 449 and The Commissioner of Income Tax (Legal) RTO, Abbottabad v. Messrs Ed-Zublin AG Germany and another 2020 SCMR 500 ref.

(d) Pakistan Medical and Dental Council Act, 2022 (IV of 2023)---

----Ss. 3, 9(2)(f), 17(1) & 47---General Clauses Act (X of 1897), S.21---Medical College Admission Test ("MDCAT")---Allegations of cheating---Retake of test on orders of the Provincial Cabinet---Legality---Province alone is responsible for conducting a single admission test/MDCAT in their respective province but on the dates approved by the Pakistan Medical and Dental Council ("Council") and subject to the procedure/formalities provided under the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Policy and Regulations 2023 ("Regulations")---Pakistan Medical and Dental Council Act, 2022 ("Act") or the Regulations do not offer any mechanisms for addressing unforeseen situations, like the present one where allegations were made of cheating by students during the MDCAT using modern devices---Consequently, in the absence of any specific laws, rules, or regulations, the provincial government has the competence to cancel and/or retake the MDCAT in terms of section 21 of the General Clauses Act, 1897, as rightly held by the High Court in the impugned judgment---Retake of the MDCAT is a necessary measure to rectify the damage caused by the cheating scandal and to ensure that only qualified and deserving candidates enter the medical profession---It is understandable that some candidates who performed legitimately in the MDCAT 2023 may feel aggrieved by the decision to retake the tests, however, it is important to emphasize that the greater good lies in maintaining the integrity of the medical profession---Competent and deserving candidates should view the retake of the MDCAT as an opportunity to reaffirm their capabilities---In the present case the High Court did not interfere in any affairs of the educational institution, instead, it upheld the decision of the provincial government to retake the MDCAT, as the government is fully competent to conduct including the retake of the said test, in accordance with Section 17 of the Act---Petitions were dismissed and leave was refused.

(e) Constitution of Pakistan---

----Art. 199---Educational institutions---Policies and internal affairs---Non-interference by Courts---Scope---Educational institutions occupy a special niche in our society which provides them a substantial right of "educational autonomy," within which public higher educational institutions are insulated from legal intrusion---Within that autonomous realm, educational institutions are entitled to deference when making academic decisions related to their educational mission---Thus, any interference by Courts of law with orders passed by educational institutions in the interest of the maintenance of discipline would defeat the very purpose for which these institutions exist or it would stultify the powers of the authorities/in charge of educational institutions or prevent them from taking any action against students' misconduct---Universities and educational institutions generally are armed with abundant powers of disciplinary action against recalcitrant students and the Courts are, in no way, minded to deprive them of their powers---While there exists a general principle of judicial restraint, implying that courts should be cautious in intervening in the internal matters of educational institutions, it is not an absolute ban---This restraint is exercised with prudence, and courts may step in when university authorities exceed the defined scope of their authority or act in violation of the statutes---In such cases, the courts play a crucial role in upholding legal standards and ensuring that educational institutions operate within the bounds of the law---Delicate balance between non-interference and necessary intervention is maintained to safeguard the integrity of academic institutions while also holding them accountable to legal frameworks.

University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Ahmad v. Vice-Chancellor, University of Engineering and Technology PLD 1981 SC 464; Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education 1996 SCMR 1872; Chairman, Joint Admission Committee, Khyber Medical College v. Raza Hassan 1999 SCMR 965; Board of Intermediate and Secondary Education v. Umar Asif Malik 1999 SCMR 1583; Prof Noor Muhammad Khan Marwat v. Vice-Chancellor, Gomal University PLD 2001 SC 219; Mian Muhammad Afzal v. Province of Punjab 2004 SCMR 1570; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Amir-Feroz Shamsi v. Institution of Business Administration 2006 SCMR 412; Syed Muhammad Arif v. University of Balochistan PLD 2006 SC 564; Muhammad Ishfaq Ahmad Sial v. Bahauddin Zakariya University 2011 SCMR 1021; Secretary Economic Affairs Division v. Anwarul Haq Ahmed 2013 SCMR 1687; Government College University v. Syeda Fiza Abbas 2015 SCMR 445; University of Health Science v. Arslan Ali 2016 SCMR 134; Khyber Medical University v. Aimal Khan PLD 2022 SC 92; Aina Haya v. Principal Peshawar Model Girls High School-I, Peshawar and others 2023 SCMR 198; Keyishian v. Bd. of Regents 385 U.S. 589; Sweezy v. New Hampshire 354 U.S. 234; Regents of University of Michigan v. Ewing 474 U.S. 214; Bd. of Regents v. South worth 529 U.S. 217; Brown v. Li 308 F.3d 939; Healy v. James 408 U.S. 169; R v. Dunsheath; Ex parte Meredith (1950) 2 All ER 741; Thorne v. University of London (1966) 2 All ER 338; Thomas v. University of Bradford (1985) 2 All ER 786; J.P. Kulshreshtha v. Chancellor, Allahabad University AIR 1980 SC 2141; Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth AIR 1984 SC 1543; Hindi Hitrakshak Samita v. Union of India AIR 1990 SC 851; K. Shekar v. V. Indiramma AIR 2002 SC 1230 and Shamshad Pathan Convener v. State of Gujarat (2012) 2 GLR 1364 ref.

For the Petitioner(s):

Abid S. Zuberi, Advocate Supreme Court and M. Habib Qureshi, Advocate Supreme Court (in C.P. No.3747 of 2023)

Ikram Chaudhry, Advocate Supreme Court (in C.P. No.3748 of 2023)

Muddasir Khalid Abbasi, Advocate Supreme Court (in C.M.A. No.9477 of 2023).

For the Respondent(s)

Abdul Munim Khan, Advocate Supreme Court (in both cases).

P L D 2024 Supreme Court 795

Present: Munib Akhtar, Ayesha A. Malik and Shahid Waheed, JJ

Raja TANVEER SAFDAR---Petitioner

Versus

Mrs. TEHMINA YASMEEN and others---Respondents

Civil Petition No.3644 of 2020, decided on 24th April, 2024.

(Against order dated 27.10.2020 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No.3764 of 2019).

(a) Constitution of Pakistan---

----Art. 13(a)---Protection against double punishment---Double jeopardy---Scope---Protection given under Article 13(a) of the Constitution is against prosecution and punishment, which means the trial and its proceedings followed by a conviction---If the first prosecution results in an acquittal, so far as Article 13(a) of the Constitution is concerned, the second prosecution is not prohibited---Concept of double jeopardy essentially means that a person cannot be tried multiple times for the same offence on which there is a conviction based on the same set of facts as they should not be put in peril twice---It is based on the rule of conclusiveness and finality which requires that once a court has taken cognizance of an offence, tried a person and convicted them, then for the same offence that person cannot be tried again---So, the basic question is that in the case of double jeopardy, the second trial should be on the same set of facts of the first trial which resulted in a conviction for the same offence, which would require the same evidence before the court---Basically, this means that the case has to be the same as the one that has already resulted in a conviction but if the proceedings are different in substance and law then it will not be a case of double jeopardy.

Muhammad Ashraf v. The State 1995 SCMR 626; Sohail Ahmad v. Government of Pakistan 2022 SCMR 1387; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316 and Lord Hailsham, 9 Halsbury's Laws of England (2nd ed. 1931), 152-153, Para [212] ref.

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

----S.8---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S. 4---Defamation Ordinance (LVI of 2002), S. 9---Constitution of Pakistan, Art. 13(a)---Protection against double punishment---Double jeopardy---Non-applicability of---Petitioner wrote a letter addressed to the concerned authorities wherein he made certain allegations against the respondent (lady)----On the basis of the said Letter, an inquiry was initiated against the respondent, who was exonerated from the complaint---In the meantime, respondent filed a suit for recovery of damages against the petitioner under the Defamation Ordinance, 2002 (2002 Ordinance) on the grounds that the petitioner defamed and damaged her reputation on the basis of the letter---Said suit was decreed in favour of respondent---Meanwhile, respondent also filed a complaint against the petitioner under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA), which was inquired into and the petitioner was found guilty of misconduct as he had levelled false and fabricated allegations against respondent in the letter, and, major penalty of forfeiture of past service for a period of two years was imposed upon him---During this time, respondent also filed a complaint against the petitioner under the Protection against Harassment of Women at the Workplace Act, 2010 ("2010 Act") on the grounds of sexual harassment before the Ombudsperson alleging therein that the petitioner came to her office unnecessarily on one pretext or the other---Petitioner was found guilty of harassment and major penalty of compulsory retirement from service was imposed upon him---Contention of the petitioner was that the orders under PEEDA, the 2010 Act and the 2002 Ordinance were hit by the principle of double jeopardy---Validity---There were three different decisions under three separate laws against the petitioner---Each of these laws are special laws which operate within their given jurisdiction and can result in penal consequences if the requirements of the law are fulfilled---Hence, a conviction under any of these laws will not prevent or bar a conviction under the other two laws which operate within their own domain for a specific purpose---Respondent initiated a claim of sexual harassment at the workplace against the petitioner based on instances and evidence of harassment, which was considered by the Ombudsperson, who concluded that he caused harassment to respondent---In the suit for defamation, the court determined that the contents of the petitioner's letter fell within the definition of defamation---So the court awarded her damages---Finally, so far as action under PEEDA was concerned, the inquiry was conducted against the petitioner on the basis of the letter, which he had specifically written in his official capacity and the said inquiry discovered that the same was false and incorrect, hence, punishment for his misconduct was awarded in the form of forfeiture of past service for a period of two years---Even though the parties were the same, the cause of action was separate in each case before different forums with distinct penal consequences emanating out of its respective statutory laws---Argument of double jeopardy was misplaced and without any basis---Petition was dismissed and leave was refused.

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

----S. 2(h)---Harassment---Scope and meaning---Harassment means gender-based harassment and discrimination, which can be sexual in nature---Any action that causes interference with work performance or creates an intimidating, hostile or offensive work environment falls within the definition of harassment under Section 2(h) of the Protection against Harassment of Women at the Workplace Act, 2010.

Nadia Naz v. The President of Islamic Republic of Pakistan PLD 2023 SC 588 ref.

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

----Ss. 2(h) & 8---Constitution of Pakistan, Art. 14---Right to work with respect and dignity---Scope---Protection against Harassment of Women at the Workplace Act, 2010 ("2010 Act"), objective of---Harassment under the 2010 Act goes to the basic and most fundamental of rights, that being the right to dignity, where a citizen must be able to live and work with respect and value---Dignity is an inherent right well-accepted in the international legal order, which ensures that everyone who works has the right to just and favourable remuneration ensuring an existence worthy of human dignity, which is supplemented by social protection---Respectability, acceptability, inclusivity, safety and equitability are the prerequisites for a safe and dignified workspace---This is a crucial objective of the 2010 Act being to uphold and protect the right of dignity of employees at the workplace by ensuring fair treatment, non-discrimination, mutuality of respect, and socio-economic justice.

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

----Ss. 8 & 9---Constitution of Pakistan, Art. 199---Ombudsperson and Governor---Final forums on factual side---Interference in orders of Ombudsperson or Governor by the High Court in its constitutional jurisdiction---Scope---Ombudsperson and the Governor both are forums of fact where parties can lead their evidence for a factual determination---Therefore, the Order of the Governor will be the final order on the factual side, which cannot be then challenged before the High Court in constitutional jurisdiction in the form and substance of a second appeal on the facts of the case---High Court cannot interfere in its constitutional jurisdiction on findings of fact recorded by the competent court, tribunal or authority unless the findings of fact are so perverse and not based on the evidence which would result in an error of law and thus, justified interference---Therefore, for all intents and purposes, the factual controversy comes to an end after the Order of the Governor, and if, there is any jurisdictional defect or error and procedural improprieties of the fact-finding forum only then the High Court can interfere.

Uzma Naveed Chaudhary v. Federation of Pakistan PLD 2022 SC 783; Fida Hussain Javed v. Director Food, Punjab 2004 SCMR 62; M. Hammad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434; Qurat-ul-Ain v. Station House Officer 2024 SCMR 486; Commissioner of Inland Revenue v. Sargodha Spinning Mills (Pvt.) Ltd. 2022 SCMR 1082 and Assistant Collector, Central Excise and Sales

Tax Division, Mardan v. Al-Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 ref.

Agha Muhammad Ali, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Respondent No.1: (In person).

Sanaullah Zahid, Additional Advocate General Punjab with Muhammad Shahid Rana, Director (S.W.) Rawalpindi for Respondents Nos. 2-4.

P L D 2024 Supreme Court 805

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and

Naeem Akhtar Afghan, JJ

NOMAN MANSOOR alias NOMI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Petition No.894 of 2021, Criminal Appeals Nos.207 and 215 of 2021, decided on 22nd May, 2024.

(On appeal against the judgment dated 29.05.2021 passed by the Islamabad High Court, Islamabad, in Crl. Appeals Nos.81 and 82 of 2012).

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

----Ss. 417(2A) & 439---Appeal against acquittal filed before the High Court---Power of the High Court to convert such an appeal into a criminal revision---Scope---Under section 439, Cr.P.C., the High Court may in its discretion, exercise any of the powers conferred on a court of appeal, whenever, facts calling its exercise either brought to its notice or otherwise comes to its knowledge---In the present case since the complainant/respondent filed an appeal against acquittal of the petitioner, raising some substantial question of law, therefore, the High Court can consider it as a Criminal Revision Petition and convert it accordingly, for the purpose of satisfying itself to the correctness, legality or proprietary of any findings, sentence or orders---There is no impediment in doing so, therefore, the order of the conversion of the Criminal Appeal against Acquittal into a Criminal Revision suffers from no illegality or irregularity---Petition was converted into an appeal and partly allowed.

Mian Asghar Ali's case 2017 SCMR 118 ref.

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

----Ss. 417(2A) & 439(2)---Constitution of Pakistan, Arts. 10 & 10A---Appeal against acquittal filed before the High Court---High Court converting such an appeal into a criminal revision---Notice to the convict, issuance of---Mandatory requirement---Upon filing of a direct Criminal Revision or after conversion of a Criminal Appeal into a Criminal Revision, a notice as provided by subsection (2) of section 439, Cr.P.C. has to be issued to the other side---In the present case a Criminal Appeal against Acquittal was filed through which the High Court considered it appropriate to reappraise the order impugned in light of the material available on the record and while exercising its inherent power, converted the Criminal Appeal into a Criminal Revision Petition, at the time of delivering the judgment---It is apparent, rather admitted fact that no notice of the proceedings upon the Criminal Revision was issued to the petitioner/convict---In its revisional jurisdiction, the High Court can enhance the sentence passed by fora below, but before it does so, it must comply with the provisions of subsection (2) of section 439, Cr.P.C., which make it mandatory that no Order under this section shall be made to the prejudice of the accused, unless he has had an opportunity of being heard either personally or through a legal practitioner of his choice, so as to defend himself---Purpose of issuing notice is to give an opportunity to the accused/convict either to pursue his matter personally or through a legal practitioner of his own choice so as to defend himself---Without issuing the mandatory notice the impugned judgment in the present case was contrary to the provisions of section 439(2), Cr.P.C.---This had deprived the petitioner from his legal as well as constitutional right of consulting a legal practitioner of his own choice and fair trial as provided by Articles 10 and 10-A of the Constitution, respectively---Contention of the counsel for the complainant that the convict was already before the Court in his own appeal and both the matters were heard together, therefore, he was deemed to be served and no fresh notice was required, was a contention that could not be agreed with for the reason that the appeal filed by the convict and the revision filed by the complainant were altogether different in their nature and outcome---Once the law prescribes a thing to be done in a particular manner, it must be done as such, therefore, a separate notice as required by subsection (2) of section 439, Cr.P.C. was mandatory, without which no order should have been passed, hence, the impugned judgment was not sustainable---Petition was converted into an appeal and partly allowed; impugned judgment was set aside with the directions that appeal filed by the petitioner against his conviction and the acquittal appeal which was converted by the High Court into a Criminal Revision Petition shall be deemed to be pending before the High Court; that the High Court shall issue notice to the convict as required under section 439(2), Cr.P.C., to be served upon him personally; that after service of notice, the High Court should provide opportunity of hearing to all concerned and decide the Appeal and the Criminal Revision afresh, in accordance with law, on its own merits and on the basis of the material available on the record.

Farhad Ali v. Mutalib Khan and another 2012 SCMR 1072 and Hassan-ur-Rehman v. Haleem Shah and another 1998 SCMR 589 ref.

Khalid Masood Sandhu, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant (in Crl.P. No. 894 and Crl.A. No. 207 of 2021).

Raja Muhammad Shafat Khan, Advocate Supreme Court for Appellant (in Crl.A. No. 215 of 2021 and also for the Complainant).

Fauzi Zafar, Advocate Supreme Court for the State (as State counsel).

P L D 2024 Supreme Court 810

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

The STATE through A.N.F., Rawalpindi---Appellant

Versus

OBAID KHAN (deceased) through L.Rs. and others---Respondents

Civil Appeal No.277 of 2014, decided on 23rd November, 2023.

(On appeal against the judgment dated 30.05.2012 passed by the Peshawar High Court, Peshawar in W.P. No. 1770 of 2005).

(a) Appeal---

----Right of appeal is a creation of a statute, and no such right can be implied.

Benson v. Northern Ireland Road Transport Board (1942) All E.R 465 ref.

(b) Prevention of Smuggling Act (XII of 1977)---

----S. 43---Filing of appeal before the Special Appellate Court---"Person aggrieved"---Scope---Whether the complainant, particularly the Anti-Narcotic Force, can be considered a "person aggrieved" to prefer an appeal under section 43 of the Prevention of Smuggling Act, 1977 ('the Act') before the Special Appellate Court---Held, that in the present case the informer was the Anti-Narcotic Force---After the information was conveyed to the Special Judge, the informer had no further role, as there was no statutory duty for the informer to appear before the Special Judge nor to produce evidence supporting the information---Informer was also not required to file a written statement in response to the accused's position, and the Special Judge was not required to adjudicate between the accused and the informer---Quite the contrary, after receiving the information, the matter entirely had become one between the Special Judge and the accused---This was so because, under Section 33 of the Act, the accused bears the burden of proving that any property specified in a notice under Section 31 is not acquired through smuggling---It appeared that it was for this reason the Anti-Narcotic Force, apart from the information presented to the Special Judge, did not adduce any oral or documentary evidence---At that, none of its legal right was infringed, and it had suffered no legal wrong or injury---In the circumstances, the Anti-Narcotic Force, which could not succeed in getting a forfeiture order against all the properties of the accused, could be said, to be annoyed by the findings of the Special Judge---It could also feel that what was considered a breach of law was wrongly held to be not a breach of law by the Special Judge---Despite all this, the Anti Narcotic Force could not be described as a person aggrieved rather as a person annoyed at best, and so, was not entitled to prefer an appeal against the Special Judge's order under section 43 of the Act---As a result, appeal filed by the Anti-Narcotics Force was rightly held to be not maintainable---Supreme Court observed that the Act does not provide any room for rectification of an incorrect order, as it is only a "person aggrieved" who may appeal against an order of the Special Judge under section 43, which, in essence, renders the order in favour of the accused final----Supreme Court referred the matter to Parliament to consider providing the State or Government the right of appeal under section 43 by amending the Act, in order to achieve its true objective and intended purpose---Appeal was dismissed.

Anti Narcotics Force v. Haji Iqbal Shah 1999 PCr.LJ 1125 and Federal Government v. Obaid Khan 2012 PCr.LJ 1765 ref.

Inaam Amin Minhas, Special Prosecutor General, ANF, Ch. Ehtisham ul Haq, Special Prosecutor NAB and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Saleem Shah Hoti, Advocate Supreme Court for Respondents.

P L D 2024 Supreme Court 815

Present: Syed Hasan Azhar Rizvi, Musarrat Hilali and Naeem Akhtar Afghan, JJ

ABRAR AHMAD FAROOQ and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 443, 444 and 445 of 2019, decided on 18th April, 2024.

(On appeal against the judgment dated 03.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. Appeals Nos.104-T and 27-J of 2011 and Capital Sentence References Nos.04-T and 6-T of 2011).

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

----Ss. 302(b) & 34---Murderous assault in court premises---Re-appraisal of evidence---All the eye witnesses of the occurrence, whose presence at the place of occurrence had not been disputed/denied by the defence, had fully implicated the accused in the occurrence with the role of firing upon both the deceased with the co-accused---Both the accused and co-accused were overpowered/arrested on the spot by the police with crime weapons---Evidence on record proved that both the accused and co-accused committed murder of deceased by firing in furtherance of common intention---In the instant case record did not reveal of any animosity or ill-will on the part of the police officials to falsely implicate the accused and co-accused---All the police officials who had appeared at the trial as eye-witnesses of the occurrence had fully incriminated both the accused and co-accused with role of firing upon both the deceased in the verandah of the court premises when they, being hand-cuffed, were on their way to the court room in police custody to attend the trial proceedings---Confidence inspiring testimony of all the eye-witnesses of the occurrence was duly corroborated by the medico legal evidence, crime empties recovered from the place of occurrence, blood stains collected from the place of occurrence, crime weapons recovered from both the accused and co-accused when they were overpowered by the police soon after the occurrence and positive report of the firearm expert to the extent of firearm recovered from the co-accused---Convictions of accused and co-accused under sections 302(b) and 34, P.P.C, were maintained---Appeals were dismissed.

(b) Criminal trial---

----Police witnesses, evidence of---Reliance---Police officials are as good witnesses as any other private witness---In absence of any animus, their testimony can be relied upon if it remains un-shattered during cross-examination.

Salah-ud-Din v. The State 2010 SCMR 1962; Qari Muhammad Ishaq Ghazi v. The State 2019 SCMR 1646; Zulfiqar alias Zulfa v. The State 2021 SCMR 531; Liaquat Ali v. The State 2022 SCMR 1097; Ali Taj v. The State 2023 SCMR 900 and Nazeer Ahmed v. The State 2023 SCMR 1299 ref.

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

----S. 7(a) & Third Sched. Entry No. 4(iii)---Murderous assault in court premises---Reappraisal of evidence---Murder committed due to personal vendetta/previous enmity---Not a case of terrorism---In the present case the motive of the occurrence for the appellants (accused and co-accused) was to avenge the murder of their father and the appellants had no motive or design to create fear or terror or insecurity in the Court premises, therefore, the conviction and sentence awarded to the appellants under section 7(a) of Anti-Terrorism Act, 1997 ('ATA') could not be sustained---Convictions and sentences of the appellants under section 7(a) of ATA were set aside---Appeals were dismissed.

(d) Criminal trial---

----Sentence, quantum of---Mitigating circumstances---Single mitigating circumstance, available in a particular case, would be sufficient to put a Judge on guard for not awarding the penalty of death but imprisonment for life.

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

----Ss. 302(b) & 34 ---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Murderous assault in court premises---Reappraisal of evidence---Sentence, quantum of---Mitigating circumstances---In the instant case the motive of the occurrence for the appellants (accused and co-accused) was to avenge the murder of their father---In number of cases, such motive has been considered as a mitigating circumstance to reduce death penalty to imprisonment for life---Conviction recorded against accused under sections 302(b) and 34, P.P.C. was maintained, and his sentence which was altered to imprisonment for life by the High Court, was upheld---Whereas in the case of co-accused, while maintaining his conviction under sections 302(b) and 34, P.P.C., his sentence of death on two counts was reduced/converted to imprisonment for life---Appeals were dismissed with such modification in sentence.

Ajun Shah v. The State PLD 1967 SC 185 ref.

Muhammad Shabbir v. The State 2020 SCMR 1206 rel.

Basharat Ullah Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in Crl.As. Nos. 443 and 444 of 2019).

Agha Muhammad Ali, Advocate Supreme Court for the Complainant (in Crl.As. Nos. 443 and 444 of 2019 also Appellant in Crl.A. No. 445 of 2019).

Irfan Zia, Addl. PG. Pb. for the State.

P L D 2024 Supreme Court 830

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Athar Minallah, JJ

Messrs TANVEER COTTON MILLS (PVT.) LTD. and another---Petitioners

Versus

SUMMIT BANK LIMITED and others---Respondents

C.Ps.L.As. Nos. 1422-L and 1423-L of 2021 and C.M.As Nos. 1636-L, 1758-L and 1759-L of 2021 and C.M.As Nos.2160, 2161, 2216 and 2217 of 2024, decided on 28th June, 2024.

(Against the consolidated judgment of the Lahore High

Court, Lahore, dated 17.06.2021, passed in C.O. Nos. 28 and 29 of 2013).

(a) Companies Act (XIX of 2017)---

----Ss. 6(1) & 387, proviso---Constitution of Pakistan, Art. 10A---Company ordered to be wound up by the Court---Appointment of liquidator to manage the affairs of the company---Winding-up order challenge to---Maintainability---Directors, powers of---Company that has been ordered to be wound up can challenge the winding-up order in its name, provided the institution of appeal and the person acting on behalf of the company are authorized by a resolution of its board of directors---Section 6(1) of the Companies Act, 2017 provides that "[a]ny person aggrieved by any judgment or final order of the Court passed in its original jurisdiction under this Act may, within sixty days, file a petition for leave to appeal in the Supreme Court of Pakistan."---It uses the general expression "any person aggrieved" and does not mention the specific persons competent to file a petition for leave to appeal---Company against which a winding-up order has been passed falls within the scope of the expression "any person aggrieved" and thus can file a petition for leave to appeal in the Supreme Court under Section 6(1) of the 2017 Act---Company can exercise such right of appeal through its directors---Upon the commencement of the winding-up proceedings, despite the appointment of the liquidator, certain powers still remain with the directors of the company who, before the winding-up order, had the ultimate responsibility for managing the company and acting in its best interests in their fiduciary capacity---Such powers are usually referred to as 'residuary powers', and are not affected by the provisions of company law like the proviso to Section 387 of the Companies Act, 2017---Therefore, a company against which the winding up order has been passed is to exercise its right of appeal through the board of directors---Board of directors can, by its resolution, authorise any person, including the former chief executive of the company, to act on behalf of the company in filing an appeal or a petition for leave to appeal against the winding-up order---When the directors can defend the original winding-up proceeding, they surely can also file and pursue an appeal arising from that original proceeding, as it is an integral part of defending the company from being wound up until it stands wound up or dissolved---This continuity ensures that the company retains its right of defense throughout the legal process---It is a necessary corollary of the company's right to appeal that its directors control the conduct of the appeal, just as they had control over the defence to the winding-up petition in the first instance---Denying the directors the capacity to exercise the company's right to appeal would effectively deprive the company of its locus standi to challenge the winding-up order, which would be contrary to the fundamental right of every person, including a juristic person like a company, to a fair trial and due process in the determination of civil rights and obligations, guaranteed by Article 10A of the Constitution---Regarding the expenses/costs for filing the appeal or petition for leave to appeal, the liquidator upon his appointment takes over the charge of all the assets and funds of the company, and the directors no longer have any control or authority to make or authorize any expenditure therefrom---Given this position, the directors inevitably have to arrange the funds for payment of fees to the counsel, etc., from their personal sources other than the funds and assets of the company and also bear the costs of appeal or petition for leave to appeal, if any, in case of dismissal---However, if the company's appeal succeeds and the winding-up order is set aside, they may get reimbursement of those expenses from the company's funds under a resolution of the board of directors made after the success of the appeal.

Re Diamond Fuel Company (1879) 13 Ch. D. 400; Ripon Press and Sugar Mill Company v. Gopal Chetti (1931) 58 Ind App 416; U.K. Jurisdiction: Re Union Accident Insurance Co. Ltd. (1972) 1 All ER 1105; Closegate Hotel Development (Durham) Ltd. v. McLean (2013) EWHC 3237 (Ch). Indian Jurisdiction; Anil Kumar Sachdeva v. Four 'A' Asbestos [1980] 50 Comp Cas 122 (Del); Sinha Watches v. Gujarat S.F.C. (1985) 58 Com Cas 489 (Guj); Tata Finance Ltd. v. Chemox Chemical Industries, [2000] 100 Com Cas 338 (Bom); Rishabh Agro Industries v. P.N.B. Capital Services AIR 2000 SC 1583; Modi Rubber Ltd. v. Madura Coats Ltd. MANU/UP/1521/2004=2004 SCC Online All 1400 Australian Jurisdiction: Re Laverton Nickel (1979) 3 ACLR 945; Re Rick Wilson (1982) 7 ACLR 354. South African Jurisdiction: O'Connell Manthe and Partners v. Vryheid Minerale 1979 (1) SA 553 (T); Storti v. Nugent (2001) 3 SA 783 (W); Praetor v. Aqua Earth Consulting CC (162/2016) [2017] ZAWCHC 8 Malaysian Jurisdiction; Sri Hartamas Development v. MBF Finance (1991) LRC (Comm) 595; KTL v. Azrahi Hotels (2003) 3 CLJ 49. Singapore Jurisdiction; Sun Electric Power v. RCMA Asia (2021) 2 SLR 478; Hin Leong Trading v. Rajah and Tann, (2022) SGCA 28; Closegate Hotel Development (Durham) Ltd. v. McLean (2013) EWHC 3237 (Ch) and Re Rick Wilson (1982) 7 ACLR 354 ref.

(b) Appeal---

----Person adversely affected---Appeal, right of---Where a right of appeal is provided from a judgment, decree or order without specifying the persons who can avail it, every person who is adversely affected and thus aggrieved by such judgment, decree or order can avail that right of appeal.

Shahid Ikram Siddiqui, Advocate Supreme Court, Muhammad Imran Malik, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record and Mian Liaqat Ali, Advocate-on-Record for Petitioners.

Salman Aslam Butt, Sr. Advocate Supreme Court, Shehzada Mazhar, Advocate Supreme Court, Muhammad Shoaib Rashid, Advocate Supreme Court, Anis M. Shahzad, Advocate-on-Record and Mobin Ahmad Siddiqui, Advocate-on-Record for Respondents.

Barrister Haris Azmat, Advocate Supreme Court, assisted by Ms. Faiza Asad, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.As. Nos. 2216, 2217 of 2024)

Uzair Karamat Bhandari, Advocate Supreme Court, Khwaja Ahmad Hosain, Advocate Supreme Court and Faisal Siddiqi, Advocate Supreme Court, Amicus Curiae.

Akif Saeed, Chairman, SECP, Muzaffar Ahmed Mirza, CP, SECP, Shamshad A. Rana, SPP, SECP. Barrister Omer Malik, SPP, SECP and Hussain Raza, SPP, SECP for the SECP.

P L D 2024 Supreme Court 838

Present: Munib Akhtar and Athar Minallah, JJ

MUHAMMAD SAFEER and others---Petitioners

Versus

MUHAMMAD AZAM and others---Respondents

Civil Petition No.888 of 2024, decided on 12th June, 2024.

(Against the judgment dated 01.2.2024 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.3692 of 2022).

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Alternate remedy, availability of---Principles---High Court will not ordinarily entertain a petition under Article 199 of the Constitution when an adequate remedy is available and such remedy only regulates the exercise of constitutional jurisdiction and does not affect its existence---When the law provides an adequate remedy, constitutional jurisdiction under Article 199 will ordinarily only be exercised in exceptional circumstances---Exceptional circumstances which may justify exercising jurisdiction when an adequate remedy is available are when the order or action assailed before the High Court is palpably without jurisdiction, manifestly mala fide, void or coram non judice---Tendency to bypass a statutory remedy is ordinarily discouraged so that the legislative intent is not defeated---High Court, while exercising its discretion, must take into consideration the facts and circumstances in each case in order to determine whether the remedy provided under the statute is illusory or not.

Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad and Company (Pvt.) Limited, Islamabad 1999 SCMR 138; Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Income-Tax Officer and another v. Messrs Chappal Builders 1993 SCMR 1108; Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119 and Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others PLD 1958 SC 437 ref.

(b) Punjab Board of Revenue Act (XI of 1957)---

----S. 8---Review of orders by the Board---Scope---Subsection (1) of section 8 of the Punjab Board of Revenue Act, 1957 ("Act of 1957") sets out the scope and the grounds for exercising the power of review---Three grounds expressly stated in section 8(1) of the Act of 1957 are: (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by the person seeking review at the time when the decree was passed or the order was made; (ii) some mistake or error apparent on the face of the record; and (iii) 'for any other sufficient reason'---Review jurisdiction conferred under section 8 of the Act of 1957 is, therefore, confined and limited to the said three grounds---Expression 'for any other sufficient reason' does not extend to every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some mistake or error apparent on the face of the record---Expression, therefore, is to be read ejusdem generis with the preceding expressions or grounds---Any other interpretation would change the nature of the review contrary to the legislative intent, because the legislature had indeed not intended to provide the remedy of an appeal---Scope of the review jurisdiction under section 8 of the Act of 1957 is, therefore, restricted to the grounds expressly prescribed by the legislature.

Muhammad Din and others v. Muhammad Amin and others PLD 1994 SC 288 and Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Alternate remedy---Adequate remedy---Meaning---Expression adequate remedy represents an efficacious, reachable, accessible, advantageous and expeditious remedy.

Syed Asad Hussain and others v. Syed Ghulam Khatib 2023 SCMR 325 ref.

Taimoor Aslam Khan, Advocate Supreme Court for Petitioners.

Ch. Hafeezullah Yaqoob, Advocate Supreme Court assisted by Sarang, Advocate High Court for Respondent No. 1.

P L D 2024 Supreme Court 843

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Athar Minallah, JJ

MEHRAN---Petitioner

Versus

UBAID ULLAH and others---Respondents

Crl.P.L.A. No. 80-P of 2024, decided on 29th May, 2024.

(Against the judgment of the Peshawar High Court, Peshawar, dated 25.03.2024, passed in Cr. M.B.A. No.551-P of 2024).

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

----Preamble---Constitution of Pakistan, Art. 35---United Nations Convention on the Rights of the Child (UNCRC), Art. 3---Juvenile justice system---Child justice---Therapeutic jurisprudence---Purpose and objective of the juvenile justice system explained.

The juvenile justice system specifically addresses the situation of children alleged to have infringed criminal law and operates under the premise that juveniles are different from adults and require special attention and treatment. Since juveniles are more amenable to rehabilitation than adults, the juvenile justice system is designed not just to punish but to rehabilitate, emphasizing correction and guidance to help children develop into responsible adults. A range of factors underscore the need for a special justice system for juveniles. These include juveniles' lack of maturity, propensity to take risks, susceptibility to peer influence, as well as intellectual disabilities, mental illness, and victimization. This system is distinct from the ordinary criminal justice system and is based on a rehabilitative and restorative model rather than a retributive one. It emphasizes reducing crime by rehabilitating and reclaiming juvenile offenders, focusing on treating rather than punishing them. Central to this system is the principle of the 'best interest of the child', which ensures the fulfillment of a juvenile's basic rights, needs, identity, social well-being, and physical, emotional and psychological development. The rationale behind this non-punitive approach is that public safety is best served by emphasizing rehabilitation rather than the incapacitation and punishment of juveniles.

Kathleen Daly, 'Restorative v. Retributive Justice' (2002) 4(1) Punishment and Society Sage Publications 55; Anees Jillani, Cries Unheard: Juvenile Justice in Pakistan, Society for the Protection of the Rights of the Child (1999) and Cox, S.M., Conrad, J. J., and Allen, J. M., Juvenile Justice: A guide to theory and practice, McGraw-Hill Humanities, Social Sciences and World Languages (2003) ref.

The main objective of the Juvenile Justice System Act, 2018 ('the 2018 Act') is to modify and amend the law relating to the criminal justice system for juveniles, with a special focus on disposing of their cases through diversion and socially reintegrating with the 'best interest of the child' principle as a primary consideration. This approach, rooted in therapeutic jurisprudence, forms the foundation of the juvenile justice system. Therapeutic jurisprudence involves the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical well-being of the people it affects. It offers an interdisciplinary perspective with a problem-solving approach that views the law itself as a potential therapeutic agent. Therapeutic jurisprudence forms the bedrock of the juvenile justice system, integrating the societal responsibilities of sanction and rehabilitation in line with the principles of rehabilitative and restorative justice. This holistic framework ensures that the juvenile justice system not only addresses legal accountability but also prioritizes the well-being and developmental needs of juvenile offenders. Juvenile justice also falls under the rubric of child justice. While juvenile justice is more narrowly focused on dealing with crimes, including aspects of both punishment and rehabilitation, child justice is more encompassing, aiming to protect and uphold the rights and best interests of all children involved in the legal system. Child justice is also centered around the idea that children, due to their age and maturity, should not be dealt with in the same manner as adults within the legal system. It emphasizes rehabilitation and education, rather than punishment, recognizing the potential for growth and change in young individuals. Both child and juvenile justice systems are shaped by international conventions like the United Nations Convention on the Rights of the Child (UNCRC), which provides a broad framework and standards for the treatment of children within judicial systems worldwide.

David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1(1) Psychology, Public Policy, and Law, 220-236 and Patrick H. Tolan and Jennifer A. Titus, 'Therapeutic jurisprudence in juvenile justice' in G.S. Goodman, Children as victims, witnesses, and offenders: Psychological science and the law, New York: Guilford Press, p. 313-333 ref.

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

----Ss. 2(g), 2(m), 2(o), 6(4) & 6(5)---Juvenile accused---Heinous offence---Bail---Statutory delay in conclusion of trial---Principles---Since both 'minor offence' and 'major offence' are treated as bailable under Section 6(3) of the Juvenile Justice System Act, 2018 ('the 2018 Act'), the ground of delay in the conclusion of the trial provided by Section 6(5) for grant of bail applies solely to juveniles detained for a 'heinous offence'---Therefore, post-arrest bail is to be granted as a matter of right to a juvenile detained for a heinous offence, regardless ofhis age, whether above or below sixteen years, provided the prerequisites of Section 6(5) are fulfilled---Nature of the offence is not a valid ground to withhold bail under Section 6(5) of the 2018 Act.

Khawar Kayani v. State PLD 2022 SC 551 ref.

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

----S. 497---Juvenile Justice System Act (XXII of 2018), Ss. 6(5) & 8---Penal Code (XLV of 1860),Ss. 302, 324, 392, 427, 201 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd committed during robbery---Bail, grant of---Juvenile accused---Statutory delay in conclusion of trial---Main reasons given by the High Court for the denial of bail to the petitioner (juvenile accused) on the statutory ground of delay in the conclusion of the trial were (i) that the petitioner committed a 'heinous offence'; (ii) that the delay in the conclusion of the trial was attributable to the petitioner, as he had moved an application for the determination of his age under Section 8 of the Juvenile Justice System Act, 2018 ("2018 Act"), which took time; and (iii) the frequent absence of the co-accused during the trial also contributed to the delay---Validity---High Court erred in law by attributing the delay in concluding the trial to the petitioner, who had filed an application for determination of his age under Section 8 of the 2018 Act, which took time---Initial duty to determine the age of an accused who appeared or claimed to be a juvenile laid with the police---When the police fails in this duty, it passes on to the court---Therefore, the time spent by the court in making this determination constitutes an act of the court, which cannot be construed as delay caused by the petitioner in the trial, thereby depriving him of his right to bail on the statutory ground of delay---So far as the delay caused by the frequent absence of the co-accused during trial was concerned, the same could not be attributed to the petitioner as one was responsible for his own acts or omissions, not of others---Petitioner was arrested in the present case on 23 February 2023 and had been detained continuously for more than six months since then, with his trial not yet concluded---There was no evidence on record indicating that the delay in concluding the trial was caused by any act or omission of the petitioner---Therefore, the prerequisites of Section 6(5) of the 2018 Act were fulfilled, which entitled the petitioner to the grant of post-arrest bail as a matter of right on the statutory ground of delay in the conclusion of the trial---Petition was converted into an appeal and the same was allowed, the impugned judgment was set aside, and the petitioner was admitted to bail.

Saleem Khan v. State PLD 2020 SC 356; Himesh Khan v. NAB 2015 SCMR 1092 and Khursheed Shah v. State PLD 2022 SC 261 ref.

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

----S. 497---Juvenile Justice System Act (XXII of 2018), S. 6(5)---Constitution of Pakistan, Art. 185(3)---Bail---Juvenile accused---Statutory delay in conclusion of trial---Period of delay in concluding the trial is calculated from the date of the arrest of the accused.

Saleem Khan v. State PLD 2020 SC 356 ref.

Shabbir Hussain Gigyani, Advocate Supreme Court (Through V.L. Peshawar Registry) for Petitioner.

Noroz Khan, Addl. A.G. KPK along with Complainant in person, Fazal Akbar, DSP and Safdar Iqbal, S.I./I.O for Respondents.

Assisted by: Umer A. Ranjha, Judicial Law Clerk.

P L D 2024 Supreme Court 852

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Aqeel Ahmed Abbasi, JJ

In re: Contempt proceedings against Senator Fesal Vawda on account of his press conference in the National Press Club, Islamabad on 15.05.2024

Criminal Original Petition No. 06 of 2024, decided on 28th June, 2024.

(a) Constitution of Pakistan---

----Art. 2A & Preamble---Features of the Constitution---Constitution negates autocracy, superiority and exceptionalism while affirming accountability.

(b) Constitution of Pakistan---

---Art. 14 & 19---Freedom of speech---Freedom of press---Right to freedom of speech and expression and the freedom of the press in Article 19 of the Constitution does not take precedence over the inviolability of the dignity of persons and of the privacy of the home in Article 14, which incidentally is numerically a prior fundamental right.

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

----S. 3---Constitution of Pakistan, Arts. 19, 19A & 204---Contempt of Court---Press conferences by a Senator and a Member of the National Assembly ("MNA")---Malicious allegations against the Judiciary---Comments on the Judges of the superior courts---Speaking about sub judice cases---Contempt proceedings against the Senator and MNA---Issuance of show cause notices---Unconditional apology tendered by the contemnors---Effect---Withdrawal of show cause notices---Exhilarating elixir of free speech and media freedom does not permit slandering anyone, including judges and courts---Both the contemnors before the Court realized their mistake and had in humility sought forgiveness and pardon---Both of them tendered unconditional apologies to the Supreme Court in writing---They had also verbally expressed remorse and reiterated their apologies in Court---There was no reason to doubt their sincere retraction and unconditional apologies---Therefore, the show cause notices issued to them were withdrawn by the Supreme Court with the observation that if there was any subsequent transgression by them it may be visited upon with consequences.

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

----S. 3---Constitution of Pakistan, Arts. 19, 19A & 204---Contempt of Court---Contemptuous press conferences against the judiciary aired/broadcasted by television channels---Contempt of court notices issued to television channels---Counsel representing the channels justified the broadcast of the contemptuous press conferences on the basis that (i) television channels were not responsible for the content when they broadcast what was said by another; (ii) to constitute contempt there must be mal-intent; and (iii) it was the right and duty of television channels to live broadcast all press conferences---Validity---Such explanation prima facie was not justified, and all the more so, when the two contemnors who had held the press conferences acknowledged that the same constituted contempt of court---Those operating the television channels in question had elected not to avail the opportunity provided to them to reflect, relent and, if they so considered, to apologize---During the hearing of present case it also transpired that even after the making of the contemptuous comments the television channels continued broadcasting and (later) re-broadcasting the press conference(s) and/or extracts therefrom---There was neither any retraction nor any apology was broadcast by any of the channels---Supreme Court issued show cause notices to all the 34 television channels to show cause as to why they should not be proceeded against for committing contempt of court---Supreme Court directed that the replies to the show cause notices should state (i) whether the press conferences were preceded with advertisements; (ii) whether there were any advertisements during the press conferences; (iii) whether upon the conclusion of the press conferences there were advertisements; (iv) whether they were re-broadcast; (v) whether extracts therefrom were broadcast; and (vi) the amounts received in payment for such advertisements---Supreme Court further directed that the replies to the show cause notices were to be signed by the owner (if there was one) or the largest share/interest holder (by whatever name called) and by the operational head of the television channel.

In attendance:

On Court's Notice:

Mansoor Usman Awan, Attorney-General for Pakistan and Malik Javed Iqbal, Additional Attorney-General for Pakistan.

For Court's Assistance:

Hafiz Arfat Ahmed, Advocate Supreme Court.

For Contemnors:

Fesal Vawda, in-person along with Saleem-ul-Haq, Advocate.

Dr. Farogh Naseem, Advocate Supreme Court along with Mustafa Kamal.

On behalf of

26 News Channels:

Faisal Siddiqui, Advocate Supreme Court, along with Rana Jawad, Director, Geo News, Javed Soomro, Bureau Chief, Hum News, Faisal Hakeem, Bureau Chief, Such News, Khalid Azeem, Bureau Chief, Samaa News, Abdul Jabbar, Bureau Chief, AAJ News, Nisar Abid, Bureau Chief, Capital T.V., Naeem Mehboob, Bureau Chief, Abb Takk News, Malik Manzoor, Bureau Chief, Channel 5, M. Bakhsh Soomro, Bureau Chief, Time News, Kashif Rafique, Bureau Chief, News One, Abdullah Qamar, Director, T.V. Today, Shahid Mehmood, GNN News, Jehanzaib Abbasi, Express News, Ghulam Murtaz, News One, Javed Baloch, Neo T.V., Qurban Baloch, AWAZ T.V., Qarar Hussain, Roz News and Azhar Farooq, ARY News.

For Other Channels:

Amir Sohail, 7 News T.V., Adeel Waraich, Bureau Chief, Dunia News, Asif Jaffery, Bureau Chief, 24 News, Faisal Sahi, Bureau Chief, Public News, Kamran Ilyas, Bureau Chief, 92 News, Rana Qaiser, Director Suno News and Ms. Asia Kosar, Deputy Bureau Chief, Talon News.

For PEMRA:

Nemo.

P L D 2024 Supreme Court 862

Present: Syed Mansoor Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

The CHIEF ENGINEER (ADMINISTRATION), WAPDA and others---Respondents

Civil Review Petition No. 1077 of 2023, decided on 31st May, 2024.

(Against the order dated 08.011.2023 passed in C.M. Appeal No. 157 of 2022).

(a) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R. 1---Review jurisdiction of the Supreme Court---Scope---Registrar's original order returning a petition (for leave to appeal) and the Judge-in-Chambers's appellate order maintaining it are both administrative in nature---Review petition against these orders is not entertainable, as Article 188 of the Constitution and Order XXVI of the Supreme Court Rules, 1980 pertain to the review of judicial orders, not administrative orders.

Fazal Muhammad v. State PLD 1987 SC 273; Qausain Faisal v. Federation of Pakistan PLD 2022 SC 675 and Ahsan Abid v. Khusru Bakhtiar PLD 2022 SC 712 ref.

(b) Supreme Court Rules, 1980---

----O.XVII, R. 5---Petition filed before the Supreme Court---Frivolous petition---Registrar, duty of---Scope---Petition that does not fall within the scope of any provision of the Constitution, the law or the Supreme Court Rules, 1980 ('the Rules') is "frivolous" and should not be received/entertained by the Registrar, as per Rule 5 of Order XVII of the Rules---Office must be vigilant about this legal position and perform its administrative duty in this regard with due diligence.

Fazal Muhammad v. State PLD 1987 SC 273 and Ahsan Abid v. Khusru Bakhtiar PLD 2022 SC 712 ref.

Petitioner in person.

Nemo for Respondents.

P L D 2024 Supreme Court 864

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

MUHAMMAD YOUSUF BHINDI and others---Petitioners

Versus

Messrs A.G.E. & SONS (PVT.) LTD. and others---Respondents

Civil Petitions Nos. 1032-K to 1053-K and 1062-K of 2023, decided on 8th April, 2024.

(Against the judgment dated 23.05.2023 passed by High

Court of Sindh, Karachi in R.As. Nos. 95 to 100, 102 to 105, 108 to 110, 112, 115, 116, 118 to 119, 101, 111, 113,114 and 109 of 2021).

(a) Administration of justice---

----Party mentioning incorrect provision of law on an application---Approach of Court---Court has to see the pith and substance rather than the nomenclature, and if the court perceives any such irregularity, it may in the interest of justice, call upon the applicant to correct and rectify such error of nomenclature, which may be a typing error or may have been caused due to some misunderstanding---On the notion or mention of a wrong section, an adverse order cannot be passed without adverting to the substance of such application.

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

----O.IX, R. 7---Limitation Act (IX of 1908), First Sched., Art. 181---Application for setting aside an ex-parte order under Order IX, Rule 7, C.P.C.---Limitation---There is no specific limitation provided in the Limitation Act, 1908 meant for making any application for setting aside an ex-parte order under Order IX, Rule 7, C.P.C., therefore, for all intents and purposes, Article 181 of the Limitation Act, 1908 would apply wherein to meet such eventualities, three years' limitation period is provided when the right to apply accrues.

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

----O.IX, Rr. 6, 7 & 13---Ex-parte proceedings, setting aside of---Principles---Even if the proceedings are ordered ex-parte the defendant may join proceedings at any subsequent stage and file an appropriate application for setting aside ex-parte order with good cause---Person nevertheless declared ex-parte, continues as party to the proceedings and even can cross-examine the witnesses---If good cause is shown to the satisfaction of the Court to justify his previous absenteeism, the ex-parte proceedings may be set aside by the Court and the defendant may then be restored to the position he held on the date when he was proceeded against ex-parte---This rule invests the court with wide-ranging potential discretion to allow the application if the defendant who was declared ex-parte assigns good cause for previous absence.

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

----S. 115---Revisional jurisdiction---Scope---Under Section 115, C.P.C, the revisional court has to ruminate the jurisdictional error of the Court below; if it acted in exercise of its jurisdiction illegally or with material irregularity or committed some error of procedure which affected the ultimate decision---In fact, this jurisdiction is corrective and supervisory in nature to ensure safe administration of justice and in a fit case, the Court in the same provision can exercise suo motu jurisdiction to advance the cause of justice to satisfy and reassure that the order is within its jurisdiction; the case is not one in which the Court ought to exercise jurisdiction and, in abstaining from exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision.

Muhammad Arif, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners.

Dr. Raana Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1050-K to 1053-K of 2023).

Syed Ahsan Imam, Advocate High Court (with special permission) for Respondents.

P L D 2024 Supreme Court 873

Present: Syed Mansoor Ali Shah, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Athar Minallah, JJ

Mst. SAMRANA NAWAZ and others---Appellants/Petitioners

Versus

MCB BANK LTD. and others---Respondents

C.P. No. 2646-L of 2018, C.A. No. 17-L of 2019 and C.A. No. 364-L of 2020, decided on 10th May, 2024.

(Against (i) judgment dated 20.11.2018 passed in E.F.A. No.620/2011, (ii) judgment dated 20.11.2018 passed in E.F.A. No.17/2012, and (iii) judgment dated 03.02.2020 passed in E.F.A No.231782/2018 respectively by the Lahore High Court, Lahore).

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

----O. XXI, R. 90, second proviso---Execution of decree---Auction sale---Application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Meaning and scope of the second proviso to Rule 90 of Order XXI, C.P.C.---Deposit of the amount, which is required under the second proviso, is not to be made by the applicant along with the application but rather it is to be made on the direction of the court.

Alhamdi Begum v. NBP PLD 1976 Kar. 723; Shafique Shah v. Irshad Begum 1981 CLC 369; Rukhsana v. Muhammad Ilyas 1993 CLC 1949; Ali Match Industries v. IDB 1999 MLD 2127; Niamat Ali v. Muhammad Imran PLD 2003 Lah. 42; Sultan Mahmood v. HBFC 2006 YLR 2776 and Khursheed v. Inam-Ur-Rehman PLD 2009 Lah. 552 approved.

Habib and Company v. MCB PLD 2020 SC 227 overruled.

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

----O.XXI, R. 90, second proviso---Execution of decree---Auction sale---Application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Purpose of the second proviso to Rule 90 of Order XXI, C.P.C.---Evidently, the purpose of the second proviso is to discourage frivolous objections---Condition stipulated in the second proviso for entertaining the application ensures that the rule is not misused to delay the completion of the sale and expeditious conclusion of the execution proceedings, and that the objections are made only by bona fide persons on valid grounds---If upon adjudication the application is found frivolous, the amount deposited or the security furnished, as the case may be, by the applicant is to be appropriated for awarding costs to the person(s) who suffer from the delay in completing the sale due to the filing of the application---Therefore, in determining the amount required to be deposited, the executing court should consider various factors such as the decretal amount, the time elapsed since filing the execution petition, the sale amount and the applicant's previous conduct, etc., and fix an amount reflective of the costs likely to be awarded to the affected party in case of dismissal of the application.

(c) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 19(7)(a) & (b)---Civil Procedure Code (V of 1908), O.XXI, R.90, second proviso---Execution of decree---Auction sale---Application to set aside sale on ground of irregularity or fraud---Deposit of amount or furnishing of security in court---Effect of clauses (a) and (b) of Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("Ordinance") on the provisions of Rule 90 of Order XXI, C.P.C., particularly the second proviso thereof---Clauses (a) and (b) of Section 19(7) of the Ordinance are not comprehensive provisions regarding objections to the sale of property in the execution of a decree; they do not specify who can make objections or the grounds on which objections can be made---Therefore, these clauses cannot function independently of Rule 90 of Order XXI, C.P.C., regarding objections to the sale of property in the execution of a decree---It is worth noting that since Section 141, C.P.C., does not apply to applications under Rule 90 of Order XXI, C.P.C., 11 the procedure for investigating objections made under this rule is also summary, as provided in clause (a) of Section 19(7) of the Ordinance---Latter provision merely further prescribes a period of 30 days to complete the investigation of objections through a summary procedure---Clause (b) of Section 19(7) of the Ordinance provides for imposing a penalty of up to twenty percent of the sale price of the property if objections are found by the Banking Court to be malafide or aimed at delaying the sale of the property---This penalty amount, is to be deposited by the applicant, or its security furnished, as per the second proviso to Rule 90 of Order XXI, C.P.C., before the court entertains the application to set aside the sale---Thus, there is no conflict between the two provisions; clauses (a) and (b) of Section 19(7) of the Ordinance are only complementary to the provisions of Rule 90 of Order XXI, C.P.C., for the execution of decrees under the Ordinance---Banking Court is therefore bound to follow both the provisions in the matter of objections made to the sale of property in the execution of a decree.

Messrs Majid & Sons v. N.B.P 2002 CLD 1742 disapproved

Pakistan Industrial Credit and Investment Corporation v. Government of Pakistan 2002 CLD 1 overruled.

Muhammad Imran Malik, Advocate Supreme Court and Shahid Ikram Siddiqui, Advocate Supreme Court for the Appellants/petitioners (Through video link from Lahore).

Umar Farooq, Advocate Supreme Court, Ashar Elahi, Advocate Supreme Court, Hafeez Saeed Akhtar, Advocate Supreme Court, Muhammad Akram Gondal, Advocate Supreme Court, Muhammad Ilyas Sheikh, Advocate Supreme Court, Mrs. Kausar Iqbal Bhatti, Advocate-on-Record and Muhammad Dawood Khan, OG-II, SME Bank for Respondents (Through video link from Lahore).

P L D 2024 Supreme Court 887

Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ

LUTFULLAH VIRK---Petitioner

Versus

MUHAMMAD ASLAM SHEIKH---Respondent

Civil Petition No. 2849-L of 2015, decided on 3rd July, 2024.

(Against the order dated 07.9.2015 passed by Lahore High Court, Lahore in C.R. No.1434/1 of 2009).

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

----O. XVII, Rr. 2 & 3---Court may proceed notwithstanding either party fails to produce evidence, etc---Defendant failing to appear at the time fixed by Court for cross-examination of plaintiff's witnesses---Effect---Right to cross-examination, closure of---Record showed that on 27.04.2005, an adjournment was sought by both the parties to the suit for recovery of damages, and the matter was adjourned for 31.05.2005---When the case was taken up on 31.05.2005, an adjournment was sought by the counsel of the plaintiff (respondent) citing the reason that the plaintiff was unwell---Thereafter, the Court vide order dated 31.5.2005 in a very judicious and fair manner granted and allowed last and final opportunity to both the parties and in the same order directed that the examination-in-chief of the plaintiff would take place on 14.07.2005 at 09:30 AM---Plaintiff produced three witnesses, on 14.07.2005 at 09:30 AM, who recorded their examination-in-chief, but the defendant's (petitioner's) counsel did not show up at all, despite the fact that the Court waited until 01:00 PM on 14.07.2005---Two adjournments were entertained by the Trial Court, one on 27.04.2005 and one on 31.05.2005---Therefore, the only options available to the Court, vis-a-vis the matter before it, were in Rules 2 and 3 of Order XVII of C.P.C.---Rule 2 states that if a party has failed to appear on a date to which a matter was adjourned, then the Court can either "dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit."---Since, the Court did not dispose of the suit, it could only make such order as it thought fit---This order was to close the present petitioner's (defendant's) right to cross-examine the witnesses of the respondent (plaintiff)---Furthermore, the Court's order of 14.07.2005, which closed the present petitioner's right to cross-examine the witnesses of the respondent, also enjoyed the protection of Rule 3 of Order XVII of C.P.C.---Therefore, since the present petitioner could not be allowed any further adjournments, the only logical conclusion the Court could arrive at was to close the present petitioner's right of cross-examining the witnesses, and it did so, by order dated 14.07.2005---Supreme Court observed that suppose that the present petitioner, who as the record showed marked his presence in the cause-list on 14.07.2005, had appeared before the Court and requested an adjournment and the said adjournment had been denied and the present petitioner had refused to participate in the proceedings of the day, that is the examination-in-chief---This would again lead to the Court having the options available to it under Rules 2 and 3 of Order XVII of C.P.C., as a party is said to have failed to appear even if he is present in the Court and applies for adjournment, but his application is refused and he does not thereafter participate in the proceedings---However, had the present petitioner remained present to merely witness the proceedings, once his request for adjournment had been declined and he had decided not to partake in the examination-in-chief, the petitioner's presence would amount to participation in the proceedings and thus would only leave the Court to exercise the options available to it under Rule 3 of Order XVII of C.P.C.---Trial Court rightly closed the right of petitioner to cross-examine the respondent's witnesses and the High Court also quite rightly upheld the order of the Trial Court---Petition was dismissed and leave to appeal was refused.

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

----O. XVII, R. 1---Adjournments---Discretion of the Court to grant time and adjourn hearing---Scope---Adjournments cannot be used as a delaying tactic nor can they be demanded as a matter of right---In terms of Rule 1 of Order XVII of C.P.C., Court "may" grant time and adjourn, and that too if "sufficient cause is shown."---It is only logical that this sufficient cause may only be shown by way of an application in writing, meaning that any party to a suit or any other proceeding before a Court, can request an adjournment only if it satisfies the Court by way of submitting an application for adjournment in writing, along with evidence attached of the predicament or ailment that they are facing, for which an adjournment is the only solution---It is then up to the Court, whether to accept the adjournment application or to proceed with the matter at hand---If the Court is to accept the adjournment application then it must immediately decide on whether or not to impose costs to the party requesting an adjournment---Decision on costs is necessary for multiple reasons---Frivolous adjournments incur a significant cost, and are a gross misappropriation of the already limited Court funds and facilities; the cost of a court to be in session, the salaries of all parties involved and maintenance of the courtroom are just a few of the expenditures and facilities which are not being utilized every time there is an adjournment granted on dubious grounds---It is also an unjust and inexcusable charge on the litigant's pocket as many parties to the suit suffer great losses in the form of travel costs, opportunity costs, and daily wages---Furthermore, an unseen but deeply felt social and psychological cost is also borne by litigating parties---Once a decision on whether or not to impose costs for seeking an adjournment has been taken, the Court has to record the reasons for granting an adjournment and why or why not costs have imposed on a party which sought adjournment.

Duniya Gul v. Niaz Muhammad PLD 2024 SC 672 and Arbitrary Adjournments, Discourse 2023, Sahar Saqib. https://pide. org.pk/research/arbitraryadjournments/ ref.

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

----O. XVII, R. 3---Court may proceed notwithstanding either party fails to produce evidence, etc---Expression "decide the suit forthwith" used at the end of Rule 3 of Order XVII of C.P.C.---Connotation---Term "decide the suit forthwith" does not imply that the Court is to reach a decision on the lis before it on the same day---Rather, the term "decide the suit forthwith", implies that the suit is now to be decided without delay, meaning that further adjournments cannot be granted to the party which had already been allowed time to produce evidence, cause attendance of his witnesses, or perform any other act necessary for the progress of the suit.

Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942 ref.

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court for Petitioner (via video-link, Lahore).

Respondents not Represented.

Research Assistance by Ahsan Jehangir Khan, Law Clerk.

P L D 2024 Supreme Court 896

Present: Syed Mansoor Ali Shah, Athar Minallah and Malik Shahzad Ahmad Khan, JJ

IFTIKHAR AHMED CHAUDHRY---Petitioner

Versus

SAEED AHMED KHAN and others---Respondents

Crl. O.P. No. 233 of 2017 in C.A. No. 633 of 2017, Crl. O.P. No. 242 of 2017 in C.A. No. 353 of 2015, Crl. O.P. No. 243 of 2017 in C.A. No. 632 of 2017 and Crl. O.P. No. 12 of 2024 in C.R.P. No. 368 of 2017 in C.A. No. 632 of 2017, decided on 8th August, 2024.

(a) Constitution of Pakistan---

----Arts. 184, 185, 187 & 188---Implementation of orders and decisions of the Supreme Court by individuals, institutions and entities---Constitutional significance of implementing such orders and decisions stated.

It is imperative to underline that in a constitutional democracy, the rule of law is not just a principle but the bedrock upon which the legitimacy of governance rests. The Supreme Court of Pakistan, as the apex judicial body, is entrusted with the profound responsibility of interpreting the law, ensuring justice, and upholding the Constitution. Its orders are not merely recommendations or advisories; they are legal mandates that must be followed. These decisions are the culmination of rigorous legal scrutiny and deliberation intended to reflect the values and laws of the land. When the Supreme Court renders a verdict, it does so as the ultimate interpreter of the Constitution. To disregard or delay the implementation of such verdicts is to challenge the very framework of our legal system. The compliance with judicial decisions is not a matter of courtesy but a constitutional requirement that safeguards this balance. Non-compliance not only disrupts this delicate equilibrium but also sets a dangerous precedent that could lead to executive overreach.

Additionally, the implementation of these orders is crucial for maintaining public confidence in the judicial system. Courts are seen as the defenders of rights, the arbiters of disputes, and the interpreters of laws. If their decisions can be easily ignored or sidestepped by the individuals or entities, it undermines public trust in the efficacy of the judiciary and, by extension, the entire government. This erosion of trust can lead to a lack of faith in the processes that govern citizens' lives and, ultimately, in the democratic system itself. The importance of implementing these orders cannot be overstated, and it is imperative that the institutions recognize that it has no other choice but to comply.

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

----S. 3---Constitution of Pakistan, Arts. 184, 185, 187, 188 & 204---Non-implementation of orders and decisions of the Supreme Court by individuals, institutions and entities---Purpose of law of contempt of court in context of implementing Court judgments stated.

The law of contempt is a critical tool to enforce court orders, ensuring that the judiciary is respected and that its decisions are not taken lightly. The power to hold individuals or entities in contempt for failing to comply with a Court order is fundamental to the judiciary's ability to function effectively. Without this power, the judiciary would be rendered toothless, unable to enforce its decisions, thereby jeopardizing the administration of justice. The individuals or entities have no other choice but to implement the judgment of the Court, for in doing so, it upholds the Constitution, strengthens democracy, and preserves the public's trust in justice and the rule of law.

Salman Akram Raja, Advocate Supreme Court, Abdul Rahim Bhatti, Advocate Supreme Court, Dr. G.M. Ch. Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record and Sh. Mahmood Ahmed, Advocate-on-Record for Petitioner.

Rashid Anwar, Advocate Supreme Court, Adnan Shuja Butt, Advocate Supreme Court, Rana Asad Ullah Khan, Addl. AGP, Syed Rifaqat Hussain Shah, Advocate-on-Record, Rehmat Ali Hasnie, President NBP, Mehnaz Salar, Head of Legal, NBP, Riaz Hussain, Wing Head Lit. North NBP for Respondents and Rana Muhammad Khial (In person).

P L D 2024 Supreme Court 899

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

Messrs OPTIONS INTERNATIONAL (SMC-PVT.) LTD. through CEO--- Appellant

Versus

The COMPETITION COMMISSION OF PAKISTAN through Registrar and another---Respondents

Civil Appeal No. 1011 of 2024, decided on 7th August, 2024.

(On appeal against the judgment dated 29.05.2024 of the Competition Appellate Tribunal, Islamabad passed in Appeal No. 45 of 2023).

(a) Competition Act (XIX of 2010)---

----S. 1(3)---Distorting competition within Pakistan---Scope---Use of the "Starbucks" name and logo---Both the 'Starbucks" name and logo were registered abroad and in Pakistan---Matter before the Competition Commission ("Commission"), and then before the Competition Appellate Tribunal ("Tribunal"), was with regard to the use of the Starbucks name and logo by the appellant and selling its products under such name and style---Complaint from the proprietor of the said tradename and trademark, Starbucks Corporation USA (respondent No. 2), was received by the Commission which took action on it, and passed the penalty imposing order, which penalty was enhanced by the Tribunal---Counsel for appellant contended that the Competition Act, 2010 ('the Act') only applied to 'undertakings and all actions or matters that take place in Pakistan and distort competition within Pakistan', as stipulated in subsection (3) of section 1 of the Act, however since Starbucks Corporation USA (respondent No. 2) did not have any outlet in Pakistan, nor had authorized anyone to use its name, logo and products in Pakistan, therefore, the appellant was not in competition with the respondent No. 2, its authorized user(s) and/or its products---Validity---Said contention had no substance---Appellant had put itself forward by selling its own products under the international brand name Starbucks and by using its logo, which must have had the effect of distorting competition within Pakistan because a local vendor selling similar products, as those being sold by the appellant, would be at a serious disadvantage and not able to compete therewith since the unsuspecting public would believe, understand or perceive the same to be the genuine products of the respondent No. 2---Appeal was dismissed.

(b) Competition Act (XIX of 2010)---

----Ss. 1(3) & 38---Distorting competition---Use of the "Starbucks" name and logo---Matter before the Competition Commission ("Commission"), and then before the Competition Appellate Tribunal ("Tribunal"), was with regard to the use of the Starbucks name and logo by the appellant and selling its products under such name and style---Complaint from the proprietor of the said tradename and trademark, Starbucks Corporation USA (respondent No. 2), was received by the Commission which took action on it, and imposed a penalty of five million rupees on the appellant and ordered further additional penalty of one hundred thousand rupees per day from the date of passing of the order in case of non-compliance---Tribunal decided the appeal by enhancing the penalty amount from five million to six million rupees but reduced the per day penalty amount to five thousand rupees from one hundred thousand rupees---Validity---Counsel for the appellant conceded that the law authorizes the penalties which had been imposed under section 38 of the Competition Act, 2010 ('the Act')---Therefore, it was not understandable how the same could be objected to---No other point had been urged which may persuade the Court to take a view different from the one taken by the Tribunal---Appeal was dismissed.

Taimoor Aslam Khan, Advocate Supreme Court for Appellant.

Hafiz Naeem, Legal Advisor for Respondent No. 1.

Respondent No. 2 not represented.

P L D 2024 Supreme Court 902

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

Syed RAHEEL AHMED---Petitioner

Versus

Mst. Syeda ZONA NAQVI and others---Respondents

Civil Petition No.473-K of 2024, decided on 26th July, 2024.

(Against the Order dated 03.04.2024 passed by High Court of Sindh, Karachi in C.P.No.S-378 of 2024).

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

----Ss. 5 & 14---Constitution of Pakistan, Art. 199---Family dispute---Factual controversies settled by the Trial Court and Appellate Court---Non-interference by High Court in its Constitutional jurisdiction---High Court is not vested with the jurisdiction to act as a court of appeal against Family Court decisions in the absence of specific statutory provisions conferring such a right of appeal in family cases - In view of section 14 of the Family Courts Act, 1964, decision of Family Court can be challenged only once before the District Court as the only appellate forum and no further right of appeal has been provided against the decision of such appellate court---Section 14 does not in any manner, whatsoever, envisage any right to appeal against the decision of appellate court in the High Court indirectly by filing a constitutional petition---Under Article 199 of the Constitution, the High Court cannot sit as a court of appeal for the purpose of addressing factual controversies---In the realm of family law, the Legislature has intentionally refrained from granting the right of appeal to the High Court from decisions rendered by appellate courts---This deliberate omission indicates a purposeful legislative strategy to bring family litigation to a definitive conclusion---By precluding the possibility of further appeal to the High Court, the Legislature is effectively aiming to prevent prolonged family disputes, ensuring that appellate court rulings are conclusive and that family law matters are resolved with definitive closure---Therefore, in absence of any express right to appeal, the decisions of appellate court pertaining to family matters are considered to be final and conclusive.

Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Arif Fareed v. Bibi Sara and others 2023 SCMR 413 and Hamad Hassan v. Mst. Isma Bukhari and others 2023 SCMR 1434 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---When a statute does not grant the right to appeal against certain orders; those orders cannot be contested by invoking the constitutional jurisdiction of the High Court.

President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---High Court should not disturb factual determinations through a reassessment of evidence within its constitutional jurisdiction or use this jurisdiction as a substitute for appeals or revisions---Moreover, any interference with the findings of fact by the lower fora is beyond the scope of the High Court's jurisdiction under Article 199 of the Constitution.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 and Hamad Hassan v. Mst. Isma Bukhari and others 2023 SCMR 1434 ref.

Naveed Ali, Advocate Supreme Court and Abida Parveen Channar, Advocate-on-Record for the Petitioner.

Mrs. Razia Danish, Advocate Supreme Court for Respondent No.1.

Research Conducted by Ms. Paras Zafar, Judicial Law Clerk.

P L D 2024 Supreme Court 911

Present: Yahya Afridi, Jamal Khan Mandokhail and Malik Shahzad Ahmad Khan, JJ

HASRAT KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 69-Q of 2022, decided on 1st August, 2024.

(Against the judgment dated 19.09.2022 passed by the High Court of Balochistan, Quetta in Criminal Appeal No. 232 of 2022).

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

----S. 9(c)---Possession of narcotic substance---Re-appraisal of evidence---Three hundred and twenty (320) packets of charas weighing one kilogram each were recovered from the vehicle driven by the petitioner, and the prosecution was able to prove through independent and reliable evidence, petitioner's conscious possession thereof---After the recovery of the said contrabands, one consolidated sample weighing 3.200 kilograms was secured, which was subsequently tested positive by the Federal Narcotics Testing Laboratory ("Laboratory")---Safe custody and safe transmission of the sample of the recovered substance from the local Police Station to the Laboratory had been proved by the prosecution before the Trial Court---Subsequently, a report received from the Laboratory in that respect was in the positive---Witnesses of the recovery were public servants who had made consistent statements against the petitioner, and they had no background of ill-will against the petitioner, to falsely implicate him---Conviction of petitioner under section 9(c) of the Control of Narcotic Substances Act, 1997 was maintained---Petition for leave to appeal was dismissed to the extent of conviction of the petitioner.

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

----S.9(c)---Possession of narcotic substance---Re-appraisal of evidence---Sentence, reduction in---One consolidated sample collected from multiple packets and sent for chemical testing---Effect---Gross negligence and callous attitude of officials in the investigation and proseuction of narcotic substances cases---Three hundred and twenty (320) packets of charas weighing one kilogram each were recovered from the vehicle driven by the petitioner---Petitioner was convicted by the Trial Court under Section 9(c) of the Control of Narcotic Substances Act, 1997 ("Act") and was sentenced to imprisonment for life with a fine of Rs.100,000---Said conviction and sentence was upheld and maintained by the High Court---Held, that most striking feature of the present case was the gross negligence and callous attitude in the investigation of the present case, as only one consolidated sample weighing 3.200 Kilograms was separated from the recovered charas contained in 320 separate packets (total weight 320 Kilograms) for chemical analysis---This mode and manner of obtaining sample was a clear violation of the settled law that the samples had to be separated from each and every packet of the narcotic substance recovered and each such sample had to be tested by the Chemical Examiner separately---In the present case, admittedly, one consolidated sample weighed 3.200 kilograms and, thus, only 3.200 kilograms of charas could be considered for the purposes of the conviction and sentence of petitioner---Petition was dismissed to the extent of the petitioner's conviction under Section 9(c) of the Control of Narcotic Substances Act, 1997 but was converted into an appeal and partly allowed to the extent of the petitioner's sentence which was reduced to rigorous imprisonment for six years and 6 months and a fine of Rs,30,000/- (Rupees thirty thousand only).

Ameer Zeb v. The State PLD 2012 SC 380 ref.

Shamsuddin Achakzai, Advocate Supreme Court for Petitioner.

Abdul Mateen, D.P.G. and Zahoor Ahmed Baloch, Addl. A.G. for the State.

Jehanzaib, Prosecutor-General, Balochistan, Asif Reki, Advocate-General, Balochistan, Sohail Khalid, D.I.G. (Investigation), Quetta, Zeeshan Raza, Director, Excise and Taxation, Quetta, M. Younas, Retd. I.O., Muhammad Anwar Baloch, S.I. and Haji Khan Mohammad, I.O. Excise Department on Court's Notice.

P L D 2024 Supreme Court 915

Present: Qazi Faez Isa, CJ and Naeem Akhtar Afghan, J

CHAIRMAN FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and others---Petitioners

Versus

Dr. HUMAIRA SIKANDAR and others---Respondents

Civil Petitions Nos.2547 and 2640 of 2023, decided on 13th August, 2024.

(Against the judgment dated 09.03.2023 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1717(R)CS of 2018 and Appeal No. 150I(R)CS of 2021).

Service Tribunals Act (LXX of 1973)---

----Ss. 3A(2)(c) & 3(7)---Acting Chariman of Service Tribunal---Difference of opinion as to the decision to be given on any point between a Member and Acting Chairman of the Tribunal---Preference---Section 3A of Service Tribunals Act, 1973 ('the Act') states that whenever there is a difference of opinion on any point the same shall be decided according to the opinion of the majority---However, when members are equally divided weightage is given to the opinion of the Chairman, if he was a member of the Tribunal which had heard the matter---However, in the present case the appeals were heard by an acting Chairman, and not by the Chairman---Since the legislature in its wisdom did not mention an acting Chairman in section 3A(2)(c) of the Act the Court cannot insert such words therein or imply that a Chairman would also include an acting Chairman---Moreover, the general rule, and one of logic too, is that when there is a difference of opinion amongst adjudicators the matter is referred to a third adjudicator---However, the legislature created an exception to such a general rule, and having created the exception it must be construed strictly---By applying this rule of interpretation the weightage given to the opinion of the Chairman in clause (c) of section 3A(2) of the Act cannot be extended to include an acting Chairman.

Rashdeen Nawaz Qasuri, Additional Attorney-General for Pakistan along with M. Ibrahim, Advocate High Court, Asif Sohail, Director (Legal), Ministry of National Health Services, Regulations and Coordination, Islamabad for Petitioners (in both cases).

M. Aftab Alam Rana, Advocate Supreme Court for Respondent No. 1 (in both cases).

P L D 2024 Supreme Court 918

Present: Muhammad Ali Mazhar and Irfan Saadat Khan, JJ

Messrs HAQUE TRADERS and others---Petitioners

Versus

SHEIKH ABID & CO. PVT. LTD. and others---Respondents

Civil Petitions Nos. 563-K to 595-K of 2024 and Civil Petitions Nos. 612-K and 613-K of 2024, decided on 19th July, 2024.

(Against the judgment dated 03.04.2024 passed by the High Court of Sindh, Karachi in C.Ps. Nos. S-490, S-488, S-491, S-492, S-497, S-498, S-501, S-502, S-509, S-510, S-512, S-514, S-518, S-520, S-521, S-524, S-525, S-526, S-530, S-532, S-538, S-544, S-545, S-551, S-552, S-554, S-555, S-556, S-557, S-558, S-550, S-560, S-562, S-522 and S-549 of 2010).

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

----S. 8---Fair rent, fixation of---Increase in taxes, water charges, cost of construction, repair charges and rate of rent in the same building and locality---Order of the Rent Controller depicted that evidence was adduced by the authorized representative of the landlord to satisfactorily prove the increase in taxes, water charges, cost of construction, repair charges and rate of rent in the same building and locality, and the evidence of such authorized person was not shattered during the cross-examination by the tenants---Landlord claimed to have borne heavy expenditure for the renovation of the building including sanitary work, making two lifts serviceable, and revamping the electricity wiring and such assertions could not be refuted by the tenants in the evidence---On the contrary, the tenants in their cross-examination admitted that since July 1997, they were paying the same rate of rent and that taxes had been enhanced with the passage of time---It was further admitted by them that no receipt or documents were available to show the payment of pugri (goodwill) amount---Landlord's authorized witness, in the affidavit of evidence, jotted down all necessary details including the details of the other tenants in the same building, who had already increased the rent after considering the relevant factors that justified the enhancement of rent including the development work carried out by the landlord---Rent Controller, keeping in mind the criteria provided under Section 8 of the Sindh Rented Premises Ordinance, 1979 ('the Ordinance')for fixation of fair rent, rightly fixed the fair rent of the demised premises at Rs. 9/- per square foot per month payable from the date of application instituted for fixation of fair rent---Impugned judgment of the High Court reflected that at an earlier time, the same landlord filed rent cases against some other tenants of the ground floor of the same building and fair rent was fixed at Rs.9/- per square foot, which order was not only affirmed by the High Court but was also maintained by the Supreme Court and even the review petitions were dismissed---Present petitions filed by the tenants were dismissed and leave was refused.

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

----S. 8---Fair rent, fixation of---Approach to be adopted by the Rent Controller at the time of fixation of fair rent---Multiple parameters and benchmarks have been fixed in the Sindh Rented Premises Ordinance, 1979 ('the Ordinance') for the assistance of the Rent Controller which he must watch out for and mull over at the time of fixing fair rent of any rented premises in his jurisdiction---There is no standardized formula of "one-­size-fits-all" or any other orthodox method which can be applied across the board or universally for every rented premises but each rented premises has its own features such as its location, property category and size, parallel rent statistics, and distinctiveness, therefore, the Rent Controller is obligated to follow, with a conscious approach, the yardstick/indicators provided under Section 8 of the Ordinance for determination of fair rent with regard to such particular rented premises for which an application has been made before him for determination of fair rent---It is not the intent of the legislature that at the time of fixing fair rent by the Rent Controller for any premises, the litmus test of all constituents and characteristics provided under Section 8 of the Ordinance should be present in unison or conjointly, but such conditions are provided as a yardstick which are required to be considered by the Rent Controller---Opposing party cannot claim that all conditions should work together or be congregated with strict proof on the touchstone of conditions word by word, but, if one or two grounds are proved satisfactorily and others are not, even in that set of circumstances, the Rent Controller may fix the fair rent proportionately and equitably, being mindful to the proven grounds; but cannot decline the application on the ground that the applicant has failed to prove or substantiate all preconditions as sine qua non for fixation of fair rent as provided under Section 8 of the Ordinance.

Mrs. Abida Parveen Channar, Advocate-on-Record for Petitioners (in all cases), Saeed-uz-Zaman, Advocate High Court, (in C.P.L.A. No. 563-K of 2024 with Court's permission).

Nemo for Respondents.

P L D 2024 Supreme Court 925

Present: Qazi Faez Isa, C.J., Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

Civil Petition for Leave to Appeal No. 304 of 2022 and C.M.A. No.891 of 2022

The MONAL GROUP OF COMPANIES, ISLAMABAD ---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and others---Respondents

(Against the order dated 11.01.2022 of the Islamabad High Court passed in F.A.O. No. 111 of 2021).

And

Civil Petition for Leave to Appeal No. 305 of 2022 and

C.M.A. No.892 of 2022

The MONAL GROUP OF COMPANIES, ISLAMABAD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and others---Respondents

(Against the order dated 11.01.2022 of the Islamabad High Court passed in W.P. No. 4245 of 2014).

And

Civil Misc. Applications Nos. 887 and 888 of 2022 in C.P. NIL of 2022

FEDERATION OF PAKISTAN though Secretary, Ministry of Defence, Government of Pakistan and others---Applicants

Versus

Messrs The MONAL GROUP OF COMPANIES, ISLAMABAD and others---Respondents

And

Constitution Petition No. 3 of 2024

ISLAMABAD WILDLIFE MANAGEMENT BOARD through Chairman, Islamabad---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and others---Respondents

Civil Petition for Leave to Appeal No. 304 of 2022, C.M.A. No.891 of 2022, Civil Petition for Leave to Appeal No. 305 of 2022 and C.M.A. No.892 of 2022, Civil Misc. Applications Nos. 887 and 888 of 2022 in C.P. Nil of 2022 and Constitution Petition No. 3 of 2024, decided on 21st August, 2024.

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

----Ss. 21(1), 21(2), 21(4) & Preamble---Pakistan Environmental Protection Act (XXXIV of1997), Ss. 11, 12 & 16(2)---Islamabad Capital Territory Zoning Regulations, 1992, Regln. 3---Margalla Hills National Park ('the National Park")---Preservation and conservation---Restaurants operating in the National Park---Legality---Constructing a restaurant in a designated national park was a clear violation of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 ('the Ordinance')---Owners of restaurants operating in Margalla Hills National Park ('the National Park") paid no heed to the Ordinance, the building laws, to the Pakistan Environmental Protection Act, 1997 ("PEPA") and other laws---Any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Ordinance, therefore, the same were declared to be of no legal effect and were set aside---Observations and directions recorded by the Supreme Court in the matter stated.

Constructing a restaurant in a designated national park is a clear violation of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 ('the Ordinance'). Unrestricted construction and commercial activities within a national park also denigrates its protected status. The construction and running of restaurants impaired the object of the Margalla Hills National Park ('the National Park") and the same also had no nexus with public education and/or research. Therefore, the restaurants could not be allowed to operate. The restaurateurs violated the Ordinance, and also a number of other laws. No building can be constructed without first obtaining requisite approval, and upon completion thereof the completion certificate ensuring that it was constructed in accordance with law, but these were not obtained in the present case. The restaurants neither submitted an 'initial environmental examination' ('IEA') nor an environmental impact assessment' ('EIA') to the Environmental Protection Agency ('EPA'). The provisions of Pakistan Environmental Protection Act, 1997 ("PEPA") were disregarded and violated. The restaurant owners also disregarded the notices issued by EPA and the environment protection orders issued by it.

The restaurant owners paid no heed to the Ordinance, the building laws, to the PEPA and other laws. The directions and orders issued to them, to stop the illegal use of water, creating/causing noise, air and water pollution and failure to properly dispose of the sewage and waste generated were also disregarded.

The National Park land is under grave and imminent danger. The rich, powerful and well connected want to wrest it away for their personal use and/or gain. This must stop. The people cannot be deprived of the National Park, its flora and fauna, and of the benefits of this amazing national asset. Government servants who collude with land grabbers also need reminding that it is the people who pay their salaries and it is them who they serve, and whose interest they must protect. Those who forget this fundamental truth are a drain on the public exchequer. Private interests and those marauding public lands must not be allowed to deprive the people of Pakistan and future generations of it. If we lose the National Park the adverse effects of green house gases, deforestation, soil erosion, pollution and climate change will be exacerbated to the detriment of the people and future generations.

Any lease, license, allotment or permission granted by the Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/ authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979. Therefore, the same are declared to be of no legal effect and set aside.

On 11 September 2024 the Islamabad Wildlife Management Board ('the Wildlife Board') will take over the possession of the restaurants in question, that is, Monal, La Montana and Gloria Jeans, with the full assistance of CDA and the Islamabad Capital Territory Police, and the entrances to said area shall be barricaded. Thereafter the same shall be demolished with minimal disturbance to the wildlife and by avoiding damage to the trees of the National Park. The debris shall be removed and disposed of properly, and not within the precincts of the National Park. The Wildlife Board shall then determine how best to utilize the mountain ridge on which stood the said restaurants, and it may consult experts and environmentalists to examine whether the foundations of the said structures should also be removed or the same be left in and used to make an artificial lake to collect rainwater which can be used to put out fires that erupt in the National Park. However, under no circumstances should the building be left abandoned/derelict nor leave any debris on the said site. Every effort should be made to ensure that the said land again becomes an integral part of the National Park.

(b) Public functonaries---

----Personal benefit---Those paid out of the public exchequer serve the people, and have to abide by the law and must never use nor be allowed to use their offices to benefit themselves or those who benefit them.

(c) Constitution of Pakistan---

----Arts. 9 & 14---Right to life---Right to live with dignity---Scope---Protection and conservation of nature---Fundamental right to life, and to live it with dignity (Articles 9 and 14 of the Constitution respectively) is to live in a world which has an abundance of all species.

Salman Akram Raja, Advocate Supreme Court for Petitioners (in C.P. No. 304 of 2022).

Saad Mumtaz Hashmi, Advocate Supreme Court along with Luqman Ali Afzal, owner of the petitioner for Petitioners (in C.P. No. 305 of 2022).

Umar Ijaz Gilani, Advocate Supreme Court for Petitioners (in Const. P. No. 3 of 2024).

Hafiz Arfat Ahmed Ch., Advocate Supreme Court, Muhammad Ali Randhawa, Chairman CDA, Naeem Dar, DG Law, Irfan Azeem, Dy. DG (Environment), Kamran, Director, Law and Raja Abdul Ghafoor, Advocate-on-Record for Capital Development Authority.

Mrs. Misbah Gulnar Sharif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Metropolitan Corporation Islamabad.

Malik Javed Iqbal Wains, Addl. AGP, Brig. (R), Falak Naz, Legal Advisor, Col. Faran Tariq, Dy. Director Military Farms, Lt. Col. Irfan Asghar and Zafar Mehmood, MEO for Ministry of Defence.

Muhammad Naqi Khan, DG/CEO (via video link from Lahore) for WWF Pakistan.

Muhammad Aqib, Dy. Director for Survey of Pakistan.

Nabeel Rehman, Advocate Supreme Court (for Capital View and La Montana Restaurants and Gloria Jeans) on Court's Notice.

P L D 2024 Supreme Court 951

Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ

GHULAM SHABBIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Review Petition No. 103 of 2017 in Criminal Appeal No. 643 of 2009, decided on 5th June, 2024.

(To review the judgment of this Court dated 28.10.2015 passed in Crl. Appeal No. 643 of 2009).

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

----Ss. 302(b) & 307---Constitution of Pakistan, Art. 188---Review petition---Qatl-i-amd---Convict sentenced to death remaining incarcerated for a period which is more than a full term of life imprisonment---Effect---Conversion of death sentence into imprisonment for life---Longstanding detention in prison up to or more than the period of imprisonment for life is a complete and distinct punishment, as provided by section 302(b), P.P.C.---In the present case by the time, when his appeal was dismissed by the Supreme Court, the petitioner remained incarcerated for about 25 years, without earning remissions---Despite confirmation of his death sentence by the Supreme Court, the petitioner was awaiting execution of his sentence for the last nine years---It was a fact that till date, the petitioner had served out a sentence of more than 34 years without earning remissions, out of which, he remained incarcerated in death cell for about 24 years---If remissions were counted, his detention may come to almost forty years---Petitioner had served out his sentence for more than a life term and that too, in miserable and inhuman conditions while incarcerated in death cell for twenty four years, which had compromised his personal values and dignity---Delay in conclusion of judicial proceedings and execution of sentence awarded to the petitioner was on account of the system, hence, was beyond his control---Due to this hard fact, the petitioner had faced the agony of prolonged criminal proceedings, hence, was a victim of circumstances, therefore, he could not be penalized for the act of the Court or the Executive---Longstanding delay upto or above the period of imprisonment for life is one of the grounds necessary for awarding lesser punishment, keeping in view the principle of expectancy of life---Review petition was partly allowed, and the judgment under review was upheld, with modification in the quantum of sentence---Resultantly, the conviction of the petitioner under section 302(b), P.P.C. was maintained, however, death sentences awarded to him on two counts were converted into imprisonment for life on two counts, with benefit of section 382-B, Cr.P.C---Whereas the conviction and sentence of the petitioner under section 307, P.P.C. were upheld.

Dilawar Hussain's case 2013 SCMR 1582; Hassan's case PLD 2013 SC 793; Khalid Iqbal's case PLD 2015 SC 50 and Sikandar Hayat's case PLD 2020 SC 559 ref.

(b) Constitution of Pakistan---

----Arts. 4, 14 & 45---United Nations Standard Minimum Rules for the Treatment of Prisoners ('the Nelson Mandela Rules'), R. 3---Death row prisoners---Longstanding detention in prison---Fundamental rights of prisoners---Observations and suggestions recorded by the Supreme Court to minimize the period of detention of death prisoners in death cells.

After confirmation of death sentence by the High Court, the convict(s) are shifted to death cells, where they are kept for years and sometimes for decades, on account of delay in conclusion of criminal proceedings and thereafter, for execution of their sentence by the Executive. There is no doubt that after confirmation of death sentence, the convict must face its consequence but the delay in conclusion of criminal proceedings and thereafter, delay in executing the death sentence of a convict would amount to punishing him twice for one and the same act, which is neither permissible under the law nor under the injunctions of Islam. Awarding death sentence to a person does not mean that he/she be treated inhumanly by keeping them in death cell for long unlimited period of time. All prisoners living in death cell are not only deprived of their constitutional rights, but they also live under mental stress. Once the judgment attains finality, it must be implemented and executed at the earliest.

Dr. Muhammad Aslam Khaki's case PLD 2010 FSC 1 ref.

All the prisoners are subject to prison law and rules in vogue, but these must not be inconsistent with or in derogation of the fundamental rights. It is, therefore, need of the hour that the Federal Government and the Provincial Governments must reconsider the prison laws, enabling the prisoners to be treated in accordance with law, to enjoy the equal protection of law. Prisons should provide an atmosphere to prisoners in order to maintain their human identity and respect, their personal values, especially, a dignity which is their constitutional right, especially those incarcerated in death cells.

President has the power to pardon a death row prisoner, as provided by Article 45 of the Constitution. The prisoners in death cells present mercy petitions before the President through concerned Superintendent Jail, but mostly they are filed after considerable period of time without any explanation. Besides, there is no procedure or mechanism in vogue nor is there any limitation for filing and deciding the mercy petitions by the President, hence, it takes years to decide. This is also one of the causes of delay in execution of the sentence of death. The matters pertaining to submission and disposal of mercy petitions also require consideration. All the respective governments should consider making of policy, enacting laws and/or amending the existing laws, in line with the international standards, in order to minimize the period of detention of death prisoners in death cells.

Hasnat Ahmad Khan, Advocate Supreme Court for Petitioner.

Irfan Zia, D.P.G. for the State.

P L D 2024 Supreme Court 960

Present: Muhammad Ali Mazhar and, Syed Hasan Azhar Rizvi, JJ

MUSHTAQUE AHMED---Petitioner

Versus

SHAHZAD KHAN---Respondent

Criminal Original Petition No. 1-K of 2023 in Civil Petition No. 47-K of 2022, decided on 29th July, 2024.

(For non-compliance of Court Order dated 16.06.2022 passed by this Court in C.P. No. 47-K of 2022).

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

----S. 22---Constitution of Pakistan, Art. 204---Supreme Court Rules, 1980, O. XXVII, R. 1---Eviction order---Execution proceedings---Rent Controller as the Executing Court---Scope---Contempt proceedings for violation of order of the Supreme Court---Ejectment order passed by the Rent Controller was affirmed in the First Rent Appeal, and thereafter it was further affirmed by the High Court, and finally, the litigation culminated in the Supreme Court when the counsel for the tenant voluntarily gave a statement on behalf of his client that he shall vacate the premises if some reasonable time was accorded to him, which request was acceded to by the petitioner's (landlord's) counsel, and the civil petition in the Supreme Court was disposed of accordingly---Ejectment order, on affirmation, was merged into the appellate order, which was further merged into the High Court Order, and in the end, all previous orders were merged into the final order passed by the Supreme Court---Present issue correlated only to the execution of the ejectment order, and despite the defeat of the tenant at all levels, the ejectment order could not be satisfied by the Executing Court due to flimsy and insubstantial pretends and pretexts which unnecessarily dragged the execution proceedings---Final order passed under the provisions of the Sindh Rented Premises Ordinance, 1979 ('the Ordinance') are executable by the Rent Controller and all questions arising between parties and relating to the execution, discharge, or satisfaction of the order shall be determined by the Controller and not by a separate suit---So in all fairness, the Rent Controller is bound to execute the ejectment order expeditiously---Even if there was any civil dispute pending in any civil court instituted by some other persons against the petitioner (landlord) and they were claiming the right of inheritance in the subject property, even then, the tenant could not take any benefit or advantage of any such dispute or litigation which had nothing to do with him---Decision in any such legal proceedings, if any, would remain restricted to resolving the rights between the alleged legal heirs but would not grant any independent or proprietary rights to the tenant, who was bound to vacate the premises in accordance with the ejectment order affirmed by the appellate court, High Court, and finally, the Supreme Court, in view of the statement of the counsel representing the tenant---Supreme Court directed the Executing Court to execute the ejectment order expeditiously in accordance with law without any further delay or hindrance and hand over the possession of the demised premises to the petitioner/landlord and submit the compliance report to the Supreme Court---Criminal Original Petition was disposed of accordingly.

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

----O.XXI, R. 10---Execution of decree/order---Executing Court, powers of---Scope---Executing court cannot go beyond the decree; neither can it rescind nor modify the decree/order sought to be executed.

Muhammad Lutufullah Arain, Advocate Supreme Court and Noor Ahmed Memon, Advocate-on-Record for Petitioner.

Muhammad Arshad S. Pathan, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for Respondent.

P L D 2024 Supreme Court 969

Present: Qazi Faez Isa, Yahya Afridi and Syed Hasan Azhar Rizvi, JJ

AHMAD ALI---Petitioner

Versus

The STATE through A.G. Khyber Pakhtunkhwa, Peshawar and others---Respondents

Criminal Petition No. 183-P of 2022, decided on 7th March, 2023.

(Against the order dated 7.11.2022 passed by the Peshawar High Court, Peshawar in Cr. Misc. (Bail Application) No. 2923-P of 2022).

Per Qazi Faez Isa, J.; Syed Hasan Azhar Rizvi, J. agreeing; Yahya Afridi, J. dissenting. [Majority view]

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

----S. 497---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd---Bail, refusal of---Case of cross-versions---[Per Qazi Faez Isa, J. [Majority view]: In the present case the daily diary, which recorded the petitioner's version of events, simply stated that the petitioner's side was fired upon by the complainant's side, but it was not stated why the petitioner's side had fired, or returned fire, let alone taking the plea of self-defence---Daily diary also did not attribute motive to the complainant's side---What the police daily diary recorded did not constitute a cross or different version of events, and which may have persuaded the Court to grant bail to the petitioner---Daily diary on which the petitioner relied confirmed his presence at the crime scene, where two persons from the complainant's side were killed and one was injured---Moreover, the State did not move for cancellation of bail granted to the complainant's side and though the petitioner's side did move for cancellation of bail of one of the co-accused it then withdrew the same---Petition was dismissed, leave to appeal was declined, and consequently petitioner was refused bail---[Per Yahya Afridi, J.; dissenting [Minority view]: In the instant case., distinct versions of how the events unfolded, which lead to the commission of the crime, had been put forth by the contesting parties---Time and place of the occurrence were admitted by both parties---However, the facts of the present case did not prima facie put forth which party was an aggressor, as it was a common path close to the dwelling place of both parties, and both were armed with firearms---Admittedly, both parties had recognized the general role of firing firearms at each other, leading to injuries on both sides---In particular, the petitioner had not been reported to having had an effective role in causing injury to any of the two deceased or injured persons---In the cross FIR lodged by the petitioner's side, the complainant party, who were accused of the general role of firing resulting in injury to five persons belonging to the petitioner's side, had all been granted bail after arrest---And thus, denying bail to the petitioner in present FIR, when the two cases prima facie were cross-cases, would not be appropriate---Petition was converted into an appeal and allowed, and consequently the petitioner was admitted to bail.

Muhammad Shahzad Siddique v. The State PLD 2009 SC 58 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 distinguished.

Per Yahya Afridi, J.; dissenting with Qazi Faez Isa, J. [Minority view]

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail---Case of cross-versions---Principles relating to the grant or refusal of bail in cross-cases stated.

Application of principles for the grant or refusal of bail in 'cross-cases' depends on the particular facts and circumstances of each case:

(i) To constitute a cross-case, the mere assertion of a counter case is not enough. Courts are to tentatively assess that the parties, the venue, and the transaction prima facie led to the result of a single incident narrated differently by the opposing party. The rationale is that frivolous and false counter-cases, which can exaggeratedly be set up by the opposite party, do not gain an advantage of the general rule and benefits arising out of a counter-case.

Arif Din v. Amil Khan 2005 SCMR 1402; Mushtaq v. Lakhkar Khan 2013 YLR 2046 and Liaqat Ali v. State 2013 SCMR 1527 ref.

(ii) In cases of counter versions arising from the same incident, one given by the complainant in the FIR, and the other given by the opposite party, bail in appropriate cases is granted as a rule on the grounds of further inquiry for the reason that the question as to which version is correct is to be decided after the recording of pro and contra evidence during the trial, and also to ascertain which party was the aggressor and which party was aggressed upon. The refusal of bail in such cases is an exception.

Fazal Muhammad v. Ali Ahmed 1976 SCMR 391; Shafiqan v. Hashim Ali 1972 SCMR 682 and Khalid Mehmood v. Muhammad Kashif Rasool 2013 SCMR 1415 ref.

(iii) The exception to the rule of the grant of bail is in cases of counter versions or cross-cases, where prima facie the facts of the case suggest that the party seeking bail was an aggressor and/or the material on the record suggests that the said party had an effective role in causing fatal injury.

Nasir Muhammad Wassan v. State 1992 SCMR 501 and Rashid Ramzan v. State 2022 SCMR 2011 ref.

(iv) In counter versions of opposing parties, without specifying an effective role in causing fatal injury, leaves room for consideration of rendering a case within the purview of further inquiry, as provided under section 497 of Cr.P.C.

Jaffar v. State 1980 SCMR 784 and Muhammad Aslam v. State 1997 SCMR 251 ref.

(v) In cross-cases, wherein one party is granted the concession of bail, similar treatment is also rendered to the other side.

Hamza Ali Hamza v. State 2010 SCMR 1219 and Muhammad Ashiq v. State 2013 YLR 1133 ref.

(vi) Counter version put forth by a party which is contrary to the one already rendered by a complainant in an FIR, if it fulfils the essentials of a cross-case as to the time and place of the commission of an offence; would constitute a cross-case, and it cannot be declared to be otherwise solely on the ground that the party claiming its version to be a cross-case did not allege self-defence in the counter version of the events leading to the commission of the offence and recording of the FIR in which he is nominated as an accused.

Shabbir Hussain Gigyani, Advocate Supreme Court for Petitioner (through video-link, Peshawar).

Burhan Latif Khaisori, Advocate Supreme Court for the Complainant.

Sardar Ali Raza, Addl. A.G. Khyber Pakhtunkhwa, Ghaffar Ali, DSP, Nazeefur Rehman, Inspector and Muhammad Ghani, Inspector for the State.

P L D 2024 Supreme Court 976

Present: Yahya Afridi, Shahid Waheed and Aqeel Ahmed Abbasi, JJ

MUHAMMAD AYAZ and others---Petitioners

Versus

Mst. SAIMA SAEED and others---Respondents

C.P.L.A. No. 47 of 2024, decided on 11th September, 2024.

(Against the judgment dated 15.12.2023 of the Peshawar High Court, Peshawar, passed in Civil Revision No.235-P of 2022).

Practice and procedure---

----Practice of calling the defendant as a witness to give evidence on behalf of the plaintiff---Propriety---In the present case, the plaintiffs filed a suit for declaration and injunction, and then applied for a summons to be issued to the first defendant (respondent), as their witness---Trial Judge declined the application, and his order was first upheld by the Appellate Court and then by the Revision Court---Validity---In the facts of the present case, if the first defendant fails to appear in the witness box, allowing the plaintiffs to compel her presence by the issue of a witness summons, would be an objectionable practice---Such a practice places the examination and cross-examination of a witness in the wrong hands, hinders fair trial, and obstructs justice---At the same time, it is also a bad practice for parties to refrain from entering the witness box when they are in a position to give personal evidence---Therefore, the first defendant in the suit, giving rise to the present petition, is expected to provide personal testimony in support of her case---If she does not appear without sufficient cause, it will amount to suppression or withholding of evidence, and the Court will be entitled to draw an inference against her----No infirmity was found in the orders of the Courts below, thus, the same were upheld by the Supreme Court---Petition was dismissed, and leave was accordingly refused.

Kishori Lal v. Chunni Lal (31 All. 116 at page 122) and Mahunt Shatrugan Das v. Bawa Sham Das and others AIR 1938 PC 59 ref.

M. Amin Khattak Lachi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2024 Supreme Court 978

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

PUBLIC INTEREST LAW ASSOCIATION OF PAKISTAN MEHERBANO AHSANUDDIN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C. Ps. Nos. 42 of 2022 and 25 of 2024, decided on 1st July, 2023.

Pakistan Climate Change Act (X of 2017)---

----Ss. 5 & 8---National Disaster Management Act (XXIV of 2010), Ss. 9 & 16---Constitution of Pakistan, Art. 184(3)---Climate change---Lack of a clear policy/strategy and action plan to deal with climate change---Special budget for climate change---Observations and directions recorded by the Supreme Court regarding importance of implementing a climate change policy and allocating a special budget for climate change stated.

Climate change was a serious existential threat to the people of Pakistan and directly affected the fundamental rights, still the recent provincial budgets had not allocated any Climate Fund for climate change or come up with any effective strategies. This became doubly worrying as Monsoon rains were round the corner and the country had still not recovered from the devastating floods of the year 2022.

Nothing concrete was placed before the Supreme Court to show if the Ministry of Climate Change had any climate change policy in place and if any effective steps had been taken in order to address the challenges of climate change. It was mentioned thatNational Disaster Management Authority (NDMA) and Provincial Disaster Management Authority (PDMA)were looking into the matter, however NDMA and PDMA were disaster management institutions, while the Ministry of Climate Change had to come up with preventive policies addressing the challenges of climate change head-on. It appeared that no such policy was in place and no action on the ground had been taken. Supreme Court provided opportunity to the Secretary Climate Change to place the relevant policy on the record and apprise the Supreme Court on the next date as to what were the key challenges of climate change and what strategies and plans had been put in place by the Ministry and what action had so far been taken.

Submissions made by the Chief Secretaries of Punjab, Sindh, KPK and Balochistan were not satisfactory. No material steps had been taken by the said Provinces to deal with the challenges of climate change as there was no clear strategy(ies), action plans or any adequate steps taken on the ground. The Chief Secretaries undertook that they would submit relevant strategy/action plans to deal with the issue of climate change in their respective Provinces before the next date. Supreme Court directed that the said strategies shall clearly identify the threats/challenges of climate change in their respective Provinces and steps taken to address the said challenges.

All the Chief Secretaries were asked whether a special budget had been allocated for climate change in the recent provincial budgets, their reply to said question was in the negative, however, as far as, Punjab was concerned, it had been pointed out that a loan of $ 50 million through Asian Development Bank had been obtained and parked as Climate Change Fund, however, no document in this regard had been placed on the record.

Supreme Court directed that all the Chief Secretaries, as well as Coordinator to the Prime Minister on Climate Change, Ministry of Climate Change and Secretary Climate Change, and, all the concerned officers shall appear before the Court on the next date of hearing and apprise the Court of their strategies and steps taken.

In attendance:

Mian Sami-ud-Din, Advocate Supreme Court, Riaz Hussain Azam, Advocate-on-Record, Malik Javed Iqbal Wains, Addl. AGP, Ms. Roomina Khursheed Alam, Coordinator, Eazaz A. Dar, Secretary Climate Change, Khalid Ishaq, Adv. Genl. Punjab, Baleegh-uz-Zaman, Addl. A.G. Pb. Zahid Akhtar Zaman, Chief Secy. Pb., Hassan Akbar, A.G. Sindh, Muhammad Asif, A.G. Balochistan, M. Ayaz Khan Swati, Addl. A.G., Balochistan, Shah Faisal, A.G. Khyber Pakhtunkhwa, Syed Kausar Ali Shah, Addl. A.G. KPK, Haji Muhammad Nazir, A.G. (G.B.), Yasir Gul Khan, A.C. (MOPDS), Mutahir Ahmad, D.S. (F) (G.B.), Nadeem-ur-Rehman, Secretary Env. Bal., Jahangir Anwar, Sect. Env. Lahore, Imran Hamid, D.G. Env. Lahore, M. Nawaz Manik, Addl. D.G. Env. Lahore, Ms Amina, A.D. Legal Env. Lahore, Asmatullah A.D. Legal Env. Lahore, Kashif Sajjan, Asstt. Legal. Env. Lahore, Nadeem Aslam Ch. C.S. Khyber Pakhtunkhwa, M. Masood (Spl. Sec. Forest), Sami Ullah (D.G. Env.), M. Bashar Naveed, Addl. A.G., Dr. Habib ur Rehman Solangi, D.D. Law, Hassan Akber A.G. Sindh, Asif Hyder Shah, C.S. Sindh, Syed Mohsin Hussain Shah, A.A.G. and Focal person to Chief Secretary and Nabeela Umer, Sec. Env. Sindh.

P L D 2024 Supreme Court 981

Present: Qazi Faez Isa, C.J., Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

GHULAM RASOOL---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and others---Respondents

Civil Appeal No. 1046 of 2024, decided on 19th September, 2024.

(Against the judgment dated 02.08.2024 of the Election Tribunal Balochistan, Quetta, passed in Election Petition No. 47 of 2024).

(a) Elections Act (XXXIII of 2017)---

----Ss. 95(5) & 95(6)----Election for seat of Provincial Assembly---Recounting of votes by the Returning Officer---Allegation of illegal and corrupt practices---Not proved---Respondent No. 11/returned candidate received 21,103 votes which was the highest number, and the runner up was the appellant who received 19,093 votes---Returning Officer recounted the votes which resulted in the respondent No. 11's votes being reduced to 20,706 and the appellant's votes being reduced to 18,787; the difference of votes between them was 1,919 votes---Election Commission of Pakistan ('ECP') issued the requisite notification and declared respondent No. 11, who was recorded to have received the highest number of votes to have won the elections---Legality----Presiding Officers testified as court witnesses and the parties were given an opportunity to cross-examine them---Despite cross-examining them at length the alleged wrongdoing on their part could not be established nor could it be established that the copies of Form-45s produced by the appellant were copies of the actual Form-45s---Appellant's allegation that the respondent No. 11 had familial and other ties with the Presiding Officers was also not established---Appellant had questioned the declared results and had sought recounting which was allowed---Pursuant to the recounting the votes received by the winning candidate (respondent No. 11) were reduced and so too those received by the appellant, however, the respondent No. 11 still emerged as the victorious candidate having received 1,919 more votes than the appellant---Judge of the Tribunal independently examined the case from all angles and attended to the allegations levelled by the appellant and correctly concluded that his allegations were not established, and that the election results were fair---Appeal was dismissed.

(b) Elections Act (XXXIII of 2017)---

----Ss. 90(10) & 92---Election Rules, 2017, Rr. 81(1) & 84(1)---Form-45 prepared by the Presiding Officer of each polling station---Form-47 issued by the Returning Officer---Significance of both Forms---Ballot papers that are cast are the determinative factor---What is recorded by a Presiding Officer or a Returning Officer in the requisite forms is not the final determination of the vote count if the votes are ordered to be recounted, which is done by opening the bags/packets containing the ballot papers---Ballot papers which are cast is the primary evidence of the election result---Presumption of correctness is attached to Form-45 and Form-47 until the ballot papers are ordered to be recounted.

(c) Elections Act (XXXIII of 2017)---

----Ss. 95(5) & 95(6)---Recounting of votes by the Returning Officer---Candidate may request for recounting of the votes, and if such request is allowed, the votes are recounted, after issuance of notice to all the candidates, and recounting takes place in the presence of all those who elect to attend---If there is a dispute in this regard the actual votes which were cast determine the controversy---However, needless to state, if the seal of the bags/packets are found to be broken or tampered with the sanctity of votes therein stands compromised.

Saeed Khurshid Ahmed, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant.

M. Akram Shah, Advocate Supreme Court for Respondent No. 11.

Nemo for other Respondents.

P L D 2024 Supreme Court 985

Present: Umar Ata Bandial, CJ, Ijaz ul Ahsan, Munib Akhtar, Yahya Afridi and

Jamal Khan Mandokhail, JJ

Presidential Reference No.2 of 2022

(Reference by the President of the Islamic Republic of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan 1973).

Presidential Reference No.2 of 2022, decided on 9th December, 2022.

Per Umar Ata Bandial, CJ.; Ijaz ul Ahsan and Munib Akhtar, JJ., agreeing

(a) Foreign Investment (Promotion and Protection) Act (XXXV of 2022)---

----S.3, Second, Third Sched. & Preamble---Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act (XVI of 2022), Preamble---Constitution of Pakistan, Arts. 144, 147 & 186---Reko Diq mining project---Settlement/implementation agreement signed between the Government of Pakistan/Government of Balochistan and two international firms (Antofagasta PLC and Barrick Gold Corporation) for the revival of the stalled Reko Diq mining project---Reference by the President under Article 186 of the Constitution seeking the Supreme Court's opinion on whether an earlier judgment of the Supreme Court reported as Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641) or the laws, public policy or Constitution prevented the federal and provincial governments from entering into the Implementation Agreement and the Definitive Agreements [Agreements] regarding the Reko Diq mining project or affected their validity?; and, whether, if enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 ('FI Bill 2022') be valid and constitutional?---Supreme Court opined that the parameters set out in Abdul Haque Baloch's case (PLD 2013 SC 641) and the reasons for the same, had been duly addressed by the Federal and Provincial Governments; that the process for the reconstitution of the Reko Diq project had been undertaken transparently and with due diligence; that the Agreements were being signed by authorities duly authorized and competent to do so under the law; that to ensure transparency and fairness, expert advice on the financial, technical and legal issues involved had been sought from both local as well as independent international experts/consultants on the terms settled in the Agreements; that the Agreements had been put in place after due deliberation and were not unconstitutional or illegal on the parameters and grounds spelt out in the Abdul Haque Baloch's case (PLD 2013 SC 641); that likewise, the rationale, basis, legality and vires of the 'FI Bill 2022' as well as the amendments to its schedules and annexures and the amendments incorporated through SROs, provided the resolutions to such effect were passed by the Sindh and Balochistan Provincial Assemblies and the 'FI Bill 2022' was passed by the Parliament after following due process, shall be duly enacted as required under the Constitution, and such laws and regulatory measures did not in any manner violate the Constitution or the law---Detailed answers given by the Supreme Court to the questions posed in the Reference provided.

Present Reference raised the following issues; whether the Constitution places any bar on the disposal of public assets through a negotiated agreement?; whether the Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act, 2022 ('2022 Act') is within the legislative competence of the Balochistan Assembly?; whether the process through which the Government of Balochistan is entering into the Implementation Agreement and the Definitive Agreements [Agreements] is fair, transparent, reasonable and in accordance with law; and whether the terms of the Agreements violate or are in conflict with the judgment of the Supreme Court reported as Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641)?

The "first question" referred to the Supreme Court by the President is answered in the negative for the following reasons:

(i) It is settled law that while disposal of public assets through a competitive process is the ordinary rule, it is not an invariable rule. The Constitution does not forbid disposal of public assets other than through a competitive process so long as such disposal has the support of the law and is justified on rational grounds, as is the case in the present Reference.

(ii) Ever since the enactment of the Constitution, legislative competence to deal with mines and mineral development (other than minerals used for nuclear energy) has rested exclusively with the Provincial Assemblies. It follows from the legislative ambit of the Provincial Assemblies under the Constitution that they are competent to "alter, amend or repeal" any existing law to the extent that it deals with mines and mineral development. As far as the amendment incorporated in the Regulation of Mines and Oil fields and Mineral Development (Government Control) Act, 1948 (1948 Act) is concerned, which has been introduced by way of the 2022 Act, to the extent that the said statute applies to the Province of Balochistan it is intra vires the Constitution and the rules framed by the Government of Balochistan under Section 2 of the 1948 Act. The 2022 Act can therefore be treated as a standalone provision that operates alongside the 1948 Act and the said rules insofar as the subject of mines and minerals development (other than oil fields and mineral resources necessary for generation of nuclear energy) falls within the exclusive legislative competence of the provincial legislature.

(iii) The Balochistan Cabinet has approved the decision to enter into the Agreements on the basis of a detailed summary, a copy of which has been filed with the Supreme Court. The summary considers 'public interest' inherent in the negotiated agreement and since the Agreements pertain to an 'international obligation' in terms of the 2022 Act (i.e., Pakistan's obligation to make payment of approximately US$ 6 billion under an ICSID award dated 12-07-2019), the formal obligations required under the 2022 Act for entering into a negotiated agreement stand fulfilled.

(iv) The Federal Government placed on record documents to show that an Apex Committee headed by the Prime Minister and attended by all the relevant stakeholders (including the Chief Minister and Chief Secretary of Balochistan) had carefully negotiated the terms of the Agreements with the help of international financial advisors, international legal advisors, international mining experts and international tax advisors in addition to independent advisors from Pakistan. The international advisors also addressed the Court directly during proceedings in-person and through video link, and answered all the queries raised by the Court. Prima facie, the Agreements cannot be faulted for lack of due diligence on the part of State authorities.

(v) The Agreements do not, prima facie, violate any of the findings recorded in the Abdul Haque Baloch's case (PLD 2013 SC 641). The decision to enter into the Agreements is backed by law and has been taken on the basis of careful negotiations during which authorized representatives of both federal and provincial governments were duly assisted by independent international consultants. Further, the obligation to act in accordance with "Applicable Law" contained in the Agreements as well as the obligations of the Licensee to apply for consents in accordance with law and satisfy all conditions prescribed by the Applicable Law means that the statutory discretion of public functionaries is not being fettered by the Agreements.

(vi) The Provincial Assembly of Balochistan was given a detailed in-camera briefing and was taken into confidence regarding the entire project and the terms and conditions of the proposed settlement between the parties were accepted without any objections being raised by the chosen representatives of the people of Balochistan.

(vii) With regard to environmental considerations, particularly in relation to the use of water, the Agreements contain no exemption from Pakistan's environmental laws. Rather, the Agreements require the international firm (Barrick) to act in accordance with both international environmental standards and domestic laws.

The "second question" referred to the Supreme Court by the President is answered in the affirmative for the following reasons:

(i) Article 144 of the Constitution allows Provincial Assemblies to empower Parliament to pass a law dealing with issues within the legislative competence of the Provinces. Similarly, Article 147 of the Constitution allows the Provinces to entrust, either conditionally or unconditionally, to the Federal Government or to its officers, functions in relation to any matter to which the executive authority of the Province extends.

(ii) Provided that the draft resolutions proposed to be passed by the Provincial Assemblies of Sindh and Balochistan to empower Parliament to enact the proposed Foreign Investment (Protection and Promotion) Bill, 2022 ('FI Bill 2022') are passed, Parliament will be competent to enact the 'FI Bill 2022', including the notified exemptions specified in the Bill and the protected benefits listed in the Third Schedule.

(iii) The provisions of Section 3 of the FI Bill 2022 do not fetter the sovereignty of Parliament. It appears that the FI Bill 2022 represents a version of the Protection of Economic Reforms Act, 1992. It allows the Federal Government to notify certain benefits which may not be withdrawn to the prejudice of an investor. The Parliament remains at liberty to repeal the entire FI Bill 2022, if it so desires, of course subject to the corresponding legal consequences that may arise from such repeal. Most of the exemptions proposed to be granted are already available under the regulatory regimes pertaining to Export Processing Zones and Special Technology Zones. Further, the exemptions being granted from the operation of Labour Laws do not denude the labour force of their rightful entitlement to fair wages, allowances and guarantees/benefits provided by law. Counsel for the international firm (Barrick) categorically assured the Court that the applicable minimum wage laws will be fully observed and the Agreements expressly provide that all operations will be carried out in accordance with International Mining Standards which are defined to include compliance with IFC Performance Standards, to the extent applicable. The IFC Performance Standards contain detailed provisions pertaining to labour rights. The international firm (Barrick) also committed to act in accordance with the United Nations Guiding Principles on Business and Human Rights and assured the Court that it will contribute substantially towards Corporate Social Responsibility by dedicating a percentage of its returns towards provision of fresh drinking water, health facilities, schools and local infrastructure to the people of Balochistan. In addition, most of the labour force will be employed from amongst the local population of the Province. In addition, programs for development of skills will also be put in place.

The FI Bill 2022 is not limited exclusively to the Reko Diq project. Instead, it provides a framework for grant of investment incentives which will, subject to the provisions of the Bill, be available to all investments of US$ 500 million or more. The fact that the Reko Diq project is the first to be identified as a "Qualified Investment" under the FI Bill 2022 does not render the statute as "person-specific." Furthermore, to the extent that legislative amendments in the Second Schedule tothe FI Bill 2022 pertain specifically to the Reko Diq project, such statutory provisions and mechanisms are the norm in a number of other fiscal statutes, including, but not limited to the Income Tax Ordinance, 2001. Under the terms of the FI Bill 2022 such specific exemptions are required either to be legislatively promulgated or legislatively ratified. The proposed FI Bill 2022 will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures.

Per Yahya Afridi, J. giving his own opinion on the Reference.

(b) Foreign Investment (Promotion and Protection) Act (XXXV of 2022)---

----S. 3, Second & Third Sched. & Preamble---Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act (XVI of 2022), Preamble---Constitution of Pakistan, Art. 186---Advisory jurisdiction of the Supreme Court---Scope---Matters of public policy---Reko Diq mining project---Settlement/implementation agreement signed between the Government of Pakistan/Government of Balochistan and two international firms (Antofagasta PLC and Barrick Gold Corporation) for the revival of the stalled Reko Diq mining project---Reference by the President under Article 186 of the Constitution seeking the Supreme Court's opinion on whether an earlier judgment of the Supreme Court reported as Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641) or the laws, public policy or Constitution prevented the federal and provincial governments from entering into the Implementation Agreement and the Definitive Agreements [Agreements] regarding the Reko Diq mining project or affected their validity?---His Lordship opined that part of the question referred by the President as to whether 'public policy' prevented the Government of Balochistan and the Government of Pakistan from entering into the Implementation Agreement and the Definitive Agreements or affected their validity ought not to be responded to by the Supreme Court in its Advisory Jurisdiction---Given the scope and extent of the Advisory Jurisdiction of the Supreme Court, the Supreme Court should have abstained from stating its opinion on part of the question relating to public policy for two reasons: first, the said part of the question did not cross the threshold of being a 'question of law', and that too as a jurisdictional pre-condition for invoking the Advisory Jurisdiction of the Supreme Court under Article 186 of the Constitution; and second, that matters of policy were best left to the other organs of the State -- the Executive and the Legislature -- to respect the fundamental principle of 'Trichotomy of Power' as enshrined in the Constitution---Courts should be cautious of dabbling in policy matters, as these involve the intricate interplay of technical and economic elements requiring the balancing of competing interests, a forte of the functionaries of the Executive or the elected members of the Legislature, and not the unelected judges of the superior Courts---When one tests the legal validity of the Implementation Agreement and the Definitive Agreements on the touchstone of public policy, what emerges is not simply a 'question of law', but a web of complex commercial mining transactions, transcending international borders, thus giving rise to 'polycentric issues'---Such complex transactions do not cross the threshold of being justiciable as 'questions of law' under the Advisory Jurisdiction of the Supreme Court.

Driefontein Consolidated Mines Ltd. Gaison (1901) 17 T.L.R. 604; Fender v. Mildmay (1937), 3 All England Reports 402; Morey v. Doud (1957) 354 US 457; Elahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582; Akhtar Hassan v. Federation of Pakistan 2012 SCMR 455; Indian Ex-Servicemen Movement and others v. Union of India (UOI) and others (2022) 7 SCC 323; Balco Employees Union v. Union of India AIR 2002 SC 350; International Trade Administration Commission v. SCAW South Africa (Pty) Ltd. [2010] ZACC 6 and Minister of Health and others v. Treatment Action Campaign and others [2002] ZACC 16 ref.

(c) Constitution of Pakistan---

----Art. 186---Opinion rendered by the Supreme Court in its Advisory jurisdiction under Article 186 of the Constitution---Scope---Such an opinion is not only legally binding but also final.

Hisba Bill Reference's case PLD 2005 SC 873 ref.

Per Jamal Khan Mandokhail, J. giving his own opinion on the Reference.

(d) Foreign Investment (Promotion and Protection) Act (XXXV of 2022)---

----S. 3, Second & Third Sched. & Preamble---Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act (XVI of 2022), Preamble---Constitution of Pakistan, Art. 186---Reko Diq mining project---Settlement/implementation agreement signed between the Government of Pakistan/Government of Balochistan and two international firms (Antofagasta PLC and Barrick Gold Corporation) for the revival of the stalled Reko Diq mining project---Reference by the President under Article 186 of the Constitution seeking the Supreme Court's opinion on whether an earlier judgment of the Supreme Court reported as Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641) or the laws, public policy or Constitution prevented the federal and provincial governments from entering into the Implementation Agreement and the Definitive Agreements [Agreements] regarding the Reko Diq mining project or affected their validity?; and, whether, if enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 ('FI Bill 2022') be valid and constitutional?---His Lordship opined that in respect of the President's first question, the record reflected that the parameters set out in the judgment passed in Abdul Haque Baloch case were properly addressed and the requirements under the relevant provisions of law and the Balochistan Mineral Rules, 2002 ("BMR, 2002') were fulfilled---Agreements were in line with relevant provisions of law and rules---Reconstitution of the Reko Diq project would enable the newly constituted Reko Diq Mining Company (Private) Limited ("RDMC") to restart work at Reko Diq, which would be beneficial for all the stakeholders---It will also facilitate and attract local and foreign investment, create employment opportunities, and uplift the backward areas of the Province of Balochistan---As far as the President's second question with regard to the constitutionality and validity of the proposed Foreign Investment (Protection and Promotion) Bill, 2022 ("FI Bill, 2022") was concerned, His Lordship answered it in the affirmative---Government of Balochistan has established the Balochistan Mineral Resources Limited ("BMRL") which has already been assigned a 15% share in the RDMC---Purpose of establishing BMRL is to secure the ownership rights of the minerals of the Province of Balochistan by entering into joint venture agreements with any potential investors, local or foreign---Thus, any future agreement with regard to mineral resources in the Province of Balochistan where significant data and information regarding a potential mining site is available, may be through the BMRL by way of a competitive bidding process, being the ordinary rule and the best option under the circumstances---However, in case of limited information regarding mineral deposits, the Government of Balochistan may adopt different licensing procedures, keeping in view the relevant provisions of law, rules, regulations, and policies---Additionally, to reach a more comprehensive and favourable agreement in the future with respect to large-scale mining of precious minerals, the Government of Balochistan ought to get assistance from reputable international mineral experts, financial and legal advisors, for their proper assessment in terms of their quantity and evaluation, and for the execution of compact, realistic, and workable agreements---This will not only safeguard the interests of the Province but will also reduce the likelihood of dispute(s)---Besides, with regard to large-scale mining, especially for precious minerals, the Government of Balochistan may also get input from and the endorsement of the Provincial Assembly---It would be appropriate for the Government of Pakistan and the Government of Balochistan to take initiatives and adopt measures by allocating a fixed portion of the proceeds of their shares and royalty arising from the Reko Diq project for the benefit of future generations in a wealth fund, on terms and conditions to be determined by the Govern-ment of Balochistan.

(e) Constitution of Pakistan---

----Art. 172(3)---Constitutional position on mineral resources---Under Article 172 of the Constitution, minerals (except for mineral oil and natural gas) if located in a Province shall vest exclusively with the Government of that Province, and in any other case, with the Federal Government---Respective Governments are guardians of such resources and have exclusive rights to freely exploit, manage, control, and dispose of the same, subject to the applicable laws, rules, regulations, and policies, in a manner beneficial to their peoples---Thus, the Constitution holds and protects the Provinces' Permanent Sovereignty to freely exploit and determine the use and disposal of their natural resources---It is, therefore, the obligation of the Federal Government to accept and respect the property rights of each Province, as guaranteed by the Constitution---Since minerals are provincial subjects, therefore, the Government of Pakistan must not undermine and encroach upon the jurisdiction of the Provinces, nor should the rights of their people be infringed---While entering into international agreements governed by Bilateral Investment Treaties in respect of minerals, the role of the Government of Pakistan is restricted to the extent of facilitating, advising, and coordinating with the Province concerned, with the utmost care as to avoid any violation under the international commitments---In order to properly explore, manage, control, and dispose of mines and minerals, the Provinces which have not enacted statutes and framed rules and regulations, may do so.

(f) Constitution of Pakistan---

----Art.172(3)---Mineral resources---Sustainable mining---Intergenerational Equity Principle---Scope---Intergenerational Equity Principle is one of the important aspects concerning the use and rights of future generations---It states that every generation holds the Earth in common with members of the present generation and with other generations, past and future---This principle is the foundation of sustainable development and articulates a concept of fairness among generations in the use and conservation of the environment and its natural resources---Natural resources are also to be inherited by future generations, therefore, the Federal as well as the Provincial Governments being the trustees on behalf of their people must not ignore the rights of future generations when taking any decision in this behalf---As such, mining must be performed in a sustainable manner and the proceeds arising out of their respective shares may be allocated, utilized, and invested in such way to ensure that future generations receive the benefit of their inheritance---One of the options in this behalf or otherwise for each Government is to adopt an investment strategy such as the establishment of a Sovereign Wealth Fund---They may park and invest a fixed portion of revenue arising from the proceeds of mining projects in the said fund.

IN ATTENDANCE:

For the Federation

Ch. Aamir Rehman, Addl, Attorney General assisted by: Barrister M. Usama Rauf, Zohair Waheed, Miss Maryam Rashid and Miss Faryal Shah Afridi, Advocates.

For PPL/OGDCL/Government:

Holdings (Pvt.) Ltd.

Barrister Jahanzeb Awan, Advocate Supreme Court assisted by: Umar Shahzad Abbasi, Abdullah Raza and Shabbir Harianwala.

For Government of Balochistan:

Salahuddin Ahmed, Advocate Supreme Court, M. Asif Reki, AG, Balochistan and M. Ayaz Khan Swati, Addl. A.G, Balochistan.

For PBC

Mansoor Usman Awan, Advocate Supreme Court.

For Balochistan Bar

Amanullah Kanrani, Advocate Supreme Court.

Amici Curiae

Salman Akram Raja, Advocate Supreme Court, Dr. M. Farogh Naseem, Advocate Supreme Court and Zahid F. Ibrahim, Advocate Supreme Court.

For Barrick Gold Corporation:

M. Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by: S.M. Faisal Hussain Naqvi, Advocate Supreme Court, Iftikhar-ud-Din Riaz, Advocate Supreme Court, Saad M. Hashmi, Advocate, Kh. Aziz Ahsan, Advocate, Yawur Mukhtar, Advocate and Kh. Azeem, Advocate.

White and Case:

Rabeeca Campbell and Kamran Ahmed (Via Vide-Link).

Lazard:

Spiro Youakim Pierre Cailletea Xovier de Regloix (Via Video-Link).

Dates of hearing: 25th October, 1st, 2nd, 7th - 10th, 14th - 17th, 21st - 24th, 28th and 29th November, 2022.

OPINION\

For detailed reasons to be recorded later and subject to such amplification and elaboration as may be considered necessary, Presidential Reference No.2 of 2022 is answered as follows:

1. On 29.07.1993 the Balochistan Development Authority (BDA) entered into the Chaghi Hills Exploration Joint Venture Agreement (CHEJVA) with a foreign investor having 75% shareholding and BDA having 25% shareholding plus 2% royalty. Subsequently, in the year 2006, the foreign investor was succeeded by Tethyan Copper Company Pty. Ltd., Australia (TCCA). TCCA in turn was acquired by Barrick Gold Corporation (Barrick) and Antofagasta in equal shares. Under CHEJVA Barrick and its partner had the exclusive right to prospect and explore for copper and gold in the Rcko Diq area.

2. Between 2006 and 2011, TCCA invested in mineral exploration and developed detailed plans for mining at Reko Diq. However, on 15.11.2011, the licensing authority of the Government of Balochistan (GoB) declined the mining lease application submitted by the project company of TCCA. Shortly thereafter, on 28.11.2011 TCCA initiated arbitration proceedings under the Pak-Australia Bilateral Investment Treaty (BIT) against the Government of Pakistan (GoP), which claim was registered as an arbitration case with the International Centre for Settlement of Investment Disputes (ICSID). TCCA also commenced arbitration proceedings against GoB at the International Chamber of Commerce (ICC) for claims arising out of the CHEJVA. Meanwhile a Writ Petition filed by a Pakistani citizen challenging CHEJVA was dismissed by the High Court of Balochistan on 26.06.2007. Leave to appeal to the Supreme Court against the said judgment was clubbed with other Constitution Petitions. All the matters were disposed of by the Supreme Court vide short order dated 07.01.2013 setting aside the judgment of the High Court of Balochistan. The detailed reasons are reported as Abdul Haque Baloch v. Government of Balochistan (PLD 2013 SC 641). As a result, CHEJVA was declared void, inter aria, on the ground that it had been entered into without lawful authorization and was a non-transparent agreement that failed to comply with the regulatory provisions of law regarding mining operations in the Province.

3. The ICSID arbitration continued in the meanwhile and on 10.11.2017 the ICSID Tribunal rendered its decision on jurisdiction and liability. On 12.07.2019 the ICSID Tribunal announced its final award with TCCA receiving approximately US$ 5.9 billion in damages, pre-award interest and costs incurred by it. Further litigation ensued as TCCA made efforts for enforcing the award in different jurisdictions.

4. In the above background, the GoP and the GoB commenced talks with the TCCA. After lengthy negotiations spanning over three years between the representatives of the two Governments and the TCCA Board, a settlement was proposed. According to the settlement the financial liability of the GOP under the ICSID award was agreed to be settled under the terms and conditions incorporated in a set of agreements executed between the parties. We do not propose nor are we required to comment on the commercial terms settled between the parties which have been agreed after extensive negotiations between GoP/GoB and Barrick/Antofagasta. In such negotiations GoP/GoB had the assistance of independent international financial, technical and legal experts in addition to Pakistani experts. The negotiations were conducted by the duly authorized representatives of the parties who had been instructed by the competent authorities. Simultaneously, the ICC proceedings have also matured to a point of decision on liability and quantum with a likely award (as per the advice of international legal and financial consultants of GoP) of approximately US$ 2 to 3 billion expected in favour of TCCA. As a result, in addition to the actual determined liability of US$ 5.9 billion plus interest (on the basis of the ICSID Award), another US$ 2 to 3 billion award is in the pipeline to be paid to Barriek and Antofagasta by the GoP and GoB. We have been informed that as part of the settlement, the parties have agreed that Antofagasta shall be paid an amount of US$ 900 million which has since been deposited in an Escrow Account by the GoP. Upon fulfillment of the conditions precedent on or before December 15, 2022 Antofagasta shall be entitled to the amount in the Escrow Account. On receipt of the said amount any and all rights of Antofagasta under the ICSID award, the ICC proceedings and any and all claims of Antofagasta against GoP/GoB directly or indirectly arising out of or having any nexus or connection with the Rcko Diq project shall stand finally and conclusively extinguished with no further claims either against Barrick or GoP/GoB. It was also agreed between the parties that under the settlement the Reko Diq project will be reconstituted with Barrick being the operator and TCCA holding 50% of the equity with the remaining 50% of the equity being held by local Pakistani entities. We have been informed that the 50% local interest will be held as follows:

(i) GoB holding a 10% free carried interest;

(ii) GoB holding a 15% fully participating interest indirectly;

(iii) GoB receiving royalty at the rate of 5%; and

(iv) GoP or designated Pakistani entities holding the remaining 25% fully participating interest.

The parties also agreed to a package of negotiated fiscal measures such as royalties and taxes applicable to the project that will be stabilized/ granted for a specific period. Following the restructuring of the Reko Diq project, Antofagasta will be paid US$ 900 million plus accrued interest by the GoP and will exit the project by transferring its entire interest in TCCA to Barrick. The GoP, GoB and both Barrick and Antofagasta have agreed that all the disputes that have arisen from the Reko Diq project which are the subject matter of litigation/Arbitration Award(s) anywhere in the world shall finally and conclusively stand resolved as soon as the agreements which have been placed on record and the conditions precedent mentioned therein are met on or before December 15, 2022, and any or all claims including the outstanding ICSID award and the anticipated ICC award shall stand settled without any further claim of any nature from either side. One of the conditions precedent for finalization of the proposed settlement is the President of Pakistan seeking an opinion from this Court on the points noted in the Implementation Agreement.

1. In light of the above background the President of Pakistan has referred the following questions for consideration and opinion of this Court:

"i) Whether the earlier judgment of this Honourable Court reported as [Maulana] Abdul Haque Baloch v. [Govornment of Balochistan] PLD 2013 SC 641 or the laws, public policy or Constitution of Pakistan prevent the GoB and the GoP from entering into the Implementation Agreement and the Definitive Agreements [Agreements] or affect their validity?

ii) If enacted, would the proposed Foreign Investment (Protection and Promotion) Bill, 2022 [FI Bill 2022] be valid and constitutional?"

1. We have heard the learned Additional Attorney General for Pakistan, the learned counsel appearing on behalf of Barrick and the Advocate General Balochistan assisted by Mr.Salahuddin Ahmed, ASC. We also appointed Mr. Farogh Naseern, ASC, Mr. Zahid Ibrahim, ASC and Mr. Salman Akram Raja, ASC as amici curiae who have also ably assisted the Court on the legal and constitutional issues involved in the matter. Mr. Amanullah Kanrani, ASC also submitted written submissions on behalf of the Balochistan Bar Council. We have also heard Messer Spiro Youakim, Pierre Cailletea and Xavier de Regloix, representatives of Lazard as well as Ms. Rabecca Campbell and Mr. Kamran Ahmed of White and Case (via video link) who were the Financial Consultants/ Legal Advisors of the GoP/GoB respectively during negotiations with Barrick/ Antofagasta .

2. On hearing the parties, we find that the following issues arise from the Reference:

i) Whether the Constitution places any bar on the disposal of public assets through a negotiated agreement?

ii) Whether the Regulation of Mines and Oilfields and Mineral Development (Government Control) (Amendment) Act, 2022 (2022 Act) is within the legislative competence of the Balochistan Assembly?

iii) Whether the process through which the GoB is entering into the Agreements is fair, transparent, reasonable and in accordance with law?

iv) Whether the terms of the Agreements violate or are in conflict with the judgment of this Court in Abdul Haque Baloch's case (PLD 2013 SC 641)?

1. In light of our answers to the foregoing issues which raise legal and constitutional questions, the first question referred to this Court by the President of Pakistan, reproduced in paragraph 6(i) above is answered in the negative for the following reasons:

i) It is settled law that while disposal of public assets through a competitive process is the ordinary rule, it is not an invariable rule. The Constitution does not forbid disposal of public assets other than through a competitive process so long as such disposal has the support of the law and is justified on rational grounds, as is the case here.

ii) Ever since the enactment of the Constitution, legislative competence in deal with mines and mineral development (other than minerals used for nuclear energy) has rested exclusively with the Provincial Assemblies. Therefore, the Provincial Assemblies of Sindh and Khyber Pakhtunkhwa have already enacted comprehensive statutes dealing with mines and mineral development (other than minerals used for generation of nuclear energy). It follows from the legislative ambit of the Provincial Assemblies under the Constitution that they are competent to "alter, amend or repeal" any existing law to the extent that it deals with mines and mineral development. As far as the amendment incorporated in the Regulation of Mines and Oil fields and Mineral Development (Government Control) Act, 1948 (1948 Act) is concerned, which has been introduced by way of the 2022 Act, to the extent that the said statute applies to the Province of Balochistan it is intra vires the Constitution and the rules framed by the GoB under Section 2 of the 1948 Act. The 2022 Act can therefore be treated as a standalone provision that operates alongside the l948 Act and the aforesaid rules insofar as the subject of mines and minerals development (other than oil fields and mineral resources necessary for generation of nuclear energy) falls within the exclusive legislative competence of the provincial legislature.

iii) The Balochistan Cabinet has approved the decision to enter into the Agreements on the basis of a detailed summary, a copy of which has been filed with this Court. The summary considers 'public interest' inherent in the negotiated agreement and since the Agreements pertain to an 'international obligation' in terms of the 2022 Act (i.e., Pakistan's obligation to make payment of approximately US$ 6 billion under an ICSID award dated 12.07.2019), the formal obligations required under the 2022 Act for entering into a negotiated agreement stand fulfilled.

iv) The Federal Government has placed on record documents to show that an Apex Committee headed by the Prime Minister of Pakistan and attended by all the relevant stakeholders (including the Chief Minister and Chief Secretary of Balochistan) had carefully negotiated the terms of the Agreements with the help of international financial advisors, international legal advisors, international mining experts and international tax advisors in addition to independent Pakistani advisors. As noted above, the international advisors also addressed the Court directly during proceedings in-person and through video link, and answered all the queries raised by the Court. Prima facie, the Agreements cannot be faulted for lack of due diligence on the part of State authorities.

v) The Agreements do not, prima facie, violate any of the findings recorded in the Abdul Haque Baloch case (PLD 2013 SC 641). Unlike CHEJVA, the decision to enter into the Agreements is backed by law and has been taken on the basis of careful negotiations during which authorized representatives of GoP/GoB were duly assisted by independent international consultants.

Further, the obligation to act in accordance with "Applicable Law" contained in the Agreements as well as the obligations of the Licensee to apply for consents in accordance with law and satisfy all conditions prescribed by the Applicable Law means that the statutory discretion of public functionaries is not being fettered by the Agreements.

vi) We have also been informed that the Provincial Assembly of Balochistan was given a detailed in-camera briefing and was taken into confidence regarding the entire project and the terms and conditions of the proposed settlement between the parties were accepted without any objections being raised by the chosen representatives of the people of Balochistan.

vii) On our specific query relating to environmental considerations, particularly in relation to the use of water, we have been informed that the Agreements contain no exemption from Pakistan's environmental laws. Rather, the Agreements require Barrick to act in accordance with both international environmental standards and domestic laws.

1. The second question is answered in the affirmative for the following reasons:

i) Article 144 of the Constitution allows Provincial Assemblies to empower Parliament to pass a law dealing with issues within the legislative competence of the Provinces. Similarly, Article 147 of the Constitution allows the Provinces to entrust, either conditionally or unconditionally, to the Federal Government or to its officers, functions in relation to any matter to which the executive authority of the Province extends.

ii) We have been provided the draft resolutions proposed to be passed by the Provincial Assemblies of Sindh and Balochistan to empower Parliament to enact the proposed FI Bill 2022. Provided that the draft resolutions are passed, Parliament will be competent to enact the FI Bill 2022, including the notified exemptions specified in the Bill and the protected benefits listed in the Third Schedule.

iii) The provisions of Section 3 of the FI Bill 2022 do not in our opinion fetter the sovereignty of Parliament. It appears that the FI Bill 2022 represents a version of the Protection of Economic Reforms Act, 1992. It allows the Federal Government to notify certain benefits which may not be withdrawn to the prejudice of an investor. We have also been informed and there is consensus of all the learned counsel in this matter that Parliament remains at liberty to repeal the entire PI Bill 2022, if it so desires, of course subject to the corresponding legal consequences that may arise from such repeal.

On our query, we have also been informed that most of the exemptions proposed to be granted are already available under the regulatory regimes pertaining to export Processing Zones and Special Technology Zones. Further, the exemptions being granted from the operation of Labour Laws do not denude the labour force of their rightful entitlement to fair wages, allowances and guarantees/benefits provided by law. The learned counsel for Barrick has categorically assured us that the applicable minimum wage laws will be fully observed and the Agreements expressly provide that all operations will be carried out in accordance with International Mining Standards which are defined to include compliance with IFC Performance Standards, to the extent applicable. It has been pointed out to us that the IFC Performance Standards contain detailed provisions pertaining to labour rights. Barrick has also committed to act in accordance with the United Nations Guiding Principles on Business and Human Rights. We have also been assured that Barrick will contribute substantially towards Corporate Social Responsibility by dedicating a percentage of its returns towards provision of fresh drinking water, health facilities, schools and local infrastructure to the people of Balochistan. In addition, most of the labour force will be employed from amongst the local population of the Province. In addition, programs for development of skills will also be put in place.

1. A point that emerges from the Reference filed before us is whether the PI Bill 2022 can be challenged on the ground that it is a person specific law. We note that the FI Bill 2022 is not limited exclusively to the Reko Diq project. Instead, it provides a framework for grant of investment incentives which will, subject to the provisions of the Bill, be available to all investments of US$ 500 million or more. The fact that the Reko Diq project is the first to be identified as a "Qualified Investment" under the FT Bill 2022 does not render the statute as "person-specific." Furthermore, to the extent that legislative amendments in the Second Schedule to the FI Bill 2022 pertain specifically to the Reko Diq project, such statutory provisions and mechanisms are the norm in a number of other fiscal statutes, including, but not limited to the Income Tax Ordinance, 2001. Under the terms of the FI Bill 2022 such specific exemptions are required either to be legislatively promulgated or legislatively ratified.

2. We also note that the proposed FI Bill 2022 will not only pave the way for implementation of the Reko Diq project in its present form but will also facilitate and encourage direct foreign investment in similar mining projects and other high capital intensive industries in which direct foreign investment is required to be encouraged through guarantees assured by laws and regulatory measures.

3. To sum up we are of the view that the parameters set out in Abdul Haque Baloch's case (PLD 2013 SC 641) and the reasons for the same, have been duly addressed by the Federal and Provincial Governments. The process for the reconstitution of the Reko Diq project has been undertaken transparently and with due diligence. The Agreements are being signed by authorities duly authorized and competent to do so under the law. To ensure transparency and fairness, expert advice on the financial, technical and legal issues involved has been sought from both local as well as independent international experts/consultants on the terms settled in the Agreements. The Agreements have been put in place after due deliberation and have not been found by us to be unconstitutional or illegal on the parameters and grounds spelt out in Abdul Haque Baloch's case ibid. Likewise, the rationale, basis, legality and vires of the FE Bill 2022 as well as the amendments to its schedules and annexures and the amendments incorporated through SROs, provided the resolutions are passed by the Sindh and Balochistan Provincial Assemblies and the Bill is passed by the Parliament after following due process, shall be duly enacted as required under the Constitution. And such laws and regulatory measures do not in any manner violate the Constitution or the Law.

The Reference is accordingly answered in the aforenoted terms.

Sd/-

Chief Justice

Sd/- Sd/-

Judge Judge

I agree subject to my clarification that I may not respond to question No.1 to the extent of "public policy." My detailed reasons shall follow.

Sd/- Sd/-

P L D 2024 Supreme Court 1028

Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Musarrat Hilali, JJ

Civil Appeal No. 982 of 2018

(On appeal against the order dated 06.07.2018 passed by the Lahore High Court, Lahore in Writ Petition No. 224129 of 2018)

HAMZA RASHEED KHAN---Appellant

Versus

ELECTION APPELLATE TRIBUNAL, LAHORE HIGH COURT, LAHORE and others---Respondents

Civil Appeal No. 984 of 2018

(On appeal against the order dated 11.07.2018 passed by the Lahore High Court, Lahore in Writ Petition No. 222868 of 2018)

MUMTAZ AHMAD---Appellant

Versus

FAZAL MEHMOOD and others---Respondents

Civil Appeal No. 880 of 2015

(On appeal against the order dated 21.08.2015 passed by the Election Tribunal, Multan, in Election Petition No.352 of 2013 ECP, 25 of 2013 ETM)

Ch. MUHAMMAD ARIF HUSSAIN---Appellant

Versus

FAYYAZ AHMED KHAN GHOURI and others---Respondents

C.M.A. No. 6370 of 2017 in Civil Appeal No. 880 of 2015

[For setting aside ex -parte order]

C.M.A. No. 7534 of 2017 in Civil Appeal No. 880 of 2015

[For setting aside ex -parte order]

Civil Appeal No. 1946 of 2023

(On appeal against the order dated 19.10.2023 passed by the High Court of Sindh, Karachi in C.P. No. D-1082 of 2023).

MUHAMMAD KHAN JUNEJO---Appellant

Versus

The APPELLATE TRIBUNAL FOR SINDH and others---Respondents

Civil Petition for Leave to Appeal No. 2680 of 2023

(On appeal against the order dated 04.05.2023 passed by the Lahore High Court, Lahore, in Writ Petition No. 27043/2023)

KASHIF MEHMOOD---Petitioner

Versus

MEHMOOD AHMED and others---Respondents

Civil Appeal No. 981 of 2018

Sardar CONFCIUS IMAM QASRANI---Appellant

Versus

Sardar Mir BADSHAH KHAN QAISARANI and another---Respondents

C.M.A. No. 10919 of 2023 in Civil Appeal No.981 of 2018

[Concise statement from Ch. Javaid Ahmad]

C.M.A. No. 10920 of 2023 in Civil Appeal No.981 of 2018

[Concise statement from Yousaf Ayub Khan]

C.M.A. No. 10921 of 2023 in Civil Appeal No.981 of 2018

[Concise statement from Behram Khan]

C.M.A. No. 10939 of 2023 in Civil Appeal No.981 of 2018

[Concise statement from Muhammad Aijaz Ahmed Chaudhry]

C.M.A. No. 2 of 2024 in Civil Appeal No.981 of 2018

[Concise statement from Sardar Mir Badshah Khan Qiasrani]

C.M.A. No. 3 of 2024 in Civil Appeal No.981 of 2018

[Impleadment on behalf of Rashda Yaqub]

C.M.A. No. 4 of 2024 in Civil Appeal No.981 of 2018

[Concise statement from Sardar Mir Shoaib Nosherwani]

C.M.A. No. 5 of 2024 in Civil Appeal No.981 of 2018

[Concise statement from Mian Zia-ur-Rehman]

C.M.A. No. 6 of 2024 in Civil Appeal No.981 of 2018

[Concise statement from Jahangir Khan Tareen]

C.M.A. No. 13 of 2024 in Civil Appeal No.981 of 2018

[Concise statement from Attorney-General for Pakistan]

C.M.A. No. 18 of 2024 in Civil Appeal No.981 of 2018

[Impleadment on behalf of Chaudhry Nazir Ahmed Jatt]

Civil Appeal No. 985 of 2018

Sardar CONFCIUS IMAM QASRANI---Appellant

Versus

Sardar Mir BADSHAH KHAN QAISARANI and another---Respondents

C.M. Appeal No. 22 of 2022 in C.P.NIL of 2022

(On appeal against the order dated 24.02.2022 of Assistant Registrar (Civil-II)).

SUPREME COURT BAR ASSOCIATION OF PAKISTAN and others---Appellants

Versus

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

C.M. Appeal No. 135 of 2022 in C.P.NIL of 2022

MOHABBAT KHAN---Appellant

Versus

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

Constitution Petition No. 40 of 2022

Mir MUHAMMAD AMIN UMRANI---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

Civil Appeals Nos. 982, 984 of 2018, 880 of 2015, C.M.As. Nos. 6370, 7534 of 2017, Civil Appeal No. 880 of 2015, Civil Appeal No. 1946 of 2023, Civil Petition for Leave to Appeal No. 2680 of 2023, Civil Appeal No. 981 of 2018, C.M.As. Nos. 10919, 10920, 10921, 10939 of 2023, C.M.As. Nos. 2, 3, 4, 5, 6, 13 and 18 of 2024 in Civil Appeal No. 981 of 2018, Civil Appeal No. 985 of 2018, C.M. Appeals Nos. 22, 135 of 2022 in C.P. Nil of 2022 and Constitution Petition No. 40 of 2022, decided on 25th March, 2024.

Per Qazi Faez Isa, CJ.; Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar and Musarrat Hilali, JJ. agreeing; Yahya Afridi, J. dissenting [Majority view]

(a) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review---Scope---Neither the High Courts nor the Supreme Court can rewrite any law, much less the Constitution, nor can they insert anything therein---Constitution was carefully crafted by its framers and the domains of the Judiciary and that of the Legislature were kept separate---High Courts and the Supreme Court may strike down any law which is unconstitutional, but they are not empowered to legislate.

(b) Interpretation of Constitution---

----Vague provision, interpretation of---Courts of law deal with tangible concepts, and if a law or a constitutional provision is vague, it has to be interpreted as per well established rules of construction, in favour of the citizen---Courts should crystalize ambiguities and avoid leaning into them.

(c) Constitution osf Pakistan---

----Arts. 10A, 17 & 62(1)(f)---Elections Act (XXXIII of 2017), S. 232(2)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Life time disqualification under Article 62(1)(f) of the Constitution---Constitutionality---Interpretation of Article 62(1)(f) of the Constitution---View taken in the case reported as Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case) and in all those cases in which the returning officers, election tribunals, the High Courts and the Supreme Court had issued declarations pursuant to Article 62(1)(f) of the Constitution and held such disqualification to be permanent/life time are not sustainable---Parliament has enacted section 232(2) in the Elections Act, 2017 stipulating that disqualification under Article 62(1)(f) of the Constitution cannot exceed five years, and there is no need to examine its validity in the present case---Interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution---Decision in the Sami Ullah Baloch case does not conform to the Constitution and is accordingly overruled.

i. Article 62(1)(f) of the Constitution is not a self-executory provision as it does not by itself specify the court of law that is to make the declaration mentioned therein nor does it provide for any procedure for making, and any period for disqualification incurred by, such declaration.

ii. There is no law that provides for the procedure, process and the identification of the court of law for making the declaration mentioned in Article 62(1)(f) of the Constitution and the duration of such a declaration, for the purpose of disqualification thereunder, to meet the requirements of the Fundamental Right to a fair trial and due process guaranteed by Article 10A of the Constitution.

iii. The interpretation of Article 62(1)(f) of the Constitution in imposing a lifetime disqualification upon a person through an implied declaration of a court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of the said Article and amounts to reading into the Constitution.

iv. Such reading into the Constitution is also against the principle of harmonious interpretation of the provisions of the Constitution as it abridges the Fundamental Right of citizens to contest elections and vote for a candidate of their choice enshrined in Article 17 of the Constitution, in the absence of reasonable restrictions imposed by law.

v. Until a law is enacted to make its provisions executory, Article 62(1)(f) of the Constitution stands on a similar footing as Article 62(1)(d), (e) and (g), and serves as a guideline for the voters in exercising their right to vote.

vi. The view taken in Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 62(1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled.

vii. Section 232(2) added in the Elections Act, 2017, vide the Elections (Amendment) Act, 2023 promulgated on 26 June 2023, prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and has also made such declaration subject to the due process of law. This provision is already in field, and there remains no need to examine its validity and scope in the present case.

Sami Ullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405 overruled.

Per Syed Mansoor Ali Shah, J.; agreeing with Qazi Faez Isa, CJ. [Majority view]

(d) Constitution of Pakistan---

----Arts. 4, 10A, 17(2) 62(1)(f) & 175(2)---Elections Act (XXXIII of 2017), S. 232(2)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Life time disqualification under Article 62(1)(f) of the Constitution---Constitutionality---Interpretation of Article 62(1)(f) of the Constitution---Article 62(1)(f) of the Constitution is not a self-executory provision and is to be made operative through enacting a law that specifies the court of law which is competent to make the declaration mentioned in Article 62(1)(f) and provides for the manner and procedure of making such declaration---Until such law is enacted, Article 62(1)(f) only serves as a guideline for the voters in exercising their right to vote---Neither the Constitution nor any law specifies the court of law that is competent to make the declaration mentioned in Article 62(1)(f) of the Constitution and provides for the manner and procedure of making such declaration---Decision given in the case reported as Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case") that the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations is a declaration mentioned in Article 62(1)(f) and that such declaration has a lifelong disqualifying effect, is not based on any constitutional or statutory provision but rather amounts to legislating and reading into the Constitution and is therefore found to be 'plainly and palpably wrong'---Thus, such statement of law made in Sami Ullah Baloch case is not correct and is therefore overruled.

Disqualifying a candidate from contesting elections should be viewed by courts with caution and circumspection, recognizing it as a severe restriction on the democratic right to vote and contest elections. Disqualification must be based in law, not on surmises or inferences. This principle ensures that disqualification is applied uniformly, fairly and transparently, in accordance with established legal standards rather than arbitrary decisions. Character of a candidate should generally not be judged by courts in the absence of specific laws dictating such criteria for eligibility. In democracies, the assessment of a candidate's character is primarily a matter for the voters to consider based on the information available to them. In democratic societies, the emphasis is on ensuring that the electoral process remains open, fair and reflective of the society's values, rather than allowing judicial or governmental overreach to dictate the outcomes of elections or to unduly influence the eligibility of candidates based on subjective criteria.

Article 62(1)(f) of the Constitution is not a self-executory provision. Declaration mentioned in Article 62(1)(f) is to be made by a court of law that is conferred jurisdiction, and in accordance with the procedure provided, by or under the law enacted by the legislature. There is, at present, no such law. Until such law is enacted to make its provisions executory, Article 62(1)(f) stands on a similar footing as Article 62(1)(d), (e) and (g), and only serves as a guideline for the voters in exercising their right to vote.

While interpreting Article 62(1)(f) of the Constitution, the view taken in Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) ('the Sami Ullah Baloch case') did not notice the provisions of Article 175(2), Article 4 and Article 10A; did not give due effect to the provisions of Article 17(2); and did not read the provisions thereof in harmony with the closely related Article 63(1)(h) of the Constitution as it failed inter alia to appreciate:

(i) that as per Article 175(2), the jurisdiction to make the declaration mentioned in Article 62(1)(f) can only be conferred on a court of law by the Constitution or by or under any law;

(ii) that as per Article 4, no action detrimental to the reputation of a person, such as making the declaration mentioned in Article 62(1)(f), can be taken except in accordance with law, which requires that there must be a law specifying those acts of a person that may entail the making of the declaration mentioned in Article 62(1)(f);

(iii) that as per Article 10A, the person in respect of whom such declaration is to be made has a right to a fair trial and due process, which requires that the manner and procedure for seeking and defending such declaration must be specified by law;

(iv) that as per Article 17(2), the right to contest the election for the office of a member of Parliament can only be curtailed by restrictions imposed by law and that those restrictions must also be reasonable; and

(v) that as per Article 63(1)(h), the acts of a person that may also justify the making of a declaration as mentioned in Article 62(1)(f) entail disqualification only for a period of five years, recognizing the possibility of reformation in the character of persons whereas the imposition of lifetime disqualification even takes away the incentive to reform one's character.

Sami Ullah Baloch case sidestepped the above-mentioned cherished principle of harmonious interpretation. The most perplexing aspect of Sami Ullah Baloch case is that although it stated that 'since the two provisions [Article 62(1)(f) and Article 63(1)(h)] pertain to the same subject matter, therefore, they ought to be construed harmoniously', it failed to adhere to this principle. It overlooked the fact that as per Article 63(1)(h), a conviction and less than a two-year sentence for an offence involving moral turpitude does not entail a disqualification, even for a single day. Therefore, while interpreting Article 62(1)(f), an implied intention that directly conflicts with the express constitutional mandate cannot be attributed to the constitution-makers, by holding that they intended for a civil declaration for the same conduct to have a lifelong disqualifying effect.

In interpreting Article 62(1)(f) of the Constitution, Sami Ullah Baloch case though mentioned the Islamic concept of repentance and reformation (tawba and islah) but did not address the same and determine its scope and applicability to the duration of the disqualification incurred by the declaration mentioned in Article 62(1)(f). It failed to appreciate that life time disqualification amounts to condemnation in perpetuity and shuts the door to repentance and reformation (tawba and islah), which is not consistent with the Islamic injunctions as laid down in the Holy Quran.

Qu'ranic verses on the subject include: surah 2, al-Baqarah, verse 160; surah 4, al-Nisa, verse 146; surah 6, al-An'am, verse 54; surah 7, al-Aa'raf, verse 153; and surah 25, al-Furqan, verse 70; Iftikhar Bar v. Chief Election Commissioner PLD 2010 SC 817 and Faisal Vawda v. E.C.P. 2023 SCMR 370 ref.

Neither the Constitution nor any law specifies the court of law that is competent to make the declaration mentioned in Article 62(1)(f) of the Constitution and provides for the manner and procedure of making such declaration. The decision given in Sami Ullah Baloch case that the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations is a declaration mentioned in Article 62(1)(f) and that such declaration has a lifelong disqualifying effect, is not based on any constitutional or statutory provision but rather amounts to legislating and reading into the Constitution and is therefore found to be 'plainly and palpably wrong'. Thus, such statement of law made in Sami Ullah Baloch case is not correct and is therefore overruled.

Section 232(2) added in the Elections Act 2017 vide the Elections (Amendment) Act 2023 has prescribed a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 62(1)(f) of the Constitution and has also made such declaration subject to the due process of law. In view of the finding that Article 62(1)(f) is not self-executory, there remains no need to examine the validity and scope of Section 232(2) of the Elections Act, 2017.

(e) Interpretation of the Constitution---

----Progressive interpretation, doctrine of---Scope---While interpreting constitutional provisions, the judicial approach should be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid---Courts are to interpret the constitutional provisions broadly so that they may meet the requirements of an ever-changing society---Doctrine of progressive interpretation, which is also referred to as the doctrine of living constitution, is one of the means by which the Constitution adapts to the changes in society---What this doctrine stipulates is that the meaning of the constitutional provisions is not frozen in time but carries in it the flexibility to continuously adapt to new conditions---This doctrine is premised on the belief that a constitution must be relevant to the society it governs, which inevitably evolves over time---With their progressive approach, the courts look to the purpose or intent behind a constitutional provision to guide its application in modern contexts---It is a necessary tool for ensuring the Constitution remains relevant and capable of protecting the rights of citizens and the governmental structure in changing societal contexts, ensuring the Constitution remains a living document that evolves along side societal changes---It is, however, important to underline that there is a marked difference between progressive interpretation and amendment of the Constitution---Courts cannot, under the disguise of progressive interpretation, amend the Constitution and read that into it which is not enshrined in any provision of the Constitution---Progressive interpretation is rooted in constitutional text viewed through a lens of contemporary social, economic and political values but any interpretation that does not have any textual mooring or is not entrenched in or flows from any constitutional provision passes for a constitutional amendment by unwarranted reading into the Constitution and is beyond the permissible scope of the judicial act of interpreting the Constitution.

M.Q.M. v. Pakistan PLD 2022 SC 439; Khurshid Industries v. Federation of Pakistan PLD 2020 SC 641; Sindh Revenue Board v. Civil Aviation Authority 2017 SCMR 1344; LDA v. Imrana Tiwana 2015 SCMR 1739; Province of Sindh v. M.Q.M. PLD 2014 SC 531; Reference by the President of Pakistan PLD 2013 SC 279; Aamer Raza v. Minhaj Ahmad 2012 SCMR 6; Al-Raham Travels v. Ministry of Religious Affairs 2011 SCMR 1621; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Pakistan Tobacco Company v. Govt. of N.W.F.P. PLD 2002 SC 460; Elahi Cotton Ltd. v. Federation of Pakistan PLD 1997 SC 582; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Peter W. Hogg, Constitutional Law of Canada, (South Asian Edition-2017), Vol-I, 15.9(f) ref.

(f) Constitution of Pakistan---

----Art. 175(2)---Courts, jurisdiction of---Scope---Any court, including the Supreme Court, cannot by a judicial order confer jurisdiction on itself or any other court, tribunal or authority---Power to confer jurisdiction is legislative in character; only the legislature possesses it---No court can create or enlarge its own jurisdiction or any other court's jurisdiction---Nor any court has any inherent or plenary jurisdiction---Because of the constitutional command in Article 175(2) of the Constitution, the courts in Pakistan do not possess any inherent jurisdiction on the basis of some principles of common law, equity or good conscience and only have that jurisdiction which is conferred on them by the Constitution or by or under any law.

Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119; Badshah Begum v. Additional Commissioner 2003 SCMR 629; Masjid Bilal v. Wali Muhammad 2006 CLC 1757; Zeeshan Zaidi v. State 1988 PCr.LJ 843; Sindh Employees' Social Security v. Adamjee Cotton Mills PLD 1975 SC 32; Brother Steel Mills v. Ilyas Miraj PLD 1996 SC 543; Hitachi Limited v. Rupali Polyester 1998 SCMR 1618 and Khalid Mehmood v. Chaklala Cantonment Board 2023 SCMR 1843

ref.

(g) Constitution of Pakistan---

----Arts. 10A, 17(2), 62(1)(f), 184(3) & 199---Elections Act (XXXIII of 2017), S. 154---Disqualification under Article 62(1)(f) of the Constitution---Question as to which Court is competent to make the declaration mentioned in Article 62(1)(f) of the Constitution?; who has the locus standi to seek such a declaration?; what is the procedure for making such a declaration?; and, what is the standard of proof required for making such declaration?---Held, that the Supreme Court, the High Courts, the Election Tribunals and the civil courts do not have the jurisdiction to make the declaration mentioned in Article 62(1)(f) of the Constitution---Not only these courts, but also no other court of law, at present, has such jurisdiction---As per the existing legal position, no person has locus standi to seek against an other person the declaration mentioned in Article 62(1)(f)---Though no court of law is, at present, competent to make the declaration mentioned in Article 62(1)(f) nor is there any law that prescribes the procedure for making such declaration, but whenever any law confers the right on any person to seek, and the jurisdiction on any court of law to make, the said declaration, Article 10A of the Constitution will definitely stand attracted to the proceedings conducted in exercise of that jurisdiction for the enforcement of that right---Since any determination made in such proceedings shall have the effect of curtailing the fundamental right of a person in respect of whom such declaration is sought, the right to a fair trial and due process guaranteed by Article 10A shall also be available to such person---Declaration that a person is not sagacious, righteous, non-profligate, honest and ameen is such that creates a serious stigma on the reputation of that person---Standard of proof in making such declaration should, therefore, not be a mere preponderance of probability applied generally in civil cases---Rather, the higher standard of 'clear and convincing proof' should be applied for making such declaration.

1 declared not to be correct law.

Aftab Ahmad v. Muhammad Ajmal PLD 2010 SC 1066 ref.

Allah Dino Bhayo v. Election Commission of Pakistan PLD 2020 SC 591 ref.

Siddique Baloch v. Jehangir Tareen PLD 2016 SC 97 endorsed.

Sumaira Malik v. Umar Aslam 2018 SCMR 1432 endorsed.

Muhammad Yusuf v. S. M. Ayub PLD 1973 SC 160 ref.

(h) Interpretation of Constitution---

----'Self-executory' and 'non-self-executory' provisions of the Constitution---Scope and distinction---Constitution of Pakistan contains extensive provisions on certain matters that operate directly upon the rights and obligations of people and also delineates mostly the functions of different constitutional bodies and offices in sufficient details to make them operative per se---Therefore, it may be presumed that all provisions of the Constitution are self-executory unless there is an express provision or a necessary implication that requires or envisages a legislative act to enforce the constitutional mandate---As a constitutional provision is self-executory if it does not require legislation to put it into effect, the question of whether a constitutional provision is self-executory is largely determined by whether legislation is a necessary prerequisite to the operation of the provision---And the insurmountable difficulties in giving effect to a constitutional provision without legislation afford the strongest reason for concluding that the provision is not self-executory.

Justice Qazi Faez Isa v. President of Pakistan PLD 2023 SC 661; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar 404; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Wolverine Golf Club v. Hare 24 Mich App 711 (1970) and Griffin v. Rhoton 85 Ark. 89 (1907) ref.

(i) Interpretation of Constitution---

----Harmonious interpretation of provisions---One of the most celebrated principles of constitutional interpretation is that a Constitution is to be read as an organic whole and its provisions, especially those closely related to each other, are to be harmoniously reconciled instead of making out inconsistencies between them---One constitutional provision cannot, unless expressly so provided, override the other nor can one be so construed as to destroy the other but rather both are to be construed harmoniously, each sustaining the other---Meaning and scope of an obscure provision is to be ascertained in light of that provision which manifests the intent of the constitution makers in unequivocal terms---Because the different parts of a Constitution are linked into a whole, i.e., the Constitution, and are not merely an unconnected bunch of isolated provisions; every provision is related to a systemic plan and contributes to the functioning of an integrated scheme.

Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Zaheeruddin v. State; 1993 SCMR 1718; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Raja Afzal v. Government of Pakistan PLD 1998 SC 92; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Judges' Pension's case PLD 2013 SC 829; Presidential Reference on Judges' Appointment Matter's case PLD 2013 SC 279; LDA v. Imrana Tiwana 2015 SCMR 1739 and Munir Bhatti v. Federation of Pakistan PLD 2011 SC 407 ref.

(j) Interpretation of statutes---

----Interpreting laws in accordance with Islamic injunctions---While interpreting laws if more than one interpretations are possible, the courts should adopt that which is more consistent with the Islamic injunctions.

Hamida Begum v. Murad Begum PLD 1975 SC 624; A.M. Queshi v. U.S.S.R. P LD 1981 SC 377; Muhammad Bashir v. State PLD 1982 SC 139; Pakistan v. Public-at-Large PLD 1986 SC 240; Aziz A. Sheikh v. Commr. of Income-Tax PLD 1989 SC 613; Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778; Akbar Zaman v. State 1993 SCMR 229 and Nazeer v. State PLD 2007 SC 202 ref.

(k) Precedent---

----Stare decisis, doctrine of---Scope---When the previous decision is found to be 'plainly and palpably wrong', the doctrine of stare decisis does not prevent a court from overruling it---Where the decision of a court is not based upon some constitutional or statutory provision, the doctrine of stare decisis does not apply to such decision.

Garner et al., The Law of Judicial Precedent, ed. 2016, p. 388; Cooley, A Treatise on the Constitutional Limitations, p. 50, Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 and Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107 ref.

Per Yahya Afridi, J.; dissenting with Qazi Faez Isa, CJ. and Syed Mansoor Ali Shah, J. [Minority view]

(l) Legislation---

----Legislative powers of the Parliament---Scope---Setting aside a judgment of the Supreme Court through legislation---Permissibility---Parliament can legislate on any matter it is authorized under the Constitution, but it cannot reverse or set aside the judgment of the Supreme Court---Even an express pronouncement in a statute, and that too, through a non-obstante clause, cannot render the decision of the Supreme Court non-binding---Such an action would constitute an attempt to reverse a judicial decision rendered in the exercise of judicial power, which lies beyond the legislative domain---However, it cannot be denied that the effect of a judicial decision can be nullified by legislative action---Legislature can alter even with retrospective effect, the law which formed the basis of the judicial decision; the provisions on which the decision of the Court was based on may be altered, so fundamentally that, the decision no longer remains applicable to the altered circumstances---More importantly, the vires of any such law cannot be questioned on the ground that it nullifies the judgment of the Court---However, the same may be questioned being violative of any of the provisions of the Constitution, and the Supreme Court is competent to examine the vires of a statute, if it has been enacted in derogation of any of the provisions of the Constitution.

(m) Constitution of Pakistan---

----Arts.62(1)(f) & 175---Elections Act (XXXIII of 2017), S. 232(2)---Disqualifications for membershipof Majlis-e-Shoora (Parliament)---Life time disqualification under Article 62(1)(f) of the Constitution---Constitutionality---Interpretation of Article 62(1)(f) of the Constitution---Extent of lack of qualification of a member of the Parliament, as envisaged under Article 62(1)(f) of the Constitution, is neither lifelong nor permanent, and the same shall remain effective only during the period the declaration so made by a Court of law remains in force---Period of disqualification under Article 62(1)(f) of the Constitution, as determined by the Supreme Court in the case reported as Sami Ullah Baloch v. Abdul Karim Nousherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case"), would prevail over the five-years disqualification period for Article 62(1)(f), as provided under section 232(2) of the Elections Act, 2017---Therefore, the conclusion so drawn by the Supreme Court in the Sami Ullah Baloch caseis legally valid, hence affirmed.

Article 62(1)(f) of the Constitution, in essence, simply states that a person shall not be qualified to be elected or chosen, as a Member of the Parliament, if there is a clear finding amounting to a declaration by a court of law that he is not sagacious, righteous, non-profligate, honest and ameen, and this disqualification remains in effect, as long as the declaration remains in the field. Thus, any finding passed by any Court constituted under Article 175 of the Constitution amounting to a declaration that a person is not sagacious, righteous, non-profligate, honest and ameen, would render the said person disabled to be chosen or to remain a member of the Parliament, till the time such declaration remains in the field. Thus, the lack of qualification/disqualification envisaged under Article 62(1)(f) of the Constitution only renders a person disabled to be chosen or to remain a member of the Parliament, till the adverse declaration remains in the field, and is thus, not permanent.

The lack of qualification/disqualification, as provided under Article 62(1)(f) is not only clearly live, but most certainly self-executory. In fact, declaring Article 62(1)(f) non-executory would most certainly render the very provision redundant, and that would be affront to the most basic principles of interpretation of constitutional provisions.

The conclusion drawn in the case reported as Sami Ullah Baloch v. Abdul Karim Nousherwani (PLD 2018 SC 405) ("the Sami Ullah Baloch case") regarding Article 62(1)(f) of the Constitution remains a correct statement of law requiring no interference by the present Bench.

Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 affirmed.

Article 62(1)(f) of the Constitution notably does not specify a time period for the disqualification. In contrast, the amended Section 232(2) of the Elections Act, 2017 prescribes a time period (not exceeding five years from the declaration made by a Court of law) for a disqualification of the nature of Article 62(1)(f). The absence of a specified period of time for the disqualification envisaged in Article 62(1)(f) of the Constitution, indicates a deliberate choice by the framers of the Constitution not to definethe specific duration for disqualification under this provision. Anyattempt to impose a time limit to the effect of Article 62(1)(f), suchas stipulating a maximum period of five years, would require a constitutional amendment, rather than introducing it through ordinary legislation. It is imperative to recognize that a provision introduced through ordinary legislation cannot supersede the clear mandate provided in the Constitution. Therefore, the amended Section 232(2) of the Elections Act, 2017 by imposing a duration for disqualification of the nature of Article 62(1)(f), contradicts the said constitutional provision.

Further, the Sami Ullah Baloch case interpreted the purport and effect of Article 62(1)(f) of the Constitution. It was held therein that the effect of the disability under Article 62(1)(f) would last as long as the effect of the declaration required under Article 62(1)(f) continued. The conclusion reached in the Sami Ullah Baloch case is based on Article 62(1)(f) of the Constitution. In order to remove the basis of the judgment rendered in the Sami Ullah Baloch case, a change in law through simple legislation was not enough. Rather, an amendment in the Constitution was required. An ordinary legislation cannot nullify a judgment rendered by a constitutional Court, while interpreting a provision of the Constitution.

The period of disqualification under Article 62(1)(f) of the Constitution, as determined by the Supreme Court in the Sami Ullah Baloch case, would prevail over the five-years disqualification period for Article 62(1)(f), as provided under section 232(2) of the Elections Act, 2017. The conclusion drawn in the judgment of the Sami Ullah Baloch case is legally correct, as it is in consonance with the settled principles already interpreted by the Supreme Court in its prior precedents and clear parliamentary intent, and thus, need not be overruled

For the Appellants:

M. Saqib Jilani, Advocate Supreme Court (in C.As. Nos. 981 and 985 of 2018).

Kamran Murtaza, Senior Advocate Supreme Court (in C.A. No. 982 of 2018).

Sh. Usman Karim-ud-Din, Advocate Supreme Court (in C.A. No. 984 of 2018).

M. Ahmed Qayyum, Advocate Supreme Court (in C.A. No. 880 of 2015).

Waleed Rehan Khanzada, Advocate Supreme Court (in C.A. No. 1946 of 2023).

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court (in C.P. No. 2680 of 2023).

Saeed Khurshid Ahmed, Advocate Supreme Court (in Const. P. No. 40 of 2022).

Syed Ali Imran, Advocate Supreme Court/Secy., SCBA and Anis Muhammad Shahzad, Advocate-on-Record (in C.M. Appeal No. 22 of 2022).

Mir Aurangzeb, Advocate-on-Record (in C.M. Appeal No. 135 of 2022).

For the Applicants:

Nemo. (in C.M.A. No. 10919 of 2023).

Ch. Akhtar Ali, Advocate-on-Record (in C.M.A. No. 10920 of 2023).

Khurram Mahmood Qureshi, Advocate Supreme Court (in C.M.A. No. 10921 of 2023).

Dil Muhammad Khan Alizai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (in C.M.A. No. 10939 of 2023).

Mian Abdul Rauf, Advocate Supreme Court (in C.M.A. No. 3 of 2024), Shoukat Hayat, Advocate Supreme Court (in C.M.A. No. 4 of 2024), M. Anwar Malik, Advocate Supreme Court/Advocate-on-Record (in C.M.A. No. 5 of 2024).

M. Makhdoom Ali Khan, Senior Advocate Supreme Court and Saad Mumtaz Hashmi, Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Barrister Imran Khan and Hamza Azmat Khan, Advocates (in C.M.A. No. 6 of 2024).

Ch. Munir Sadiq, Advocate Supreme Court and Syed Ali Imran, Advocate Supreme Court (in C.M.A. No. 18 of 2024).

For the Respondents:

Khalid Ibn-e-Aziz, Advocate Supreme Court (For Respondent No. 1 in C.A. No. 981 of 2018) Nemo for Respondent No.3 (in C.A. No. 982 of 2018).

Nemo for Respondent No. 1. (in C.A. No. 984 of 2018).

Nemo for Respondent No.2. (in C.A. No. 880 of 2015).

Barrister Khuram Raza, Advocate Supreme Court (For Respondent No.3 in C.A. No. 880 of 2015).

On Court's Notice:

For the Federation

Mansoor Usman Awan, Attorney-General for Pakistan, Assisted by Ms. Maryam Ali Abbasi, Ch. Aamir Rehman, Addl. A.G.P., Malik Javed Iqbal Wains, Addl. A.G.P. and Raja M. Shafqat Abbasi, D.A.G.

For Govt. of Punjab:

Khalid Ishaq, Advocate-General, Punjab, Sana Ullah Zahid, Addl. A.G. Punjab and Wasim Mumtaz, A.A.G., Punjab.

For Govt. of Sindh:

Hassan Akhtar, A.G. Sindh, Suresh Kumar, A.A.G. Sindh (through video-link, Karachi).

For Govt. of KP:

Amir Javed, Advocate-General and Sultan Mazhar Sher Khan, A.A.G. Khyber Pakhtunkhwa.

For Government of Balochistan:

Ayaz Khan Swati, Additional Advocate-General, Balochistan.

For Islamabad Capital Territory:

Ayaz Shaukat, Advocate-General, Isb.

For ECP:

Muhammad Arshad, D.G. (Law) ECP and Falak Sher, Legal Consultant, ECP.

Amici Curiae:

Uzair Karamat Bhandari, Advocate Supreme Court, Faisal Siddiqi, Advocate Supreme Court and Ms. Reema Omer, who submitted amicus brief in writing.

P L D 2024 Supreme Court 1108

Present: Muhammad Ali Mazhar and Syed Hasan Azhar Rizvi, JJ

Mst. REHMAT BEGUM---Petitioner

Versus

MEHFOOZ AHMED and others---Respondents

Civil Petition No. 49-K of 2022, decided on 9th August, 2024.

(Appeal against the judgment dated 22.11.2021, passed by the High Court of Sindh, Circuit Court Hyderabad in IInd Appeal No .70 of 2021).

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

----O. VII, R. 11---Rejection of plaint---Principles relating to rejection of plaint under O. VII, R. 11, C.P.C stated.

A plaint cannot be rejected in piecemeal under Order VII, Rule 11, C.P.C. Even if one prayer contained in the plaint is found to be maintainable in the relevant facts and circumstances of the case, the plaint cannot be rejected in part. What is essentially required is that the plaintiff must demonstrate that not only a right has been infringed in a manner that entitles him to a relief but also that when he approached the Court, the right to seek that relief was in subsistence. Nothing more than the averments of the plaint have to be seen for the purposes of adjudicating whether the plaint unveiled any cause of action. However, the dearth of proof or weakness of proof in the circumstances of the case does not furnish any justification for coming to the conclusion that there was no cause of action disclosed in the plaint, because for the rejection of plaint under Order VII, Rule 11, C.P.C., the Court cannot take into consideration pleas raised by the defendants in the suit, as at that stage, the pleas raised by the defendants are only contentions in the proceedings, unsupported by any evidence on record. However, if there is some material apart from the plaint which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while deciding an application under Order VII, Rule 11, C.P.C. Moreover, the Court may, in exceptional cases, consider the legal objections in the light of averments of the written statement but the pleading as a whole cannot be taken into consideration for the rejection of plaint. The Court has to presume the facts stated in the plaint as correct for the determination of such application. In case of any mixed questions of law and facts, the right methodology and approach is to allow the suit to proceed to the written statement and discovery phases and to determine the matter either by framing preliminary issues or through a regular trial. This rule does not justify the rejection of any particular portion of the plaint or a piecemeal rejection, as the concept of partial rejection is seemingly incongruous to the provisions of Order VII, Rule 11, C.P.C. However, it should be kept in mind that astute drafting for creating illusions of cause of action are not permitted in law, and a clear right to sue ought to be shown in the plaint. Where there is a joinder of multiple causes of action, and at least some of these causes could potentially lead to a decree, a plea of demurrer cannot be admitted to reject the plaint. Similarly, if there are several parties and the plaint discloses a cause of action against one or more of

them then, too, the plaint cannot be rejected, as what is required in

law is not the reading of the plaint in fragments but reading it as a whole. The Court is under an obligation to give a meaningful reading to the plaint and if it is manifestly vexatious or meritless, in the sense that it does not disclose a clear right to sue, the court may reject the plaint, but before rejecting it must determine whether litigation of such a case will be absolutely vexatious and an abuse of the process of the court.

Undoubtedly, the plaint can be rejected under Order VII, Rule 11, C.P.C., at any stage of the proceedings to culminate the civil action, on the philosophy that incompetent lawsuits should be buried at their inception in order to save the precious time of the Court which may be consumed and dedicated in serious and genuine litigation, but at the same time, this underlying principle does not give license to invoke the same in every lawsuit just to prolong or drag the proceedings with mala fide intention or ulterior motives. On the contrary, such application must articulate, distinctly, how and in which condition, as enumerated under Order VII, Rule 11, C.P.C., is the plaint liable to be rejected, rather than filing it with sweeping or trivial allegations to waste the valuable time of the Court.

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Companies Act (XIX of 2017), Ss. 2(9), 2(17) & 5---Partnership Act (IX of 1932), Ss. 4, 32, 39 & 40---Suit for specific performance of agreement, recovery and permanent injunction---Rejection of plaint---Scope---Partnership agreement---Agreement for transfer of shares between partners---Jurisdiction of Civil Court---In the present case the business entity was being operated through a registered partnership firm between the two partners i.e. the petitioner (defendant) and respondent No. 1 (plaintiff)---Said business was neither a corporate entity nor was it incorporated under the provisions of the Companies Ordinance, 1984, or the Companies Act, 2017 therefore, the assertion of the petitioner that the suit was barred by the provisions of Section 5 of the Companies Act, 2017 was misconceived and fallacious---As a matter of fact, Section 5 had no applicability or nexus in the matter---Therefore, it had nothing to do with the pending suit between the parties---Substratum of the plaint did not highlight any dispute with regards to the business of the partnership firm, nor did anybody approached the Court for dissolution of the partnership firm or rendition of accounts; but for all practical purposes, the respondent No.1 only entered into an agreement for buying out 50% share of the petitioner in the partnership firm against a valuable consideration, and due to the alleged breach and non-fulfillment of terms and conditions of the agreement, respondent No.1 filed the suit for specific performance of contract with some other ancillary reliefs---All the prayers mentioned by the respondent No.1 were not considered (by the Trial and Appellate Court) which had independent status and were not dependent upon the alleged right of execution of sale deed or transfer of 50% share of the partnership firm in favour of respondent No.1 against a valuable consideration---According to respondent No.1, the partnership business was a going concern and he wanted to buy out 50% share of another partner---The effect of the agreement in question was also to be decided by the Trial Court on whether the arrangement in question could be construed as an agreement for relinquishment of share or retirement from the firm---On the alleged consensus ad idem, the contract was signed, and on the alleged breach, respondent No.1 filed the suit---Court cannot force someone to file a suit for dissolution of partnership or rendition of accounts, but it has to see whether specific performance of contract is possible or not, and in this case, unless the parties were provided equal opportunity to lead the evidence, it was not possible to decide the matter summarily on the basis of an application under Order VII, Rule 11, C.P.C.---At present stage, the Trial Court could not presume or anticipate the outcome that if the case was made out on merits and the Court granted a decree of specific performance, what the plaintiff would do with the partnership business, and whether he would induct any other partner, continue as proprietor, or convert it into a corporate entity of business---That was not the issue before the Court right now---At present, the lis only related to the alleged sale agreement of 50% share of another partner against some valuable consideration---This was the core issue and dispute between the parties which needed to be adjudicated by the Trial Court---High Court had rightly set-aside the orders of Trial Court and First Appellate Court, whereby the plaint was rejected, and remanded the matter to Trial Court with directions to decide the suit on merits---Petition was dismissed and leave was refused.

(c) Interpretation of statutes---

----Internal aids for interpretation---Illustrations in a statute, purpose of---Internal aid of interpreting any statute or its provision can be derived primarily from the statute itself including its preamble, illustrations, headings, marginal notes, punctuation, transitory provisions, etc.---Illustrations should not be considered redundant or inconsequential, as they are evenly significant and constructive for securing the proper meaning of the provision---While they cannot influence the ordinary connotation of the section, they are beneficial to demonstrate the means and methods by which such sections are set in motion while interpreting the law.

Muhammad Arshad S. Pathan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

P L D 2024 Supreme Court 1119

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Musarrat Hilali, JJ

ASMAT ULLAH KHAN and others---Petitioners

Versus

The STATE and others---Respondents

Jail Petition No.431 of 2016, Criminal Petitions Nos. 845 of 2016 and 830 of 2016, decided on 15th May, 2024.

(Against the judgment dated 23.05.2016, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos.240, 266, 323, Criminal Revision No.175, Criminal Appeal No.281 and Capital Sentence Reference No.01-T of 2012).

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Doubtful occurrence---Petitioners (convicts) were known to the complainant---In this scenario, the alleged kidnapping of the complainant's brother and his business partner, along with the demand for ransom, did not seem reasonable when the complainant did not allege any motive or enmity behind the incident---It was also surprising that one of the petitioners contacted the complainant three times from the same number and provided a venue for the payment of the ransom amount a day in advance---Moreover, one of the alleged eye-witnesses was extraordinarily daring and courageous, willingly accompanying the complainant to hand over the ransom amount to the petitioner---On the other hand, the petitioners were so courteous that they did not object to whoever might accompany the complainant to hand over the ransom amount---Similarly, the police succeeded in arresting the petitioner without any violence on their part, even though they (the petitioners) were equipped with deadly firearms, according to the police---Primarily, the story of the prosecution appeared to be a dramatic one---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Ransom currency notes not marked---Consequential---Stance of both the complainant and the witness was that they first went to a police station and informed the police that they were going to meet one of the petitioners (convict) to hand over the ransom amount and the police instructed them to proceed, and they would follow---If, for the sake of argument, it was believed that both witnesses were stating true facts, then the law required that the said currency notes be marked or signed by an authorized Magistrate to eliminate the possibility of false implication---However, the police did not do so; hence, the alleged recovery of the ransom amount became doubtful and, as such, could not be believed or relied upon for the purpose of convicting the petitioners---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

Muhammad Abid v. The State and another PLD 2018 SC 813 ref.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Call Data Record (C.D.R.) not bearing signatures of any authorized officer---Complete---voice transcripts and audio of calls not produced---Effect---C.D.R. was produced in evidence by a police official who, while appearing as witness, deposed that the investigating Officer ("I.O.") directed him to collect the C.D.R. of one of the petitioners (convict) from the Regional Police Officer's Office ("RPO Office"); that he, therefore, received the said data and delivered the same to the I.O. who took it into his custody vide a recovery memo---Careful examination of the said C.D.R. showed that it neither bore the name nor the signature of any authorized officer, nor did it carry the seal of the issuing company---Moreover, the police official acknowledged that the C.D.R. was not sealed and was not accompanied by any covering letter even from the RPO's office---Thus, it could not be safely relied upon in any manner---Neither were the relevant entries indicated in the data, nor were the voice record transcripts produced, which, if available, could have substantiated the point of the prosecution---Mere production of C.D.R., without transcripts of the calls or complete audio recordings, could not be deemed reliable evidence---In addition to call transcripts, it must also be established on record that the individuals at both ends of the call were the same as those whose call data was produced as evidence---Courts must exercise heightened caution when evaluating such evidence, as advancements in science and technology had greatly facilitated the editing and alteration of recordings to suit one's preferences---Being so, the C.D.R. in the present case was of no help to the prosecution in supporting its allegations against the petitioners---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522 ref.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Defective investigation by Investigating Officer (I.O.)---In this case, the I.O. conducted the investigation very casually---He did not consider it appropriate to inquire about the ownership of the motorcycle used in the commission of the offence, allegedly recovered from one of the petitioners (convict)---I.O. failed to investigate the sources from which the complainant arranged the ransom amount---Additionally, he did not document the denominations of the currency notes intended for the ransom payment---He did not use the modern technology of geo fencing and acknowledged that he made no effort to determine the location of the other petitioner (convict) who made the alleged calls to the complainant demanding the ransom---Furthermore, the I.O. concluded that two cars were used in this incident, owned by two different persons, for the transportation of the abductees from one place to another---However, neither of these individuals was investigated or cited as a prosecution witness---During cross examination, one of the abductees disclosed that he and the other abductee were confined in two different places, owned by two different persons, yet, neither of these individuals was investigated or presented as a witness---All these facts and circumstances made the case of the prosecution highly doubtful---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

(e) Criminal trial---

----Benefit of doubt---Principle---Once a single loophole/lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Muhammad Imran v. The State 2020 SCMR 857 ref.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Inconsistencies in statements of abductees---Consequential---Evidence of both the abductees contained numerous inconsistencies, which cast doubt on their veracity as truthful witnesses---They had made certain notable improvements in their statements compared to those previously recorded under Section 161, Cr.P.C. by the Police---Essentially, their claim that the petitioners (convicts) put both of them in the trunk of a sedan car, and they allegedly traveled for two and a half hours, was implausible, as it was highly unlikely that two grown men could fit together into the trunk of such a vehicle---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for ransom---Re-appraisal of evidence---Recovery of incriminating articles---Inconsequential when ocular account is doubtful---In the present case the prosecution had shown recoveries of firearms, cars allegedly used in the commission of the offence, belongings of the abductees from the petitioners (convicts), and the ropes by which the abductees were tied---However such recoveries did not support the case of the prosecution for the reason that these recoveries were corroborative pieces of evidence and were relevant only when the primary evidence, i.e., the ocular account, inspired confidence---But, the ocular account in this case was full of contradictions and did not inspire confidence---Petitions for leave to appeal were converted into appeals, and petitioner "A" was acquitted of the charge, whereas appeal of petitioner "L" (now deceased) abated to the extent of his life sentence, but was partially allowed to the extent of the sentence of forfeiture of his properties, with the direction that his properties, if any, confiscated under the impugned judgments shall be released forthwith in favor of his legal heirs.

Nasir Javaid and another v. The State 2016 SCMR 1144; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Hayatullah v. The State 2018 SCMR 2092 ref.

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

----S. 431---Death of convict (appellant)---Abatement of appeal---Scope---Under the law, a criminal appeal abates on the death of an appellant, but section 431, Cr.P.C. provides an exception to this general rule---It provides that an appeal against a sentence of the fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate---Thus, upon the death of an appellant, his appeal to the extent of a portion of the sentence of imprisonment, abates whereas, the appeal to the extent of sentence of fine, affecting the property of an appellant, shall not abate and is to be heard on merits and in accordance with the settled principle of criminal justice.

Dr. Ghulam Hussain, represented by 8 heirs v. The State 1971 SCMR 35 and Sheikh Iqbal Azam Farooqui through Legal Heirs v. The State through Chairman NAB 2020 SCMR 359 ref.

(i) Constitution of Pakistan---

----Arts. 184 & 185---Short order released by the Supreme Court containing an inadvertent error---Rectification of such error in the detailed reasons---Supreme Court has the power to correct such type of error in the short order while recording the detailed reasons.

Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997 and Hamza Rasheed Khan v. Election Appellate Tribunal, Lahore High Court, Lahore and others (Civil Appeal No. 982 of 2018) ref.

Ansar Nawaz Mirza, Advocate Supreme Court for Petitioners (in J.P. No.431 of 2016).

Syed Ali Imran, Advocate Supreme Court for Petitioners (in Crl.P. No.845 of 2016).

Basharat Ullah Khan, Advocate Supreme Court for Petitioners (in Crl.P.No.830 of 2016).

Mirza Abid Majeed, DPG, Punjab for the State.

P L D 2024 Supreme Court 1134

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

AMER ISHAQ and others---Petitioners

Versus

PROVINCE OF KHYBER PAKHTUNKHWA and others---Respondents

Constitution Petitions Nos. 4 and 14 of 2021

(Regarding declaration of Rule 2 (c) and Schedule-IV of the Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulation) Rules, 2020 as ultra vires the Constitution).

and

Crl.M.Appeal No.8 of 2021 in Crl.O.P No.NIL of 2021.

and

C.M.A No.4707/2020 in C.A No.844/2020.

(Report of Hagler Bailly Pakistan)

Constitution Petitions Nos.4 and 14 of 2021, Crl. M. Appeal No.8 of 2021 in Crl. O.P No.NIL of 2021 and C.M.A No.4707 of 2020 in C.A No.844 of 2020, decided on 11th July, 2024.

(a) Constitution of Pakistan---

----Arts. 9, 23, 24 & 25---Right to life and property---Protection against discrimination---Environmental crisis---Islamic environmentalism---Human-induced climate change---Scope---Environmental crisis pervades our lives---Overwhelming scientific consensus warns that human-induced climate change is leading to rising sea levels, extreme weather events and public health disasters---Supreme Court pointed out that despite over thirty years of international agreements, global carbon dioxide emissions rose 70% between 1990 and 2020---Biodiversity was collapsing at an unprecedented rate---One million animal and plant species faced complete destruction within decades because of human activities---Notwithstanding extensive domestic regulation, global standards of air, land and water pollution remained stubbornly high---It is in this perspective of environmental constitutionalism that current issue and Islamic environmentalism that current issue was approached by the Supreme Court.

(b) Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Act (I of 2020)---

----Ss. 7 & 19---Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Rules, 2020,R. 2(c) & Schedule-IV---Constitution of Pakistan, Art. 184 (3)------Environmental crisis---Question of public importance---Rule 2 of Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Rules, 2020, vires of---Petitioners were aggrieved of air pollution caused by crushing of stones by power crushers operating in violation of National Environmental Quality Standards (NEQS)---Provincial Government supported Report of Power Crushers Commission and also urged the Court to shut down such plants unless they complied with NEQS---Validity---Supreme Court directed Environmental Protection Agency, Khyber Pakhtunkhwa (EPA), in order to protect human life and health of residents of the area who had been subjected to plants in question for a number of years, to shut down and seal operations of stone crushing plants in question immediately---Respondent owners of plants in question could be allowed to re-operationalize their plants provided they made an appropriate application to Supreme Court satisfying the Court that they complied with the requirements of NEQS---Supreme Court after verifying such fact through a technical expert might allow the same---Supreme Court directed local police to render full assistance to EPA to carry out order of Supreme Court in shutting down stone crushing plants immediately---NEQS were passed in the year 1993 and were last updated in the year 2010---Federal and Provincial Governments made no efforts to update the standards of NEQS---By limiting both the quality and quantity of anthropogenic pollutants in environment, NEQS served as crucial frameworks which facilitated transition towards a sustainable future---Such standards did not only ensure preservation of ecosystems and protection of public health through preventive measures but also played a significant role in fostering climate resilient development mechanisms by encouraging sustainable production processes in industries---Supreme Court directed Federal Government as well as Provincial Governments to update NEQS within a period of three months and submit their updated/revised NEQS before the Supreme Court---Matter was adjourned accordingly.

Shehla Zia v. WAPDA PLD 1994 SC 693; Imrana Tiwana v. Province of Punjab PLD 2015 Lah. 522 and Asghar Leghari v. Federation of Pakistan PLD 2018 Lah. 364 rel.

In attendance:

Dr. Pervez Hassan, Chairman, Power Crusher Commission (PCC) Waqar Zakariya, Member PCC and Asad A. Ghani, Advocate.

Ch. Aitzaz Ahsan, Sr. Advocate Supreme Court assisted by Barrister Zunaira Fayyaz, Advocate, Khawaja Haris Ahmed, Senior Advocate Supreme Court, Ch. Imran Hassan Ali, Advocate Supreme Court, Haider Mehmood Mirza, Advocate Supreme Court, Syed M. Iqbal Hashmi, Advocate Supreme Court and Syed Qamar Hussain Sabzwari, Advocate Supreme Court.

Chief Abdul Rehman, in person.

Qasim Jamal, Director Mineral, Hazara, Mohsin Ali Khan, Director Mineral.

Riaz, Dy. Director Mineral, Abbottabad, Zulfiqar Ahmed, Asst. Director (Mineral) and Mumtaz Ali, DD(L), EPA.

P L D 2024 Supreme Court 1152

Present: Syed Hasan Azhar Rizvi and Aqeel Ahmed Abbasi, JJ

NIAZ AHMED and another---Petitioners

Versus

AIJAZ AHMED and others---Respondents

Criminal Petitions Nos.66-K and 67-K of 2024, decided on 15th July, 2024.

(Against the Order dated 23-02-2024 passed by the High Court of Sindh Karachi in Crl. Revision Applications Nos. 219 of 2021 and 262 of 2022).

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

----Ss. 3 & 4---Illegal dispossession---Possession, restoration of---Locus standi---Qabza Mafia and land grabber---Scope---Petitioner/accused was aggrieved of criminal proceedings initiated by respondent/ complainant alleging his illegal dispossession by force---Plea raised by petitioner/accused was that provisions of Illegal Dispossession Act, 2005 were restricted to Qabza Mafia or land grabbers---Validity---Any person who is lawful owner or lawful occupier of property and has been illegally dispossessed, can bring a complaint under the provisions of Illegal Dispossession Act, 2005---In order to make out a case under sections 3 and 4 of Illegal Dispossession Act, 2005, complainant has to prima facie establish before Court that he is lawful owner or was occupier of subject property and accused had entered into or upon the property without having any lawful authority, which act was done by accused with the intention to dispossess or to grab or to control or to occupy the property---Applicability of Illegal Dispossession Act, 2005 is not restricted to Qabza Mafia or land grabbers---Scope of Illegal Dispossession Act, 2005 is wide enough to cover any illegal occupant and is not limited to mafia or Qabza Groups only---Supreme Court declined to interfere in orders passed by Courts below---Petition for leave to appeal was dismissed and leave was refused.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 rel.

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

----S. 7---Interim order---Pre-conditions---Interim order under section 7 of Illegal Dispossession Act, 2005 can be passed when prima facie it is established to the satisfaction of Court that accused is in unlawful possession of immoveable property and complainant is either owner or was in a lawful possession of immoveable property before dispossession.

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

----S. 7(1)---Stage of "trial"---Scope---Taking of cognizance is not commencement of trial---Trial of a case commences with framing of charge against accused.

Haqnawaz and others v. The State and others 2000 SCMR 785 rel.

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

----Ss. 249-A & 265-K---Words "at any stage"---Evaluation of evidence---Probability of conviction---Scope---Words "at any stage" used in sections 247-A and 265-K, Cr.P.C. include stages before or after framing of charge or after recording of some evidence---Only condition required to be fulfilled is adherence to principle of audi alteram partem, ensuring that both parties are heard and afterwards if Court considers that there is no probability of conviction of accused, it may take appropriate action---Provision of section 265-K, Cr.P.C. is designed to prevent unnecessary trials when conviction is unlikely---Available evidence, whether presented or pending, must be carefully evaluated to assess possibility of conviction---Evidence must be thoroughly examined rather than just briefly reviewed---Conscious application of judicial mind is mandatory for assessment of incriminating material collected during the course of investigation in order to test the same on the touchstone of "probability".

The State v. Raja Abdul Rehman 2005 SCMR 1544; Abbas Haider Naqvi and another v. Federation of Pakistan and others PLD 2022 SC 562; Muhammad Taqi v. The State 1991 PCr.LJ 963; Yasin Khan v. The State 1995 PCr.LJ 142; Muhammad Sharif v. Muhammad Hussain 1993 PCr.LJ 2053; Ghafooran v. Muhammad Bashir 1977 SCMR 292; Muhammad Sharif v. The State PLD 1999 SC 1063 and The State v. Asif Ali Zardari 1994 SCMR 798 rel.

(e) Words and phrases---

----Consider---Definition.

Oxford Dictionary of English (Second Edition) rel.

(f) Words and phrases---

----Probability---Definition.

Oxford Dictionary of English (Second Edition) rel.

Shamshad Ali Qureshi, Advocate Supreme Court for Petitioners (in both cases).

Nemo for Respondents.

Research Conducted by Paras Zafar, Judicial Law Clerk.

P L D 2024 Supreme Court 1163

Present: Qazi Faez Isa, CJ, Irfan Saadat Khan, Naeem Akhtar Afghan

and Shahid Bilal Hassan, JJ

In the matter of: Criminal Original Petition No.6 of 2024

Criminal Original Petition No.6 of 2024, decided on 12th September, 2024.

(Contempt proceedings against Senator Fesal Vawda on account of his press conference in the National Press Club, Islamabad on 15.05.2024).

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

----S. 3---Constitution of Pakistan, Arts. 19, 19A & 204---Contempt of Court---Contemptuous and false press conferences against the Supreme Court and its Judges aired/broadcasted by television channels---Contempt of court notices issued to television channels---Unqualified apology tendered by television channels to the Supreme Court with the commitment to broadcast the apology during prime time---Expiation of the offence of contempt---Twenty-six television channels filed miscellaneous applications tendering unqualified apologies to the Court which stated that they will ensure that such mistakes are not repeated in the future---Other channels to whom (contempt) notices were issued also directly or through their respective counsel tendered a similar apology and statement---All the channels agreed to broadcast on prime time the fact that they have tendered an apology to the Supreme Court and will also broadcast certain paragraphs recorded by the Supreme Court in its order dated 28th June 2024 relating to current proceedings---In view of the unqualified apology and the undertaking with regard to the abovementioned broadcast, which would constitute expiation, the show cause notices issued by the Supreme Court to all the television channels were withdrawn, subject to the said apology and the contents of certain paragraphs of the order dated 28th June 2024 being broadcast on prime time---Supreme Court observed that media is categorized as the fourth pillar of the State and an independent media broadcasting facts and the truth is essential for democratic rule as it highlights wrongdoing, however, its credibility and effectiveness is undermined when falsehoods are broadcast; that if within the respective press/media organizations a mechanism for self-accountability is developed it will improve their standing, credibility and resultantly become more effective in drawing attention to wrongdoing, and thus help in stemming it.

In Attendance:

Ch. Aamir Rehman, Addl. A.G.P. On Court's Notice.

Faisal Siddiqui, Advocate Supreme Court on behalf of 26 News Channels.

Ms. Asma Mushtaq, Advocate Supreme Court on behalf of Bol News.

Javed Ahmad Qazi, Advocate Supreme Court on behalf of Sindh TV.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court on behalf of Talon TV.

Saad Mumtaz Hashmi, Advocate Supreme Court on behalf of PEMRA.

Owners/ Representatives of TV Channels:

Abb Tak Syed Fahad Hussain Shah, M.D. Abb Tak

Siraj Ahmed, D.N. Abb Tak

Aaj News Qudratullah Shahab Zuberi, CEO and

Asif Aziz Zuberi, CEO

Hum News M. Rehan Ahmed, Director

Geo News Zaheeruddin, C.O.O.

ARY News Salman Iqbal, Bol News Abdul Razzaq, Adminstration Manager

GNN Shehryar Nawaz Chatha, CEO

Dunya News Mian Amir Mehmood, Chairman and

Naveed Kashif, M.D.

Neo News Nasrullah Malik, CEO and

Fahad, C.O.

Dawn News Shakil Masood, CEO (Also Chairman, Pakistan Broadcasters Association)

Express News Sultan Lakhani, Owner

Samaa TV Junaid Amin, CEO and

Umar Farooq Manan

92 News Muhammad Rasheed, Owner and

Usama Shams, CEO

24 News Syed Turrab Abbas, Executive Director (Operations)

News One Tahir A. Khan, Owner

Suno TV Hashim Khan, CEO

AIK News Fahad Hussain, Chairman

Capital TV Basit Riaz Sheikh, M.D.

G-TV Waseem-ur-Rehman, CEO

Public TV Ahmed Sahi, CEO and Jawad Hanif, M.D.

7 News Amir Sohail, Director

Channel 5 Malik Manzoor, D.N.

ABN News Mohsin Bilal, CEO

Sindh TV Abdul Karim Rajpar

KTN News Asad

Waseb TV Nemo

Awaz Faisal Brohi, CEO

Dharti Zohaib Hassan, Director

SUCH News Mudassar Bukhari,Owner

ROZE News S.K. Niazi,Chairman

Times News Muhammad Ali Qazi

TV Today Haq Nawaz Ghumman

Talon TV Mudassir Iqbal, C.O.O.

Kohinoor TV Nemo

P L D 2024 Supreme Court 1168

Present: Syed Mansoor Ali Shah, Muhammad Ali Mazhar and Shahid Bilal Hassan, JJ

The COMMISSIONER INLAND REVENUE and others---Appellants

Versus

MEKOTEX (PVT.) LIMITED and others---Respondents

C.P.L.As Nos. 824-K to 872-K, 545-K to 554-K, 582-K to 679-K, 699-K to 708-K, 1020-K to 1023-K, 1066-K of 2023 and C.M.As. Nos. 4002, 4003, 4384, 4004, 4005, 4006, 4007 and 7911 of 2023, decided on 18th September, 2024.

(Against the judgment of High Court of Sindh, Karachi dated 07-02-2023, passed in C.Ps. Nos. D-8385, D-8373, D-665, D-2208, D-2273, D-2661, D-8396, D-8277, D-8376, D-8372, D-8394, D-8370, D-8371, D-8164, D-8369, D-8278, D-8345, D-8390, D-8434, D-8375, D-8417, D-8539, D-8452, D-8470, D-1351, D-359, D-2209, D-8389, D-8343, D-8344, D-8416, D-8428, D-8534, D-8540, D-8552, D-2429, D-8561, D-8447, D-8507, D-8528, D-8446, D-8242, D-8449, D-6727, D-8275, D-8247, D-8271, D-8397, D-8546, D-8235, D-8276, D-8272, D-8559, D-8547, D-8560, D-8281, D-8282, D-8506, D-8274, D-8431, D-8432, D-8525, D-8543, D-8500, D-8544, D-8530, D-8526, D-8244, D-8508, D-8527, D-8517, D-8242, D-8241, D-8450, D-8246, D-8518, D-8243, D-8240, D-8238, D-8403, D-8433, D-8245, D-8545, D-8531, D-8529, D-8503, D-8237, D-8236, D-8448, D-8443 of 2019, D-2456, D-2210, D-659, D-6792, D-6729, D-6823, D-6822, D-6729, D-8368, D-8367, D-8374, D-357, D-358, D-6807, D-6728, D-355, 6771, D-6583, D-93, D-6682, D-60, D-3615, D-2652, D-356, D-6582, D-94, D-648, D-6498, D-6497 of 2020, D-04, D-05, D-444, D-09, D-08, D-1828 of 2021, D-140, D-993, D-139, D-141, D-1613, D-1614, D-1517, D-1518, D-36, D-1829, D-1830, D-955, D-8453, D-6815, D-63, D-52, D-114, D-115, D-61, D-3049, D-1718, D-54, D-464, D-357, D-6814, D-55, D-65, D-112, D-53, D-111, D-62, D-06, D-335 and D-3494 of 2022).

(a) Constitution of Pakistan---

----Arts. 12 & 142---Legislative powers of Parliament and Provincial Assemblies---Laws with retrospective effect---Apart from the specified exception under Article 12 of the Constitution, Parliament and Provincial Assemblies cannot enact criminal laws with retrospective effect; however, there is no restriction on their legislative powers to enact civil laws with retrospective effect---Nonetheless, neither prospective nor retrospective laws can be enacted to take away or abridge any of the fundamental rights guaranteed by Articles 9 to 28 of the Constitution or in contravention of any other provision of the Constitution---Constitution's prohibitions and requirements apply equally to both prospective and retrospective laws.

State of Gujarat v. Raman Lal (1983) 2 SCC 33 ref.

(b) Constitution of Pakistan---

----Art. 142---Legislative power to enact civil laws with retrospective effect---Principles---Legislature's power to legislate includes the power to legislate with retrospective effect---Legislature that is competent to make a law on a particular subject also has the power to legislate such a law with retrospective effect and can, by legislative fiat, even take away vested rights or affect past and closed transactions---Therefore, when a legislature gives retrospective effect to a law, either by express provision or by necessary implication, no protection can be afforded to vested rights contrary to that law---Similarly, when a legislature enacts a law with retrospective effect, the person affected cannot plead the imposition of a previously non-existent civil obligation as a ground for declaring the law invalid---Constitution only bars retrospective legislation concerning criminal liabilities, not civil rights and obligations---There is no such rule that even if a legislature has sought to take away a vested right, the courts must hold that such legislation is ineffective or strike down the legislation on the ground that it has retrospectively taken away a vested right---Law cannot be declared ineffective or struck down on the ground that it has taken away a vested right, nor can any protection be offered to vested rights contrary to it.

Amin Ullah v. Pannu Ram PLD 1967 SC 289; Haider Automobile v. Pakistan PLD 1969 SC 623; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905; Muhammad Hussain v. Muhammad 2000 SCMR 367; Taisei Corporation v. A. M. Construction Company 2024 SCMR 640; Raja Amer v. Federation of Pakistan 2024 SCP 91; Jamshaid Gulzar v. Federation of Pakistan 2014 SCMR 1504; Irshad Sheikh v. NAB 2015 SCMR 588; Annoor Textile v. Federation of Pakistan PLD 1994 SC 568; Taisei Corporation v. A. M. Construction Company 2024 SCMR 640; Haider Automobile v. Pakistan PLD 1969 SC 623; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 and Nabi Ahmed v. Government of West Pakistan PLD 1969 SC 599 ref.

(c) Interpretation of statutes---

----Laws having retrospective effect---Principles for interpreting laws that have or appear to have retrospective effect stated.

When a law regulating certain affairs is introduced for the first time, it is presumed to apply to future affairs, not to alter the character of past transactions made under the law as it then existed. This principle is encapsulated in the maxim lex prospicit non respicit-the law looks forward, not backward. A retrospective law is an exception to this general principle; therefore, courts approach the interpretation of laws with a presumption in favour of the general principle that laws are intended to regulate future affairs, not to affect past transactions. Exceptions of retrospective effect are interpreted strictly, as are other exceptions to general principles. This presumption is rooted in the rule of fairness, as altering accrued rights and obligations retrospectively is often considered unfair. Since the legislature is not expected to act in an unfair manner, it becomes essential to closely scrutinize a law that appears to have such an effect, ensuring that this was indeed the legislature's intent. Thus, the legislature is presumed not to have intended to alter the law applicable to accrued rights and obligations or past events and transactions unless a clear contrary intention is expressed. The strength of this presumption varies with the degree of potential unfairness-the greater the unfairness, the more explicit the legislature's intent must be.

C.I.T. v. Vatika Township (2015) 1 SCC 1 (5MB); L'Office Cherifien v. Yamashita-Shinnihon Steamship Co (1994) 1 AC 486 and Secretary of State v. Tunnicliffe (1991) 2 All ER 712 ref.

Therefore, in our jurisdiction, the established principles for interpreting laws that have or appear to have retrospective effect are as follows. Every statute that relates to substantive rights and obligations should be deemed prospective unless, by express provision or necessary implication, it has been given retrospective effect. Courts must lean against giving a statute retrospective effect that affects vested rights and/or past and closed transactions by adhering to two rules: first, if two interpretations are reasonably possible, the one that saves vested rights and/or past and closed transactions should be adopted; and second, no statute should be construed to have retrospective effect to a greater extent than its language necessarily requires. Although vested rights may be affected and taken away by express provision or necessary implication, past and closed transactions can be disturbed and reopened only by express provision. This is because the greater the unfairness, the more explicit the legislature's intent must be.

Nagina Silk Mill v. Income-Tax Officer PLD 1963 SC 322; Province of East Pakistan v. Sharafatullah PLD 1970 SC 514; C.I.T. v. EFU Insurance Co. PLD 1982 SC 247; Ghulam Hyder Shah v. Chief Land Commissioner 1983 CLC 1585; Chief Land Commissioner v. Ghulam Hyder Shah 1988 SCMR 715; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905; Muhammad Hussain v. Muhammad 2000 SCMR 367; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 and Zila Council Jehlum v. Pakistan Tobacco Company PLD 2016 SC 398 and Shahnawaz (Pvt.) Ltd. v. Pakistan 2011 PTD 1558 ref.

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

----S. 6---Effect of repeal of a law---'Repeal' and 'amendment'---Synonymity---There is no difference in principle between repeal and amendment, as every amendment inherently involves a repeal, where the law in its previous form disappears and a new law takes its place---Whether the legislature states that a particular section will be amended in a certain way or declares that the section is repealed and replaced by a new one, the outcome is fundamentally the same---In its broader scope, the word 'repeal' as used in Section 6 of the General Clauses Act, 1897 includes amendment, as both processes ultimately achieve the same legislative result---While 'repeal' generally refers to the abrogation of an entire law and 'amendment' to changes within a statute, both carry the same effect, making it necessary to treat them similarly---Therefore, Section 6 of the General Clauses Act, 1897 also applies to the amendment of a law.

Saeed Ahmad v. State PLD 1964 SC 266; Dad Muhammad v. ADJ 1996 SCMR 1688; Mukhtar Hamid v. Government of Punjab PLD 2002 SC 757 and Anwar Yahya v. Federation of Pakistan 2017 PTD 1069 ref.

(e) Interpretation of statutes---

----Vested right under a law---Scope---Past and closed transaction---Scope---A right vests when all the facts required by law to establish that right have occurred---In other words, when all the facts necessary to create a right have occurred, the right is said to be "vested"---A right remains inchoate and contingent when some, but not all, of the investitive facts have occurred---A "vested right" is, therefore, one that is absolute, complete and unconditional, with no obstacles to its exercise---It is immediate and perfect in itself, not dependent upon any contingency---Vested right are thus free from contingencies, but ordinarily there are always specific occasions and circumstances under which such vested rights may be exercised---A vested right becomes a past and closed transaction when such right is exercised, or deemed to have been exercised by operation of law, at a specific occasion and under specific circumstances---Since such specific occasions and circumstances may vary under different laws, it is determined on the basis of the peculiar facts and legal position of each case whether a vested right has turned into a past and closed transaction.

Government of Punjab v. Kamran Bashir 2022 PLC (C.S.) 6; Nabi Ahmed v. Government of West Pakistan PLD 1969 SC 599; Zaman Cement Co. v. CBR 2002 SCMR 312; Asdullah Mangi v. PIA Corporation 2005 SCMR 445; Amer v. Federation of Pakistan 2024 SCP 91; CIT v. EFU Insurance Co. PLD 1982 SC 247; Nagina Silk Mill v. Income-Tax Officer PLD 1963 SC 322; Ghulam Hyder Shah v. Chief Land Commissioner 1983 CLC 1585; Chief Land Commissioner v. Ghulam Hyder Shah 1988 SCMR 715; Molasses Trading v. Federation of Pakistan 1993 SCMR 1905; Muhammad Hussain v. Muhammad 2000 SCMR 367; Zila Council Jehlum v. Pakistan Tobacco Company PLD 2016 SC 398 and Shahnawaz (Pvt.) Ltd. v. Pakistan 2011 PTD 1558 ref.

(f) Income Tax Ordinance (XLIX of 2001)---

----S. 65B (as amended by the Finance Act, 2019)---Constitution of Pakistan, Art. 25---Amendments made to Section 65B of the Income Tax Ordinance, 2001 by the Finance Act, 2019 ("2019 amendments"), vires of---Tax credit---Purchase of plant and machinery for an industrial undertaking set up in Pakistan---Competency of legislature to modify or withdraw the benefit of tax credit through retrospective amendments---Past and closed transaction---Vested right---Scope---For purposes of present case there were two categories of taxpayer companies; the "first category" consisted of those companies who had both purchased and installed the plant and machinery by 30 June 2019, while the "second category" included those who had purchased the plant and machinery by 30 June 2019 but installed it after that date but before 30 June 2021---Provisions of subsection (1) of Section 65B of the Income Tax Ordinance, 2001 are to be read in conjunction with subsection (2)---When so read together, it becomes clear that to avail the benefit of the tax credit under Section 65B, taxpayer companies must fulfill two conditions: first, they have to purchase the plant and machinery; and second, they have to install the purchased plant and machinery in an industrial undertaking set up in Pakistan---Only when both of these conditions are fulfilled does a taxpayer company acquire a vested right to avail the benefit of the tax credit conferred by Section 65B---In the present case the second category of taxpayer companies had purchased the plant and machinery before 1 July 2019, when the 2019 amendments came into force, but had not yet installed it---Therefore, they had fulfilled only one of the two required conditions---As a result, they had not yet acquired any vested right to avail the benefit of the tax credit conferred by Section 65B, thus no question arose as to them being affected by the 2019 amendments---As for the first category of taxpayer companies, they had undoubtedly acquired a vested right to avail the benefit of the tax credit conferred by Section 65B---This was because they had fulfilled both of the required conditions by 1 July 2019, when the 2019 amendments came into force; they had both purchased and installed the plant and machinery by that date---Vested right of a taxpayer company to avail the benefit of the tax credit conferred by Section 65B matured into a past and closed transaction upon the filing of the claim by the taxpayer company, either separately as per the instructions of the Federal Board of Revenue (FBR), if such or similar instructions existed, or along with the income tax returns, as the case may be---In the present case, the second category of taxpayer companies had neither filed the claim separately, as per the FBR instructions, nor filed their income tax returns along with the claim by 1 July 2019, when the 2019 amendments came into force---Therefore, their vested right did not "crystallize" into a past and closed transaction---By way of the 2019 amendments the proviso added to subsection (1) of Section 65B of the Income Tax Ordinance, 2001, was in violation of the prohibition against discrimination and the guarantee of equal treatment provided by the fundamental right enshrined in Article 25 of the Constitution---This proviso reduced the rate of the tax credit for the tax year 2019 from 10% to 5% of the amount invested, whereas for all other tax years from 2010 to 2018, taxpayer companies were granted a tax credit at the rate of 10% of the amount invested---As a result, the first category of taxpayer companies had been discriminated against and had not been afforded the equal treatment that was given to other taxpayer companies for the tax years 2010 to 2018---As for the second category of taxpayer companies, their case was distinguishable from the first category, therefore, the amendment made to subsection (2) of Section 65B, which reversed the expiry date of availing the benefit of the tax credit from 30 June 2021 to 30 June 2019, did not fall within the scope of the constitutional prohibition contained in Article 8 read with Article 25 of the Constitution---Supreme Court declared that the proviso added to subsection (1) of Section 65B through the 2019 amendments infringed the fundamental right of the first category of taxpayer companies to protection against discrimination and the guarantee of equal treatment under Article 25 of the Constitution, and was therefore liable to be struck down; that the change made to subsection (2) of Section 65B through the 2019 amendments did not infringe any of the fundamental rights of the second category of taxpayer companies guaranteed by Articles 18, 23, 24 and 25 of the Constitution---Petitions were converted into appeals, which were partly allowed.

(g) Promissory estoppel, doctrine of---

----Doctrine of promissory estoppel does not operate against the legislature.

Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 ref.

(h) Precedent---

----Earlier decision of a Bench of equal numeric strength---Precedential value---Earlier decision of a bench of a High Court, or of the Supreme Court, on a question of law is binding on another bench of equal numeric strength when dealing with the same question, in the sense that the latter bench cannot decide the same question contrary to the first decision---However, the latter bench is not precluded from examining the correctness of the earlier decision or forming a different view---In such a case, the proper course of action is to refer the matter to the Chief Justice of the High Court, or in the case of the Supreme Court to the Bench-Constitution Committee, with a request for the constitution of a larger bench to examine the correctness of the earlier decision and, if necessary, to reconsider and redecide the question.

Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 ref.

(i) Judicial review---

----Economic matters and policies---In complex economic matters, the best solutions are often not easily discernible; the wisdom of any choice may be debated or criticized, but mere errors of policy judgment are not subject to judicial review---Only clear and definite violations of fundamental rights or other constitutional provisions warrant judicial intervention---Legislative and executive branches of the State are entitled to make pragmatic adjustments which may be called for by particular circumstances---Courts cannot strike down an economic policy decision taken by them merely because they feel that another policy decision would have been fairer, wiser, or more scientific or logical---It is for the legislature, not the courts, to balance the advantages and disadvantages of various economic concerns---Therefore, while examining the constitutionality of fiscal laws on the touchstone of fundamental rights, particularly the fundamental right to equality before the law, courts should exercise greater restraint and extend more deference to legislative judgment than they do with laws concerning civil and political rights---Legislature must be afforded some "play in its joints" because it is tasked with addressing complex economic problems that do not admit solutions through doctrinaire or rigid formulas.

Metropolis Theatre Co. v. Chicago (1913) 228 U.S. 61; Morey v. Doud (1957) 354 US 457; R.K. Garg v. UOI (1981) 4 SCC 675 and Bain Peanut Co. v. Pinson (1931) 282 U.S. 499 ref.

In attendance:

Dr. Shah Nawaz, Advocate Supreme Court.

M. Tariq Arbab, Member (L) FBR.

Mir Badshah Khan, Member (Operation) FBR and Fahad Faizan, CIR, FBR.

Dr. Sohail Ahmed Fazlani, Addl. Comm. FBR. Abdul Wahid, Addl. Commissioner, LTO. and Malik Waqas Nawaz, ADC/DR CTO, FBR.

Rashid Anwar, Advocate Supreme Court.

Irfan Mir Halipota, Advocate Supreme Court.

Abid Hussain Shaban, Advocate Supreme Court.

Hussain Ali Almani, Advocate Supreme Court.

Hyder Ali Khan, Advocate Supreme Court.

Imtiaz Rashid Siddiqui, Advocate Supreme Court.

Ms. Lubna Pervez, Advocate Supreme Court.

Muhammad Nadeem Qureshi, Advocate Supreme Court.

Arshad Hussain Shahzad, Advocate Supreme Court.

Naeem Suleman, Advocate Supreme Court.

Taimur Mirza, Advocate Supreme Court.

Mst. Abida Parveen Channar, Advocate-on-Record.

Syed Rafaqat Hussain Shah, Advocate-on-Record.

Rashideen Nawaz Kasuri, Addl. AGP.

M. Ibrahim Khan, L.O. (AGP office).

P L D 2024 Supreme Court 1199

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan, Jamal Khan Mandokhail, Naeem Akhtar Afghan and Mazhar Alam Khan Miankhel, JJ

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its President---Petitioner

Versus

FEDERATION OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Review Petition No. 197 of 2022 in Constitution Petition No. 2 of 2022, decided on 10th October, 2024.

(For review of the short order dated 17.05.2022 and judgment of this Court passed in Constitution Petition No. 2 of 2022, Reference No.1 of 2022 and Constitution Petition No. 9 of 2022).

(a) Constitution of Pakistan---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction is created by the Constitution and it may be invoked in respect of an order already made or judgment already pronounced, therefore, by its very nature a review petition should be fixed for hearing earlier than other cases---This is also because the Judges who had passed the order or judgment may not be available later.

(b) Constitution of Pakistan---

----Arts. 184(3), 186, 188 & 189---'Advisory' and 'Constitutional' jurisdiction of the Supreme Court---Distinction---President may seek an opinion from the Supreme Court on a question of law under the advisory jurisdiction of the Supreme Court and the Court gives its opinion on such question---Constitution does not state that the opinion given by the Supreme Court must be abided by nor does it state that if two or more opinions are given which one should be accepted---Opinion of the Supreme Court is just an opinion with explanation on the question of law and is not of binding nature and it is up to the President or the Federal Government to act upon it or not---An opinion is also not executable, however, an order passed by the Supreme Court (on a petition filed under Article 184(3) of the Constitution) is binding (Article 189 of the Constitution), and it is also executable---Therefore, if a decision (in terms of Article 189) contradicts the Supreme Court's opinion (under Article 186) the Supreme Court's decision (and not the opinion) will prevail---Furthermore, the review of 'any judgment pronounced or any order made' by the Supreme Court can be sought under Article 188 of the Constitution, but this provision does not state that review of an opinion of the Supreme Court can also be sought.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 ref.

(c) Constitution of Pakistan---

----Arts. 63(3), 63(4), 63A & 188---Review petition---Disqualification on the ground of defection, etc.---Parliamentarian votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he/she belongs---In the judgment under review the Judges (in majority) held that if a member votes against the dictates of his political party the member's vote would not be counted and the member shall be immediately disqualified---Constitutionality---Article 63A of the Constitution does not state that the votes of any member should not be counted nor that a member who does not vote or abstains from voting contrary to the Parliamentary Party's direction would automatically be deseated---Clauses (1) to (5) of Article 63A of the Constitution are unambiguous, self-executory and do not require any interpretation---Through the judgment under review the Party Head's jurisdiction to issue a declaration of defection has instead been conferred upon the Supreme Court; the Election Commission was also divested of its jurisdiction, and even the appellate jurisdiction of the Supreme Court under clause (5) of Article 63A was effectively abolished---Judgment under review was against the clear language and mandate of the Constitution and also contrary to the decisions of the larger Benches of the Supreme Court---Review petition was allowed and the majority view in the judgment under review was set aside.

Clauses of Article 63A of the Constitution are self-executory and stipulate that if a member of a Parliamentary Party votes contrary to its direction or abstains from voting then its Party Head may elect to proceed against such member. If the Party Head elects to do so the first requirement is to provide the member 'with an opportunity to show cause as to why such declaration may not be made against him', that is, a declaration that the member had defected. If the member offers a valid justification, or even in its absence, the Party Head may not want to proceed against the member. It is within the exclusive jurisdiction of the Party Head to declare in writing if a member has defected, but the Judges (in majority) in the judgment under review entered into the political domain by divesting the Party Head of such discretion and bestowing it upon themselves. The declaration of defection if issued by the Party Head is then sent to the Presiding Officer (the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be), with a copy thereof to the Chief Election Commissioner. The Presiding Officer is also required to send the said declaration to the Chief Election Commissioner, 'who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.' The Judges (in majority) in the judgment under review, therefore, had also appropriated to themselves the adjudicatory jurisdiction vesting in the Election Commission, in contravention of clauses (3) and (4) of Article 63. They also took away the right of appeal to the Supreme Court, provided by clause (5) of Article 63A.

Clauses (1) to (5) of Article 63A of the Constitution are unambiguous and patently self-executory. They are clear, exact and manifestly evident. They do not require any interpretation. Article 63A does not state that the votes of any member should not be counted nor that a member who does not vote or abstains from voting contrary to the Parliamentary Party's direction would automatically be deseated, but this is what the Judges (in majority) in the judgment under review did. The plain language of Article 63A of the Constitution was ignored and substituted by the personal opinions of the Judges (in majority).

The decisions of the larger Benches of the Supreme Court, including the decision of the Full Court (comprising of 17 Judges) in the case of District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 Supreme Court 401), wherein Article 63A was considered was also disregarded by the Judges (in majority) in the judgment under review. The District Bar Association, Rawalpindi decision had also referred to the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 Supreme Court 1263) and that, 'Article 63A was held to be intra vires the Constitution', The Judges (in majority) could not have invalidated the provisions of Article 63A but they effectively did so.

Imran Khan Niazi v. Ayesha Gulalai 2018 SCMR 1043 ref.

Judges (in majority) in the judgment under review held that when a member votes contrary to the direction of the Parliamentary Party the vote of such member is not to be counted; this negated not only the express provisions of Article 63A but also the following provisions of the Constitution: (i) Article 91(7), whereunder a Prime Minister may be called upon to obtain a vote of confidence from the National Assembly, (ii) Article 95, under which a resolution is submitted seeking a vote of no-confidence, (iii) Article 130(7), whereunder a Chief Minister is called upon to obtain a vote of confidence from the Provincial Assembly and (iv) Article 136, which requires voting on a resolution of no-confidence against a Chief Minister. These constitutional provisions were rendered redundant. Another consequence of the majority's judgment would be that once a Prime Minister and Chief Ministers are elected they can never then be removed either by their own party or by the majority membership of the concerned assembly. Nothing can be more undemocratic; the majority's judgment has opened the way to transform the leader of a political party into a dictator, simply because the party's leader can never be challenged.

In the judgment under review the Judges in the majority had also not noted the particular language which was used in the Constitution. In clause (4) of Article 63A the word cease is used and it is stated that a member 'shall cease to be a member' whereas the word disqualify is used in Article 63 - 'disqualifications for membership.' Ceasing to be a member (on account of defection) is not mentioned in Article 63, let alone that the defector is disqualified or suffers disqualification. To state the obvious, cease means to stop, to come to an end or to forfeit whereas disqualification or disqualify means to render ineligible, to be unfit or to disentitle. The words and the language used in the Constitution, its placement and context was overlooked by the Judges in majority.

Therefore, the short order and its detailed judgment under review are set aside as they are against the clear language and mandate of the Constitution and are also contrary to the decisions of the larger Benches of the Supreme Court. The conclusions arrived at by the Judges who were in the minority in the judgment under review are sustained.

(d) Jurisdiction---

----Neither a court nor a judge can take away jurisdiction given by the law, let alone that which is conferred by the Constitution.

(e) Interpretation of law---

----Supreme Court can only interpret (the law), and not legislate.

Muhammad Ismail v. State PLD 1969 SC 241 ref.

(f) Precedent---

----Smaller Bench cannot decide contrary to what a larger Bench has already decided.

(g) Interpretation of Constitution---

----Principles---Substituting constitutional provisions with personal likes (of a Judge) and moralisms must be avoided---What a particular Judge considers to be right or wrong, or ethical or unethical, is neither the law nor the Constitution---While law makers may transform moral precepts into law, however, the courts are concerned with what is lawful or unlawful---Parliament makes the law which the courts apply, and if there is any ambiguity in the law a judge interprets it, but this too must be done within the parameters of the law and as per the well settled rules of interpretation.

For the Petitioner:

Shahzad Shaukat, President SCBAP, Muhammad Ahsan Bhoon, Ex-President SCBAP, Syed Ali Imran, Secretary, Naseeb Ullah Kasi, Advocate Supreme Court, Qasim Chohan, Advocate Supreme Court, Ms. Neelam Azra, Advocate Supreme Court, Ch. Muhammad Younas, Advocate Supreme Court, Abdul Qadir, Advocate Supreme Court, Syed Asim Ali Bokhari, Advocate Supreme Court, Barrister Taha Shaukat and Barrister Maaz Abdur Rehman.

For the Federation:

Ch. Aamir Rehman, Additional Attorney-General for Pakistan Rana Asadullah, Additional Attorney-General for Pakistan, Malik Javed Iqbal, Additional Attorney-General for Pakistan, Raja Shafqat Abbasi, Deputy Attorney-General for Pakistan, Saad Junaid, Advocate and Ms. Maryam Rashid, Advocate.

Nemo for Respondent No. 3.

For Respondent No. 5:

Haris Azmat, Advocate Supreme Court, Ms. Faiza Asad, Advocate and Awais Anwar, Advocate.

For PPPP:

Farooq H. Naek, Senior Advocate Supreme Court, Syed Qaim Ali Shah, Advocate, Muhammad Waseem Abro, Advocate and Ammar Noonari, Advocate.

Amicus Curiae:

Syed Ali Zafar, Advocate Supreme Court.

P L D 2024 Supreme Court 1223

Present: Yahya Afridi, Shahid Waheed and Aqeel Ahmed Abbasi, JJ

Moulvi ABDUL FATEH---Petitioner

Versus

YAR MUHAMMAD and others---Respondents

Civil Petition No.259-Q of 2020, decided on 9th September, 2024.

(Against the judgment dated 05.10.2020 of the High Court of Balochistan, Sibi Bench passed in Succession Appeal No.(s) 01 of 2016).

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Qanun-e-Shahadat (10 of 1984), Arts. 49 & 91---Succession Certificate and Letter of Administration---Paternity of children (applicants) disputed---High Court after taking cognizance of all the material facts and the evidence produced by the respondents (son and daughter of deceased) in the shape of oral evidence (fourteen witnesses) and the documentary evidence, including school admission certificate, verification certificate of National Identity Card, school leaving certificate, local certificate, documents of opening of a bank account, and copy of application for nomination of GP Fund Account of deceased's legal heirs, reached to the conclusion that the respondents, through oral as well as the documentary evidence had made out a prima facie case for issuance of Succession Certificate in their favour and were entitled to inherit the estate left behind by their deceased father---On the other hand the petitioner, could not produce any material or documentary evidence in support of the allegation that the respondents were not the real son and daughter and were adopted by deceased---Neither any adoption deed nor any order or proceedings from the competent court of jurisdiction to this effect were produced or referred to by the petitioner before the Courts below while disputing the parentage of respondents---Presumption of correctness was attached to the official record in terms of Article 91 of the Qanun-e-Shahadat, 1984, and the relevancy of entry in public record made in performance of duty in terms of Article 49 of the Qanun-e-Shahadat, 1984 were fully attracted to the facts of the instant case---Since the procedure under Sections 372 and 278 of the Succession Act, 1925 was summary in nature, therefore, in case of any dispute relating to determination of right in any movable and immovable property left behind by a deceased or the challenge to the paternity/legitimacy of the children could have been agitated by the party disputing such right before the competent court of civil jurisdiction while producing the evidence to this effect---Petitioner who claimed to be brother of deceased had no legal character to challenge the paternity/legitimacy of respondents in succession proceedings---Petition for leave to appeal was dismissed.

Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449 and Munir Hussain v. Riffat Shamim 2023 SCMR 6 ref.

Manzoor Ahmed Rehmani, Advocate Supreme Court for Petitioner (via video link from Quetta).

Nemo for Respondents.

P L D 2024 Supreme Court 1228

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan, Jamal Khan Mandokhail, Naeem Akhtar Afghan and Mazhar Alam Khan Miankhel, JJ

SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its President---Petitioner

Versus

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

Civil Review Petition No. 197 of 2022 in Constitution Petition No. 2 of 2022, decided on 2nd October, 2024.

(a) Supreme Court Rules, 1980---

----O. XXVI, Rr. 2, 3 & 4---Constitution of Pakistan, Art. 188---Review petition before the Supreme Court, filing of---Limitation---Condonation of delay---Detailed reasons of judgment under review not released within thirty days of the short order---Held, that without knowing what the reasons for the judgment or order under review are a proper review thereof cannot be sought---Only once the detailed reasons are given can the same be read and mistake or error or other justifiable reason to file a review become apparent---Moreover, an Advocate filing a review would be handicapped to certify in the form of reasoned opinion the mistake, error or other justifiable reason on the basis of which the review merits filing---In the present case the review petition was filed three months and twenty one days before the detailed reasons by the majority were issued; and, though the review does not assail the minority judgments yet it was filed even before their issuance---Under these circumstances, the application seeking condonation of delay in filing the review petition was allowed.

(b) Constitution of Pakistan---

----Arts. 184, 185 & 186---Matter before the Supreme Court---Notice, issuance of---There is no requirement in the Constitution or any law nor any emanating from the dictates of common sense to issue notice to all the citizens of Pakistan, who as a consequence of an opinion rendered by the Supreme Court may be affected thereby.

(c) Supreme Court Rules, 1980---

----O. XXVI, R. 8---Constitution of Pakistan, Art. 188---Review petition before the Supreme Court---Author Judge of the main judgment under review---Objection that the author Judge of the main judgment under review was not part of the present Bench hearing the review petition---Held, that the present five-member Bench as it was originally constituted included the author Judge but he had expressed his inability to be part of it as was recorded in the order dated 30 September 2024---To ensure said Judge's presence on the Bench an attempt was made to formally request him to attend the Court but he declined by another letter of the same day, that is, 30 September 2024 and maintained his earlier position---Thereafter, the Chief Justice of Pakistan proposed the name of the Senior Puisne Judge to be on the Bench however, he too did not want to be part of the Bench, therefore, another Judge was nominated, who was part of Bench No. 1 and was available---Whilst the objection is correct that ideally the author Judge of the main judgment under review should have been part of the present Bench, however, since he had repeatedly expressed his inability and as the matter could not be left unattended the Bench was re-constituted in accordance with the law---Reference in this regard may also be made to Order XXVI, Rule 8 of the Supreme Court Rules, 1980 which states that 'As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.'---Operative words in the provision are 'as far as practicable' and to ensure this every effort was made---However, neither the Supreme Court nor the Committee [formed under the Supreme Court (Practice and Procedure) Act, 2023] nor the Chief Justice of Pakistan has the power to compel the author Judge to sit and hear the case if he is not so inclined---Accordingly, the objection taken in this regard was overruled.

M. Shahzad Shaukat, Advocate Supreme Court for Petitioner.

Ch. Aamir Rehman, Addl. A.G.P. for the Federation of Pakistan.

Syed Ali Zafar, Advocate Supreme Court for Respondent No. 3.

Barrister Haris Azmat, Advocate Supreme Court for Respondent No. 5.

Farooq H. Naek, Sr. Advocate Supreme Court for PPPP.

P L D 2024 Supreme Court 1235

Present: Amin-ud-Din Khan and Athar Minallah, JJ

MEMBER, BOARD OF REVENUE, PUNJAB and others---Petitioners

Versus

SHERAZ KHAN---Respondent

Civil Petition No.148-L of 2024, decided on 4th July, 2024.

(Against order dated 07.11.2023 of the Lahore High Court, Multan Bench passed in Writ Petition No.3509 of 2022).

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10(4)---Constitution of Pakistan, Art. 24---Affectees displaced due to Tarbela Dam Project---Tarbela Dam Oustee Scheme ('Scheme')---Allotment of alternate land---Grant of proprietary rights regarding the allotted land relatable to the date of allotment---Possession of land given but grant of proprietary rights denied to allottee because of land falling within the prohibited zone---Legality---Comprehensive and self contained procedure was prescribed (for allotment of land) leading to passing of formal orders of allotment under section 10(4) of the Colonization of Government Lands (Punjab) Act, 1912 ("Colonization Act") and then putting the allottee in possession---Through Memorandum dated 01.05.1969 the Board of Revenue had imposed an affirmative duty on the designated officials to thoroughly scrutinize the status of the selected land---It was the obligation of the Revenue Officer and the Settlement Officer, WAPDA to ensure that the selected land was 'free from any defects and encumbrances'---Deputy Commissioner Multan had confirmed to the Board of Revenue vide letter dated 20.08.1980 that the proposed land was 'free from all defects and encumbrances' and that 'it was situated outside the prohibited limits'---Deputy Commissioner, vide letter dated 21.09.1991, had affirmed that at the time of allotment of the land the Municipal Committee, Khanewal enjoyed 'second class' status and thus the allotted land did not fall within the prohibited area---Later, however, the limits of the prohibited area was extended when Khanewal was upgraded to a District and consequently, the Municipal Committee was also upgraded to 'first class' with effect from 01.07.1985---Thus, when the land was allotted it was outside the limits prescribed under clause (viii) of the Scheme and, moreover, it was free from any defect or encumbrance---Limits of the prohibited area which existed at the time of allotment were relevant i.e. when the order under section 10(4) of the Colonization Act was passed---Subsequent change in the status of the prohibited area could not affect or take away the already accrued rights---Grant of proprietary rights regarding the allotted land under the Scheme were thus relatable to the date of allotment---Therefore, grant of proprietary rights was relatable to the order passed under section 10(4) of the Colonization Act and the subsequent change in the prohibited area on account of up gradation of Khanewal from a Tehsil to District did not affect the accrued rights of allotee---Denial of grant of propriety rights in the present case was violative of the fundamental right guaranteed under Article 24 of the Constitution---Petition was dismissed and leave was refused.

Province of Punjab through District Collector, Vehari v. Ghulam Muhammad 1994 SCMR 975 and Province of Punjab through Secretary Colonies, Board of Revenue, Lahore and others v. Ch. Abdus Sattar 2012 SCMR 1007 ref.

Baleeg-uz-Zaman, Addl. A.G. Punjab for Petitioners.

Abdur Rehman Khan Laskani, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

P L D 2024 Supreme Court 1241

Present: Amin-ud-Din Khan and Naeem Akhtar Afghan, JJ

SAEED AHMED and another---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 157 of 2024 and Crl. P. No. 894 of 2024, decided on 23rd August, 2024.

(On appeal against the order dated 12.02.2024 of the High Court of Sindh Bench at Sukkur passed in Crl. B. A. No. S-544 of 2023).

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 337-F(v), 114, 148 & 149---Constitution of Pakistan, Art.185(3)---Murderous assault---Ad-interim pre-arrest bail, confirmation of---Further inquiry---During investigation both the petitioners (accused persons) had taken plea of alibi with the contention that on the date and time of the alleged occurrence, they both were visiting a hospital in city "K" and had also drawn cash from a bank ATM booth installed within the hospital at the date and time of the occurrence---Apart from recording statements of the witnesses during investigation, Call Data Record (CDR) of petitioner "S" was also availed showing his presence in city "K" at the date and time of the occurrence---Investigating officer also collected and verified the laboratory slips of the hospital showing presence of both the petitioners in the hospital on the date and time of the alleged occurrence---Investigating officer also collected CCTV footages of the ATM booth in the hospital wherein both the petitioners were seen present---Investigating officer appeared before the Supreme Court with the statement that he had investigated both the petitioners; that on completion of investigation both the petitioners were found innocent by the police due to lack of incriminating evidence and they both had been placed in Column No.2 of the Challan; that both the petitioners were no more required for any further investigation or probe as the trial had already commenced---Apprehension of the petitioners about their arrest by the police at the behest of the complainant with ulterior motives to create humiliation and unjustified harassment could not be held to be vague or baseless---Investigation had already been completed---No recovery of firearms had been affected from the petitioners---Admittedly, the petitioners facing trial were no more required for any further investigation or probe---Guilt or innocence of the petitioners was yet to be determined at the trial after recording evidence---Bail could not be withheld as mere punishment---On the basis of tentative assessment of the material so far available on record, the case against the petitioners fell within the ambit of further inquiry as well---Petitions were converted into appeals and allowed and the ad-interim pre-arrest bail granted to both the petitioners was confirmed.

Salman Mushtaq v. The State 2024 SCMR 14; Ahtisham Ali v. The State 2023 SCMR 975; Fahad Hussain v. The State 2023 SCMR 364; Gulshan Ali Solangi v. The State 2020 SCMR 249; Muhammad Sadiq v. The State 2015 SCMR 1394 and Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 ref.

Razzaq A. Mirza, Advocate Supreme Court, Ms. Bushra Qamar, Advocate Supreme Court along with Petitioner for Petitioner (in Crl. P. No. 157 of 2024).

Abdul Rasheed Kalwar, Advocate Supreme Court along with Complainant for the Complainant (in both petitions).

Razzaq A. Mirza, Advocate Supreme Court for Petitioner (in Crl. P. No. 894 of 2024).

Siraj Ali Khan Chandio, Addl.P.G., Sindh for the State (in both petitions) (Via video link from Karachi).

P L D 2024 Supreme Court 1246

Present: Qazi Faez Isa, CJ, Amin-ud-Din Khan, Jamal Khan Mandokhail, Naeem Akhtar Afghan and Aqeel Ahmed Abbasi, JJ

Civil Appeals Nos. 842 and 843 of 2024

(On appeal from the judgment dated 29.05.2024 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 28985 and 31120 of 2024).

AND

C.M. Applications Nos.5387 and 5388 of 2024

[Stay Applications]

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad---Appellant

Versus

SALMAN AKRAM RAJA and others---Respondents

AND

Case Under Objection No. 72 of 2024 in Constitution Petition NIL of 2024

MUHAMMAD SHABBIR AWAN and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and others---Respondents

AND

Civil Review Petition No. 318 of 2024

[For review of the order dated 04.07.2024 passed by this Court]

IN

Civil Appeal No. 842 of 2024

SALMAN AKRAM RAJA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and others---Respondents

Civil Appeals Nos. 842 and 843 of 2024, C.M. Applications Nos. 5387 and 5388 of 2024, Case Under Objection No. 72 of 2024 in Constitution Petition NIL of 2024 and Civil Review Petition No. 318 of 2024 in Civil Appeal No. 842 of 2024, heard on 24th September, 2024.

Per Qazi Faez Isa, CJ.; Amin-ud-Din Khan and Naeem Akhtar Afghan, JJ. agreeing; Jamal Khan Mandokhail and Aqeel Ahmed Abbasi, JJ. also agreeing but with their own reasons.

(a) Constitution of Pakistan---

----Arts. 219(c), 222(d) & 225---Elections Act (XXXIII of 2017), Ss. 140(1), 140(3) & 151---Election Tribunals in Punjab, appointment of---Consultation process between the Chief Justice of the (Lahore) High Court and the Election Commission of Pakistan ("ECP")---Amicable settlement between Constitutional office holders---Through the impugned judgment Single Judge of the High Court held that the Election Tribunals are to be appointed on the recommendation of the Chief Justice of the Lahore High Court---Legality---ECP is a constitutional body and the Chief Justice (of the Lahore High Court) is a constitutional office holder---Both are deserving of the highest respect---Counsel representing the ECP stated that a meeting and meaningful consultation took place between the ECP/Chief Election Commissioner and the Chief Justice of the Lahore High Court and a consensus emerged with respect to appointment of Election Tribunals in Punjab---Report was also received from the Registrar (of the Lahore High Court) which confirmed that the matter was amicably resolved between the Chief Justice of the Lahore High Court and the ECP---Supreme Court was also informed that sufficient number of Election Tribunals will be appointed/constituted immediately---Supreme Court observed that since the present matter has been amicably resolved to the satisfaction of the Chief Justice of the Lahore High Court and the ECP there was no need to decide the present cases; that whenever a party to a dispute/disagreement is a constitutional body or constitutional office holder a cautious approach should be adopted and it must be ensured that adjudication is resorted to as a last resort and when necessitated----Impugned judgment was set aside and also the notification issued pursuant thereto with the direction that anything stated in the impugned judgment should not be referred to before any court---Appeals were allowed accordingly and the listed applications, the review petition and the case under objection were disposed of.

Per Jamal Khan Mandokhail, J.; Aqeel Ahmed Abbasi, J. agreeing.

(b) Elections Act (XXXIII of 2017)---

----S. 140---Election Tribunals, appointment of---Powers of the Chief Justice of the High Court and the Election Commission of Pakistan ("Commission")---Power to appoint (Election) Tribunals rests only with the Commission, but in order to ensure free and fair election, an independent machinery is necessary---In such view of the matter, the power to adjudicate such delicate task, has been assigned to the judiciary---Therefore, in case of appointing a sitting Judge of a High Court, consultation with the Chief Justice of the High Court concerned by the Commission is a condition precedent---Purpose of consultation is because of the realization that the Chief Justice is not only the administrative head of the High Court but also is in best position to know and assess the suitability and availability of the Judges---As several Judges are performing their functions in different Benches, therefore, while nominating Judges, it will be convenient for the Chief Justice to consider availability of Judges at relevant Benches---In this way, the determination of territorial jurisdiction can also be resolved suitably---Once the Chief Justice nominates Judges for the purpose of appointment as Tribunals, the Commission is bound to accept the names and notify them accordingly, unless, there are cogent reasons, which must be communicated to the Chief Justice---If the Chief Justice is satisfied with the reasons advanced by the Commission, he may substitute a Judge accordingly---Constitution and section 140 of the Elections Act, 2017 do not provide for any provision, enabling the Commission to request for a panel of Judges for the purpose of appointment as Tribunals---Intention of the Legislature is evident of the fact that they did not assign power to the Commission to ask for a panel of Judges and pick and choose a Judge of its own choice amongst them---Commission must have faith in every Judge and can only ask for a Judge against each Tribunal---Primacy, therefore, lies in the final opinion of the Chief Justice---Commission is a constitutional body and the Chief Justice and Judges are holding constitutional posts---It is expected that members of both the institutions must respect each other and in case of any issue, they are supposed to have a meaningful consultation as has been provided by the Elections Act, 2017.

For the Appellant:

Sikandar Bashir Mohmand, Advocate Supreme Court, assisted by Abdullah Noor, Hamza Azmat, Khizar Hayat and Imran Khan, Advocates, Muhammad Arshad, Special Secretary, ECP, Khurram Shahzad, Addl. DG. Mr. Falak Sher, A.D. (in C.As. Nos. 842 and 843 of 2024).

For the Petitioners:

Sameer Khosa, Advocate Supreme Court (in C.U.O. No. 72 of 2024).

For the Petitioner:

Salman Akram Raja, In-person (in C.R.P. No. 318 of 2024).

In C.A. 842 of 2024:

Salman Akram Raja, in-person for Respondent No. 1. (in C.R.P. No. 318 of 2024)

Shoukat Mahmood, in-person for Respondent No. 4.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondent No. 5.

Nemo for Respondent No. 6.

Salman Akram Raja, Advocate Supreme Court for Respondent No. 7.

Uzair Karamat Bhandari, Advocate Supreme Court, assisted by Momal Malik, Advocate for Respondent No. 9.

Abid S. Zuberi, Advocate Supreme Court, assisted by Hira Fatima and Arif Ansari, Advocates for Respondent No. 12.

In C.A. 843 of 2024:

Sameer Khosa, Advocate Supreme Court for Respondent No. 1.

Mansoor Usman Awan, Attorney-General for Pakistan, Ch. Aamir Rehman, Additional Attorney-General for Pakistan for the Federation of Pakistan.

P L D 2024 Supreme Court 1258

Present: Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ

Malik AMANULLAH---Petitioner

Versus

Haji MUHAMMAD ESSA and others---Respondents

Civil Appeal No.1414 of 2013, decided on 3rd October, 2024.

(On appeal against the judgment dated 15.08.2013 passed by the High Court of Balochistan, Quetta, in R.F.A. No.76 of 2007).

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

----S. 52---Suit relating to immoveable property---Lis pendens, principle of---Scope---If a suit is dismissed and then restored, the restoration order relates back and a transfer/sale after dismissal and before restoration is subjected to the principle of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882.

Ashutosh Roy v. Ananta Ram Bhattacharjee 1919 IC 727 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

M. Shahzad Shaukat, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant.

Zahoor Ul Haq Chishti, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos. 1-6.

Anis M. Shahzad, Advocate-on-Record for Respondent No.7.

Nemo for Respondents Nos.8-9.

P L D 2024 Supreme Court 1262

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

1. Civil Misc. Application No. 6155/18 in C.P. No.57/2016

(Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and Mohmand Dam by the Government of Pakistan).

AND

1. Civil Misc. Application No. 1031/20 in C.M.A. No. 1610/2019

(Comprehensive Report on behalf of WAPDA).

AND

1. Civil Misc. Application No. 783/21 in C.M.A. No. 6155/18

(Advertisement by UBL and HBL regarding raising of Funds for Diamer Bhasha and Mohmand Dam by the Government of Pakistan).

AND

1. Civil Misc. Application No. 697/2022 in C.M.A. No. 6155/18

Sh. BASHIR AHMAD---Petitioner

Versus

MUHAMMAD ASADULLAH (deceased) through his L.Rs and others

AND

1. Civil Petitions Nos. 350-P to 354-P of 2022

(On appeal against the order dated 21.03.2022 passed by the Peshawar High Court, Peshawar in C.Rs. Nos. 1092-P to 1095-P/2021 and 2-P/2022).

ZAHID KHAN and others---Petitioners

Versus

Haji Malik SAID MEHMOOD JAN and others---Respondents

Civil Miscellaneous Application No. 6155 of 2018 in C.P. No.57 of 2016, Civil Miscellaneous Application No. 1031 of 2020 in C.M.A. No. 1610 of 2019, Civil Miscellaneous Application No. 783 of 2021 in C.M.A. No. 6155 of 2018, Civil Miscellaneous Application No. 697 of 2022 in C.M.A. No. 6155 of 2018, Civil Petitions Nos. 350-P to 354-P of 2022, decided on 17th October, 2024.

Constitution of Pakistan---

----Arts. 78(2)(b) & 184(3)---Construction of Diamer Bhasha Dam and Mohmand Dam---Raising of funds---Account established on the orders of the Supreme Court in the name of 'The Supreme Court of Pakistan and the Prime Minister of Pakistan Diamer-Bhasha and Mohmand Dams Fund' for collecting donations for construction of dams---Transfer of funds from the account to the Public Account of the Federation---Implementation Bench constituted by the Supreme Court (on 9 January 2019) to oversee the issue of construction of dams---Record did not show that the Implementation Bench undertook any work or that the progress reports submitted by Water and Power Development Authority ('WAPDA') were ever examined by it---If the Implementation Bench did not examine the progress reports then their submission was pointless---Moreover, except for one, all the Judges of the Implementation Bench had since retired and were not replaced by the Supreme Court---WAPDA's counsel also stated that preparation of progress reports consumed time, money and effort---Filing of the progress reports without the same being examined by the Implementation Bench served no purpose---Therefore, unless specifically directed, WAPDA need not submit further progress reports in the Supreme Court---State Bank of Pakistan ('SBP') submitted its report in the Supreme Court, which stated that, as on 4 October 2024 the total collected amount was Rupees 11,475,776,584 and the mark-up earned thereon was Rupees 12,194,306,459---Accrued mark-up had exceeded the amount collected, and the mark-up was paid by the Federal Government---Total amount (principal and mark-up) was Rupees 23,670,083,043---WAPDA's counsel stated that the present projected cost of the said dams was seven hundred and forty billion rupees---Amount in the subject account, therefore, constitutes only 3.2 per cent of the money required to build the said dams, and of such amount the larger portion the Government itself had paid in the form of mark-up---Supreme Court directed that the amount in the account maintained in the name of 'The Supreme Court of Pakistan and the Prime Minister of Pakistan Diamer-Bhasha and Mohmand Dams Fund' by the State Bank of Pakistan shall be transferred to the Public Account of the Federation (in terms of Article 78(2)(b) of the Constitution); that upon transfer of the total amount from the abovementioned account the same should be closed; that a sub-account in the Public Account of the Federation be created or other appropriate measure be taken to enable the said amount to be lent to the best rated private scheduled bank(s) so that mark-up can be earned thereon; and when any amount was required for the construction of the said dams the amount collected and mark-up accrued thereon should be so utilized.

For the Federation:

Ch. Aamir Rehman, Additional Attorney-General for Pakistan Ghufran Memon, Additional Auditor-General for Pakistan Tajdar Zaidi, Director (Legal) and Muhammad Azhar, Deputy Auditor-General for Pakistan.

For Government of Punjab:

Wasim Mumtaz, Additional Advocate-General.

On Court's Notice:

Khalid Jawed Khan, Advocate Supreme Court (through video-link from Karachi).

For State Bank of Pakistan:

Mehmood Nazir Rana, Legal Advisor.

For NBP:

Taha Sajjad, Head Fixed Income Sales, NBP, Karachi and Zia Iftikhar, Head Corporate Sales North, NBP, Karachi.

For WAPDA:

Saad Rasool, Advocate Supreme Court, Javaid Latif, Member Power, WAPDA, Asim Rauf, GM, Mohmand Dam, Nazakat Hussain, GM, Diamer Bhasha Dam and M. Babar Khattak, Dy. Director (Legal).

For the Applicant:

Mian Abdul Rauf, Advocate Supreme Court (in C.M.A. No. 697/22).

For the Petitioners:

M. Munir Paracha, Advocate Supreme Court and Haji M. Zahir Shah, Advocate-on-Record (in C.Ps. Nos. 350-P to 354-P/22).

For the Applicant:

Hassan Rashid Qamar, Advocate Supreme Court (in C.M.A. No. 9843/24).

For Ministry of Information:

Sikandar Mehmood, Assistant Director.

P L D 2024 Supreme Court 1268

Present: Yahya Afridi and Syed Hasan Azhar Rizvi, JJ

AKHTAR NASIR AHMED---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector Gujrat and others---Respondents

Civil Petition No. 1182-L of 2018, decided on 9th October, 2024.

(Against the order dated 14.03.2018 passed by the Lahore High Court in Civil Revision No.70548 of 2017).

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

----S. 42---Inheritance mutation, challenging of---Limitation---Suit for declaration challenging the validity of an inheritance mutation---Perusal of the record demonstrated that mutation entries in respect of the land measuring 7/72 in favor of respondent (defendant) were sanctioned in 1982---However, the petitioner (plaintiff) instituted the suit for the first time in 2009 after a lapse of more than 27 years---No explanation whatsoever had been provided by the petitioner for the delay in filing the suit before the Trial Court---Law of limitation exists to prevent precisely this kind of neglect, ensuring that claims are brought forth when evidence is fresh and facts are clear---To allow the present claim after such an extraordinary delay would not only undermine the integrity of the legal system but would also set a dangerous precedent, suggesting that legal rights can be asserted at any time, regardless of the passage of decades---Furthermore, none of the other legal heirs had ever challenged the validity of the inheritance mutation in question in the name of respondent---Petitioner was unable to overcome the hurdle of limitation, and his suit was rightly dismissed by the Trial Court for being barred by time---Petition was dismissed and leave was refused.

(b) Limitation---

----Inheritance cases, filing of---Limitation---Principles---It is not in all cases of inheritance that question of limitation become irrelevant---There can be exceptional circumstances where in a suit based on inheritance issue of limitation may become relevant---In some cases the Supreme Court has invoked the principle of time limitation and acquiescence of the plaintiff in suits involving inheritance.

Ghulam Ali's case PLD 1990 SC 1; Mst. Grana through LRs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 ref.

(c) Limitation---

----Law of limitation---Purpose and scope---Law of limitation is founded on the principle of "Vigilantibus non dormientibus jura subveniunt," meaning "the law assists the vigilant, not those who sleep on their rights"---This principle forms a cornerstone of justice, reinforcing that the law favours those who act promptly and diligently---It emphasizes that individuals must be active in asserting their rights and those who fail to do so within a reasonable time should not expect the courts to intervene in their favor---Law of limitation is not just a technical formality but a crucial component of a well-functioning legal system---It provides a framework that ensures legal matters are addressed promptly, preventing evidence from being lost, memories from fading, and facts from becoming distorted over time---Furthermore, it protects potential defendants from being subjected to claims long after they could reasonably expect such challenges, fostering certainty and finality in legal matters---By requiring claimants to act within a specific period, the law promotes diligence and responsibility in the pursuit of legal remedies---Those who neglect to assert their rights effectively forfeit their ability to challenge matters that could have been addressed much earlier.

Ghulam Farid Sanotra, Advocate Supreme Court for Petitioner.

Baleegh-uz-Zaman Ch., Additional Advocate General, Punjab for Respondents Nos. 1-3.

Respondent No.4 in-person.

Nemo for Respondents Nos. 5 to 12.

P L D 2024 Supreme Court 1273

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

BAKHT BILAND KHAN and others---Petitioners

Versus

ZAHID KHAN and others---Respondents

Civil Petition No. 284-P of 2012, decided on 30th September, 2024.

(Against the judgment 23.04.2012 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Civil Revision No. 461 of 2011).

Islamic law---

----Inheritance---Brothers depriving their sisters of their inheritance---Inheritance Mutation of deceased included his daughters---Counsel for the brothers submitted that then deceased had in his lifetime gifted some cash and gave dowry to his daughters, therefore, the daughters should have been excluded from the Inheritance Mutation and from inheriting the estate of the deceased---Validity---Such contention on behalf of the brothers was completely against the Shariah and the law of Pakistan---Present case was yet another classic case of brothers' depriving their sisters of their inheritance, and did so for decades---Frivolous litigation initiated by them was undoubtedly encouraged by the fact that substantial costs were not imposed on them for putting forward an untenable claim---And, because the revenue authorities were not directed to ensure that the shares of all the legal heirs were recorded and no legal heir was deprived of his/her share---Brothers deprived their sisters' share in the inheritance of their father and filed a baseless case and then dragged it out over decades, which had eventually come before the Supreme Court---Precious court time had been wasted---It was intolerable to deprive vulnerable persons and females of their legal rights---Present petition should never have been filed because it proposed to undo Shariah and law---Petitioners (brothers) had retained possession of the daughters' share in the subject land---Petition for leave to appeal was dismissed with costs in the sum of five hundred thousand rupees, to be paid by the petitioners, with the directions that they should deposit the same with the concerned revenue authority within three months and such authority shall distribute the same amongst those who had been deprived; that if the said amount was not deposited it shall be recovered as arrears of land revenue and distributed in like manner; that the revenue authorities shall ensure that the estate of deceased was distributed amongst all his legal heirs in accordance with their shares prescribed by Shariah.

Atlas Khan Dagai, Advocate Supreme Court for Petitioners (Through video-link from Peshawar).

Respondents not represented.

P L D 2024 Supreme Court 1276

Present: Qazi Faez Isa, CJ, Naeem Akhtar Afghan and Shahid Bilal Hassan, JJ

GENERAL POST OFFICE, ISLAMABAD and others---Petitioners

Versus

MUHAMMAD JALAL---Respondent

Civil Petition No.3390 of 2021, decided on 26th September, 2024.

(On appeal against the order dated 13.04.2021 of the Peshawar High Court, Peshawar passed in W.P. No. 4609-P of 2020).

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 17-A (since omitted)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 11-A---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 10(4)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, Rr. 12-A (since omitted) & 12---Constitution of Pakistan, Arts. 18, 25 & 27---Civil service---Contract appointment without advertisement---Quota reserved for widow/widower/child of a civil servant who dies during service or who becomes permanently disabled during service and takes retirement from service---Constitutionality---Any Rules, Policies, Office Memorandums, etc. which secure or provide appointments in different grades, without open advertisements and competition, to the widow/widower, wife/husband or a child of a civil servant of the Federal and Provincial Governments, who dies during service or becomes permanently disabled/invalidated/ incapacitated for further service and takes retirement from service, is ex facie discriminatory against the other or ordinary citizens of Pakistan and the same cannot be termed as a reasonable classification as their object is to give an advantage by excluding others, which is not permissible under Article 25 of the Constitution---Article 27 of the Constitution which specifically attends to the service of Pakistan prohibits discrimination in services---These jobs neither are nor can be made hereditary---Constitution stipulates that equal employment and economic opportunities must be provided to all citizens---Economic justice is a component of social justice which focuses on creating equal opportunities for all within a society in all aspects---Appointment of a widow/widower, wife/husband or child of a civil servant in different grades on contract or regular basis, without open advertisement, competition and merit is also violative of Article 18 of the Constitution which provides that subject to such qualification, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business---Appointments obstructing ordinary qualified citizens to compete for entering into the profession of the service of Pakistan in accordance with their ability and eligibility also violate this fundamental right, and if such appointments are made they negate equality of opportunity, competition, merit and also defeat the object of good governance---Supreme Court declared the policies, office memorandums, employment under the Prime Minister's Assistance Package, 2006, the Financial Assistance Package, Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rule 10 (4) of the Khyber Pakhtunkhwa Civil servants (Appointment, Promotion and Transfer) Rules, 1989, Rule 12 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 or any other rule, policy, memorandum, etc. whereunder appointments without open advertisement, competition and merit of the widow/widower, wife/husband or child of civil servants in different grades, who die during service or become permanently disabled/ invalidated/incapacitated for further service and take retirement from service, to be discriminatory and ultra vires Articles 3, 4, 5(2), 18, 25(1) and 27 of the Constitution---Supreme Court directed that the Federal and Provincial authorities shall withdraw the same---Supreme Court clarified that the present judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants; that present judgment shall also not affect the policies, rules or compensation packages of the Federal and Provincial Governments for the benefit of the legal heirs of martyred personnel of the law enforcement agencies and of civil servants who die on account of terrorist activities.

(b) Judicial review---

----Any law, policy or rule which is manifestly inconsistent with the Constitutional commands, retrogressive in nature and discriminatory inter se the citizens is subject to judicial review.

Civil Petition No.288-P of 2015 decided on 12 September 2024 ref.

Malik Javed Iqbal Wains, Addl. A.G.P., assisted by Miss Maryam Rasheed, Advocate High Court and Gulistaj Ahmed Kiani, Senior Postmaster for Petitioners.

Nemo for Respondent.

Khalid Ishaq, Advocate General, Punjab assisted by Barrister Muhammad Mumtaz Ali, Addl.A.G., Punjab, Saifullah, Addl.A.G., Sindh, Shah Faisal Ilyas, Addl.A.G., Khyber Pakhtunkhwa and Muhammad Ayaz Swati, Addl.A.G., Balochistan on Court Notice.